BIS Final Rule Implements Certain Australia Group Decisions, Adds Four Countries as CWC States Parties

Controls on Valves in ECCN 2B350 Expanded

The 2008 AG intersessional decisions included changes to the AG "Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software'" affecting valves and toxic gas monitoring systems.

Consistent with these changes, BIS' final rule amends Export Control Classification Number 2B350 by revising the controls on valves described in ECCN 2B350.g to include any such valves (including casings or preformed casing liners designed for such valves) that are made from any of the following ceramic materials: (i) Silicon carbide with a purity of 80% or more by weight; (ii) aluminum oxide (alumina) with a purity of 99.9% or more by weight; or (iii) zirconium oxide (zirconia).

Controls on Toxic Gas Monitoring Systems & Their Dedicated Detecting Components Clarified, Expanded

BIS' final rule also amends ECCN 2B351, which controls certain toxic gas monitoring systems, to specify the types of dedicated detecting components therefore that are controlled under this ECCN (i.e., detectors, sensor devices, and replaceable sensor cartridges).

In addition, BIS' final rule adds a new ECCN 2D351 to control dedicated software for toxic gas monitoring systems and their dedicated detecting components controlled under ECCN 2B351. (Software controlled under this new ECCN requires a license for destinations indicated under CB Column 2 and/or AT Column 1 on the Commerce Country Chart.)

BIS' final rule also makes two related conforming changes:

ECCN 2E001 (technology for the "development" of most 2A, 2B, or 2D items) is amended to add a reference to new ECCN 2D351 under the CB controls paragraph in the License Requirements section of the ECCN; and

a reference is added to new ECCN 2D351 in 15 CFR 742.2(a)(2), which identifies those items that require a license to destinations indicated under CB Column 2 on the Commerce Country Chart.

Controls on Cross (Tangential) Flow Filtration Equipment in ECCN 2B352 Revised

The 2008 AG decisions also included changes to the AG "Control List of Dual-Use Biological Equipment and Related Technology and Software" affecting cross (tangential) flow filtration equipment.

Consistent with the AG changes, BIS' final rule amends ECCN 2B352 by revising the controls on cross (tangential) flow filtration equipment described in ECCN 2B352.d to specifically identify any such equipment using disposable or single-use filtration components as subject to control.

References to Definitions for Software, Program, and Microprogram Added

In addition, the 2008 AG decisions included changes to the AG "Guidelines for Transfers of Sensitive Chemical or Biological Items." As a result of these decisions, the AG "Guidelines" were revised to include definitions for "software," "program," and "microprogram," as well as language indicating that software identified on the AG Common Control Lists does not include mass market software.

Since the three definitions that were added to the AG "Guidelines" are already included in 15 CFR 772.1. BIS' final rule simply adds a reference to the definitions in the "Related Definitions" paragraph for ECCN 1D390 and new ECCN 2D351. BIS' final rule does not include in either of these two ECCNs a mass market software exclusion, as described in the AG "Guidelines."

4 Countries Added as Chemical Weapons Convention States Parties

BIS' final rule amends Supplement No. 2 to 15 CFR Part 745 (States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction) by adding Bahamas, Dominican Republic, Iraq, and Lebanon which became States Parties to the CWC on May 21, 2009, April 26, 2009, February 12, 2009, and December 20, 2008, respectively.

As a result of this change, the CW (Chemical Weapons) license requirements and policies that apply to these four countries now conform with those applicable to other CWC States Parties, as described in 15 CFR 742.18.

However, items controlled for CW reasons under the EAR continue to require a license for export or reexport to Iraq, or for transfer within Iraq, in accordance with the licensing

policy for Iraq described in 15 CFR 746.3(a).

Saving Clause

Shipments of items removed from eligibility for export or reexport under a license exception or without a license (i.e., under the designator "NLR") as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on August 5, 2009, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previously applicable license exception or without a license (NLR) so long as they are exported or reexported before August 20, 2009. Any such items not actually exported or reexported before midnight, on August 20, 2009, require a license in accordance with this regulation.

"Deemed" exports of "technology" and "source code" removed from eligibility for export under a license exception or without a license ("NLR") as a result of this regulatory action may continue to be made under the previously available license exception or without a license (NLR) before August 20, 2009. Beginning at midnight on August 20, 2009, such "technology" and "source code" may no longer be released, without a license, to a foreign national subject to the "deemed" export controls in the EAR when a license would be required to the home country of the foreign national in accordance with this regulation.

¹The AG is a multilateral forum, consisting of 40 participating countries, that maintains export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

- public comments may be submitted

BIS contact - Theodore Curtin (202) 482-1975

BIS final rule (D/N 090113021-9025-01, FR Pub 07/06/09) available at http://edocket.access.gpo.gov/2009/pdf/E9-15827.pdf.