[Federal Register Volume 69, Number 88 (Thursday, May 6, 2004)]
[Rules and Regulations]
[Pages 25312-25314]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-10230]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 744
[Docket No. 040220063-4063-01]
RIN 0694-AC64
Protective Equipment Export License Jurisdiction
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: This rule revises the Commerce Control List to conform the
description of certain protection and detection equipment to that found
in the Wassenaar Arrangement List of Dual Use Goods and Technologies
(the Dual Use List), to impose national security and anti-terrorism
license requirements on those items, and to impose antiterrorism
controls on certain items that are excluded from the Dual Use List.
DATES: This rule is effective May 6, 2004.
FOR FURTHER INFORMATION CONTACT: Scott Hubinger, Office of Chemical and
Biological Controls and Treaty Compliance, telephone: (202) 482-5223,
e-mail shubinge@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
The Commerce Control List (15 CFR part 774, supp. 1) (CCL) contains
entries called Export Control Classification Numbers (ECCNs) and is
used in determining whether a license from the Bureau of Industry and
Security (BIS) is required for certain exports and reexports. It also
describes some items that are subject to the export licensing
jurisdiction of the Directorate of Defense Trade Controls (DTC), U.S.
Department of State. In general, DTC has export licensing authority
over items that have been specifically designed, developed, configured,
adapted, or modified for military application and do not have
predominantly civil applications or that have significant military or
intelligence applications. BIS generally has export licensing authority
over items having predominantly civil uses even if they also may be
used by the military. Prior to publication of this rule ECCN 1A004
referred readers to the DTC controls with regard to ``[p]rotective and
detection equipment and components, not specially designed for military
use.``
This rule revises ECCN 1A004 to emulate entry 1.A.4 on the
Wassenaar Arrangement List of Dual Use Goods and Technologies,
including an exclusion note from that entry. This rule applies national
security (NS2) and antiterrorism (AT1) controls to items covered by
ECCN 1A004, including gas masks, filter canisters, decontamination
equipment, protective suits, gloves and shoes specially designed or
modified for defense against biological agents or radioactive materials
adapted for use in war or chemical warfare agents, and certain nuclear,
chemical, and biological detection systems. The national security
controls require a license for export or reexport to all destinations
except Country Group A:1 and cooperating countries as listed in 15 CFR
part 740, supp. No. 1.
This rule also creates a new ECCN 1A995 that imposes antiterrorism
controls (AT1) on personal radiation monitoring dosimeters and
equipment limited by design or function to protect against hazards
specific to civil industries, such as mining, quarrying, agriculture,
pharmaceuticals, medical, veterinary, environmental, waste management,
or to the food industry that are excluded from 1A004. The antiterrorism
controls require a license for export or reexport to countries
designated by the Secretary of State as state sponsors of international
terrorism. New ECCN 1A995 includes a note that items for protection
against chemical or biological agents that are consumer goods, packaged
for retail sale or personal use and medical products are excluded from
1A995, and are EAR99. EAR99 items are not listed in any specific entry
on the Commerce Control List, but are subject to other provisions of
the EAR, including those that impose a license requirement based on
recipient or end-use, those that apply to embargoed destinations, the
prohibitions on violating denial orders, and export clearance
requirements.
The antiterrorism controls imposed by this rule are new foreign
policy controls. As required by the Export Administration Act of 1979,
as amended (the Act), a report on the imposition of these controls was
delivered to Congress on April 27, 2004.
Although the Act expired on August 20, 2001, Executive Order 13222
of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), as extended by the
Notice of August 7, 2003 (68 FR 47833, August 11, 2003), continues the
Export Administration Regulations in effect under the International
Emergency Economic Powers Act. BIS continues to carry out the
provisions of the Act, as appropriate and to the extent permitted by
law, pursuant to Executive Order 13222.
Savings Clause
Exports and reexports that did not require a license prior to
publication of this rule and for which this rule imposes a new license
requirement may be made without a license if the items being exported
or reexported were on dock for loading, on lighter, laden aboard an
exporting carrier, or en route aboard a carrier to a port of export
pursuant to actual orders for export or reexport on May 20, 2004, and
exported or reexported on or before June 7, 2004. Any such exports or
reexports not actually made before midnight on June 7, 2004, require a
license in accordance with this rule.
Rulemaking Requirements
1. This rule has been determined to be not significant for purposes
of E.O. 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person 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 information displays a currently
valid Office of Management and Budget (OMB) Control Number. This rule
involves collections of information subject to the PRA. These
collections have been approved by the Office of Management and Budget
(OMB) under control number 0694-0088, ``Multi-Purpose Application,''
which carries a burden hour estimate of 40 minutes to prepare and
submit electronically and 45 minutes to submit manually form BIS-748P.
Send comments regarding these burden estimates or any other aspect of
these collections of information, including suggestions for reducing
the burden, to David Rostker, OMB Desk Officer, by e-mail at david_
rostker@omb.eop.gov or by fax to 202.395.285; and to the Regulatory
Policy Division, Bureau of Industry and Security, Department of
Commerce, P.O. Box 273, Washington, DC 20044.
3. This rule does not contain policies with federalism implications
as this term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C.
[[Page 25313]]
553) requiring notice of proposed rulemaking, the opportunity for
public participation, and a delay in effective date, are inapplicable
because this regulation involves a military and foreign affairs
function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no
other law requires that a notice of proposed rulemaking and an
opportunity for public comment be given for this rule. Because a notice
of proposed rulemaking and an opportunity for public comment are not
required to be given for this rule under 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. Therefore, this rule is being
issued in final form.
List of Subjects in 15 CFR Part 774
Exports, Foreign trade.
0
For the reasons set forth in the preamble, the supplement No. 1 to part
774 of the Export Administration Regulations (15 CFR parts 730-799) is
amended as follows:
Supplement No. 1 to Part 774--[Amended]
0
1. The authority citation for part 774 continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C.
287c, 22 U.S.C. 3201 et seq., 22 U.S.C. 6004; 30 U.S.C. 185(s),
185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C.
app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec.
221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of
August 7, 2003, 68 FR 47833, 3 CFR, 2003 Comp., p. 328.
0
2. Supplement No. 1 to part 774 (the Commerce Control List), Category
1--``Materials, Chemicals, `Microorganisms' and `Toxins' '', Export
Control Classification Number 1A004 is revised to read as follows:
1A004 Protective and detection equipment and components not
specially designed for military use as follows (see List of Items
Controlled).
License Requirements
Reason for Control: NS, AT
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Control(s) Country chart
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NS applies to entire entry.............. NS Column 2
AT applies to entire entry.............. AT Column 1
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License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: (1) See ECCNs 1A995, 2B351, and 2B352. (2)
Chemical and biological protective and detection equipment
specifically designed, developed, modified, configured, or adapted
for military applications is subject to the export licensing
jurisdiction of the Department of State, Directorate of Defense
Trade Controls (see 22 CFR part 121, category XIV(f)), as is
commercial equipment that incorporates components or parts
controlled under that category unless those components or parts are:
(1) Integral to the device; (2) inseparable from the device; and (3)
incapable of replacement without compromising the effectiveness of
the device, in which case the equipment is subject to the export
licensing jurisdiction of the Department of Commerce under ECCN
1A004.
Related Definitions: N/A
Items:
a. Gas masks, filter canisters and decontamination equipment
therefor designed or modified for defense against biological agents
or radioactive materials adapted for use in war or chemical warfare
(CW) agents and specially designed components therefor;
b. Protective suits, gloves and shoes specially designed or
modified for defense against biological agents or radioactive
materials adapted for use in war or chemical warfare (CW) agents;
c. Nuclear, biological and chemical (NBC) detection systems
specially designed or modified for detection or identification of
biological agents or radioactive materials adapted for use in war or
chemical warfare (CW) agents and specially designed components
therefor.
Note: In this entry, the phrase ``adapted for use in war''
means: Any modification or selection (such as altering purity, shelf
life, virulence, dissemination characteristics, or resistance to UV
radiation) designed to increase the effectiveness in producing
casualties in humans or animals, degrading equipment or damaging
crops or the environment.
Note: 1A004 does not control:
a. Personal radiation monitoring dosimeters;
b. Equipment limited by design or function to protect against
hazards specific to civil industries, such as mining, quarrying,
agriculture, pharmaceuticals, medical, veterinary, environmental,
waste management, or to the food industry.
Note: Protective equipment and components are classified as
1A004 if they have been tested and proven effective against
penetration of BW/CW agents or their simulants using test protocols
published by a U.S. Government Agency, such as the National
Institute of Occupational Safety and Health (NIOSH) or the U.S.
Army, for use by emergency responders or evacuees in chemical,
biological, radiological or nuclear environments and labeled with or
otherwise identified by the manufacturer or exporter as being
effective against penetration by BW/CW agents even if such equipment
or components are used in civil industries such as mining,
quarrying, agriculture, pharmaceuticals, medical, veterinary,
environmental, waste management, or the food industry.
0
3. In supplement No. 1 to part 774 (Commerce Control List), Category
1--``Materials, Chemicals, `Microorganisms' & `Toxins' '', add a new
Export Control Classification Number 1A995 immediately following Export
Control Classification Number 1A985 and immediately preceding Export
Control Classification Number 1A999 reading as follows:
1A995 Protective and detection equipment and components not
specially designed for military use and not controlled by ECCN
1A004, as follows (see List of Items Controlled).
License Requirements
Reason for Control: AT
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Control(s) Country chart
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AT applies to entire entry.............. AT Column 1
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License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related controls: See ECCNs 1A004, 2B351, and 2B352.
Related Definitions: N/A
Items:
a. Personal radiation monitoring dosimeters;
b. Equipment limited by design or function to protect against
hazards specific to civil industries, such as mining, quarrying,
agriculture, pharmaceuticals, medical, veterinary, environmental,
waste management, or to the food industry.
Note: This entry (1A995) does not control items for protection
against chemical or biological agents that are consumer goods,
packaged for retail sale or personal use, or medical products, such
as latex exam gloves, latex surgical gloves, liquid disinfectant
soap, disposable surgical drapes, surgical gowns, surgical foot
covers, and surgical masks. Such items are classified as EAR99.
0
4. Supplement No. 1 to part 774 (the Commerce Control List), Category
2--``Materials Processing'', Export Control Classification Number 2B351
is amended by revising the Related Controls paragraph of the List of
Items Controlled section to read as follows:
2B351 Toxic gas monitoring systems that operate on-line and
dedicated detectors therefor.
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: See ECCNs 1A004 and 1A995 for detection
equipment that is not covered by this entry.
Related Definitions: * * *
[[Page 25314]]
Items: * * *
0
5. Supplement No. 1 to part 774 (the Commerce Control List), Category
2--``Materials Processing'', Export Control Classification Number 2B352
is amended by revising the Related Controls paragraph of the List of
Items Controlled section to read as follows:
2B352 Equipment capable of use in handling biological materials, as
follows (see List of Items Controlled).
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: See ECCNs 1A004 and 1A995 for protective
equipment that is not covered by this entry.
Related Definitions: * * *
Items: * * *
Dated: April 29, 2004.
Peter Lichtenbaum,
Assistant Secretary for Export Administration.
[FR Doc. 04-10230 Filed 5-5-04; 8:45 am]
BILLING CODE 3510-33-P