Rule2021-26633
Revision of Controls for Cambodia Under the Export Administration Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 9, 2021
Effective
December 9, 2021
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Abstract
In response to deepening Chinese military influence in Cambodia, which undermines and threatens regional security, as well as growing corruption and human rights abuses by the Government of Cambodia, in this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to apply more restrictive treatment to exports and reexports to, and transfers within, Cambodia of items subject to the EAR. BIS is taking this action to address recent actions by the Government of Cambodia that are contrary to the national security and foreign policy interests of the United States. Further, BIS updates a Country Group designation for Cambodia under the EAR to reflect the country's identification by the State Department as subject to a United States arms embargo.
Full Text
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<title>Federal Register, Volume 86 Issue 234 (Thursday, December 9, 2021)</title>
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[Federal Register Volume 86, Number 234 (Thursday, December 9, 2021)]
[Rules and Regulations]
[Pages 70015-70020]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26633]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 740, 742, and 744
[Docket No. 211201-0249]
RIN 0694-AI65
Revision of Controls for Cambodia Under the Export Administration
Regulations
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: In response to deepening Chinese military influence in
Cambodia, which undermines and threatens regional security, as well as
growing corruption and human rights abuses by the Government of
Cambodia, in this final rule, the Bureau of Industry and Security (BIS)
amends the Export Administration Regulations (EAR) to apply more
restrictive treatment to exports and reexports to, and transfers
within, Cambodia of items subject to the EAR. BIS is taking this action
to address recent actions by the Government of Cambodia that are
contrary to the national security and foreign policy interests of the
United States. Further, BIS updates a Country Group designation for
Cambodia under the EAR to reflect the country's identification by the
State Department as subject to a United States arms embargo.
DATES: This rule is effective December 9, 2021.
FOR FURTHER INFORMATION CONTACT: Tracy Patts, Foreign Policy Division,
Office of Nonproliferation and Treaty Compliance, Bureau of Industry
and Security, U.S. Department of Commerce, by email at
<a href="/cdn-cgi/l/email-protection#aceac3dec9c5cbc282fcc3c0c5cfd5eccec5df82c8c3cf82cbc3da"><span class="__cf_email__" data-cfemail="c187aeb3a4a8a6afef91aeada8a2b881a3a8b2efa5aea2efa6aeb7">[email protected]</span></a>, or by phone at 202-482-4252.
SUPPLEMENTARY INFORMATION:
Background
Cambodia Under the Export Administration Regulations
BIS's current licensing policy for Cambodia dates from 1992, when
the agency amended the EAR in support of the settlement of political
conflict in Cambodia and the lifting of a U.S. trade embargo on
Cambodia. (57 FR 11576, April 6, 1992.) Recent changes in Cambodian
foreign policy, however, undermine regional security as well as U.S.
national security and foreign policy interests, and necessitate a
revision to export controls for Cambodia under the EAR.
In June 2021, during an official visit to Cambodia, Deputy
Secretary of State Wendy Sherman expressed serious concerns about the
People's Republic of China's (PRC or China) military presence and
construction of facilities at Ream Naval Base in Cambodia. Deputy
Secretary Sherman emphasized that an exclusive-use PRC military base in
Cambodia would undermine Cambodian sovereignty, threaten regional
security, and negatively impact U.S.-Cambodia relations. Since then,
the Department of State (State) and the Treasury (Treasury), have taken
action under their respective authorities to address such concerns. In
November 2021, State and Treasury designated two Cambodian military
officials due to their involvement in significant corruption, including
in connection with the Ream Naval Base. At that time, State, Treasury,
and the Department of Commerce also issued an advisory cautioning U.S.
businesses regarding the potential exposure to entities in Cambodia,
such as the Cambodian military, that engage in human rights abuses,
corruption, and other destabilizing conduct.
The United States has determined that expanded Chinese military
influence in Cambodia and corruption and human rights abuses committed
by Cambodian government actors, including the Cambodian military, are
contrary to U.S. national security and foreign policy interests.
Therefore, the U.S. Government is restricting certain exports and
reexports to, and transfers within, Cambodia to ensure that items
subject to the EAR are not available to Cambodia's military and
military-intelligence services without prior review by the U.S.
Government, and is also adding Cambodia to the list of countries
subject to a more stringent review policy for license applications
involving national security-controlled items. In this rule, BIS amends
the EAR to implement more restrictive treatment for Cambodia under the
EAR.
Changes Made by This Rule for Cambodia Under the EAR
BIS is taking this action to address recent actions by the
Government of Cambodia that are contrary to the national security and
foreign policy interests of the United States and threaten regional
security. The rule makes four broad changes to the EAR to reflect BIS's
more restrictive licensing approach to Cambodia. It adds Cambodia to:
(1) The list of countries subject to the licensing policy in Sec.
742.4(b)(7), (2) the list of countries subject to military end use and
end user controls in Sec. 744.21, (3) the list of countries subject to
military intelligence end use and end user controls in Sec. 744.22,
and (4) the list of countries subject to a U.S. arms embargo under
Country Group D:5.
Licensing Policy
This rule adds Cambodia to the list of countries subject to the
licensing policy in Sec. 742.4(b)(7) (NS-controlled items) of the EAR.
The license review policy for NS-controlled items in Sec. 742.4(b)(7)
applies to transactions with the countries listed in Sec. 744.21, and
now applies to Cambodia as well. This rule removes the reference to
Cambodia in the policy described in Sec. 742.4(b)(6), which is
superseded in this rule by the
[[Page 70016]]
policy for Cambodia in paragraph (b)(7)(i).
Section 744.21
This rule adds Cambodia to the countries subject to the `military
end use' and `military end user' (MEU) restrictions in Sec. 744.21 of
the EAR. In addition to the license requirements for items specified on
the Commerce Control List (CCL), Sec. 744.21 prohibits the export,
reexport, or transfer (in-country) without a license of items subject
to the EAR and are listed in supplement no. 2 to part 744--List of
Items Subject to the Military End Use or End User License Requirement
of Sec. 744.21--to Burma, China, the Russian Federation, or Venezuela.
With the publication of this rule, Cambodia is now added to the
countries subject to this license requirement. Such exports, reexports,
or transfers (in-country) require a license if, at the time of the
export, reexport, or transfer (in-country), the exporter, reexporter,
or transferor (in-country) has ``knowledge,'' as defined in Sec. 772.1
of the EAR that the item is intended, entirely or in part, for a
`military end use,' or `military end user,' in Burma, Cambodia, China,
the Russian Federation, or Venezuela. Applications submitted for the
export or reexport to Cambodia, or transfer within Cambodia, of an item
in supplement no. 2 to part 744 under this section will be reviewed
with a presumption of denial.
This rule also adds a reference to Cambodia in supplement no. 7 to
part 744--`Military End User' List but does not add any entities
located in Cambodia to the list of Military End Users (MEU List). The
MEU List notifies the public that certain entities are subject to the
military end-user prohibitions in Sec. 744.21 of the EAR. BIS may add
entities located in Cambodia to the MEU List in the future.
Section 744.22
This rule also adds Cambodia to the countries subject to the
`military-intelligence end use' and `military-intelligence end user'
(MIEU) restrictions in Sec. 744.22 of the EAR. In addition to the
license requirements for items specified on the CCL, Sec. 744.22
prohibits the export, reexport, or transfer (in-country) without a
license of items subject to the EAR to Burma, China, the Russian
Federation, Venezuela, or a country listed in Country Group E:1 or E:2.
With the publication of this rule, Cambodia is now added to the
countries subject to this license requirement. Such exports, reexports,
or transfers (in-country) require a license if, at the time of the
export, reexport, or transfer (in-country), the exporter, reexporter,
or transferor (in-country) has ``knowledge,'' as defined in Sec. 772.1
of the EAR that the item is intended, entirely or in part, for a
`military-intelligence end use,' or `military-intelligence end user,'
in Burma, Cambodia, China, the Russian Federation, Venezuela or the
countries listed in Country Group E:1 or E:2. Applications submitted
for the export or reexport to Cambodia, or transfer within Cambodia, of
an EAR item under this section will be reviewed with a presumption of
denial.
With this amendment to Sec. 744.22 of the EAR, BIS is also
revising Sec. 744.6(b)(5) of the EAR to restrict specific activities
of ``U.S. persons'' in connection with a `military-intelligence end
use' or `military-intelligence end user' in Cambodia.
Country Group D:5
The amendments in this rule are made concurrent with other U.S.
Government actions intended to support the revision of export control
policy toward Cambodia in light of the recent developments in Cambodia.
In particular, the Department of State is amending the International
Traffic in Arms Regulations (ITAR) Sec. 126.1, ``Prohibited Exports,
Imports, and Sales to or from Certain Countries'' to add Cambodia in
the list of countries for which it is the policy of the United States
to deny licenses and other approvals for exports and imports of defense
articles and defense services. This change reflects the policy of the
United States to deny licenses and other approvals for the export and
import of defense articles and defense services destined for or
originating in Cambodia, except as otherwise provided within the ITAR.
BIS harmonizes the arms embargo-related provisions in the EAR with
the regulation of arms embargoes in Sec. 126.1 of the ITAR. The ITAR
list incorporates countries subject to United Nations Security Council
(UNSC) and U.S. arms embargoes. BIS primarily implements such controls
through Country Group D:5 ``U.S. Arms Embargoed Countries,'' in
supplement no. 1 to part 740 of the EAR.
Countries listed in Country Group D:5 are subject to additional
restrictions in the EAR, including on de minimis U.S. content, license
exception availability, and licensing policy for certain items. For
example, license applications for the export or reexport of items
classified under 9x515 or ``600 series'' Export Control Classification
Numbers (ECCNs) to countries in Country Group D:5 are reviewed
consistent with the policies in Sec. 126.1 of the ITAR, as provided in
paragraph (b)(1)(ii) of Sec. 742.4 of the EAR.
Therefore, BIS revises Country Group D to add Cambodia to Country
Group D:5 consistent with the Department of State's amendment adding
Cambodia to ITAR Sec. 126.1 on December 9, 2021.
Export Control Reform Act of 2018
On August 13, 2018, the President signed into law the John S.
McCain National Defense Authorization Act for Fiscal Year 2019, which
included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-
4852) that provides the legal basis for BIS's principal authorities and
serves as the authority under which BIS issues this rule.
Rulemaking Requirements
1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This final rule has been designated to be a ``significant
regulatory action,'' although not economically significant, under
section 3(f) of Executive Order 12866.
2. This rule does not contain policies with federalism implications
as that term is defined under Executive Order 13132.
3. Pursuant to section 1762 of the Export Control Reform Act of
2018 (50 U.S.C. 4821), this action is exempt from the Administrative
Procedure Act (5 U.S.C. 553) requirements for notice of proposed
rulemaking, opportunity for public participation, and delay in
effective date.
4. Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule by 5 U.S.C.
553, or by any other law, the analytical requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., are not applicable.
Accordingly, no regulatory flexibility analysis is required and none
has been prepared.
5. Notwithstanding any other provision of law, no person may be
required to respond to or be subject to a penalty for failure to comply
with a collection of information, subject to the requirements of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless
that collection of
[[Page 70017]]
information displays a currently valid Office of Management and Budget
(OMB) Control Number. This regulation involves a collection currently
approved by OMB under control number 0694-0088, Simplified Network
Application Processing System. The collection includes, among other
things, license applications, and carries a burden estimate of 42.5
minutes for a manual or electronic submission for a total burden
estimate of 31,878 hours. BIS expects the burden hours associated with
this collection to not significantly increase with the publication of
this rule.
Savings Clause
Shipments of items that may no longer be made under No License
Required (NLR) or license exception as a result of this action and were
on dock for loading, on lighter, laden aboard an exporting or
transferring carrier, or en route aboard a carrier to a port of export
or reexport on January 10, 2022, pursuant to actual orders for export
to Cambodia, reexport to Cambodia, or transfer (in country) within
Cambodia may proceed to their destination under the prior
authorization.
List of Subjects
15 CFR Part 740
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, parts 740, 742, and 744 of the Export Administration
Regulations (15 CFR parts 730-774) are amended as follows:
PART 740--[AMENDED]
0
1. The authority citation for part 740 continues to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR
58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR,
2001 Comp., p. 783.
0
2. Supplement no. 1 to part 740 is amended in the Country Group D table
by revising the entry for ``Cambodia'' and note 1 to the table to read
as follows:
Supplement No. 1 to Part 740--Country Groups
* * * * *
Country Group D
--------------------------------------------------------------------------------------------------------------------------------------------------------
[D:5] U.S. arms
Country [D:1] National [D:2] Nuclear [D:3] Chemical [D:4] Missile embargoed
security & biological technology countries \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Cambodia........................................................... X ............... ............... ............... X
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note to Country Group D:5: Countries subject to U.S. arms embargoes are identified by the State Department through notices published in the Federal
Register. The list of arms embargoed destinations in this table is drawn from 22 CFR 126.1 and State Department Federal Register notices related to
arms embargoes (compiled and accessible at <a href="https://www.pmddtc.state.gov">https://www.pmddtc.state.gov</a>) and will be amended when the State Department publishes subsequent notices.
If there are any discrepancies between the list of countries in this table and the countries identified by the State Department as subject to a U.S.
arms embargo (in the Federal Register), the State Department's list of countries subject to U.S. arms embargoes shall be controlling.
* * * * *
PART 742--[AMENDED]
0
3. The authority citation for part 742 continues to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; Sec. 1503, Pub. L. 108-11, 117
Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O.
12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR
59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004
Comp., p. 320; Notice of November 12, 2020, 85 FR 72897 (November
13, 2020).
0
4. Section 742.4 is amended by revising paragraphs (b)(6) and (7) to
read as follows:
Sec. 742.4 National security.
* * * * *
(b) * * *
(6) The general policy for Laos is to approve license applications
when BIS determines, on a case-by-case basis, that the items are for an
authorized use in Laos and are not likely to be diverted to another
country or use contrary to the national security or foreign policy
controls of the Unied States.
(7)(i) For Burma, Cambodia, the People's Republic of China (China),
the Russian Federation, and Venezuela, all applications will be
reviewed to determine the risk of diversion to a military end user or
military end use. There is a general policy of approval for license
applications to export, reexport, or transfer items determined to be
for civil end users for civil end uses. There is a presumption of
denial for license applications to export, reexport, or transfer items
that would make a material contribution to the ``development,''
``production,'' maintenance, repair, or operation of weapons systems,
subsystems, and assemblies, such as, but not limited to, those
described in supplement no. 7 to this part, of Burma, Cambodia, China,
the Russian Federation, or Venezuela.
(ii) The following factors are among those that will be considered
in reviewing license applications described in paragraph (b)(7)(i) of
this section:
(A) The appropriateness of the export, reexport, or transfer for
the stated end use;
(B) The significance of the item for the weapon systems
capabilities of the importing country;
(C) Whether any party is a `military end user' as defined in Sec.
744.21(g) of the EAR;
(D) The reliability of the parties to the transaction, including
whether:
(1) An export or reexport license application has previously been
denied;
(2) Any parties are or have been engaged in unlawful procurement or
diversion activities;
(3) The parties are capable of securely handling and storing the
items; and
(4) End-use checks have been and may be conducted by BIS or another
[[Page 70018]]
U.S. Government agency on parties to the transaction;
(E) The involvement of any party to the transaction in military
activities, including activities involving the ``development,''
``production,'' maintenance, repair, or operation of weapons systems,
subsystems, and assemblies;
(F) Government strategies and policies that support the diversion
of exports from their stated civil end use and redirection towards
military end use; and
(G) The scope and effectiveness of the export control system in the
importing country.
(iii) The review will also include an assessment of the impact of a
proposed export of an item on the United States defense industrial base
and the denial of an application for a license that would have a
significant negative impact, as defined in section 1756(d)(3) of the
Export Control Reform Act of 2018 (50 U.S.C. 4815(d)(3)), on such
defense industrial base.
* * * * *
PART 744--[AMENDED]
0
5. The authority citation for part 744 continues to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR,
1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p.
608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3
CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp.,
p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice
of September 15, 2021, 86 FR 52069 (September 17, 2021); Notice of
November 10, 2021, 86 FR 62891 (November 12, 2021).
0
6. Section 744.6 is amended by revising paragraph (b)(5) to read as
follows:
Sec. 744.6 Restrictions on specific activities of ``U.S. persons.''
* * * * *
(b) * * *
(5) A `military-intelligence end use' or a `military-intelligence
end user,' as defined in Sec. 744.22(f), in Burma, Cambodia, the
People's Republic of China, Russia, or Venezuela; or a country listed
in Country Groups E:1 or E:2 (see supplement no. 1 to part 740 of the
EAR).
* * * * *
0
7. Section 744.21 is revised to read as follows:
Sec. 744.21 Restrictions on Certain `military end use' or `military
end user' in Burma, Cambodia, the People's Republic of China, the
Russian Federation, or Venezuela.
(a) General prohibition. In addition to the license requirements
for items specified on the Commerce Control List (CCL) (supplement no.
1 to part 774 of the EAR), you may not export, reexport, or transfer
(in-country) any item subject to the EAR listed in supplement no. 2 to
this part to Burma, Cambodia, the People's Republic of China (China),
the Russian Federation, or Venezuela without a license if, at the time
of the export, reexport, or transfer (in-country), you have
``knowledge,'' as defined in Sec. 772.1 of the EAR, that the item is
intended, entirely or in part, for a `military end use,' as defined in
paragraph (f) of this section, or `military end user,' as defined in
paragraph (g) of this section, in Burma, Cambodia, China, the Russian
Federation, or Venezuela.
(b) Additional prohibition on those informed by BIS. BIS may inform
you either individually by specific notice, through amendment to the
EAR published in the Federal Register, or through a separate
notification published in the Federal Register, that a license is
required for specific exports, reexports, or transfers (in-country) of
any item because there is an unacceptable risk of use in or diversion
to a `military end use' or `military end user' in Burma, Cambodia,
China, the Russian Federation, or Venezuela. Specific notice will be
given only by, or at the direction of, the Deputy Assistant Secretary
for Export Administration. When such notice is provided orally, it will
be followed by written notice within two working days signed by the
Deputy Assistant Secretary for Export Administration or the Deputy
Assistant Secretary's designee. The absence of BIS notification does
not excuse the exporter from compliance with the license requirements
of paragraph (a) of this section.
(1) `Military End-User' (MEU) List. BIS may inform and provide
notice to the public that certain entities are subject to the
additional prohibition described under this paragraph (b) following a
determination by the End-User Review Committee (ERC) that a specific
entity is a `military end user' pursuant to this section and therefore
any exports, reexports, or transfers (in-country) to that entity
represent an unacceptable risk of use in or diversion to a `military
end use' or `military end user' in Burma, Cambodia, China, the Russian
Federation, or Venezuela. Such entities may be added to supplement no.
7 to this part--`Military End-User' (MEU) List through Federal Register
notifications published by BIS and will thus be subject to a license
requirement for exports, reexports, or transfers (in-country) of items
specified in supplement no. 2 to this part. The listing of entities
under supplement no. 7 to this part is not an exhaustive listing of
`military end users' for purposes of this section. Exporters,
reexporters, and transferors are responsible for determining whether
transactions with entities not listed on supplement no. 7 to this part
are subject to a license requirement under paragraph (a) of this
section. The process in this paragraph (b)(1) for placing entities on
the MEU List is only one method BIS may use to inform exporters,
reexporters, and transferors of license requirements under this
section.
(i) End-User Review Committee (ERC). The End-User Review Committee
(ERC), composed of representatives of the Departments of Commerce
(Chair), State, Defense, Energy and, where appropriate, the Treasury,
makes all decisions regarding additions to, removals from, or other
modifications to the MEU List. Decisions by the ERC for purposes of the
MEU List will be made following the procedures identified in this
section and in supplement no. 5 to this part--Procedures for End-User
Review Committee Entity List and `Military End User' (MEU) List
Decisions.
(ii) License requirement for parties to the transaction. The
license requirement for entities listed in supplement no. 7 to this
part applies to the export, reexport, or transfer (in-country) of any
item subject to the EAR listed in supplement no. 2 to this part when an
entity that is listed on the MEU List is a party to the transaction as
described in Sec. 748.5(c) through (f) of the EAR.
(2) Requests for removal from or modification of `Military End-
User' (MEU) List. Any entity listed on the MEU List may request that
its listing be removed or modified. All such requests, including
reasons therefor, must be in writing and sent to: Chair, End-User
Review Committee, Bureau of Industry and Security, U.S. Department of
Commerce, 14th Street and Pennsylvania Avenue NW, Room 3886,
Washington, DC 20230; or by email at <a href="/cdn-cgi/l/email-protection#a6e3f4e5e6c4cfd588c2c9c588c1c9d0"><span class="__cf_email__" data-cfemail="7732253437151e045913181459101801">[email protected]</span></a>. In order for an
entity listed on the MEU List to petition BIS for their removal or
modification, as applicable, the entity must address why the entity is
not a `military end user' for purposes of this section.
(i) Review. The ERC will review such requests for removal or
modification in accordance with the procedures set forth in supplement
no. 5 to this part.
[[Page 70019]]
(ii) BIS action. The Deputy Assistant Secretary for Export
Administration will convey the decision on the request to the requester
in writing. That decision will be the final agency action on the
request.
(c) License exception. Despite the prohibitions described in
paragraphs (a) and (b) of this section, you may export, reexport, or
transfer (in-country) items subject to the EAR under the provisions of
License Exception GOV set forth in Sec. 740.11(b)(2)(i) and (ii) of
the EAR.
(d) License application procedure. When submitting a license
application pursuant to this section, you must state in the
``additional information'' block of the application that ``this
application is submitted because of the license requirement in Sec.
744.21 of the EAR (Restrictions on a `Military End Use' or `Military
End User' in Burma, Cambodia, the People's Republic of China, the
Russian Federation, or Venezuela).'' In addition, either in the
additional information block of the application or in an attachment to
the application, you must include all known information concerning the
`military end use' and `military end user(s)' of the item(s). If you
submit an attachment with your license application, you must reference
the attachment in the ``additional information'' block of the
application.
(e) License review standards. (1) Applications to export, reexport,
or transfer (in-country) items described in paragraph (a) of this
section will be reviewed with a presumption of denial.
(2) Applications may be reviewed under chemical and biological
weapons, nuclear nonproliferation, or missile technology review
policies, as set forth in Sec. Sec. 742.2(b)(4), 742.3(b)(4), and
742.5(b)(4) of the EAR, if the end use may involve certain
proliferation activities.
(3) Applications for items requiring a license for any reason that
are destined to Burma, Cambodia, China, the Russian Federation, or
Venezuela for a `military end use' or `military end user' also will be
subject to the review policy stated in paragraph (e)(1) of this
section.
(f) Military end use. In this section, `military end use' means:
Incorporation into a military item described on the U.S. Munitions List
(USML) (22 CFR part 121, International Traffic in Arms Regulations);
incorporation into items classified under Export Control Classification
Numbers (ECCNs) ending in ``A018'' or under ``600 series'' ECCNs; or
any item that supports or contributes to the operation, installation,
maintenance, repair, overhaul, refurbishing, ``development,'' or
``production,'' of military items described on the USML, or items
classified under ECCNs ending in ``A018'' or under ``600 series''
ECCNs.
(g) Military end user. In this section, the term `military end
user' means the national armed services (army, navy, marine, air force,
or coast guard), as well as the national guard and national police,
government intelligence or reconnaissance organizations, or any person
or entity whose actions or functions are intended to support `military
end uses' as defined in paragraph (f) of this section.
(h) Effects on contracts. Venezuela: Transactions involving the
export, reexport, or transfer (in country) of items to or within
Venezuela are not subject to the provisions of this section if the
contracts for such transactions were signed prior to November 7, 2014.
0
8. Section 744.22 is revised to read as follows:
Sec. 744.22 Restrictions on exports, reexports, and transfers (in-
country) to certain military-intelligence end uses or end users.
(a) General prohibition. In addition to the license requirements
for items specified on the Commerce Control List (CCL) (supplement no.
1 to part 774 of the EAR), you may not export, reexport, or transfer
(in-country) any item subject to the EAR without a license from BIS if,
at the time of the export, reexport, or transfer (in-country), you have
``knowledge'' that the item is intended, entirely or in part, for a
`military-intelligence end use' or a `military-intelligence end user'
in Burma, Cambodia, the People's Republic of China (China), Russia, or
Venezuela; or a country listed in Country Groups E:1 or E:2 (see
supplement no. 1 to part 740 of the EAR).
(b) Additional prohibition on those informed by BIS. BIS may inform
you either individually by specific notice, through amendment to the
EAR published in the Federal Register, or through a separate
notification published in the Federal Register, that a license is
required for specific exports, reexports, or transfers (in-country) of
any item subject to the EAR because there is an unacceptable risk of
use in, or diversion to, a `military-intelligence end use' or a
`military-intelligence end user' in Burma, Cambodia, China, Russia, or
Venezuela; or a country listed in Country Group E:1 or E:2 (see
supplement no. 1 to part 740 of the EAR).
(c) License exception. Notwithstanding the prohibitions described
in paragraphs (a) and (b) of this section, you may export, reexport, or
transfer (in-country) items subject to the EAR under the provision of
License Exception GOV set forth in Sec. 740.11(b)(2)(ii) of the EAR.
(d) License application procedure. When submitting a license
application pursuant to this section, you must state in the
``additional information'' block of the application that ``this
application is submitted because of the license requirement in Sec.
744.22 of the EAR (Restrictions on exports, reexports, and transfers
(in-country) to certain military-intelligence end uses or end users).''
In addition, either in the additional information block of the
application or in an attachment to the application, you must include
all known information concerning the military-intelligence end use(s)
or end user(s) of the item(s). If you submit an attachment with your
license application, you must reference the attachment in the
``additional information'' block of the application.
(e) License review policy. Applications to export, reexport, or
transfer (in-country) items requiring a license pursuant to paragraph
(a) or (b) of this section will be reviewed with a presumption of
denial.
(f) Definitions. (1) `Military-intelligence end use' means the
``development,'' ``production,'' operation, installation (including on-
site installation), maintenance (checking), repair, overhaul, or
refurbishing of, or incorporation into, items described on the U.S.
Munitions List (USML) (22 CFR part 121, International Traffic in Arms
Regulations), or classified under ECCNs ending in ``A018'' or under
``600 series'' ECCNs, which are intended to support the actions or
functions of a `military-intelligence end user,' as defined in this
section.
(2) `Military-intelligence end user' means any intelligence or
reconnaissance organization of the armed services (army, navy, marine,
air force, or coast guard); or national guard. For license requirements
applicable to other government intelligence or reconnaissance
organizations in Burma, Cambodia, China, Russia, or Venezuela, see
Sec. 744.21. Military-intelligence end users subject to the license
requirements set forth in this section include, but are not limited to,
the following:
(i) Burma. Office of Chief of Military Security Affairs (OCMSA) and
the Directorate of Signal.
(ii) Cambodia. General Department of Research and Intelligence
(GDRI).
(iii) Cuba. Directorate of Military Intelligence (DIM) and
Directorate of Military Counterintelligence (CIM).
(iv) China, People's Republic of. Intelligence Bureau of the Joint
Staff Department.
[[Page 70020]]
(v) Iran. Islamic Revolutionary Guard Corps Intelligence
Organization (IRGC-IO) and Artesh Directorate for Intelligence (J2).
(vi) Korea, North. Reconnaissance General Bureau (RGB).
(vii) Russia. Main Intelligence Directorate (GRU).
(viii) Syria. Military Intelligence Service.
(ix) Venezuela. General Directorate of Military Counterintelligence
(DGCIM).
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9. Supplement No.7 to part 744 is amended in the table by adding in
alphabetical order an entry for ``CAMBODIA'' to read as follows:
Supplement No. 7 to Part 744--'Military End-User' (MEU) List
* * * * *
------------------------------------------------------------------------
Federal Register
Country Entity citation
------------------------------------------------------------------------
* * * * *
Cambodia....................... [Reserved]......... [Reserved]
* * * * *
------------------------------------------------------------------------
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2021-26633 Filed 12-8-21; 8:45 am]
BILLING CODE 3510-33-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.