[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Proposed Rules]
[Pages 36419-36423]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14473]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 774
[Docket No. 120426028-1028-01]
RIN 0694-AF68
Feasibility of Enumerating ``Specially Designed'' Components
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Advanced notice of proposed rulemaking (ANPRM).
-----------------------------------------------------------------------
SUMMARY: As part of the President's Export Control Reform (ECR)
Initiative, this ANPRM requests comments on the feasibility of
positively identifying ``specially designed'' ``components'' on the
Commerce Control List (CCL) so as to decrease the use of the term,
which appears extensively throughout the CCL,
[[Page 36420]]
and thereby facilitate enhanced public compliance with the Export
Administration Regulations. Specifically, the Bureau of Industry and
Security (BIS) is evaluating whether it is feasible to create
exhaustive lists of the ``specially designed'' ``components'' referred
to in certain Export Control Classification Numbers on the CCL that
currently use ``specially designed'' catch-all paragraphs, and seeks
public input to assist in this evaluation. If BIS ultimately determines
that such lists might be beneficial, it intends to submit these
findings to the appropriate multilateral export control regimes in the
normal course of list proposal changes. The request for comments in
this ANPRM is part of Commerce's retrospective plan under EO 13563
completed in August 2011. Commerce's full plan can be accessed at:
http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing-rules.
DATES: Comments must be received by BIS no later than September 17,
2012.
ADDRESSES: Comments on this advanced notice of proposed rulemaking may
be submitted to the Federal rulemaking portal (www.regulations.gov).
The regulations.gov ID for this rule is: BIS-2012-0022. Written
comments on this advanced notice of proposed rulemaking may also be
submitted via email to publiccomments@bis.doc.gov or on paper to
Regulatory Policy Division, Bureau of Industry and Security, Room
2099B, U.S. Department of Commerce, 14th St. and Pennsylvania Ave. NW.,
Washington, DC 20230. Please refer to RIN 0694-AF68 in all comments and
in the subject line of email comments. All comments must be in writing.
All comments (including any personal identifiable information) will be
available for public inspection and copying. Those wishing to comment
anonymously may do so by submitting their comment via regulations.gov
and leaving the fields for identifying information blank.
FOR FURTHER INFORMATION CONTACT: Timothy Mooney, Regulatory Policy
Division, Bureau of Industry and Security, Department of Commerce,
Phone: (202) 482-2440, Fax: (202) 482-3355, Email:
timothy.mooney@bis.doc.gov.
SUPPLEMENTARY INFORMATION
Background
This ANPRM requests comments on a longer-term project involving
minimizing the use of the term ``specially designed'' on the current
Commerce Control List (CCL) by specifically identifying ``components.''
Specifically listing ``components,'' with multilateral agreement where
appropriate, would make the CCL a more positive list.
As part of the implementation of the Export Control Reform (ECR)
Initiative, the Departments of Commerce and State published rules that
proposed, as much as possible, a common definition of the term
``specially designed.'' A common definition of ``specially designed''
would protect and enhance U.S. national security interests because the
term ``specially designed'' would be used in the ``600 series'' that
would be created to control United States Munitions List (USML) items
moved to the CCL. In addition, the term ``specially designed'' is used
widely on the current CCL.
The request for comments in this ANPRM is part of Commerce's
retrospective plan under EO 13563 completed in August 2011. Commerce's
full plan can be accessed at: http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing-rules.
Request for Comments on the Feasibility of Enumerating ``Specially
Designed'' ``Components''
This ANPRM requests comments on the use of the term ``specially
designed'' when applied to ``components'' outside of the ``600 series''
on the CCL. Specifically, the Bureau of Industry and Security is
evaluating whether it is feasible to create exhaustive lists of the
``specially designed'' ``components'' in certain Export Control
Classification Numbers on the CCL that currently use ``specially
designed'' catch-all paragraphs. BIS does not believe a similar
approach is needed for ``parts'' controlled on the CCL, but BIS also
requests public comments regarding whether a similar approach should
also be evaluated for ``parts'' controlled on the CCL.
Ultimately, any changes to multilaterally-controlled CCL entries
would be made in cooperation with the multilateral export control
regimes. This longer-term project may result eventually in a reduction
in the use of the term ``specially designed'' outside of the ``600
series'' on the CCL if exhaustive lists of such ``components'' can be
identified and specified. To assist the public, BIS has identified the
set of ECCN entries that are the best candidates for taking this
approach.
Most of the public comments and concerns about the July 15 proposed
``specially designed'' definition included in the rule, Proposed
Revisions to the Export Administration Regulations (EAR): Control of
Items the President Determines No Longer Warrant Control Under the
United States Munitions List (USML) (76 FR 41958) revolved around
references in the application of the definition to existing CCL
controls on ``components'' ``specially designed'' for a particular
``end item'' or purpose. Minimizing use of the term ``specially
designed'' by specifically listing controlled ``components'' may
address some of these concerns.
As described below, BIS parsed the CCL and removed all text that
does not directly describe controls on ``components'' ``specially
designed'' for an end item or purpose. To make the analysis easier and
more relevant to the proposed definition of ``specially designed,'' BIS
has not included in this ANPRM references to such controls in ECCNs
that are controlled for only anti-terrorism reasons, because the number
of circumstances where a licensing determination would be affected by
whether a component is EAR99 or AT-only controlled is relatively small.
BIS has also not included in this ANPRM the ECCNs where a component
is solely or primarily controlled for Missile Technology (MT) reasons
or where the MT controls overlap other controls, such as National
Security (NS) controls. Because the EAR has adopted the Missile
Technology Control Regime's definition of the term for such controls,
BIS needs to further evaluate whether those ECCNs controlled for MT
reasons would also be good candidates for specifically identifying
``components.'' In responding to this ANPRM, the public may also submit
comments regarding whether they believe a similar approach would also
be feasible for items controlled for MT reasons, which BIS will factor
into the evaluation for the scope of this review project going forward.
Unlike the USML, the CCL does not contain a broad catch-all control
on essentially all ``components'' ``specially designed'' for any other
item identified on the CCL. You must carefully read each heading and
each subparagraph. Some catch-all controls are in the heading and apply
by reference to all items described in the subparagraphs, such as in
ECCN 3B001. Other headings merely refer to the fact that some of the
subparagraphs contain catch-all controls ``as follows,'' such as ECCN
2B001 where only its subparagraph ``f'' contains controls on
``specially designed'' ``components.'' (The fact that a ``specially
designed'' ``component'' control exists in some of an ECCN's
subparagraphs means, by negative implication, that such controls do not
exist in the other subparagraphs in the
[[Page 36421]]
same ECCN.) Some ECCN headings do not refer to catch-all controls but
individual subparagraphs do, such as in ECCN 8A002.a. Some ECCNs refer
to specific types of ``components'' ``specially designed'' for other
items in that ECCN, such as 2B005, which limits its ``component''
controls to ``specially designed automated handling, positioning,
manipulation and control components.''
Finally, a few ECCNs, such as 3A292, contain a specific, positive
list of the types of components that are within the scope of that
ECCN's controls on ``specially designed'' ``components.'' Specifically,
3A292 contains a ``note'' stating that ``[s]pecially designed
components controlled by this item are the following, for analog
oscilloscopes: 1. Plug-in units; 2. External amplifiers; 3. Pre-
amplifiers; 4. Sampling devices; 5. Cathode ray tubes.'' Thus, only
those particularly identified components are controlled in that ECCN.
Another example is ECCN 6A002. ECCN 6A002.a.2 controls ``components''
``specially designed'' for ``image intensifier tubes'' described in
ECCN 6A002.a.2.a. These components are described in three subparagraphs
that specify the specially designed components under paragraph a.2.b,
as follows: 1. Microchannel plates having a hole pitch (center-to-
center spacing) of 12 [micro]m or less; 2. GaAs or GaInAs
photocathodes; and 3. Other III-V compound semiconductor photocathodes.
To further refine what are considered specially designed components, a
``note'' specifies that ``6A002.a.2.b.3 does not control compound
semiconductor photocathodes with a maximum radiant sensitivity of 10
mA/W or less.''
Request for Comments
BIS seeks the advice and suggestions of the public regarding
whether identifying the specific types of ``components'' controlled by
the ECCNs identified below would be of assistance to exporters. If so,
BIS requests public comment regarding the ``components'' that should be
identified in a positive list within the scope of the ``specially
designed'' controls of the ECCNs identified below. In addition to the
ECCNs identified below, the public may also submit public comments on
other ``specially designed'' ``component'' references on the CCL where
the public believes a similar approach of identifying the specific
types of ``components'' would be feasible. If a list of such components
could be created, the United States could consider developing proposals
for the relevant multilateral export control regimes to control only
those ``components'' within the scope of the relevant ECCNs. BIS does
not believe a similar approach is needed for ``parts'' controlled on
the CCL, but BIS also requests public comments regarding whether a
similar approach should also be evaluated for ``parts'' controlled on
the CCL.
BIS is particularly interested in comments from those with
technical expertise related to or experience with classifying items
identified below to provide advice on those items. The identified
``components'' should be those that have specific performance
parameters or functions which make them particularly suitable for use
in the controlled items. They should also include those ``components''
that are the essence of the controlled end item.
CCL Entries Where the U.S. Government Is Evaluating the Feasibility of
Enumerating ``Specially Designed'' ``Components''
In the following list, BIS identifies ECCNs containing a control on
a generic ``component'' ``specially designed'' for another item. The
list does not include any references to any explanatory notes that may
be germane to classifying an item against the ECCN. Thus, when
preparing your suggested positive list of components for BIS to
consider inserting into the ECCN, please read the whole ECCN for
context.
For purposes of this ANPRM, BIS is using the definition of
``component'' from the July 15 proposed rule, as follows:
``Component.'' This is an item that is useful only when used in
conjunction with an ``end item.'' Components are also commonly referred
to as assemblies. For purposes of this definition an assembly and a
component are the same. There are two types of ``components'': ``Major
components'' and ``minor components.'' A ``major component'' includes
any assembled element which forms a portion of an ``end item'' without
which the end item is inoperable. For example, for an automobile,
components will include the engine, transmission, and battery. If you
do not have all those items, the automobile will not function, or
function as effectively. A ``minor component'' includes any assembled
element of a ``major component.'' ``Components'' consist of `parts.' ''
References in the CCL to ``components'' include both ``major
components'' and ``minor components.''
List of ECCN ``Specially Designed'' Paragraphs
1. ECCN 1A004.a controls ``components'' ``specially designed'' for
``gas masks, filter canisters and decontamination equipment therefor,
designed or modified for defense against'' (1) ``biological agents
`adapted for use in war;' '' (2) ``radioactive materials `adapted for
use in war;' '' (3) ``chemical warfare (CW) agents;'' or (4) specific
``riot control agents'' listed in ECCN 1A004.a.4.
2. ECCN 1A004.c controls ``components'' ``specially designed'' for
``[d]etection systems, specially designed or modified for detection or
identification of'' (1) ``[b]iological agents `adapted for use in war;'
'' (2) ``[r]adioactive materials `adapted for use in war;' '' or (3)
``[c]hemical warfare (CW) agents.''
3. ECCN 1A006 controls ``components'' ``specially designed'' for
``remotely operated vehicles'' and ``disruptors'' ``specially designed
or modified for the disposal of improvised explosive devices.''
4. ECCN 1A008.b controls ``components'' ``specially designed'' for
``linear shaped cutting charges'' that have ``an explosive load greater
than 40 g/m'' and ``a width of 10 mm or more.''
5. ECCN 1B001.e controls ``components'' ``specially designed'' for
``[e]quipment for producing prepregs controlled by 1C010.e by the hot
melt method.''
6. ECCN 1B001.f controls ``components'' ``specially designed'' for
``[n]on-destructive inspection equipment specially designed for
`composite' materials'' as described in ECCN 1B001.f.1 and f.2.
7. ECCN 1B003.c controls ``components'' ``specially designed'' for
``[t]ools, dies, molds or fixtures, for `superplastic forming' or
`diffusion bonding' titanium, aluminum or their alloys, specially
designed for the manufacture of'' ``airframe or aerospace structures''
or ``aerospace engines.''
8. ECCN 2B003 controls ``components'' ``specially designed'' for `
``[n]umerically controlled' or manual machine tools * * * 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
(equivalent to ISO 1328 class 3).''
9. ECCN 3A001.c controls ``components'' ``specially designed'' for
``[a]coustic wave devices'' that have any of the characteristics
described in 3A001.c.1.a., c.1.b., c.1.c, c.2 or c.3.
[[Page 36422]]
10. ECCN 3A003 controls ``components'' ``specially designed'' for
``[s]pray cooling thermal management systems employing closed loop
fluid handling and reconditioning equipment in a sealed enclosure where
a dielectric fluid is sprayed onto electronic components using
specially designed spray nozzles that are designed to maintain
electronic components within their operating temperature range.''
11. ECCN 3A292.d controls ``components'' ``specially designed'' for
``[d]igital oscilloscopes and transient recorders, using analog-to-
digital conversion techniques, capable of storing transients by
sequentially sampling single-shot inputs at successive intervals of
less than 1 ns (greater than 1 giga-sample per second), digitizing to 8
bits or greater resolution and storing 256 or more samples.''
12. ECCN 3B001.a controls ``components'' ``specially designed'' for
``equipment designed for epitaxial growth as follows:'' (1)
``[e]quipment capable of producing a layer of any material other than
silicon with a thickness uniform to less than 2.5% across a
distance of 75 mm or more;'' (2) ``Metal Organic Chemical Vapor
Deposition (MOCVD) reactors specially designed for compound
semiconductor crystal growth by the chemical reaction between materials
controlled by 3C003 or 3C004;'' or (3) ``[m]olecular beam epitaxial
growth equipment using gas or solid sources.''
13. ECCN 3B001.b. controls ``components'' ``specially designed''
for ``[e]quipment designed for ion implantation and having any of the
following:'' (1) ``[a] beam energy (accelerating voltage) exceeding
1MeV;'' (2) ``[b]eing specially designed and optimized to operate at a
beam energy (accelerating voltage) of less than 2 keV;'' (3) ``[d]irect
write capability;'' or (4) ``beam energy of 65 keV or more and a beam
current of 45 mA or more for high energy oxygen implant into a heated
semiconductor material `substrate.' ''
14. ECCN 3B001.c. controls ``components'' ``specially designed''
for ``[a]nisotropic plasma dry etching equipment'' having all the
following: (1) ``[d]esigned or optimized to produce critical dimensions
of 65 nm or less;'' and (2) ``[w]ithin wafer non-uniformity equal to or
less than 10% 3[sigma] measured with an edge exclusion of 2 mm or
less.''
15. ECCN 3B001.e controls ``components'' ``specially designed'' for
``[a]utomatic loading multi-chamber central wafer handling systems''
having (1) ``[i]nterfaces for wafer input and output, to which more
than two functionally different `semiconductor process tools'
controlled by 3B001.a, 3B001.b, 3B001.c or 3B001.d are designed to be
connected;'' and (2) ``[d]esigned to form an integrated system in a
vacuum environment for `sequential multiple wafer processing.' ''
16. ECCN 3B001.f.1 controls ``components'' ``specially designed''
for ``[l]ithography equipment'' that ``[a]lign[s] and expose[s] step
and repeat (direct step on wafer) or step and scan (scanner) equipment
for wafer processing using photo-optical or X-ray methods and having''
any of the following (a) ``light source wavelength shorter than 245
nm;'' or (b) ``[c]apable of producing a pattern with a `Minimum
Resolvable Feature size' (MRF) of 95 nm or less.''
17. ECCN 3B001.f.2 controls ``components'' ``specially designed''
for ``[i]mprint lithography equipment capable of production features of
95 nm or less'' described in ECCN 3B001.f.2.
18. ECCN 3B001.f.3 controls ``components'' ``specially designed''
for ``[e]quipment specially designed for mask making or semiconductor
device processing using direct writing methods, having'' all the
characteristics described in ECCN 3B001.f.3.a. and any of the
characteristics described in .b.
19. ECCN 3B002 controls ``components'' ``specially designed'' for
``[t]est equipment specially designed for testing finished or
unfinished semiconductor devices as follows * * *'' (1) ``[f]or testing
S-parameters of transistor devices at frequencies exceeding 31.8 GHz;''
or (2) ``[f]or testing microwave integrated circuits controlled by
3A001.b.2.''
20. ECCN 4A003.c controls `` `[e]lectronic assemblies' specially
designed or modified to be capable of enhancing performance by
aggregation of processors so that the `APP' of the aggregation exceeds
the limit in 4A003.b.''
21. ECCN 4A003.e controls ``components'' ``specially designed'' for
``[e]quipment performing analog-to-digital conversions exceeding the
limits in 3A001.a.5.''
22. ECCN 4A003.g controls ``components'' ``specially designed'' for
``[e]quipment specially designed for aggregating the performance of
`digital computers' by providing external interconnections which allow
communications at unidirectonal data rates exceeding 2.0 Gbyte/s per
link.''
23. ECCN 4A004 controls ``components'' ``specially designed'' for
(a) ``[s]ystolic array computers;'' (b) ``[n]eural computers;'' and (c)
``[o]ptical computers.''
24. ECCN 5A001.b controls ``components'' ``specially designed'' for
``telecommunication systems and equipment, having any of
``characteristics, functions or features'' described in ECCN 5A001.b.1,
b.2, b.3, b.4, b.5, or b.6.
25. ECCN 5A001.e controls ``components'' ``specially designed'' for
radio direction finding equipment operating at frequencies above 30 MHz
and having (1) `` `instantaneous bandwidth' of 10 MHz or more;'' and
(2) ``capable of finding a Line Of Bearing (LOB) to non-cooperating
radio transmitters with a signal duration of less than 1 ms.''
26. ECCN 5A001.f controls ``components'' ``specially designed'' for
``[j]amming equipment specially designed or modified to intentionally
and selectively interfere with, deny, inhibit, degrade or seduce mobile
telecommunication services and'' (1) ``simulate the functions of Radio
Access Network (RAN) equipment;'' (2) ``detect and exploit specific
characteristics of the mobile telecommunications protocol employed
(e.g., GSM);'' or (3) ``exploit specific characteristics of the mobile
telecommunications protocol employed (e.g., GSM).''
27. ECCN 5B001.a controls ``components'' ``specially designed'' for
``equipment * * * specially designed for the `development',
`production' or `use' of equipment, functions or features, controlled
by 5A001.''
28. ECCN 5B001.b controls ``components'' ``specially designed'' for
``equipment * * * specially designed for the `development' of any of
the following telecommunication transmission or switching equipment''
``employing a `laser' '' and (a) having ``a transmission wavelength
exceeding 1750 nm;'' (b) ``performing `optical amplification' using
Praseodymium-Doped Fluoride Fiber Amplifiers (PDFFA);'' (c) ``employing
coherent optical transmission or coherent optical detection techniques
(also called optical heterodyne or homodyne techniques);'' or (d)
``employing analog techniques and having a bandwidth exceeding 2.5
GHz.''
29. ECCN 5B001.b also controls ``components'' ``specially
designed'' for ``equipment * * * specially designed for the
`development' of any of the following telecommunication transmission or
switching equipment'' (a) ``radio equipment employing Quadrature-
Amplitude-Modulation (QAM) techniques above level 256;'' or (b)
``equipment employing `common channel signaling' operating in non-
associated mode of operation.''
[[Page 36423]]
30. ECCN 5A002.a controls ``components'' ``specially designed'' for
``systems, equipment, application specific `electronic assemblies',
modules and integrated circuits for `information security' '' if they
were also ``specially designed for `information security.' ''
31. ECCN 6A001.a.1 controls ``components'' ``specially designed''
for ``marine acoustic systems'' that are within the scope of ECCN
6A001.a.1.a, a.1.b, a.1.c., a.1.d, or a.1.e.
32. ECCN 6A001.a.2 controls ``components'' ``specially designed''
for ``passive systems'' described in 6A001.a.2.a, a.2.b, a.2.c., a.2.d,
a.2.e, or a.2.f.
33. ECCN 6A004.a.1 controls ``components'' `` `specially designed'
for `deformable mirrors' having either continuous or multi-element
surfaces * * * capable of dynamically repositioning portions of the
surface of the mirror at rates exceeding 100 Hz.''
34. ECCN 6A005.e.2. controls ``components'' (optical mirrors,
transmissive or partially transmissive optical or electro-optical
components) ``specially designed'' for use with controlled lasers.
35. ECCN 6A203.a controls ``components'' ``specially designed'' for
``mechanical rotating mirror cameras'' that are (1) ``framing cameras
with recording rates greater than 225,000 frames per second;'' or (2)
``streak cameras with writing speeds greater than 0.5 mm per
microsecond.''
36. ECCN 6A998.a controls ``components'' ``specially designed'' for
``airborne radar equipment, n.e.s.''
37. ECCN 6A998.b controls ``components'' ``specially designed for
`` `space-qualified' `laser' radar or Light Detection and Ranging
(LIDAR) equipment specially designed for surveying or for
meteorological observation.''
38. ECCN 7A008 controls ``components'' ``specially designed'' for
``underwater sonar navigation systems using Doppler velocity or
correlation velocity logs integrated with a heading source and having a
positioning accuracy of equal to or less (better) than 3% of distance
traveled `Circular Error Probable' (`CEP').''
39. ECCN 8A002.a controls ``components'' ``specially designed'' for
``submersible vehicles and designed to operate at depths exceeding
1,000 m'' that have (1) ``pressure housings or pressure hulls with a
maximum inside chamber diameter exceeding 1.5 m,'' (2) ``direct current
propulsion motors or thrusters,'' (3) ``umbilical cables, and
connectors therefor, using optical fiber and having synthetic strength
members,'' and (4) ``components manufactured from material specified by
ECCN 8C001.''
40. ECCN 9A002 controls ``components'' ``specially designed'' for
`` `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%.''
41. ECCN 9A003.a controls ``components'' and ``assemblies'' that
``incorporat[e] any of the `technologies' controlled by 9E003.a,
9E003.h or 9E003.i'' and were ``specially designed'' for gas turbine
engines ``controlled by ECCN 9A001.''
42. ECCN 9A003.b controls ``components'' and ``assemblies'' that
``incorporat[e] any of the `technologies' controlled by 9E003.a,
9E003.h or 9E003.i'' and ``whose design or production origins are
either countries in Country Group D:1 or unknown to the manufacturer.''
Comments should be submitted to BIS as described in the ADDRESSES
section of this notice by September 17, 2012.
Dated: June 6, 2012.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2012-14473 Filed 6-15-12; 11:15 am]
BILLING CODE 3510-33-P