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July 23, 2007 

BIS Publishes Final Antiboycott Penalty Guidelines, Provides Guidance on Licensing Jurisdiction of Microelectronic Circuits and Announces CCL Review

On July 17, 2007, the Commerce Department's Bureau of Industry and Security (BIS) published the following three important final rules and notices in the Federal Register:

Antiboycott Penalty Guidelines:

The first document published by BIS in the July 17, 2007 edition of the Federal Register was a final rule setting forth BIS policy concerning voluntary self-disclosures of the antiboycott provisions of the Export Administration Regulations (EAR) and the factors that BIS will consider when deciding whether to pursue administrative charges and impose penalties for violations of the antiboycott provisions.

Specifically, the final rule creates a new section 764.8 of the EAR (15 CFR § 764.8) setting forth the procedures for voluntary self disclosure of violations of the antiboycott provisions. For example, section 764.8 requires, among other things, that voluntary self-disclosures be in writing and that they be received by BIS's Office of Antiboycott Compliance before the agency learns of the same or substantially similar information from ‘‘another source’’ and has commenced an investigation or inquiry in connection with that information. Significantly, the final rule specifies that violations revealed by exporters to BIS in telephone or e-mail requests for advice concerning the antiboycott provisions are "not information received from another source". The final rule states that a voluntary self-disclosure of a violation of the antiboycott provisions of the EAR will be considered to be a "Great Weight" mitigating factor in the settlement of administrative enforcement cases.

The final rule also creates a new supplement No. 2 to part 764 that describes how BIS responds to violations of the antiboycott provisions and how BIS makes penalty determinations in the settlement of antiboycott administrative enforcement cases. The rule also specifies the various factors that BIS considers to be important when settling antiboycott administrative enforcement cases.

The final antiboycott guidelines rule takes effect on August 16, 2007.

Guidance on Licensing Jurisdiction of Microelectronic Circuits:

BIS also published a final rule in the July 17, 2007 Federal Register adding language to ECCN 3A001 advising that the following are subject to the licensing jurisdiction of the Department of State, Directorate of Defense Trade Controls (DDTC):

Radiation hardened microelectronic circuits controlled by Category XV(d) of the United States Munitions List (USML) and all specifically designed or modified systems or subsystems, components, parts, accessories, attachments, and associated equipment controlled by Category XV(e) of theUSML.
On the same date, DDTC published a Federal Register notice amending the text of the USML Category XV(d) to clarify the coverage of and to alter one of the five performance characteristics that define radiation-hardened microelectronic circuits that are subject to the licensing jurisdiction of the International Traffic in Arms Regulations (ITAR).

CCL Review:

On July 17, 2007 BIS published a notice in the Federal Register announcing that it is conducting a "systematic review" of the Commerce Control List (CCL) and is seeking comments from the public on the following topics:
  1. The overall structure of the CCL, including suggestions for how the structure of the CCL may be changed to better advance U.S. national security, foreign policy, and economic interests;
  2. Types of items that should be listed on the CCL and the appropriate levels of controls to be placed on those items, taking into account technology levels, markets, and foreign availability;
  3. Any updates to the CCL item descriptions that would enable the descriptions to better reflect the intent of the multinational controls and to eliminate any overly broad descriptions that inadvertently capture non-critical items that are not controlled by other countries; and
  4. Coordination and harmonization of controls on items covered by the multilateral regimes, such as the Wassenaar Arrangement.
This is an excellent opportunity for companies and industries that produce and export controlled products to advise BIS of their concerns with specific Export Classification Control Numbers (ECCNs) and other CCL concerns. Comments on the CCL must be submitted to BIS by September 17, 2007.

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