Exceptions in dual use export licenses by IPIS Research

Report on exceptions in dual-use export licenses

Jan Cappelle (IPIS)

Steunpunt Buitenlands Beleid Lange Sint-Annastraat 7 B-2000 Antwerpen RAPPORT September 2009

Steunpunt Buitenlands Beleid Lange Sint-Annastraat 7 B-2000 Antwerpen www.ua.ac.be/vsbb vsbb@ua.ac.be ÂŠ 2010 Steunpunt Buitenlands Beleid

D/2010/11896/001 NUR 754 ISBN 9789490083113

TABLE OF CONTENTS SAMENVATTING .................................................................................................... 5 INTRODUCTION .................................................................................................... 7 THE EXPORT OR RE-EXPORT OF DUAL-USE GOODS FROM THE UNITED STATES ............ 8 RESTRICTIONS IN APPLYING A LICENSE EXCEPTIONS IN THE UNITED STATES ........... 15 OVERVIEW OF THE LICENSE EXCEPTIONS IN THE UNITED STATES............................ 21 1. Shipments of limited value (LVS) ................................................................ 21 2. Computers (APP) ...................................................................................... 21 3. Temporary imports, exports, and reexports (TMP)......................................... 21 4. Servicing and replacement of parts and equipment (RPL)............................... 22 5. Shipments to country group B countries (GBS) ............................................. 22 6. Civil end-users (CIV) ................................................................................. 22 7. Technology and software under restriction (TSR) .......................................... 23 8. Governments, international organizations, and international inspections under the chemical weapons convention (GOV)............................................................... 23 9. Gift parcels and humanitarian donations (GFT) ............................................. 23 10. Technology and software unrestricted ....................................................... 23 11. Baggage (BAG) ....................................................................................... 24 12. Aircraft and vessels (AVS) ........................................................................ 24 13. Encryption commodities, software and technology (ENC).............................. 24 14. Agricultural commodities (AGR) ................................................................ 24 15. Additional permissive reexports (APR) ....................................................... 24 LICENSE EXCEPTIONS IN THE UNITED STATES THAT ARE SIMILAR TO THOSE IN EC COM PROPOSAL 5011/0............................................................................................... 26 Introduction ................................................................................................. 26 1. Shipments of limited value (LVS) ................................................................ 26 1.1. Similarities and differences in terms of products ..................................... 26 1.2. Similarities and differences in terms of geographical range....................... 35 1.3. Summary........................................................................................... 35 2. Computers ............................................................................................... 36 2.1. Similarities and differences in terms of products ..................................... 36 2.2. Similarities and differences in terms of geographical range....................... 38 2.3. Summary........................................................................................... 38 3. Temporary imports, exports, and reexports (TMP)......................................... 39 3.1. Similarities and differences in terms of products ..................................... 39 3.2. Similarities and differences in terms of geographical range....................... 41

3.3. Summary........................................................................................... 41 4. Servicing and replacement of parts and equipment (RPL)............................... 42 4.1. Similarities and differences in terms of products ..................................... 42 4.2. Similarities and differences in terms of geographical range....................... 44 4.3. Summary........................................................................................... 45 5. Encryption commodities, software and technology (ENC) ............................... 46 5.1. Similarities and differences in terms of products ..................................... 46 5.2. Similarities and differences in terms of geographical range....................... 48 5.3. Summary........................................................................................... 48 GENERAL CONCLUSIONS...................................................................................... 49 ANNEX 1 â&#x20AC;&#x201C; Comment on footnotes 84, 99, 113 and 129. .......................................... 51 ANNEX 2 ............................................................................................................ 52 ANNEX 3 â&#x20AC;&#x201C; Similarities and differences in terms of geographical range. Table of comparison......................................................................................................... 57

SAMENVATTING De Europese Commissie presenteerde in december 2008 een voorstel (5011/09) voor een Verordening van de Raad tot wijziging van Verordening (EG) nr. 1334/2000 tot instelling van een communautaire regeling voor controle op de uitvoer van producten en technologie voor tweeĂŤrlei gebruik. De Commissie beoogt met dit voorstel 'een uniforme en consistente toepassing van de controle in de hele Gemeenschap, om het huidige rechtsstelsel te vereenvoudigen.'1 'het concurrentievermogen van de EU-industrie te vergroten en gelijke spelregels tot stand te brengen voor alle EU-exporteurs wanneer zij bepaalde producten naar bepaalde bestemmingen uitvoeren'2. In het voorstel werden zes nieuwe Communautaire Algemene Uitvoervergunningen uitgewerkt. Dit houdt in dat in een lidstaat gevestigde exporteur dual-use producten mag uitvoeren zonder de administratieve verplichting om een vergunning aan te vragen voordat de uitvoer plaatsvindt. Een voorwaarde is wel dat de zending en de bestemming aan de in de verordening opgenomen voorschriften en voorwaarden moet voldoen.

Het debat vond plaats in de Subgroep inzake nieuwe communautaire algemene uitvoervergunningen van de Groep goederen voor tweeerlei gebruik, en het werk werd verder gezet onder het Portugees voorzitterschap. Het Vlaams Gewest wenst, ter voorbereiding van het Belgisch voorzitterschap van de Europese Unie in 2010, het voorstel van de Commissie ten gronde te evalueren. De Dienst Controle Wapenhandel van het Vlaams Gewest bestelde een studie over de gelijkenissen en verschillen met het dual-use 'License Exceptions' beleid in de Verenigde Staten. De uitvoer en weder-uitvoer van dual-use goederen in de Verenigde Staten wordt geregeld in een bijzondere exportwetgeving. De wetgeving laat uitzonderingen toe, zgn. 'License Exceptions'. Een exporteur mag dual-use producten uitvoeren zonder de verplichting om een vergunning aan te vragen voordat de uitvoer plaatsvindt. De zending moet wel aan een reeks voorschriften en voorwaarden voldoen.

Uit de vergelijkende studie, welke werd uitgevoerd door IPIS, blijkt dat er belangrijke verschillen bestaan tussen het Europees en Amerikaans model, zowel in termen van de dual-use producten (die zonder administratieve vergunning kunnen worden uitgevoerd); als in termen van de landen van bestemming. Bij toepassing van het toen voorliggende

1 Verordening van de Raad van de Europese Unie tot wijziging van Verordening (EG) nr. 1334/2000 tot instelling van een communautaire regeling voor controle op de uitvoer van producten en technologie voor tweeĂŤrlei gebruik, 5 januari 2009, pagina 5. 2 Ibid.

Europees voorstel kunnen dual-use producten, op basis van een Communautaire Algemene Uitvoervergunning, worden uitgevoerd naar landen die in de Verenigde Staten worden beschouwd als gevaarlijk voor de nationale veiligheid van het land. Hier tegenover staat dan dat de Verenigde Staten veel meer landen opnemen in hun systeem van License Exceptions. Dit betekent echter niet dat de procedures minder streng zijn. De Verenigde Staten hebben tal van voorschriften en voorwaarden uitgewerkt waaraan een exporteur moet aan voldoen. Die zijn onder andere gestoeld op het beleid van de Verenigde Staten ten aanzien van individuele staten in termen van: redenen van nationale veiligheid; redenen van buitenlands beleid; en landen onder embargo.

INTRODUCTION The European Commission (EC) presented in December 2008 a Proposal for a Council Regulation amending Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology. This proposal has been set up to achieve “uniform and consistent application of controls throughout the Community”3, to “simplify the current legal system, to enhance the industry’s competitiveness and to establish a level playing field for all Community exporters when they export certain items to certain destinations.”

The Proposal covers

six

Community

General Export

Authorisations (CGEA). It is based on discussions within the sub-group on new CGEAs of the Working Party on Dual-Use Goods, which continued under the Portugese Presidency. In preparing the Presidency of the European Union in 2010, the Flemish Arms Trade Monitoring Unit of the Flemish Department of Foreign Affairs ordered a study on the similarities and differences between the CGEAs in the European Commission’s Proposal and a similar procedure that is in place in the United States. The export or re-export of dual-use goods from the United States are regulated in the Export Administration Regulations. A License Exception is an authorization that allows an exporter to export or re-export under stated conditions, items subject to the Export Administration Regulations that would otherwise require a license.

This paper begins with a general explanation of the applicable export policies in the United States and provides in chapter two an overview of the restrictions and conditions in applying a License Exception. Chapter three focuses on the License Exceptions that are silimar with the CGEAs in the EC’s Proposal.

3 Proposal for a Council Regulation amending Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology. 4 Ibid.

THE EXPORT OR RE-EXPORT OF DUAL-USE GOODS FROM THE UNITED STATES The export or re-export of dual-use goods from the United States “are regulated in the Export Administration Regulations

(EAR). EAR have been designed primarily to

implement the Export Administration Act (EAA) of 19795.”6 These regulations “establish the framework for regulating exports of dual-use, potentially sensitive commodities, software, computers, and technology. Exports are restricted by item, country, and recipient entity.”7 It is already since 1949 that the United States restricts dual-use export controls. While “the restrictions are originally based on national security, foreign policy, they also take into account the effect of domestic exports on the national economy.”8 “In practice, the dual-use items are controlled for both national security and foreign policy reasons with different control standards determining the licensing policy of an item to a particular country.”9

In general, “the term “dual use” refers to EAR-controlled items that can be used both in military and other strategic uses and commercial applications.”10 In general, “the term dual use serves to distinguish EAR-controlled items that can be used both in military and other strategic uses and in civil applications from those that are weapons and military related use or design11.”12

The items (i.e. commodities, software, and technology) “are subject to the authority of the Department of Commerce’s Bureau of Industry and Security (BIS) and are listed in the "Commerce Control List" (CCL).”13 BIS regularly updates the list in order to reflect revisions in the control lists of the multilateral export control regimes in which the United States is a member and in unilateral control decisions. The CCL is divided into 10 categories, numbered as follows 14:

Export Administration Act of 1979, as amended, 50 U.S.C. app. 2401-2420. Export Administration Regulations, Part 730 – General Information, §730.2. Footnote added in the quote. Ian F. Fergusson, Specialist in International Trade and Finance, The Export Administration Act: Evolution, Provisions, and Debate, CRS Report for Congress, Congressional Research Service, July 15, 2009. 8 Ibid. 9 Ibid. 10 Export Administration Regulations, Part 730 – General Information, § 730.3. 11 These are items that are subject to the controls of the Department of State or subject to the nuclear related controls of the Department of Energy or the Nuclear Regulatory Commission. 12 Export Administration Regulations, Part 730 – General Information, § 730.3. Footnote added to the quote. 13 Export Administration Regulations, Part 738 - Commerce Control List Overview and the Country Chart, § 738.1. 14 Ibid, § 738.2. 6 7

0 - Nuclear Materials, Facilities and Equipment and Miscellaneous 1 - Materials, Chemicals, "Microorganisms," and Toxins 2 - Materials Processing 3 - Electronics 4 - Computers 5 - Telecommunications and Information Security 6 - Lasers and Sensors 7 - Navigation and Avionics 8 - Marine 9 - Propulsion Systems, Space Vehicles and Related Equipment

Within each category, items are arranged by group. Each category contains the same five groups. Each group is identified by the letters A through E, as follows 15:

A - Equipment, Assemblies and Components B - Test, Inspection and Production Equipment C - Materials D - Software E – Technology

Within each group individual items are identified by an Export Control Classification Number (ECCN).

The licensing requirements of each of the items “are based on destination and Reason for Control, which are presented in a “Commerce Country Chart".”16 The Chart “consists of a table in which the first column lists all countries in alphabetical order.”17 The horizontal headers “identify the various Reasons for Control.”18 The following is a list19 of all possible Reasons for Control. A distinction is made between multilaterally-based and unilaterally-based Reasons for Control:

1. Multilaterally-based Reasons of Control:

Ibid. Ibid, § 738.3. 17 Ibid. There are a number of destinations that are not listed in the Country Chart. If a destination is not listed on the Country Chart and if it is a territory, possession, or department of a country included on the Country Chart, the Export Administration Regulations accords this destination the same licensing treatment as the country of which it is a territory, possession, or department. 18 Ibid, § 738.3. 19 Ibid, § 738.2. 16

NS - National Security, based on the Wassenaar Arrangement MT - Missile Technology, based on the Missile Technology Control Regime CB - Chemical & Biological Weapons, based on the Australia Group NP - Nuclear Nonproliferation, based on the Nuclear Suppliers Group CW - Chemical Weapons Convention FC - Firearms Convention, based on the Organization of American States (OAS) Model Regulations for the Control of the International Movement of Firearms, their Parts and Components and Munitions which were developed to assist OAS member countries to implement the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials UN - United Nations Embargo, based on the Resolutions of the United Nations Security Council

2. Unilaterally-based Reasons for Control:

NP - Nuclear Nonproliferation CC - Crime Control AT - Anti-Terrorism EI - Encryption Items RS - Regional Stability SS - Short Supply SI - Significant Items SL - Surreptitious Listening

The Department of Commerce’s Bureau of Industry and Security (BIS) is responsible for regulating the export of dual-use items. As provided for under Executive Order 12981, “the Departments of State, Defense, and Energy each shall have the authority to review any export license application submitted to the Department of Commerce.”20

The mission of the Bureau of Industry and Security “is to advance U.S. national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership.”21 Its policy towards individual countries is based on national security reasons and on foreign policy reasons. Both are regulated in the Export Administration Act. 20

Export Administration Regulations, Legal Authority for the EAR, Part II.9. Administration of Export Controls, January 2009, Section 1, page 86. 21 Website Bureau of Industry and Security. Viewed on 24 September 2009. http://www.bis.doc.gov/about/index.htm.

The Export Administration Act provides the President the power to restrict the export of dual-use goods or technology for national security reasons “to such country that could make a significant contribution to the military potential of such country or a combination of countries that would prove detrimental to the national security of the United States.”22 In determining whether a country is added to or removed from the list of controlled countries, “the President shall take into account:

the extent to which the country’s policies are adverse to the national security interests of the United States;

the country’s Communist or non-Communist status;

the present and potential relationship of the country with the United States;

the present and potential relationships of the country with countries friendly or hostile to the United States;

the country’s nuclear weapons capability and the country’s compliance record with respect to multilateral nuclear weapons agreements to which the United States is a party; and

such other factors as the President considers appropriate.”23

The following countries presently serve as the list of controlled countries for national security reasons: Albania, Armenia, Azerbaijan, Belarus, Burma, Cambodia, China, Georgia, Iraq, Kazachstan, Kyrgyzstan, Laos, Libya, Macau, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam.24 The Commerce Control List marks various ECCN items that are controlled for national security reasons. The policy is to approve applications unless there is a significant risk that the items will be diverted to the countries on the list of controlled countries.25 The requests “are reviewed on a caseby-case basis and are approved if it is determined the item is destined for civilian use or would otherwise not make a significant contribution to the military potential of the country of destination that would prove detrimental to the national security of the United States.”26

22 Export Administration Act of 1979, as amended, 50 U.S.C. app. 2404, National security controls, § 2404.(b).(1). 23 Ibid, § 2404.(b).(1). 24 The countries are lised in Group D:1 of Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Groups. 25 Export Administration Regulations, Part 742 - Control Policy -- CCL Based Controls, § 742.4.(b).(1). 26 Ibid, § 742.4.(b).(2). In recognition of efforts made to adopt safeguard measures for exports and reexports, Kazakhstan, Mongolia, and Russia are accorded enhanced favorable consideration licensing treatment. The general policy for Cambodia and Laos is to approve license applications when the Bureau determines, on a case-by-case basis, that the items are for an authorized use in Cambodia or Laos and are not likely to be diverted to another country or use contrary to the national security or foreign policy controls of the United

Items controlled for national security purposes “are subject to a foreign availability determination. Foreign availability exists when a good is available to controlled countries from sources outside the United States in “sufficient quantity and comparable quality” so that control of the item would be ineffective. The 1979 Act charges the Secretary, in conjunction with the Secretary of Defense and other appropriate agencies, with determining on a continuing basis whether any item currently subject to export control for reasons of national security meets foreign availability status. Under EAA, a request to make a foreign availability determination can be made by a license applicant or through the initiative of the Secretary. If the Secretary makes a foreign availability determination, the item must be decontrolled, although the President can overturn that decision with a determination that decontrolling such items would be detrimental to the national security of the United States. In such case, the President is directed to enter negotiations with multilateral control partners to eliminate the availability in question.”27

The Export Administration Act also provides the President “to prohibit or curtail the exportation of any goods, technology, or other information subject to the jurisdiction of the United States or exported by any person subject to the jurisdiction of the United States, to the extent necessary to further significantly the foreign policy of the United States or to fulfill its declared international obligations.”28 Foreign policy controls “must be renewed on a yearly basis.”29

The President “may impose, extend, or expand export controls under this section only if the President determines that:

such controls are likely to achieve the intended foreign policy purpose, in light of other factors, including the availability from other countries of the goods or technology proposed for such controls, and that foreign policy purpose cannot be achieved through negotiations or other alternative means;

the proposed controls are compatible with the foreign policy objectives of the United States and with overall United States policy toward the country to which

States. For the People's Republic of China (PRC), there is a general policy of approval for liegende applications to export, reexport, or transfer items to civil end-uses. There is a presumption of denial for license applications to export, reexport, or transfer items that would make a direct and significant contribution to the PRC’s military capabilities such as, but not limited to, the major weapons systems (which are described in in Supplement No. 7 to Part 742 of the EAR). Export Administration Regulations, Part 742 - Control Policy -- CCL Based Controls, § 744.2.(b).(5)-(7). 27 Ian F. Fergusson, Specialist in International Trade and Finance, The Export Administration Act: Evolution, Provisions, and Debate, CRS Report for Congress, Congressional Research Service, July 15, 2009, page 8. The Foreign Availability policy is regulated in Export Administration Act of 1979, as amended, 50 U.S.C. app. 2404, National security controls, § 2404.(f).(1)-(5). 28 Export Administration Act of 1979, as amended, 50 U.S.C. app. 2405, Foreign policy controls, § 2405.(a).(1). 29 Ibid, § 2405.(a).(3).

exports are to be subject to the proposed controls;

the reaction of other countries to the imposition, extension, or expansion of such export controls by the United States is not likely to render the controls ineffective in achieving the intended foreign policy purpose or to be counterproductive to United States foreign policy interests;

the effect of the proposed controls on the export performance of the United States, the competitive position of the United States in the international economy, the international reputation of the United States as a supplier of goods and technology, or on the economic well-being of individual United States companies and their employees and communities does not exceed the benefit to United States foreign policy objectives; and

the United States has the ability to enforce the proposed controls effectively.”30

Currently, foreign policy controls “are in place for anti-terrorism, regional stability, crime control, United Nations sanctions purposes, unilateral embargoes and sanctions, and non-proliferation objectives. This latter category includes adherence to multilateral nonproliferation agreements in the areas of chemical and biological weapons, nuclear proliferation, missile technology and firearms.”31 Foreign policy controls are also in place for some specific items.32

These provisions “shall not apply in any case in which the President exercises the authority to impose export controls, or to approve or deny export license applications, in order to fulfill obligations of the United States pursuant to treaties to which the United States is a party or pursuant to other international agreements.”33

Similar with the procedures in relation to controlling items for national security purposes, the United States has set up conditions in order to assess a foreign availability determination. But it “directs the President to engage in negotiations to remove the

Ibid, § 2405.(b). Ian F. Fergusson, Specialist in International Trade and Finance, The Export Administration Act: Evolution, Provisions, and Debate, CRS Report for Congress, Congressional Research Service, July 15, 2009, page 9. The foreign policy control restrictions are regulated in Export Administration Regulations, Part 742 - Control Policy -CCL Based Controls, § 742.4.(a)., 742.5.(a)., 742.2.(a).(1)-(3), 742.3.(a).(2), 742.6.(a).(1)-(2)., 742.7.(a).(1)-(3), 742.8.(a)., 742.10.(a)., 742.17.(a)., 742.18.(a).(1)-(2), 742.19.(a)., Export Administration Regulations, Part 745 - Chemical Weapons Convention Requirements and Supplement No. 2 to Part 742 of the Export Administration Regulations. 32 The foreign policy control restrictions on restriction items are regulated in Export Administration Regulations, Part 742 - Control Policy -- CCL Based Controls, § 742.13., 742.14., and 742.15(a). They relate to encrypted items; items for the development, production, overhaul of commercial aircraft engines controlled by 9E003.a.1. through a.12, .f, and related controls; and items that may be used for surreptitious interception of wire, oral, or electronic communications. 33 Export Administration Act of 1979, as amended, 50 U.S.C. app. 2404, foreign policy controls, §2405.(i). 31

foreign availability of items controlled for foreign policy purposes, and it requires the President to impose controls to comply with international obligations or treaties. Furthermore, it requires a license for the export of certain items to countries that support international terrorism.”34

Controls based on the end-use or end-user of an item “are also administered as foreign policy controls. They were introduced under the Enhanced Proliferation Control Initiative (EPCI) of 1991, and they are contained in Part 744 of the EAR.”35

Ian F. Fergusson, Specialist in International Trade and Finance, The Export Administration Act: Evolution, Provisions, and Debate, CRS Report for Congress, Congressional Research Service, July 15, 2009, page 9. The foreign policy control is regulated in Export Administration Act of 1979, as amended, 50 U.S.C. app. 2404, foreign policy controls, §2405.(j), .(l), .(m) and .(n). 35 Ibid.

RESTRICTIONS IN APPLYING A LICENSE EXCEPTIONS IN THE UNITED STATES In the United States, a License Exception is an authorization that allows an exporter to export or re-export under stated conditions, items subject to the Export Administration Regulations that would otherwise require a license. The conditions and restrictions are divided in two categories: general restrictions and conditions; and a set of particular conditions and restrictions per License Exception. The restrictions depend strongly on the end-use of the items and commodities, the end-users and the activities. This chapter will provide an overview of the main general restrictions and a comparison of those with EC COM Proposal 5011/09.

The Export Administration Regulations lists in its Part 740.2 eleven restrictions in applying a License Exception. An exporter may not use any License Exception if:36

the authorization to use a License Exception has been suspended or revoked, or the intended export does not qualify for a License Exception.

the export or re-export is subject to one of the following ten General Prohibitions37: o

General Prohibition One. It is prohibited to export or re-export items without a license or License Exception, export any item subject to the EAR to another country or re-export any item of U.S.-origin if each of the following is true: (a) the item is controlled for a reason indicated in the applicable Export Control Classification Number (ECCN), and (b) export to the country of destination requires a license for the control reason as indicated on the Country Chart.

General Prohibition Two relates to re-export and export from abroad of foreign-made items incorporating more than a de minimis amount38 of controlled U.S. content.

General Prohibition Three relates to re-export and export from abroad of foreign-produced direct products of U.S. technology and software.

General Prohibition Four relates to denial Orders.

36 This chapter only explains the restrictions that are relevant for the research questions posed in the beginning of this paper. This paper does not include the restrictions that are limited to items that are controlled for unilaterally-based reasons of control. 37 Export Administration Regulations, Part 736, General Prohibitions, ยง 736.2. 38 The de minimis amount of controlled U.S. content is as defined in ยง734.4 of the EAR.

General Prohibition Five relates to export or re-export to prohibited enduses or end-users.

General Prohibition Six relates to export or re-export to embargoed destinations.

General Prohibition Seven relates to prohibition of support of Proliferation Activities39.

General Prohibition Eight relates to in transit shipments and items to be unladen from vessels or aircraft.40

General Prohibition Nine. It is prohibited to violate terms or conditions of a license or of a License Exception issued under or made a part of the EAR, and it may not violate any order issued under or made a part of the EAR.

General Prohibition Ten. An exporter may not sell, transfer, export, reexport, finance, order, buy, remove, conceal, store, use, loan, dispose of, transport, forward, or otherwise service, in whole or in part, any item subject to the EAR and exported or to be exported with knowledge that a violation

the

Export

Administration

Regulations,

the

Export

Administration Act or any order, license, License Exception, or other authorization issued there under has occurred, is about to occur, or is intended to occur in connection with the item. Nor may an exporter rely upon any license or License Exception after notice to you of the suspension or revocation of that license or exception.

the item is controlled for missile technology (MT) reasons, except that the items described in ECCNs 6A008, 7A001, 7A002, 7A004, 7A101, 7A102 (slightly different with item 7A102 in Council Regulation (EC) No 428/2009), 7A103, 7A104, 7B001, 7D001, 7D002, 7D003, 7D101, 7D102, 7E003, or 7E101 may be exported as part of a manned aircraft, land vehicle or marine vehicle or in quantities appropriate for replacement parts for such applications under four

An exporter you may not engage in any of the following activities without a license from BIS: the design, development, production, or use of nuclear explosive devices in or by Cuba, India, Iran, Iraq, Israel, North Korea, Libya and Pakistan; the design, development, production, or use of missiles in or by Bahrain, China, Egypt, India, Iran, Iraq, Israel, Jordan, North Korea, Kuwait, Lebanon, Libya, Macau, Oman, Pakistan, Qatar, Saudi Arabia, Syria, United Arab Emirates and Yemen; or the design, development, production, stockpiling, or use of chemical or biological weapons in or by any country or destination, worldwide. The General Prohibition also restricts the export of certain chemicals and in providing certain technical assistance to foreign persons with respect to encryption items. 40 An exporter may not export or reexport an item through or transit through Albania, Armenia, Azerbaijan, Belarus, Cambodia, Cuba, Georgia, Kazakhstan, Kyrgyzstan, Laos, Mongolia, North Korea, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam unless a License Exception or license authorizes such an export or reexport directly to such a country of transit, or unless such an export or reexport is eligible to such a country of transit without a license.

types of EAR License Exceptions.41 Items described in ECCN 2A001 may be exported or re-exported under two types of EAR License Exceptions.42

the export or re-export is to a comprehensively embargoed destination (Cuba, Iran, and North Korea), unless a license exception or portion thereof is specifically listed in the license exceptions paragraph pertaining to a particular embargoed country.

the commodities are "Space qualified" items.43

The restrictions in EC COM Proposal 5011/09 are less elaborated. It only lists a few restrictions, which can be divided in four main groups: restricting proliferation activities, conditions in terms of re-export and sharing information with the competent authorities and in relation to transit shipments. This paper will discuss the restrictions that are similar with those in the United States.

The CGEAs in EC COM Proposal 5011/09 do not authorize the export of items “where the exporter has been informed by the competent authorities of the Member State in which he is established that the items in question are or may be intended, in their entirety or in part, (a) for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices, or the development, production, maintenance or storage of missiles capable of delivering such weapons, (b) for military end-use where the purchasing country or country of destination is subject to an arms embargo imposed by a Common Position or Joint Action adopted by the Council of the European Union or a decision of the OSCE or imposed by a binding resolution of the Security Council of the United Nations, or (c) for use as parts or components of military items listed in national military lists that have been exported from the territory of the Member State concerned without authorisation or in breach of an authorisation prescribed by the national legislation of that Member State.”44 Additionally, the CGEAs do 41 Application under EAR part § 740.9(a)(2)(ii) on License Exception TMP for kits consisting of replacement parts, § 740.10 on License Exception RPL, § 740.13 on License Exception TSU, or § 740.15(c) on License Exception AVS for equipment and spare parts for permanent use on a vessel or aircraft. The License Exceptions are explained in this paper, and in Export Administration Regulations, Part 740 - License Exceptions. 42 Applications under EAR part § 740.9(a)(2)(ii) on License Exception TMP or § 740.10 on License Exception RPL. The License Exceptions are explained in this paper, and in Export Administration Regulations, Part 740 License Exceptions. 43 This includes national items of commodities that are not included in multilateral export control-regimes and items in multilateral export control-regimes. Commodities defined in 3A001.b.8 (Traveling Wave Tube Amplifiers (TWTAs) exceeding 18 GHz), 6A002.e, 6A008.j.1, or 6A998.b; "software" for commodities defined in 3A001.b.8 (Traveling Wave Tube Amplifiers (TWTAs) exceeding 18 GHz), 6A002.e, 6A008.j.1, or 6A998.b and controlled under ECCNs 3D001 (Traveling Wave Tube Amplifiers (TWTAs) exceeding 18 GHz), 6D001, 6D002, 6D991; and "technology" for commodities defined in ECCNs 3A001.b.8 (Traveling Wave Tube Amplifiers (TWTAs) exceeding 18 GHz), 6A002.e, 6A008.j.1, or 6A998.b and controlled under ECCNs 3E001, 6E001, 6E002, 6E101, 6E991. 44 EC COM Proposal 5011/09, annex IIb, Part 3.2.(1).(a)-(c).; annex IIc, Part 3.2.(1).(a)-(c).; annex IId, Part 3.1.(1).(a)-(c).; annex IIe, Part 3.1.(1).(a)-(c).; annex IIf, Part 3.1.(1).(a)-(c).

not authorise the export of items where the exporter is aware that the items in question are intended, in their entirety or in part, for any of such uses.45 The conditions and restrictions are not further elaborated.

The United States applies similar restrictions, but the restrictions are more elaborated. Those restrictions are defined in Part 740 of the Export Administration Regulations, § 740.2.(2). which stipulates that the export or reexport of items is subject to the ten General Prohibitions. General Prohibition Five relates to the export or reexport to prohibited end-uses or end-users: an exporter “may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.”

Part 744 lists and elaborates the following

prohibitions:

§ 744.2: Restrictions on certain nuclear end-uses;

§ 744.3: Restrictions on certain rocket systems (including ballistic missile systems and space launch vehicles and sounding rockets) and unmanned air vehicles (including cruise missile systems, target drones and reconnaissance drones) enduses;

§ 744.4: Restrictions on certain chemical and biological weapons end-uses;

§744.5: Restrictions on certain maritime nuclear propulsion end-uses;

§ 744.6: Restrictions on certain activities of U.S. persons;

§744.7: Restrictions on certain exports to and for the use of certain foreign vessels or aircraft;

§ 744.8: Restrictions on exports and reexports to persons designated pursuant to Executive Order 13382 – Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters;

§ 744.9: Restrictions on certain exports and reexports of cameras controlled by ECCN 6A003.b.4.b;

§ 744.10: Restrictions on certain entities in Russia;

§ 744.11: License Requirements that Apply to Entities Acting Contrary to the National Security or Foreign Policy Interests of the United States;

§ 744.12: Restrictions on exports and reexports to persons designated in or pursuant to Executive Order 13224 (Specially Designated Global Terrorist) (SDGT);

45 Ibid, annex IIb, Part 3.2.(2).; annex IIc, Part 3.2.(2).; annex IId, Part 3.1.(2).; annex IIe, Part 3.1.(2).; annex IIf, Part 3.1.(2). 46 Export Administration Regulations, Part 736, General Prohibitions, § 736.(2).(5).

§ 744.13: Restrictions on exports and reexports to persons designated pursuant to Executive Order 12947 (Specially Designated Terrorists) (SDT);

§ 744.14: Restrictions on exports and reexports to designated Foreign Terrorist Organizations (FTOs);

§ 744.15: Restrictions on exports and reexports involving persons named in General Orders;

§ 744.16: Procedure for Requesting Removal or Modification of an Entity List Entity;

§ 744.17: Restrictions on certain exports and reexports of general purpose microprocessors for “military end-uses” and to “military end-users”;

§ 744.18: Restrictions on exports, reexports, and transfers to persons designated in or pursuant to Executive Order 13315;

§ 744.19: Licensing policy regarding persons sanctioned pursuant to specified statutes;

§ 744.20: License requirements that apply to certain sanctioned entities;

§ 744.21: Restrictions on certain military end-uses in the People's Republic of China (PRC);

§ 744.22: Restrictions on Exports, Reexports and Transfers to Persons Whose Property and Interests in Property Are Blocked Pursuant to Executive Orders 13310, 13448 or 13464.

Each of the CGEAs in EC COM Proposal 5011/09 includes an information duty for the exporter. All CGEAs stipulate that any exporter who uses this authorization must inform the competent authorities of the Member State “where he is established of first use of the authorization no later than 30 days after the date of first export.”47 Three CGEAs in EC COM Proposal 5011/09 also stipulate that “before exportation, the foreign purchaser needs to be informed that the items can only be re-exported under certain conditions.”48 There is also an information duty for the exporter in the United States but the requirements are less specific. The United States applies a reporting requirement for the five License Exceptions which are discussed in this paper. Those can be divided in three groups:

The License Exceptions LVS, TSR49 Computers and RPL only require “special

EC COM Proposal 5011/09, annex IIb, Part 3, § 4.(1).; annex IIc, Part 3, § 4.; annex IId, Part 3, § 3.; Annex IIe, Part 3, §2.(1).; annex IIf, Part 3, § 3.(1). 48 Ibid, annex IIb, Part 3, § 4.(2).; annex IIe, Part 3, §2.(2).; annex IIf, Part 3, § 3.(2). 49 For License Exception TSR reports are not required for release of technology or source code subject to the EAR to foreign nationals in the U.S. under the provisions of the License Exception.

reporting requirements for exports of certain commodities, software and technology controlled under the Wassenaar Arrangement. Such reports must be submitted to BIS semiannually and records of all exports subject to the reporting requirements of this section must be kept in accordance with part 762 of the EAR on Recordkeeping. This does not require reports for reexports.”50 Part 762 of the EAR lists the conditions of Recordkeeping.

The EAR stipulates other reporting requirements for TMP and ENC and additional ones for RPL. o

No requirements are stipulated for the export of items for exhibition or fair (License Exception TMP).

Exporters are required to maintain records for any items exported or reexported pursuant to License Exception RPL to repair or service previously legally exported or reexported items controlled under two unilaterally controlled items (ECCNs 2A983 and 2D983).51

A prior review is required under License Exception ENC for the export and reexport of the items 5A002.a.1, a.2, a.5, a.6, or a.9, 5B002, or 5D002 and of for technology controlled for EI reasons under ECCN 5E002 to private

sector 53

request.

end-users.52 Some

items

are

excluded

from

review

Additionally, “there is a semi-annual reporting for exports to all

destinations other than Canada, and for reexports from Canada, under this license exception”54 and for items and commodities that are modified only “to upgrade the key length used for confidentiality or key exchange algorithms.”55

Summary

Both Export Administration Regulations and EC COM Proposal 5011/09 stipulate conditions and restrictions in order to control the export of dual-use items for reasons of end-use and end-users. United States’ EAR’ policies are much more elaborated than those in EC COM 5011/09. EAR’s part 744 lists 20 various restrictions.

Each of the CGEAs in EC COM Proposal 5011/09 includes an information duty for the exporter. This is also the case in the United States but the requirements are less specific. 50 51 52 53 54 55

Export Administration Regulations, Part 743 - Special Reporting Requirements, §743.1(a). Ibid, §740.10.(c). Ibid, §740.17.(b). Ibid, §740.17.(b).(4). Ibid, §740.17.(e).(1). Ibid, §740.17.(e).(2).

OVERVIEW OF THE LICENSE EXCEPTIONS IN THE UNITED STATES Part 740 of the Export Administration Regulations explains 15 types of License Exeptions. This chapter provides a general overview.

1. Shipments of limited value (LVS)

License Exception LVS “authorizes the export and reexport in a single shipment of eligible commodities as identified by "LVS - $(value limit)" on the Commerce Control List.” 56 As explained, the Commerce Control list includes the dual-use items subject to the export licensing authority of BIS.

2. Computers (APP)

License Exception APP “authorizes exports and reexports of computers, including "electronic assemblies" and specially designed components therefor controlled by ECCN 4A003, except ECCN 4A003.e (equipment performing analog-to-digital conversions exceeding the limits in ECCN 3A001.a.5.a), exported or reexported separately or as part of a system for consumption.

License Exception APP authorizes exports of technology and software controlled by ECCNs 4D001 and 4E001 specially designed or modified for the "development", "production", or "use" of computers, including "electronic assemblies" and specially designed components therefor classified in ECCN 4A003, except ECCN 4A003.e (equipment performing analog-to-digital conversions exceeding the limits in ECCN 3A001.a.5.a). Related equipment controlled under ECCN 4A003.g may not be exported or reexported under this License Exception when exported or reexported separately from eligible computers authorized under this License Exception.” 57

3. Temporary imports, exports, and reexports (TMP)

This License Exception TMP is divided in three groups. 58 It regulates:

56 57 58

Ibid, § 740.3. Ibid, § 740.7. Ibid, § 740.9.

temporary exports and reexports of: usual and reasonable kinds and quantities of tools of trade (commodities, software and technology) for use in a lawful enterprise or undertaking of the exporter, kits consisting of replacement parts, items for exhibition and demontration, commodities to be inspected, tested, calibrated or repaired abroad, containers, broadcast material and news media material;

the conditions for exporting foreign-origin items temporarily in the United States;

exports and reexports of beta test software for distribution to the general public.

4. Servicing and replacement of parts and equipment (RPL)

This License Exception “authorizes exports and reexports associated with one-for-one replacement of parts or servicing and replacement of equipment.” 59

5. Shipments to country group B countries (GBS) 60

License Exception GBS authorizes exports and reexports to 173 countries (annex 2) of those commodities that normally require a license to the ultimate destination for national security reasons only (as indicated in the Country Chart) and are authorized when identified by "GBS - Yes" on the Commerce Control List, provided the commodities is destined to one of the 173 countries61 (annex 2).

6. Civil end-users (CIV)62

License Exception CIV authorizes exports and reexports of items on the Commerce Control List that have a license requirement to the ultimate destination pursuant to the Commerce Country Chart for national security reasons only and identified by "CIV - Yes" on the Commerce Control List, provided the items are destined to civil end-users for civil end-uses in Albania, Armenia, Azerbaijan, Belarus, Burma, Cambodia, China, Georgia, Iraq, Kazachstan, Kyrgyzstan, Laos, Libya, Macau, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam63.

Ibid, § 740.10. Ibid, § 740.4. 61 The countries are lised in Group B of Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Groups. 62 Export Administration Regulations, Part 740 - License Exceptions, § 740.5. 63 The countries are lised in Group D:1 of Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Groups. 60

7. Technology and software under restriction (TSR)64

License Exception TSR permits exports and reexports of technology and software to 173 countries 65 (annex 2) while that normally requires a license requirement to the ultimate destination for national security reasons only (as indicated in the Country Chart) and are authorized when identified by "TSR - Yes" on the Commerce Control List.

8. Governments, international organizations, and international inspections under the chemical weapons convention (GOV)

This License Exception “authorizes exports and reexports for international nuclear safeguards; U.S. government agencies or personnel, and agencies of cooperating governments; and international inspections under the Chemical Weapons Convention.” 66

9. Gift parcels and humanitarian donations (GFT) The License Exception “authorizes exports and reexports of gift parcels by an individual (donor) addressed to an individual, or a religious, charitable or educational organization (donee) located in any destination for the use of the donee or the donee's immediate family (and not for resale).”

The License Exception also “authorizes exports or reexports by groups or organizations of donations to meet basic human needs when those groups or organizations have experience in maintaining a verifiable system of distribution that ensures delivery to the intended beneficiaries.” 68

10. Technology and software unrestricted (TSU)

This License Exception authorizes exports and reexports of operation technology and software69; sales technology and software70; software updates (bug fixes)71; "mass 64

Export Administration Regulations, Part 740 - License Exceptions, § 740.6. The countries are lised in Group B of Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Groups. 66 Export Administration Regulations, Part 740 - License Exceptions, § 740.11. 67 Ibid, § 740.12. 68 Ibid, § 740.12. 69 “Operation technology” is “the minimum technology necessary for the installation, operation, maintenance (checking), and repair of those commodities or software that are lawfully exported or reexported under a license or a License Exception.” Export Administration Regulations, Part 740 - License Exceptions, § 740.13.(a).(1). 70 “Sales technology and software” is “data supporting a prospective or actual quotation, bid, or offer to sell, lease, or otherwise supply any item.” Ibid, § 740.13.(b).(1). 65

market" software72; and unrestricted encryption source code (ecryption source code that would be considered publicly available).

11. Baggage (BAG)

This

License

Exception

“authorizes

individuals

leaving

the

United

States

either

temporarily (i.e., traveling) or longer-term (i.e., moving) and crew members of exporting or reexporting carriers to take to any destination, as personal baggage, the classes of commodities, software and technology.73

12. Aircraft and vessels (AVS)

This License Exception “authorizes departure from the United States of foreign registry civil aircraft on temporary sojourn in the United States and of U.S. civil aircraft for temporary sojourn abroad; the export of equipment and spare parts for permanent use on a vessel or aircraft; and exports of vessels or planes of U.S. or Canadian registry and U.S. or Canadian Airlines' installations or agents.” 74

13. Encryption commodities, software and technology (ENC)

License Exception ENC “authorizes export and reexport of software and commodities and components therefor that are classified under ECCNs 5A002.a.1, a.2, a.5, a.6 or a.9, 5B002, 5D002, and technology that is classified under ECCN 5E002.”

14. Agricultural commodities (AGR)

License Exception AGR permits “the export of agricultural commodities to Cuba, as well as the reexport of U.S. origin agricultural commodities to Cuba.” 76

15. Additional permissive reexports (APR)77

71 The provision authorizes “exports and reexports of software updates that are intended for and are limited to correction of errors (“fixes” to “bugs”) in software lawfully exported or reexported (original software).” Ibid, § 740.13.(c). 72 This relates to software that is generally available to the public. Supplement No. 2 to Part 774 - General Technology and Software Notes. 73 Export Administration Regulations, Part 740 - License Exceptions, § 740.14. 74 Ibid, § 740.15. 75 Ibid, § 740.17. 76 Ibid, § 740.18. 77 Ibid, § 740.16.

This License Exception regulates the following reexports:

Reexports

commodities,

except

those

that

are

controlled

for

nuclear

nonproliferation, chemical and biological, missile technology, Significant Items or crime control reasons and some type of cameras and military commodities;

Reexports of items controlled for nuclear nonproliferation reasons to, among, and from members of the Nuclear Suppliers Group;

Return to the United States of any item;

Reexports to Sudan of certain items;

Shipments of foreign-made products that incorporate U.S.-origin component;

Reexports between Switzerland and Liechtenstein;

Reexports to a destination to which direct shipment from the United States is authorized under an unused outstanding license;

Reexports of any item from Canada that, at the time of reexport, may be exported directly from the United States to the new country of destination under any License Exception;

Reexports from a foreign destination to Canada of any item if the item could be exported to Canada without a license.

LICENSE EXCEPTIONS IN THE UNITED STATES THAT ARE SIMILAR TO THOSE IN EC COM PROPOSAL 5011/09 Introduction

This chapter identifies the similarities and differences between the Export Administration Regulations part on License Exceptions and EC COM Proposal Proposal 5011/09 in terms of products and geographical range.

EU COM Proposal 5011/09 identifies six community general export authorizations:

1. Low Value Shipments (No EU002); 2. Export after Repair/ Replacement (No EU003); 3. Temporary Export for Exhibition or Fair (No EU004); 4. Computers and related equioment (No EU005); 5. Telecommunication and Information Security (No EU006); 6. Chemicals (No EU007).

The United States has five similar license exceptions:

1. Shipments of Limited Value; 2. Servicing and replacement of parts and equipment, 3. Temporary imports, exports, and reexports; 4. Computers; 5. Encryption commodities, software and technology.

The United States has no separate License Exception for chemicals.

1. Shipments of limited value (LVS) 1.1. Similarities and differences in terms of products

The United States authorizes License Exception LVS for 68 ECCN items (headers), of which five items are listed on the Wassenaar Munition List; and of which three ECCN items are controlled for unilateral purposes. EU COM Proposal 5011/09 authorizes more

than 190 commodities78. There is a similarity between more than 50 items (table 1). These items are authorized under License Exception LVS (in relation to export from the US and reexport79) as well as under EC COM Proposal 5011/09 (in relation to export from the EC and reexport80).

Table 1: authorization of items under License Exception LVS as well as under EC COM Proposal 5011/09. Name of item/ selling price: BISâ&#x20AC;&#x2122; Commerce Control List.

ECCN

Name of item

Selling price

Components made from fluorinated compounds, as follows (see List of Items 1A001

Controlled).

$5000

Manufactures of non-fluorinated polymeric substances controlled by 1C008.a.3 in film, sheet, tape or ribbon form with either of the following characteristics (see List of Items 1A003

Controlled).

$200

Equipment for the production of fibers, prepregs, preforms or "composites"

1B001

controlled by 1A002 or 1C010, as follows

N/A for Missile

(see List of Items Controlled), and

Technology (MT) and

specially designed components and

for 1B001.a; $5000 for

accessories therefor.

all other items

Equipment for producing metal alloys, metal alloy powder or alloyed materials, specially designed to avoid contamination and specially designed for use in one of 1B002

the processes specified in 1C002.c.2.

$5000

The items that are excluded are to the CGEA: all items in categories D and E; all items specified in Annex IV to Regulation 1334/2000; and a list of 35 items (1A002a, 1A004, 1C012a, 1C227, 1C228, 1C229, 1C230, 1C231, 1C236, 1C237, 1C240, 1C350, 1C450, 5A001b5, 5A002, 5B002, 6A001a2a1, 6A001a2a5, 6A002a1c, 6A00813, 8A001b, 8A001d, 9A011, 0C001, 0C002, 0D001, 0E001, 1A102, 1C351, 1C352, 1C353, 1C354, 7E104, 9A009.a and 9A117). 79 Commodities may be reexported under this License Exception, provided that they could be exported from the United States to the new country of destination under LVS. Export Administration Regulations, Part 740 License Exceptions, Â§ 740.3. 80 Commodities can be re-exported to an ultimate destination in a country which is member state of the European Community or a French overseas collectivity and is mentioned in part 2 of annex IIb of the EC COM Proposal 5011/09 (Argentina, Brazil, Iceland, South Africa, South Korea, Turkey). EC COM Proposal 5011/09, annex IIb, Part 3, 4(2).

Tools, dies, molds or fixtures, for "superplastic forming" or "diffusion bonding" titanium or aluminum or their alloys, specially designed for the manufacture of (see List of Items 1B003

Controlled).

$5000

Metal alloys, metal alloy powder and

1C002

alloyed materials, as follows (see List of

$3000; N/A for Nuclear

Items Controlled).

Nonproliferation (NP)

Magnetic metals, of all types and of whatever form, having any of the characteristics (see List of Items 1C003

Controlled).

$3000

Uranium titanium alloys or tungsten alloys with a "matrix" based on iron, nickel or copper, having all of the characteristics (see List of Items 1C004

Controlled).

$3000

"Superconductive" "composite" conductors in lengths exceeding 100 m or with a mass exceeding 100 g, as follows 1C005

(see List of Items Controlled).

$1500

Fluids and lubricating materials, as 1C006

follows (see List of Items Controlled).

$3000

Ceramic base materials, non-"composite" ceramic materials, ceramic-"matrix" "composite" materials and precursor

1C007

materials, as follows (see List of Items

$5000, except N/A for

Controlled).

MT and for 1C007.e

Non-fluorinated polymeric substances, as 1C008

follows (see List of Items Controlled).

$200

Unprocessed fluorinated compounds, as 1C009

follows (see List of Items Controlled).

$5000

"Fibrous or filamentary materials" which may be used in organic "matrix", metallic 1C010

"matrix" or carbon "matrix" "composite"

$1500, N/A for NP

structures or laminates, as follows (see List of Items Controlled).

Anti-friction bearings and bearing systems, as follows, (see List of Items 2A001

Controlled) and components therefor.

$3000, N/A for MT

"Numerically controlled" or manual machine tools, and specially designed components, controls and accessories therefor, specially designed for the shaving, finishing, grinding or honing of hardened (Rc = 40 or more) spur, helical and double-helical gears with a pitch diameter exceeding 1,250 mm and a face width of 15% of pitch diameter or larger finished to a quality of AGMA 14 or better 2B003

(equivalent to ISO 1328 class 3).

$5000

Equipment specially designed for the deposition, processing and in-process control of inorganic overlays, coatings and surface modifications, as follows, for non-electronic substrates, by processes shown in the Table and associated Notes following 2E003.f, and specially designed automated handling, positioning, manipulation and control components 2B005

therefor.

$1000

"Robots" having any of the following characteristics described in the List of

2B007

Items Controlled and specially designed

$5000, except

controllers and "end-effectors" therefor.

2B007.b and .c N/A for MT or NP. Yes for: $1500: 3A001.c;

3A001

Electronic components and specially

$3000: 3A001.b.1,

designed components therefor, as follows

b.2, b.3, b.9, .d, .e, .f,

(see List of Items Controlled).

and .g; $5000:

3A001.a (except a.1.a and a.5.a when controlled for MT), and .b.4 to b.7

3A002

General purpose electronic equipment

$3000: 3A002.a, .e, .f,

and accessories therefor, as follows (see

.g; $5000: 3A002.b to

List of Items Controlled).

Equipment for the manufacturing of semiconductor devices or materials, as follows (see List of Items Controlled) and specially designed components and 3B001

accessories therefor.

$500

Test equipment, specially designed for testing finished or unfinished semiconductor devices, as follows (see List of Items Controlled), and specially designed components and accessories 3B002

therefor.

$500

Hetero-epitaxial materials consisting of a "substrate" having stacked epitaxially grown multiple layers of any of the 3C001

following (see List of Items Controlled).

$3000

Resist materials as follows (see List of Items Controlled) and "substrates" coated 3C002

with the following resists.

$3000

Organo-inorganic compounds, as follows 3C003

(see List of Items Controlled).

$3000

Hydrides of phosphorus, arsenic or antimony, having a purity better than 99.999%, even diluted in inert gases or 3C004

hydrogen.

$3000

Silicon carbide (SiC), gallium nitride (GaN), aluminum nitride (AlN) or aluminum gallium nitride (AlGaN) "substrates", or ingots, boules, or other 3C005

preforms of those materials, having

$3000

resistivities greater than 10,000 ohm-cm at 20 C.

"Substrates" specified in 3C005 with at least one epitaxial layer of silicon carbide, gallium nitride, aluminum nitride or 3C006

aluminum gallium nitride.

$3000

Electronic computers and related

4A001

equipment, and "electronic assemblies"

$5000 for 4A001.a;

and specially designed components

N/A for MT and

therefor.

4A001.b

"Digital computers", "electronic assemblies", and related equipment

4A003

therefor, as follows, and specially

$5000; N/A for

designed components therefor.

4A003.b and .c.

Computers, as follows (see List of Items Controlled) and specially designed related equipment, "electronic assemblies" and 4A004

components therefor.

$5000 N/A for 5A001.a, b.5, .e; $5000 for

5A001

Telecommunications systems, equipment,

5A001b.1, b.2, b.3,

components and accessories, as follows

b.6, and .d $3000 for

(see List of Items Controlled).

5A001.c

Telecommunication test, inspection and production equipment, as follows (See 5B001

List of Items Controlled).

$5000 $1500, except N/A for 6A003.a.2 through

6A003

Cameras

a.6, b.1, b.3 and b.4

6A004

Optics.

$3000

"Lasers" (other than those described in

6A005

0B001.g.5 or .h.6), components and

N/A for NP items

optical equipment, as follows (see List of

$3000 for all other

Items Controlled).

items

$1500, N/A for 6A006.a.1; "Magnetometers" and subsysteem defined in A006.a.2 using optically pumped or

6A006

"Magnetometers", "magnetic

nuclear precession

gradiometers", "intrinsic magnetic

(proton/Overhauser)

gradiometers", underwater electric field

having a "noise level"

sensors, and "compensation systems",

(sensitivity) lower

and specially designed components

(better) than 2 pT rms

therefor, as follows (see List of Items

per square root Hz;

Controlled).

and 6A006.d.

Gravity meters (gravimeters) and gravity gradiometers, as follows (see List of 6A007

Items Controlled).

$3000; N/A for MT

Radar systems, equipment and assemblies having any of the following

6A008

characteristics (see List of Items

$5000; N/A for MT and

Controlled), and specially designed

for 6A008.j.1 and

components therefor.

6A008.l.3

Optical equipment, as follows (see List of 6B004

Items Controlled).

$5000

Equipment to produce, align and calibrate land-based gravity meters with a static 6B007

accuracy of better than 0.1 mgal.

$5000

Optical sensor materials, as follows (see 6C002

List of Items Controlled).

$3000

Synthetic crystalline "laser" host material in unfinished form, as follows (see List of 6C005

Items Controlled).

$1500

Water tunnels, having a background noise of less than 100 dB (reference 1 Ă&#x160;Pa, 1 Hz) in the frequency range from 0 to 500 Hz, designed for measuring acoustic fields 8B001

generated by a hydro-flow around

$3000

propulsion system models.

Marine gas turbine engines with an ISO standard continuous power rating of 24,245 kW or more and a specific fuel consumption not exceeding 0.219 kg/kWh in the power range from 35 to 100%, and specially designer assemblies and 9A002

components therefor.

$5000

Specially designed assemblies and components, incorporating any of the "technologies" controlled by 9E003.a, for gas turbine engine propulsion systems, as 9A003

follows (see List of Items Controlled).

$5000

Specially designed equipment, tooling and fixtures, as follows (see List of Items

9B001

Controlled), for manufacturing gas turbine

$5000, except N/A for

blades, vanes or tip shroud castings.

On-line (real time) control systems, instrumentation (including sensors) or automated data acquisition and processing equipment, specially designed for the "development" of gas turbine engines, assemblies or components

9B002

incorporating- "technologies" controlled

$3000, except N/A for

by 9E003.a.

Equipment specially designed for the "production" or test of gas turbine brush seals designed to operate at tip speeds exceeding 335 m/s, and temperatures in excess of 773 K (500Ă¸C), and specially

9B003

designed components or accessories

$5000, except N/A for

therefor.

Tools, dies or fixtures for the solid state joining of "superalloy", titanium or intermetallic airfoil-to-disk combinations

9B004

described in 9E003.a.3 or 9E003.a.6 for

$3000, except N/A for

gas turbines.

Acoustic vibration test equipement capable of producing sound pressure levels of 160 Db or more (referenced to 20 Pa) with a rated output of 4 kW or more at a test cell temperature exceeding 1,273 K (1,000øC), and specially 9B006

designed quartz heaters therefor.

$3000

Transducers specially designed for the direct measurement of the wall skin friction of the test flow with a stagnation 9B008

temperature exceeding 833 K (560øC).

$5000

Tooling specially designed for producing turbine engine powder metallurgy rotor components capable of operating at stress levels of 60% of ultimate tensie strength (UTS) or more and metal 9B009

temperatures of 873 K (600øC) or more.

$5000

The United States differentiates in maximum selling price of the commodities, which is not the case in EU COM Proposal 5011/09 (the value of the order is fixed at € 5000).

There is a slight difference in the way of defining the actual selling price of the commodities. The United States uses a definition that allows less interpretation. In the United States, “a net value is defined as the actual selling price of the commodities that are included in the same order and are controlled under the same entry on the Commerce Control List”81, less shipping charges, “or the current market price of the commodities to the same type of purchaser in the United States, whichever is the larger.”82 A single shipment is defined as “all commodities moving at the same time from one exporter to one consignee or intermediate consignee on the same exporting carrier even though these commodities will be forwarded to one or more ultimate consignees. 81 82

Export Administration Regulations, Part 740 - License Exceptions, § 740.3. Ibid.

Commodities being transported in this manner will be treated as a single shipment”83 (thus, orders may not be split to meet the applicable LVS dollar limits84) “even if the commodities represent more than one order or are in separate containers.”85 Thus, an LVS shipment may include more than one eligible order.

In EC COM Proposal 5011/09, a ‘low-value shipment’ “means items which are comprised in a single export order.”86 It does not include a provision explaining that an order can control commodities under more than one of the authorized list of items.

1.2. Similarities and differences in terms of geographical range

License Exception LVS is available for 17387 countries (annex 2).88 License Exception LVS is not available for 23 countries due to national security reasons89 and five countries that are classified as “terrorist supporting countries”90. There is an overlap in both lists: the export or reexport to North Korea is controlled for national security reasons and is listed as a “terrorist supporting country”. Cuba is listed as “terrorist supporting country” and is under unilateral embargo from the US.91 The export authorization in EC COM Proposal 5011/09 is only valid to six destinations: Argentina, Brazil, Iceland, South Africa, South Korea and Turkey.92 The United States authorizes License Exception LVS to those destinations.

1.3. Summary

Ibid. This is similar with the procedures in EC COM 5011/09, annex IIb, Part 3.(6). Export Administration Regulations, Part 740 - License Exceptions, § 740.3. EC COM Proposal 5011/09, annex IIb does not include a definition of ‘a single export order’, as included in Part 3.(5). 86 EC COM Proposal 5011/09, annex IIb, Part 3.(5). 87 There are destinations that are listed in the COM EU Proposal 5011/09 but not in the EAR License Exceptions list. Annex 1 provides an overview of those destinations. 88 Export Administration Regulations, Part 740 - License Exceptions, § 740.3. The countries are lised in Group B of Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Groups. 89 Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Groups, Group D:1: Albania, Armenia, Azerbaijan, Belarus, Burma, Cambodia, China, Georgia, Iraq, Kazachstan, North Korea, Kyrgyzstan, Laos, Libya, Macau, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam. 90 Ibid, Group E:1 includes: Cuba, Iran, North Korea, Sudan and Syria. 91 Ibid, Group E:2 includes: Cuba. 92 EC COM 5011/09, annex IIb, Part 2. 84 85

The United States differentiates in maximum selling price of the commodities, which is not the case in EU COM Proposal 5011/09. In the Proposal the value of the order is fixed at € 5000.

Both the Export Authorisation Regulations and EC COM Proposal 2011/09 defines the actual selling price of the commodities but on a different way. In the United States, the definition is much more elaborated, which leaves less interpretation for the exporter.

In the United States, the License Exception LVS is available for 173 countries. The export authorization in EC COM Proposal 5011/09 is valid to six destinations.

2. Computers 2.1. Similarities and differences in terms of products

The United States authorizes License Exception APP for computers, including electronic assemblies ans specially designed components (table 2) and technology and software. The EC COM Proposal 5011/09, annex IIe authorisation covers computers, including electronic assemblies and specially designed components (table 2). The United States’ EAR also specifies authorization procedures and restrictions for technology and software.

Table 2: authorization of computers and related equipment.

Export Administration Regulations, EU COM Proposal 5011/09,

Part 740.7, export94 of items,

export or reexport93 of

separately or as part of a system, of No License Exception authorization for

3A001.a.5

3A001.a.5 4A003.a. In general, in the United States

4A003.a., APP max 0,8 WT. Spare

no license is required for computers in

parts, exclusively specified in

4A003 with an Adjusted Peak Performance

4A003.a. (condition: APP max 0,8

(APP) not exceeding 0.75 Weighted

WT)

TeraFLOPS (WT). This is to all

93 Commodities can be reexported to an ultimate destination in a country that is a member state of the European Community and is mentioned in part 2 of annex IIb of the EC COM proposal 5011/09. EC COM Proposal 5011/09, annex IIe, Part 3, 2(2). 94 Computers and software eligible for License Exception APP may not be reexported or transferred (in country) without prior authorization from BIS, i.e., a license, a permissive reexport, another License Exception, or "No License Required". Export Administration Regulations, Part 740 - License Exceptions, § 740.7.(b).(3).

destinations, except to Cuba, Iran, North Korea, Sudan and Syria95 and except certain transfers to Iraq.96 4A003.b., APP max 0,8 WT. Spare

4A003.b.

parts, exclusively specified in 4A003.b. (condition: APP max 0,8

Note on Adjusted Peak Performance: see

WT)

above. 4A003.c. In general, in the United States no license is required for "electronic assemblies" described in 4A003.c that are

4A003.c., APP of the aggregation

not capable of exceeding an APP of 0.75

greater than 0,8 WT is not

WT in aggregation. This is to all

exceeded. Spare parts, exclusively

destinations, except to Cuba, Iran, North

specified in 4A003.c. (condition:

Korea, Sudan and Syria97 and except

APP max 0,8 WT)

certain transfers to Iraq.98 No License Exception authorization for

4A003.e

4A003.e. 4A003.g. Related equipment controlled under ECCN 4A003.g may not be exported or reexported under this License Exception when exported or reexported separately from eligible computers authorized under

4A003.g.

this License Exception.99

Contrary to EC COM Proposal 5011/09, the EAR’ authorization on License Exception APP does not formulate a maximum “Adjusted Peak performance” (APP peak).100 It, however, stipulates that “an exporter may not use this License Exception to export or reexport items that knowingly will be used to enhance the APP beyond the eligibility limit allowed to the exporters country of destination.”101

Group E of Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Export Administration Regulations, Part 774 - Part 774 - The Commerce Control List, Supplement Part 774, Category 4, header item 4A003, Note 1. 97 Group E of Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country 98 Export Administration Regulations, Part 774 - Part 774 - The Commerce Control List, Supplement Part 774, Category 4, header item 4A003, Note 1. 99 Export Administration Regulations, Part 740 - License Exceptions, § 740.7.(b).(1). 100 Except for deemed export of technology and software to foreign nations. 101 Export Administration Regulations, Part 740 - License Exceptions, § 740.7.(b).(4). 96

Groups. No. 1 to Groups. No. 1 to

2.2. Similarities and differences in terms of geographical range

License Exception APP is available for the export of all computers to 116 destinations. The authorization in EU COM Proposal 5011/09, annex IIe is valid in 89 destinations.102

EU COM Proposal 5011/09, annex IIe authorizes a Community General Export Authorization for the export of computers to 21 destinations, which would require a license in the United States due to national security or foreign policy reasons:

Countries that are listed in a United States’ group of destinations that are under control of license requirement for foreign policy (nuclear, chemical and biological and missle technology related) reasons: Bahrain, Egypt, India, Jordan, Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates .103

Countries that are listed in a United States’ group of destinations that are under control of license requirement for national security reasons: Moldova, Mongolia, Russia and Ukraine.104

Countries that are listed in a United States’ group of destinations that are under control of license requirement for foreign policy reasons (the specific foreign policy reasons towards these countries could not be identified by the author): Algeria, Andorra, Comores, Croatia, Djibouti, Morocco, Tunisia, Vanuatu.

The United States authorizes a License Exception APP for the export of computers to 47 destinations, which would require a license in the European Member States: Australia, Bangladesh, Burkina Faso, Burundi, Central African Republic, Chad, Colombia, Cote d'Ivoire, Democratic Republic Congo, East Timor, Eritrea, Ethiopia, Guinea, Haiti, Indonesia, Jamaica, Japan, Kenya, Kiribati, Liberia, Marshall Islands, Micronesia, Mozambique, Nauru, Nepal, New Zealand, Nigeria, Norway, Palau, Paraguay, Rwanda, St. Lucia, Sierra Leone, Somalia, Sri Lanka, Switzerland, Taiwan, Tanzania, Thailand, Tonga, Tuvalu, Uganda, Vatican City, Venezuela, Western Sahara, Zambia, Zimbabwe.

2.3. Summary

The United States authorizes License Exception APP for computers, including electronic assemblies ans specially designed components and technology and software. The EC 102

See footnote 84. Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Groups, Group D:2, D:3 and D:4. 104 Ibid, Group D:1. 103

COM Proposal 5011/09, annex IIe authorisation covers computers, including electronic assemblies ans specially designed components. The United States’ EAR also specifies authorization procedures and restrictions for technology and software. The EAR’ list is comparable to the one in EC COM Proposal 5011/09 but differences are recorded. The United States does not allow the export of 3A001.a.5 and 4A003.e under its License Exception APP. And related equipment controlled under item 4A003.g may not be exported or reexported under this License Exception when exported or reexported separately from eligible computers authorized under this License Exception. Contrary to EC COM Proposal 5011/09, the EAR’ authorization on License Exception APP does not formulate a maximum “Adjusted Peak performance” (APP peak). It stipulates that “an exporter may not use this License Exception to export or reexport items that knowingly will be used to enhance the APP beyond the eligibility limit allowed to the exporters country of destination.”105

The License Exception APP is available for the export of all computers to 116 destinations. The authorization in EU COM Proposal 5011/09, annex IIe is only valid in 89 destinations. EU COM Proposal 5011/09, annex IIe authorizes a Community General Export Authorization for the export of computers to 21 destinations, which would require a license in the United States due to national security or foreign policy reasons.

3. Temporary imports, exports, and reexports (TMP) 3.1. Similarities and differences in terms of products

The Community General Export Authorization (CGEA) in EC COM Proposal 5011/09, annex IId allows the temporary export of dual-use items for exhibition or fair. The proposal lists more than 100 excluded items106. Under the EAR’ License Exception TMP, the export or reexport is allowed for all commodities and software in the Commerce Control List, except for encrypted items controlled under ECCN 5E002.107

Under License Exception TMP, “the export or reexport of commodities and software is allowed for exhibition or demonstration provided that the exporter maintains ownership of the commodities and software while they are abroad and provided that the exporter, 105

Export Administration Regulations, Part 740 - License Exceptions, § 740.7.(b).(4). The items that are excluded are to the CGEA: all items in categories D and E; all items specified in Annex IV to Regulation 1334/2000; and a list of 27 items (1A002a, 1B001, 1C002.b.4, 1C010, 1C012.a, 1C227, 1C228, 1C229, 1C230, 1C231, 1C236, 1C237, 1C240, 1C350, 1C450, 0C001, 0C002, 0D001, 0E001, 1A102, 1C351, 1C352, 1C353, 1C354, 7E104, 9A009.a and 9A117). 107 Export Administration Regulations, Part 740 - License Exceptions, § 740.9.(a). and § 740.9.(a).3.(ii).(B). 106

an employee of the exporter, or the exporter's designated sales representative retains "effective control"108 over the commodities and software while they are abroad.”109 The commodities and software “may not be used for their intended purpose while abroad, except to the minimum extent required for effective demonstration.”110 A CGEA in EC COM 5011/09, annex IId is not subject to similar restrictions and conditions.

The commodities and software “may not be exhibited or demonstrated at any one site more than 120 days after installation and debugging, unless authorized by BIS.”111 An authorization under EC COM Proposal 5011/09, Annex IId is allowed for no longer than three months.112 However, “before or after an exhibition or demonstration, pending movement to another site, return to the United States or the foreign reexporter, or BIS approval for other disposition, the commodities and software may be placed in a bonded warehouse or a storage facility provided that the exporter retains effective control over their disposition.”113 The export documentation for this type of transaction “must show the exporter as ultimate consignee, in care of the person who will have control over the commodities and software abroad.”114

EAR’ License Exception TMP lists various additional restrictions. No item may be exported or reexported if115:

an order to acquire the item has been received before shipment;

the exporter has prior knowledge that the item will stay abroad beyond the terms of this License Exception; or

the item is for lease or rental abroad.

108 Effective control means that the exporter maintains effective control over an item when it either retain physical possession of the item, or secure the item in such an environment as a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility. Export Administration Regulations, Part 772 – Definitions of Terms, § 772.1. 109 Export Administration Regulations, Part 740 - License Exceptions, § 740.9.(a).2.(iii). Footnode added in quote. 110 Ibid, § 740.9.(a).2.(iii). 111 Ibid, § 740.9.(a).2.(iii). All items exported or reexported under these provisions must, if not consumed or destroyed in the normal course of authorized temporary use abroad, be returned as soon as practicable but no later than one year after the date of export or reexport, to the United States or other country from which the items were so exported or reexported, or shall be disposed of or retained in one of the following ways: (1) the exporter or reexporter must request authorization by submitting a license application to BIS, who will advise the exporter of its decision. (2) the use of an outstanding license provided that the outstanding license authorizes direct shipment of the same items to the same new ultimate consignee in the new country of destination. (3) Authorization to retain item abroad beyond one year. Export Administration Regulations, Part 740 - License Exceptions, § 740.9.(a).4.(i), (ii), (iii). 112 EC COM Proposal 5011/09, Annex IId, Part 1.(2). 113 Export Administration Regulations, Part 740 - License Exceptions, § 740.9.(a).2.(iii). 114 Ibid, § 740.9.(a).2.(iii). 115 Ibid, § 740.9.(a).3.(iii)(A)-(C).

A CGEA in EC COM 5011/09, annex IId is not subject to similar restrictions.

3.2. Similarities and differences in terms of geographical range

Under this provision, the export or reexport of commodities and software is allowed for exhibition or demonstration in all countries, except Cuba, Iran, North Korea, Sudan and Syria.116 The authorization in EC COM Proposal 5011/09 is only allowed for temporary export for exhibitions and fair in 28117 destinations.

Commodities and software lawfully exported from the United States may be reexported to a new country or countries of destination other than Sudan or Cuba provided its terms and conditions are met and the commodities and software are returned to the country from which the reexport occurred.118 EC COM Proposal 5011/09 has no specific condition or restriction on reexport. Items that will be used either directly or indirectly in any sensitive nuclear activity119 may not be exported or reexported to any destination under this License Exception.120 This provision does not apply for Australia, Belgium, Canada, Denmark, France, Germany, Greece, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Spain, Turkey, United Kingdom, United States, Iceland, or New Zealand.121

3.3. Summary

The CGEA in EC COM Proposal 5011/09, IId allows the temporary export of dual-use items for exhibition or fair. The proposal lists more than 100 excluded items. Under the

116

The five countries are classified as “Terrorist Supporting Countries”. Part 740Spir - Supplement No. 1 to Part 740, Country Groups, Group E:1. See footnote 84. 118 Export Administration Regulations, Part 740 - License Exceptions, § 740.9.(a).5.(i). 119 This relates to: (1) Nuclear explosive activities, including research on or development, design, manufacture, construction, testing or maintenance of any nuclear explosive device, or components or subsystems of such a device. (2) Activities including research on, or development, design, manufacture, construction, operation, or maintenance of any nuclear reactor, critical facility, facility for the fabrication of nuclear fuel, facility for the conversion of nuclear material from one chemical form to another, or separate storage installation, where there is no obligation to accept International Atomic Energy Agency (IAEA) safeguards at the relevant facility or installation when it contains any source or special fissionable material (regardless of whether or not it contains such material at the time of export), or where any such obligation is not met. (3 Safeguarded and unsafeguarded nuclear fuel cycle activities, including research on or development, design, manufacture, construction, operation or maintenance of any of the following facilities, or components for such facilities: (i) Facilities for the chemical processing of irradiated special nuclear or source material; (ii) Facilities for the production of heavy water; (iii) Facilities for the separation of isotopes of source and special nuclear material; or (iv) Facilities for the fabrication of nuclear reactor fuel containing plutonium. Export Administration Regulations, Part 744 – Control Policy: end-user and end-use based, § 744.2. 120 Export Administration Regulations, Part 740 - License Exceptions, § 740.9.(a).(3).(ii).(A). 121 Ibid. 117

EAR’ License Exception TMP, the export or reexport is allowed for all commodities and software in the Commerce Control List, except for encrypted items controlled under ECCN 5E002.

In the United States, the export or reexport of commodities and software is allowed for exhibition or demonstration in all countries, except Cuba, Iran, North Korea, Sudan and Syria. The authorization in EC COM Proposal 5011/09 is only allowed for temporary export for exhibitions and fair in 28 destinations.

4. Servicing and replacement of parts and equipment (RPL)

4.1. Similarities and differences in terms of products

The CGEA in EC COM Proposal 5011/09, anndx IIc allows the export of dual-use items for export after repair or replacement:

where the items “were imported into the European Community territory for the purpose of maintenance or repair, and are exported to the country of consignment without any changes to their original characteristics”122;

where the items “are exported to the country of consignment in exchange for items of the same quality and number which were re-imported into the European Community territory for repair or replacement under warranty. “123

The proposal lists more than 100 items that are excluded.124

Under EAR’ License Exception RPL, the export or reexport is associated with: 1. one-for-one replacement parts for previously exported equipment125. The term replacement parts “means parts needed for the immediate repair of equipment, including replacement of defective or worn parts.”126 Parts “may be exported only to replace, on a one-for-one basis, parts contained in commodities that were: 122

EC COM Proposal 5011/09, Annex IIc, Part 1, 1-1.(a). Ibid, Part 1, 1-1.(b). 124 The items that are excluded are to the CGEA: all items in categories D and E; all items specified in Annex IV to Regulation 1334/2000; and a list of 33 items (1A002a, 1C012.a, 1C227, 1C228, 1C229, 1C230, 1C231, 1C236, 1C237, 1C240, 1C350, 1C450, 5A001b5, 5B002, 6A001a2a1, 6A001a2a5, 6A002a1c, 6A00813, 8A001b, 8A001d, 9A011, 0C001, 0C002, 0D001, 0E001, 1A102, 1C351, 1C352, 1C353, 1C354, 7E104, 9A009.a and 9A117). 125 Export Administration Regulations, Part 740 - License Exceptions, § 740.10.(a). 126 Ibid, § 740.10.(a).(2).(i). It includes subassemblies but does not include test instruments or operating supplies. The term "subassembly" means a number of components assembled to perform a specific function or functions within a commodity. This definition does not include major subsystems such as those composed of a number of subassemblies. 123

legally exported from the United States; legally reexported; or made in a foreign country incorporating authorized U.S.- origin parts.”127 Accordingly, the export of replacement parts “may be done only by the party who originally exported or reexported the commodity to be repaired, or by a party that has confirmed the appropriate authority for the original transaction.”128 2. servicing129. EAR’ License Exception RPL authorizes the export and reexport of items that were returned to the United States for servicing and for the replacement of defective or unacceptable U.S.-origin commodities and software. Servicing means “inspection, testing, calibration or repair, including overhaul and reconditioning.”130 When “the serviced commodity or software is returned, it may include any replacement or rebuilt parts necessary to its repair and may be accompanied by any spare part, tool, accessory, or other item that was sent with it for servicing. “131 3. replacement132. Subject to the conditions, “commodities or software may be exported or reexported to replace defective or otherwise unusable (e.g., erroneously supplied) items when they have been previously exported or reexported in its present form under a license or authorization granted by BIS and the commodity or software is not worn out from normal use, nor is to be exported to be held in stock abroad as spare equipment for future use.”133

The export activities may not improve or change the basic design characteristics, e.g., as to accuracy, capability, performance or productivity, of the equipment.134

Contrary to EC COM Proposal 5011/09, the EAR’ License Exceptions does not include a list of allowed or excluded products. It provides a set of conditions and restrictions. Additionally, License Exception RPL’ eligibility is limited by country.

127

Ibid, § 740.10.(a).(2).(ii). In accordance with § 740.10.(a).(3).(i)., no replacement parts may be exported to repair a commodity exported under a license if that license included a condition that any subsequent replacement parts must be exported only under a license. And in accordance with § 740.10.(a).(3).(ii)., no parts may be exported to be held abroad as spare parts or equipment for future use. Replacement parts may be exported to replace spare parts that were authorized to accompany the export of equipment, as those spare parts are utilized in the repair of the equipment. This will allow maintenance of the stock of spares at a consistent level as parts are used. 128 Ibid, § 740.10.(a).(2).(ii). 129 Ibid, § 740.10.(b).(2). 130 Ibid, § 740.10.(b).(2).(i). 131 Ibid, § 740.10.(b).(2).(ii). 132 Ibid, § 740.10.(b).(3). 133 Ibid, § 740.10.(b).(3).(i).(A)-(B). 134 Ibid, § 740.10.(a).(2).(i).; § 740.10.(b).(2).(i).; § 740.10.(b).(3).(i).(C).

4.2. Similarities and differences in terms of geographical range

The authorization in EC COM Proposal 5011/09 is limited to the export to 93 destinations135.

In the United States, the export or reexport associated with one-for-one replacement parts for previously exported equipment is allowed to all countries. This provision does not apply for exports to Cuba, Iran, North Korea, Sudan and Syria136 if the commodity to be repaired is:

an aircraft or a national security controlled commodity137,

explosives detection equipment controlled under ECCN 2A983 or related software controlled under ECCN 2D983. These two items are controlled for unilateral reasons.

Under EAR’s License Exception RPL, no parts may be exported to any destination, if the item is to be incorporated into or used in nuclear weapons, nuclear explosive devices, nuclear testing related to activities, the chemical processing of irradiated special nuclear or source material, the production of heavy water, the separation of isotopes of source and special nuclear materials, or the fabrication of nuclear reactor fuel containing plutonium.138 This restriction does not apply for exports to Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy (includes San Marino and Holy See), Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Turkey or United Kingdom.139 EC COM Proposal 5011/09, annex IIc does not allow a CGEA for nuclear end-use to any country.140

Parts exported from the United States may be reexported to a new country of destination, provided that the various restrictions are met.141

135

See footnote 84. The five countries are classified as “Terrorist Supporting Countries”. Part 740Spir - Supplement No. 1 to Part 740, Country Groups, Group E:1. 137 Export Administration Regulations, Part 740 - License Exceptions, § 740.10.(a).(3).(iv). 138 Ibid, § 740.10.(a).(3).(iii). 139 These destinations are included in Export Administration Regulations, Supplement No. 3 to part 744 (Countries Not Subject to Certain Nuclear End- Use Restrictions in §744.2(a)). 140 EC COM Proposal 5011/09, annx IIc, Part 3. No (1).(1).(a)., Part 3 No. 1.(2). 141 Export Administration Regulations, Part 740 - License Exceptions, § 740.10.(a).(4). 136

Repaired commodity and software (items that were returned to the United States for servicing and the replacement of defective or unacceptable U.S.-origin commodities and software) is allowed to all countries, except:

No repaired commodity or software may be exported or reexported to Cuba, Iran, North Korea, Sudan or Syria142.143

Commodities and software legally exported or reexported to a consignee in Albania,

Armenia,

Azerbaijan,

Belarus,

Burma,

Cambodia,

Georgia,

Iraq,

Kazachstan, North Korea, Kyrgyzstan, Laos, Libya, Macau, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam144 that are sent to the United States or a foreign party for servicing may be returned to the country from which it was sent, provided that both of the following conditions are met:

The exporter “making the shipment is the same person or firm to whom the original license was issued” 145; and

The “end-use and the end-user of the serviced commodities or software and other particulars of the transaction, as set forth in the application and supporting documentation that formed the basis for issuance of the license have not changed.”146

The export or reexport of commodities or software for the replacement of defective or otherwise unusable (e.g., erroneously supplied) items is allowed to all countries, except to Cuba, Iran, North Korea, Sudan or Syria147 or to any other destination in order to replace defective or otherwise unusable equipment owned or controlled by, or leased or chartered to, a national of any of those countries. 148

4.3. Summary

The CGEA in EC COM Proposal 5011/09, IIc allows the export of dual-use items for export after repair or replacement: 142

The five countries are classified as “Terrorist Supporting Countries”. Part 740Spir - Supplement No. 1 to Part 740, Country Groups, Group E:1. 143 Export Administration Regulations, Part 740 - License Exceptions, § 740.10.(b).(2).(iv). 144 All the destinations are listed in Export Administration Regulations, Part 740Spir - Supplement No. 1 to Part 740, Country Groups, Group D:1. 145 Export Administration Regulations, Part 740 - License Exceptions, § 740.10.(b).(2).(iii).(A). 146 Ibid, § 740.10.(b).(2).(iii).(B). 147 The five countries are classified as “Terrorist Supporting Countries”. Part 740Spir - Supplement No. 1 to Part 740, Country Groups, Group E:1. 148 Export Administration Regulations, Part 740 - License Exceptions, § 740.10.(b).(3).(i).(D).

where the items were imported into the European Community territory for the purpose of maintenance or repair, and are exported to the country of consignment without any changes to their original characteristics;

where the items are exported to the country of consignment in exchange for items of the same quality and number which were re-imported into the European Community territory for repair or replacement under warranty.

The proposal lists more than 100 items that are excluded.

Under EAR’ License Exception RPL, the export or reexport is associated with one-for-one replacement parts for previously exported equipment, for servicing and for replacement. The EAR’ License Exception does not include a list of allowed or excluded products. It, however, stipulates conditions and restrictions. Additionally, License Exception RPL’ eligibility is limited by country.

The authorization in EC COM Proposal 5011/09 is limited to the export of certain items to 93 destinations. In the United States, the export or reexport towards individual countries vary depending on type of export.

In general terms, the export is allowed to all

countries, except to Cuba, Iran, North Korea, Sudan and Syria.. The export to those countries depends on its reason of export.

5. Encryption commodities, software and technology (ENC) 5.1. Similarities and differences in terms of products

The following table lists the items that are valid under EC COM Proposal 5011/09 and United States’ EAR, Part License Exception ENC.

EU COM Proposal 5011/09, export or reexport

149

Export Administration Regulations, Part 740.17, export or reexport150 of

Items of Category 5 Part l: (a) Items, including specially designed or developed

No items of Category 5, Part I

149

Commodities can be reexported to an ultimate destination in a country which is member state of the European Community and is mentioned in part 2, annex IIf of the EC COM proposal 5011/09. EC COM Proposal 5011/09, annex IIf, Part 3, 3.(2). 150 Export Administration Regulations, Part 740 - License Exceptions, § 740.17.(c).

components and accessories therefor specified in 5A001b No 2 and 5A001c and d. (b) Items specified in 5B001 and 5D001, where test, inspection and production equipment is concerned and software for items mentioned under a). Technology controlled by 5E001a, where required for the installation, operation, maintenance or repair of items specified under 1 and intended for the same final consignee.

No such items

Items, including specially designed or developed components and accessories therefor specified in Category 5 Part 2 A to D (Information Security), as follows: (a) items specified in the following entries unless their cryptographic functions have been designed or modified for government endusers within the European Community: 5A002a1; software in entry 5D002c1 having the characteristics, or performing or simulating the functions, of equipment in entry 5A002a1; (b) equipment specified in 5B002 for items referred to

Items that are classified under 5A002.a.1,

under a); (c) software as part of

a.2, a.5, a.6 or a.9, 5B002, 5D002, and

equipment whose features or

technology that is classified under ECCN

functions are specified under b).

5E002.

Technology for the use of goods specified in the items as explained above.

The United States makes in its License Exception ENC authorization a distinction between prior and no-prior review post reporting requirement procedures (see above), wich is based on the product and the end-user. This is not the case in EC COM Proposal 5011/09.

5.2. Similarities and differences in terms of geographical range

The export authorization in EC COM Proposal 5011/09 is valid for seven countries: Argentina, Croatia, Russia, South Africa, South Korea, Turkey and Ukraine. The export or reexport in United States’ License Exception ENC is valid to all destinations, except to Cuba, Iran, North Korea, Sudan or Syria151. Release of source code or technology is valid to any national in Cuba, Iran, North Korea, Sudan or Syria.152

5.3. Summary

The items that are valid under EC COM Proposal 5011/09 and United States’ EAR, Part License Exception ENC vary. EC COM Proposal 5011/09 allows the export of items which is not included under EAR’ License Exception ENC.

The export authorization in EC COM Proposal 5011/09 is valid for seven countries. The export or reexport in United States’ License Exception ENC is valid to all destinations, except to Cuba, Iran, North Korea, Sudan or Syria. Release of source code or technology is valid to any national in Cuba, Iran, North Korea, Sudan or Syria.

151 The five countries are classified as “Terrorist Supporting Countries”. Part 740Spir - Supplement No. 1 to Part 740, Country Groups, Group E:1. 152 Export Administration Regulations, Part 740 - License Exceptions, § 740.17.

GENERAL CONCLUSIONS In the United States, a License Exception is an authorization that allows an exporter to export or reexport, under stated conditions, items subject to the Export Administration Regulations that would otherwise require a license.

EAR’ License Exceptions differs from EC COM Proposal 5011/09 in terms of products. Those can be divided in two groups:

Contrary to the CGEAs in EC Proposal 5011/09, only some EAR’ License Exceptions list items and commodities (LVS, APP and ENC). Both lists include similar items but differences are noticed.

Not all EAR’ License Exceptions lists specific products (TMP and RPL). Instead, the EAR’ License Exceptions list a set of conditions and restrictions.

EAR’ License Exceptions differs from EC COM Proposal 5011/09 in terms of geographical range. On first sight, a License Exception is usable to more countries.

This does not

mean that the United States’s procedures are more flexible. The United States has its policy towards indivivual countries motivated and regulated by law. It is divided into three main categories: for national security reasons, for foreign policy reasons and for countries under (multilaterally or unilaterally defined) embargo.

Restrictions and conditions and included in the United States’ regulations as well as in the European Commission’s proposal in order to control the export of dual-use items for reasons of end-use and end-users. United States’ EAR’ policies are much more elaborated than those in EC COM 5011/09. Each of CGEAs in EC COM Proposal 5011/09 includes an information duty for the exporter. This is also the case in the United States but the requirements are less specific. In the United States, the conditions and restrictions are divided in two categories: one list of general restrictions and conditions and one set of particular conditions and restrictions per License Exception. The restrictions depend strongly on the end-use of the items and commodities, the end-users and the activities.

EAR’ License Exceptions differs from EC COM Proposal 5011/09 in terms of destinations. The United States allows the export to substantial more countries but this does not imply that the dual-use control procedures in the United States are less stringent. The United

States has various procedures in place in order to limit the export of dual-use items and commodities. As explained earlier, the United States motivates its policy towards indivivual countries in general terms: for national security reasons, for foreign policy reasons and for countries under (multilaterally or unilaterally defined) embargo. The reasons behind its motivation towards each of the individual countries are, however, not transparent. For instance, EU COM Proposal 5011/09, annex IIe authorizes a Community General Export Authorization for the export of computers to 21 destinations, which would require a license in the United States due to national security or foreign policy reasons. The United States does not motivate its reasons on an individual (country) basis.

ANNEX 1 â&#x20AC;&#x201C; Comment on footnotes 84, 99, 113 and 129. The following destinations are listed in the COM EU Proposal 5011/09 but not in EARâ&#x20AC;&#x2122;s Country Chart: British Virgin Islands, Falkland Islands, Faroe Islands, French Guaya, French OT, Gilbraltar, Greenland, Guadeloupe, Guam, Martinique, Monserrat, New Caledonia, Northern Ireland, Puerto Rico, Scotland, St. Helena, Turks and Caicos Islands and US Virgin Islands. The EAR accords each of these destinations the same licensing treatment as the country of which it is a territory, possession, or department. Consequently, the calculations in this report do not include the 18 destinations as a separate destination.

ANNEX 2 Afghanistan Algeria Andorra Angola Antigua and Barbuda Argentina Aruba Australia Austria The Bahamas Bahrain Bangladesh Barbados Belgium Belize Benin Bhutan Bolivia Bosnia & Herzegovina Botswana Brazil Brunei Bulgaria Burkina Faso Burundi Cameroon Canada Cape Verde Central African Republic Chad Chile Colombia Comoros Congo (Democratic Republic of the)

Congo (Republic of the) Costa Rica Cote d'Ivoire Croatia Cyprus Czech Republic Denmark Djibouti Dominica Dominican Republic East Timor Ecuador Egypt El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Fiji Finland France Gabon Gambia, The Germany Ghana Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Honduras Hong Kong Hungary Iceland India

Indonesia Ireland Israel Italy Jamaica Japan Jordan Kenya Kiribati Korea, South Kosovo Kuwait Latvia Lebanon Lesotho Liberia Liechtenstein Lithuania Luxembourg Macedonia, The Former Yugoslav Republic of Madagascar Malawi Malaysia Maldives Mali Malta Marshall Islands Mauritania Mauritius Mexico Micronesia, Federated States of Monaco Montenegro Morocco Mozambique Namibia Nauru

Nepal Netherlands Netherlands Antilles New Zealand Nicaragua Niger Nigeria Norway Oman Pakistan Palau Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Qatar Romania Rwanda Saint Kitts & Nevis Saint Lucia Saint Vincent and the Grenadines Samoa San Marino Sao Tome & Principe Saudi Arabia Senegal Serbia Seychelles Sierra Leone Singapore Slovakia Slovenia Solomon Islands Somalia

South Africa Spain Sri Lanka Surinam Swaziland Sweden Switzerland Taiwan Tanzania Thailand Togo Tonga Trinidad & Tobago Tunisia Turkey Tuvalu Uganda United Arab Emirates United Kingdom United States Uruguay Vanuatu Vatican City Venezuela Western Sahara Yemen Zambia Zimbabwe

ANNEX 3 â&#x20AC;&#x201C; Similarities and differences in terms of geographical range. Table of comparison Type of License

CGEA

License Exception

Low Shipment

Argentina

Afghanistan

Value

Brazil

Algeria

Iceland

Andorra

South Africa

Angola

South Korea

Antigua and Barbuda

Turkey

Argentina

Exception

Aruba Australia Austria The Bahamas Bahrain Bangladesh Barbados Belgium Belize Benin Bhutan Bolivia Bosnia & Herzegovina Botswana Brazil Brunei Bulgaria Burkina Faso Burundi Cameroon Canada Cape Verde Central African Republic Chad Chile

Colombia Comoros Congo (Democratic Republic of the) Congo (Republic of the) Costa Rica Cote d'Ivoire Croatia Cyprus Czech Republic Denmark Djibouti Dominica Dominican Republic East Timor Ecuador Egypt El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Fiji Finland France Gabon Gambia, The Germany Ghana Greece Grenada Guatemala Guinea Guinea-Bissau Guyana Haiti Honduras

Hong Kong Hungary Iceland India Indonesia Ireland Israel Italy Jamaica Japan Jordan Kenya Kiribati Korea, South Kosovo Kuwait Latvia Lebanon Lesotho Liberia Liechtenstein Lithuania Luxembourg Macedonia, The Former Yugoslav Republic of Madagascar Malawi Malaysia Maldives Mali Malta Marshall Islands Mauritania Mauritius Mexico Micronesia, Federated States of

Monaco Montenegro Morocco Mozambique Namibia Nauru Nepal Netherlands Netherlands Antilles New Zealand Nicaragua Niger Nigeria Norway Oman Pakistan Palau Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Qatar Romania Rwanda Saint Kitts & Nevis Saint Lucia Saint Vincent and the Grenadines Samoa San Marino Sao Tome & Principe Saudi Arabia Senegal Serbia

Seychelles Sierra Leone Singapore Slovakia Slovenia Solomon Islands Somalia South Africa Spain Sri Lanka Surinam Swaziland Sweden Switzerland Taiwan Tanzania Thailand Togo Tonga Trinidad & Tobago Tunisia Turkey Tuvalu Uganda United Arab Emirates United Kingdom United States Uruguay Vanuatu Vatican City Venezuela Western Sahara Yemen Zambia Zimbabwe Computers

Algeria,

Antigua and Barbuda, Argentina,

Andorra,

Aruba, Australia, Austria, Bahamas

Antigua and

(The), Bangladesh, Barbados,

Barbuda,

Belgium, Belize, Benin, Bhutan,

Argentina,

Bolivia, Botswana, Brazil, Brunei,

Aruba,

Bulgaria, Burkina Faso, Burundi,

Bahamas,

Cameroon, Cape Verde, Central

Bahrain,

African Republic, Chad, Chile,

Barbados,

Colombia, Congo (Democratic Republic

Belize,

of the), Congo (Republic of the), Costa

Benin,

Rica, Cote d'Ivoire, Cyprus, Czech

Bhutan,

Republic, Denmark, Dominica,

Bolivia,

Dominican Republic, East Timor,

Botswana,

Ecuador, El Salvador, Equatorial

Brazil,

Guinea, Eritrea, Estonia, Ethiopia, Fiji,

British Virgin

Finland, France, Gabon, Gambia (The),

Islands,

Germany, Ghana, Greece, Grenada,

Brunei,

Guatemala, Guinea, Guinea-Bissau,

Cameroon,

Guyana, Haiti, Honduras, Hong Kong,

Cape Verde,

Hungary, Iceland, Indonesia, Ireland,

Chile,

Italy, Jamaica, Japan, Kenya, Kiribati,

Comoros Islands,

Korea (Republic of), Latvia, Lesotho,

Costa Rica,

Liberia, Liechtenstein, Lithuania,

Croatia,

Luxembourg, Madagascar, Malawi,

Djibouti,

Malaysia, Maldives, Mali, Malta,

Dominica,

Marshall Islands, Mauritius, Mexico,

Dominican

Micronesia (Federated States of),

Republic,

Monaco, Mozambique, Namibia,

Ecuador,

Nauru, Nepal, Netherlands,

Egypt,

Netherlands Antilles, New Zealand,

El Salvador,

Nicaragua, Niger, Nigeria, Norway,

Equatorial

Palau, Panama, Papua New Guinea,

Guinea,

Paraguay, Peru, Philippines, Poland,

Falkland Islands,

Portugal, Romania, Rwanda, St. Kitts

Faroe islands,

& Nevis, St. Lucia, St. Vincent and the

Fiji,

Grenadines, Sao Tome & Principe,

French Guyana,

Samoa, San Marino, Senegal,

French OT,

Seychelles, Sierra Leone, Singapore,

Gabon,

Slovakia, Slovenia, Solomon Islands,

Gambia,

Somalia, South Africa, Spain, Sri

Gibraltar,

Lanka, Surinam, Swaziland, Sweden,

Greenland,

Switzerland, Taiwan, Tanzania, Togo,

Grenada,

Tonga, Thailand, Trinidad and Tobago,

Guadeloupe,

Turkey, Tuvalu, Uganda, United

Guam,

Kingdom, Uruguay, Vatican City,

Guatemala,

Venezuela, Western Sahara, Zambia,

Ghana,

and Zimbabwe.

Guinea Bissau, Guyana, Honduras, Hong Kong SAR, Iceland, India, Jordan, Kuwait, Lesotho, Liechtenstein, Madagascar, Malawi, Malaysia, Maldives, Mali, Martinique, Mauritius, Mexico, Moldova, Monaco, Mongolia, Montserrat, Morocco, Namibia, Netherlands Antilles,

New Caledonia, Nicaragua, Niger, Oman, Panama, Papua New Guinea, Peru, Philippines, Puerto Rico, Qatar, Russia, Samoa, San Marino, Sao Tome e Principe, Saudi Arabia, Senegal, Seychelles, Singapore, Solomon Islands, South Africa, South Korea, St. Helena, St. Kitts and Nevis, St. Vincent, Surinam, Swaziland, Togo, Trinidad and Tobago, Tunisia, Turkey, Turks and Caicos Islands,

UAE, Ukraine, Uruguay, US Virgin Islands, Vanuatu. Temporary

Argentina

All countries, except Cuba, Iran, North

imports, exports,

Bahrain

Korea, Sudan and Syria

and reexports/

Bolivia

Temporary Export

Brazil

for Exhibition or

Brunei

Fair

Chile China Ecuador Egypt Hong Kong Special Administrative Region Iceland Jordan Kuwait Malaysia Mauritius Mexico Morocco Oman Philippines Qatar Russia Saudi Arabia Singapore South Africa South Korea Tunisia Turkey

Ukraine Servicing and

Algeria,

One-for-one replacement parts for

replacement of

Andorra,

previously exported equipment is

parts and

Antigua and

allowed to all countries, except to

equipment

Barbuda,

Cuba, Iran, North Korea, Sudan and

Argentina,

Syria. However, no parts may be

Aruba,

exported to any destination, except to

Bahamas,

Australia, Austria, Belgium, Canada,

Bahrain,

Denmark, Finland, France, Germany,

Bangladesh,

Greece, Iceland, Ireland, Italy

Barbados,

(includes San Marino and Holy See),

Belize,

Japan, Luxembourg, Netherlands, New

Benin,

Zealand, Norway, Portugal, Spain,

Bhutan,

Sweden, Turkey or United Kingdom if

Bolivia,

the item is to be incorporated into or

Botswana,

used in nuclear weapons, nuclear

Brazil,

explosive devices, nuclear testing

British Virgin

related to activities, the chemical

Islands,

processing of irradiated special nuclear

Brunei,

or source material, the production of

Cameroon,

heavy water, the separation of

Cape Verde,

isotopes of source and special nuclear

Chile,

materials, or the fabrication of nuclear

China,

reactor fuel containing plutonium.

Comoros Islands, Costa Rica,

Repaired commodity and software

Djibouti,

(items that were returned to the

Dominica,

United States for servicing and the

Dominican

replacement of defective or

Republic,

unacceptable U.S.-origin commodities

Ecuador,

and software) is allowed to all

Egypt,

countries, except that no repaired

El Salvador,

commodity or software may be

Equatorial

exported or reexported to Cuba, Iran,

Guinea,

North Korea, Sudan or Syria.

Falkland Islands,

Faroe islands,

Commodities or software may be

Fiji,

exported or reexported to replace

French Guyana,

defective or otherwise unusable (e.g.,

French OT,

erroneously supplied) items to all

Gabon,

countries, except to Cuba, Iran, North

Gambia,

Korea, Sudan or Syria or to any other

Gibraltar,

destination to replace defective or

Greenland,

otherwise unusable equipment owned

Grenada,

or controlled by, or leased or

Guadeloupe,

chartered to, a national of any of

Guam,

those countries.

Guatemala, Ghana, Guinea Bissau, Guyana, Honduras, Hong Kong Special Administrative Region, Iceland, India, Indonesia, Israel, Jordan, Kuwait, Lesotho, Liechtenstein, Macau, Madagascar, Malawi, Malaysia, Maldives, Mali, Martinique, Mauritius,

Mexico, Monaco, Montserrat, Morocco, Namibia, Netherlands Antilles, New Caledonia, Nicaragua, Niger, Nigeria, Oman, Panama, Papua New Guinea, Peru, Philippines, Puerto Rico, Qatar, Russia, Samoa, San Marino, Sao Tome e Principe, Saudi Arabia, Senegal, Seychelles, Singapore, Solomon Islands, South Africa, South Korea, Sri Lanka, St. Helena, St. Kitts and Nevis, St. Vincent,

Surinam, Swaziland, Taiwan, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Turks and Caicos Islands, United Arab Emirates, Uruguay, US Virgin Islands, Vanuatu, Venezuela Encryption

Argentina,

All destinations, except to Cuba, Iran,

commodities,

Croatia,

Noth Korea, Sudan or Syria.

software and

Russia,

technology

South Africa,

Release of source code or technology

South Korea,

is valid to any national in Cuba, Iran,

Turkey,

Noth Korea, Sudan or Syria.

Ukraine