[Federal Register: March 25, 1996 (Rules and Regulations)]
[Page 12814-12864]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[pp. 12814-12864]] Export Administration Regulation; Simplification of Export
Administration Regulations
[[Continued from page 12813]]
[[Page 12814]]
(ii) An acknowledgement by you that any license issued under these
emergency procedures will have a limited validity period as described
in Sec. 750.7(g) of the EAR, and that it generally will not be
extended.
(2) Prompt delivery of emergency handling requests. You are
responsible for prompt delivery of your request and license application
to BXA. You may hand-carry your request and license application or use
the services of an overnight courier to ensure prompt delivery. If you
desire to hand-carry your request and license application, you may hand
deliver it to the Exporter Counseling Division at the address stated in
Sec. 748.2(a) of this part. If you decide to use an overnight courier,
use the address listed in Sec. 748.2(c) of this part. The envelope
containing your license application should be labeled ``Attn: Exporter
Counseling Division, Emergency Handling Request Enclosed''.
(3) Review of emergency handling requests. BXA views an emergency
as an unforeseeable situation over which you have no control. On the
day of receipt, BXA will evaluate your license application and decide
whether emergency handling is warranted. Frequent emergency request
will be given particularly close scrutiny. This procedure is not
designed to become a substitute for timely filing of license
applications.
(4) Action on license applications processed under emergency
procedures. If you have submitted an emergency request, you will be
contacted by the Exporter Counseling Division informing you of whether
or not your request for emergency processing has been granted. If your
license is approved under emergency handling procedures, you will be
notified by BXA of the approval by telephone or in person. You will be
given the license number and verbal authorization to effect shipment
immediately, without waiting for the actual license. Any license
approved under these emergency handling procedures will have a limited
validity period as described in Sec. 750.7(g) of the EAR.
Sec. 748.5 Parties to the transaction on a license application.
(a) Applicant. (1) The ``applicant'' is defined as the person who,
as the principal party in interest in the transaction, has the power
and responsibility for determining and controlling the exporting or
reexporting of the items. BXA is primarily concerned with the identity
of the applicant and the applicant's role in the transaction, and not
the terms of sale.
(2) Ordinarily, a seller who delivers items in the United States to
a foreign buyer, or to the latter's forwarder or other agent, would not
be in a position to assume responsibility for the export and would not
be a proper applicant. This would normally be the situation where sale
is made f.o.b. factory, although such terms of sale may relate only to
price and are not necessarily inconsistent with the assumption by the
seller of full responsibility for effecting the export or reexport. The
seller can still be liable if the seller knows that the importer or its
agent will not obtain the required license.
(3) If the seller intends to leave the responsibility for effecting
an export or reexport in the hands of the foreign importer or the
latter's forwarding or purchasing agent in the United States, the
foreign importer should apply for the license in the foreign importer's
own name if the foreign importer is subject to the jurisdiction of the
United States at the time of export. Otherwise, the importer's
forwarding or purchasing agent or other person subject to the
jurisdiction of the U.S. must appear as applicant and exporter. In this
situation you, as the applicant, must disclose your role as agent and
the name of your principal.
(b) Order party. The order party is that person in the United
States who conducted the direct negotiations or correspondence with the
foreign purchaser or ultimate consignee and who, as a result of these
negotiations, received the order from the foreign purchaser or ultimate
consignee.
(c) Purchaser. The purchaser is that person abroad who has entered
into the transaction with the applicant to purchase an item for
delivery to the ultimate consignee. A bank, freight forwarder,
forwarding agent, or other intermediary is not the purchaser. The
purchaser and ultimate consignee may be the same entity.
(d) 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 or reexporter, the purchaser, or
the ultimate consignee, for the purpose of effecting delivery of the
export or reexport to the ultimate consignee.
(e) Ultimate consignee. The ultimate consignee is the person
located abroad who is the true party in interest in actually receiving
the export for the designated end-use. A bank, freight forwarder,
forwarding agent, or other party, when acting as an intermediary, is
not acceptable as the ultimate consignee.
Sec. 748.6 General instructions for license applications.
(a) Form and instructions. An application for license, whether to
export or reexport, must be submitted on Form BXA-748P, Multipurpose
Application (revised June 15, 1996 or later), and Form BXA-748P-A, Item
Appendix, and Form BXA-748P-B, End-User Appendix. Facsimiles or copies
of these forms are not acceptable. Instructions for preparing Form BXA-
748P are contained in Supplement No. 1 to this part 748. See
Sec. 748.7(a) of this part for instructions on submitting license
applications electronically.
(b) Application Control Number. Each application form includes a
preprinted Application Control Number. The Application Control Number,
consisting of a letter followed by six digits, is for use by BXA when
processing applications, and by applicants when communicating with BXA
concerning pending applications. This number is used for tracking
purposes within the U.S. Government. The Application Control Number is
not a license number.
(c) Approval or denial in entirety. License applications may be
approved in whole or in part, denied in whole or in part, or returned
without action. However, you may specifically request that your license
application be considered as a whole and either approved or denied in
its entirety.
(d) Combining items on license applications. Any items may be
combined on a single application, however, if the items differ
dramatically (e.g., computers and shotguns) the number of BXA offices
to which a license application may be referred for review may increase
significantly. Accordingly, it is recommended that you limit items on
each license application to those that are similar and/or related.
(e) Assembly and additional information. All documents or
correspondence accompanying your license application should bear the
Application Control Number, and be stapled together. Where necessary,
BXA may require you to submit additional information beyond that stated
in the EAR confirming or amplifying information contained in your
license application.
(f) Changes in facts. Answers to all items on the license
application will be deemed to be continuing representations of the
existing facts or circumstances. Any material or substantive change in
the terms of the order, or in the facts relating to the transaction,
must be promptly reported to BXA, whether a license has been granted or
the license application is still
[[Page 12815]]
under consideration. If a license has been granted and such changes are
not excepted in Sec. 750.7(c) of the EAR, they must be reported
immediately to BXA, even though shipments against the license may be
partially or wholly completed, during the validity period of the
license.
(g) Request for extended license validity period. An extended
validity period will generally be granted if your transaction is
related to a multi-year project, when production lead time will not
permit export or reexport during the normal validity period or for
other similar circumstances. A continuing requirement to supply spare
or replacement parts will not normally justify an extended validity
period. To request an extended validity period, include justification
for your request in Block 24 on the application.
Sec. 748.7 Applying electronically for a license or Classification
request.
(a) Authorization. You may apply electronically once you have been
authorized to do so by BXA. An authorization to submit applications
electronically may be limited or withdrawn by BXA at any time. There
are no prerequisites for obtaining permission to submit electronically
or limitations in terms of country eligibility. However, BXA may direct
for any reason that any electronic application be resubmitted in
writing, in whole or in part
(1) Requesting approval to submit applications electronically. To
submit applications electronically, your company must submit a written
request to BXA at one of the addresses identified in Sec. 748.2(c) of
this part. Both the envelope and letter must be marked ``Attn:
Electronic Submission Request''. Your letter must contain your
company's name, and the address, telephone number, and name of the
principal contact person in your company. Before approving your
request, BXA will provide you with language for a number of required
certifications. Once you have completed the necessary certifications,
you may be approved by BXA to submit applications electronically.
(2) Assignment and use of company and personal identification
numbers. (i) Each company granted permission to submit applications
electronically will be assigned a company identification number. Each
person approved by BXA to submit applications electronically for the
company will be assigned a personal identification number (``PIN'')
telephonically by BXA. A PIN will be assigned to you only if your
company has certified to BXA that you are authorized to act for it in
making electronic submissions under the EAR.
(ii) Your company may reveal the assigned company identification
number only to the PIN holders, their supervisors, employees, or agents
of the company with a commercial justification for knowing the company
identification number.
(iii) An individual PIN holder may not:
(A) Disclose the PIN to anyone;
(B) Record the PIN either in writing or electronically;
(C) Authorize another person to use the PIN; or
(D) Use the PIN following termination by BXA or your company of
your authorization or approval for PIN use.
(iv) To prevent misuse of the PIN:
(A) If a PIN is lost, stolen or otherwise compromised, the company
and the PIN holder must report the loss, theft or compromise of the PIN
immediately by telephoning BXA at (202) 482-0436. You must confirm this
notification in writing within two business days to BXA at the address
provided in Sec. 748.2(c) of this part.
(B) Your company is responsible for immediately notifying BXA
whenever a PIN holder leaves the employ of the company or otherwise
ceases to be authorized by the company to submit applications
electronically on its behalf.
(v) No person may use, copy, steal or otherwise compromise a PIN
assigned to another person; and no person may use, copy, steal or
otherwise compromise the company identification number where the
company has not authorized such person to have access to the number.
(b) Electronic submission of applications. (1) All applications.
Upon submission of the required certifications and approval of the
company's request to use electronic submission, BXA will provide
instructions both on the method to transmit applications electronically
and the process for submitting required supporting documents and
technical specifications. These instructions may be modified by BXA
from time to time.
(2) License Applications. The electronic submission of an
application for license will constitute an export control document.
Such submissions must provide the same information as written
applications and are subject to the recordkeeping provisions of part
762 of the EAR. The applicant company and PIN holder submitting the
application will be deemed to make all representations and
certifications as if the submission were made in writing by the company
and signed by the submitting PIN holder. Electronic submission of a
license application will be considered complete upon the transmittal of
the application to BXA or to an entity under contract to receive such
applications for BXA.
(c) Maintenance of a log. Your company must maintain a log, either
manually or electronically, specifying the date and time of each
electronic submission, the ECCNs of items on each electronic
submission, and the name of the employee or agent submitting the
license application. This log may not be altered. Written corrections
must be made in a manner that does not erase or cover original entries.
If the log is maintained electronically, corrections may only be made
as notations.
(d) Updating. An applicant company must promptly notify BXA of any
change in its name or address. If your company wishes to have an
individual added as a PIN holder, your company must advise BXA and
follow the instructions provided by BXA. Your company should conduct
periodic reviews to ensure that PINs are held only by individuals whose
current responsibilities make it necessary and appropriate that they
act for the company in this capacity.
Sec. 748.8 Unique license application requirements.
In addition to the instructions contained in Supplement No. 1 to
this part 748, you must also ensure that the additional requirements
for certain items or types of transactions described in this section
are addressed in your license application. See Supplement No. 2 to this
part 748 if your application involves:
(a) Chemicals, medicinals, and pharmaceuticals.
(b) Communications intercepting devices.
(c) Digital computers, telecommunications, and related equipment.
(d) Gift parcels; consolidated in a single shipment.
(e) Intransit shipments through the United States.
(f) Intransit shipments outside of the United States.
(g) Nuclear Nonproliferation items and end-uses.
(h) Numerical control devices, motion control boards, numerically
controlled machine tools, dimensional inspection machines, direct
numerical control systems, specially designed assemblies and specially
designed software.
(i) Parts, components, and materials incorporated abroad into
foreign-made products.
(j) Ship stores, plane stores, supplies, and equipment.
(k) Regional stability controlled items.
(l) Reexports.
[[Page 12816]]
(m) Robots.
(n) Short Supply controlled items.
(o) Technology.
(p) Temporary exports or reexports.
Sec. 748.9 Support documents for license applications.
(a) Exemptions. If you plan to submit a license application
involving one of the following situations, no support documentation is
required. Simply submit the license application.
(1) All exports and reexports involving ultimate consignees located
in any of the following destinations:
Bahamas
Barbados
Belize
Bermuda
Bolivia
Brazil
Canada
Chile
Colombia
Costa Rica
Dominican Republic
Ecuador
El Salvador
French West Indies
French Guiana
Greenland
Guatemala
Guyana
Haiti
Honduras
Jamaica
Leeward and Windward Islands
Mexico
Miquelon and St. Pierre Islands
Netherlands Antilles
Nicaragua
Panama
Paraguay
Peru
Surinam
Trinidad and Tobago
Uruguay
Venezuela
(2) The ultimate consignee or purchaser is a foreign government(s)
or foreign government agency(ies). To determine whether the parties to
your transaction meet the definition of ``government agency'' refer to
the definition contained in part 772 of the EAR. Remember, if either
the ultimate consignee or purchaser is not a foreign government or
foreign government agency, a statement is required from the
nongovernmental party. However, support documents are required from
governments of the People's Republic of China, India, Bulgaria, Czech
Republic, Hungary, Poland, Romania, and Slovakia.
(3) The license application is filed by, or on behalf of, a relief
agency registered with the Advisory Committee on Voluntary Foreign Aid,
U.S. Agency for International Development, for export to a member
agency in the foreign country.
(4) The license application is submitted to export or reexport
items for temporary exhibit, demonstration, or testing purposes.
(5) The license application is submitted for items controlled for
short supply reasons (see part 754 of the EAR).
(6) The license application is submitted under the Special
Comprehensive License procedure described in part 752 of the EAR.
(b) Support document requirements. License applications not exempt
under paragraph (a) of this section generally must be supported by
documents designed to elicit information concerning the disposition of
the items intended for export or reexport. These support documents must
be either submitted at the time the license application is filed or
retained in the applicant's files in accordance with the recordkeeping
provisions of part 762 of the EAR. The type of support documentation
required is dependent on the item involved and the country of ultimate
destination. To determine which type of support documentation is
required, answer the following questions:
(1) Does your transaction involve items controlled for national
security reasons?
(i) If yes, continue with question number 2 in paragraph (b)(2) of
this section.
(ii) If no, your transaction may require a Statement by Ultimate
Consignee and Purchaser.
(2) Does your transaction involve items controlled for national
security reasons destined for one of the following countries? (This
applies only to those overseas destinations specifically listed.)
Argentina
Australia
Austria
Belgium
Bulgaria
China (PRC)
Czech Republic
Denmark
Finland
France
Germany
Greece
Hong Kong
Hungary
India
Ireland, Republic of
Italy
Japan
Korea, Republic of
Liechtenstein
Luxembourg
Netherlands
New Zealand
Norway
Pakistan
Poland
Portugal
Romania
Singapore
Slovakia
Spain
Sweden
Switzerland
Taiwan
Turkey
United Kingdom
(i) If yes, your transaction may require an Import or End-User
Certificate. Note that if the destination is the People's Republic of
China, a Statement of Ultimate Consignee and Purchaser may be
substituted for a PRC End-User Certificate under the following
conditions:
(1) The item to be exported is described in an Advisory Note for
Country Group D:1 (See Supplement No. 1 to part 740 of the EAR) on the
CCL; or
(2) The item to be exported (i.e., replacement parts and sub-
assemblies) is for servicing previously exported items and is valued at
$75,000 or less; or
(3) The End-User is not a Chinese entity.
(ii) If no, your transaction may require a Statement by Ultimate
Consignee or Purchaser.
(c) License applications requiring support documents. License
applications requiring support by either a Statement by the Ultimate
Consignee and Purchaser or an Import or End-User Certificate must
indicate the type of support document obtained in Block 6 or 7 on your
application with an ``X'' in the appropriate box. If the support
document is an Import or End User Certificate, you must also identify
the originating country and number of the Certificate in Block 13 on
your application. If a license application is submitted without either
the correct Block or Box marked on the application or the required
support document, the license application will be immediately returned
without action unless the satisfactory reasons for failing to obtain
the document are supplied in Block 24 or in an attachment to your
license application.
(1) License applications supported by an Import or End User
Certificate. If submission of the original certificate is not required
by Sec. 748.10(g) of this part, you may submit your license application
upon receipt of a facsimile
[[Page 12817]]
or other legible copy of the Import or End User Certificate provided
that no shipment is made against any license issued based upon the
Import or End User Certificate prior to receipt and retention of the
original statement by the applicant. If Sec. 748.10(g) of this part
requires submission of the original certificate with your license
application, you must submit the original. Copies will not be accepted.
(2) License applications supported by Ultimate Consignee and
Purchaser statements. These types of license applications may be
submitted upon receipt of a facsimile or other legible copy of the
original statement provided that the original manually-signed statement
is retained by the ultimate consignee, and you retain a copy of the
statement.
(d) Exceptions to obtaining the required support document. BXA will
consider the granting of an exception to the requirement for supporting
document where the requirements cannot be met due to circumstances
beyond your control. An exception will not be granted contrary to the
objectives of the U.S. export control laws and regulations. Refer to
Sec. 748.12(d) of this part for specific instructions on procedures for
requesting an exception.
(e) Validity period. (1) When an Import or End-User Certificate or
a Statement by Ultimate Consignee and Purchaser is required to support
one or more license applications, you must submit the first license
application within the validity period shown on the Certificate, or 6
months from the date the Certificate was issued or Statement signed,
whichever is shorter.
(2) All subsequent license applications supported by the same
Import or End-Use Certificate must be submitted to BXA within one year
from the date that the first license application supported by the same
Import or End-Use Certificate was submitted to BXA.
(3) All subsequent license applications supported by the same
Statement by Ultimate Consignee and Purchaser must be submitted within
two years of the first application if the statement was completed as a
single transaction statement. If the statement was completed as a
multiple transaction statement, all applications must be submitted
within two years of signature by the consignee or purchaser, whichever
was last.
(f) English translation requirements. All abbreviations, coded
terms, or other expressions on support documents having special
significance in the trade or to the parties to the transaction must be
explained on an attachment to the document. Documents in a language
other than English must be accompanied by an attachment giving an
accurate English translation, either made by a translating service or
certified by you to be correct. Explanations or translations should be
provided on a separate piece of paper, and not entered on the support
documents themselves.
(g) Responsibility for full disclosure. (1) Information contained
in a support document cannot be construed as extending or expanding or
otherwise modifying the specific information supplied in a license
application or license issued by BXA. The license application covering
the transaction discloses all facts pertaining to the transaction. The
authorizations contained in the resulting license are not extended by
information contained in an Import Certificate, End-User Certificate or
Statement by Ultimate Consignee and Purchaser regarding reexport from
the country of destination or any other facts relative to the
transaction that are not reported on the license application.
(2) Misrepresentations, either through failure to disclose facts,
concealing a material fact, or furnishing false information, will
subject responsible parties to administrative action by BXA.
Administrative action may include suspension, revocation, or denial of
licensing privileges and denial of other participation in exports from
the United States.
(3) In obtaining the required support document, you as the
applicant are not relieved of the responsibility for full disclosure of
any other information concerning the ultimate destination and end-use,
end-user of which you know, even if inconsistent with the
representations made in the Import Certificate, End-User Certificate,
or Statement by Ultimate Consignee and Purchaser. You are responsible
for promptly notifying BXA of any change in the facts contained in the
support document that comes to your attention.
(h) Effect on license application review. BXA reserves the right in
all respects to determine to what extent any license will be issued
covering items for which an Import or End-User Certificate has been
issued by a foreign government. BXA will not seek or undertake to give
consideration to recommendations from the foreign government as to the
action to be taken on a license application. A supporting document
issued by a foreign government will be only one of the factors upon
which BXA will base its licensing action, since end-uses and other
considerations are important factors in the decision making process.
(i) Request for return of support documents submitted to BXA. If an
applicant is requested by a foreign importer to return an unused or
partially used Import or End-User Certificate submitted to BXA in
support of a license application, the procedure provided in this
paragraph (i) should be followed:
(1) The applicant must send a letter request for return of an
Import or End-User Certificate to the address stated in Sec. 748.2(c)
of this part, ``Attn: Import/End-User Certificate Request''.
(2) The letter request must include the name and address of the
importer, the Application Control Number under which the original
Import or End-User Certificate was submitted, the Application Control
Numbers for any subsequent license applications supported by the same
certificate, and one of the following statements, if applicable:
(i) If the certificate covers a quantity greater than the total
quantity identified on the license application(s) submitted against it,
a statement that the certificate will not be used in connection with
another license application.
(ii) If you do not intend to make any additional shipments under a
license covered by the certificate, or are in possession of an expired
license covered by the certificate, a statement to this effect,
indicating the unshipped items.
(j) Recordkeeping requirements for returning certificates retained
by the applicant. (1) Though the recordkeeping provisions of the EAR
require that all original support documents be retained for a period of
five years, an unused or partially used certificate may be returned at
the request of a foreign importer provided that you submit the original
certificate, accompanied by a letter of explanation, a copy of each
license covered by the certificate, and a list of all shipments made
against each license to BXA at the address listed in Sec. 748.2(c). BXA
will notify you in writing whether your request has been granted. The
following information must be contained in your letter of explanation:
(i) A statement citing the foreign importer's request for return of
the certificate;
(ii) The license number(s) that have been issued against the
certificate (including both outstanding and expired licenses); and
(iii) If the certificate covers a quantity greater that the total
quantity stated on the license(s), you must include a statement that
the certificate will not be used in connection with another license
application.
[[Page 12818]]
(2) If your request is granted, BXA will return the certificate to
you. You must make a copy of the certificate before you return the
original to the importer. This copy must show all the information
contained on the original certificate including any notation made on
the certificate by BXA. The copies must be retained on file along with
your correspondence in accordance with the recordkeeping provisions in
part 762 of the EAR.
Sec. 748.10 Import and End-User Certificates.
(a) Scope. There are a variety of Import and End-User Certificates
currently in use by various governments. The control exercised by the
government issuing the Import or End-User Certificate is in addition to
the conditions and restrictions placed on the transaction by BXA. The
laws and regulations of the United States are in no way modified,
changed, or superseded by the issuance of an Import or End-User
Certificate. This section describes exceptions and relationships true
for both Import and End-User Certificates, and applies only to
transactions involving national security controlled items destined for
one of the countries identified in Sec. 748.9(b)(2) of this part.
(b) Import or End-User Certificate. An Import or End-User
Certificate must be obtained, unless your transaction meets one of the
exemptions stated in Sec. 748.9(a) of this part, if:
(1) Any items on your license application are controlled for
national security reasons (NS),
(2) The ultimate destination is a country listed in
Sec. 748.9(b)(2) of this part; and
(3) Your license application involves the export of items
classified in a single entry on the CCL, the total value of which
exceeds $5,000.
(i) Your license application may list several separate CCL entries.
If any entry controlled for national security reasons exceeds $5,000,
then an Import or End-User Certificate must be obtained covering all
items controlled for national security reasons on your license
application;
(ii) If your license application involves a lesser transaction that
is part of a larger order for items controlled for national security
reasons in a single ECCN exceeding $5,000, an Import or End-User
Certificate must be obtained.
(iii) You may be specifically requested by BXA to obtain an Import
Certificate for a transaction valued under $5,000.
(c) How to obtain an Import or End-User Certificate. (1) Applicants
must request that the importer (e.g., ultimate consignee or purchaser)
obtain the Import or End-User Certificate, and that it be issued
covering only those items that are controlled for national security
reasons. Importers should not be requested to obtain an Import or End-
User Certificate for items that are controlled for reasons other than
national security. Upon receipt, the importer must transmit the
original document to the applicant.
(2) The applicant's name must appear on the Import or End-User
Certificate submitted to BXA as either the applicant, supplier, or
order party. The Import Certificate may be made out to either the
ultimate consignee or the purchaser, even though they are different
parties, as long as both are located in the same country.
Note to paragraph (c) of this section: You should furnish the
consignee with the item description contained in the CCL to be used
in applying for the Import or End-User Certificate. It is also
advisable to furnish a manufacturer's catalog, brochure, or
technical specifications if the item is new.
(3) If your transaction requires support of a PRC End-User
Certificate, you must ensure the following information is included on
the PRC End-User Certificate signed by an official of the Department of
Science and Technology of the Ministry of Foreign Trade and Economic
Cooperation (MOFTEC) with MOFTEC's seal affixed to it:
(i) Title of contract and contract number (optional);
(ii) Names of importer and exporter;
(iii) End-User and end-use;
(iv) Description of the item, quantity and dollar value; and
(v) Signature of the importer and date.
(d) Where to obtain Import and End-User Certificates. See
Supplement No. 4 to this part for a list of the authorities
administering the Import Certificate/Delivery Verification and End-User
Certificate Systems in other countries.
(e) Triangular symbol on International Import Certificates.
(1) In accordance with international practice, the issuing
government may stamp a triangular symbol on the International Import
Certificate (IIC). This symbol is notification that the importer does
not intend to import or retain the items in the country issuing the
certificate, but that, in any case, the items will not be delivered to
any destination except in accordance with the export regulations of the
issuing country'.
(2) If you receive an IIC bearing a triangular symbol, you must
identify all parties to the transaction on the license application,
including those located outside the country issuing the IIC. If the
importer declines to provide you with this information, you may advise
the importer to provide the information directly to BXA, through a U.S.
Foreign Commercial Service office, or in a sealed envelope to you
marked ``To be opened by BXA only''.
(f) Multiple license applications supported by one certificate. An
Import or End-User Certificate may cover more than one purchase order
and more than one item. Where the certificate includes items for which
more than one license application will be submitted, you must include
in Block 24 on your application, or in an attachment to each license
application submitted against the certificate, the following
certification:
I (We) certify that the quantities of items shown on this
license application, based on the Certificate identified in Block 13
of this license application, when added to the quantities shown on
all other license applications submitted to BXA based on the same
Certificate, do not total more than the total quantities shown on
the above cited Certificate.
(g) Submission of Import and End-User Certificates. If a PRC End-
User Certificate is required for your proposed transaction, you must
submit the original certificate with your license application. Copies
will not be accepted. All other certificates must be retained on file
by the applicant in accordance with the recordkeeping provisions of
part 762 of the EAR, and not submitted with the license application.
(h) Alterations. After an Import or End-User Certificate is issued
by a foreign government, no corrections, additions, or alterations may
be made on the Certificate by any person. If you desire to explain any
information contained on the Certificate, you may attach a signed
statement to the Certificate.
(i) Request for Delivery Verification. BXA will, on a selective
basis, require Delivery Verification documents for shipments supported
by Import Certificates. You will be notified if Delivery Verification
is required at the time of issuance of the license. Please refer to
Sec. 748.13 of this part for detailed information on these procedures.
(j) Retention procedures. You must retain on file the original copy
of any certificate issued in support of a license application submitted
to BXA, unless the original is submitted with the license application.
All recordkeeping provisions contained in part 762 of the EAR apply to
this requirement, except that reproductions may not be substituted for
the officially authenticated original in this instance.
[[Page 12819]]
Sec. 748.11 Statement by Ultimate Consignee and Purchaser.
(a) Exceptions to completing a Statement by Ultimate Consignee and
Purchaser. A Statement by the Ultimate Consignee and/or Purchaser
involved in a transaction must be completed unless:
(1) An International Import Certificate, a People's Republic of
China End-User Certificate, an Indian Import Certificate, or a
Bulgarian, Czech, Hungarian, Polish, Romanian or Slovak Import
Certificate is required in support of the license application;
(2) The applicant is the same person as the ultimate consignee,
provided the required statements are contained in Block 24 on the
license application. This exemption does not apply where the applicant
and consignee are separate entities, such as parent and subsidiary, or
affiliated or associated firms;
(3) The application is valued at $5000 or less, and is not part of
a larger transaction; or
(4) The transaction meets one of the exemptions stated in
Sec. 748.9(a) of this part.
(b) Submission of the Statement by Ultimate Consignee and
Purchaser. A copy of the statement must be submitted with your license
application if the country of ultimate destination is listed in either
Country Group D:2, D:3, or D:4 (See Supplement No. 1 to part 740 of the
EAR). The copy submitted by the applicant must be of sufficient quality
to ensure all assertions made on the statement are legible and that the
signatures are sufficiently legible to permit identification of the
signature as that of the signer. The applicant must receive the
manually-signed original within 60 days from the date the original is
signed by the ultimate consignee. The applicant must, upon receipt,
retain the manually-signed original, and both the ultimate consignee
and purchaser should retain a copy of the statement in accordance with
the recordkeeping provisions contained in part 762 of the EAR.
(c) Form or letter. The ultimate consignee and purchaser must
complete either a statement on company letterhead in accordance with
paragraph (e) of this section or Form BXA-711, Statement by Ultimate
Consignee and Purchaser. If the consignee and purchaser elect to
complete the statement on letterhead and both the ultimate consignee
and purchaser are the same entity, only one statement is necessary. If
the ultimate consignee and purchaser are separate entities, separate
statements must be prepared and signed. If the ultimate consignee and
purchaser elects to complete Form BXA-711, only one Form BXA-711
(containing the signatures of the ultimate consignee and purchaser)
need be completed. Whether your ultimate consignee and purchaser sign a
written statement or complete Form BXA-711, the following constraints
apply:
(1) Responsible officials representing the ultimate consignee and
purchaser must sign the statement. ``Responsible official'' is defined
as someone with personal knowledge of the information included in the
statement, and authority to bind the ultimate consignee or purchaser
for whom they sign, and who has the power and authority to control the
use and disposition of the licensed items.
(2) The authority to sign the statement may not be delegated to any
person (agent, employee, or other) whose authority to sign is not
inherent in his or her official position with the ultimate consignee or
purchaser for whom he or she signs. The signing official may be located
in the U.S. or in a foreign country. The official title of the person
signing the statement must also be included.
(3) The consignee and/or purchaser must submit information that is
true and correct to the best of their knowledge and must promptly send
a new statement to the applicant if changes in the facts or intentions
contained in their statement(s) occur after the statement(s) have been
forwarded to the applicant. Once a statement has been signed, no
corrections, additions, or alterations may be made. If a signed
statement is incomplete or incorrect in any respect, a new statement
must be prepared, signed and forwarded to the applicant.
(d) Instructions for completing Form BXA-711. Instructions on
completing Form BXA-711 are contained in Supplement No. 3 to this part.
The ultimate consignee and purchaser may sign a legible copy of Form
BXA-711. It is not necessary to require your ultimate consignee and
purchaser sign an original Form BXA-711, provided all information
contained on the copy is legible.
(e) Instructions for completing the statement on letterhead.
Information in response to each of the following criteria must be
included in the statement. If any information is unknown, that fact
should be disclosed in the statement. Preprinted information supplied
on the statement, including the name, address, or nature of business of
the ultimate consignee or purchaser appearing on the letterhead or
order form is acceptable but will not constitute evidence of either the
signer's identity, the country of ultimate destination, or end-use of
the items described in the license application.
(1) Paragraph 1. One of the following certifications must be
included depending on whether the statement is proffered in support of
a single license application or multiple license applications:
(i) Single. This statement is to be considered part of a license
application submitted by [name and address of applicant].
(ii) Multiple. This statement is to be considered a part of every
license application submitted by [name and address of applicant] until
one year from the date this statement is signed.
(2) Paragraph 2. One or more of the following certifications must
be included. Note that if any of the facts related to the following
statements are unknown, this must be clearly stated.
(i) The items for which a license application will be filed by
[name of applicant] will be used by us as capital equipment in the form
in which received in a manufacturing process in [name of country] and
will not be reexported or incorporated into an end product.
(ii) The items for which a license application will be filed by
[name of applicant] will be processed or incorporated by us into the
following product(s) [list products] to be manufactured in [name of
country] for distribution in [list name of country or countries].
(iii) The items for which a license application will be filed by
[name of applicant] will be resold by us in the form in which received
for use or consumption in [name of country].
(iv) The items for which a license application will be filed by
[name of applicant] will be reexported by us in the form in which
received to [name of country or countries].
(v) The items received from [name of applicant] will be [describe
use of the items fully].
(3) Paragraph 3. The following two certifications must be included:
(i) The nature of our business is [possible choices include;
broker, distributor, fabricator, manufacturer, wholesaler, retailer,
value added reseller, original equipment manufacturer, etc.].
(ii) Our business relationship with [name of applicant] is
[possible choices include; contractual, franchise, distributor,
wholesaler, continuing and regular individual business, etc.] and we
have had this business relationship for [number of years].
(4) Paragraph 4. The final paragraph must include all of the
following certifications:
(i) We certify that all of the facts contained in this statement
are true and
[[Page 12820]]
correct to the best of our knowledge and we do not know of any
additional facts that are inconsistent with the above statements. We
shall promptly send a replacement statement to [name of the applicant]
disclosing any material change of facts or intentions described in this
statement that occur after this statement has been prepared and
forwarded to [name of applicant]. We acknowledge that the making of any
false statement or concealment of any material fact in connection with
this statement may result in imprisonment or fine, or both, and denial,
in whole or in part, of participation in U.S. exports or reexports.
(ii) Except as specifically authorized by the U.S. Export
Administration Regulations, or by written approval from the Bureau of
Export Administration, we will not reexport, resell, or otherwise
dispose of any items approved on a license supported by this statement:
(1) To any country not approved for export as brought to our
attention by the U.S. exporter; or
(2) To any person if there is reason to believe that it will result
directly or indirectly in disposition of the items contrary to the
representations made in this statement or contrary to the U.S. Export
Administration Regulations.
(iii) We understand that acceptance of this statement as a support
document cannot be construed as an authorization by BXA to reexport the
items in the form in which received even though we may have indicated
the intention to reexport, and that authorization to reexport is not
granted in an export license on the basis of information provided in
the statement, but as a result of a specific request in a license
application.
Sec. 748.12 Special provisions for support documents.
(a) Grace periods. Whenever the requirement for an Import or End-
User Certificate or Statement by Ultimate Consignee or Purchaser is
imposed or extended by a change in the regulations, the license
application need not conform to the new support documentation
requirements for a period of 45 days after the effective date of the
regulatory change published in the Federal Register.
(1) Requirements are usually imposed or extended by virtue of one
of the following:
(i) Addition or removal of national security controls over a
particular item; or
(ii) Development of an Import Certificate/Delivery Verification or
End-User Certificate program by a foreign country; or
(iii) Removal of an item from eligibility under the Special
Comprehensive License described in part 752 of the EAR, when you hold
such a special license and have been exporting the item under that
license.
(2) License applications filed during the 45 day grace period must
be accompanied by any evidence available to you that will support
representations concerning the ultimate consignee, ultimate
destination, and end use, such as copies of the order, letters of
credit, correspondence between you and ultimate consignee, or other
documents received from the ultimate consignee. You must also identify
the regulatory change (including its effective date) that justifies
exercise of the 45 day grace period. Note that an Import or End-User
Certificate will not be accepted, after the stated grace period, for
license applications involving items that are no longer controlled for
national security reasons. If an item is removed from national security
controls, you must obtain a Statement by Ultimate Consignee and
Purchaser as described in Sec. 748.11 of this part. Likewise, any item
newly controlled for national security purposes requires support of an
Import or End-User Certificate as described in Sec. 748.10 of this part
after expiration of the stated grace period.
(b) Reexports. If a support document would be required for an
export, the same document would be required for reexport to Country
Group D:1 and E:2 (See Supplement No. 1 to part 740 of the EAR).
(c) Granting of exceptions to the support documentation
requirement. An exception to obtaining the required support
documentation will be considered by BXA, however, an exception will not
be granted contrary to the objectives of the U.S. export control
program. A request for exception may involve either a single
transaction, or where the reason necessitating the request is
continuing in nature, multiple transactions. If satisfied by the
evidence presented, BXA may waive the support document requirement and
accept the license application for processing. Favorable consideration
of a request for exception generally will be given in instances where
the support document requirement:
(1) Imposes an undue hardship on you and/or ultimate consignee
(e.g., refusal by the foreign government to issue an Import or End-User
Certificate and such refusal constitutes discrimination against you);
or
(2) Cannot be complied with (e.g., the items will be held in a
foreign trade zone or bonded warehouse for subsequent distribution in
one or more countries); or
(3) Is not applicable to the transaction (e.g., the items will not
be imported for consumption into the named country of destination).
(d) Procedures for requesting an exception. (1) Requests for
exception must be submitted with the license application to which the
request relates. Where the request relates to more than one license
application it should be submitted with the first license application
and referred to in Block 24 on any subsequent license application. The
request for exception must be submitted in writing on the applicant's
letterhead.
(2) In instances where you are requesting exception from obtaining
an Import or End-User Certificate, the request must be accompanied by a
manually-signed original Statement by Ultimate Consignee and Purchaser
as described in Sec. 748.11 of this part.
(3) At a minimum, the letter request must include:
(i) Name and address of ultimate consignee;
(ii) Name and address of purchaser, if different from ultimate
consignee;
(iii) Location of foreign trade zone or bonded warehouse if the
items will be exported to a foreign trade zone or bonded warehouse;
(iv) Type of request, i.e., whether for a single transaction or
multiple transactions;
(v) Full explanation of the reason(s) for requesting the exception;
(vi) Nature and duration of the business relationship between you
and ultimate consignee and purchaser shown on the license application;
(vii) Whether you have previously obtained and/or submitted to BXA
an Import or End-User Certificate issued in the name of the ultimate
consignee and/or purchaser, and a list of the Application Control
Number(s) to which the certificate(s) applied; and
(viii) Any other facts to justify granting an exception.
(4) Action by BXA. (i) Single transaction request. Where a single
transaction is involved, BXA will act on the request for exception at
the same time as the license application with which the request is
submitted. In those instances where the related license application is
approved, the issuance of the license will serve as an automatic notice
to the applicant that the exception was approved. If any restrictions
are placed on granting of the exception, these will appear on the
approval. If the request for exception is not approved, BXA will advise
you by letter.
[[Page 12821]]
(ii) Multiple transactions request. Where multiple transactions are
involved, BXA will advise you by letter of the action taken on the
exception request. The letter will contain any conditions or
restrictions that BXA finds necessary to impose (including an exception
termination date if appropriate). In addition, a written acceptance of
these conditions or restrictions may be required from the parties to
the transaction.
(e) Availability of original. The original certificate or statement
must be kept on file, and made available for inspection in accordance
with the provisions of part 762 of the EAR. To ensure compliance with
this recordkeeping requirement, BXA will require applicants, on a
random basis, to submit specific original certificates and statements
that have been retained on file. Applicants will be notified in writing
of any such request.
Sec. 748.13 Delivery Verification (DV).
(a) Scope. (1) BXA may request applicants to obtain verifications
of delivery on a selective basis. A Delivery Verification Certificate
(DV) is a document issued by the government of the country of ultimate
destination after the export has taken place and the items have either
entered the export jurisdiction of the recipient country or are
otherwise accounted for by the importer to the issuing government.
Governments that issue DVs are listed in Supplement No. 4 to this part.
(2) If BXA decides to request verification of delivery, the request
will appear as a condition on the face of the license. If the license
is sent directly to a party other than the applicant authorized to
receive the license (e.g., agent, forwarder, broker, etc.), such party
is responsible for notifying the licensee immediately in writing that a
DV is required.
(b) Exception to obtaining Delivery Verification. The DV
requirement for a particular transaction is automatically canceled if,
subsequent to the issuance of a license, the item is no longer
controlled for national security reasons. In this instance, the
licensee must send a letter to BXA at the address listed in
Sec. 748.2(c) of this part, stating that the items on the license are
no longer controlled for national security reasons, and accordingly,
the request for DV will not be fulfilled by the licensee.
(c) Procedure for obtaining Delivery Verification. When notified
that a DV is required by BXA, the licensee must transmit to the
importer a written request for a DV at the time of making each shipment
under the license (whenever possible, this request should be submitted
together with the related bill of lading or air waybill). The request
must include the number of the Import or End-User Certificate for the
transaction referred to on the license, and notify the importer that
this same Import or End-User Certificate number should be shown on the
DV.
(1) The importer must obtain the DV from the appropriate government
ministry identified in Supplement No. 4 to this part, and forward the
completed DV to the licensee. The DV must cover the items described on
the license that have been shipped. Note that BXA must be able to
relate the description provided in the DV to the approved license. In
order to ensure the same terminology is used, the licensee should
provide the importer with the description as it appears on the license.
(2) The original copy of the DV must be sent to BXA within 90 days
after the last shipment has been made against the license. If
verification of delivery is required for items covered by a license
against which partial shipments have been made, the licensee shall
obtain the required DV for each partial shipment, and retain these on
file until all shipments have been made against the license. Once all
shipments against the license have been made (or the licensee has
determined that none will be), the licensee must forward, in one
package, all applicable DVs to BXA at the address listed in
Sec. 748.2(c) of this part.
(3) The documents must be forwarded with a dated letter giving the
license number, the name, title and signature of the authorized
representative, and one of the following statements:
(i) The total quantity authorized by license number ______ has been
exported, and all delivery verification documents are attached.
(ii) A part of the quantity authorized by license number ______
will not be exported. Delivery verification documents covering all
items exported are attached.
(iii) No shipment has been made against this license, and none is
contemplated.
(d) Inability to obtain Delivery Verification Certificates. If a
licensee is unable to obtain the required DV (within the time frame
stated above, or at all) from the importer, the licensee must promptly
notify BXA and, upon request, make available all information and
records, including correspondence, regarding the attempt to obtain the
DV.
Supplement No. 1 to Part 748 BXA-748P, BXA-748P-A; Item Appendix, and
BXA-748P-B; End-User Appendix; Multipurpose Application Instructions
All information must be legibly typed within the lines for each
Block or Box except where a signature is required. Where there is a
choice of entering telephone numbers or facsimile numbers, and you
wish to provide a facsimile number instead of a telephone number,
identify the facsimile number with the letter ``F'' immediately
after the number (e.g., 011-358-0-123456F).
Block 1: Contact Person. Enter the name of the person who can
answer questions concerning the application.
Block 2: Telephone. Enter the telephone number of the person who
can answer questions concerning the application.
Block 3: Facsimile. Enter the facsimile number, if available, of
the person who can answer questions concerning the application.
Block 4: Date of Application. Enter the current date.
Block 5: Type of Application. Export. If the items are located
within the United States, and you wish to export those items, mark
the Box labeled ``Export'' with an (X). Reexport. If the items are
located outside the United States, mark the Box labeled ``Reexport''
with an (X). Classification Request. If you are requesting BXA to
classify your item against the Commerce Control List (CCL), mark the
Box labeled ``Classification Request'' with an (X). Special
Comprehensive License. If you are submitting a Special Comprehensive
License application in accordance with procedures described in part
752 of the EAR, mark the Box labeled ``Special Comprehensive
License'' with an (X).
Block 6: Attachments submitted with Application. Review the
documentation you are required to submit with your application in
accordance with the provisions of part 748 of the EAR, and mark all
applicable Boxes with an (X).
Mark the Box ``Foreign Availability'' with an (X) if you are
submitting an assertion of foreign availability with your license
application. See part 768 of the EAR for instructions on foreign
availability submissions.
Mark the ``Tech. Specs.'' box with an (X) if you are submitting
descriptive literature, brochures, technical specifications, etc.
with your application.
Block 7: Documents on File with Applicant. Certify that you have
retained on file all applicable documents as required by the
provisions of part 748 by placing an (X) in the appropriate Box(es).
Block 8: Special Comprehensive License. Complete this Block only
if you are submitting an application for a Special Comprehensive
License in accordance with part 752 of the EAR.
Block 9: Special Purpose. Complete this box for certain items or
types of transactions only if specifically required in Supplement
No. 2 to this part.
Block 10: Resubmission Application Control Number. If your
original application was returned without action, provide the
Application Control Number for that application.
[[Page 12822]]
Block 11: Replacement License Number. If you have received a
license for identical items to the same ultimate consignee, but
would like to make a change to the license as originally approved
not excepted in Sec. 750.7(c) of the EAR, enter the license number
here, and a statement in Block 24 regarding what changes you wish to
make to the original license.
Block 12: Items Previously Exported. This Block should be
completed only if you have marked the ``Reexport'' box in Block 5.
Enter the license number, License Exception symbol (for exports
under General Licenses, enter the appropriate General License
symbol), or other authorization under which the items were
originally exported, if known.
Block 13: Import/End-User Certificate. Enter the name of the
country and number of the Import or End User Certificate obtained in
accordance with provisions of this part.
Block 14: Applicant. Enter the applicant's name, street address,
city, state/country, and postal code. Refer to Sec. 748.5(a) of this
part for a definition of ``applicant''. If you have marked
``Export'' in Block 5, you must include your company's Employer
Identification Number unless you are filing as an individual or as
an agent on behalf of the exporter. The Employer Identification
Number is assigned by the Internal Revenue Service for tax
identification purposes. Accordingly, you should consult your
company's financial officer or accounting division to obtain this
number.
Block 15: Other Party Authorized to Receive License. If you
would like BXA to transmit the approved license to another party
designated by you, complete all information in this Block, including
name, street address, city, country, postal code and telephone
number. Leave this space blank if the license is to be sent to the
applicant. Designation of another party to receive the license does
not alter the responsibilities of the applicant.
Block 16: Purchaser. Enter the purchaser's complete name, street
address, city, country, postal code and telephone or facsimile
number. Refer to Sec. 748.5(c) of this part for a definition of
``purchaser''. If the purchaser is also the ultimate consignee,
enter the words ``same as Block 18''.
Block 17: Intermediate Consignee. Enter the intermediate
consignee's complete name, street address, city, country, postal
code and telephone or facsimile number. Provide a complete street
address, P.O. Boxes are not acceptable. Refer to Sec. 748.5(d) of
this part for a definition of ``intermediate consignee''. If this
party is identical to that listed in Block 16, you may simply type
the words ``Same as Block 16''. If your proposed transaction does
not involve use of an intermediate consignee, enter ``None''. If
your proposed transaction involves use of more than one intermediate
consignee, provide the information in Block 24 for each additional
Intermediate Consignee.
Block 18: Ultimate Consignee. Enter the ultimate consignee's
complete name, street address, city, country, postal code and
telephone or facsimile number. Provide a complete street address,
P.O. Boxes are not acceptable. The ultimate consignee is the party
who will actually receive the material for the end-use designated in
Block 21.
Refer to Sec. 748.5(e) of this part for the definition of
``ultimate consignee''. A bank, freight forwarder, forwarding agent,
or other intermediary may not be identified as the ultimate
consignee. Government purchasing organizations are the sole
exception to this requirement. This type of entity may be identified
as the government entity that is the actual ultimate consignee in
those instances when the items are to be transferred to the
government entity that is the actual end-user, provided the actual
end-use and end-user is clearly identified in Block 21 or in
additional documentation attached to the application.
If your application is for the reexport of items previously
exported, enter the new ultimate consignee's complete name, street
address, city, country, postal code and telephone or facsimile
number. If your application involves a temporary export or reexport,
the applicant should be shown as the ultimate consignee in care of a
person or entity who will have control over the items abroad.
Block 19: End-User. Complete this Block only if the ultimate
consignee identified in Block 18 is not the actual end-user. If
there will be more than one end-user, enter the word ``Various'' in
this Block, and use Form BXA-748P-B to identify each of the end-
users. Enter each end user's complete name, street address, city,
country, postal code and telephone or facsimile number. Provide a
complete street address, P.O. Boxes are not acceptable.
Block 20: Original Ultimate Consignee. If your application
involves the reexport of items previously exported, enter the
original ultimate consignee's complete name, street address, city,
country, postal code and telephone or facsimile number. The original
ultimate consignee is the entity identified in the original
application for export as the ultimate consignee or the party
currently in possession of the items. Provide a complete street
address, P.O. Boxes are not acceptable.
Block 21: Specific End-Use. Provide a complete and detailed
description of the end-use intended by the ultimate consignee and/or
end-user(s). If you are requesting approval of a reexport, provide a
complete and detailed description of the end-use intended by the new
ultimate consignee or end user(s) and indicate any other countries
for which resale or reexport is requested. If additional space is
necessary, use Block 21 on Form BXA-748P-A or B. Be specific, such
vague descriptions as ``research,'' ``manufacturing,'' or
``scientific uses'' are not acceptable.
Block 22: For a license application you must complete each of
the sub-blocks contained in this Block, If you are submitting a
classification request, you need not complete Blocks (e), (f), (g),
and (h). Enter ``N/A'' in these blocks. If you wish to export,
reexport or have BXA classify more than one item, use Form BXA-748P-
A for additional items.
(a) ECCN. Enter the Export Control Classification Number (ECCN)
that corresponds to the item you wish to export or reexport. If you
are asking BXA to classify your item, provide a recommended
classification for the item in this Block.
(b) CTP. You must complete this Block if your application
involves a digital computer or equipment containing a digital
computer as described in Supplement No. 2 to this part.
Instructions on calculating the CTP are contained in a Technical
Note at the end of Category 4 in the CCL. If your application does
not involve these items, insert ``N/A'' in this Block.
(c) Model Number. Enter the correct model number for each item.
(d) CCATS Number. If you have received a classification for this
item from BXA, provide the CCATS number shown on the classification
issued by BXA. Otherwise, enter ``N/A'' in this Block.
(e) Quantity. Identify the quantity to be exported or
reexported, in terms of the ``Units'' identified for the ECCN
entered in Block 21(a). If the ``Unit'' for an item is ``$ value,''
enter the quantity in units commonly used in the trade.
(f) Units. The ``Unit'' paragraph within each ECCN will list a
specific ``Unit'' for those items controlled by the entry. The
``Unit'' must be entered on all license applications submitted to
BXA. If an item is licensed in terms of ``$ value'', the unit of
quantity commonly used in trade must also be shown on the license
application. If the unit for your particular item is shown as ``N/
A'' in the appropriate entry on the CCL, enter ``N/A'' in this
Block.
(g) Unit Price. Provide the fair market value of the items you
wish to export or reexport. Round all prices to the nearest whole
dollar amount. Give the exact unit price only if the value is less
than $0.50. If normal trade practices make it impractical to
establish a firm contract price, state in Block 24 the precise terms
upon which the price is to be ascertained and from which the
contract price may be objectively determined.
(h) Total Price. Provide the total price of the item(s)
described in Block 22(j).
(i) Manufacturer. Provide the name only of the manufacturer, if
known, for each of the items you wish to export, reexport, or have
BXA classify, if different from the applicant.
(j) Technical Description. Provide a description of the item(s)
you wish to export, reexport, or have BXA classify. Provide details
when necessary to identify the specific item(s), include all
characteristics or parameters shown in the applicable ECCN using
measurements identified in the ECCN (e.g., basic ingredients,
composition, electrical parameters, size, gauge, grade, horsepower,
etc.). These characteristics must be identified for the items in the
proposed transaction when they are different than the
characteristics described in promotional brochure(s).
Block 23: Total Application Dollar Value. Enter the total value
of all items contained on the application in U.S. Dollars. The use
of other currencies is not acceptable.
Block 24: Additional Information. Enter additional data
pertinent to the application as required in the EAR. Include special
certifications, names of parties in interest not disclosed
elsewhere, explanation of documents attached, etc. Do not include
information concerning Block 22 in this space.
If your application represents a previously denied application,
you must provide the
[[Page 12823]]
Application Control Number for the original application.
If you are asking BXA to classify your product, use this space
to explain why you believe the ECCN entered in Block 22(a) is
appropriate. This explanation must contain an analysis of the item
in terms of the technical control parameters specified in the
appropriate ECCN. If you do not identify a recommended
classification in Block 22(a), you must state the reason you cannot
determine the appropriate classification, identifying any
ambiguities or deficiencies in the regulations that precluded you
from determining the correct classification.
If additional space is necessary, use Block 24 on Form BXA-748P-
A or B.
Block 25: You, as the applicant or duly authorized agent of the
applicant, must manually sign the application. If you are an agent
of the applicant, in addition to providing your name and title in
this Block you must enter your company's name in Block 24.
Note: Rubber-stamped or electronic signatures are not
acceptable. Type both your name and title in the spaces provided.
Supplement No. 2 to Part 748--Unique License Application
Requirements
In addition to the instructions contained in Supplement No. 1 to
part 748, you must also ensure that the additional requirements for
certain items or types of transactions described in this supplement
are addressed in your license application. All other blocks not
specifically identified in this supplement must be completed in
accordance with the instructions contained in Supplement No. 1 to
part 748. The term ``Block'' used in this supplement relates to Form
BXA-748P, unless otherwise noted.
(a) Chemicals, medicinals, and pharmaceuticals. If you are
submitting a license application for the export or reexport of
chemicals, medicinals, and/or pharmaceuticals, the following
information must be provided in Block 22.
(1) Facts relating to the grade, form, concentration,
mixture(s), or ingredients as may be necessary to identify the item
accurately, and;
(2) The Chemical Abstract Service Registry (C.A.S.) numbers, if
they exist, must be identified.
(b) Communications intercepting devices. If you are required to
submit a license application under Sec. 742.13 of this part, you
must enter the words ``Communications Intercepting Device(s)'' in
Block 9. The item you are requesting to export or reexport must be
specified by name in Block 22(j).
(c) Digital computers, telecommunications, and related
equipment. If your license application involves items controlled by
both Category 4 and Category 5, your license application must be
submitted according to the principal function of the equipment.
License applications involving computers controlled by Category 4
must identify a Composite Theoretical Performance (CTP) in Block
22(b). If the principal function is telecommunications, a CTP is not
required. Computers, related equipment, or software performing
telecommunication or local area network functions will be evaluated
against the telecommunications performance characteristics of
Category 5, while cryptographic, cryptoanalytic, certifiable multi-
level security or certifiable user isolation functions, or systems
that limit electromagnetic compatibility (EMC) will be evaluated
against the information security performance characteristics of
Category 5.
(1) Requirements for license applications involving digital
computers. If you are submitting a license application to export or
reexport ``digital computers'' or equipment containing digital
computers to destinations in Country Group D:1 (See Supplement No. 1
to part 740 of the EAR), or to upgrade existing ``digital computer''
installations in those countries, you must include in addition to
the CTP in Block 22(b) the following information:
(i) A configuration diagram of the entire system must be
submitted if the equipment exceeds the limits of the Advisory Notes
that indicate a likelihood of approval for Country Group D:1 for the
appropriate ECCN in the Commerce Control List (CCL); and
(ii) Technical specifications and product brochures to
corroborate the data supplied in your license application.
(2) Additional requirements. License applications to export or
reexport computers or related equipment that are described in
Advisory Note 4 to Category 4, or that exceed any of the limits
specified in Advisory Notes 3 or 4 to Category 4, must include:
(i) A signed statement by a responsible representative of the
end-user or the importing agency describing the end-use and
certifying that the ``digital'' computers or related equipment:
(A) Will be used only for civil applications; and
(B) Will not be reexported or otherwise disposed of without
prior written authorization from BXA;
(ii) A full description of the equipment and its intended
application and workload; and
(iii) A complete identification of all end-users and their
activities.
(d) Gift parcels; consolidated in a single shipment. If you are
submitting a license application to export multiple gift parcels for
delivery to individuals residing in a foreign country, you must
include the following information in your license application. Note:
Each gift parcel must meet the terms and conditions described in
License Exception GFT (See Sec. 740.16 of the EAR).
(1) In Block 16, enter the word ``None'';
(2) In Block 18, enter the word ``Various'' instead of the name
and address of a single ultimate consignee;
(3) In Block 21, enter the phrase ``For personal use by
recipients''.
(4) In Block 22(e), indicate a reasonable estimate of the number
of parcels to be shipped during the validity of the license;
(5) In Block 22(j), enter the phrase ``Gift Parcels'';
(6) In Block 23, indicate a reasonable value approximation
proportionate to the quantity of gift parcels identified in Block
22(e); and
(e) Intransit through the United States. If you are submitting a
license application for items moving intransit through the United
States that do not qualify for License Exception TUS (See Sec. 740.9
of the EAR), you must provide the following information with your
license application:
(1) In Block 9, enter the phrase ``Intransit Shipment'';
(2) In Block 24, enter the name and address of the foreign
consignor who shipped the items to the United States and state the
origin of the shipment;
(3) Any available evidence showing the approval or acquiescence
of the exporting country (or the country of which the exporter is a
resident) for shipments to the proposed ultimate destination. Such
evidence may be in the form of a Transit Authorization Certificate;
and
(4) Any support documentation required by Sec. 748.9 of this
part for the country of ultimate destination.
(f) Intransit outside of the United States. If you are
submitting a license application based on General Prohibition No. 8
stated in Sec. 734.2(b)(8) of the EAR and identification of the
intermediate consignee in the country of unlading or transit is
unknown at the time the license application is submitted, the
country of unlading or transit must be shown in Block 17.
(g) Nuclear Nonproliferation items and end-uses.--(1) Statement
requirement. If a license is required to export or reexport items
under Sec. 744.2 of the EAR, prior to submitting a license
application you must obtain a signed written statement from the
foreign importer certifying the following:
(i) The items to be exported or replicas thereof (``replicas''
refers to items produced abroad based on physical examination of the
item originally exported, matching it in all critical design and
performance parameters), will not be used in any of the activities
described in Sec. 744.2(a) of the EAR; and
(ii) Written authorization will be obtained from the BXA prior
to reexporting the items, unless they are destined to Canada or
would be eligible for export from the United States to the new
country of destination under NLR based on Country Chart NP Column 1.
(2) License application requirements. Along with the required
certification, you must include the following information in your
license application:
(i) In Block 6, place an (X) in the box titled ``Nuclear
Certification'';
(ii) In Block 9, enter the phrase ``NUCLEAR CONTROLS'';
(iii) In Block 21, provide, if known, the specific geographic
locations of any installations, establishments, or sites at which
the items will be used;
(iv) In Block 22(j), if applicable, include a description of any
specific features of design or specific modifications that make the
item capable of nuclear explosive activities, or of safeguarded or
unsafeguarded nuclear activities as described in Sec. 744.2(a)(3) of
the EAR; and
(v) In Block 24, if your license application is being submitted
because you know that your transaction involves a nuclear end-use
described in Sec. 744.2 of the EAR, you must fully explain the basis
for your knowledge that the items are intended for the purpose(s)
described Sec. 744.2 of the EAR. Indicate, if possible, the specific
end-use(s) the items will have in designing, developing,
[[Page 12824]]
fabricating, or testing nuclear weapons or nuclear explosive devices
or in designing, constructing, fabricating, or operating the
facilities described in Sec. 744.2(a)(3) of the EAR.
(h) Numerical control devices, motion control boards,
numerically controlled machine tools, dimensional inspection
machines, direct numerical control systems, specially designed
assemblies and specially designed software. (1) If you are
submitting a license application to export, reexport, or request BXA
to classify numerical control devices, motion control boards,
numerically controlled machine tools, dimensional inspection
machines, and specially designed software you must include the
following information in your license application:
(i) For numerical control devices and motion control boards:
(A) Make and model number of the control unit;
(B) Description and internal configuration of numerical control
device. If the device is a computer with motion control board(s),
then include the make and model number of the computer;
(C) Description of the manner in which a computer will be
connected to the CNC unit for on-line processing of CAD data.
Specify the make and model of the computer;
(D) Number of axes the control unit is capable of simultaneously
controlling in a coordinated contouring mode, and type of
interpolation (linear, circular, and other);
(E) Minimum programmable increment;
(F) A description and an itemized list of all software/firmware
to be supplied with the control device or motion control board,
including software/firmware for axis interpolation function and for
any programmable control unit or device to be supplied with the
control unit;
(G) Description of capabilities related to ``real time
processing'' and receiving computer aided-design as described in
ECCN 2B001.a.2.a and a.2.b and ECCN 2B001.b.2 and b.3;
(H) A description of capability to accept additional boards or
software that would permit an upgrade of the electronic device or
motion control board above the control levels specified in ECCN
2B001; and
(I) Specify if the electronic device has been downgraded, and if
so can it be upgraded in future.
(ii) For numerically controlled machine tools and dimensional
inspection machines:
(A) Name and model number of machine tool or dimensional
inspection machine;
(B) Type of equipment, e.g., horizontal boring machine,
machining center, dimensional inspection machine, turning center,
water jet, etc.;
(C) Description of the linear and rotary axes capable of being
simultaneously controlled in a coordinated contouring mode,
regardless of the fact that the coordinated movement of the machine
axis may be limited by the numerical control unit supplied by the
machine tool;
(D) Maximum workpiece diameter for cylindrical grinding
machines;
(E) Motion (camming) of the spindle axis measured in the axial
direction in one revolution of the spindle, and a description of the
method of measurement for turning machine tools only;
(F) Motion (run out) of the spindle axis measured in the radial
direction in one revolution of the spindle, and a description of the
method of measurement;
(G) Overall positioning accuracy in each axis, and a description
of the method for measurement; and
(H) Slide motion test results if required as described in ECCN
2B001.c.1.b.6.
(i) Parts, components, and materials incorporated abroad into
foreign-made products. BXA will consider license applications to
export or reexport to multiple consignees or multiple countries when
an application is required for foreign produced direct product
containing parts and components subject to the EAR in Sec. 732.4(b)
of the EAR and to General Prohibition Two stated in Sec. 734.2(b)(2)
of the EAR. Such requests will not be approved for countries listed
in Country Group E:2 (See Supplement No. 1 to part 740 of the EAR),
and may be approved only in limited circumstances for countries
listed in Country Group D:1.
(1) License applications for the export of parts and components.
If you are submitting a license application for the export of parts,
components, or materials to be incorporated abroad into products
that will then be sent to designated third countries, you must enter
in Block 21, a description of end-use including a general
description of the commodities to be manufactured, their typical
end-use, and the countries where those commodities will be marketed.
The countries may be listed specifically or may be identified by
Country Groups, geographic areas, etc.
(2) License applications for the reexport of incorporated parts
and components. If you are submitting a license application for the
reexport of parts, components, or materials incorporated abroad into
products that will be sent to designated third countries you must
include the following information in your license application:
(i) In Block 9, enter the phrase ``Parts and Components'';
(ii) In Block 18, enter the name, street address, city and
country of the foreign party who will be receiving the foreign-made
product. If you are requesting approval for multiple countries or
consignees enter ``Various'' in Block 18, and list the specific
countries, Country Groups, or geographic areas in Block 24;
(iii) In Block 20, enter the name, street address, city, and
country of the foreign party who will be exporting the foreign-made
product incorporating U.S. origin parts, components or materials;
(iv) In Block 21, describe the activity of the ultimate
consignee identified in Block 18 and the end-use of the foreign-made
product. Indicate the final configuration if the product is intended
to be incorporated in a larger system. If the end-use is unknown,
state ``unknown'' and describe the general activities of the end-
user;
(v) In Block 22(e), specify the quantity for each foreign-made
product. If this information is unknown, enter ``Unknown'' in Block
22(e);
(vi) In Block 22(h), enter the digit ``0'' for each foreign-made
product;
(vii) In Block 22(j), describe the foreign-made product that
will be exported, specifying type and model or part number. Attach
brochures or specifications, if available. Show as part of the
description the unit value, in U.S. dollars, of the foreign-made
product (if more than one foreign-made product is listed on the
license application, specify the unit value for each type/model/part
number). Also include a description of the U.S. content (including
the applicable Export Control Classification Number(s)) and its
value in U.S. dollars. If more than one foreign-made product is
identified on the license application, describe the U.S. content and
specify the U.S. content value for each foreign-made product. Also,
provide sufficient supporting information to explain the basis for
the stated values. To the extent possible, explain how much of the
value of the foreign-made product represents foreign origin parts,
components, or materials, as opposed to labor, overhead, etc. When
the U.S. content varies and cannot be specified in advance, provide
a range of percentage and value that would indicate the minimum and
maximum U.S. content;
(viii) Include separately in Block 22(j) a description of any
U.S. origin spare parts to be reexported with the foreign-made
product, if they exceed the amount allowed by Sec. 740.10 of the
EAR. Enter the quantity, if appropriate, in Block 22(e). Enter the
ECCN for the spare parts in Block 22(a) and enter the value of the
spare parts in Block 22(h);
(ix) In Block 23, enter the digit ``0'';
(x) If the foreign-made product is the direct product of U.S.
origin technology that was exported or reexported subject to written
assurance, a request for waiver of that assurance, if necessary, may
be made in Block 24. If U.S. origin technology will accompany a
shipment to a country listed in Country Group D:1 or E:2 (see
Supplement No. 1 to part 740 of the EAR) describe in Block 24 the
type of technology and how it will be used.
(j) Ship stores, plane stores, supplies, and equipment.--(1)
Vessels under construction. If you are submitting a license
application for the export or reexport of items, including ship
stores, supplies, and equipment, to a vessel under construction you
must include the following information in your license application:
(i) In Block 18, enter the name, street address, city, and
country of the shipyard where vessel is being constructed;
(ii) In Block 22(j), state the length of the vessel for a vessel
under 12 m (40 ft) in length. For a vessel 12 m (40 ft) in length or
over, provide the following information (if this information is
unknown, enter ``Unknown'' in this Block):
(A) Hull number and name of vessel;
(B) Type of vessel;
(C) Name and business address of prospective owner, and the
prospective owner's nationality; and
(D) Country of registry or intended country of registry.
(2) Aircraft under construction. If you are submitting a license
application for the export or reexport of items, including plane
stores, supplies, and equipment, to an aircraft under construction
you must include the
[[Page 12825]]
following information in your license application:
(i) In Block 18, enter the name and address of the plant where
the aircraft is being constructed;
(ii) In Block 22(j), enter the following information (if this
information is unknown, enter ``Unknown'' in this Block):
(A) Type of aircraft and model number;
(B) Name and business address of prospective owner and his
nationality; and
(C) Country of registry or intended country of registry.
(3) Operating vessels and aircraft. If you are submitting a
license application for the export or reexport of items, including
ship or plane stores, supplies, and equipment to an operating vessel
or aircraft, whether in operation or being repaired, you must
include the following information in your license application:
(i) In Block 18, enter the name of the owner, the name of the
vessel, if applicable, and port or point where the items will be
taken aboard;
(ii) In Block 18, enter the following statement if, at the time
of filing the license application, it is uncertain where the vessel
or aircraft will take on the items, but it is known that the items
will not be shipped to a country listed in Country Group D:1 or E:2
(see Supplement No. 1 to part 740 of the EAR):
Uncertain; however, shipment(s) will not be made to Country
Groups D:1 or E:2.
(iii) Provide information as described in paragraph (j)(1)(ii)
of this supplement for vessels or information contained in paragraph
(j)(2)(ii) of this supplement for aircraft.
(k) Regional stability controlled items. If you are submitting a
license application for the export or reexport of items controlled
for regional stability reasons and subject to licensing under RS
Column 1 on the Country Chart, your license application must be
accompanied by full technical specifications.
(l) Reexports. If you know that an item that requires a license
to be exported from the United States to a certain foreign
destination will be reexported to a third destination also requiring
approval, such a request must be included on the license
application. The license application must specify the country to
which the reexport will be made in Block 24. If the export does not
require a license but the reexport does, you may apply for a license
for the reexport, or you may export without a license and notify the
consignee of the requirement to seek a license to reexport.
(m) Robots. If you are submitting a license application for the
export or reexport of items controlled by ECCNs 2B007 or 2D001
(including robots, robot controllers, end-effectors, or related
software) the following information must be provided in Block 24:
(1) Specify if the robot is equipped with a vision system and
its make, type, and model number;
(2) Specify if the robot is specially designed to comply with
national safety standards for explosive munitions environments;
(3) Specify if the robot is specially designed for outdoor
applications and if it meets military specifications for those
applications;
(4) Specify if the robot is specially designed for operating in
an electro-magnetic pulse (EMP) environment;
(5) Specify if the robot is specially designed or rated as
radiation-hardened beyond that necessary to withstand normal
industrial (i.e., non-nuclear industry) ionizing radiation, and its
rating in grays (Silicon);
(6) Describe the robot's capability of using sensors, image
processing or scene analysis to generate or to modify robot program
instructions or data;
(7) Describe the manner in which the robot may be used in
nuclear industry/manufacturing; and
(8) Specify if the robot controllers, end-effectors, or software
are specially designed for robots controlled by ECCN 2B007, and why.
(n) Short Supply controlled items. If you are submitting a
license application for the export of items controlled for short
supply reasons, you must consult part 754 of the EAR for
instructions on preparing your license application.
(o) Technology--(1) License application instructions. If you are
submitting a license application for the export or reexport of
technology you must check the box labeled ``Letter of Explanation''
in Block 6, enter the word ``Technology'' in Block 9, leave Blocks
22(e) and (i) blank, and include a general statement that specifies
the technology (e.g., blueprints, manuals, etc.) in Block 22(j).
(2) Letter of explanation. Each license application to export or
reexport technology must be supported by a comprehensive letter of
explanation. This letter must describe all the facts for a complete
disclosure of the transaction including, if applicable, the
following information:
(i) The identities of all parties to the transaction;
(ii) The exact project location where the technology will be
used;
(iii) The type of technology to be exported or reexported;
(iv) The form in which the export or reexport will be made;
(v) The uses for which the data will be employed;
(vi) An explanation of the process, product, size, and output
capacity of all items to be produced with the technology, if
applicable, or other description that delineates, defines, and
limits the data to be transmitted (the ``technical scope''); and
(vii) The availability abroad of comparable foreign technology.
(3) Special provisions.
(i) Technology controlled for national security reasons. If you
are submitting a license application to export technology controlled
for national security reasons to a country not listed in Country
Group D:1 or E:2 (see Supplement No. 1 to part 740 of the EAR), you
must obtain a written letter from the ultimate consignee assuring
that, unless prior authorization is obtained from BXA, the consignee
will not knowingly reexport the technology to any destination, or
export the direct product of the technology to a country listed in
Country Group D:1 or E:2 (See Supplement No. 1 to part 740 of the
EAR). If you are unable to obtain this letter of assurance from your
consignee, you must state in your license application why the
assurances could not be obtained.
(ii) Maritime nuclear propulsion plants and related items. If
you are submitting a license application to export or reexport
technology relating to maritime nuclear propulsion plants and
related items including maritime (civil) nuclear propulsion plants,
their land prototypes, and special facilities for their
construction, support, or maintenance, including any machinery,
device, component, or equipment specifically developed or designed
for use in such plants or facilities you must include the following
information in your license application:
(A) A description of the foreign project for which the
technology will be furnished;
(B) A description of the scope of the proposed services to be
offered by the applicant, his consultant(s), and his
subcontractor(s), including all the design data that will be
disclosed;
(C) The names, addresses and titles of all personnel of the
applicant, the applicant's consultant(s) and subcontractor(s) who
will discuss or disclose the technology or be involved in the design
or development of the technology;
(D) The beginning and termination dates of the period of time
during which the technology will be discussed or disclosed and a
proposed time schedule of the reports the applicant will submit to
BXA, detailing the technology discussed or disclosed during the
period of the license;
(E) The following certification:
I (We) certify that if this license application is approved, I
(we) and any consultants, subcontractors, or other persons employed
or retained by us in connection with the project licensed will not
discuss with or disclose to others, directly or indirectly, any
technology relating to U.S. naval nuclear propulsion plants. I (We)
further certify that I (we) will furnish to the Bureau of Export
Administration all reports and information it may require concerning
specific transmittals or disclosures of technology under any license
granted as a result of this license application.
(F) A statement of the steps that you will take to assure that
personnel of the applicant, the applicant's consultant(s) and
subcontractor(s) will not discuss or disclose to others technology
relating to U.S. naval nuclear propulsion plants; and
(G) A written statement of assurance from the foreign importer
as described in paragraph (o)(3)(i) of this Supplement.
(p) Temporary exports or reexports. If you are submitting a
license application for the temporary export or reexport of an item
(not eligible for License Exception TMP (See Sec. 740.8 of the EAR))
you must include the following certification in Block 24:
The items described on this license application are to be
temporarily exported (or reexported) for (state the purpose e.g.,
demonstration, testing, exhibition, etc.), used solely for the
purpose authorized, and returned to the United States (or
originating country) as soon as the temporary purpose has ended, but
in no case later than one year of the date of export (or reexport),
unless other disposition has been authorized in
[[Page 12826]]
writing by the Bureau of Export Administration.
Supplement No. 3 to Part 748--BXA-711, Statement by Ultimate Consignee
and Purchaser Instructions
All information must be typed or legibly printed in each
appropriate Block or Box.
Block 1: Ultimate Consignee. The Ultimate Consignee must be the
person abroad who is actually to receive the material for the
disposition stated in Block 2. A bank, freight forwarder, forwarding
agent, or other intermediary is not acceptable as the Ultimate
Consignee.
Block 2: Disposition or Use of Items by Ultimate Consignee named
in Block 1. Place an (X) in ``A.,'' ``B.,'' ``C.,'' ``D.,'' and
``E.,'' as appropriate, and fill in the required information.
Block 3: Nature of Business of Ultimate Consignee named in Block
1. Complete both ``A'' and ``B''.
Possible choices for ``A'' include: broker, distributor,
fabricator, manufacturer, wholesaler, retailer, value added
reseller, original equipment manufacturer, etc.
Possible choices for ``B'' include: contractual, franchise,
distributor, wholesaler, continuing and regular individual business,
etc.
Block 4: Additional Information. Provide any other information
not appearing elsewhere on the form such as other parties to the
transaction, and any other material facts that may be of value in
considering license applications supported by this statement.
Block 5: Assistance in Preparing Statement. Name all persons,
other than employees of the ultimate consignee or purchaser, who
assisted in the preparation of this form.
Block 6: Ultimate Consignee. Enter the requested information and
sign the statement in ink. (For a definition of ultimate consignee,
see Sec. 748.5(e) of this part.)
Block 7: Purchaser. This form must be signed in ink by the
Purchaser, if the Purchaser is not the same as the Ultimate
Consignee identified in Block 1. (For a definition of purchaser, see
Sec. 748.5(c) of this part.)
Block 8: Certification for U.S. Exporter. This Block must be
completed to certify that no correction, addition, or alteration on
this form was made subsequent to the signing by the Ultimate
Consignee in Block 6 and Purchaser in Block 7.
Supplement No. 4 To Part 748--Authorities Administering Import
Certificate/Delivery Verification (IC/DV) and End Use Certificate
Systems in Foreign Countries
----------------------------------------------------------------------------------------------------------------
Country IC/DV Authorities System administered
----------------------------------------------------------------------------------------------------------------
Argentina........................... Secretaria Ejecutiva de la Comision Nacional de IC/DV.
Control de Exportaciones Sensitivas y Material
Belico Balcarce 362--ler. piso Capital
Federal--CP 1064 Buenos Aires Tel. 334-0738,
Fax 331-1618.
Australia........................... Director, Technology Transfer and Analysis, IC/DV.
Industry Policy and Operations Division,
Department of Defense, Russell Office,
Canberra, A.C.T. 2600.
Austria............................. Bundesministerium fur Handel Gewerbe und IC/DV.
Industrie Landstr. Haupstr. 55-57, Vienna 1031.
Belgium............................. Ministere Des Affaires Economiques Office IC/DV.
Central des Contingents et Licences 24-26 Rue
De Mot, Bruxelles-1040.
Bulgaria............................ Ministry of Trade 12 Al. Batenberg 1000 Sofia.. IC/DV.
China, People's Republic of......... Technology Import and Export Department MOFTEC PRC End-User
No. 2 Dong Chang An Street Beijing, Telephone: Certificate.
553031, Telex: 22478 MFERTCN.
Czech Republic...................... Federal Ministry of Foreign Trade Head of IC/DV.
Licensing Politickych Veznu 20 112 49 Praha 1.
Denmark............................. Handelsministeriets Licenskontor Kampmannsgade IC/DV.
1, DK 1604, Copenhagen V.
IC's also issued by Danmarks Nationalbank DV.
Holmens Kanal 17, Copenhagen K Custom-houses.
Finland............................. Hensingin Piiritullikamari, Kanavakatu 6 (or IC/DV.
P.O. Box 168) 00161 Helsinki.
France.............................. Ministere de l'Economie et des Finances IC/DV.
Direction Generale des Douanes et Droita
Indirects Division des Affaires Juridiques et
Contentieuses 8, Rue de la Tour des Dames,
Bureau D/3, 75436, Paris Codex 09.
Germany............................. Bundesamt fur gewerbliche Wirtschaft IC/DV.
Frankfurter Strasse 29-31 65760 Eschborn.
Greece.............................. Banque de Greece, Direction des Transactions IC/DV.
Commerciales avec l'Etranger Athens.
Hong Kong........................... Trade Department, Ocean Centre, Canton Road, IC/DV.
Tsimshatsui, Kowloon,.
Hungary............................. Ministry of International Economic Relations IC/DV.
Export Control Office 1054 Budapest P.O. Box
728 H-1365, Hold Str. 17.
India............................... Deputy Director General of Foreign Trade Udyog Indian IC.
Bhawan, Maulana Azad Road New Delhi 11011.
For small scale industries and entities, and those not elsewhere specified.
Directorate General of Technical Development, Indian IC
Udyog Bhawan, Maulana Azad Road, New Delhi
11011.
For the ``organized'' sector, except for computers and related equipment.
Defense Research and Development Organization Indian IC.
Room No. 224, ``B'' Wing Sena Bhawan, New
Delhi 110011.
For Defense organizations.
Department of Electronics, Lok Nayak Bhawan, Indian IC.
New Delhi 110003.
For computers and related electronic items.
Assistant Director, Embassy of India, Commerce Indian IC.
Wing, 2536 Massachusetts Ave. NW, Washington
D.C. 20008--.
For any of the above.
Ireland, Republic of................ Department of Industry, Trade, Commerce and IC/DV.
Tourism, Frederick House, South Frederick
Street, Dublin 2.
Italy............................... Ministero del Commercio con l'Estero Direzione IC/DV.
Generale delle Importazioni e delle
Esportazioni, Div. III, Rome Dogana Italiana
(of the town import where takes place).
[[Page 12827]]
Japan............................... Ministered of International Trade and Industry IC/DV.
in: Fukuoka, Hiroshima, Kanmon (Kitakyushu-
shi), Kobe, Nagoya, Osaka, Sapporo, Sendai,
Shikoku (Takamatsu-shi), Shimizu, Tokyo, and
Yokohama Japanese Customs Offices.
Korea, Republic of.................. Trade Administration Division Trade Bureau IC.
Ministry of Trade and Industry Jungang-Dong,
Kyonggi-Do, Building 3 Kwachon.
Republic of Korea Customs House................ DV.
Liechtenstein....................... Swiss Federal Office for Foreign Economic IC/DV.
Affairs, Import and Export Division
Zieglerstrasse 30, CH-3003 Bern.
Luxembourg.......................... Office des Licences Avenue de la Liberte, 10... IC/DV.
Netherlands......................... Centrale Dienst voor In-en Uitvoer Engelse Kamp IC/DV.
2, Groningen.
New Zealand......................... Comptroller for Customs P.O. Box 2218, IC/DV.
Wellington.
Norway.............................. Handelsdepartmentet Direktoratet for Eksport-og- IC/DV.
Importregulering Fr. Nansens plass 5, Oslo.
Pakistan............................ Chief Controller of Imports and Exports 5, IC.
Civic Center Islamabad.
Joint Science Advisor, Ministry of Science and DV.
Technology, Secretariat Block `S', Islamabad.
Poland.............................. Ministry of Foreign Economic Relations IC/DV.
Department of Commodities and Services Plac
Trzech Krzyzy 5, Room 358 00-507 Warsaw.
Portugal............................ Reparticao do Comercio Externo Direccao-Geral IC/DV.
do Comercio Secretaria de Estado do Comercio
Ministerio da Economia, Lisbon.
Romania............................. National Agency for Control of Strategic IC/DV.
Exports and Prohibition of Chemical Weapons,
13, Calea 13 Septembrie Casa (or P.O. Box 5-
10) Republicii, Gate A 1, Bucharest, Sector 5,
Phone: 401-311-2083, Fax: 401-311-1265.
Singapore........................... Controller of Imports and Exports, Trade IC/DV.
Development Board World Trade Centre, 1
Maritime Square, Telok Blangah Road,.
Slovakia............................ Ministry of Foreign Affairs Licensing- IC.
Registration Department Spitalska 8, 813 15
Bratislava.
Spain............................... Secretary of State for Commerce Paseo la IC/DV.
Cistellana 162, Madrid 28046.
Sweden.............................. The Association of Swedish Chambers of Commerce IC/DV.
& Industry P.O. Box 16050, S-103 22 Stockholm
Office: Vastra Tradgardsgatan 9.
Switzerland......................... Swiss Federal Office for Foreign Economic IC/DV.
Affairs, Import and Export Division,
Zieglerstrasse 30 CH-3003 Bern.
Taiwan.............................. Board of Foreign Trade Ministry of Economic IC/DV.
Affairs 1 Hu-Kou Street, Taipei.
Science-based Industrial Park Administration
No. 2 Hsin Ann Road, Hsinchu.
Export Processing Zone Administration 600
Chiachang Road Nantz, Kaohsiung.
Turkey.............................. Ministry of Commerce, Department of Foreign IC.
Commerce, Ankara.
Head Customs Office at the point of entry...... DV.
United Kingdom...................... Department of Trade and Industry Export IC.
Licensing Branch Millbank Tower Millbank
London, SW1P 4QU.
H.M. Customs and Excise, King's Beam House, DV
Mark Lane London, E.C. 3.
----------------------------------------------------------------------------------------------------------------
Supplement No. 5 to Part 748--U.S. Import Certificate and Delivery
Verification Procedure
The United States participates in an Import Certificate/Delivery
Verification procedure. Under this procedure, U.S. importers are
sometimes required to provide their foreign suppliers with an U.S.
International Import Certificate that is validated by the U.S.
Government. This certificate tells the government of the exporter's
country that the items covered by the certificate will be imported
into the U.S. Economy and will not be reexported except as
authorized by U.S. export control regulations. In addition, in some
cases, the exporter's government may require a delivery
verification. Under this procedure, the U.S. Customs Service
validates a certificate confirming that the items have entered the
U.S. economy. The U.S. importer must return this certificate to the
foreign exporter.
This supplement establishes the procedures and requirements of
BXA with respect to both of these programs. Paragraph (a) of this
Supplement contains the requirements and procedures of the U.S.
International Import Certificate procedure. Paragraph (b) of this
Supplement contains the requirements and procedures of the Delivery
Verification procedure.
(a) U.S. International Import Certificates. If you are a U.S.
importer, a foreign supplier may request you to obtain a U.S. import
certificate. The reason for this request is that the exporter's
government requires a U.S. import certificate as a condition to
issuing an export license. To obtain such a certificate you will
have to fill in and execute the U.S. International Import
Certificate form (Form BXA-645P/ATF-4522/DSP-53) and submit it to
the U.S. government agency that has jurisdiction over the items you
are importing. In doing so, you will be making a representation to
the United States Government that you will import the items
described in the certificate into the United States or if not so
imported, you will not divert, transship or reexport them to another
destination with the explicit approval of the U.S. government agency
that has jurisdiction over those items. (Representations that items
will be entered into the U.S. do not preclude the temporary
unloading of items in a foreign trade zone for subsequent entry into
the economy of the U.S.) If the items described in the certificate
are subject to U.S. Department of Commerce jurisdiction, the
Department will validate the certificate and return it to you. You
may then send the certificate to your foreign supplier. In this way
the government of the exporting country is assured that the items
will become subject to the export control laws of the United States.
(1) Items for which the U.S. Department of Commerce issues U.S.
International Import Certificates and forms to use. The Department
of Commerce issues U.S. International Import Certificates for the
following types of items.
(i) Items controlled for National Security reasons. Items under
the export licensing jurisdiction of BXA that are identified as
controlled for national security reasons on the Commerce Control
List (Supplement No. 1 to part 774 of the EAR). You will need to
submit in triplicate a completed Form BXA-645P/ATF-4522/DSP-53;
(ii) Nuclear equipment and materials. Items subject to the
export licensing jurisdiction of the Nuclear Regulatory Commission
for nuclear equipment and materials. (see 10 CFR part 110). You will
need to submit in quadruplicate a completed Form BXA-645P/ATF-4522/
DSP-53; and
(iii) Munitions Items. Items listed on the U.S. Munitions List
(see 22 CFR part 121) that do not appear on the more limited U.S.
[[Page 12828]]
Munitions Import List (27 CFR 47.21). You will need to submit in
triplicate a completed Form BXA-645P. For triangular transactions
(See paragraph (a)(5) of this Supplement) involving items on the
U.S. Munitions List, you must contact the Department of State,
Office of Defense Trade Controls and use Form BXA-645P/ATF-4522/DSP-
53. You should contact the Treasury Department, Bureau of Alcohol,
Tobacco and Firearms for items appearing on the U.S. Munitions
Import List. You will need to use Form ATF-4522.
(2) Where to submit forms. U.S. International Import
Certificates and requests to amend certificates may be presented for
validation either in person or by mail at the following locations.
(i) By mail to the Bureau of Export Administration, P.O. Box
273, Washington D.C. 20044, Attn: Import Certificate Request; or
(ii) In person or by mail at one of the following Department of
Commerce U.S. and Foreign Commercial Service District Offices:
Boston, MA
Buffalo, NY
Chicago, IL
Cincinnati, OH
Cleveland, OH
Dallas, TX
Detroit, MI
Houston, TX
Kansas City, MO
Los Angeles, CA
Miami, FL
New Orleans, LO
New York, NY
Philadelphia, PA
Phoenix, AZ
Pittsburgh, PA
Portland, OR
St. Louis, MO
San Francisco, CA
Savannah, GA
Seattle, WA
Trenton, NJ
(3) U.S. International Import Certificate validity periods. The
U.S. International Import Certificate must be submitted to the
foreign government within six months from the date of certification
by the U.S. Department of Commerce. The expiration of this six-month
period in no way affects the responsibility of the importer to
fulfill the commitments made in obtaining the certificate. If the
certificate is not presented to the government of the exporting
country before the expiration of its validity period, the exporter
must apply for a new certificate. The original unused U.S.
International Import Certificate must be returned to BXA at the
address specified in paragraph (a)(2)(i) of this supplement.
(4) Statements on the certificate or amendments are
representations to the U.S. Government which continue in effect.
(i) All statements and representations made in a U.S.
International Import Certificate or an amendment thereto, will be
deemed to be continuing in nature until the transaction described in
the certificate is completed and the items are delivered into the
economy of the importing country.
(ii) Any change of fact or intention in regard to the
transaction described in the certificate shall be promptly disclosed
to BXA by the U.S. importer by presentation of an amended
certificate. The amended certificate must describe all of the
changes and be accompanied by the original certificate bearing the
certification of BXA. If the original certificate has been
transferred to the foreign exporter, you must, where possible,
attempt to obtain the original certificate prior to applying for an
amendment. If the original certificate is unobtainable because the
foreign exporter has submitted it to the appropriate foreign
government, or for any other reason, then you must submit a written
statement with your amendment giving the reasons for your failure to
submit the original certificate.
(5) Certificates for Triangular transaction (items will not
enter the U.S. or applicant is not sure that they will enter the
United States).
(i) In accordance with international practice, BXA will, upon
request, stamp the certificate with a triangular symbol as
notification to the government of the exporting country that the
U.S. importer is uncertain whether the items will be imported into
the U. S. or knows that the items will not be imported into the
U.S., but that, in any case, the items will not be delivered to any
other destination except in accordance with the EAR.
(ii) The triangular symbol on a certificate U.S. International
Import Certificate is not, in and of itself, an approval by BXA to
transfer or sell items to a foreign consignee. Note that a
triangular Certificate will not be issued covering foreign excess
property sold abroad by the U.S. Department of Defense.
(6) Approval to export items to a foreign consignee prior to
delivery under a U.S. International Import Certificate. The written
approval of BXA is required before items covered by a U.S.
International Import Certificate (whether or not bearing a
triangular symbol) may be shipped to a destination other than the
U.S. or Canada or sold to a foreign purchaser, and before title to
or possession of such items may be transferred to a foreign
transferee. This requirement does not apply after the items have
been delivered in accordance with the undertaking set forth in the
Certificate or if at the time of such shipment, sale, passage of
possession or passage of title, a License Exception or a NLR
provision of the EAR would authorize the transaction.
(i) If prior approval is required, a letter requesting
authorization to release the shipment shall be submitted to BXA at
the address listed in paragraph (a)(2)(i) of this supplement.
(ii) The letter must contain the certificate number; date
issued; location of the issuing office; names, addresses, and
identities of all parties to the complete transaction; and the
quantity, dollar value, and description of the items. The letter
must be accompanied by the U.S. International Import Certificate,
and all other documentation required by the EAR for the item and
country of ultimate destination, as identified in part 748 of the
EAR. If requirements stated in part 748 of the EAR do not apply to
your transaction, you must identify the intended end-use of the
items in your letter.
(iii) Where the letter request is approved and is supported by a
foreign import certificate, no further approval from BXA is required
for the purchaser or transferee to resell or again transfer the
items. However, where BXA approves a request that was not supported
by a foreign import certificate, the person to whom approval is
granted is required to inform the purchaser or transferee, in
writing, that the items are to be shipped to the approved
destination only and that no other disposition of the items is
permitted without the approval of BXA.
(iv) If the transaction is approved, a validated letter of
approval will be sent to the U.S. purchaser for retention in his
records. Where a DV or other official government confirmation of
delivery is required, the letter will so indicate.
(v) If the items covered by a certificate have been imported
into a destination other than the U.S. and the foreign exporter of
the items requests a Delivery Verification, the person who obtained
the certificate must obtain a DV from the person to whom the items
were delivered in the actual importing country. (If a DV is
unobtainable, other official government confirmation of delivery
must be obtained.) The DV or other official government confirmation
of delivery must be submitted to BXA together with an explanatory
letter giving the U.S. International Import Certificate number, date
issued, and location of issuing office. BXA will then issue Form
ITA-6008, Delivery Compliance Notice, in two copies, the original of
which must be forwarded to the country of origin in order to serve
as evidence to the exporting country that the requirements of the
U.S. Government have been satisfied with respect to delivery of the
items.
(vi) Delivery, sale, or transfer of items to another U.S.
purchaser.
(A) Items covered by a U.S. International Import Certificate may
not be sold, and title to or possession of such items may not be
transferred, to another U.S. purchaser or transferee before the
items are delivered to the U.S. (or to an approved foreign
destination, as provided by paragraph (a)(5) of this Supplement),
except in accordance with the provisions described in paragraph
(a)(6) of this Supplement. The provisions of this paragraph do not
apply after the items have been delivered in accordance with the
undertaking set forth in the certificate.
(B) Resale or transfer to another U.S. purchaser or transferee
requires the prior approval of BXA only in cases where the buyer or
transferee is listed in Supplement No. 1 to part 766 of the EAR.
However, you, as the person who obtained the certificate are
required to notify BXA of any change in facts or intentions relating
to the transaction, and in all cases you will be held responsible
for the delivery of the items in accordance with the EAR. You are
required in all cases to secure, prior to sale or transfer, and to
retain in your files in accordance with the recordkeeping provisions
contained in part 762 of the EAR, written acceptance by the
purchaser or transferee of:
(1) All obligations undertaken by, and imposed under the EAR,
upon the holder of the certificate; and
[[Page 12829]]
(2) An undertaking that all subsequent sales or transfers will
be made subject to the same conditions.
(iii) The responsibility of the certificate holder for obtaining
a DV also applies to those cases where the items are resold to a
U.S. purchaser (See paragraph (b)(1) of this Supplement.
(vii) Reexport or transshipment of items after delivery to U.S.
Items imported into the U.S. under the provisions of a U.S.
International Import Certificate may not be reexported to any
destination under the provisions of License Exception TUS (see
Sec. 740.4(c) of the EAR). However, all other provisions of the EAR
applicable to items of domestic origin shall apply to the reexport
of items of foreign origin shipped to the U.S. under a U.S.
International Import Certificate.
(viii) Lost or destroyed U.S. International Import Certificates.
If a U.S. International Import Certificate is lost or destroyed, a
duplicate copy may be obtained by the person in the U.S. who
executed the original U.S. International Import Certificate by
submitting to any of the offices listed in paragraph (a)(2)(i) of
this supplement new Form BXA-645P/ATF-4522/DSP-53 in the same way as
an original request, except that the forms shall be accompanied by a
letter detailing the circumstances under which the original
certificate was lost or destroyed and certifying:
(A) That the original U.S. International Import Certificate No.
______, dated ______, issued to (name and address of U.S. importer)
for import from (foreign exporter's name and address) has been lost
or destroyed; and
(B) That if the original U.S. International Import Certificate
is found, the applicant agrees to return the original or duplicate
of the certificate to the Bureau of Export Administration.
(ix) Unused U.S. International Import Certificates. If the
transaction will not be completed and the U.S. International Import
Certificate will not be used, return the certificate for
cancellation to BXA at the address listed in paragraph (a)(2)(i) of
this supplement.
(b) Delivery Verification Certificate. U.S. importers may be
requested by their foreign suppliers to furnish them with a
certified Form BXA-647P, Delivery Verification Certificate, covering
items imported into the U.S. These requests are made by foreign
governments to assure that strategic items shipped to the U.S. are
not diverted from their intended destination. In these instances,
the issuance of an export license by the foreign country is
conditioned upon the subsequent receipt of a Delivery Verification
Certificate from the U.S. importer. Accordingly, your compliance
with your foreign exporter's request for a Delivery Verification is
necessary to ensure your foreign exporter fulfills its government
obligations and is able to participate in future transactions with
you. Failure to comply may subject your exporter to penalties that
may prevent future trade.
(1) The responsibility of a person or firm executing a U.S.
International Import Certificate for providing the foreign exporter
with confirmation of delivery of the items includes instances where
the items are resold or transferred to another U.S. person or firm
prior to actual delivery to the U.S. or to an approved foreign
destination. The person who executed the U.S. International Import
Certificate shall secure in writing from the U.S. purchaser or
transferee, and retain in your files in accordance with the
recordkeeping provisions stated in part 762 of the EAR:
(i) Acceptance of the obligation to provide the purchaser or
transferee with either the Delivery Verification (or other official
government confirmation of delivery if a Delivery Verification is
unobtainable) or assurance that this document was submitted to BXA;
and
(ii) An undertaking that each succeeding U.S. transferee or
purchaser will assume the same obligation or assurance. In each case
the seller or transferor must transmit to the U.S. purchaser or
transferee the U.S. International Import Certificate number covering
the export from the foreign country and request that they pass it on
to any other U.S. purchasers or transferees.
(2) Completion and certification of Delivery Verification
Certificates. If you are requested by your foreign exporter to
provide a Delivery Verification, you must obtain Form BXA-647P from
a U.S. customs office or one of the offices listed in paragraph
(a)(2) of this supplement and complete all blocks (except those
below the line titled ``To be completed by U.S. Customs Service'')
on the form. The language used in the block titled ``Description of
Goods'' must describe the items in the same terms as those shown on
the applicable U.S. International Import Certificate. Upon
completion Form BXA-647P must be presented, in duplicate, to a U.S.
customs office. The U.S. customs office will certify Form BXA-647P
only where the import is made under a warehouse or consumption
entry.
(3) Disposition of certified Delivery Verification Certificates.
The importer must send the original certified Delivery Verification
Certificate to the foreign exporter or otherwise dispose of it in
accordance with the instructions of the exporting country. The
duplicate copy will be retained by the U.S. customs office.
(4)(i) Issuance of a U.S. Delivery Compliance Notice in lieu of
a Delivery Verification Certificate. If you are requested to provide
a Delivery Verification Certificate but do not wish to disclose the
name of your customer to the foreign exporter (e.g., in the event
that the items are resold or transferred to another person or firm
before the items enter the U.S.), you may submit an originally
completed Form BXA-647P together with an explanatory letter
requesting a Delivery Compliance Notice, to BXA at the address
listed in (a)(2)(i) of this supplement.
(ii) BXA will provide you with a notice signifying that the
items were imported into the U.S. and that a satisfactory DV has
been submitted to BXA. You must then forward the original notice to
your foreign exporter for submission to the foreign government. A
copy of the notice should be retained in your files in accordance
with the recordkeeping provisions stated in part 762 of the EAR.
(5)(i) Lost or destroyed Delivery Verification Certificate. When
a Delivery Verification Certificate is lost or destroyed, the U.S.
importer must submit a letter to BXA at the address listed in
paragraph (a)(2)(i) of this supplement certifying that:
(A) The original Delivery Verification Certificate has been lost
or destroyed;
(B) The circumstances under which it was lost or destroyed;
(C) The type of customs entry (warehouse or consumption), entry
number, and date of entry; and
(D) The number and date of the related U.S. International Import
Certificate.
(ii) BXA will, in applicable cases, notify the exporting
government that a Delivery Verification Certificate been issued.
(c) Penalties and sanctions for violations. The enforcement
provisions of part 764 and Supplement No. 2 to part 736 of the EAR
apply to transactions involving imports into the U.S. covered by
this supplement and to both foreign and U.S. parties involved in a
violation of this supplement. Any provisions of part 764 and
Supplement No. 2 to part 736 of the EAR which, by their terms,
relate to ``exports'' or ``exports from the U.S.'' are also deemed
to apply and extend to imports into the U.S., applications for U.S.
International Import Certificates (Forms BXA-645P presented to U.S.
Department of Commerce for certification), U.S. International Import
Certificates, and Delivery Verification Certificates, described in
this supplement. (Applications the documents described in this
supplement, are included within the definition of export control
documents provided in part 772 of the EAR.) Refer to Sec. 764.3 of
the EAR for more information.
PART 750--APPLICATION PROCESSING, ISSUANCE OR AND DENIAL
Sec.
750.1 Scope.
750.2 Processing of Classification Requests and Advisory Opinions.
750.3 Review of license applications by BXA and other government
agencies and departments.
750.4 Procedures for processing license applications.
750.5 Status on pending applications and other requests.
750.6 Denial of license applications.
750.7 Issuance of licenses.
750.8 Revocation or suspension of licenses.
750.9 Duplicate licenses.
750.10 Transfer of licenses for exports.
750.11 Shipping tolerances.
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); E.O. 12981, 60 FR 62981.
Sec. 750.1 Scope.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C. This part describes the Bureau of Export
Administration's (BXA) process for reviewing your application for a
license, including processing times, denials, revocations, issuance,
duplicates, transfers, and
[[Page 12830]]
shipping tolerances on approved licenses. The processing times for
Classification and Advisory Opinion requests are also provided along
with directions on obtaining status on your pending application.
Sec. 750.2 Processing of Classification Requests and Advisory
Opinions.
(a) Classification requests. All classification requests submitted
in accordance with procedures described in Sec. 748.3 (a) and (b) of
the EAR will be answered within 14 calendar days after receipt. All
responses will inform the person of the proper classification (e.g.,
whether or not the item is subject to the Export Administration
Regulations (EAR) and, if applicable, the appropriate Export Control
Classification Number [ECCN]).
(b) Advisory Opinion requests. All advisory opinions submitted in
accordance with procedures described in Sec. 748.3(a) and (c) of the
EAR will be answered within 30 calendar days after receipt.
Sec. 750.3 Review of license applications by BXA and other government
agencies and departments.
(a) Review by BXA. In reviewing specific license applications, BXA
will conduct a complete analysis of the license application along with
all documentation submitted in support of the application. In addition
to reviewing the item and end-use, BXA will consider the reliability of
each party to the transaction and review any available intelligence
information. To the maximum extent possible, BXA will make licensing
decisions without referral of license applications to other agencies,
however, BXA may consult with other U.S. departments and agencies
regarding any license application.
(b) Review by other departments or agencies. (1) The Departments of
Defense, Energy, State, and the Arms Control and Disarmament Agency
(ACDA) have the authority to review any license application submitted
under the EAR. In addition, BXA may, where appropriate, refer license
applications to other U.S. government departments or agencies. These
agencies and departments will be referred to as ``agencies'' for the
purposes of this part. Though these agencies have the authority to
review any license application, they may determine that they do not
need to review certain types of license applications. In these
instances, the agency will provide BXA with a Delegation of Authority
to process those license applications without review by that particular
agency.
(2) The Departments of Defense, Energy, State, and ACDA are
generally concerned with license applications involving items
controlled for national security, missile technology, nuclear
nonproliferation, and chemical and biological weapons proliferation
reasons or destined for countries and/or end uses of concern. In
particular, these agencies are concerned with reviewing license
applications as follows:
(i) The Department of Defense is concerned primarily with items
controlled for national security and regional stability reasons;
(ii) The Department of Energy is concerned primarily with items
controlled for nuclear nonproliferation reasons;
(iii) The Department of State is concerned primarily with items
controlled for regional stability, anti-terrorism, crime control
reasons, and sanctions; and
(iv) ACDA is concerned primarily with items controlled for national
security, nuclear nonproliferation, regional stability, and anti-
terrorism reasons.
Sec. 750.4 Procedures for processing license applications.
(a) Overview. (1) All license applications will be resolved or
referred to the President no later than 90 calendar days from the date
of BXA's registration of the license application. Processing times for
the purposes of this section are defined in calendar days. The
procedures and time limits described in this part apply to all license
applications registered on or after February 4, 1996. The procedures
and time limits in effect prior to December 6, 1995 will apply to
license applications registered prior to February 4, 1996.
(2) Properly completed license applications will be registered
promptly upon receipt by BXA. Registration is defined as the point at
which the application is entered into BXA's electronic license
processing system. If your application contains deficiencies that
prevent BXA from registering your application, BXA will attempt to
contact you to correct the deficiencies, however, if BXA is unable to
contact you, the license application will be returned without being
registered. The specific deficiencies requiring return will be
enumerated in a notice accompanying the returned license application.
If a license application is registered, but BXA is unable to correct
deficiencies crucial to processing the license application, it will be
returned without action. The notice will identify the deficiencies and
the action necessary to correct the deficiencies. If you decide to
resubmit the license application, it will be treated as a new license
application when calculating license processing time frames.
(b) Actions not included in processing time calculations. The
following actions will not be counted in the time period calculations
described in paragraph (a)(1) of this section for the processing of
license applications:
(1) Agreement by the applicant to the delay. BXA may request
applicants provide additional information in support of their license
application, respond to questions arising during processing, or accept
proposed conditions or riders on their license application. If BXA has
provided the applicant with an intent to deny letter described in
Sec. 750.6 of this part, processing times may be suspended in order to
negotiate modifications to a license application and obtain agreement
to such modifications from the foreign parties to the license
application.
(2) Pre-license checks. If a pre-license check, to establish the
identity and reliability of the recipient of the controlled items, is
conducted through government channels, provided that:
(i) The need for such a pre-license check is established by the
Secretary, or by another agency, if the request for a pre-license check
is made by such agency and the request is made in accordance with the
following time frames;
(A) The pre-license check is requested within 5 days of the
determination that it is necessary; and
(B) The analysis resulting from the pre-license check is completed
within 5 days.
(3) Government-to-Government assurances. Requests for government-
to-government assurances of suitable end-use of items approved for
export or reexport when failure to obtain such assurances would result
in rejection of the license application, provided that:
(i) The request for such assurances is sent to the Secretary of
State within five days of the determination that the assurances are
required;
(ii) The Secretary of State initiates the request of the relevant
government within 10 days of receipt of the request for such
assurances; and
(iii) The license is issued within 5 days of the Secretary's
receipt of the requested assurances.
(4) Consultations. Consultation with other governments, if such
consultation is provided for by a relevant bilateral
[[Page 12831]]
arrangement or multilateral regime as a precondition for approving a
license.
(5) Multilateral reviews. Multilateral review of a license
application if such review is required by the relevant multilateral
regime.
(6) Congressional notification. Under Section 6(j) of the Export
Administration Act, as amended (EAA), the Secretaries of Commerce and
State are required to notify appropriate Committees of the Congress 30
days prior to issuing a license to any country designated by the
Secretary of State as being terrorist supporting for any items that
could make a significant contribution to the military potential of such
countries, or could enhance the ability of such countries to support
acts of international terrorism. Accordingly, the issuance of any
license subject to this requirement will be delayed for 30 days.
(i) Designated countries. The following countries have been
designated by the Secretary of State as terrorist-supporting countries:
Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria.
(ii) Items subject to notification requirement. License
applications involving the export or reexport of the following items to
the military, police, intelligence or other sensitive end-users are
subject to this notification requirement:
(A) All items controlled for national security reasons, except
digital computers with a Composite Theoretical Performance (CTP) less
than 500 Mtops;
(B) All items controlled for chemical and biological weapons
proliferation reasons;
(C) All items controlled for missile technology reasons;
(D) All items controlled for nuclear nonproliferation reasons; and
(E) All items controlled by the CCL where the entry heading
identifies the items controlled as those contained in the International
Munitions List.
(iii) Additional notifications. The Secretaries of Commerce and
State must also notify the appropriate Congressional committees 30 days
before a license is issued for the export or reexport of any item
controlled on the CCL to a designated country if the Secretary of State
determines that the export or reexport ``could make a significant
contribution to the military potential of such country, including its
military logistics capability, or could enhance the ability of such
country to support acts of international terrorism.''
(c) Initial processing. Within 9 days of license application
registration, BXA will, as appropriate:
(1) Contact the applicant if additional information is required, if
the license application is improperly completed, or required support
documents are missing, to request additional or corrected information;
(2) Assure the stated classification on the license application is
correct;
(3) Return the license application if a license is not required
with a statement notifying the applicant that a license is not
required;
(4) Approve the license application or notify the applicant of the
intent to deny the license application; or
(5) Refer the license application electronically along with all
necessary recommendations and analysis concurrently to all agencies
unless the application is subject to a Delegation of Authority. Any
relevant information not contained in the electronic file will be
simultaneously forwarded in paper copy.
(d) Review by other agencies and/or interagency groups.
(1) Within 10 days of receipt of a referral the reviewing agency
must advise BXA of any information not contained in the referral as
described in paragraph (c)(5) of this section. BXA will promptly
request such information from the applicant. The time that elapses
between the date the information is requested by the reviewing agency
and the date the information is received by the reviewing agency will
not be counted in processing time frames.
(2) Within 30 days of receipt of the initial referral, the
reviewing agency will provide BXA with a recommendation either to
approve (with or without conditions or riders) or deny the license
application. As appropriate, such a recommendation may be made with the
benefit of consultation and/or discussions in interagency groups
established to provide expertise and coordinate interagency
consultation. These interagency groups consist of:
(i) The Missile Technology Export Control Group (MTEC). The MTEC,
chaired by the Department of State, reviews license applications
involving items controlled for missile technology reasons. The MTEC
also reviews license applications involving items not controlled for
missile technology (MT) reasons, but destined for a country and/or end-
use/end-user of MT concern.
(ii) The SubGroup on Nuclear Export Coordination (SNEC). The SNEC,
chaired by the Department of State, reviews license applications
involving items controlled for nuclear nonproliferation reasons. The
SNEC also reviews license applications involving items not controlled
for nuclear nonproliferation (NP) reasons, but destined for a country
and/or end-use/end-user of NP concern.
(iii) The Shield. The Shield, chaired by the Department of State,
reviews license applications involving items controlled for chemical
and biological weapons reasons. The Shield also reviews license
applications involving items not controlled for chemical and biological
weapons (CBW) reasons, but destined for a country and/or end-use/end-
user of CBW concern.
(e) Recommendations by reviewing agencies. Reviewing agencies
recommending denial of a license application must provide a statement
of reasons, consistent with the provisions of the EAA or EAR, and cite
both the statutory and the regulatory basis for the recommendation to
deny. A reviewing agency that fails to provide a recommendation within
30 days with a statement of reasons supported by the statutory and
regulatory basis shall be deemed to have no objection to the final
decision of BXA.
(f) Interagency dispute resolution and escalation procedures--(1)
Escalation to the Operating Committee (OC). (i) In any instance where
the reviewing agencies are not in agreement on final disposition of a
license application, it will be escalated to the OC for resolution. The
Chair of the OC will consider the recommendations of the reviewing
agencies and any information provided by the applicant in person during
an open OC session. Each agency will be informed of the Chair's
decision on the license application within 14 days after the deadline
for receiving agency recommendations.
(ii) If any agency disagrees with the OC Chair's decision, the
agency may escalate the decision by appealing to the Chair of the
Advisory Committee on Export Policy for resolution. If such a request
for escalation is not made within 5 days of the decision of the OC
Chair, the Chair's decision will be final.
(2) Escalation to the Advisory Committee on Export Policy (ACEP).
Requests for escalation to the ACEP must be in writing from an official
appointed by the President with the advice and consent of the Senate,
or a person properly acting in such capacity, and cite both the
statutory and the regulatory basis for the appeal. The ACEP will review
all relevant information and recommendations. The Chair of the ACEP
will inform the reviewing agencies of the majority vote decision of the
ACEP within 11 days from the date of receipt of the escalation request.
Within 5 days of the decision, any dissenting agency may appeal in
writing the ACEP's decision to the
[[Page 12832]]
Secretary of Commerce in the Secretary's capacity as the Chair of the
Export Administration Review Board. The written request must be made by
the head of the agency requesting escalation and cite both the
statutory and the regulatory basis for the appeal. Within the same
period of time, the Secretary may initiate a meeting on his or her own
initiative to consider a license application. In the absence of a
timely appeal, the decision of the ACEP will be final.
(3) Escalation to the Export Administration Review Board (EARB).
The EARB will review all relevant information and recommendations, and
such other export control matters as may be appropriate. The Secretary
of Commerce will inform the reviewing agencies of the majority vote
decision of the EARB within 11 days from the date of receipt of the
appeal. Within 5 days of the decision, any agency dissenting from the
decision of the EARB may appeal the decision to the President. The
appeal must be in writing from the head of the dissenting agency. In
the absence of a timely appeal, the decision of the EARB will be final.
Sec. 750.5 Status of pending applications and other requests.
(a) Information available. You may contact BXA for status of your
pending Classification Request, Advisory Opinion, or license
application. For Advisory Opinion requests, telephone (202) 482-4905 or
send a fax to (202) 219-9179. For license applications and
Classification requests, telephone BXA's System for Tracking Export
License Applications (``STELA'') at (202) 482-2752. STELA is an
automated voice response system, that upon request via any standard
touch-tone telephone, will provide you with up to the minute status on
any license application pending at BXA. Requests for status may be made
only by the applicant or the applicant's agent.
(b) STELA's hours. STELA is operational Monday through Friday from
7:15am to 11:15pm and on Saturday from 8:00am to 4:00pm, Eastern Time.
If you have any difficulty accessing STELA, contact during normal
business hours, one of BXA's offices listed in Sec. 748.2(a) of the
EAR.
(c) Procedures to access information on STELA. Once you dial STELA
you will be instructed to enter your Application Control Number using
your push button telephone keys. After you enter the Application
Control Number, STELA will provide you with the current status of your
license application or Classification request.
Sec. 750.6 Denial of license applications.
(a) Intent to deny notification. If BXA intends to deny your
license application, BXA will notify you in writing within 5 days of
the decision. The notification will include:
(1) The intent to deny decision;
(2) The statutory and regulatory basis for the denial;
(3) To the extent consistent with the national security and foreign
policy of the United States, the specific considerations that led to
the decision to deny the license application;
(4) What, if any, modifications or restrictions to the license
application would allow BXA to reconsider the license application;
(5) The name of the BXA representative in a position to discuss the
issues with the applicant; and
(6) The availability of appeal procedures.
(b) Response to intent to deny notification. You will be allowed 20
days from the date of the notification to respond to the decision
before the license application is denied. If you respond to the
notification, BXA will advise you if, as a result of your response, the
decision to deny has been changed. Unless you are so advised by the
45th day after the date of the notification, the denial will become
final, without further notice. You will then have 45 days from the date
of final denial to exercise the right to appeal under part 756 of the
EAR.
Sec. 750.7 Issuance of licenses.
(a) Scope. A license authorizes only a specific transaction, or
series of transactions, as described in the license application and any
supporting documents. A license application may be approved in whole or
in part or further limited by conditions or other restrictions
appearing on the license itself or in the EAR. When a license
application is approved by the BXA, a license is issued as described in
paragraph (b) of this section.
(b) Issuance of a license. After a license application is approved,
a computer generated license is issued by the Department of Commerce
bearing the license number and a validation date. Where appropriate,
the license will also show an expiration date. Where necessary,
attachments to a license will also be validated with the Department of
Commerce seal and the date of validation. Exporters must use the
complete license number when preparing a Shipper's Export Declaration
(SED) and other export control documents, and in communicating with the
Department of Commerce concerning the license.
(c) Changes to the license. The following non-material changes do
not require submission of a ``Replacement'' license or any other
notification to BXA. (If you wish to make any change not identified in
this paragraph, you will need to submit a ``Replacement'' license in
accordance with the instructions contained in Supplement No. 1 to part
748 of the EAR, Block 11):
(1) Decrease in unit price or total value;
(2) Increase in price or quantity if permitted under the shipping
tolerances in Sec. 750.11 of this part;
(3) Increase in price that can be justified on the basis of changes
in point of delivery, port of export, or as a result of transportation
cost, drayage, port charges, warehousing, currency fluctuations, etc.;
(4) Establishment of unit or total price in conformance with a
``price statement'' on a license that permits price to be based on the
market price at a specified date plus an exporter's mark-up, or like
basis;
(5) Change in intermediate consignee if the new intermediate
consignee is located in the country of ultimate destination as shown on
the license, except a change in, or addition of, an intermediate
consignee involving a consolidated shipment;
(6) Change in continuity of shipment by unloading from carrier at a
country listed in Country Group B (see Supplement No. 1 to part 740 of
the EAR) port not in the country of ultimate destination, without the
designation of an intermediate consignee on the shipping documents and
license, provided:
(i) The purpose is to transfer the shipment to another vessel,
barge, or vehicle, solely for onforwarding to the country of
destination shown on the shipping documents and the license;
(ii) The shipment is moving on a through bill of lading;
(iii) The carrier is not registered in, owned or controlled by, or
under charter or lease to a country in Country Group D:1 or E:2 (see
Supplement No. 1 to part 740 of the EAR), or a national of any of these
countries;
(iv) The carrier retains custody of the shipment until it is
delivered to the ultimate consignee; and
(v) The original bill of lading or air waybill first issued at the
port of export is delivered with the shipment to the ultimate
consignee;
(7) Change in address of purchaser or ultimate consignee if the new
address is located within the same country shown on the license; or
(8) Change in ECCN, unit of quantity, unit price, or wording of the
item
[[Page 12833]]
description (where necessary only for the purpose of conforming to an
official revision in the CCL). This does not cover an actual change in
the item to be shipped, or an increase in the price or quantity.
(d) Responsibility of the licensee. If a license is issued to you,
you become the licensee. The licensee will be held accountable for use
of the license, whether as a principal (exporting for your own account)
or as an agent (including an agent acting for the account of a foreign
principal who is not subject to the jurisdiction of the United States).
You, as the licensee, assume responsibility for effecting the export or
reexport, for proper use of the license, and for due performance of all
of the license's terms and conditions. The obligations arising under
the provisions of the EAA and the EAR are the same whether the license
application is submitted and issued in writing or electronically.
(e) Prohibited use of a license. No person convicted of a violation
of any statute specified in section 11(h) of the EAA, at the discretion
of the Secretary of Commerce, may apply for any license for a period up
to 10 years from the date of the conviction. See Sec. 766.25 of the
EAR.
(f) Quantity of commodities authorized. Unlike software and
technology, commodities will be approved with a quantity or dollar
value limit. The ``Unit'' paragraph within each CCL commodity entry
will list a specific ``Unit'' for those commodities controlled by that
entry. Any license resulting from a license application to export or
reexport commodities will be licensed in terms of the specified
``Unit''. If a commodity is licensed in terms of ``$ value'', the unit
of quantity commonly used in trade may also be shown on the license.
Though this unit may be shown on the approved license, the quantity of
commodities authorized is limited entirely by the total dollar value
shown on the approved license.
(g) License validity period. Licenses involving the export or
reexport of items will generally have a 24-month validity period,
unless a different validity period has been requested and specifically
approved by BXA. Exceptions from the 24-month validity period include,
license applications reviewed and approved as an ``emergency'' (See
Sec. 748.5 (g) of the EAR), license applications for items controlled
for short supply reasons, and Special Comprehensive Licenses.
Emergency licenses will expire no later than the last day of the
calendar month following the month in which the emergency license is
issued. Licenses for items controlled for short supply reasons will be
limited to a 12-month validity period. The expiration date will be
clearly stated on the face of the license. If the expiration date falls
on a legal holiday (Federal or State), the validity period is
automatically extended to midnight of the first day of business
following the expiration date. (See part 752 of the EAR for validity
periods for Special Comprehensive Licenses.)
(1) Extended validity period. Validity periods in excess of 24
months generally will not be granted. BXA will consider granting a
validity period exceeding 24 months when extenuating circumstances
warrant such an extension, however, no changes will be approved related
to any other particular on the license (e.g., parties to the
transaction, countries of ultimate destination, etc.). For example, an
extended validity period will generally be granted where the
transaction is related to a multi-year project, when production lead
time will not permit an export or reexport during the original validity
period of the license, when an unforeseen emergency prevents shipment
within the 24-month validity of the license, or for other similar
circumstances. A continuing requirement to supply spare or replacement
parts will not normally justify an extended validity period. Licenses
issued in accordance with the emergency clearance provisions contained
in Sec. 748.5(g) of the EAR will not be extended. See Sec. 752.9 of the
EAR for information relating to the extension of a Special
Comprehensive License.
(2) Request for extension. (i) The applicant must submit a letter
in writing to request an extension in the validity period of a
previously approved license. The subject of the letter must be titled:
``Request for Validity Period Extension'' and contain the following
information:
(A) The name, address, and telephone number of the requestor;
(B) A copy of the original license, with the license number,
validation date, and current expiration date legible; and
(C) Justification for the extension;
(ii) It is the responsibility of the applicant to ensure that all
applicable support documents remain valid and are in the possession of
the applicant. If the request for extension is approved, BXA will
provide the applicant with a written response.
(h) Specific types of licenses--(1) Licenses for temporary exports
or reexports. If you have been granted a license for the temporary
export or reexport of items and you decide not to return the items to
the United States, you must submit a license application requesting
authorization to dispose of the items. Except when the items are to be
used on a temporary basis at a new destination (and returned to the
United States after such use), you must ensure that your license
application is accompanied by all documents that would be required if
you had requested a license to export or reexport the same item
directly to the new destination.
(2) Intransit within the United States. If you have been issued a
license authorizing an intransit shipment (that does not qualify for
License Exception TUS) through the United States, your license will be
valid only for the export of the intransit shipment wholly of foreign
origin and for which a Transportation and Exportation customs entry or
an Immediate Exportation customs entry is outstanding.
(3) Intransit outside the United States. If you have been issued a
license authorizing unlading or transit through a country listed in the
General Prohibition Eight contained in Sec. 736.2(b)(8) of the EAR, and
you did not know the identity of the intermediate consignee at the time
of the original license application, you must notify BXA in writing
once you have ascertained the identity of the intermediate consignee.
Your notification must contain the original license number, and the
complete name, address, and telephone number of the intermediate
consignee. The written request must be submitted to BXA at the address
listed in Sec. 748.2(c) of the EAR.
(4) Replacement license. If you have been issued a ``replacement''
license (for changes to your original license that were not covered in
paragraph (c) of this section), you must attach the ``replacement''
license to the original, and retain both.
(i) Records. If you have been issued a license you must retain the
license, and maintain complete records in accordance with part 762 of
the EAR including any licenses (whether used or unused, valid or
expired) and all supporting documents and shipping records.
Sec. 750.8 Revocation or suspension of licenses.
(a) Revocation. All licenses for exports or reexports are subject
to revision, suspension, or revocation, in whole or in part, without
notice whenever it is known that the EAR have been violated or that a
violation is about to occur. BXA's Office of Exporter Services may
revoke any license in which a person who has been convicted of one of
the statutes specified in section 11(h) of the EAA, at the
[[Page 12834]]
discretion of the Secretary of Commerce, has an interest in the license
at the time of the conviction. It may be necessary for BXA to stop a
shipment or an export or reexport transaction at any stage in the
process (e.g., in order to prevent an unauthorized export or reexport).
If a shipment is already en route, it may be further necessary for BXA
to order the return or unloading of such shipment at any port of call
in accordance with the provisions of the EAA.
(b) Return of revoked or suspended licenses. If BXA revokes or
suspends a license, the licensee shall return the license immediately
upon notification that the license has been suspended or revoked. The
license must be returned to BXA at the address listed in Sec. 748.2(c)
of the EAR, Attn:'' Return of Revoked/Suspended License''. All
applicable supporting documents and records of shipments must be
retained by the licensee in accordance with the recordkeeping
provisions of part 762 of the EAR. If the licensee fails to return a
license immediately upon notification that it has been suspended or
revoked, BXA may impose sanctions provided for in part 764 of the EAR.
Sec. 750.9 Duplicate licenses.
(a) Lost, stolen or destroyed. If a license is lost, stolen or
destroyed, you, as the licensee, may obtain a duplicate of the license
by submitting a letter to the BXA at the address listed in
Sec. 748.2(c) of the EAR, Attention: Duplicate License Request''. You
must certify in your letter:
(1) That the original license ([number] issued to [name and address
of licensee]) has been lost, stolen or destroyed;
(2) The circumstances under which it was lost, stolen or destroyed;
and
(3) If the original license is found, the licensee will return
either the original or duplicate license to the BXA. Note that if
shipment was made against the original license, those shipments must be
counted against the duplicate license. If you are issued a duplicate
license you must retain the duplicate license in accordance with the
recordkeeping provisions of part 762 of the EAR.
(b) Hong Kong Trade Department. BXA will automatically issue a
duplicate license whenever the license lists a party in Hong Kong as
the intermediate consignee, or when Hong Kong is identified as the
country from which the reexport will take place. The duplicate license
will be labeled ``Duplicate for Hong Kong Trade Department''. This
duplicate must be forwarded to the reexporter or intermediate consignee
for submission to the Hong Kong Trade Department. The original license
must be retained on file by the licensee in accordance with the
recordkeeping provisions contained in part 762 of the EAR.
Sec. 750.10 Transfers of licenses for exports.
(a) Authorization. As the licensee, you may not transfer a license
issued for the export of items from the United States to any other
party, except with the prior written approval of BXA. BXA may authorize
a transfer of a license for export to a transferee who is subject to
the jurisdiction of the United States, is a principal party in
interest, and will assume all powers and responsibilities under the
license for the control of the shipment of the items out of the United
States. BXA will approve only one transfer of the same license and only
transfers of licenses to export items.
(b) How to request the transfer of licenses--(1) Letter from
licensee. You, as the licensee, must submit a letter in writing to
request a transfer of a license or licenses. The letter must contain
the following information:
(i) The reasons for the requested transfer;
(ii) Either a list of the outstanding license numbers or a
statement that all outstanding licenses in the name of the licensee are
to be transferred, and the total number of such outstanding licenses;
(iii) A list of all license applications for export to be
transferred that are pending with BXA, identifying the Application
Control Number for each, or other information that will assist in
identifying the pending license applications;
(iv) Name and address of the person you intend to transfer the
licenses and license applications to;
(v) The facts necessitating transfer;
(vi) A statement as to whether or not any consideration has been,
or will be, paid for the transfer; and
(vii) Identification by name of the legal document (certificate,
agreement, etc.) or other authority by which the new firm name is
legally established, the new corporation or firm created, or the assets
transferred and showing the effective date of such document and the
state where filed or recorded.
(2) Information from transferee. The person to whom you wish to
transfer your license(s) must provide you a signed letter, that must be
submitted with your request, containing the following:
(i) That the transferee is a principal party in interest in the
transaction covered by the license, or is acting as agent for a
principal party in interest;
(ii) That the transferee is subject to the jurisdiction of the
United States;
(iii) That the transferee assumes all powers and responsibilities
under the license for the control of the shipment of the items out of
the United States;
(iv) Whether any consideration has been, has not been, or will be
paid for the transfer;
(v) The name and address of the foreign principal in instances
where the transferee will make the export as an agent on behalf of a
foreign principal; and
(vi) If the license is to be transferred to a subsidiary or firm,
or if you transfer to the transferee all, or a substantial portion, of
your assets or business, the transferee must certify that the legal
authority changing the exporter imposes on the transferee the
responsibility to accept and fulfill the obligations of the transferor
under the transactions covered by the license; and
(vii) The following certification:
The undersigned hereby certifies that, if license number(s)
____________ is (are) transferred in accordance with my (our) request,
any and all documents evidencing the order covered by this (these)
license(s) will be retained and made available upon request in
compliance with the recordkeeping provisions contained in Part 762 of
the Export Administration Regulations. The undersigned further
certifies compliance with all requirements of the Export Administration
Regulations regarding these licenses.
(c) Notification of transfer and recordkeeping. Unless instructed
otherwise by BXA, you must retain the license(s) pending notification
by the BXA of the action taken. If the request is approved, you must
forward the license(s) to the transferee and the validated letter
received from BXA authorizing the transfer. If the transfer request is
not approved, the license(s) must either be returned to BXA or used by
you if you so choose and have retained the legal and operational
capacity fully to meet the responsibilities imposed by the license(s).
If your initial request is returned by BXA for additional information,
after obtaining the necessary information you may resubmit your
request.
Sec. 750.11 Shipping tolerances.
(a) Applicability and use of shipping tolerances. Under some
circumstances, you may use a license issued for the export of items
from the United States to export more than the quantity or value shown
on that license. This additional amount is called a shipping tolerance.
This section tells you, as the licensee, when you may take advantage of
a shipping tolerance and the amount
[[Page 12835]]
of shipping tolerance you are permitted to use.
(1) If you have already shipped the full amount approved on your
license, you may not use this shipping tolerance provision. No further
shipment may be made under the license.
(2) The amount of shipping tolerance you are permitted is based on
the ``Unit'' specified for the item you want to export in the
applicable ECCN on the CCL (see Supplement No. 1 to part 774 of the
EAR). You must calculate shipping tolerance based on the applicable
``Unit'' whether that be Number, Dollar Value, or Area, Weight, or
other Measure. You may not use any other unit that may appear on your
license.
(b) Calculating shipping tolerances. There are three basic rules,
one for items licensed by ``Dollar Value'', one for items licensed by
``Number'', and another for items licensed by ``Area, Weight or other
Measure''.
(1) Items licensed by ``Dollar Value''. If the ``Unit'' paragraph
in the ECCN applicable to your item reads ``Sec. value'' or ``in
Sec. value'', there is no shipping tolerance. You may not ship more
than the total dollar value stated on your license.
(2) Items licensed by ``Number''. If the ``Unit'' paragraph in the
ECCN applicable to your item reads ``Number'' or ``in Number'', there
is no shipping tolerance with respect to the number of units. However,
the value of all of your shipments under one license may exceed the
total dollar value stated on that license by up to 25%.
(3) Items licensed by ``Area, Weight or Measure''. If the ``Unit''
paragraph in the ECCN applicable to your item reads ``kilograms'' or
``square meters'' or some other unit of area, weight or measure, your
shipment may exceed the unshipped balance of the area, weight or other
measure listed on your license by up to 10% and the total dollar value
shown on your license by up to 25%, unless;
(i) Your license stipulates a specific shipping tolerance; or
(ii) Your item is controlled for short supply reasons and a smaller
tolerance has been established. (See part 754 of the EAR).
(c) Examples of shipping tolerances.--(1) A license authorizes the
export of 100,000 kilograms of an item controlled by an ECCN where the
``Unit'' is stated as ``kilograms'', the total cost of which is
$1,000,000:
(i) One shipment. If one shipment is made, the quantity that may be
exported may not exceed 110,000 kg (10% tolerance on the unshipped
Area, Weight, or Measure balance), and the total cost of that one
shipment may not exceed $1,250,000:
$1,000,000.. (the total value shown on the license)
+250,000.... (25% of the total value shown on the license)
-------------
$1,250,000..
(ii) Two shipments. If the first shipment is for 40,000 kg (valued
at $400,000), the second shipment may not exceed 66,000 kg (10% of the
unshipped balance of 60,000 kg (6,000 kg) plus the unshipped balance),
and the total cost of the second shipment shall not exceed $850,000:
$600,000.... (the value of the unshipped balance of 60,000 kg)
+250,000.... (25% of the original total value shown on the license)
-------------
$850,000....
(iii) Three shipments. If the first shipment is for 40,000 kg
(valued at $400,000) the second shipment is for 20,000 kg (valued at
$200,000), the third shipment may not exceed 44,000 kg (10% of the
unshipped balance of 40,000 kg (4,000 kg) plus the unshipped balance),
and the total cost of the third shipment can not exceed $650,000:
$400,000.... (the value of the unshipped balance of 40,000 kg)
+250,000.... (25% of the original total value on the license)
-------------
$650,000....
(2) A license authorizes the export of an item controlled by an
ECCN where the ``Unit'' is stated as ``$ value'', the total cost of
which is $5,000,000. There is no shipping tolerance on this license
because the items are controlled by an ECCN where ``$ value'' is the
stated ``Unit''.
(3) A license authorizes the export of 10 pieces of equipment
controlled by an ECCN where the ``Unit'' is stated as ``Number'', with
a total value of $10,000,000 and the export of parts and accessories
covered by that same entry valued at $1,000,000:
(i)(A) If one shipment is made, the quantity of equipment that may
be exported may not exceed 10 pieces of equipment because there is no
shipping tolerance on the ``number'' of units. That one shipment of
equipment may not exceed $12,500,000:
$10,000,000. (the total value shown on the license)
+2,500,000.. (25% of the total value shown on the license)
-------------
$12,500,000.
(B) If the one shipment includes parts and accessories, those parts
and accessories may not exceed $1,000,000 because there is no shipping
tolerance on any commodity licensed in terms of dollar value.
(ii)(A) If the first shipment is for 4 pieces of equipment valued
at $4,000,000, the second shipment may not exceed 6 pieces of equipment
(no tolerance on ``number'') valued at no more than $8,500,000:
$6,000,000.. (the value of the unshipped 6 pieces).
+2,500,000.. (25% of the original total value shown on the license).
-------------
$8,500,000..
(B) If the first shipment includes $300,000 of parts and
accessories, the second shipment may not exceed $700,000 of parts and
accessories because there is no shipping tolerance on any commodity
licensed in terms of dollar value.
(iii)(A) If the first shipment is for 4 pieces of equipment valued
at $4,000,000 and the second shipment is for 3 pieces of equipment
valued at $3,000,000, the third shipment may not exceed 3 pieces of
equipment (no tolerance on ``number'') valued at no more than
$5,500,000:
$3,000,000.. (the value of the unshipped 3 pieces).
+2,500,000.. (25% of the original value shown on the license),
-------------
$5,500,000..
(B) If the first shipment includes $300,000 of parts and
accessories and the second shipment includes another $300,000, the
third shipment may not exceed $400,000 because there is no shipping
tolerance on commodities licensed in terms of dollar value.
PART 752--SPECIAL COMPREHENSIVE LICENSE
Sec.
752.1 Scope.
752.2 Eligible activities.
752.3 Eligible items.
752.4 Eligible countries.
752.5 Steps you must follow to apply for an SCL.
752.6 Reexports.
752.7 Direct shipment to customers.
752.8 SCL application review process.
752.9 Action on SCL applications.
752.10 Changes to the SCL.
752.11 Internal Control Programs.
752.12 Recordkeeping requirements.
752.13 Inspection of records.
752.14 System reviews.
752.15 Export clearance.
752.16 Administrative actions.
752.17 BXA mailing addresses.
[[Page 12836]]
Supplement No. 1 to Part 752: Instructions for Completing Form BXA-
748P, Multipurpose Application, for Requests for Special Comprehensive
Licenses
Supplement No. 2 to Part 752: Instructions for Completing Form BXA-
748P-A, Item Annex
Supplement No. 3 to Part 752: Instructions for Completing Form BXA-752,
Statement by Consignee in Support of Special Comprehensive License
Supplement No. 4 to Part 752: Instructions for Completing Form BXA-752-
A, Reexport Territories
Supplement No. 5 to Part 752: Instructions for Completing Form BXA-
748P-B End-User Appendix
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. 752.1 Scope.
(a)(1) Introduction. In this part, references to the EAR are
references to 15 CFR chapter VII, subchapter C. This part describes the
provisions of the Special Comprehensive License (SCL). You may apply
for an SCL, when appropriate, in lieu of a license described in part
748 of the EAR, or a License Exception described in part 740 of the
EAR, for multiple exports and reexports of items subject to the EAR.
The SCL provides authorization to make specified exports and reexports
that are otherwise prohibited by General Prohibitions One, Two, and
Three described in part 734 of the EAR. The existence of an SCL does
not supersede an exporter's obligation to request a separate license as
may be required by part 744 of the EAR. Because the Bureau of Export
Administration (BXA) does not review each individual transaction
authorized by an SCL, parties to the SCL must have the mechanisms in
place to ensure that each export and reexport made under an SCL meets
all the terms and conditions of the license and are in accordance with
all applicable provisions of the EAR. It is through the design and
effective implementation of an Internal Control Program (ICP) that the
SCL holder and the SCL consignee (referred to as ``consignee'' for
purposes of this part) assure that exports and reexports are not made
contrary to the EAR.
(2) Definitions. (i) SCL holder. As used in this part, ``SCL
holder'' is that party approved on an SCL to perform activities
approved under the SCL.
(ii) SCL consignee. As used in this part, ``SCL consignee'' or
``consignee'' means any party authorized to receive items under the SCL
and named as a consignee on an approved Form BXA-752, Statement by
Consignee in Support of Special Comprehensive License.
(b) ICP requirement. To qualify for an SCL, you must develop an
ICP. Section 752.11 of this part includes a general description of the
elements of the ICP, and guidance on which elements your company must
implement before making shipments under the SCL. The elements of the
ICP your company will develop reflect the complexity of the activities
authorized under the SCL, the countries and items involved, and the
relationship between the SCL holder and the approved consignees. BXA
may require you to include in your ICP any combination of elements,
depending upon the nature of your SCL application. During your pre-
application consultation required by Sec. 752.5(a)(1), BXA will provide
you guidance on which elements you must implement.
Sec. 752.2 Eligible activities.
(a) Possible authorizations. Under the SCL, BXA may authorize you
to perform any number of activities, which can be grouped under the
general categories of ``service'', ``end-user'', ``distribution'' and
``other'' activities. Examples of the general categories include:
(1) Service activities. Exporting items subject to the EAR as spare
and replacement parts for servicing or stocking.
(2) End-user activities. Exporting and reexporting items subject to
the EAR for use as capital equipment.
(3) Distribution activities. Exporting and reexporting items
subject to the EAR for the purpose of resale and reexport by
consignees.
(4) Other activities. Other activities not included in paragraphs
(a)(1) through (a)(3) of this section may be authorized by BXA under
the SCL on a case-by-case basis.
(b) Prohibited activities. The general prohibitions described in
Sec. 736.2(b)(4) through (10) of the EAR apply to all exports and
reexports by, and conduct of, all parties approved on your SCL, unless
you are specifically authorized under the SCL to perform such
activities, or the particular activity otherwise qualifies for a
License Exception described in part 740 of the EAR.
Sec. 752.3 Eligible items.
(a) All items subject to the EAR, including items eligible for
License Exceptions described in part 740 of the EAR, are eligible for
export and reexport under the SCL, except:
(1) Items controlled for missile technology reasons that are
identified by the letters MT in the applicable ``Reason for Control''
paragraph on the Commerce Control List (CCL) (see Supplement No. 1 to
part 774 of the EAR);
(2) Items controlled by ECCNs 1C351, 1C352, 1C353, 1C354, 1E001,
1E351, 1E391, 2B352, and 2E301 on the CCL that can be used in the
production of biological weapons;
(3) Items controlled by ECCNs 1C350, 1D390, 1E001, 1E350, 1E391,
2B350, and 2B351 on the CCL that can be used in the production of
chemical weapons precursors and chemical warfare agents, to
destinations listed in Country Group D:3 (see Supplement No. 1 to part
740 of the EAR);
(4) Items controlled for short supply reasons that are identified
by the letters ``SS'' in the applicable ``Reason for Control''
paragraph on the CCL;
(5) Maritime (civil) nuclear propulsion systems or associated
design or production software and technology identified in Sec. 744.5
of the EAR;
(6) Communications intercepting devices controlled by ECCN 5A980 on
the CCL;
(7) Items specifically identified as ineligible by BXA on your
approved SCL; and
(8) Additional items consistent with international commitments.
(b) Items controlled for nuclear nonproliferation reasons that are
identified by the letters NP in the applicable ``Reason for Control''
paragraph on the CCL may be authorized on a case-by-case basis provided
controls are in place to screen for proscribed end-users or end-uses.
Sec. 752.4 Eligible countries.
(a) General provisions. All countries are eligible under the SCL
except:
(1) Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria.
(2) Other countries that BXA may designate on a case-by-case basis
as ineligible to receive items under the SCL.
(b) Servicing prohibitions. Under the SCL, you may not service any
item when you know that the item is owned or controlled by, or under
the lease or charter of, entities in countries identified in paragraphs
(a)(1) and (a)(2) of this section or any national of such countries.
Sec. 752.5 Steps you must follow to apply for an SCL.
(a) Step One: Establish applicant reliability--(1) Pre-application
consultation. To apply for an SCL, BXA must determine your reliability
as a potential SCL holder. BXA usually does this through consultation
with company officials and a review of the criteria identified in
paragraph (a)(2) of this
[[Page 12837]]
section. To determine whether your company requires a consultation
before you apply for an SCL, contact BXA at the address, phone, or
telefacsimile numbers included in Sec. 752.17 of this part.
(2) Criteria for determining eligibility. BXA will review the
following criteria to help determine SCL holder eligibility:
(i) Evidence of past licensing history and projected, continuous
large volume exports;
(ii) Reliability of all parties relative to their compliance with
the EAR;
(iii) Commitment of all parties of the necessary resources to
implement and maintain an adequate ICP; and
(iv) Evidence of all parties knowledge of all provisions of the
EAR.
(b) Step Two: Establish consignee reliability--(1) Requirements.
You must make an initial determination of the reliability of all
consignees that are listed on your application for an SCL, based upon
the criteria described in paragraph (b)(2) of this section.
(2) Determining reliability. The criteria that you should take into
consideration include, but are not limited to, the following:
(i) Criteria. (A) The proposed consignee has a satisfactory record
established through BXA pre-license checks, or extensive experience as
a consignee under any license issued by BXA;
(B) The proposed consignee is a wholly-owned subsidiary or a
controlled-in-fact affiliate of the applicant or of a consignee that is
already approved on an SCL. See part 772 of the EAR for a definition of
controlled-in-fact; or
(C) You have evidence of an established, on-going business
relationship with the proposed consignee.
(ii) Exception. The provisions of paragraph (b)(2)(i) of this
section do not preclude the authority of BXA to determine the
reliability and eligibility of a proposed consignee. BXA may, based
upon any negative information on the proposed consignees, deny a
proposed consignee.
(c) Step Three: Prepare your documentation. Complete Form BXA-748P,
Multipurpose Application, Form BXA-748P-A, Item Appendix, Form BXA-
748P-B, End-User Appendix, an ICP, a comprehensive narrative statement,
Form BXA-752, Statement by Consignee in Support of Special
Comprehensive License, Form BXA-752-A, Reexport Territories, and all
applicable certifications. Submit this documentation to BXA at one of
the addresses included in Sec. 752.17 of this part.
(1) Form BXA-748P, Multipurpose Application, and Form BXA-748P-A,
Item Appendix. You must complete Form BXA-748P and Form 748P-A
according to the instructions found in Supplement Nos. 1 and 2 of this
part.
(2) Form BXA-748P-B, End-User Appendix. You must identify end-users
on Form BXA-748P-B if you are requesting approval to export or reexport
items controlled for nuclear nonproliferation or chemical and
biological control reasons.
(3) ICP. You must provide a copy of your proposed ICP as required
by Sec. 752.11 of this part. You must indicate whether any of the
elements of the ICP will not be implemented and explain why these
elements were deemed inapplicable. Existence of a properly constructed
ICP will not relieve you of your responsibility to comply with
requirements of all applicable regulations pertaining to your SCL;
(4) Comprehensive narrative statement. Prepare a comprehensive
narrative statement on your company letterhead that includes the
following information:
(i) An overview of the total business activity that will be
performed by you and all other parties who will receive items under the
authority of your SCL, including consignees, subcontractors, and
vessels;
(ii) A description of the nature and anticipated volume of regular
and repetitive transactions proposed by consignees under the license;
(iii) An explanation of the relationship between the parties to the
application, such as affiliate, subsidiary, or parent, etc;
(iv) A certification that you will implement, upon approval of the
application by BXA, an ICP that incorporates all applicable elements
listed in Sec. 752.11 of this part and any additional elements as
required by BXA upon approval of the SCL; and
(v) Information on whether proposed consignees are end-users or
will reexport the items received under your SCL. You must describe the
proposed consignee's activities completely to determine the appropriate
ICP elements that you and your consignees must implement.
(5) Form BXA-752, Statement of Consignee in Support of Special
Comprehensive License. This Form is completed by each consignee. You
must submit one completed, signed, original Form BXA-752 for each
proposed consignee on your SCL application. See Supplement No. 3 to
this part for instructions on completing Form BXA-752. Form BXA-752 is
not required if the proposed consignee is both an end-user and a
``foreign government agency'' as defined in part 772 of the EAR.
(6) Form BXA-752-A, Reexport Territories. You must complete Form
BXA-752-A, and attach it to the appropriate Form BXA-752, whenever
Blocks 8B, 8C, 8E, and/or 8F are selected on Form BXA-752. See the
instruction found in Supplement No. 3 to this part. Form BXA-752-A is
not required if the proposed consignee is both an end-user and a
foreign government agency (see part 772 of the EAR for a definition of
foreign government agency).
(7) Consignee certifications. Each consignee must provide certain
certifications on company letterhead that is signed by the consignee.
Attach certifications to the appropriate Form BXA-752. Each consignee
must certify that:
(i) They will implement, upon approval of the SCL by BXA, an ICP
that incorporates all applicable elements listed in Sec. 752.11 of this
part and any additional elements as required by BXA upon approval of
your SCL. If certain elements of an ICP will not be included, state the
reasons for that determination;
(ii) They will comply with all provisions of the EAR, including the
recordkeeping provisions of part 762 of the EAR, all applicable system
review requirements of Sec. 752.14 of this part, and the reexport
restrictions of Sec. 752.6 of this part; and
(iii) They will make available for inspection, upon request by BXA,
all records required by Sec. 752.12 of this part and part 762 of the
EAR.
(8) Additional certifications. (i) Temporary exports. Proposed
consignees that plan to exhibit or demonstrate items in countries other
than those in which they are located or are authorized under an SCL, an
approved Form BXA-752, or a License Exception described in
Sec. 740.4(a)(2)(iii) of the EAR may obtain permission to do so by
including the following additional certification on company letterhead,
and attaching it to Form BXA-752.
I (We) request authorization to reexport temporarily, for
exhibit or demonstration in countries eligible to receive items
under the Special Comprehensive License. The items exported will be
retained under my (our) ownership and control, and will be returned
by me (us) to (name destination) promptly after their exhibit or
demonstration abroad, and in no case later than one year after the
date of reexport, unless other disposition is authorized in writing
by the Bureau of Export Administration.
(ii) Chemicals and chemical and biological equipment certification.
If you are requesting authority to export chemicals or chemical and
biological
[[Page 12838]]
equipment eligible for the SCL (items controlled by ECCNs 1C351, 1C352,
1C353, 1C354, 1D390, 1E001, 1E350, 1E351, 1E391, 2B350, 2B351, 2B352,
and 2E301 (see Supplement No. 1 to part 774 of the EAR), all consignees
not located in country group A:3 (see Supplement No. 1 to part 740 of
the EAR) must include the following certification on company
letterhead:
No chemicals or chemical or biological equipment received under
this Special Comprehensive License will be transferred, resold, or
reexported to a destination that requires a license, unless the new
end-user has been approved by the Bureau of Export Administration,
and in no case will the items be transferred, resold, or reexported
to a party who is not the end-user.
(iii) Nuclear proliferation certification. If you are requesting
the export or reexport under the EAR of items controlled for nuclear
nonproliferation reasons described in Sec. 744.2 of the EAR, prior to
submitting an SCL application, you must obtain a signed written
statement from the proposed consignee(s) and end-users certifying the
following:
(A) The items to be exported or replicas thereof (``replicas''
refer to items produced abroad based on physical examination of the
items originally exported, matching it in all critical design and
performance parameters), will not be used in any of the activities
described in Sec. 744.2 of the EAR; and
(B) Written authorization will be obtained from BXA prior to
transferring or reexporting the items, unless they are destined to
Canada or would not require a license to the new country of
destination.
Sec. 752.6 Reexports.
(a) Authorized reexports. All consignees may reexport items without
approval from BXA under any one of the following circumstances, unless
otherwise specifically excluded by the provisions of the EAR or by a
condition placed on your SCL.
(1) Reexports that qualify for a License Exception authorized by
part 740 of the EAR;
(2) Reexports to destinations approved by BXA through validation of
Form BXA-752 and/or Form BXA-752-A according to the terms stated on the
Form BXA-752 or BXA-752-A; or
(3) Reexports of items approved under an SCL to and among other
consignees approved on the same SCL, provided that the items are
eligible to the new destination in accordance with your approved SCL
and Sec. 752.3 of this part.
(b) Prohibitions. You are prohibited from the following activities
without specific authorization from BXA:
(1) Transferring, reselling, or reexporting under your SCL any
chemicals or chemical and biological equipment (ECCNs identified with
the letters CB in the applicable ``Reason for Control'' paragraph on
the CCL (see Supplement No. 1 to part 774 of the EAR); and
(2) Reexporting under your SCL items identified by the letters NP
in the applicable ``Reason for Control'' paragraph on the CCL to
destinations not listed in country group A:4 (see Supplement No. 1 to
part 740).
(c) Sourcing. Consignees who obtain U.S.-origin items abroad that
are eligible for the SCL but that are subject to General Prohibitions
One, Two, or Three (see part 734 of the EAR) may reexport them under
the authority of your SCL, provided that they are reexported in
accordance with the ICP required by Sec. 752.11 of this part, and any
other applicable conditions or reexport restriction placed on your SCL
by BXA. Either the SCL holder or the consignee through the SCL holder
must submit the sourcing request for reexport of items on Form BXA-752.
Sec. 752.7 Direct shipment to customers.
(a) General authorization. (1) Upon request by a consignee, an SCL
holder or another consignee approved under the same SCL is authorized
to deliver products directly to the requesting consignee's customer in
either:
(i) The requesting consignee's country; or
(ii) Another country authorized to receive items under the
requesting consignee's validated Form BXA-752-A.
(2) The SCL holder or consignee making direct shipments authorized
by this section must implement an ICP containing procedures governing
such shipments.
(3) SCL holders and consignees using the direct shipment provision
may invoice the shipments directly to the requesting consignee's
customers if copies of applicable invoices are maintained by both the
shipping party and requesting consignee.
(b) Procedures--(1) Exports by an SCL holder. The SCL holder may
make a direct shipment by entering on the Shipper's Export Declaration
the name and address of the customer as ultimate consignee and adding
the notation ``by order of (name and address of consignee requesting
the direct shipment)''. The notation must appear below the item
description and must cite the SCL number followed by the three digit
number of the consignee requesting the ``by order of'' shipment.
(2) Reexports by a consignee. An approved consignee may make a
direct reexport shipment to a customer of another approved consignee on
the same SCL by showing on the commercial invoice the name and address
of the customer as ultimate consignee and adding the notation ``by
order of (name and address of consignee requesting the direct
shipment).''
Sec. 752.8 SCL application review process.
(a) Scope. Under an SCL, you are authorized to make multiple
exports and reexports without review and approval of each individual
transaction by BXA. To approve an SCL, BXA must be satisfied that the
persons benefiting from this license will adhere to the conditions of
the license and the EAR, and that approval of the application will not
be detrimental to U.S. national security, nonproliferation, or foreign
policy interests. In reviewing and approving a specific SCL request,
BXA retains the right to limit the eligibility of items or to prohibit
the export, reexport, or transfer of items under the SCL to specific
firms, individuals, or countries.
(b) Elements of review. To permit BXA to make such judgments, BXA
will thoroughly analyze your past export and reexport transactions,
inspect your export and reexport documents, and interview company
officials of both the applicant and the consignees, as necessary. If
BXA cannot verify that an appropriate ICP will be implemented upon
approval of the SCL by BXA, or establish the reliability of the
proposed parties to the application, it may deny the application, or
modify it by eliminating certain consignees, items, countries, or
activities.
(c) Order requirement. You do not need to have in your possession
an order from the proposed consignee at the time you apply for an SCL.
However, evidence of a consignee's firm intention to place orders on a
continuing basis is required.
(d) Criteria for review. BXA will consider the following factors
during the processing of your SCL application:
(1) The specific nature of proposed end-use and end-uses;
(2) The significance of the export in terms of its contribution to
the design, development, production, stockpiling, or use of nuclear or
chemical or biological weapons, or missiles;
(3) The types of assurances against design, development,
production, stockpiling, or use of nuclear or chemical and biological
weapons, or missiles that are included in the ICP;
[[Page 12839]]
(4) The nonproliferation credentials of the importing country;
(5) Corporate commitment of the resources necessary to implement
and maintain an adequate ICP;
(6) Evidence of past licensing history of the applicant and
consignees, and projected, continuous large volume exports and/or
reexports;
(7) Reliability of all parties;
(8) Information on all parties' compliance with the provisions of
the EAR; and
(9) All parties' knowledge of the EAR.
(e) Application processing time-frames. Upon receiving an SCL
application, BXA may review the application for up to two weeks to
determine whether the SCL application is complete. When all
documentation requirements are met, BXA will register the application.
After the date of registration, the SCL application will be processed
according to the procedures described in part 750 of the EAR.
Sec. 752.9 Action on SCL applications.
(a) Approval of SCL applications.--(1) Validity period. SCLs are
valid for four years from the date of approval.
(2) Extension of validity period. You may request an extension of
your valid SCL for an additional four years, but such requests must be
received by BXA at least 30 days prior to the expiration of your SCL.
If approved, Form BXA-748P and your letter requesting an extension will
be validated and returned to you, extending the validity period for
four years. No further extensions will be approved. A new application
and support documentation is required at the end of that eight-year
period. To apply for an extension, complete Form BXA-748P by completing
Blocks 1, 2, 3 and 4. Mark ``Special Comprehensive License'' in Block 5
and ``change'' in Block 6. Include your SCL number in Block 9, and
indicate in Block 24 that you are requesting an extension to your SCL.
Submit the completed Form BXA-748P and a statement on company
letterhead indicating:
(i) That you continue to abide by the provisions and conditions of
the SCL; and
(ii) Any changes to the original SCL that you are requesting (see
Sec. 752.10 of this part for procedures on changed circumstances).
(3) Support documentation. (i) General information. BXA will
validate all approved support documentation with the Department of
Commerce seal and date of validation.
(ii) Form BXA-752, Form BXA-752-A, and Form BXA-748P-B. With the
approved SCL, you will receive two validated copies of each approved
Form BXA-752, Statement by Consignee in Support of Special
Comprehensive License and, if applicable, Form BXA-752-A, Reexport
Territories, and Form BXA-748P-B, End-User Appendix. You must retain
one copy, and send one copy to the approved consignee. You must also
attach a letter to each approved Form BXA-752 that includes each of the
following elements:
(A) A description of all recordkeeping requirements of the EAR
applicable to the activities of the consignee;
(B) Information on any applicable reexport restrictions on items
received by the consignee under the SCL;
(C) A description or copy of Sec. 752.16 of this part, listing
administrative actions that may be taken for improper use of, or
failure to comply with, the SCL and its required procedures;
(D) A description of any special conditions or restrictions on the
license applicable to the consignee, including approved lists of
customers, countries, and items, when required;
(E) A description of the elements of the SCL holder's ICP relevant
to the SCL consignee;
(F) A copy of the high risk customer profile contained in
Sec. 752.11(c)(13)(i) of this part, when required;
(G) A copy of the Denied Persons List currently in effect and
notification that you will send the consignee regular updates to this
list;
(H) A notice that the consignee, in addition to other requirements,
may not sell or otherwise dispose of any U.S. origin items when it
knows that the items will be used in the activities prohibited by part
744 of the EAR;
(I) A requirement that the consignee acknowledge, in writing,
receipt of this letter of transmittal outlining their obligations under
the SCL, and certify that it will comply with all of the requirements,
including implementation of an ICP if required by Sec. 752.11 of this
part; and
(J) A description of any special documentation requirements for
consignees reexporting items to destinations having such requirements.
(4) Special license conditions. BXA may place special conditions on
your SCL, such as restrictions on eligible items, countries, end-uses,
end-users or activities, or a requirement that certain sales or
transfers of items under the SCL are subject to prior reporting to BXA.
Such special conditions will be listed on your SCL or in a letter from
BXA to the SCL holder. You must inform all relevant consignees of all
license conditions prior to making any shipments under the SCL.
(b) Denial of SCL applications. (1) If BXA intends to deny your SCL
application, you will be notified and have opportunity to respond
according to the procedures in Sec. 750.6 of the EAR.
(2) BXA may at any time prohibit the sale or transfer of items
under the SCL to specified individuals, companies, or countries. In
such cases, the SCL holder must inform all consignees, and apply for a
license described in part 748 of the EAR for subsequent transactions
with such excluded parties.
(3) If a consignee is not approved, Form BXA-752 will be returned
to the SCL holder with a letter explaining the reason for denial.
(4) If a particular destination is not approved, it will be removed
from the appropriate Form BXA-752-A.
(c) Return without action. BXA may determine to return the SCL
application without action. Under such circumstances, the application
and all related documents will be returned to you along with a letter
stating the reason for return of the license application, explaining
the deficiencies or additional information required for
reconsideration, or advising you to apply for a license described in
part 748 of the EAR. BXA may return your entire application or merely
documents pertaining to a specific consignee request.
Sec. 752.10 Changes to the SCL.
(a) General information. Certain changed circumstances regarding
the SCL require prior approval from BXA before you make such changes,
while others require only notification to BXA.
(b) Changes requiring prior written approval from BXA. The
following circumstances require prior written approval by BXA. Such
requests must be submitted by the SCL holder, and changes are not
effective until BXA approves the request. Upon approval of a change
described in this paragraph, BXA will return to the SCL holder a
validated copy of the request, indicating any changes that may have
been made to your request, or any special conditions that may have been
imposed.
(1) Change of SCL holder company name. You must submit to BXA Form
BXA-748P, Multipurpose Application, for any change in the name of the
SCL holder company. Complete Blocks 1, 2, 3, and 4. Mark ``Special
Comprehensive License'' in Block 5, and ``change'' in Block 8. In Block
9, include your SCL number, and briefly indicate the purpose of the
change. Enter the new information in the relevant Blocks, and complete
Block 25. The SCL holder must send a copy of the validated Form BXA-
748P to each approved consignee, and advise them to attach the copy of
[[Page 12840]]
the validated form to their validated Form BXA-752.
(2) Change in consignee name or address. You must submit to BXA
Form BXA-752, Statement by Consignee in Support of Special
Comprehensive License, when requesting a change in consignee name, or
if the consignee moves out of the country. The consignee must complete
Block 2, mark ``change an existing consignee'' in Block 3, and provide
the new consignee information in Block 4. Also complete Blocks 10 and
11.
(3) Addition of new consignees. You must submit to BXA Form BXA-752
for requests to add consignees to an SCL. Complete Form BXA-752 in
accordance with the instructions in Supplement No. 1 to this part,
marking ``Add a New Consignee'' in Block 3. Use Block 9 to describe the
proposed consignee's role in the activities authorized by the SCL. Form
BXA-752 is not required if the proposed new consignee is a foreign
government agency and the items will not be reexported. If Form BXA-752
is not required, the SCL holder may submit the request to add the
foreign government agency to the SCL on company letterhead. You must
include the proposed consignee's complete street address.
(4) Change in reexport territories. You must submit to BXA Form
BXA-752 and Form BXA-752-A to add a country to a consignee's approved
reexport territory. Upon approval of change in reexport territory, BXA
will return to the SCL holder two validated copies of Form BXA-752 and
Form BXA-752-A, Reexport Territories, along with any special conditions
that may have been imposed.
(i) Form BXA-752. Complete Block 3 by marking ``Change an Existing
Consignee''. In Block 4, enter the consignee name and consignee number.
In Block 5, enter the SCL number. In Block 9, enter ``to add a country
to the reexport territory''. Complete Blocks 10 and 11.
(ii) Form BXA-752-A. Complete Blocks 2 and 3. Mark each country
that you are adding to your reexport territory.
(5) Adding items to your SCL. The following procedures apply to
requests to add items to your SCL. Upon approval, BXA will send you a
validated Form BXA-752 and, if applicable, Form BXA-748P-A. The SCL
holder must send a copy of each validated form to all applicable
consignees and attach a copy to their Form BXA-752.
(i) Adding one item. You must submit to BXA Form BXA-748P to
request the addition of a single item to your SCL. Complete Blocks 1,
2, 3 and 4. Mark ``Special Comprehensive License'' in Block 5, and
``change'' in Block 8. Include your SCL number in Block 9 and state
either ``add ECCN'' or ``delete ECCN''. Complete items (a) and (j) in
Block 22, and Block 25.
(ii) More than one item. You must submit to BXA Form BXA-748P and
Form BXA-748P-A to request to add more than one item to your SCL.
Complete Form BXA-748P according to the instructions in paragraph
(b)(5)(i) of this section. Complete Form BXA 748P-A by including the
``Application Control Number'' (found on form BXA-748P) in Block 1.
Complete Block 21 and Block 24, if needed, to describe any special
circumstances (i.e. the new item will only be exported to specific
consignees and will not be reexported).
(6) Changes to end-users. You must submit to BXA Form BXA-752 and
Form BXA-748P-B to add end-users to consignee authorizations. Upon
approval by BXA, BXA will return to the SCL holder two validated copies
of Form BXA-752 and Form BXA-748P-B, which will include any special
conditions that may have been imposed. You must send one copy of Forms
BXA-752 and BXA-748P to the relevant consignee.
(i) Form BXA-752. On Form BXA-752, complete Block 3.B., ``Change an
Existing Consignee''. Include the consignee number in Block 4. Include
the SCL number in Block 5. In Block 9, type ``To add an End-User''.
Complete Blocks 10 and 11.
(ii) Form BXA-748P-B. On Form BXA-748P-B, include the SCL consignee
number in Block 1. Complete Block 19. Cite the end-user requirement or
condition (i.e. ``This end-user is requested in compliance with
Sec. 752.5(c)(8)(ii) of the EAR, which requires prior authorization to
reexport chemicals under the SCL''. Also list the items (by ECCN and
description) that the end-user will receive and for what purpose, if
approved by BXA.
(c) Changes that do not require prior approval from BXA. The
following changes regarding your SCL do not require prior approval from
BXA, however, such changes must be submitted on the appropriate forms
no later than 30 days after the change has occurred. BXA will validate
the forms, and return one copy to you for your records.
(1) Change of SCL holder address, export contact information, or
total value of license. You must submit to BXA Form BXA-748P,
Multipurpose Application, for any change in the SCL holder's address,
export contact information, or total value of the license. Complete
Blocks 1, 2, 3, and 4. Mark ``Special Comprehensive License'' in Block
5, and ``change'' in Block 8. In Block 9, include your SCL number, and
briefly indicate the purpose of the change. Enter the new information
in the relevant Blocks. Complete Block 25. The SCL holder must send a
copy of the validated Form BXA-748P to each approved consignee, and
advise them to attach the copy of the validated form to their validated
Form BXA-752.
(2) Deletion, suspension or revocation of consignees. You must
submit to BXA Form BXA-748P if you remove a consignee from your SCL.
Complete Blocks 1, 2, 3 and 4, mark ``Special Comprehensive License''
in Block 5, and ``change'' in Block 8. Indicate your SCL number in
Block 9, and complete Block 14. In Block 24, indicate that you are
removing a consignee(s) from your SCL, and indicate the name and
address of the consignee as it appears on the original Form BXA-752.
Also include the consignee number that was assigned when your SCL was
approved by BXA. You must notify all remaining consignees if any
consignee is no longer eligible to receive items under the SCL.
(3) Changes in ownership or control of the SCL holder or consignee.
(i) SCL holder. You must notify BXA of changes in ownership or control
by submitting to BXA Form BXA-748P. Complete Blocks 1, 2, 3 and 4, mark
``Special Comprehensive License'' in Block 5, and indicate the SCL
number in Block 9. Include the SCL holder information in Block 14, and
describe the change in Block 24, indicating the circumstances
necessitating the change (i.e., mergers), and changes in persons who
have official signing authority. Also complete Block 25.
(ii) Consignee. You must notify BXA of changes in ownership or
control of the consignee company by submitting to BXA Form BXA-752.
Complete Block 2, mark ``change an existing consignee'' in Block 3.B.,
and complete Blocks 4 and 5. In Block 9, describe the change,
indicating the circumstances necessitating the change (i.e. mergers),
and changes in persons who have official signing authority. Complete
Blocks 10 and 11.
(4) Remove reexport territories. If you remove a country from a
consignee's approved reexport territory, you must submit to BXA Form
BXA-752 and Form BXA-752-A. Upon review of the change in reexport
territory, BXA will return to the SCL holder two validated copies of
Form BXA-752 and Form BXA-752-A.
(i) Form BXA-752. Complete Block 3 by marking ``Change an Existing
Consignee''. In Block 4, enter the consignee name and consignee number.
[[Page 12841]]
In Block 5, enter the SCL number. In Block 9, enter ``to remove a
country from the reexport territory''. Complete Blocks 10 and 11.
(ii) Form BXA-752A. Complete Blocks 2 and 3. Mark each country that
you are removing from the reexport territory.
(5) Remove items from your SCL. The following procedures apply if
you remove an item from your SCL. After review of the change by BXA,
BXA will send you a validated Form BXA-752 and BXA-748P-A, if
applicable. The SCL holder must send a copy of the each validated form
to all applicable consignees and attach a copy to their BXA-752P.
(i) Removing one item. You must submit to BXA Form BXA-748P if you
remove a single item from your SCL. Complete Blocks 1, 2, 3 and 4. Mark
``Special Comprehensive License'' in Block 5, and ``change'' in Block
8. Include your SCL number in Block 9 and state ``delete ECCN''.
Complete item (a) and (j) in Block 22, and Block 25.
(ii) Removing more than one item. You must submit to BXA Form BXA-
748P and Form BXA-748P-A if you remove more than one item from your
SCL. Complete Form BXA-748P according to the instructions in paragraph
(a)(5)(i) of this section. Complete Form BXA 748P-A by including the
``Application Control Number'' (found on form BXA-748P) in Block 1, and
completing items (a) and (j) in Block 22 for each item you are removing
from your SCL.
(6) Remove end-users from your SCL. You must submit to BXA Form
BXA-752 and Form BXA-748P-B if you remove end-users from consignee
authorizations. After review by BXA, BXA will return to the SCL holder
two validated copies of Form BXA-752 and Form BXA-748P-B, which will
include any special conditions that may have been imposed. You must
send one copy of Forms BXA-752 and BXA-748P to the relevant consignee.
(i) Form BXA-752. On Form BXA-752, complete Block 3.B., ``Change an
Existing Consignee''. Include the consignee number in Block 4. Include
the SCL case number in Block 5. In Block 9, type ``To remove an end-
user''. Complete Blocks 10 and 11.
(ii) Form BXA-748P-B. On Form BXA-748P-B, include the SCL consignee
number in Block 1. Complete Block 19.
(d) Changes made by BXA. If BXA revises or adds an ECCN to the CCL,
or a country's eligibility already covered by the SCL changes, BXA will
publish the change in the Federal Register. The SCL holder is
responsible for immediately complying with any changes to the scope of
the SCL.
Sec. 752.11 Internal Control Programs.
(a) Scope--(1) Introduction. It is through Internal Control
Programs (ICPs) that the SCL holder and the consignee assure that
exports and reexports are not made contrary to the EAR. The elements of
your ICP will reflect the complexity of the activities authorized under
the SCL, the countries and items involved, and the relationship between
the SCL holder and the approved consignees.
(2) General requirements. Prior to making any exports and reexports
under an SCL, you and your consignees, when required, must implement an
ICP that is designed to ensure compliance with the SCL and the EAR.
This section provides an overview of the elements that comprise an ICP.
You may obtain from BXA at the address found in Sec. 752.17 of this
part guidelines to assist you in developing an adequate ICP. You must
submit with your application for an SCL a copy of your proposed ICP,
along with any consignee ICPs, when required, incorporating the
elements described in this section, as appropriate. BXA may require you
to modify your ICP depending upon the activities, items, and
destinations requested on your application for an SCL.
(b) Requirements. You may not make any shipments under an SCL until
you and your consignees, when appropriate, implement all the elements
of the required ICP. If there are elements that you consider
inapplicable, you must explain the reasons for this determination at
the time of application for an SCL. Existence of a properly constructed
ICP will not relieve the SCL holder of liability for improper use or
failure to comply with the requirements of the EAR.
(c) Elements of an ICP. Following is a list of ICP elements. The
specific elements that should be included in your ICP depend upon the
complexity of the activities authorized under your SCL, the countries
and items involved, and the relationship between the SCL holder and the
approved consignees.
(1) A clear statement of corporate policy communicated to all
levels of the firm involved in exports and reexports, traffic, and
related functions, emphasizing the importance of SCL compliance;
(2) Identification of positions (and maintenance of current list of
individuals occupying the positions) in the SCL holder firm and
consignee firms responsible for compliance with the requirements of the
SCL procedure;
(3) A system for timely distribution to consignees and verification
of receipt by consignees of the Denied Persons List (Supplement No. 2
to part 764 of the EAR) and other regulatory materials necessary to
ensure compliance;
(4) A system for screening items, training and servicing
transactions against Denied Persons List (Supplement No. 2 to part 764
of the EAR) and any relevant updates to the Denied Persons List;
(5) A system for assuring compliance with items and destination
restrictions, including controls over reexports by consignees and
direct exports to consignee customers;
(6) A compliance review program covering the SCL holder and
extending to all consignees;
(7) A system for assuring compliance with controls on exports and
reexports of nuclear items and to nuclear end-uses described in
Secs. 742.3 and 744.2 of the EAR;
(8) An on-going program for informing and educating employees
responsible for processing transactions involving items received under
the SCL about applicable regulations, limits, and restrictions of the
SCL;
(9) A program for recordkeeping as required by the EAR;
(10) An order processing system that documents employee clearance
of transactions in accordance with applicable elements of the company
ICP;
(11) A system for monitoring in-transit shipments and shipments to
bonded warehouses and free trade zones;
(12) A system for notifying BXA promptly if the SCL holder knows
that a consignee is not in compliance with terms of the SCL;
(13) A system to screen against customers who are known to have, or
are suspected of having, unauthorized dealings with specially
designated regions and countries for which nonproliferation controls
apply;
(i) The signs of potential diversion that you should take into
consideration include, but are not limited to, the following:
(A) Your customer is little known (financial information
unavailable from normal commercial sources and corporate principals
unknown by trade sources);
(B) Your customer does not wish to use commonly available
installation and maintenance services;
(C) Your customer is reluctant to provide end-use and end-user
information;
(D) Your customer requests atypical payment terms or currencies;
[[Page 12842]]
(E) Customer order amounts, packaging, or delivery routing
requirements do not correspond with normal industry practice.
(F) The performance/design characteristics of the items ordered are
incompatible with customer's line of business or stated end-use;
(G) Your customer provides only a ``P.O. Box'' address or has
facilities that appear inappropriate for the items ordered;
(H) Your customer's order is for parts known to be inappropriate,
or for which the customer appears to have no legitimate need (e.g.,
there is no indication of prior authorized shipment of system for which
the parts are sought); and
(I) Your customer is known to have, or is suspected of having,
unauthorized dealings with parties and/or destinations in ineligible
countries.
(ii) When any of the above characteristics have been identified,
but through follow-up inquiries or investigation have not been
satisfactorily resolved, the consignee should not transact any business
with the customer under the SCL. Apply for a license according to part
748 of the EAR. You should explain the basis for the concern regarding
the proposed customer, and state that you are an SCL consignee. Also,
cite the SCL number, and your consignee number;
(14) A system for assuring compliance with controls over exports
and reexports for missile-related end-uses and end-users described in
Sec. 744.3 of the EAR;
(15) A system for assuring compliance with control over exports and
reexports of chemical precursors and biological agents and related
items and end-uses described in Secs. 742.2 and 744.4 of the EAR;
Sec. 752.12 Recordkeeping requirements.
(a) SCL holder and consignees. In addition to the recordkeeping
requirements of part 762 of the EAR, the SCL holder and each consignee
must maintain copies of manuals, guidelines, policy statements,
internal audit procedures, reports, and other documents making up the
ICP of each party included under an SCL. Also, all parties must
maintain copies of the most current Denied Persons List (see Supplement
No. 2 to part 764 of the EAR) as well as all updates, and all other
regulatory materials necessary to ensure compliance with the SCL, such
as relevant changes to the EAR, product classification, additions,
deletions, or other administrative changes to the SCL, transmittal
letters and consignee's confirmations of receipt of these materials.
(b) Consignees. All consignees must retain all records of the types
of activities identified in Sec. 752.2(a)(3) of this part. Records on
such sales or reexports must include the following:
(1) Full name and address of individual or firm to whom sale or
reexport was made;
(2) Full description of each item sold or reexported;
(3) Units of quantity and value of each item sold or reexported;
and
(4) Date of sale or reexport.
Sec. 752.13 Inspection of records.
(a) Availability of records. You and all consignees must make
available all of the records required by Sec. 752.12 of this part and
Sec. 762.2 of the EAR for inspection, upon request, by BXA or by any
other representative of the U.S. Government, in accordance with part
762 of the EAR.
(b) Relationship of foreign laws. Foreign law may prohibit
inspection of records by a U.S. Government representative in the
foreign country where the records are located. In that event, the
consignee must submit with the required copies of Form BXA-752 an
alternative arrangement for BXA to review consignee activities and
determine whether or not the consignee has complied with U.S. export
control laws and regulations, which must be approved by BXA.
(c) Failure to comply. Parties failing to comply with requests to
inspect documents may be subject to orders denying export privileges
described in part 764 of the EAR or to the administrative actions
described in part 766 of the EAR.
Sec. 752.14 System reviews.
(a) Post-license system reviews. BXA may conduct system reviews of
the SCL holder as well as any consignee. Generally, BXA will give
reasonable notice to SCL holders and consignees in advance of a system
review. The review will involve interviews with company officials, the
inspection of records, and the review of ICPs. BXA may conduct special
unannounced system reviews if BXA has reason to believe an SCL holder
or consignee has improperly used or has failed to comply with the SCL.
(b) Other reviews. BXA may require an SCL holder or consignee to
submit to its office a list of all sales made under the SCL during a
specified time-frame. Also, BXA may request from any consignee a list
of transactions during a specified period involving direct shipments of
items received under SCLs to customers of other consignees and sales to
customers in reexport territories authorized by BXA on the consignee's
validated Form BXA-752.
Sec. 752.15 Export clearance.
(a) Shipper's Export Declaration (SED). The SED covering an export
made under an SCL must be prepared in accordance with standard
instructions described in Sec. 758.3 of the EAR. If the SCL holder has
implemented the Bureau of Census Monthly Reporting System, the SCL
holder must comply with the Census requirements.
(1) Item descriptions. Item descriptions on the SED must indicate
specifically the ECCN and item description conforming to the applicable
CCL description and incorporating any additional information where
required by Schedule B; (e.g., type, size, name of specific item,
etc.).
(2) Value of shipments. There is no value limitation on shipments
under the SCL; however, you must indicate the value of each shipment on
the SED.
(3) SCL number. The SED must include the SCL number followed by a
blank space, and then the consignee number identifying the SCL's
approved consignee to whom the shipment is authorized.
(b) Destination control statement. The SCL holder must enter a
destination control statement on all copies of the bill of lading or
air way-bill, and the commercial invoice covering exports under the
SCL, in accordance with the provisions of Sec. 758.6 of the EAR. Use of
a destination control statement does not preclude the consignee from
reexporting to any of the SCL holder's other approved consignees or to
other countries for which specific prior approval has been received
from BXA. In such instances, reexport is not contrary to U.S. law and,
therefore, is not prohibited. Another destination control statement may
be required or approved by BXA on a case-by-case basis.
Sec. 752.16 Administrative actions.
(a)(1) If BXA is not satisfied that you or other parties to the SCL
are complying with all conditions and requirements of the SCL, or that
ICPs employed by parties to such licenses are not adequate, BXA may, in
addition to any enforcement action pursuant to part 764 of the EAR,
take any licensing action it deems appropriate, including the
following:
(i) Suspend the privileges under the SCL in whole or in part, or
impose other restrictions;
(ii) Revoke the SCL in whole or in part;
[[Page 12843]]
(iii) Prohibit consignees from receiving items authorized under the
SCL, or otherwise restrict their activities under the SCL;
(iv) Restrict items that may be shipped under the SCL;
(v) Require that certain exports, transfers or reexports be
individually authorized by BXA;
(vi) Restrict parties to whom consignees may sell under the SCL;
and
(vii) Require that an SCL holder provide an audit report to BXA of
selected consignees or overseas operations.
(2) Whenever necessary to protect the national interest of the
U.S., BXA may take any licensing action it deems appropriate, without
regard to contracts or agreements entered into before such
administrative action, including those described in paragraphs (a)(1)
(i) through (vii) of this section.
(b) Appeals. Actions taken pursuant to paragraph (a) of this
section may be appealed under the provisions of part 756 of the EAR.
Sec. 752.17 BXA mailing addresses.
You should use the following addresses when submitting to BXA
applications, reports, documentation, or other requests required in
this part 752: Bureau of Export Administration, U.S. Department of
Commerce, P.O. Box 273, Washington, D.C. 20044, ``Attn: Special
Licensing and Compliance Division''. If you wish to send the required
material via overnight courier, use the following address: Bureau of
Export Administration, U.S. Department of Commerce, 14th and
Pennsylvania Avenue, N.W., Room 2705, Washington D.C. 20230 ``Attn:
Special Licensing and Compliance Division''. You may also reach the
Special Licensing and Compliance Division by phone (202)482-0062, or
telefacsmile on (202)501-6750.
Supplement No. 1 to Part 752--Instructions for Completing Form BXA-748P
Multipurpose Application for Requests for Special Comprehensive
Licenses
All information must be legibly typed within the lines for each
Block or box, except where a signature is required. Where there is a
choice of entering a telephone or telefacsimile number, and you
choose a telefacsimile number, identify the number with the letter
``F'' immediately following the number.
Complete Blocks 1, 2, 3, and 4 according to the instructions in
Supplement No. 1 to part 748.
Block 5: Type of Application. Enter an ``X'' in the Special
Comprehensive License box.
Block 6: Documents Submitted with Application. Leave blank.
Block 7: Documents on File with Applicant. Leave blank.
Block 8: Special Comprehensive License. Complete by entering an
``X'' in the appropriate boxes to indicate which forms are attached.
Block 9: Special Purpose. This block should only be completed by
previous special license holders. If you have had a special license
in the past, enter that license number. A new SCL number will be
assigned upon approval of your SCL application.
Blocks 10, 11, 12, and 13: Leave blank.
Block 14: Applicant. Complete according to the instructions in
Supplement No. 1 to part 748.
Block 15: Other Party Authorized to Receive License. Complete,
if applicable, according to the instructions in Supplement no. 1 to
part 748.
Blocks 16 and 17: Leave blank.
Block 18: Ultimate Consignee. Leave blank.
Blocks 19, 20, and 21: Leave blank.
Block 22: Leave (a)-(j) blank.
Block 23: Total Application Dollar Value. Enter the projected
total dollar value of all transactions you anticipate making
throughout the entire validity period of the SCL.
Block 24: Additional Information. Enter additional data
pertinent to the transaction as required by part 752. Do not include
information concerning block 22 in this space.
Block 25: Signature. Complete according to the instructions in
Supplement No. 1 to part 748.
Supplement No. 2 to Part 752--Instructions for Completing Form BXA-
748P-A, ``Item Annex''
All information must be legibly typed within the lines for each
block or box.
Block 1: Application Control No. Enter the application control
number found on Form BXA-748P.
Block 2: Subtotal. Leave blank.
Block 21: Continuation of Specific End-Use Information. Leave
blank. Block 22:
(a) ECCN. Enter the Export Control Classification Number that
corresponds to the item you wish to export or reexport under the
SCL.
(b) CTP. You must complete this block if you intend to export or
reexport a digital computer. Instructions on calculating the CTP are
contained in a Technical Note at the end of Category 4 in the CCL.
(c)-(i): Leave blank.
(j) Manufacturer's Description. Enter a detailed description of
the item proposed for export or reexport. Brochures or product
literature may be supplied at the option of the applicant. However,
such information may expedite review and processing of your
application.
Block 24: Continuation of Additional Information. Enter any
identifying information that defines the scope of items you are
requesting to export or reexport under the SCL. For example, ``4A004
except items controlled for MT reasons''.
Supplement No. 3 to Part 752--Instructions for Completing Form BXA-752
``Statement by Consignee in Support of Special Comprehensive License''
All information must be legibly typed within the lines for each
block or box, except where a signature is required.
Block 1: Application Control No. Enter the ``Control No.'' that
is pre-printed on the Form BXA-748P, Multipurpose Application. You
may obtain this information from the applicant.
Block 2: Consignee ID Number. Leave blank.
Block 3: Type of Request. For new applications, leave blank.
Block 4: Consignee Information. Enter the complete address where
the consignee is located. A P.O. Box alone is NOT acceptable but may
be included in Block 4 for mailing purposes, along with a complete
address. If records required by Sec. 752.12 of this part and part
762 of the EAR are maintained/stored at a separate address, indicate
the address in Block 9. In the absence of a complete address, Form
BXA-752 will be returned without action.
Block 5: U.S. Exporter Information. Enter the complete address
of the U.S. exporter. Leave the SCL Case No. box blank.
Block 6: Description of Items. Provide a summary description of
the items proposed for import and reexport under the SCL. Firms that
will not receive the entire range of items under a particular ECCN
identified on Form BXA-748P-A should describe only the items they
will receive under the SCL. In some instances, consignee approval
will be contingent on the nature of the item requested.
Block 7: Consignee's Business and Relationship.
(a) Identify the nature of your company's principal business as
it affects the disposition of items to be imported and reexported
under this license (e.g., manufacturer, manufacturer/ distributor,
assembler/reseller, distributor, sales agent, warehouse, service
facility).
(b) Indicate the relationship between your company and the
applicant company (e.g., wholly owned subsidiary, independent
company, joint venture company, controlled-in-fact affiliate of
another consignee that is approved on an SCL).
(c) Enter number of years of relationship between your company
and the applicant company.
(d) Enter the estimated dollar volume of sales or other
transactions with the SCL holder during the last twelve months
period before submission of the application for SCL.
(e) Enter an estimated dollar volume proposed under this
application for the validity period of the SCL.
Block 8: Disposition or Use of Items.
(a) Complete this Block if your company is requesting
involvement in end-user activities that involve importing items for
the company's own use (e.g., as capital equipment).
(b) Complete this Block if your company is requesting
involvement in end-user activities that incorporate items received
under the
[[Page 12844]]
SCL into a new end-product that result in a change of identity of
the U.S.-item (e.g., U.S.-origin semiconductor devices are included
in a foreign origin test instrument). Under Block 9, Additional
Information, describe the new end-product more specifically and
state how and to what extent the U.S.-origin items will be used.
Complete and attach Form BXA-752-A, Reexport Territories.
(c) Complete this Block if your company is requesting
authorization to reexport items for service and/or repair. Complete
and attach Form BXA-752-A. If you plan to reexport to end-users that
require prior approval by BXA, also complete and attach Form BXA-
748P-B, End-User Appendix.
(d) Complete this Block if your company plans to retransfer/
resell within the country of import. State the end-use of your
customers. If you plan to retransfer to end-users that require prior
approval by BXA, complete and attach Form BXA-748P-B, End-User
Appendix.
(e) Complete this Block if your company plans to reexport.
Complete and attach Form BXA-752-A. If you plan to reexport to end-
users that require prior approval by BXA, also complete and attach
Form BXA-748P-B, End-User Appendix.
(f) This item should be completed for ``other'' activities that
are not defined in Blocks 8(a) through (e). Describe the proposed
activities fully in a letter attached to this Form, and complete and
attach Form BXA-752-A, indicating countries to which the products
derived from these activities are proposed export.
Block 9: Additional Information. In addition to any information
that supports other Blocks, indicate whether your company is an
active consignee under any other license issued by BXA. Indicate the
license and consignee numbers.
Block 10: Signature of Official of Ultimate Consignee. Include
an original signature. The authority to sign form BXA-752 may not be
delegated to any person whose authority to sign is not inherent in
his/her official position with the company. The signing official
must include their official title with the signature. All copies
must be co-signed by the applicant in Block 11 and submitted with
the application to BXA.
Supplement No. 4 to Part 752--Instructions for Completing Form BXA-752-
A Reexport Territories
All information must be legibly typed within the lines for each
block or box.
Block 1: Application Control No. Insert the application control
number from the relevant form BXA-748P.
Block 2: SCL License No. Leave blank for new SCL applications.
For changes to existing SCLs, include the original SCL number.
Block 3: Consignee No. Leave blank for new SCL applications. For
changes to existing SCLs, include the consignee number that was
provided on the original license.
Block 4: Continuation of BXA-752 Question No. Mark an ``X'' in
the box next to each country you want to select. Countries that are
not eligible for the SCL are not included on this form. If the
country that is not listed on this form becomes eligible to receive
items under the SCL, you may request that country by marking an
``X'' in the ``other'' box and including the country name.
Supplement No. 5 to Part 752--Instructions for Completing Form BXA-
748P-B End-User Appendix
All information must be legibly typed within the lines for each
block or box.
Block 1: Application Control No. Insert the application control
number from the relevant Form BXA-748P.
Block 19: End-user. Enter each end-user's complete name, street
address, city, country, postal code and telephone or facsimile
number. P.O. Boxes are not acceptable.
Block 21: Continuation of Specific End-Use Information. Include
any additional information that may help BXA in reviewing and making
a determination on your application, such as the special safeguards
that will be implemented to prevent diversion.
Block 24: Continuation of Additional Information. Enter
additional data pertinent to the transaction as required by part 752
of the EAR.
PART 754--SHORT SUPPLY CONTROLS
Sec.
754.1 Introduction.
754.2 Crude oil.
754.3 Petroleum products not including crude oil.
754.4 Unprocessed western red cedar.
754.5 Horses for export by sea.
754.6 Registration of U.S. agricultural commodities for exemption
from short supply limitations on export.
754.7 Petitions for the imposition of monitoring or controls on
recyclable metallic materials; Public hearings.
Supplement No. 1 to Part 754--Petroleum and Petroleum Products
Supplement No. 2 to Part 754--Unprocessed Western Red Cedar
Supplement No. 3 to Part 754--Statutory Provisions Dealing With Exports
of Crude Oil
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); Sec. 201, Pub. L. 104-58, 109
Stat. 557 (30 U.S.C. 185(s)); 30 U.S.C. 185(u); 42 U.S.C. 6212; 43
U.S.C. 1354; 46 U.S.C. app. 466c; E.O. 12924, 3 CFR, 1994 Comp., p.
917; Notice of August 15, 1995 (60 FR 42767, August 17, 1995).
Sec. 754.1 Introduction.
(a) Scope. In this part, references to the Export Administration
Regulations (EAR) are references to 15 CFR chapter VII, subchapter C.
This part implements the provisions of section 7, ``Short Supply
Controls,'' of the Export Administration Act (EAA) and similar
provisions in other laws that are not based on national security and
foreign policy grounds.
(b) Contents. Specifically, this part deals with the following:
(1) It sets forth the license requirements and licensing policies
for commodities that contain the symbol ``SS'' in the ``Reason for
Control'' part of ``License Requirements'' section of the applicable
Export Control Classification Number (ECCN) identified on the Commerce
Control List (Supplement No. 1 to part 774 of the EAR). In appropriate
cases, it also provides for License Exceptions from the short supply
licensing requirements described in this part. The license requirements
and policies that are described in this part cover the following:
(i) Crude oil described by ECCN 1C981 (Crude petroleum, including
reconstituted crude petroleum, tar sands, and crude shale oil listed in
Supplement No. 1 to this part). For specific licensing requirements for
these items, see Sec. 754.2 of this part.
(ii) Petroleum products other than crude oil listed in Supplement
No. 1 to this part, that were produced or derived from the Naval
Petroleum Reserves (NPR) or became available for export as a result of
an exchange of any NPR-produced or -derived commodities described by
the following ECCNs. For specific licensing requirements for these
items, see Sec. 754.3 of this part.
(A) ECCN 1C980 (Inorganic chemicals);
(B) ECCN 1C982 (Other petroleum products);
(C) ECCN 1C983 (Natural gas liquids and other natural gas
derivatives); and
(D) ECCN 1C984 (Manufactured gas and synthetic natural gas (except
when commingled with natural gas and thus subject to export
authorization from the Department of Energy).
(iii) Unprocessed western red cedar described by ECCN 1C988
(Western red cedar (thuja plicata) logs and timber, and rough, dressed
and worked lumber containing wane listed in Supplement No. 2 to this
part). For specific licensing requirements for these items, see
Sec. 754.4 of this part.
(iv) Horses exported by sea for slaughter covered by ECCN 0A980
(Horses for export by sea). For specific licensing requirements, see
Sec. 754.5 of this part.
(2) It incorporates statutory provisions for the registration of
U.S. agricultural commodities for exemption from short supply
limitations on export (see Sec. 754.6 of this part); and
(3) It incorporates statutory provisions for the filing and review
of petitions seeking the imposition of monitoring or controls on
recyclable metallic materials and procedures for related public
hearings (see Sec. 754.7 of this part).
[[Page 12845]]
(c) Reexports. Reexports of items controlled by this part require a
license only if such a requirement is specifically set forth in this
part or is set forth on the license authorizing the export from the
United States.
(d) Additional requirements for embargoed destinations. For exports
involving embargoed destinations, you must satisfy the requirements of
this part and also of part 746 of the EAR (Embargoes and Other Special
Controls).
Sec. 754.2 Crude oil.
(a) License requirement. As indicated by the SS notation in the
``License Requirements'' section of ECCN 1C981 on the CCL (Supplement
No. 1 to part 774 of the EAR), a license is required for the export of
crude oil to all destinations, including Canada. See paragraph (h) of
this section for a License Exception permitting the export of certain
oil from the Strategic Petroleum Reserves and paragraph (i) of this
section for a License Exception for certain shipments of samples.
``Crude oil'' is defined as a mixture of hydrocarbons that existed in
liquid phase in underground reservoirs and remains liquid at
atmospheric pressure after passing through surface separating
facilities and which has not been processed through a crude oil
distillation tower. Included are reconstituted crude petroleum, and
lease condensate and liquid hydrocarbons produced from tar sands,
gilsonite, and oil shale. Drip gases are also included, but topped
crude oil, residual oil, and other finished and unfinished oils are
excluded.
(b) License policy. (1) BXA will approve applications to export
crude oil for the following kinds of transactions if BXA determines
that the export is consistent with the specific requirements pertinent
to that export:
(i) Exports from Alaska's Cook Inlet (see paragraph (d) of this
section);
(ii) Exports to Canada for consumption or use therein (see
paragraph (e) of this section);
(iii) Exports in connection with refining or exchange of strategic
petroleum reserve oil (see paragraph (f) of this section);
(iv) Exports of heavy California crude oil up to an average volume
not to exceed 25 MB/D (see paragraph (g) of this section);
(v) Exports that are consistent with international agreements as
described in the statutes listed in paragraph (c) of this section;
(vi) Exports that are consistent with findings made by the
President under an applicable statute, including the statutes described
in paragraph (c) of this section; and
(vii) Exports of foreign origin crude oil where, based on written
documentation satisfactory to BXA, the exporter can demonstrate that
the oil is not of U.S. origin and has not been commingled with oil of
U.S. origin. See paragraph (h) of this section for the provisions of
License Exception SPR permitting exports of certain crude oil from the
Strategic Petroleum Reserve.
(2) BXA will review other applications to export crude oil on a
case-by-case basis and, except as provided in paragraph (c) of this
section, generally will approve such applications if BXA determines
that the proposed export is consistent with the national interest and
the purposes of the Energy Policy and Conservation Act (EPCA). Although
BXA will consider all applications for approval, generally, the
following kinds of transactions will be among those that BXA will
determine to be in the national interest and consistent with the
purposes of EPCA.
(i) The export is part of an overall transaction:
(A) That will result directly in the importation into the United
States of an equal or greater quantity and an equal or better quality
of crude oil or of a quantity and quality of petroleum products listed
in Supplement No. 1 to this part that is not less than the quantity and
quality of commodities that would be derived from the refining of the
crude oil for which an export license is sought;
(B) That will take place only under contracts that may be
terminated if the petroleum supplies of the United States are
interrupted or seriously threatened; and
(C) In which the applicant can demonstrate that, for compelling
economic or technological reasons that are beyond the control of the
applicant, the crude oil cannot reasonably be marketed in the United
States.
(ii) Exports involving temporary exports or exchanges that are
consistent with the exceptions from the restrictions of the statutes
listed in paragraph (c) of this section.
(c) Additional statutory controls. (1) The following statutes
provide controls on the export of domestically produced crude oil based
on its place of origin or mode of transport. If such other statutory
controls apply, an export may only be approved if the President makes
the findings required by the applicable law.
(i) Section 201 of Public Law 104-58, entitled ``Exports of Alaskan
North Slope Oil,'' provides for exports of domestically produced crude
oil transported by pipeline over rights-of-way granted pursuant to
section 203 of the Trans-Alaska Pipeline Authorization Act (43 U.S.C.
1652) (``TAPS crude oil'').
(ii) The Mineral Leasing Act of 1920 restricts exports of
domestically produced crude oil transported by pipeline over rights-of-
way granted pursuant to section 28(u) of that Act (30 U.S.C. 185(u))
(``MLA'').
(iii) The Outer Continental Shelf Lands Act restricts exports of
crude oil produced from the outer Continental Shelf (29 U.S.C. 1354)
(``OCSLA'').
(iv) The Naval Petroleum Reserves Production Act restricts the
export of crude oil produced from the naval petroleum reserves (10
U.S.C. 7430) (``NPRPA'').
(2) Supplement No. 3 to this part describes the relevant statutory
provisions. In cases where a particular statute applies, a Presidential
finding is necessary before the export can be authorized. You should
note that in certain cases it is possible that more than one statute
could apply to a particular export of crude oil.
(d) Exports from Alaska's Cook Inlet. The licensing policy is to
approve applications for exports of crude oil that was derived from the
state-owned submerged lands of Alaska's Cook Inlet and has not been, or
will not be, transported by a pipeline over a federal right-of-way
subject to the MLA or the Trans-Alaska Pipeline Authorization
Act.<SUP>1
\1\ On November 6, 1985, the Secretary of Commerce determined
that the export of crude oil derived from State waters in Alaska's
Cook Inlet is consistent with the national interest and the purposes
of the Energy Policy and Conservation Act.
---------------------------------------------------------------------------
(e) Exports to Canada for consumption or use therein. (1) Except
for TAPS crude oil, the licensing policy is to approve applications for
exports of crude oil to Canada for consumption or use therein.
(2) The licensing policy for TAPS crude oil is to approve
applications for an average of no more than 50,000 barrels of oil per
day for consumption or use in Canada, subject to the following
procedures and conditions:
(i) Any ocean transportation of the commodity will be made by
vessels documented for United States coastwise trade under 46 U.S.C.
12106. Only barge voyages between the State of Washington and
Vancouver, British Columbia, and comparable barge movements across
waters between the U.S. and Canada may be excluded from this
requirement. The Bureau of Export Administration will determine, in
consultation with the Maritime
[[Page 12846]]
Administration, whether such transportation is ``ocean''
transportation; and
(ii) Authorization to export TAPS crude oil will be granted on a
quarterly basis. Applications will be accepted by BXA no earlier than
two months prior to the beginning of the calendar quarter in question,
but must be received no later than the 25th day of the second month
preceding the calendar quarter. For example, for the calendar quarter
beginning April 1 and ending June 30, applications will be accepted
beginning February 1, but must be received no later than February 25.
(iii) The quantity stated on each application must be the total
number of barrels for the quarter, not a per-day rate. This quantity
must not exceed 50,000 barrels times the number of calendar days in the
quarter.
(iv) Each application must include support documents providing
evidence that the applicant has either:
(A) Title to the quantity of barrels stated in the application; or
(B) A contract to purchase the quantity of barrels stated in the
application.
(v) The quantity of barrels authorized on each license for export
during the calendar quarter will be determined by the BXA as a prorated
amount based on:
(A) The quantity requested on each license application; and
(B) The total number of barrels that may be exported by all license
holders during the quarter (50,000 barrels per day multiplied by the
number of calendar days during the quarter).
(vi) Applicants may combine their licensed quantities for as many
as four consecutive calendar quarters into one or more shipments,
provided that the validity period of none of the affected licenses has
expired.
(vii) BXA will carry forward any portion of the 50,000 barrels per
day quota that has not been allocated during a calendar quarter, except
that no un-allocated portions will be carried over to a new calendar
year. The un-allocated volume for a calendar quarter will be added,
until expended, to the quotas available for each quarter through the
end of the calendar year.
(f) Refining or exchange of Strategic Petroleum Reserve Oil. (1)
Exports of crude oil withdrawn from the Strategic Petroleum Reserve
(SPR) will be approved if BXA, in consultation with the Department of
Energy, determines that such exports will directly result in the
importation into the United States of refined petroleum products that
are needed in the United States and that otherwise would not be
available for importation without the export of the crude oil from the
SPR.
(2) Licenses may be granted to export, for refining or exchange
outside of the United States, SPR crude oil that will be sold and
delivered, pursuant to a drawdown and distribution of the SPR, in
connection with an arrangement for importing refined petroleum products
into the United States.
(3) BXA will approve license applications subject to the following
conditions:
(i) You must provide BXA evidence of the following:
(A) A title to the quantity of barrels of SPR crude stated in the
application; or
(B) A contract to purchase, for importation, into the United States
the quantity of barrels of SPR crude stated in the application.
(ii) The following documentation must be submitted to BXA no later
than fourteen days following the date that the refined petroleum
products are imported in the U.S. in exchange for the export of SPR
crude:
(A) Evidence that the exporter of the SPR crude has title to or a
contract to purchase refined petroleum product;
(B) A copy of the shipping manifest that identifies the refined
petroleum products; and
(C) A copy of the entry documentation required by the U.S. Customs
Service that show the refined petroleum products were imported into the
United States, or a copy of the delivery receipt when the refined
petroleum products are for delivery to the U.S. military outside of the
United States.
(4) You must complete both the export of the SPR crude and the
import of the refined petroleum products no later than 30 days
following the issuance of the export license, except in the case of
delivery to the U.S. military outside of the United States, in which
case the delivery of the refined petroleum products must be completed
no later than the end of the term of the contract with the Department
of Defense.
(g) Exports of certain California crude oil. The export of
California heavy crude oil having a gravity of 20.0 degrees API or
lower, at an average volume not to exceed 25 MB/D, will be authorized
as follows.
(1) Applicants must submit their applications on Form BXA-748 to
the following address: Office of Exporter Services, ATTN: Short Supply
Program--Petroleum, Bureau of Export Administration, U.S. Department of
Commerce, P.O. Box 273, Washington, DC 20044.
(2) The quantity stated on each application must be the total
number of barrels proposed to be exported under the license--not a per-
day rate. This quantity must not exceed 25 percent of the annual
authorized export quota. Potential applicants may inquire of BXA as to
the amount of the annual authorized export quota available.
(3) Each application shall be accompanied by a certification by the
applicant that the California heavy crude oil:
(i) Has a gravity of 20.0 degrees API or lower;
(ii) Was produced within the state of California, including its
submerged state lands;
(iii) Was not produced or derived from a U.S. Naval Petroleum
Reserve; and
(iv) Was not produced from submerged lands of the U.S. Outer
Continental Shelf.
(4) Each license application must be based on an order, and be
accompanied by documentary evidence of such an order (e.g., a letter of
intent).
(5) BXA will adhere to the following procedures for licensing
exports of California heavy crude oil:
(i) BXA will issue licenses for approved applications in the order
in which the applications are received (date-time stamped upon receipt
by BXA), with the total quantity authorized for any one license not to
exceed 25 percent of the annual authorized volume of California heavy
crude oil.
(ii) BXA will approve only one application per month for each
company and its affiliates.
(iii) BXA will consider the following factors (among others) when
determining what action should be taken on individual license
applications:
(A) The number of licenses to export California heavy crude oil
that have been issued to the applicant or its affiliates during the
then-current calendar year;
(B) The number of applications pending in BXA that have been
submitted by applicants who have not previously been issued licenses
under this section to export California heavy crude oil during the
then-current calendar year; and
(C) The percentage of the total amount of California heavy crude
oil authorized under other export licenses previously issued to the
applicant pursuant to this section that has actually been exported by
the applicant.
(iv) BXA will approve applications contingent upon the licensee
providing documentation meeting the requirements of both
paragraphs(g)(5)(iv)(A) and (B) of this
[[Page 12847]]
section prior to any export under the license:
(A) Documentation showing that the applicant has or will acquire
title to the quantity of barrels stated in the application. Such
documentation shall be either:
(1) An accepted contract or bill of sale for the quantity of
barrels stated in the application; or
(2) A contract to purchase the quantity of barrels stated in the
application, which may be contingent upon issuance of an export license
to the applicant.
(B) Documentation showing that the applicant has a contract to
export the quantity of barrels stated in the application. The contract
may be contingent upon issuance of the export license to the applicant.
(v) BXA will carry forward any portion of the 25 MB/D quota that
has not been licensed, except that no unallocated portions will be
carried forward more than 90 days into a new calendar year.
Applications to export against any carry-forward must be filed with BXA
by January 15 of the carry-forward year.
(vi) BXA will return to the available authorized export quota any
portion of the 25 MB/D per day quota that has been licensed, but not
shipped, during the 90-day validity period of the license.
(vii) BXA will not carry over to the next calendar year pending
applications from the previous year.
(6) License holders:
(i) Have 90 calendar days from the date the license was issued to
export the quantity of California heavy crude oil authorized on the
license. Within 30 days of any export under the license, the exporter
must provide BXA with a certified statement confirming the date and
quantity of California heavy crude oil exported.
(ii) Must submit to BXA, prior to any export under the license, the
documentation required by paragraph (g)(5)(iv) of this section.
(iii) May combine authorized quantities into one or more shipments,
provided that the validity period of none of the affected licenses has
expired.
(iv) Are prohibited from transferring the license to another party
without prior written authorization from BXA.
(7) BXA will allow a 10 percent tolerance on the unshipped balance
based upon the volume of barrels it has authorized. BXA will allow a 25
percent shipping tolerance on the total dollar value of the license.
See Sec. 750.11 of the EAR for an explanation of shipping tolerances.
(h) License Exception for certain shipments from the Strategic
Petroleum Reserves (SPR). Subject to the requirements set forth in this
paragraph, License Exception SPR may be used to export without a
license foreign origin crude oil imported and owned by a foreign
government or its representative which is imported for storage in, and
stored in, the United States Strategic Petroleum Reserves pursuant to
an appropriate agreement with the U.S. Government or an agency thereof.
If such foreign origin oil is commingled with other oil in the SPR,
such export is authorized under License Exception SPR only if the crude
oil being exported is of the same quantity and of comparable quality as
the foreign origin crude oil that was imported for storage in the SPR
and the Department of Energy certifies this fact to BXA.
(1) The requirements and restrictions described in Secs. 740.1 and
740.2 of the EAR that apply to all License Exceptions also apply to the
use of License Exception SPR.
(2) A person exporting crude oil pursuant to this License Exception
must enter on any required Shipper's Export Declaration (SED) the
letter code ``SS-SPR.''
(i) License Exception for certain sample shipments. Subject to the
requirements set forth in this paragraph, License Exception SS-SAMPLE
may be used to export crude oil for analytic and testing purposes.
(1) An exporter may ship up to 10 barrels of crude oil to any one
end-user annually, up to an annual cumulative limit of 100 barrels per
exporter.
(2) The requirements and restrictions described in Secs. 740.1 and
740.2 of the EAR that apply to all License Exceptions also apply to the
use of License Exception SPR.
(3) A person exporting crude oil pursuant to this License Exception
must enter on any required Shipper's Export Declaration (SED) the
letter code ``SS-SAMPLE''.
Sec. 754.3 Petroleum products not including crude oil.
(a) License requirement. As indicated by the letters ``SS'' in the
``Reason for Control'' paragraph in the ``License Requirements''
section of ECCNs 1C980, 1C982, 1C983, and 1C984 on the CCL (Supplement
No. 1 to part 774 of the EAR), a license is required to all
destinations, including Canada, for the export of petroleum products,
excluding crude oil, listed in Supplement No. 1 to this part, that were
produced or derived from the Naval Petroleum Reserves (NPR) or became
available for export as a result of an exchange of any NPR produced or
derived commodities.
(b) License policy. (1) Applications for the export of petroleum
products listed in Supplement No. 1 to this part that were produced or
derived from the Naval Petroleum Reserves, or that became available for
export as a result of an exchange for a Naval Petroleum Reserves
produced or derived commodity, other than crude oil, will be denied,
unless the President makes a finding required by the Naval Petroleum
Reserves Production Act (10 U.S.C. 7430).
(2) Applications that involve temporary exports or exchanges
excepted from that Act will be approved.
Sec. 754.4 Unprocessed western red cedar.
(a) License requirement. As indicated by the letters ``SS'' in the
``Reason for Control'' paragraph in the ``License Requirements''
section of ECCN 1C988 on the CCL (Supplement No. 1 to part 774 of the
EAR), a license is required to all destinations, including Canada, for
the export of unprocessed western red cedar covered by ECCN 1C988
(Western red cedar (thuja plicata) logs and timber, and rough, dressed
and worked lumber containing wane listed in Supplement No. 2 to this
part). See paragraph (c) of this section for License Exceptions for
timber harvested from public lands in the State of Alaska, private
lands, or Indian lands, and see paragraph (d) of this section for
relevant definitions.
(b) Licensing policy. (1) BXA will generally deny applications for
licenses to export unprocessed western red cedar harvested from Federal
or State lands under harvest contracts entered into after September 30,
1979.
(2) BXA will consider, on a case-by-case basis, applications for
licenses to export unprocessed western red cedar harvested from Federal
or State lands under harvest contracts entered into prior to October 1,
1979.
(3) BXA will approve license applications for unprocessed western
red cedar timber harvested from public lands in Alaska, private lands,
and Indian lands. Applications must be submitted in accordance with the
procedures set forth in paragraph (a) of this section. See paragraph
(c) of this section for the availability of a License Exception.
(c) License Exception for western red cedar (WRC). (1) Subject to
the requirements described in paragraph (c) of this section, License
Exception WRC may be used to export without a license unprocessed
western red cedar timber harvested from Federal, State and other public
lands in Alaska, all private lands,
[[Page 12848]]
and, lands held in trust for recognized Indian tribes by Federal or
State agencies.
(2) Exporters who use License Exception WRC must obtain and retain
on file the following documents:
(i) A statement by the exporter (or other appropriate
documentation) indicating that the unprocessed western red cedar timber
exported under this License Exception was not harvested from State or
Federal lands outside the State of Alaska, and did not become available
for export through substitution of commodities so harvested or
produced. If the exporter did not harvest or produce the timber, the
records or statement must identify the harvester or producer and must
be accompanied by an identical statement from the harvester or
producer. If any intermediate party or parties held title to the timber
between harvesting and purchase, the exporter must also obtain such a
statement, or equivalent documentation, from the intermediate party or
parties and retain it on file.
(ii) A certificate of inspection issued by a third party log
scaling and grading organization, approved by the United States Forest
Service, that:
(A) Specifies the quantity in cubic meters or board feet, scribner
rule, of unprocessed western red cedar timber to be exported; and
(B) Lists each type of brand, tag, and/or paint marking that
appears on any log or unprocessed lumber in the export shipment or,
alternatively, on the logs from which the unprocessed timber was
produced.
(3) The requirements and restrictions described in Secs. 740.1 and
740.2 of the EAR that apply to all License Exceptions also apply to the
use of License Exception WRC.
(4) A person exporting any item pursuant to this License Exception
must enter on any required Shipper's Export Declaration (SED) the
letter code ``SS-WRC''.
(d) License Applications. (1) Applicants requesting to export
unprocessed western red cedar must submit a properly completed Form
BXA-748P, Multipurpose License Form, other documents as may be required
by BXA, and a signed statement from an authorized representative of the
exporter, reading as follows:
I, (Name) (Title) of (Exporter) HEREBY CERTIFY that to the best
of my knowledge and belief the (Quantity) (cubic meters or board
feed scribner) of unprocessed western red cedar timber that
(Exporter) proposes to export was not harvested from State or
Federal lands under contracts entered into after October 1, 1979,
----------------------------------------------------------------------
(Signature)
----------------------------------------------------------------------
(Date)
(2) For Items [16] and [18] on Form BXA-748P, ``Various'' may be
entered when there is more than one purchaser or ultimate consignee.
(3) For each Form BXA-748P submitted, and for each export shipment
made under a license, the exporter must assemble and retain for the
period described in part 762 of the EAR, and produce or make available
for inspection, the following:
(i) A signed statement(s) by the harvester or producer, and each
subsequent party having held title to the commodities, that the
commodities in question were harvested under a contract to harvest
unprocessed western red cedar from State or Federal lands, entered into
before October 1, 1979; and
(ii) A copy of the Shipper's Export Declaration.
(4) A shipping tolerance of 5 percent in cubic feet or board feet
scribner is allowed on the un-shipped balance of a commodity listed on
a license. This tolerance applies only to the final quantity remaining
un-shipped on a license against which more than one shipment is made
and not to the original quantity authorized by such license. See
Sec. 750.11 of the EAR for an explanation of shipping tolerances.
(e) Definitions. When used in this section, the following terms
have the meaning indicated:
(1) Unprocessed western red cedar means western red cedar (thuja
plicata) timber, logs, cants, flitches, and processed lumber containing
wane on one or more sides, as defined in ECCN 1C988, that has not been
processed into:
(i) Lumber of American Lumber Standards Grades of Number 3
dimension or better, or Pacific Lumber Inspection Bureau Export R-List
Grades of Number 3 common or better grades, with a maximum cross
section of 2,000 square centimeters (310 square inches) for any
individual piece of processed western red cedar (WRC) being exported,
regardless of grade;
(ii) Chips, pulp, and pulp products;
(iii) Veneer and plywood;
(iv) Poles, posts, or pilings cut or treated with preservative for
use as such and not intended to be further processed; and
(v) Shakes and shingles.
(2) Federal and State lands means Federal and State lands,
excluding lands in the State of Alaska and lands held in trust by any
Federal or State official or agency for a recognized Indian tribe or
for any member of such tribe.
(3) Contract harvester means any person who, on October 1, 1979,
had an outstanding contractual commitment to harvest western red cedar
timber from State and Federal lands and who can show by previous
business practice or other means that the contractual commitment was
made with the intent of exporting or selling for export in unprocessed
form all or part of the commodities to be harvested.
(4) Producer means any person engaged in a process that transforms
an unprocessed western red cedar commodity (e.g., western red cedar
timber) into another unprocessed western red cedar commodity (e.g.,
cants) primarily through a saw mill.
Sec. 754.5 Horses for export by sea.
(a) License requirement. As indicated by the letters ``SS'' in the
``Reason for Control'' paragraph of the ``License Requirements''
section of ECCN 0A980 on the CCL (Supplement No. 1 to part 774 of the
EAR) a license is required for the export of horses exported by sea to
all destinations, including Canada.
(b) License policy. (1) License applications for the export of
horses by sea for the purposes of slaughter will be denied.
(2) Other license applications will be approved if BXA, in
consultation with the Department of Agriculture, determines that the
horses are not intended for slaughter. You must provide a statement in
the additional information section of the Form BXA-748P, certifying
that no horse under consignment is being exported for the purpose of
slaughter.
(3) Each application for export may cover only one consignment of
horses.
Sec. 754.6 Registration of U.S. agricultural commodities for exemption
from short supply limitations on export.
(a) Scope. Under the provisions of section 7(g) of the Export
Administration Act of 1979 (EAA), agricultural commodities of U.S.
origin purchased by or for use in a foreign country and stored in the
United States for export at a later date may be registered with BXA for
exemption from any quantitative limitations on export that may
subsequently be imposed under section 7 of the EAA for reasons of short
supply.
(b) Applications for registration. Applications to register
agricultural commodities must be submitted by a person or firm subject
to the jurisdiction of the United States who is acting as a duly
authorized agent for the foreign purchaser.
(c) Mailing address. Submit applications pursuant to the provisions
of section 7(g) of the EAA to: Bureau of Export Administration, U.S.
Department
[[Page 12849]]
of Commerce, P.O. Box 273, Washington, D.C. 20230.
Sec. 754.7 Petitions for the imposition of monitoring or controls on
recyclable metallic materials; Public hearings.
(a) Scope. Section 7(c) of the Export Administration Act of 1979
(EAA) provides for the filing and review of petitions seeking the
imposition of monitoring or controls on recyclable metallic materials.
(b) Eligibility for filing petitions. Any entity, including a trade
association, firm or certified or recognized union or group of workers,
which is representative of an industry or a substantial segment of an
industry which processes metallic materials capable of being recycled
with respect to which an increase in domestic prices or a domestic
shortage, either of which results from increased exports, has or may
have a significant adverse effect on the national economy or any sector
thereof, may submit a written petition to BXA requesting the monitoring
of exports, or the imposition of export controls, or both, with respect
to such materials.
(c) Public hearings. The petitioner may also request a public
hearing. Public hearings may also be requested by an entity, including
a trade association, firm, or certified or recognized union or group of
workers, which is representative of an industry or a substantial
segment of an industry which processes, produces or exports the
metallic materials which are the subject of a petition.
(d) Mailing address. Submit petitions pursuant to section 7(c) of
the EAA to: Bureau of Export Administration, U.S. Department of
Commerce, P.O. Box 273, Washington, D.C. 20230.
Supplement No. 1 to Part 754--Petroleum and Petroleum Products
This Supplement provides relevant Schedule B numbers and a
commodity description of the items controlled by ECCNs 1C980, 1C981,
1C982, 1C983, and 1C984.
------------------------------------------------------------------------
Schedule B No. Commodity description <SUP>1
------------------------------------------------------------------------
Crude Oil
------------------------------------------------------------------------
2709.0710.................... Crude petroleum (including reconstituted
crude petroleum), tar sands and crude
shale oil.
2710.0710.................... Petroleum, partly refined for further
refining.
------------------------------------------------------------------------
Petroleum Products
------------------------------------------------------------------------
2804.29.0010................. Helium.
2804.10.0000................. Hydrogen.
2814.20.0000................. Ammonia, aqueous.
2811.21.0000................. Carbon dioxide and carbon monoxide.
2710.00.0550................. Distillate fuel oils, having a Saybolt
Universal viscosity at 100 deg.F. of
less than 45 seconds.
2710.00.1007................. Distillate fuel oils (No. 4 type) having
a Saybolt Universal viscosity at 100
deg.F. of 45 seconds or more, but not
more than 125 seconds.
2710.00.1050................. Fuel oils, having a Saybolt Universal
viscosity at 100 deg.F. of more than
125 seconds.
2711.11.0000................. Natural gas, methane and mixtures thereof
(including liquefied natural gas and
synthetic or substitute natural gas).<SUP>2
2711.14.0000................. Ethane with a minimum purity of 95 liquid
volume percent.
2711.12.0000................. Propane with a minimum purity of 90
liquid volume percent.
2711.13.0000................. Butane with a minimum purity of 90 liquid
volume percent.
2711.19.0000................. Other natural gases (including mixtures),
n.s.p.f. and manufactured gas.
2710.00.1510................. Gasoline, motor fuel (including
aviation).
2710.00.1520................. Jet fuel, naphtha-type.
2710.00.1530................. Jet fuel, kerosene-type.
2710.00.1550................. Other motor fuel (including tractor fuel
and stationary turbine fuel).
2710.00.2000................. Kerosene derived from petroleum, shale
oil, natural gas, or combinations
thereof (except motor fuel).
2710.00.2500................. Naphthas derived from petroleum, shale
oil, natural gas, or combinations
thereof (except motor fuel).
2710.00.5030................. Mineral oil of medicinal grade derived
from petroleum, shale oil or both.
3819.00.0000................. Hydraulic fluids, including automatic
transmission fluids.
2710.00.3010................. Aviation engine lubricating oil, except
jet engine lubricating oil.
2710.00.3020................. Jet engine lubricating oil 475.4520
Automotive, diesel, and marine engine
lubricating oil.
2710.00.3030................. Turbine lubricating oil, including
marine.
2710.00.3040................. Automotive gear oils.
2710.00.3050................. Steam cylinder oils.
2710.00.5045................. Insulating or transformer oils.
2710.00.3070................. Quenching or cutting oils.
2710.00.3080................. Lubricating oils, n.s.p.f., except white
mineral oil.
2710.00.3700................. Greases.
2710.00...................... Carbon black feedstock oil.
2712.10.0000................. Petroleum jelly and petrolatum, all
grades.
2710.00.5040................. White mineral oil, except medicinal
grade.
2710.00.5060................. Other non-lubricating and non-fuel
petroleum oils, n.s.p.f.
2814.10.0000................. Ammonia, anhydrous.
2712.20.0000................. Paraffin wax, crystalline, fully refined.
2712.90.0000................. Paraffin wax, crystalline, except fully
refined.
2712.90.0000................. Paraffin wax, all others (including
microcrystalline wax).
2517.30.0000................. Paving mixtures, bituminous, based on
asphalt and petroleum.
2713.12.0000................. Petroleum coke, calcined.
2714......................... Petroleum asphalt.
[[Page 12850]]
2713.11.0000................. Petroleum coke, except calcined.
------------------------------------------------------------------------
<SUP>1 The commodity descriptions provided in this Supplement for the most
part reflect those found in the U.S. Department of Commerce, Bureau of
the Census, (1990 Edition) Statistical Classification of Domestic and
Foreign Commodities Exported from the United States (1990 Ed., as
revised through Jan. 1994). In some instances the descriptions are
expanded or modified to ensure proper identification of products
subject to export restriction. The descriptions in this Supplement,
rather than Schedule B Number, determine the commodity included in the
definition of ``Petroleum'' under the Naval Petroleum Reserves
Production Act.
<SUP>2 Natural gas and liquefied natural gas (LNG), and synthetic natural gas
commingled with natural gas (Schedule B Nos. 2711.11.0000,
2711.14.0000, and 2711.19.0000) require export authorization from the
U.S. Department of Energy.
Supplement No. 2 to Part 754--Unprocessed Western Red Cedar
This Supplement provides relevant Schedule B numbers and a
commodity description of the items controlled by ECCN 1C988. The
----------------------------------------------------------------------------------------------------------------
Schedule B No. 1 <SUP>1 Commodity description Unit of quantity <SUP>2
----------------------------------------------------------------------------------------------------------------
200.3516................................. Western red cedar (Thuja plicata) logs and MBF
timber.
202.2820................................. Western red cedar lumber; rough, containing MBF
wane.
202.2840................................. Western red cedar lumber; dressed or worked, MBF
containing wane.
----------------------------------------------------------------------------------------------------------------
<SUP>1 Schedule B Numbers are provided only as a guide to proper completion of the Shipper's Export Declaration, Form
No. 7525 V.
<SUP>2 For export licensing purposes, report commodities on Form BXA-748P in units of quantity indicated.
Supplement No. 3 to Part 754--Statutory Provisions Dealing With Exports
of Crude Oil
[The statutory material published in this Supplement is for the
information of the reader only. See the U.S. Code for the official
text of this material.]
Public Law 104-58
SEC. 201. EXPORTS OF ALASKAN NORTH SLOPE OIL.
Section 28 of the Mineral Leasing Act (30 U.S.C. 185(s)) is
amended by amending subsection(s) to read as follows:
``EXPORTS OF ALASKAN NORTH SLOPE OIL
(1) Subject to paragraphs (2) through (6) of this subsection and
notwithstanding any other provision of this Act or any other
provision of laws (including any regulation) applicable to the
export of oil transported by pipeline over right-of-way granted
pursuant to section 203 of the Trans-Alaska Pipeline Authorization
Act (43 U.S.C. 1652), such oil may be exported unless the President
finds that exportation of this oil is not in the national interest.
The President shall make his national interest determination within
five months of the date of enactment of this subsection. In
evaluating whether exports of this oil are in the national interest,
the President shall at a minimum consider--
(A) whether exports of this oil would diminish the total
quantity or quality of petroleum available to the United States;
(B) the results of an appropriate environmental review,
including consideration of appropriate measures to mitigate any
potential adverse effects of exports of this oil on the environment,
which shall be completed within four months of the date of the
enactment of this subsection; and
(C) whether exports of this oil are likely to cause sustained
material oil supply shortages or sustained oil prices significantly
above world market levels that would cause sustained material
adverse employment effects in the United States or that would cause
substantial harm to consumers, including noncontiguous States and
Pacific territories.
If the President determines that exports of this oil are in the
national interest, he may impose such terms and conditions (other
than a volume limitation) as are necessary or appropriate to ensure
that such exports are consistent with the national interest.
(2) Except in the case of oil exported to a country with which
the United States entered into a bilateral international oil supply
agreement before November 26, 1979, or to a country pursuant to the
International Emergency Oil Sharing Plan of the International Energy
Agency, any oil transported by pipeline over right-of-way granted
pursuant to section 203 of the Trans-Alaska Pipeline Authorization
Act (43 U.S.C. 1652) shall, when exported, be transported by a
vessel documented under the laws of the United States and owned by a
citizen of the United States (as determined in accordance with
section 2 of the Shipping Act, 1916 (46 U.S.C. App. 802)).
(3) Nothing in this subsection shall restrict the authority of
the President under the Constitution, the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.), the National
Emergencies Act ( ) U.S.C. 1601 et seq.), or Part B of title II of
the Energy Policy and Conservation Act (42 U.S.C. 6271-76) to
prohibit exports.
(4) The Secretary of Commerce shall issue any rules necessary
for implementation of the President's national interest
determination, including any licensing requirements and conditions,
within 30 days of the date of such determination by the President.
The Secretary of Commerce shall consult with the Secretary of Energy
in administering the provisions of this subsection.
(5) If the Secretary of Commerce finds that exporting oil under
authority of this subsection has caused sustained material oil
supply shortage or sustained oil prices significantly above world
market levels and further finds that these supply shortages or price
increases have caused or are likely to cause sustained material
adverse employment effects in the United States, the Secretary of
Commerce, in consultation with the Secretary of Energy, shall
recommend, and the President may take, appropriate action concerning
exports of this oil, which may include modifying or revoking
authority to export such oil.
(6) Administrative action under this subsection is not subject
to sections 551 and 553 through 559 of title 5, United States Code.
MINERAL LANDS LEASING ACT
30 U.S.C. 185(u)
Limitations on Export
Any domestically produced crude oil transported by pipeline over
rights-of-way granted pursuant to this section, except such crude
oil which is either exchanged in similar quantity for convenience or
increased efficiency of transportation with persons or the
government of an adjacent foreign state, or which is temporarily
exported for convenience or increased efficiency of transportation
across parts of an adjacent foreign state and reenters the United
States, shall be subject to all of the limitations and licensing
requirements of the Export Administration Act of 1979 (50 U.S.C.
App. 2401 and following) and, in addition, before any crude oil
subject this section may be exported under the limitations and
licensing requirements and penalty and enforcement provisions of the
Export Administration Act of 1979 the President must make and
publish an express finding that such exports will not diminish the
total quantity or quality of petroleum available to the United
States, and are in the national interest and are in accord with the
provisions of the Export Administration Act of 1979: Provided, That
the President shall submit reports to the Congress containing
findings made under
[[Page 12851]]
this section, and after the date of receipt of such report Congress
shall have a period of sixty calendar days, thirty days of which
Congress must have been in session, to consider whether exports
under the terms of this section are in the national interest. If the
Congress within this time period passes a concurrent resolution of
disapproval stating disagreement with the President's finding
concerning the national interest, further exports made pursuant to
the aforementioned Presidential finding shall cease.
NAVAL PETROLEUM RESERVES PRODUCTION ACT
10 Sec. 7430(e)
Any petroleum produced from the naval petroleum reserves, except
such petroleum which is either exchanged in similar quantities for
convenience or increased efficiency of transportation with persons
or the government of an adjacent foreign state, or which is
temporarily exported for convenience or increased efficiency of
transportation across parts of an adjacent foreign state and
reenters the United States, shall be subject to all of the
limitations and licensing requirements of the Export Administration
Act of 1979 (50 U.S.C. App. 2401 et seq.) and, in addition, before
any petroleum subject to this section may be exported under the
limitations and licensing requirement and penalty and enforcement
provisions of the Export Administration Act of 1979, the President
must make and publish an express finding that such exports will not
diminish the total quality or quantity of petroleum available to the
United States and that such exports are in the national interest and
are in accord with the Export Administration Act of 1979.
OUTER CONTINENTAL SHELF LANDS ACT
43 U.S.C. 1354
(a) Application of Export Administration provisions.
Except as provided in subsection (d) of this section, any oil or
gas produced from the outer Continental Shelf shall be subject to
the requirements and provisions of the Export Administration Act of
1969. Note that the Export Administration Act of 1969, referred to
in paragraphs (a) and (b) of the Supplement, terminated on September
30, 1979, pursuant to the terms of that Act.
(b) Condition precedent to exportation; express finding by
President of no increase in reliance on imported oil or gas.
Before any oil or gas subject to this section may be exported
under the requirements and provisions of the Export Administration
Act of 1969, the President shall make and publish an express finding
that such exports will not increase reliance on imported oil or gas,
are in the national interest, and are in accord with the provisions
of the Export Administration Act of 1969.
(c) Report of findings by President to Congress; joint
resolution of disagreement with findings of President.
The President shall submit reports to Congress containing
findings made under this section, and after the date of receipt of
such reports Congress shall have a period of sixty calendar days,
thirty days of which Congress must have been in session, to consider
whether export under the terms of this section are in the national
interest. If the Congress within such time period passes a
concurrent resolution of disapproval stating disagreement with the
President's finding concerning the national interest, further
exports made pursuant to such Presidential findings shall cease.
(d) Exchange or temporary exportation of oil and gas for
convenience or efficiency of transportation.
The provisions of this section shall not apply to any oil or gas
which is either exchanged in similar quantity for convenience or
increase efficiency of transportation with persons or the government
of a foreign state, or which is temporarily exported for convenience
or increased efficiency of transportation across parts of an
adjacent foreign state and reenters the United States, or which is
exchanged or exported pursuant to an existing international
agreement.
PART 756--APPEALS
Sec.
756.1 Introduction.
756.2 Appeal from an administrative action.
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. 756.1 Introduction.
(a) Scope. This part 756 describes the procedures applicable to
appeals from administrative actions taken under the Export
Administration Act (EAA) or the Export Administration Regulations
(EAR). (In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C). Any person directly and adversely affected
by an administrative action taken by the Bureau of Export
Administration (BXA) may appeal to the Under Secretary for
reconsideration of that administration action. The following types of
administrative actions are not subject to the appeals procedures
described in this part 756:
(1) Issuance, amendment, revocation, or appeal of a regulation.
(These requests may be submitted to BXA at any time.)
(2) Denial or probation orders, civil penalties, sanctions, or
other actions under parts 764 and 766 of the EAR.
(b) Definitions. Reserved.
Sec. 756.2 Appeal from an administrative action.
(a) Review and appeal officials. The Under Secretary may delegate
to the Deputy Under Secretary for Export Administration or to another
BXA official the authority to review and decide the appeal. In
addition, the Under Secretary may designate any BXA official to be an
appeals coordinator to assist in the review and processing of an appeal
under this part. The responsibilities of an appeals coordinator may
include presiding over informal hearings.
(b) Appeal procedures--(1) Filing. An appeal under this part must
be received by the Under Secretary for Export Administration, Bureau of
Export Administration, U.S. Department of Commerce, Room H-3886C, 14th
Street and Pennsylvania Avenue, N.W., Washington, DC 20230, not later
than 45 days after the date appearing on the written notice of
administrative action.
(2) Content of appeal. The appeal must include a full written
statement in support of appellant's position. The appeal must include a
precise statement of why the appellant believes the administrative
action has a direct and adverse effect and should be reversed or
modified. The Under Secretary may request additional information that
would be helpful in resolving the appeal, and may accept additional
submissions. The Under Secretary will not ordinarily accept any
submission filed more than 30 days after the filing of the appeal or of
any requested submission.
(3) Request for informal hearing. In addition to the written
statement submitted in support of an appeal, an appellant may request,
in writing, at the time an appeal is filed, an opportunity for an
informal hearing. The Under Secretary may grant or deny a request for
an informal hearing. Any hearings will be held in the District of
Columbia unless the Under Secretary determines, based upon good cause
shown, that another location would be better.
(4) Informal hearing procedures. (i) Presentations. The Under
Secretary shall provide an opportunity for the appellant to make an
oral presentation based on the materials previously submitted by the
appellant or made available by the Department in connection with the
administrative action. The Under Secretary may require that any facts
in controversy be covered by an affidavit or testimony given under oath
or affirmation.
(ii) Evidence. The rules of evidence prevailing in courts of law do
not apply, and all evidentiary material deemed by the Under Secretary
to be relevant and material to the proceeding, and not unduly
repetitious, will be received and given appropriate weight.
(iii) Procedural questions. The Under Secretary has the authority
to limit the number of people attending the hearing, to impose any time
or other limitations deemed reasonable, and to determine all procedural
questions.
(iv) Transcript. A transcript of an informal hearing shall not be
made,
[[Page 12852]]
unless the Under Secretary determines that the national interest or
other good cause warrants it, or the appellant requests a transcript.
If the appellant requests a transcript, the appellant will be
responsible for paying all expenses related to production of the
transcript.
(v) Report. When the Under Secretary designates another BXA
official to conduct an informal hearing, that official will submit a
written report containing a summary of the hearing and recommended
action to the Under Secretary.
(c) DecisionsT1(1)--Determination of appeals. In addition to the
documents specifically submitted in connection with the appeal, the
Under Secretary shall consider any recommendations, reports, or
relevant documents available to BXA in determining the appeal, but
shall not be bound by any such recommendation, nor prevented from
considering any other information, or consulting with any other person
or groups, in making a determination. The Under Secretary may adopt any
other procedures deemed necessary and reasonable for considering an
appeal. The Under Secretary shall decide an appeal within a reasonable
time after receipt of the appeal. The decision shall be issued to the
appellant in writing and contain a statement of the reasons for the
action.
(2) Effect of the determination. The decision of the Under
Secretary shall be final.
(d) Effect of appeal. Acceptance and consideration of an appeal
shall not affect any administrative action, pending or in effect,
unless the Under Secretary, upon request by the appellant and with
opportunity for response, grants a stay.
PART 758--EXPORT CLEARANCE REQUIREMENTS
Sec.
758.1 Export clearance requirements.
758.2 Use of export license.
758.3 Shipper's Export Declaration (SED).
758.4 Conformity of documents for shipments under export licenses.
758.5 General destination control requirements.
758.6 Destination control statement.
758.7 Authority of the Office of Export Enforcement, the Bureau of
Export Administration, Customs offices and Postmasters in clearing
shipments.
758.8 Return or unloading of cargo at direction of BXA, the Office
of Export Enforcement or Customs Service.
758.9 Other applicable laws and regulations.
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. 758.1 Export clearance requirements.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C.
(a) Responsibility of licensee, exporter and agent. (1) If you are
issued a BXA license, or you rely on a License Exception described in
part 740 of the EAR, you are responsible for the proper use of that
license or License Exception and for the performance of all of its
terms and conditions.
(2) If you export without either a license issued by BXA or a
License Exception, you are responsible for determining that the
transaction is outside the scope of the EAR or the export is designated
as ``No License Required'' as described in paragraph (a)(3) of this
section.
(3)(i) ``No License Required''. Items that are listed on the
Commerce Control List (CCL) (Supplement No. 1 to part 774 of the EAR)
but that do not require a license by reason of the Country Chart
contained in Supplement 1 to part 738 of the EAR, and items designated
EAR99 (See Sec. 734.3(c) of the EAR entitled ``Scope of the EAR'') must
be designated as ``NLR'', or ``no license required'', on your shipping
documents in accordance with the provisions of this part.
(ii) NLR notation. Entering the symbol NLR is a representation to
the U.S. Government that the items being exported are listed on the CCL
but do not require a license by reason of the Country Chart or that
they are within the scope of EAR99 (See Sec. 734.3(c) of the EAR
entitled ``Scope of the EAR''); that they do not require a license
under General Prohibitions One (Exports and Reexports), Two (Parts and
Components Reexports), or Three (Foreign-produced Direct Product
Reexports); that General Prohibitions Four through Ten do not apply to
the given export, reexport, or other activity; and that the items are
subject to the EAR.
(4) License Exception symbol. Entering a License Exception symbol
on an export control document is a representation to the U.S.
Government that the transaction meets all of the terms and conditions
of the License Exception cited. (See part 740 of the EAR for details
regarding License Exceptions.)
(5) Software and technology not subject to the EAR. If you are
exporting software or technology that is outside the scope of the EAR
as described in Secs. 734.7 through 734.11 of the EAR, you may use the
symbol TSPA. Use of this symbol is optional; however, if you enter it
on an export control document, you are making a representation to the
U.S. Government that the technology or software is outside the scope of
the EAR.
(b) Forwarding agent.--(1) Authorizing a forwarding agent. A
forwarding agent is a person the exporter authorizes to perform
services that facilitate the export described on the Shipper's Export
Declaration (SED). The agent must be authorized to act on behalf of the
exporter either for the specific transaction for which the agent is
submitting the SED or under a general power of attorney. The Foreign
Trade Statistics Regulations of the Bureau of the Census (15 CFR part
30) provide the specific requirements for obtaining authorization as a
forwarding agent.
(2) Forwarding agent as licensee. If the forwarding agent is
appointed at the suggestion of a foreign buyer, the seller may insist
that the agent apply for the export license. See Sec. 748.4(a)(1) of
the EAR which defines parties to a transaction.
(3) Record and proof of agent's authority. The power-of-attorney or
other authorization from the exporter must be retained on file in the
forwarding agent's office while the authorization is in force and for a
period of five years after the last action taken by the forwarding
agent under the authority. During this retention period, the forwarding
agent must make its delegation of authority from the exporter available
for inspection on demand, in accordance with the provisions of
Sec. 762.6 of the EAR. This recordkeeping and inspection requirement
also applies to any redelegation of the forwarding agent's authority
and to any person to whom the forwarding agent redelegates its
authority. (For further recordkeeping requirements see part 762 of the
EAR).
(c) Responsibility for compliance. Acting through a forwarding
agent, or other agent or delegation or redelegation of authority, does
not relieve anyone of responsibility for compliance with the EAR.
Forwarding agents, carriers and others who participate in transactions
that are subject to the EAR are also responsible for complying with the
EAR.
(d) Exports by U.S. Mail.--(1) Exports made under a license issued
by BXA. Before making an export by U.S. Mail that is authorized by a
license issued by BXA, you must enter the license number on the address
side of the parcel and submit a properly executed SED to the post
office at the place of mailing, when required by the regulations in
this part and/or the Foreign Trade Statistics
[[Page 12853]]
Regulations of the U.S. Bureau of the Census. <SUP>1
\1\ The Shipper's Export Declaration (U.S. Department of
Commerce form 7525-V) may be purchased from the Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402, or
it may be privately printed. Form 7525-V-Alt (Intermodal), must be
privately printed. Privately printed forms must strictly conform to
the official form in all respects. Samples of these forms may be
obtained from the Bureau of the Census, Washington, DC 20233, local
Customs offices, and the U.S. Department of Commerce District
Offices.
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(2) Shipments without a license. The requirements of this paragraph
apply whenever you export items that do not require a license under the
EAR. These requirements apply regardless of whether your transaction
does not require a license because the item you are going to ship is
encompassed with EAR99 (See Sec. 734.3(c) of the EAR entitled ``Scope
of the EAR''), because the item, although on the list, does not require
a license to be exported to the destination to which you intend to ship
or because the transaction qualifies for a License Exception as
described in part 740 of the EAR.
(i) Shipments to Canada for consumption therein. An SED is not
required for exports of items to Canada if the items are for
consumption in Canada and the export transaction does not require a
license from BXA. Note that if the item you are exporting to Canada is
controlled by another government agency, the regulations of that agency
may require you to file a SED.
(ii) Shipments to Puerto Rico or U.S. territories or possessions.
Exports of items to Puerto Rico or the U.S. territories or possessions
do not require a license issued by BXA. However, the regulations of the
Census Bureau (15 CFR part 30) may still require you to file a SED.
(iii) Shipments valued over $500. When mailing an item from one
business concern to another where the total value of the items being
shipped exceeds $500, you must present an executed SED to the post
office at the place of mailing unless the EAR or the Bureau of the
Census Foreign Trade Statistics Regulations specifically provide an
exception to this requirement. If either the exporter or recipient is
not a business concern, no SED is required.
(iv) Designation on SED and/or parcel. If you are exporting an item
that is encompassed within EAR99 (See Sec. 734.3(c) of the EAR entitled
``Scope of the EAR''), or one that is listed on the CCL but no license
is required to the destination to which you are shipping, or you are
exporting pursuant to a License Exception, as described in part 740 of
the EAR, you must enter the appropriate symbol indicating the absence
of a license requirement either NLR, meaning ``No License Required'' or
the applicable License Exception symbol, on the SED and on the address
side of the parcel along with the phrase ``Export License Not
Required.'' If your transaction is one for which you are not required
to file a SED, you must enter the appropriate symbol NLR, meaning no
license required or of the applicable License Exception on the address
side of the parcel along with the phrase ``Export License Not
Required.'' If you are exporting technology or software that is outside
the scope of the EAR as described in Sec. 734.7 through 734.11 you may
enter the symbol TSPA.
(A) By entering the symbol NLR you are representing to the U.S.
Government that the items you are exporting are listed on the CCL (See
Supplement No. 1 to part 774 of the EAR) but do not require a license
by reason of the Country Chart (Supplement No. 1 to part 738 of the
EAR) or because they are encompassed within the EAR99 (See
Sec. 734.3(c) of the EAR entitled ``Scope of the EAR''); that they do
not require a license under General Prohibitions One (Exports and
reexports of controlled items to listed countries), Two (Parts and
Components Reexports), or Three (Foreign Produced Direct Product
Reexports); that General Prohibitions Four through Ten do not apply to
the given export, reexport, or other activity; and that the item is
subject to the EAR.
(B) By entering a License Exception symbol, you are representing to
the U.S. Government that your transaction meets all of the terms and
conditions of the License Exception you are using. (See part 740 of the
EAR for details regarding License Exceptions).
(C) By entering the symbol TSPA you are representing to the U.S.
Government that the technology or software you are exporting is outside
the scope of the EAR.
(v) Gift parcels. If you are sending a gift parcel pursuant to the
requirements of Sec. 746.16 of the EAR, you must enter the phrase
``Gift--export license not required'' on any customs declaration
documents and on the address side of the parcel.
(vi) Software and technology. If you are exporting software or
technology, the export of which is authorized under the License
Exceptions in Sec. 740.17 through Sec. 740.21 of the EAR, you do not
need to make any notation on the package. If you are exporting software
or technology that is outside the scope of the EAR, check to see if any
other agency's regulations require specific markings on the package.
(3) When you enter any of the symbols or phrases referred to in
paragraph (d) of this section on the documents or packages, you are
certifying to the post office and to BXA that you are exporting the
package in compliance with all of the terms and provisions of an
applicable License Exception or other authority to export.
(e) Exports by means other than U.S. Mail. (1) When SEDs are
required to be submitted, the exporter or the exporter's agent must
present a duly executed SED to the exporting carrier before the vessel,
aircraft, or overland transport depart.
(i) Exemptions to SED. A SED is not required for:
(A) Any shipment, other than a shipment made under a license issued
by BXA, to any country in Country Group B (See Supplement No. 1 to part
740 of the EAR) or to the People's Republic of China if the shipment is
valued at $2,500 or less per Schedule B Number. The schedule B number
of an item is that shown in the current edition of Schedule B,
Statistical Classification of Domestic and Foreign Commodities Exported
from the United States. In this Sec. 758.1(e), ``shipment'' means all
items classified under a single Schedule B Number, shipped on the same
carrier, from one exporter to one importer. The Foreign Trade
Statistics Regulations of the Bureau of the Census (15 CFR part 30)
shall govern the valuation of items when determining whether a shipment
meets the $2,500 threshold of this Sec. 758.1(e)(1)(i)(A).
(B) Any shipment reported under the provisions of the Monthly
Reporting Procedure (Sec. 758.3(o) of this part); or
(C) Any shipment made under any other exception to the SED
requirements found in Subpart D of the Bureau of the Census' Foreign
Trade Statistics Regulations. See Supplement No. 1 to this part 758.)
(ii) Exceptions from SED requirements. (A) Statement on shipping
documents. If you are exempt by paragraph (e)(1) of this section from
the requirement of filing a SED, the Bureau of the Census Foreign Trade
Statistics Regulations (FTSR) (15 CFR 30.50), require you to make a
statement on the bill of lading, air waybill, or other loading document
describing the basis for the exemption and referencing the specific
section of the FTSR where the exemption is provided, unless the
exemption is based on value and destination. If the exemption is based
on the value and destination of your shipment, you must state the basis
for the exemption, but you do not have to cite a reference to the
specific section of the FTSR containing the exemption.
[[Page 12854]]
(B) Monthly reporting procedures. (1) All forwarders or brokers who
use the monthly reporting procedures described in FTSR Sec. 30.39 (15
CFR 30.39) on behalf of exporters who are not themselves exempt from
the individual filing requirement must also include on the bill of
lading, air waybill (including house air waybill), or other loading
document either the number of and expiration date of an export license
issued by BXA, or the appropriate symbol indicating the inapplicability
of an export license requirement (either NLR, meaning ``No License
Required'' or of the applicable License Exception, from part 740 of the
EAR).
(2) The notation required by paragraph (e)(1)(ii)(B)(1) of this
section applies to any bill of lading or other loading document,
including one issued by a consolidator (indirect carrier) for an export
included in a consolidated shipment. However, this requirement does not
apply to a ``master'' bill of lading or other loading document issued
by a carrier to cover a consolidated shipment. The bill of lading or
other loading document must be available for inspection along with the
goods or data prior to lading on the carrier.
(2) Export carrier SED information. The exporting carrier, or if
none is utilized, the exporter or agent is responsible for the accuracy
of the following items of information (where required) on the SED:
(i) Name of carrier (including flag of vessel),
(ii) U.S. Customs port of export,
(iii) Method of transportation,
(iv) Foreign port of unloading,
(v) Bill of lading or air waybill number, and
(vi) Whether or not containerized.
(3) Exports not requiring a license. Even if your shipment does not
require a license from BXA, it may still require a SED. Before
shipping, check the Bureau of the Census Foreign Trade Statistics
Regulations for the complete SED requirements.
(f) Shipments transiting Canada en route to other countries--(1)
Shipments moving under individual SED. When an export to a foreign
country is made in transit through Canada, and the shipment is one for
which an individual SED is required by this part 758, the U.S. exporter
must submit to the Canadian Customs authorities at the Canadian port of
entry a copy of the U.S. SED, Form 7525-V, certified by the exporter as
``A True Copy'' of the original SED.
(2) Shipments for which individual SED are not required. When an
export to a foreign country is made in transit through Canada, and the
shipment is one for which an individual SED is not required because:
(i) The forwarder or broker is authorized to report export
information to Census by means other than an individual SED; or
(ii) The shipment qualifies for a specific exemption (listed in
Subpart D of the Census Bureau Foreign Trade Statistics Regulations),
the forwarder or broker must include the number of and expiration date
of the license issued by BXA, or the appropriate symbol indicating the
inapplicability of an export license requirement (either NLR, meaning
``No License Required'' of the applicable License Exception from part
740 of the EAR on the bill of lading or other loading document as
directed in paragraph (e)(2) of this section). The bill of lading or
other loading document properly annotated with respect to the FTSR SED
exemption or exception, along with the license authorization, when
required, must be displayed to the Canadian Customs authorities at the
Canadian port of entry and a copy provided, if requested by the
Canadian authorities.
Sec. 758.2 Use of export license.
(a) License valid for shipment from any port. A license issued by
BXA authorizes exports from the United States from any U.S. port of
export unless the license notes otherwise. Items that leave the United
States at one port, cross adjacent foreign territory, and reenter the
United States at another port before final export to a foreign country
will be treated as an export from the last U.S. port of export.
(b) Shipments against expiring license. (1) Any item that has not
departed from the last U.S. port of export by midnight of the
expiration date of the license may not be exported under that license
unless the shipment meets the requirements of paragraph (b)(1)(i) or
(ii) of this section.
(i) BXA grants an extension; or
(ii) Prior to midnight of the expiration date of the license, the
items:
(A) Were laden aboard the vessel; or
(B) Were located on a pier ready for loading and not for storage,
and were booked for a vessel that was at the pier ready for loading; or
(2) When the vessel is expected to be available at the pier for
loading before the license expires, but exceptional and unforeseen
circumstances delay it, the items may be exported without an extension
of the license, if in the judgment of the U.S. Customs Service or BXA,
undue hardship would otherwise result.
(c) Reshipment of undelivered items. If the consignee does not
receive an export made under a license because the carrier failed to
deliver it, the exporter may reship the same or an identical item
subject to the same limitations as to quantity or value as described on
the license to the same consignee and destination under the same
license. Before reshipping, the exporter must submit to the OEXS
satisfactory evidence of the original export and of the delivery
failure, together with a satisfactory explanation of the delivery
failure. If an item is to be reshipped to any person other than the
original consignee, the shipment is deemed to be a new export and is
subject to all current EAR regarding the specific item and destination.
Sec. 758.3 Shipper's Export Declaration (SED).
(a) SED presentation requirement. Both the Foreign Trade Statistics
Regulations of the Census Bureau (15 CFR part 30) and these Export
Administration Regulations require that SED's be submitted to the U.S.
Government. There are a few exceptions to this rule, but if you are
required to submit a SED you must prepare it in accordance with the
rules of the Foreign Trade Statistics Regulations (FTSR) and present
the number of copies specified in the FTSR at the port of export.
(b) SED is a statement to the U.S. Government. Your SED is a
statement to the U.S. Government in which you assert that all of the
information shown on the SED is true. You may execute and submit the
SED only if you are the exporter or the duly authorized forwarding
agent of an exporter.
(c) Limitation on time when SED may be used. No one may use a SED
to export, or facilitate or effect an export, after the expiration of
the applicable license or after the termination of the applicable
License Exception or provisions of the EAR that authorize export
without a license, except as provided in Sec. 750.7(f) (License
validity period) of the EAR and Sec. 758.2(b) (Shipments against
expiring license) of this part.
(d) Additional copies of the SED. You are required to submit
additional copes of the SED when:
(1) BXA or one of its component offices asks you to send it copies
of the SED for exports:
(i) Authorized by a license (see paragraph (l) of this section);
(ii) Authorized by a Special Comprehensive License (see
Sec. 752.16(a)(5) of the EAR; or
(iii) The items are controlled for short supply reasons (see part
754 of the EAR); or
[[Page 12855]]
(iv) Required by Sec. 758.1(f) (shipments transiting Canada) of
this part.
(2) [Reserved]
(e) Statements on SED. Whenever a SED is presented to a carrier, a
customs office, or a postmaster, the exporter represents that:
(1) All statements and information on the SED have been furnished
by the exporter or on the exporter's behalf to effect an export under
the provisions of the EAR;
(2) Export of the items described on the SED is authorized under
the ``No License Required'' provisions of the EAR as described in
Sec. 758.1(a) of this part, a License Exception described in part 740
of the EAR or the license identified on the SED;
(3) Statements contained on the SED are consistent with the
contents of the license or the terms, provisions, and conditions of the
applicable License Exception or of the applicable ``No License
Required'' provisions of the EAR as described in Sec. 758.1(a) of this
part; and
(4) All other terms, provisions, and conditions of the EAR
applicable to the export have been met.
(f) Items that may be listed on the same SED. (1) General. Except
as described in paragraph (f)(2) of this section, more than one item
may be listed on the same SED provided they are contained in one
shipment on board a single carrier and are going from the same exporter
to the same consignee. Even if some of the items are being shipped
under authority of a license and others under a License Exception or
the ``No License Required'' provisions of the EAR (as described in
Sec. 758.1(a) of this part), they may still be shown on one SED. For
the second and subsequent authorizations used, the applicable license
number and expiration date, License Exception symbol, or the ``No
License Required'' symbol (NLR) must be shown along with the
descriptions (including quantity, if required, Schedule B Number, and
value) to which each authorization applies, in the designated spaces on
a separate SED Continuation Sheet. The following apply for notations
made on SED:
(i) Entering the license number and expiration date is a
representation to the U.S. Government that the transaction is
authorized by the license cited.
(ii) Entering a License Exception symbol, or ``NLR'' is a
representation to the U.S. Government that the shipment meets one of
the applicable provisions of paragraph (a)(3) of Sec. 758.1 of this
part.
(2) Exception. Separate SED's must be prepared and presented for
each vehicle when more than one vehicle is used to make the shipment.
Customs Directors may waive this requirement if a shipment is made
under a single bill of lading or other loading document and all the
items listed on the SED are cleared simultaneously.
(g) Schedule B number and item description--(1) Schedule B number.
You must enter the Schedule B number, as shown in the current edition
of Schedule B, Statistical Classification of Domestic and Foreign
Commodities Exported from the United States, in the designated column
of the SED regardless of whether the shipment is being exported under
authority of a license issued by BXA, a License Exception described in
part 740 of the EAR, or the ``No License Required'' provisions of the
EAR as described in Sec. 758.1(a) of this part.
(2) Item description for exports under a license. (i) General. If
your export is being made under the authority of a license issued by
BXA, you must enter the item description shown on the license on the
SED. However, if part of the description on the license is underlined,
you need place only the underlined portions on the SED. The item
description on the license will be stated in CCL terms, which may be
inadequate to meet Census Bureau requirements. In this event, the item
description you place on the SED must give enough additional detail to
permit verification of the Schedule B number (e.g., size, material, or
degree of fabrication).
(ii) Distinguishing characteristics or specifications. If a
commodity classification in Schedule B has instructions such as
``specify by name,'' ``state species,'' etc., you must furnish that
information in the column of the SED provided for the commodity
description. When a single SED covers more than one item classifiable
under a single classification carrying the ``specify by name'' or
similar requirement, you must enter each item separately in this
column. However, if more than five items are involved, all classifiable
under one Schedule B number, only the five items of greatest value in
the classification need be shown separately. Separate quantities,
values, and shipping weights for individual items are not required in
either case.
(3) Item description for License Exception shipments or shipments
for which no license is required. For items that may be exported under
the authority of a License Exception, or under the ``No License
Required'' provisions of the EAR (as described in Sec. 758.1(a) of this
part), you must enter a description in sufficient detail to permit
review by the U.S. Government and verification of the Schedule B number
entered on the SED.
(h) License number or other authorization designation. (1) Exports
under authority of a license issued by BXA. You must show the license
number and expiration date, the Export Control Classification Number
(ECCN) and the item description, in the designated spaces of a SED
covering an export under a license issued by BXA (The space for the
item description on the SED form may be headed ``commodity
description''). If you intend to include other items on the SED that
may be exported under a License Exception, or under the ``No License
Required'' provisions of the EAR, (as described in Sec. 758.1(a) of
this part) you must show the License Exception or ``NLR'' symbol, along
with the specific description (quantity, Schedule B, value) of the
item(s) to which the authorization applies in the designated spaces on
a separate SED continuation sheet.
(2) Exports not needing a license. In addition to the item
description, the appropriate License Exception symbol, or the ``No
License Required'' symbol (NLR) must be shown in the appropriate column
of each SED or SED continuation sheet covering a shipment under
authority of a License Exception (see part 740 of the EAR), or ``No
License Required'' provisions of the EAR (as described in Sec. 758.1(a)
of this part). If several authorizations are to be listed on one SED,
the SED and continuation sheets must be completed as described in
paragraph (f)(1) of this section. If the item(s) will be exported under
the provisions of LST (License Exceptions GBS, CIV, LVS) or under the
``NLR'' provisions of the EAR (as described in Sec. 758.1(a) of this
part) and the item(s) are covered by entries on the Commerce Control
List that have the column identifier ``NS Column 2'' controlled for
``NS'' reasons, the ECCN must also be shown in the designated space on
the SED or SED continuation sheet. The following apply for notations
made on SED:
(i) Entering the license number and expiration date is a
representation to the U.S. Government that the transaction is
authorized by the license cited.
(ii) Entering a License Exception symbol, or ``NLR'' is a
representation to the U.S. Government that the shipment meets one of
the applicable provisions of paragraphs (a)(3) through (a)(4) of
Sec. 758.1 of this part.
(3) If you are exporting technology or software that is outside the
scope of the EAR as described in Secs. 734.7 through 734.11 of the EAR,
you may enter the symbol TSPA on the SED. Use of this
[[Page 12856]]
symbol is optional, however, if you enter it, you are representing to
the U.S. Government that the software or technology you are exporting
is outside the scope of the EAR.
(i) Optional ports of unlading. (1) Applicability. If, prior to the
departure of the exporting carrier, the exporter does not know at what
port the shipment will be unloaded, the exporter may designate optional
ports of unlading on the SED and bill of lading or air waybill in
accordance with the provisions of this paragraph. There are
restrictions on the countries in which these optional ports may be
located. The restrictions depend on whether the export is authorized
under the ``No license Required'' provisions of the EAR (as described
in Sec. 758.1(a) of this part), the License Exceptions described in
part 740 of the EAR, or a license (See paragraph (j)(3) of this
section).
(2) Exemptions. You may never designate an optional port of
unlading for a shipment destined directly or indirectly to Country
Group D:1 in Supplement No. 1 to part 740 of the EAR (except for the
People's Republic of China), Libya, Cuba, or North Korea.
(3) Shipments for which no license is required or which are
authorized by a License Exception. (i) For exports under the authority
of the ``No License Required'' provisions of the EAR (as described in
Sec. 758.1(a) of this part), if the exporter does not know which of
several countries in Country Group B or the People's Republic of China
is the country of ultimate destination, the exporter may name optional
ports of unlading in one or more of these countries.
(ii) When an export under any License Exception is shipped in
transit through a country other than the country of ultimate
destination, the exporter may designate optional ports of unlading in
one or more countries, together with the name and address of the
intermediate consignee in each country designated.
(4) Restrictions on optional ports of unlading. The optional ports
of unlading, which the exporter designates on the SED pursuant to
paragraph (i)(3)(i) of this section, must be in a country to which the
item being unloaded may be exported directly from the United States
under the same or another applicable ``No License Required'' provision
of the EAR (described in Sec. 758.1(a) of this part), or License
Exception contained in the EAR.
(5) Shipments under a license issued by BXA. For exports under a
license, optional ports of unlading are restricted to the country of
ultimate destination, unless either the transaction complies with the
provisions of Sec. 750.7 of the EAR dealing with continuity of
shipments, or the license designates intermediate consignees in other
countries. In the latter case, the optional ports of unlading must be
designated as optional intransit points on the SED, or if there is no
SED, on the Shipper's Letter of Instructions, or, if there is neither,
the optional port of unlading must appear on another document
containing instructions that the exporter conveys (either directly or
through an agent) to the carrier, and on the bill of lading or air
waybill.
(6) Correcting the SED. As soon as the exporter, or the exporter's
forwarding agent or carrier determines at which port the shipment is to
be unloaded (whether in the country of ultimate destination or in a
country of transit), that person must correct the SED to show the
specific port of unloading and the name and address of the intermediate
consignee to whom delivery is to be made. An intermediate consignee
must be shown if the port of unloading is located in a country other
than the country of destination. If the export is unloaded at more than
one port, the quantity and value unloaded at each port and the name and
address of each intermediate consignee must be given. The procedures
for correcting and filing SEDs may be found in paragraph (n) of this
section.
(j) Signature on SED. The exporter or the exporter's authorized
forwarding agent, or an authorized employee of either, may sign the
SED. In general, the requisite authority rests with employees who, by
their official titles, are apparently vested with power to deal with
exports, such as export managers or such corporate officers as the
president, vice president, treasurer, and secretary of a corporation,
any partner of a partnership, and any responsible head of any other
form of private or quasi-governmental organization, and assistant
officers. The signature of such person, whether that of the exporter or
authorized agent or employee, constitutes a representation by the
exporter that all statements and information in the SED are true and
correct. In addition, if the signature is that of the forwarding agent,
or the forwarding agent's duly authorized officer or employee, such
signature constitutes a like representation by the forwarding agent.
(k) Attachment to SED. (1) If you need additional space for any
information on the SED, you may use additional copies of the SED or
copies of the continuation sheet. In such cases, only one SED need be
signed. You must number the additional sheets in sequence and securely
attach them to the executed SED. You must insert the following
statement on the last line of the description line of the SED form
itself:
This SED consists of this sheet and ________ continuation
sheets.
(2) No portion of any form attached as a continuation sheet may be
torn off or removed.
(l) Special requirements for additional information and documents.
(1) A license may bear on its face a requirement to submit a SED or
other documents (or information) to the Office of Export Enforcement in
addition to that furnished when the application was filed. The exporter
and the person submitting the documents represent that the documents
are complete, truthful and accurate. The Export Administration
Regulations prohibit the making of false representations to the U.S.
Government in any export control matter (see Sec. 764.2(g) of the EAR).
The licensee must furnish the documents to: Office of Export
Enforcement, Room H-4520, U.S. Department of Commerce, 14th Street and
Constitution Ave., NW., Washington, DC 20230.
(2) When required, the licensee must:
(i) Prepare one copy of the SED in addition to the number of copies
otherwise required;
(ii) Enter the additional information called for by the license in
the space between the column provided for marks and numbers of the
shipment and the column provided for its value on all copies of the
SED; and
(iii) Unless otherwise specified on the license, attach the
required documents (either original or certified copy) to the extra
copy of the SED.
(m) SED for shipments moving in- transit. (1) Applicability. Use
the SED for In-transit Goods, Commerce Form 7513,<SUP>2 for the
following types of transactions:
\2\ Form 7513 may be purchased from the Superintendent of
Documents, U.S. Government Printing Office, Washington, D.C. 20402,
the local customs offices, or may be privately printed.
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(i) Items departing the United States by vessel, which transited
through, or transshipped in, ports of the United States, destined from
one foreign country or area to another.
(ii) Foreign merchandise exported from a General Order Warehouse
and the export of foreign-origin merchandise that was rejected after
government inspection or examination. Shipments in bond transiting the
United States being exported by means of any carrier other than a
vessel may be cleared for export without presenting a Form 7513, unless
a license is required for the export.
[[Page 12857]]
(2) Exports from Foreign Trade Zones. You may not use Form 7513 for
any exports from Foreign Trade Zones. Such shipments require the filing
of the SED (Form 7525-V), unless otherwise exempted, with the
applicable zone number reported on the Document.
(3) Additional information. The following additional information
must be entered on a SED for In-transit Goods:
(i) The name and address of the intermediate consignee in a foreign
destination, if any, must be shown below the description of the items.
(ii) Underneath the name and address of the intermediate consignee,
one of the following statements, whichever is appropriate, must be
entered:
(A) For intransit shipments of foreign-origin merchandise (see part
772 of the EAR for a definition of ``foreign-origin,''), enter the
following statement:
The merchandise described herein is of foreign-origin.
(B) For intransit shipments of domestic (U.S.) merchandise, enter
the following statement:
The merchandise described herein is of the growth, production, or
manufacture of the United States.
(C) For intransit shipments of items of U.S.-origin eligible for
License Exception TUS (See Sec. 740.9 of the EAR), enter the following
statement:
The merchandise described herein is of the growth, production, or
manufacture of the United States, but has been so altered by further
processing, manufacture, or assembly in a foreign country that it has
either been substantially enhanced in value, or has lost its original
identity with respect to form.
(iii) The items must be described in terms of Schedule B, including
the appropriate Schedule B number.
(4) See Sec. 30.8 of the Foreign Trade Statistics Regulations (15
CFR 30.8) for additional requirements concerning the information that
must be placed on a SED for In-transit Goods.
(n) Correction, change, alteration, or amendment of SED. (1)
Methods of changing SED's. The exporter or the exporter's agent must
report corrections, cancellations, additions or amendments to
information reported on SEDs to the Customs Director at the port of
exportation (or, in the case of mail shipments, to the Postmaster at
the post office where the shipment was mailed) as soon as the need for
such changes is determined. See the Foreign Trade Statistics
Regulations (15 CFR part 30) for additional information about how to
correct SEDs and file the corrections. If you are required by paragraph
(l) of this section to file a copy of the original SED with the Office
of Export Enforcement (OEE), a copy of the changed SED should be sent
to OEE at the address shown in paragraph (l) of this section with the
words ``Correction Copy'' conspicuously shown in the upper right
portion of the form.
(2) Responsibility. Nothing in this section relieves you or any
person or firm making changes on the SED from responsibility for any
such changes. Acceptance of a changed SED by the Customs office does
not imply approval of any act involved in the shipment or acceptance of
the truth or accuracy of the information provided.
(o) Summary monthly reports in lieu of individual SED's. (1) Scope.
This paragraph contains only basic information about the monthly filing
procedures for the SED. Details of the procedure may be found in
Sec. 30.39 of the Foreign Trade Statistics Regulations (FTSR) of the
Bureau of the Census (15 CFR 30.39). Exporters interested in the
procedure should consult Sec. 30.39 of the FTSR to ascertain
qualifications, how to apply for the privilege of participating, how to
file electronically after approval is given, and other pertinent facts.
(2) Applicability. Approved parties may file monthly SEDs with the
Bureau of the Census for export to destinations in Country Groups B and
D:1 (see Supplement No. 1 to part 740 of the EAR).
(3) How to request monthly reporting privileges. (i) Addresses. (A)
A request for the privilege of participating in monthly reporting
procedures should be forwarded to: Foreign Trade Division, Bureau of
the Census, Washington, D.C. 20233.
(B) A copy of all requests must be sent to: Office of Export
Enforcement, Room H-4616, U.S. Department of Commerce, 14th St. and
Constitution Ave., NW., Washington, DC 20230.
(ii) Certification requirements. The request must include the
following certification by the applicant:
I (We) certify that I (we) have established adequate internal
procedures and safeguards to assure compliance with the requirements
set forth in the U.S. Department of Commerce Export Administration
Regulations and Foreign Trade Statistics Regulations. Among other
things, these procedures and safeguards assure:
(1) A proper determination as to whether a license is required
for a particular export;
(2) Actual receipt of the export license, if required, before
the shipment is exported;
(3) Compliance with all the terms of the license, License
Exception, or NLR provisions of the EAR as applicable;
(4) Return of licenses to BXA in accordance with Sec. 750.8(b)
of the Export Administration Regulations, if requested;
(5) Compliance with the destination control statement provisions
of Secs. 758.5 and 758.6 of the Export Administration Regulations;
(6) Compliance with the prohibition against export transactions
that involve persons who have been denied U.S. export privileges;
and
(7) Compliance with the recordkeeping requirements of part 762
of the EAR and, in addition, I (we) agree that my (our) office
records will be made available for inspection by the Bureau of the
Census, BXA or the U.S. Customs Service, upon request, to verify
that a given shipment was properly included in a particular monthly
report.
(4) Exporter's agent. If the exporter intends to authorize a
forwarding agent to file electronically on the exporter's behalf, the
exporter's request must include the name and address of each such
forwarding agent.
(5) Authorization by Census to use monthly reporting procedure. Any
authorization to file summary monthly reports in lieu of individual
SEDs may be granted only by the Bureau of the Census with the
concurrence of BXA.
(6) Export clearance. (i) Destination control statement. In
addition to the exporter's responsibility for assuring that the proper
destination control statement is placed on the commercial invoice as
required by Sec. 758.6 of this part, the exporter or the exporter's
forwarding agent is responsible for assuring that the carrier places
the proper destination control statement on the related bill of lading
or air waybill.
(ii) Detention and examination. Shipments being reported under the
summary filing procedure described in this paragraph are subject to
inspection, examination and detention, as provided in Sec. 758.7 of
this part, whenever an official of BXA, a customs officer, or a
postmaster deems such action necessary to assure compliance with the
EAR.
(7) Revocation of authorization. An authorization to file summary
monthly reports in lieu of individual SED's, granted under the
provisions of Sec. 30.39 of the Foreign Trade Statistics Regulations
(15 CFR 30.39) and this paragraph, may be revoked, suspended, or
revised at any time.
(8) Effect of other provisions. Insofar as consistent with the
provisions of this paragraph that relate specifically to filing
electronically in lieu of individual SED's, the other provisions of
this part 758 apply to exports reported under this procedure.
Sec. 758.4 Conformity of documents for shipments under export licenses
(a) Applicability. The rules of conformity in this section apply to
shipping documents used in connection with any shipment under the
authority
[[Page 12858]]
of a license issued by BXA except ``master'' air waybills issued by
consolidators. These rules apply to any individual air waybill issued
by a consolidator (indirect carrier) for an export included in a
consolidated shipment and to any air waybill issued by anyone in
connection with an export not included in a consolidated shipment.
(b) Compliance. You may not issue, prepare, or procure a bill of
lading that is contrary to the provisions of this section. Officials of
BXA and the U.S. Customs Service are authorized to require any document
or to use any other appropriate methods to ensure compliance with the
rules of conformity in this section.
(c) Rules of conformity. (1) General. The following documents must
be consistent with each other:
(i) The license issued by BXA;
(ii) One of the following applicable documents:
(A) The SED;
(B) If there is no SED, the Shipper's Letter of Instructions; or
(C) If there is neither, another document containing instructions
that the exporter conveys (either directly or through an agent) to the
carrier; and
(iii) The outbound bill of lading (including a railroad through
bill of lading) covering a particular export shipment must be
consistent with one another.
(2) Signs of inconsistent documents. The bill of lading, whether in
negotiable or nonnegotiable form, is not consistent with those other
documents if:
(i) It does not provide for delivery of the shipment (cargo) at a
port located in the country of either the ultimate or intermediate
consignee named in the documents described in paragraph (c)(1)(ii) of
this section;
(ii) It contains any indication that the shipment is intransit to a
country of ultimate destination different from that named in the
appropriate one of the documents described in paragraph (c)(1)(ii) of
this section, or that the shipment is not for consumption in such
country of ultimate destination. For example, it would be inconsistent
to consign a shipment to the ultimate destination with a qualifying
phrase indicating the shipment is ``in transit'' at that destination,
or to consign the shipment to a free zone or free port;
(iii) It names as shipper any person other than the licensee (the
person to whom a license is issued) or the licensee's duly authorized
forwarding agent. Where shipments from more than one licensee are
consolidated on a single bill of lading, the shipper named on the bill
of lading must also appear as the authorized forwarding agent for each
exporter on each document described in paragraph (c)(1)(ii) of this
section.
(iv) The name and address of the ultimate consignee are not shown
either in the space provided for ``consignee'' or in the body of the
bill of lading under the caption ``ultimate consignee and notify
party'' or, in the case of the air waybill, under the caption ``also
notify.'' However, where shipments to more than one ultimate consignee
are consolidated on one bill of lading and not all are shown in the
body of the bill of lading, the name of the intermediate consignee
(customs broker or consolidator's agent in the foreign country) who
will receive and distribute the items to the ultimate consignees must
appear on the bill of lading, the export license(s), and documents
listed in paragraph (c)(1)(ii) of this section.
(3) Additional rules for negotiable bills of lading. A negotiable
bill of lading (an ``order'' bill of lading) is deemed consistent with
the appropriate one of the documents described in paragraph (c)(1)(ii)
of this section only if the consignee or order party named on the bill
of lading is also named in the SED, the Shipper's Letter of
Instructions or the other document.
(i) Sometimes ``order'' bills of lading consign the items they
cover to the order of the shipper, to the order of an intermediate
consignee such as a bank, foreign freight forwarder, or other
intermediary, or to the order of a purchaser who is not the same person
as the ultimate consignee. An ``order'' bill of lading issued in any of
these forms constitutes a representation by the shipper that:
(A) The items covered by the appropriate one of the documents
described in paragraph (c)(1)(ii) of this section and bill of lading
are ultimately destined to the ultimate consignee stated on the
license;
(B) The ``order'' bill of lading has not been used for the purpose
of evading the terms and conditions of the license; and
(C) Pursuant to the contract of carriage, the items will be
delivered at a port located in the country of the ultimate consignee or
of the intermediate consignee named on the appropriate one of the
documents described in paragraph (c)(1)(ii) of this section.
(ii) [Reserved]
(4) Item description. On the bill of lading the items may be
described in terms of the freight tariff classification or other type
of classification, but may not be inconsistent with the description
shown on the appropriate one of the documents described in paragraph
(c)(1)(ii). These documents must include the same item description as
shown on the related license, and, in addition, it must include more
detailed information where required by the Bureau of the Census.
(5) Carrier's manifest. If the carrier's outward foreign manifest
filed with the U.S. customs office contains the names of shippers or
consignees, these names must not be inconsistent with the names shown
on the bill of lading and the appropriate one of the documents
described in paragraph (c)(1)(ii) of this section.
Sec. 758.5 General destination control requirements
(a) Scope. This section sets forth some actions the parties to a
transaction authorized by a license issued by BXA are prohibited from
taking. The purpose of these prohibitions is to prevent items licensed
for export from being diverted while in transit or thereafter. It also
sets forth the duties of the parties when the goods are unloaded in a
country other than that of the ultimate consignee or intermediate
consignee as stated on the export license.
(b) Destination on bill of lading or air waybill--(1) Requirements
to prevent diversions. (i) Statements on bill of lading or air waybill.
(A) A carrier (or any other person on behalf of any carrier) may not
issue a bill of lading or air waybill providing for delivery of cargo
at any foreign port located outside the country of the ultimate
consignee, or the intermediate consignee, named on the appropriate one
of the documents described in Sec. 758.4(c)(1)(ii) of this part.
(B) Optional ports on bill of lading or air waybill. No carrier may
issue a bill of lading or air waybill providing for delivery of cargo
at optional ports to the ultimate consignee named on one of the
appropriate documents described in Sec. 758.4(c)(1) (i) and (ii) of
this part where one of such optional ports is not in the country of
ultimate destination named on the license or SED, or if there is no
SED, the Shipper's Letter of Instructions, or if there is neither,
another document containing instructions that the exporter conveys
(either directly or through an agent) to the carrier, without prior
written authorization from BXA. However, where the appropriate document
described in Sec. 758.4(c)(1) (i) and (ii) of this part provide for
delivery of cargo to optional intermediate consignees located in ports
in different countries, the carrier may issue a bill of lading or air
waybill providing for delivery at such optional ports.
(ii) [Reserved]
(2) Delivery of cargo. No carrier may deliver cargo to any country
other than
[[Page 12859]]
the country of the ultimate consignee, or the intermediate consignee,
named on the appropriate one of the documents described in
Sec. 758.4(c)(1)(ii) of this part at the request or option of the
shipper, consignor, exporter, purchaser, or ultimate consignee, or
their agents, or any other person having custody or control of the
shipment, without prior written authorization from BXA to the carrier
or its agent.
(c) Duties when items are unloaded in a unauthorized country. If
the items are unloaded in a country other than that of the intermediate
or ultimate consignee as stated on the appropriate one of the documents
described in Sec. 758.4(c)(1)(ii) of this part, the procedures
described in this paragraph must be followed.
(1) Reasons beyond carrier's control. Nothing contained in the EAR
shall be deemed to prohibit a carrier from unloading cargo at a port
outside the country of intermediate or ultimate destination shown on
the appropriate one of the documents described in Sec. 758.4(c)(1)(ii)
of this part, where for reasons beyond the control of the carrier (as
set forth in the standard provisions of the carrier's bill of lading or
air waybill, such as acts of God, perils of the sea, damage to the
carrier, strikes, war, political disturbances, or insurrections), it is
not feasible to deliver the cargo at the licensed port of destination.
(2) Required actions for unscheduled unloading. (i) If the item is
unloaded in a country to which that item may be exported without a
license issued by BXA, no one is required to notify BXA of the
unloading. The exporter may dispose of the items in that country
without approval of BXA. When making such a disposition you must still
comply with any conditions or requirements of the License Exception or
other provisions of the EAR that would authorize the export of the item
being unloaded to the country in which you are disposing of it, and any
regulations of other government agencies that apply to the transaction.
This paragraph does not authorize anyone to take any action with
knowledge that a violation of the Export Administration Act, the EAR,
or any order, license or authorization issued thereunder, has occurred,
is about to occur or is intended to occur, or to deliver to a denied
party or to take any other action prohibited by the EAR.
(ii) If a license issued by BXA would be required to export the
item to the country in which it is unloaded:
(A) No person may take any steps to effect delivery or entry of the
items into the commerce of the country where unloaded without prior
approval of BXA;
(B) The carrier must take steps to assure that the items are placed
in custody under bond or other guaranty not to enter the commerce of
such country or any country other than the countries of the ultimate
and intermediate consignees shown on the appropriate one of the
documents described in Sec. 758.4(c)(1)(ii) of this part, without prior
approval of BXA;
(iii) The carrier, the carrier's agent located in the United
States, and the exporter each have specific responsibilities to notify
BXA regarding any unscheduled unloading. The specific responsibilities
of each party are as follows:
(A) The carrier must, within 10 days after date of unloading,
report the facts to the nearest American Consulate and to the agent of
the carrier located in the United States. Within 10 days after receipt
of such report, the agent must send a copy of the report to BXA. The
report must include:
(1) A copy of the manifest of such diverted cargo;
(2) A statement of the place of unloading; and;
(3) The name and address of the person in whose custody the items
were delivered.
(B) BXA will inform the exporter of the unloading. Within 10 days
following receipt of this notice, the exporter must inform BXA of the
proposed disposition of the items. The exporter may not dispose of the
items without approval of BXA.
Sec. 758.6 Destination control statement
(a) Requirement for destination control statement. (1) The
destination control statement shown in paragraph (b) of this section
must be entered on all copies of the bill of lading, the air waybill
and the commercial invoice covering any export from the United States
if:
(i) The export is made under authority of a license, including the
Special Comprehensive License;
(ii) The export is made under the authority of the following
License Exceptions: LST (GBS, CIV, LVS), RPL (PTS, SNR), and TMP (TMP,
TUS); or
(iii) The export is made under the ``No License Required''
provisions of the EAR (as described in Sec. 758.1(a) of this part) if
the reason for control of the item as stated in the entry on the CCL is
NS or NP.
(2) An exporter or the exporter's agent may enter a destination
control statement on the shipping documents for exports for which no
destination control statement is required.
(b) Text of destination control statement.
These commodities, technology or software were exported from the
United States in accordance with the Export Administration
Regulations. Diversion contrary to U.S. law prohibited.
(c) Additional destination information. In addition to the
destination control statement, an exporter or exporter's agent may
supply additional information on the shipping documents, including the
country(ies) to which export or reexport is authorized.
(d) Permissive reexports. If reexport or diversion from the
original transaction is contemplated and the change from the original
transaction is consistent with the license, License Exception, the NLR
provisions of the EAR or other authorization and with all other
requirements of the EAR, the exporter may so advise its foreign
importer without obtaining further authorization from BXA.
(e) Responsibility for assuring that the destination control
statement is used--(1) Exporters. The exporter is responsible for
assuring entry of the destination control statement on the commercial
invoice, regardless of whether the exporter actually prepares this
document. The exporter has this responsibility even if the invoice is
prepared by an order party or the exporter acts through an agent.
(2) Agents of exporters (forwarding agents). Agents of exporters
are also responsible for assuring entry of the destination control
statement on the commercial invoice.
(i) If the agent receives from the exporter a copy of a commercial
invoice without the correct destination control statement, the agent
must:
(A) Notify the exporter in writing;
(B) Request written assurance from the exporter that:
(1) The destination control statement has been properly entered on
all other copies of the commercial invoice; and
(2) Any person who received an invoice without the statement has
been informed in writing of the restrictions in the statement;
(ii) And either:
(A) Enter the appropriate statement on the agent's copy of the
invoice; or
(B) Return it to the exporter for completion; and
(iii) Keep and make available for inspection, in accordance with
part 762 of the EAR, a copy of that person's notification to the
exporter and the original of the exporter's assurance required by
paragraph (e)(2)(i) of this section. (For further recordkeeping
requirements, see part 762 of the EAR.)
[[Page 12860]]
(iv) If the agent prepares the invoice, the agent's
responsibilities are governed by paragraph (e)(3) of this section.
(3) Forwarders, carriers and other parties who prepare invoices. If
a forwarder, a carrier acting as a forwarder, or any other party
prepares, presents, and/or executes the invoice, the forwarder,
carrier, or other party is also responsible for assuring that an
appropriate statement is entered on the invoice.
(4) Carriers and other parties who issue bills of lading or air
waybills. The carrier, or any other party that issues the bill of
lading or air waybill, is responsible for assuring that the destination
control statement appearing on the corresponding invoice also appears
on the bill of lading or air waybill.
(f) Responsibility for distributing copies of the invoice. The
exporter or other person issuing any invoice containing a destination
control statement must send copies in a manner which assures their
arrival either with or prior to arrival of the items being exported to:
(1) The ultimate consignee and the purchaser named in the SED;
(2) The intermediate consignee; and
(3) Any other persons named in the invoice who are located in a
foreign country. Nothing contained in this part shall be construed to
limit the persons or classes of persons to whom such invoices, bills of
lading or air waybills are usually and customarily sent in the course
of export trade. The shipper or other person issuing the commercial
invoice may comply with the requirements of this section even if the
copy of the invoice sent to any of the persons listed in paragraphs
(f)(1) or (2) this section omits all reference to price or sales
commission provided such invoice otherwise adequately identifies the
shipment. As an alternative in lieu of a copy of the commercial
invoice, such person may send a copy of the bill of lading or air
waybill containing the destination control statement.
(g) Requirements for bill of lading or air waybill. (1) General. No
carrier may issue (and no one may prepare or procure) a bill of lading
or air waybill covering an export for which a destination control
statement is required under the provisions of paragraph (a) of this
section, unless all copies of such bill of lading or air waybill
(including all non-negotiable and office copies) contain the
destination control statement in clearly legible form.
(2) Exception for ``master'' air waybills. In the case of shipments
by air (other than airmail or air parcel post), the requirement of
paragraph (e)(2)(i) of this section applies to any air waybill,
including one issued by a consolidator (indirect carrier) for an export
included in a consolidated shipment. However, the provisions of
paragraph (f) of this section do not apply to a ``master'' air waybill
issued by a carrier to cover a consolidated shipment.
(h) Requirements for the commercial invoice. No licensee, shipper,
consignor, exporter, agent, or any other person may prepare or issue a
commercial invoice for a shipment for which a destination control
statement is required under the provisions of paragraph (a) of this
section, unless all copies of the invoice(s) contain the statement in
clearly legible form.
(i) Carrier's responsibility before releasing cargo. No carrier may
release custody of a shipment covered by the provisions of this section
to any party without surrender by that party, to the carrier, of a copy
of the bill of lading or air waybill bearing on its face the applicable
destination control statement, unless either:
(1) Simultaneously with the release, the carrier delivers to such
party a written copy of the destination control statement, contained in
the carrier's copy of the bill of lading or air waybill for the
shipment. The written copy must identify the shipment by bill of lading
or air waybill number, name of carrier, voyage or flight number, date,
and port of arrival. The carrier must also secure either a signed
receipted copy of the written statement or other equivalent written
evidence that the statement has been delivered by the carrier; or,
(2) The regulations of the importing country require the carrier to
deliver the items directly into the physical possession and control of
customs or other government agency for delivery to the consignee or the
consignee's agent. In this case, the carrier need not give to, or
receive from, the customs or other government agency, or the consignee
or the consignee's agent, any document bearing the destination control
statement.
Sec. 758.7 Authority of the Office of Export Enforcement, the Bureau
of Export Administration, Customs offices and Postmasters in clearing
shipments
(a) Actions to assure compliance with the EAR. Officials of BXA,
the Office of Export Enforcement, the U.S. Customs Service and
postmasters, including post office officials, are authorized and
directed to take appropriate action to assure compliance with the EAR.
This includes assuring that:
(1) Exports without a license issued by BXA are either outside the
scope of the license requirements of the Export Administration
Regulations or authorized by a License Exception; and
(2) Exports purporting to be authorized by licenses issued by BXA
are, in fact, so authorized and the transaction complies with the terms
of the license.
(b) Types of actions. The officials designated in paragraph (a) of
this section are authorized to take the following types of actions:
(1) Inspection of items. (i) Purpose of inspection. All items
declared for export are subject to inspection for the purpose of
verifying the items specified in the SED, or if there is no SED, the
bill of lading or other loading document covering the items about to be
exported, and the value and quantity thereof, and to assure observance
of the other provisions of the Export Administration Regulations. This
authority applies to all exports within the scope of the Export
Administration Act or Export Administration Regulations whether or not
such exports require a license issued by BXA. The inspection may
include, but is not limited to, item identification, technical
appraisal (analysis), or both.
(ii) Place of inspection. Inspection shall be made at the place of
lading or where officials authorized to make those inspections are
stationed for that purpose.
(iii) Technical identification. Where, in the judgment of the
official making the inspection, the item cannot be properly identified,
a sample may be taken for more detailed examination or for laboratory
analysis.
(A) Obtaining samples. The sample will be obtained by the official
making the inspection in accordance with the provisions for sampling
imported merchandise. The size of the sample will be the minimum
representative amount necessary for identification or analysis. This
will depend on such factors as the physical condition of the material
(whether solid, liquid, or gas) and the size and shape of the
container.
(B) Notification to exporter and consignee. When a sample is taken,
the exporter (or the exporter's agent) and the ultimate consignee will
be notified by letter from one of the official designated in paragraph
(a) of this section, showing the port of export, date of sampling,
export license number (if any) or other authorization, invoice number
quantity of sample taken, description of item, marks and packing case
numbers, and manufacturer's number for the item. The original letter
will be sent to the exporter or the exporter's agent, the duplicate
will be placed in the container that had been opened, and the
triplicate will be retained by the inspecting office.
[[Page 12861]]
(C) Disposal of samples. Samples will be disposed of in accordance
with the U.S. Customs Service procedure for imported commodities.
(2) Inspection of documents. (i) General. Officials designated in
paragraph (a) of this section are authorized to require exporters or
their agents, and owners and operators of exporting carriers or their
agents, to produce for inspection or copying: invoices, orders, letters
of credit, inspection reports, packing lists, shipping documents and
instructions, correspondence, and any other relevant documents, as well
as furnish other information bearing upon a particular shipment being
exported or intended to be exported.
(ii) Cartridge and shell case scrap. When cartridge or shell cases
are being exported as scrap (whether or not they have been heated,
flame-treated, mangled, crushed, or cut) from the United States, the
U.S. Customs Service is authorized to require the exporter to furnish
information bearing on the identity and relationships of all parties to
the transaction and produce a copy of the bid offer by the armed
services in order to assure that the terms of the Export Administration
Regulations are being met and that the material being shipped is scrap.
(3) Questioning of individuals. Officials designated in paragraph
(a) of this section are authorized to question the owner or operator of
an exporting carrier and the carrier's agent(s), as well as the
exporter and the exporter's agent(s), concerning a particular shipment
exported or intended to be exported.
(4) Prohibiting lading. Officials designated in paragraph (a) of
this section are authorized to prevent the lading of items on an
exporting carrier whenever those officials have reasonable cause to
believe that the export or removal from the United States is contrary
to the Export Administration Regulations.
(5) Inspection of exporting carrier. The U.S. Customs Service is
authorized to inspect and search any exporting carrier at any time to
determine whether items are intended to be, or are being, exported or
removed from the United States contrary to the Export Administration
Regulations. Officials of the Office of Export Enforcement may conduct
such inspections with the concurrence of the U.S. Customs Service.
(6) Seizure and detention. Customs officers are authorized, under
Title 22 of the United States Code, section 401, et seq., to seize and
detain any items whenever an attempt is made to export such items in
violation of the Export Administration Regulations, or whenever they
know or have probable cause to believe that the items are intended to
be, are being, or have been exported in violation of the EAR. Seized
items are subject to forfeiture. In addition to the authority of
Customs officers to seize and detain items, both customs officials and
officials of the Office of Export Enforcement are authorized to detain
any shipment held for review of the SED, or if there is no SED, the
bill of lading or other loading document covering the items about to be
exported, or for physical inspection of the items, whenever such action
is deemed to be necessary to assure compliance with the EAR.
(7) Preventing departure of carrier. The U.S. Customs Service is
authorized under Title 22 of the U. S. Code, section 401, et seq., to
seize and detain, either before or after clearance, any vessel or
vehicle or air carrier that has been or is being used in exporting or
attempting to export any item intended to be, being, or having been
exported in violation of the EAR.
(8) Ordering the unloading. The U.S. Customs Service is authorized
to unload, or to order the unloading of, items from any exporting
carrier, whenever the U.S. Customs Service has reasonable cause to
believe such items are intended to be, or are being, exported or
removed from the United States contrary to the EAR.
(9) Ordering the return of items. If, after notice that an
inspection of a shipment is to be made, a carrier departs without
affording the U.S. Customs Service, Office of Export Enforcement, or
BXA personnel an adequate opportunity to examine the shipment, the
owner or operator of the exporting carrier and the exporting carrier's
agent(s) may be ordered to return items exported on such exporting
carrier and make them available for inspection.
(10) Designating time and place for clearance. The U.S. Customs
Service is authorized to designate times and places at which U.S.
exports may move by land transportation to countries contiguous to the
United States.
Sec. 758.8 Return or unloading of cargo at direction of BXA, the
Office of Export Enforcement or Customs Service.
(a) Exporting carrier. As used in this section, the term
``exporting carrier'' includes a connecting or on-forwarding carrier,
as well as the owner, charterer, agent, master, or any other person in
charge of the vessel, aircraft, or other kind of carrier, whether such
person is located in the United States or in a foreign country.
(b) Ordering return or unloading of shipment. Where there are
reasonable grounds to believe that a violation of the Export
Administration Regulations has occurred, or will occur, with respect to
a particular export from the United States, BXA, the Office of Export
Enforcement, or the U.S. Customs Service may order any person in
possession or control of such shipment, including the exporting
carrier, to return or unload the shipment. Such person must, as
ordered, either:
(1) Return the shipment to the United States or cause it to be
returned or;
(2) Unload the shipment at a port of call and take steps to assure
that it is placed in custody under bond or other guaranty not to enter
the commerce of any foreign country without prior approval of BXA. For
the purpose of this section, the furnishing of a copy of the order to
any person included within the definition of exporting carrier will be
sufficient notice of the order to the exporting carrier.
(c) Requirements regarding shipment to be unloaded. The provisions
of Sec. 758.5(b) and (c) of this part, relating to reporting,
notification to BXA, and the prohibition against unauthorized delivery
or entry of the item into a foreign country, shall apply also when
items are unloaded at a port of call, as provided in paragraph (b)(2)
of this section.
(d) Notification. Upon discovery by any person included within the
term ``exporting carrier,'' as defined in paragraph (a) of this
section, that a violation of the EAR has occurred or will occur with
respect to a shipment on board, or otherwise in the possession or
control of the carrier, such person must immediately notify both:
(1) The Office of Export Enforcement at the following address: Room
H-4520, U.S. Department of Commerce, 14th Street and Constitution Ave.,
N.W., Washington D.C. 20230, Telephone: (202) 482 1208, Facsimile:
(202) 482-0964; and
(2) The person in actual possession or control of the shipment.
Sec. 758.9 Other applicable laws and regulations.
The provisions of this part 758 apply only to exports regulated by
BXA. Nothing contained in this part 758 shall relieve any person from
complying with any other law of the United States or rules and
regulations issued thereunder, including those governing SEDs and
manifests, or any applicable rules and regulations of the U.S. Customs
Service.
[[Page 12862]]
PART 760--RESTRICTIVE TRADE PRACTICES OR BOYCOTTS
Sec.
760.1 Definitions.
760.2 Prohibitions.
760.3 Exceptions to prohibitions.
760.4 Evasion.
760.5 Reporting requirements.
Supplement No. 1 To Part 760--Interpretations
Supplement No. 2 To Part 760--Interpretation
Supplement No. 3 To Part 760--Interpretation
Supplement No. 4 To Part 760--Interpretation
Supplement No. 5 To Part 760--Interpretation
Supplement No. 6 To Part 760--Interpretation
Supplement No. 7 To Part 760--Interpretation
Supplement No. 8 To Part 760--Interpretation
Supplement No. 9 To Part 760--Interpretation
Supplement No. 10 To Part 760--Interpretation
Supplement No. 11 To Part 760--Interpretation
Supplement No. 12 To Part 760--Interpretation
Supplement No. 13 To Part 760--Interpretation
Supplement No. 14 To Part 760--Interpretation
Supplement No. 15 To Part 760--Interpretation
Supplement No. 16 To Part 760--Interpretation
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. 760.1 Definitions.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C.
(a) Definition of Person. For purposes of this part, the term
``person'' means any individual, or any association or organization,
public or private, which is organized, permanently established,
resident, or registered to do business, in the United States or any
foreign country. This definition of person includes both the singular
and plural and, in addition, includes:
(1) Any partnership, corporation, company, branch, or other form of
association or organization, whether organized for profit or non-profit
purposes;
(2) Any government, or any department, agency, or commission of any
government;
(3) Any trade association, chamber of commerce, or labor union;
(4) Any charitable or fraternal organization; and
(5) Any other association or organization not specifically listed
in paragraphs (a)(1) through (4) of this section.
(b) Definition of ``United States Person''. (1) This part applies
to United States persons. For purposes of this part, the term United
States person means any person who is a United States resident or
national, including individuals, domestic concerns, and ``controlled in
fact'' foreign subsidiaries, affiliates, or other permanent foreign
establishments of domestic concerns. This definition of United States
person includes both the singular and plural and, in addition,
includes:
(i) The government of the United States or any department, agency,
or commission thereof;
(ii) The government of any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any subdivision, department,
agency, or commission of any such government;
(iii) Any partnership, corporation, company, association, or other
entity organized under the laws of paragraph (b)(1)(i) or (ii) of this
section;
(iv) Any foreign concern's subsidiary, partnership, affiliate,
branch, office, or other permanent establishment in any state of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, or any territory or possession of the United States; and
(v) Any domestic concern's foreign subsidiary, partnership,
affiliate, branch, office, or other permanent foreign establishment
which is controlled in fact by such domestic concern. (See paragraph
(c) of this section on ``Definition of 'Controlled in Fact'.'')
(2) The term domestic concern means any partnership, corporation,
company, association, or other entity of, or organized under the laws
of, any jurisdiction named in paragraph (b)(1) (i) or (ii) of this
section, or any permanent domestic establishment of a foreign concern.
(3) The term foreign concern means any partnership, corporation,
company, association, or other entity of, or organized under the laws
of, any jurisdiction other than those named in paragraph (b)(1)(i) or
(ii) of this section.
(4) The term United States person does not include an individual
United States national who is resident outside the United States and
who is either employed permanently or temporarily by a non-United
States person or assigned to work as an employee for, and under the
direction and control of, a non-United States person.
Examples of ``United States Person''
The following examples are intended to give guidance in
determining whether a person is a ``United States person.'' They are
illustrative, not comprehensive.
(i) U.S. bank A has a branch office in foreign country P. Such
branch office is a United States person, because it is a permanent
foreign establishment of a domestic concern.
(ii) Ten foreign nationals establish a manufacturing plant, A,
in the United States, incorporating the plant under New York law.
A is a United States person, because it is a corporation
organized under the laws of one of the states of the United States.
(iii) A, a foreign corporation, opens an office in the United
States for purposes of soliciting U.S. orders. The office is not
separately incorporated.
A's U.S. office is a United States person, because it is a
permanent establishment, in the United States, of a foreign concern.
(iv) A, a U.S. individual, owns stock in foreign corporation B.
A is a United States person. However, A is not a ``domestic
concern,'' because the term ``domestic concern'' does not include
individuals.
(v) A, a foreign national resident in the United States, is
employed by B, a foreign corporation.
A is a United States person, because he is resident in the
United States.
(vi) A, a foreign national, who is resident in a foreign country
and is employed by a foreign corporation, makes occasional visits to
the United States, for purposes of exploring business opportunities.
A is not a United States person, because he is not a United
States resident or national.
(vii) A is an association of U.S. firms organized under the laws
of Pennsylvania for the purpose of expanding trade.
A is a United States person, because it is an association
organized under the laws of one of the states of the United States.
(viii) At the request of country Y, A, an individual employed by
U.S. company B, is transferred to company C as an employee. C is a
foreign company owned and controlled by country Y. A, a U.S.
national who will reside in Y, has agreed to the transfer provided
he is able to retain his insurance, pension, and other benefits.
Accordingly, company B has agreed to keep A as an employee in order
to protect his employee benefits, and company C has agreed to pay
for A's salary. At all times while he works for C, A will be under
C's direction and control.
A is not a United States person while under C's direction and
control, because he will be resident outside the United States and
assigned as an employee to a non-United States person. The
arrangement designed to protect A's insurance, pension, and other
benefits does not destroy his status as an
[[Page 12863]]
employee of C so long as he is under the direction and control of C.
(ix) A, a U.S. citizen, has resided in Europe for three years,
where he is a self-employed consultant for United States and foreign
companies in the communications industry.
A is a United States person, because he is a U.S. national and
because he is not a resident outside the United States who is
employed by other than a United States person.
(c) Definition of ``Controlled in Fact''. (1) This part applies to
any domestic concern's foreign subsidiary, partnership, affiliate,
branch, office, or other permanent foreign establishment which is
controlled in fact by such domestic concern. Control in fact consists
of the authority or ability of a domestic concern to establish the
general policies or to control day-to-day operations of its foreign
subsidiary, partnership, affiliate, branch, office, or other permanent
foreign establishment.
(2) A foreign subsidiary or affiliate of a domestic concern will be
presumed to be controlled in fact by that domestic concern, subject to
rebuttal by competent evidence, when:
(i) The domestic concern beneficially owns or controls (whether
directly or indirectly) more than 50 percent of the outstanding voting
securities of the foreign subsidiary or affiliate;
(ii) The domestic concern beneficially owns or controls (whether
directly or indirectly) 25 percent or more of the voting securities of
the foreign subsidiary or affiliate, if no other person owns or
controls (whether directly or indirectly) an equal or larger
percentage;
(iii) The foreign subsidiary or affiliate is operated by the
domestic concern pursuant to the provisions of an exclusive management
contract;
(iv) A majority of the members of the board of directors of the
foreign subsidiary or affiliate are also members of the comparable
governing body of the domestic concern;
(v) The domestic concern has authority to appoint the majority of
the members of the board of directors of the foreign subsidiary or
affiliate; or
(vi) The domestic concern has authority to appoint the chief
operating officer of the foreign subsidiary or affiliate.
(3) A brokerage firm or other person which holds simple record
ownership of securities for the convenience of clients will not be
deemed to control the securities.
(4) A domestic concern which owns, directly or indirectly,
securities that are immediately convertible at the option of the holder
or owner into voting securities is presumed to own or control those
voting securities.
(5) A domestic concern's foreign branch office or other
unincorporated permanent foreign establishment is deemed to be
controlled in fact by such domestic concern under all circumstances.
Examples of ``Controlled in Fact''
The following examples are intended to give guidance in
determining the circumstances in which a foreign subsidiary,
affiliate, or other permanent foreign establishment of a domestic
concern is ``controlled in fact.'' They are illustrative, not
comprehensive.
(i) Company A is incorporated in a foreign country. Fifty-one
percent of the voting stock of A is owned by U.S. company B.
A is presumed to be controlled in fact by B. This presumption
may be rebutted by competent evidence showing that control does not,
in fact, lie with B.
(ii) Company A is incorporated in a foreign country. Ten percent
of the voting stock of A is owned by U.S. company B. A has an
exclusive management contract with B pursuant to which A is operated
by B.
As long as such contract is in effect, A is presumed to be
controlled in fact by B. This presumption may be rebutted by
competent evidence showing that control does not, in fact, lie with
B.
(iii) Company A is incorporated in a foreign country. Ten
percent of the voting stock of A is owned by U.S. company B. A has
10 persons on its board of directors. Six of those persons are also
members of the board of directors of U.S. company B.
A is presumed to be controlled in fact by B. This presumption
may be rebutted by competent evidence showing that control does not,
in fact, lie with B.
(iv) Company A is incorporated in a foreign country. Thirty
percent of the voting securities of A is owned by U.S. company B and
no other person owns or controls an equal or larger share.
A is presumed to be controlled in fact by B. This presumption
may be rebutted by competent evidence showing that control does not,
in fact, lie with B.
(v) Company A is incorporated in a foreign country. In A's
articles of incorporation, U.S. company B has been given authority
to appoint A's board of directors.
A is presumed to be controlled in fact by B. This presumption
may be rebutted by competent evidence showing that control does not,
in fact, lie with B.
(vi) Company A is a joint venture established in a foreign
country, with equal participation by U.S. company B and foreign
company C. U.S. Company B has authority to appoint A's chief
operating officer.
A is presumed to be controlled in fact by B. This presumption
may be rebutted by competent evidence showing that control does not,
in fact, lie with B.
(vii) Same as (vi), except that B has no authority to appoint
A's chief operating officer.
B is not presumed to control A, absent other facts giving rise
to a presumption of control.
(viii) Company A is incorporated in a foreign country. U.S.
companies B, C, and D each own 20 percent of A's voting securities
and regularly cast their votes in concert.
A is presumed to be controlled in fact by B, C, and D, because
these companies are acting in concert to control A.
(ix) U.S. bank B located in the United States has a branch
office, A, in a foreign country. A is not separately incorporated.
A is deemed to be controlled in fact by B, because A is a branch
office of a domestic concern.
(x) Company A is incorporated in a foreign country. Fifty-one
percent of the voting stock of A is owned by company B, which is
incorporated in another foreign country. Fifty-one percent of the
voting stock of B is owned by C, a U.S. company.
Both A and B are presumed to be controlled in fact by C. The
presumption of C's control over B may be rebutted by competent
evidence showing that control over B does not, in fact, lie with C.
The presumption of B's control over A (and thus C's control over A)
may be rebutted by competent evidence showing that control over A
does not, in fact, lie with B.
(xi) B, a U.S. individual, owns 51 percent of the voting
securities of A, a manufacturing company incorporated and located in
a foreign country.
A is not ``controlled in fact'' under this part, because it is
not controlled by a ``domestic concern.''
(d) Definition of ``Activities in the Interstate or Foreign
Commerce of the United States''.
Activities Involving United States Persons Located in the United
States
(1) For purposes of this part, the activities of a United States
person located in the United States are in the interstate or foreign
commerce of the United States if they involve the sale, purchase, or
transfer of goods or services (including information) between:
(i) Two or more of the several States (including the District of
Columbia);
(ii) Any State (including the District of Columbia) and any
territory or possession of the United States;
(iii) Two or more of the territories or possessions of the United
States; or
(iv) A State (including the District of Columbia), territory or
possession of the United States and any foreign country.
(2) For purposes of this part, the export of goods or services from
the United States and the import of goods or services into the United
States are activities in United States commerce. In addition, the
action of a domestic concern in specifically directing the activities
of its controlled in fact foreign subsidiary, affiliate, or other
permanent foreign establishment is an activity in United States
commerce.
(3) Activities of a United States person located in the United
States may be in United States commerce even if they are part of or
ancillary to activities
[[Continued on page 12864]]