The U.S. Department of Commerce’s Bureau of Industry and Security (BIS) issued a final rule amending the Export Administration Regulations (EAR) to implement recent intersessional decisions and understandings reached by the Australia Group (AG). The final rule amended three ECCNs: 1C350, 1C351, and 2B352. In addition, BIS amended the EAR and Chemical Weapons Convention Regulations (CWCR) to add Angola and Burma as States Parties to the Chemical Weapons Convention (CWC). Below we describe these changes in more detail.
The final rule amended ECCN 1C350 by:
- Adding the chemical diethylamine (C.A.S. 109-89-7) to 1C350.d, which controls precursor chemicals identified on the AG common control list that are not also chemicals identified on Schedule 1, Schedule 2, or Schedule 3 in the Annex on Chemicals to the CWC.
The final rule amended ECCN 1C351 by:
- Adding two viruses (the severe acute respiratory syndrome-related coronavirus, a.k.a. SARS-related coronavirus, and the reconstructed 1918 influenza virus) to 1C351.a;
- Updating the nomenclature for 17 viruses that were already controlled under 1C351.a, consistent with the recent updates to the AG common control list;
- Adding a fifth note to the Licensing Requirement Notes intended to provide guidance, consistent with the AG, in determining whether a particular pathogen or “toxin” is controlled under 1C351; and
- Making other conforming changes.
The final rule amended ECCN 2B352 by:
- Modifying the controls on biocontainment chambers, isolators, and biological safety cabinets described in 2B352.g.2 to “more fully identify the characteristics that such equipment must possess in order to be controlled under 2B352;”
- Adding two notes to further clarify the scope of controls in 2B352.g.2;
- Revising the controls on aerosol inhalation equipment described in ECCN 2B352.h to include nose-only exposure apparatus; and
- Revising 2B352.e to control steam, gas, or vapor sterilizable freeze-drying equipment with a condenser capacity of 10kg of ice or greater in 24 hours (10 liters of water or greater in 24 hours) and less than 1000 kg of ice in 24 hours (less than 1,000 liters of water in 24 hours).
Angola and Burma
Lastly, the final rule amended Supplement No. 2 to part 745 of the EAR (States Parties to the CWC) and Supplement No. 1 to part 710 of the CWCR (States Parties to the CWC) to add Angola and Burma as States Parties.
The changes described in this final rule are not dramatic, but could be considered slight modifications that have a narrow impact on companies engaging in transactions or activities involving the specified chemicals or equipment referenced above.
The AG is a multilateral export control regime consisting of 41 participating countries that maintain export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program.
The CWC is essentially a multilateral arms control and nonproliferation treaty that prohibits the use, development, production, stockpiling, or transferal of chemical weapons. States Parties
to the CWC agree to destroy any stockpiles of chemical weapons and to create a verification regime for certain toxic chemicals and their precursors to ensure that such chemicals are not used for prohibited purposes. U.S. companies that engage in activities involving chemicals listed in the Annex on Chemicals
to the CWC may be required to, among other things, submit declarations and/or reports to BIS.
Prior to the rule’s publication, these viruses were controlled under ECCN 1C351.b, which controls viruses identified on the “select agents” lists (maintained by APHIS and the CDC), but not identified on the AG “List of Human and Animal Pathogens and Toxins for Export Control.”