[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Proposed Rules]
[Pages 70945-70955]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28396]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 774

[Docket No. 120330233-2160-01]
RIN 0694-AF64


Revisions to the Export Administration Regulations (EAR): Control 
of Military Electronic Equipment and Related Items the President 
Determines No Longer Warrant Control Under the United States Munitions 
List (USML)

AGENCY: Bureau of Industry and Security, Department of Commerce.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule describes how certain articles the 
President determines no longer warrant control under the United States 
Munitions List (USML) would be controlled on the Commerce Control List 
(CCL). Those articles and the USML categories under which they are 
currently controlled are: Military electronics (Category XI) and 
certain cryogenic and superconductive equipment designed for 
installation in military vehicles and that can operate while in motion 
(Categories VI, VII, VIII, and XV). Military electronics and related 
items would be controlled by new Export Control Classification Numbers 
(ECCNs) 3A611, 3B611, 3D611, and 3E611 proposed by this rule. Cryogenic 
and superconducting equipment for military vehicles and related items 
would be controlled under new ECCNs 9A620, 9B620, 9D620, and 9E620. 
This proposed rule also would amend ECCNs 7A001 and 7A101 to apply the 
missile technology reason for control only to items in those ECCNs on 
the Missile Technology Control Regime (MTCR) Annex.
    This is one in a planned series of proposed rules describing how 
various types of articles the President determines, as part of the 
Administration's Export Control Reform Initiative, no longer warrant 
USML control, would be controlled on the CCL and by the EAR. This 
proposed rule is being published in conjunction with a proposed rule 
from the Department of State, Directorate of Defense Trade Controls, 
which would amend the list of articles controlled by USML Category XI.

DATES: Comments must be received by January 28, 2013.

ADDRESSES: You may submit comments by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
The identification number for this rulemaking is BIS-2012-0045.
     By email directly to publiccomments@bis.doc.gov. Include 
RIN 0694-AF64 in the subject line.
     By mail or delivery to Regulatory Policy Division, Bureau 
of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th 
Street and Pennsylvania Avenue NW., Washington, DC 20230. Refer to RIN 
0694-AF64.

FOR FURTHER INFORMATION CONTACT: Brian Baker, Director, Electronics and 
Materials Division, Office of National Security and Technology Transfer 
Controls, (202) 482-5534, brian.baker@bis.doc.gov.

SUPPLEMENTARY INFORMATION: 

Background

    On July 15, 2011, as part of the Administration's ongoing Export 
Control Reform Initiative, BIS published a proposed rule (76 FR 41958) 
(``the July 15 proposed rule'') that set forth a framework for how 
articles the President determines, in accordance with section 38(f) of 
the Arms Export Control Act (AECA) (22 U.S.C. 2778(f)), would no longer 
warrant control on the United States Munitions List (USML) instead 
would be controlled on the Commerce Control List (CCL).
    BIS also published a proposed rule (76 FR 68675, November 7, 2011), 
primarily dealing with aircraft and related items (``the November 7 
proposed rule'') that made additions and modifications to some of the 
provisions of the July 15 proposed rule.
    Following the structure of the July 15 and November 7 proposed 
rules, this proposed rule describes BIS's proposal for controlling 
under the EAR's CCL certain military electronic equipment and related 
articles now controlled by the ITAR's USML Category XI. This proposed 
rule also would specifically implement in U.S. export control 
regulations Category ML20 Munitions List of the Wassenaar Arrangement 
on Export Controls for Conventional Arms and Dual-Use Goods and 
Technologies (Wassenaar Arrangement Munitions List or WAML), which 
pertains to certain cryogenic and superconducting equipment. These 
items are currently controlled by ``catch all'' provisions of the 
ITAR's USML Categories VI, VII, VIII, and XV. Finally, this proposed 
rule would correct two ECCNs in CCL Category 7 to apply the missile 
technology reason for control only to items that are on the MTCR Annex.
    The changes described in this proposed rule and the State 
Department's proposed amendment to Category XI of the USML are based on 
a review of Category XI by the Defense Department, which worked with 
the Departments of State and Commerce in preparing the proposed 
amendments. The review was focused on identifying the types of articles 
that are now controlled by USML Category XI that are either (i) 
inherently military and otherwise warrant control on the USML or (ii) 
if it is of a type common to non-military electronic equipment 
applications, possess parameters or characteristics that provide a 
critical military or intelligence advantage to the United States, and 
that are almost exclusively available from the United States. If an 
article satisfied one or both of those criteria, the article remained 
on the USML. If an article did not satisfy either criterion but was 
nonetheless a type of article that is, as a result of differences in 
form and fit, ``specially designed'' for military applications or for 
the intelligence applications described in proposed ECCN 3A611.b, it 
was identified in the new ECCNs proposed in this notice. The licensing

[[Page 70946]]

requirements and other EAR-specific controls for such items described 
in this notice would enhance national security by permitting the U.S. 
Government to focus its resources on controlling, monitoring, 
investigating, analyzing, and, if need be, prohibiting exports and 
reexports of more significant items to destinations, end uses, and end 
users of greater concern than NATO allies and other multi-regime 
partners.
    The Defense Department also reviewed WAML Category ML20, which 
describes certain cryogenic and superconducting items. These items are 
not positively listed on the USML, but are nonetheless controlled as 
non-specific parts, components, accessories of and attachments to items 
controlled under USML Categories VI, VII, VIII and XV. The Department 
of Defense concluded that the Category ML20 items are not in production 
and, even if they were, they would not necessarily provide the United 
States with a significant military or intelligence advantage warranting 
control under the ITAR. In addition, the Departments of Commerce and 
State have not identified evidence of trade in such items. Despite the 
lack of evidence of production or trade, this proposed rule would list 
WAML Category ML20 items on the CCL. Such listing is necessary because 
several State Department proposed rules would, in accordance with the 
Administration's Export Control Reform Initiative, remove non-specific 
parts, components, accessories, and attachments from the USML, and, 
unless added to the Commerce Control List, WAML Category ML20 items 
would no longer be on any U.S. export control list.
    Pursuant to section 38(f) of the AECA, the President is obligated 
to review the USML ``to determine what items, if any, no longer warrant 
export controls under'' the AECA. The President must report the results 
of the review to Congress and wait 30 days before removing any such 
items from the USML. The report must ``describe the nature of any 
controls to be imposed on that item under any other provision of law.'' 
22 U.S.C. 2778(f)(1).
    In the July 15 proposed rule, BIS proposed creating a series of new 
ECCNs to control items that would be removed from the USML and items 
currently on the CCL that are also on the Wassenaar Arrangement 
Munitions List. The proposed rule referred to this series as the ``600 
series'' because the third character in each of the new ECCNs would be 
a ``6.'' The first two characters of the 600 series ECCNs serve the 
same function as any other ECCN as described in Sec.  738.2 of the EAR. 
The first character is a digit in the range 0 through 9 that identifies 
the Category on the CCL in which the ECCN is located. The second 
character is a letter in the range A through E that identifies the 
product group within a CCL Category. In the 600 series, the third 
character is the number 6. With few exceptions, the final two 
characters identify the WAML category that covers items that are the 
same or similar to items in a particular 600 series ECCN. The ECCNs 
that would be created or revised by this proposed rule are described 
more fully below.
    BIS will publish additional Federal Register notices containing 
proposed amendments to the CCL that will describe proposed controls for 
additional categories of articles the President determines no longer 
warrant control under the USML. The State Department will publish 
concurrently proposed amendments to the USML that correspond to the BIS 
notices. BIS will also publish proposed rules to further align the CCL 
with the WAML and the Missile Technology Control Regime Equipment, 
Software and Technology Annex.
    The revisions proposed in this rule are 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.

Need To Avoid Ambiguous Classifications or Inadvertent License 
Requirements

    BIS recognizes that because electronics frequently are installed in 
some other commodity, they are particularly susceptible to ambiguous 
classification or classification under multiple entries on the CCL. For 
example, a given electronic device might also be viewed as a part for 
an aircraft, radar, computer, laser, or some other article. How the 
device is viewed might affect the classification on the CCL, which 
could, in turn affect license requirements or licensing policy. BIS's 
intent is that the new ECCNs in this proposed rule would not increase 
the number of destinations to which a license is required, alter the 
policy under which license application are reviewed or create any 
apparent instances of an item that is subject to the EAR being covered 
by more than one ECCN. Parties who believe that they can identify 
instances where the effect of the proposed rule would be contrary to 
this intent are encouraged to point out those instances in a public 
comment on this proposed rule.

Detailed Description of Changes Proposed by This Rule

New 3X611 Series of ECCNs

    Proposed new ECCNs 3A611, 3B611, 3D611, and 3E611 would control 
military electronics and related test, inspection, and production 
equipment and software and technology currently controlled by USML 
Category XI that the President determines no longer warrant control on 
the USML. To the extent that they are not enumerated on the proposed 
revisions to Category XI, these proposed new ECCNs would also control 
computers, telecommunications equipment, radar ``specially designed'' 
for military use, parts, components, accessories, and attachments 
``specially designed'' therefor, and related software and technology. 
This structure aligns with the current USML Category XI and ML11, which 
include within the scope of ``electronics'' such items as computers, 
telecommunications equipment, and radar. BIS believes that it will be 
easier to include such items within the scope of the proposed new 600 
series that corresponds to USML Category XI rather than creating new 
600 series ECCNs in CCL Categories 4 (computers), 5 
(telecommunications), and 6 (radar). BIS, however, proposes including 
cross references in CCL Categories 4, 5, and 6 to alert readers that 
ECCN 3A611 may control such items.
    The proposed 3X611 series, except for 3X611.y, would be controlled 
for national security (NS Column 1 or NS1), regional stability (RS 
Column 1 or RS1), antiterrorism (AT Column 1 or AT1) and United Nations 
embargo (UN) reasons. ECCNs 3X611.y would only be controlled for AT1 
reasons (ECCN 3B611 would not have a .y paragraph). Each ECCN in this 
3X611 series is described more specifically below.

New ECCN 3A611

    Proposed ECCN 3A611 paragraph .a would control electronic 
``equipment,'' ``end items,'' and ``systems'' ``specially designed'' 
for military use that are not enumerated in either a USML category or 
another ``600 series'' ECCN.
    Paragraph .b would be reserved. The corresponding USML Category is 
XI(b), which will continue to be a catch-all control and will contain 
the following clarified version of the current Category XI(b): 
``Electronic systems or equipment ``specially designed'' for the 
collection, surveillance, monitoring, or exploitation of the 
electromagnetic spectrum (regardless of transmission medium), for 
intelligence or security purposes or for counteracting such 
activities.'' State's proposed revision to Category XI(b) will

[[Page 70947]]

contain references to certain types of equipment and systems that are 
per se within the scope of the revised Category XI(b). BIS encourages 
the public to comment on whether this approach creates any confusion 
regarding the jurisdictional status of any items that are commonly used 
in normal commercial, non-intelligence, or non-security use, including 
those controlled under ECCN 5A980 (``Devices primarily useful for the 
surreptitious interception of wire, oral, or electronic 
communications.'')
    Paragraph .c would control microwave monolithic integrated circuit 
(MMIC) power amplifiers based in general on four parameters: Rated 
operating frequency; peak saturated power output, fractional bandwidth 
and power added efficiency. This paragraph covers MMIC power amplifiers 
with rated operating frequencies ranging from 2.7 GHz through 75 GHz in 
six subparagraphs ranging from the lowest to the highest operating 
frequency ranges, with a gap for MMIC power amplifiers rated for an 
operation frequency range of 31.8 GHz up to and including 37.5 GHz, 
which are covered by ECCN 3A001.b.2.d. The threshold values of the 
other three parameters decline as the operating frequency range 
increases. For the lowest operating frequency range (2.7 GHz through 
3.2 GHz), the peak saturated power output parameter is one of three 
alternative power measurements that define the threshold for inclusion 
within paragraph .c. The other two are: (1) Average power output and 
fractional bandwidth; and (2) pulse power output and (3) duty cycle.
    Paragraph .d would control discrete radio frequency transistors in 
five graduated steps over the operating frequency range of 2.7 GHz 
through 75 GHz, with a gap for transistors with an operating frequency 
range exceeding 31.8 GHz up to and including 37.5 GHz, which are 
covered by ECCN 3A001.b.3.c. This paragraph uses the same parameters 
that as are used to identify MMIC power amplifiers in paragraph .c and, 
as with MMIC power amplifiers, the threshold values for the other 
parameters decline as the operating frequency increases.
    Paragraph .e would control high frequency (HF) surface wave radar 
capable of ``tracking'' surface targets on oceans.
    Paragraph .f would control microelectronic devices and printed 
circuit boards that are certified to be a ``trusted device'' from a 
defense microelectronics activity (DMEA) accredited supplier.
    Each of these new ECCNs describes electronic items that BIS 
understands to be inherently military or otherwise exclusively designed 
and manufactured for military use. BIS encourages the public to test 
this understanding and identify items, if any, that fall within the 
scope of these new ECCNs that are in normal commercial use. If so, the 
comments should provide details on such commercial applications. In 
particular, BIS asks the public to comment on whether the controls in 
proposed new paragraphs 3A611.c (MMICs) and 3A611.d (discrete radio 
frequency transistors) are sufficiently limited to those not now or 
likely to be in normal commercial use by U.S. or foreign 
telecommunications or other non-military applications. The basis for 
this request is that the current USML Category XI(c) does not now 
control any electronic parts, components, accessories, attachments, or 
associated equipment ``in normal commercial use'' even if they were 
``specifically designed or modified for use with the equipment'' 
controlled in USML categories XI(a) or XI(b), which are, in essence, 
electronic equipment ``specifically designed, modified, or configured 
for military application.'' One of the goals of the reform effort is to 
ensure that items that are currently EAR controlled are not 
unintentionally made ITAR or ``600 series'' controlled, through the 
creation of more positive lists. This objective, however, does not 
preclude the possibility of the Administration intentionally making 
ITAR or ``600 series'' controlled items that are today subject to the 
other parts of the EAR.
    Paragraphs .g through .w would be reserved.
    Paragraph .x would control ``parts,'' ``components,'' 
``accessories'' and ``attachments'' that are ``specially designed'' for 
a commodity controlled by ECCN 3A611 or for an article controlled by 
USML Category XI, and not enumerated in a USML Category.
    A note is proposed for ECCN 3A611.x clarifying that electronic 
parts, components, accessories, and attachments that are ``specially 
designed'' for military use that are not enumerated in any USML 
Category but are within the scope of a ``600 series'' ECCN are 
controlled by that ``600 series'' ECCN. Thus, for example, electronic 
components not enumerated on the USML that are ``specially designed'' 
for a military aircraft controlled by USML Category VIII or ECCN 9A610 
would be controlled by ECCN 9A610.x. Similarly, electronic components 
not enumerated on the USML that are ``specially designed'' for a 
military vehicle controlled by USML Category VII or ECCN 0A606 would be 
controlled by ECCN 0A606.x. The purpose of this note and the 
limitations in ECCN 3A611.x is to prevent any overlap of controls over 
electronics specially designed for particular types of items described 
in other 600 series ECCNs (which would not be controlled by 3A611.x) 
and all other electronic parts, components, accessories, and 
attachments specially designed for military electronics that are not 
enumerated on the USML (which would be controlled by ECCN 3A611.x).
    A second note proposed for ECCN 3A611.x specifies that ECCN 3A611.x 
controls parts and components ``specially designed'' for underwater 
sensors or projectors controlled by proposed USML Category XI(c)(12) 
containing single-crystal lead magnesium niobate lead titanate (PMN-PT) 
based piezoelectrics.
    ECCN 3A611 also would contain a paragraph .y for items of little or 
no military significance that would be controlled only for AT1 reasons.

New ECCN 3B611

    Proposed ECCN 3B611 would impose controls on test, inspection, and 
production end items and equipment ``specially designed'' for items 
controlled in ECCN 3A611 or USML Category XI that are not enumerated in 
USML XI or controlled by a ``600 series'' ECCN under paragraph .a and 
for ``parts,'' ``components,'' ``accessories'' and ``attachments'' that 
are ``specially designed'' for such test, inspection and production end 
items and equipment that are not enumerated on the USML or controlled 
by another ``600 series'' ECCN under paragraph .x.

New ECCN 3D611

    Proposed ECCN 3D611 would impose controls on software ``specially 
designed'' for the ``development,'' ``production,'' operation, or 
maintenance of commodities controlled by 3A611 or 3B611 other than 
software for 3A611.y or 3B611.y.

New ECCN 3E611

    Proposed ECCN 3E611 would impose controls on ``technology'' 
``required'' for the ``development,'' ``production,'' operation, 
installation, maintenance, repair, or overhaul of commodities or 
software controlled by ECCN 3A611, 3B611 or 3D611 (except technology 
for 3A611.y, 3B611.y and 3D611.y), which would be controlled for AT1 
reasons only.

Revisions to ECCNs 3A101 and 4A003

    The analog-to-digital converters described in the proposed revision 
to

[[Page 70948]]

3A101.a would become subject to the EAR. Currently ECCN 3A101 is refers 
readers to the ITAR for analog-to-digital converters described in 
paragraph .a. These converters are and would continue to be controlled 
for MT reasons because they are identified on the Missile Technology 
Control Regime Annex. Placing such items in this ECCN rather than the 
new 3A611 will make it easier to identify, classify, and control such 
items. Consequently, this proposed rule adds analog-to-digital 
converters useable in ``missiles'' and having any of the 
characteristics described in proposed 3A101.a.1, a.2, a.3, or a.4.
    In addition, adding the new text in 3A101.a.4 for electrical input 
type analog-to-digital converter printed circuit boards or modules 
requires that this proposed rule amend ECCN 4A003 to add an MT control 
for items classified under ECCN 4A003.e when meeting or exceeding the 
parameters described in ECCN 3A101.a.4. This amendment is necessary as 
the MT items in new paragraph 3A101.a.4 are a subset of the items in 
paragraph 4A003.e.

Revisions to ECCN 5A001

    This proposed rule revises the Related Controls paragraph in ECCN 
5A001 to provide more detailed references to telecommunications 
equipment subject to the ITAR under USML Categories XI and XV, while 
maintaining references to ECCNs 5A101, 5A980, and 5A991.

New Cross Reference ECCNs

    Three new cross reference ECCNs would be created to alert readers 
that computers, telecommunications equipment, and radar--and parts, 
components, accessories and attachments ``specially designed'' 
therefor--are controlled by ECCN 3A611 if they are specially designed 
for military use. These cross references are intended to reduce the 
likelihood of confusion that might otherwise arise because computers, 
telecommunications equipment, and radar generally are in CCL Categories 
4, 5 (Part 1) and 6, respectively. The new cross reference ECCNs and 
the Categories in which they would appear are: 4A611, Category 4; 
5A611, Category 5, Part 1; and 6A611, Category 6.

Corrections to ECCNs 7A006 and 7D101

    This proposed rule would correct the reasons for control paragraph 
of ECCN 7A006 to state that the missile technology reason for control 
applies to those items covered by ECCN 7A006 that also meet or exceed 
the parameters of ECCN 7A106. ECCN 7A006 now applies the missile 
technology reason for control to a range of airborne altimeters that 
extends beyond the range of altimeters that are on the MTCR annex. 
BIS's practice is to apply the missile technology reason for control 
only to items on that annex. This proposed change would make ECCN 7A006 
conform to that practice. Similarly, this proposed rule would add the 
phrase ``for missile technology reasons'' to the heading of ECCN 7D101. 
ECCN 7D101 applies the missile technology reason for control to 
software for a range of commodity ECCNs. Not all of those commodities 
are controlled for missile technology reasons. The text proposed here 
would limit the scope of missile technology controls in ECCN 7A106 to 
commodities on the MTCR Annex and that of ECCN 7D101 to software for 
commodities on the MTCR Annex.

New 9X620 Series of ECCNs

    Proposed ECCNs 9A620, 9B620, 9D620, and 9E620 would apply NS1, RS1, 
AT1 and UN reasons for control to cryogenic and superconducting 
equipment described in Category ML20 of the Wassenaar Arrangement 
Munitions List and to test, inspection and production equipment, 
software and technology therefor. Category ML20 covers cryogenic and 
superconducting equipment that is ``specially designed'' to be 
installed in a vehicle for military ground, marine, airborne, or space 
applications. BIS believes that such equipment is used in experimental 
or developmental vehicle propulsion systems that employ superconducting 
components and cryogenic equipment to cool those components to 
temperatures at which they superconduct. BIS has not identified 
evidence of trade in such items. To the extent that exports do exist, 
the items would be subject to the license requirements of the USML 
Category that controls the vehicle into which the equipment would be 
installed, i.e., Category VI, surface vessels; Category VII, ground 
vehicles; Category VIII, aircraft; and Category XV, spacecraft. BIS 
proposes to place this cryogenic and superconducting equipment, its 
related test, inspection and production equipment, and its related 
software and technology into a single set of 600 series ECCNs ending 
with the digits ``20'' to correspond to the relevant Wassenaar 
Arrangement Munitions List Category. This approach would further the 
administration's Export Control Reform Initiative goal of aligning U.S. 
controls with multilateral controls wherever feasible. Each ECCN in 
this series is described more specifically below.

New ECCN 9A620

    Paragraph a. would control equipment ``specially designed'' to be 
installed in a vehicle for military ground, marine, airborne, or space 
applications, capable of operating while in motion and of producing or 
maintaining temperatures below 103 K (-170 [deg]C). Paragraph b. would 
control ``superconductive'' electrical equipment (rotating machinery 
and transformers) ``specially designed'' to be installed in a vehicle 
for military ground, marine, airborne, or space applications, and 
capable of operating while in motion. Paragraph x. would control parts, 
components, accessories and attachments that were ``specially 
designed'' for a commodity controlled by ECCN 9A620.

New ECCN 9B620

    Proposed ECCN 9B620 would control test, inspection, and production 
end items and equipment ``specially designed'' for items controlled in 
proposed ECCN 9A620.

New ECCN 9D620

    Proposed ECCN 9D620 would control software ``specially designed'' 
for the ``development,'' ``production,'' operation, or maintenance of 
commodities controlled by ECCNs 9A620 or 9B620.

New ECCN 9E620

    Proposed ECCN 9E620 would control a ``technology'' ``required'' for 
the ``development,'' ``production,'' operation, installation, 
maintenance, repair, or overhaul of commodities or software controlled 
by ECCNs 9A620, 9B620 or 9D620.

Proposed New ECCNs and License Exception STA

    One of the objectives of the Export Control Reform effort is to 
align the jurisdictional status of technology and software with the 
items to which they relate. Thus, for example, all technical data and 
software directly related to a defense article, i.e., an item 
identified on the ITAR's USML, will also be ITAR controlled. All 
technology, including technical data, and software for the production, 
development, or other aspects of an item on the EAR's CCL will be 
subject to the EAR. Nevertheless, some types of software and technology 
are more significant than the commodities that are developed or 
produced from or that utilize such software or technology. In 
recognition of that fact, this proposed rule would preclude use of 
License Exception STA for software and technology (other than build-to-
print technology) for (1) Helix traveling wave tubes (TWTs); (2)

[[Page 70949]]

Transmit/receive or transmit modules; (3) Microwave monolithic 
integrated circuits (MMIC)s; and (4) Discrete radio frequency 
transistors that would be controlled by ECCN 3A611.

Request for Comments

    All comments must be in writing and submitted via one or more of 
the methods listed under the ADDRESSES caption to this notice. 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.

Effects of This Proposed Rule

Use of License Exceptions
    Military electronic equipment, certain cryogenic and 
superconducting equipment, and parts, components, and test, inspection, 
and production equipment therefor currently on the USML that this rule 
would place on the CCL would become eligible for several license 
exceptions, including STA, which would be available for exports to 
certain government agencies of NATO and other multi-regime close 
allies. The exchange of information and statements required under STA 
is substantially less burdensome than are the license application 
requirements currently required under the ITAR, as discussed in more 
detail in the ``Regulatory Requirements'' section of this proposed 
rule. This proposed rule does not move any items currently on the CCL 
to a 600 series ECCN; therefore, it would not narrow the scope of 
license exception eligibility for any items currently on the CCL.
Alignment With the Wassenaar Arrangement Munitions List
    The Administration has stated since the beginning of the Export 
Control Reform Initiative that the reforms will be consistent with the 
obligations of the United States to the multilateral export control 
regimes. Accordingly, the Administration will, in this and subsequent 
proposed rules, exercise its national discretion to implement, clarify, 
and, to the extent feasible, align its controls with those of the 
regimes. This proposed rule would maintain the alignment that exists 
between the USML, in which military electronics are controlled under 
Category XI, and the WAML, in which military electronic equipment is 
controlled under ML11 and would be controlled by ECCN 3A611 in this 
proposed rule. Similarly, 3B611 aligns with WAML 18, which, inter alia, 
controls ``specially designed or modified `production' equipment for 
the `production' of products specified by the Munitions List, and 
specially designed components therefor.''
    This proposed rule would align cryogenic and superconducting 
equipment currently controlled in Categories VI, VII, VIII, and XV with 
Wassenaar Arrangement Munitions List Category ML20 by controlling them 
under ECCN 9A620. As with other 600 series ECCNs, this rule follows the 
existing CCL numbering pattern for test, inspection and production 
equipment (3B611 and 9B620), software (3D611 and 9D620) and technology 
(3E611 and 9E620) rather than strictly following the Wassenaar 
Arrangement Munitions List pattern of placing production equipment, 
software and technology for munitions list items in categories ML18, 
ML21 and ML22, respectively. BIS believes that including the ECCNs for 
test, inspection and production equipment, software, and technology in 
the same category as the items to which they relate results in an 
easier to understand CCL than would separate categories.
    Although the Export Administration Act expired on August 20, 2001, 
the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 
2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 
2012, 77 FR 49699 (August 16, 2012), has continued the Export 
Administration Regulations in effect under the International Emergency 
Economic Powers Act. BIS continues to carry out the provisions of the 
Export Administration Act, as appropriate and to the extent permitted 
by law, pursuant to Executive Order 13222.

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 rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget (OMB).
    2. Notwithstanding any other provision of law, no person is 
required to respond to, nor is 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 OMB 
control number. This proposed rule would affect two approved 
collections: Simplified Network Application Processing System (control 
number 0694-0088), which includes, among other things, license 
applications, and License Exceptions and Exclusions (0694-0137).
    As stated in the proposed rule published at 76 FR 41958 (July 15, 
2011), BIS believed that the combined effect of all rules to be 
published adding items to the EAR that would be removed from the ITAR 
as part of the administration's Export Control Reform Initiative would 
increase the number of license applications to be submitted by 
approximately 16,000 annually. As the review of the USML has 
progressed, the interagency group has gained more specific information 
about the number of items that would come under BIS jurisdiction 
whether those items would be eligible for export under license 
exception. As of June 21, 2012, BIS believes the increase in license 
applications may be 30,000 annually, resulting in an increase in burden 
hours of 8,500 (30,000 transactions at 17 minutes each) under control 
number 0694-0088.
    Military electronic equipment, certain cryogenic and 
superconducting equipment, related test, inspection and production 
equipment, ``parts,'' ``components,'' ``accessories'' and 
``attachments,'' ``software'' and ``technology'' formerly on the USML 
would become eligible for License Exception STA under this rule. BIS 
believes that the increased use of License Exception STA resulting from 
the combined effect of all rules to be published adding items to the 
EAR that would be removed from the ITAR as part of the administration's 
Export Control Reform Initiative would increase the burden associated 
with control number 0694-0137 by about 23,858 hours (20,450 
transactions @ 1 hour and 10 minutes each).
    BIS expects that this increase in burden would be more than offset 
by a reduction in burden hours associated with approved collections 
related to the ITAR. The largest impact of the proposed rule would 
likely apply to exporters of replacement parts for military electronic 
equipment that has been approved under the ITAR for export to allies 
and regime partners. Because, with few exceptions, the ITAR

[[Page 70950]]

allows exemptions from license requirements only for exports to Canada, 
most exports of such parts, even when destined to NATO and other close 
allies, require specific State Department authorization. Under the EAR, 
as proposed in this notice, such parts would become eligible for export 
to NATO and other multi-regime allies under License Exception STA. Use 
of License Exception STA imposes a paperwork and compliance burden 
because, for example, exporters must furnish information about the item 
being exported to the consignee and obtain from the consignee an 
acknowledgement and commitment to comply with the EAR. However, the 
Administration understands that complying with the burdens of STA is 
likely less burdensome than applying for licenses. For example, under 
License Exception STA, a single consignee statement can apply to an 
unlimited number of products, need not have an expiration date, and 
need not be submitted to the government in advance for approval. 
Suppliers with regular customers can tailor a single statement and 
assurance to match their business relationship rather than applying 
repeatedly for licenses with every purchase order to supply reliable 
customers in countries that are close allies or members of export 
control regimes or both.
    Even in situations in which a license would be required under the 
EAR, the burden is likely to be reduced compared to the license 
requirement of the ITAR. In particular, license applications for 
exports of technology controlled by ECCN 3E611 are likely to be less 
complex and burdensome than the authorizations required to export ITAR-
controlled technology, i.e., Manufacturing License Agreements and 
Technical Assistance Agreements.
    3. This rule does not contain policies with Federalism implications 
as that term is defined under E.O. 13132.
    4. The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice and comment 
rulemaking requirements under the Administrative Procedure Act (5 
U.S.C. 553) or any other statute, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Under section 605(b) of the RFA, however, if 
the head of an agency certifies that a rule will not have a significant 
impact on a substantial number of small entities, the statute does not 
require the agency to prepare a regulatory flexibility analysis. 
Pursuant to section 605(b), the Chief Counsel for Regulation, 
Department of Commerce, submitted a memorandum to the Chief Counsel for 
Advocacy, Small Business Administration, certifying that this proposed 
rule will not have a significant impact on a substantial number of 
small entities.

Number of Small Entities

    The Bureau of Industry and Security (BIS) does not collect data on 
the size of entities that apply for and are issued export licenses. 
Although BIS is unable to estimate the exact number of small entities 
that would be affected by this rule, it acknowledges that this rule 
would affect some unknown number.

Economic Impact

    This proposed rule is part of the Administration's Export Control 
Reform Initiative. Under that initiative, the United States Munitions 
List (22 CFR part 121) (USML) would be revised to be a ``positive'' 
list, i.e., a list that does not use generic, catch-all controls on any 
part, component, accessory, attachment, or end item that was in any way 
specifically modified for a defense article, regardless of the 
article's military or intelligence significance or non-military 
applications. At the same time, articles that are determined to no 
longer warrant control on the USML would become controlled on the 
Commerce Control List (CCL). Such items, along with certain military 
items that currently are on the CCL, will be identified in specific 
Export Control Classification Numbers (ECCNs) known as the ``600 
series'' ECCNs. In practice, the greatest impact of this rule on small 
entities would likely be reduced administrative costs and reduced delay 
for exports of items that are now on the USML but would become subject 
to the EAR.
    This rule focuses on Category XI articles, which are, in essence, 
military and intelligence-related electronic equipment, ``parts,'' 
``components,'' and ``accessories'' and ``attachments'' therefor; test, 
inspection and production equipment for military electronic equipment 
and ``parts,'' ``components'' and ``accessories and attachments'' 
therefor, and related software and technology and on certain laser and 
radar altimeters that currently are controlled under Category IV of the 
USML.
    Electronic equipment related to certain military or intelligence-
gathering functions would remain on the USML. However, parts, 
components, accessories and attachments for that equipment would be 
included on the CCL unless expressly enumerated on the USML. Such parts 
and components are more likely to be produced by small businesses than 
complete items of electronic equipment, which would in many cases 
become subject to the EAR. Moreover, officials of the Department of 
State have informed BIS that license applications for such parts and 
components are a high percentage of the license applications for USML 
articles review by that department. One of the purposes of this 
proposed change is to ensure the ``right sizing'' of controls on 
military electronics. The current USML Category XI is little more than 
a ``catch-all'' paragraph that controls all equipment specifically 
designed or modified for military use and all parts, components, 
accessories specifically designed or modified for such equipment, 
except those ``in normal commercial use,'' regardless of the age, 
sensitivity, availability, or military significance of the electronics. 
The proposed changes in this rule will not result in the decontrol of 
such items, but will allow for reduction in administrative and 
collateral regulatory burdens by, for example, allowing for the use of 
License Exception STA for exports when the ultimate end user is in a 
NATO and other multi-regime allied country.
    Thus, changing the jurisdictional status of Category XI articles 
would reduce the burden on small entities (and other entities as well) 
through: Elimination of some license requirements, greater availability 
of license exceptions, simplification of license application 
procedures, and reduction (or elimination) of registration fees. In 
addition, parts and components controlled under the ITAR remain under 
ITAR control when incorporated into foreign-made items, regardless of 
the significance or insignificance of the item, discouraging foreign 
buyers from incorporating such U.S. content. The availability of de 
minimis treatment under the EAR may reduce the incentive for foreign 
manufacturers to avoid purchasing U.S.-origin parts and components.
    Exporters and reexporters of the Category XI articles, particularly 
parts and components, that would be placed on the CCL by this rule 
would need fewer licenses because their transactions would become 
eligible for license exceptions that apply to shipments to United 
States Government agencies, shipments valued at less than $1,500, parts 
and components being exported for use as replacement parts, temporary 
exports, and License Exception Strategic Trade Authorization (STA). 
License

[[Page 70951]]

Exceptions under the EAR would allow suppliers to send routine 
replacement parts and low level parts to NATO and other close allies 
and export control regime partners for use by those governments and for 
use by contractors building equipment for those governments or for the 
U.S. government without having to obtain export licenses. Under License 
Exception STA, the exporter would need to furnish information about the 
item being exported to the consignee and obtain a statement from the 
consignee that, among other things, would commit the consignee to 
comply with the EAR and other applicable U.S. laws.
    Because such statements and obligations can apply to an unlimited 
number of transactions and have no expiration date, they would impose a 
net reduction in burden on transactions that the government routinely 
approves through the license application process that the License 
Exception STA statements would replace.
    Even for exports and reexports in which a license would be 
required, the process would be simpler and less costly under the EAR. 
When a USML Category XI article or Category IV altimeter moved to the 
CCL, the number of destinations for which a license is required would 
remain unchanged. However, the burden on the license applicant would 
decrease because the licensing procedure for CCL items is simpler and 
more flexible that the license procedure for UMSL articles.
    Under the USML licensing procedure, an applicant must include a 
purchase order or contract with its application. There is no such 
requirement under the CCL licensing procedure. This difference gives 
the CCL applicant at least two advantages. First, the applicant has a 
way of determining whether the U.S. Government will authorize the 
transaction before it enters into potentially lengthy, complex, and 
expensive sales presentations or contract negotiations. Under the USML 
procedure, the applicant will need to caveat all sales presentations 
with a reference to the need for government approval and is more likely 
to have to engage in substantial effort and expense only to find that 
the government will reject the application. Second, a CCL license 
applicant need not limit its application to the quantity or value of 
one purchase order or contract. It may apply for a license to cover all 
of its expected exports or reexports to a particular consignee over the 
life of a license (normally two years, but may be longer if 
circumstances warrant a longer period), reducing the total number of 
licenses for which the applicant must apply.
    In addition, many applicants exporting or reexporting items that 
this rule would transfer from the USML to the CCL would realize cost 
savings through the elimination of some or all registration fees 
currently assessed under the USML's licensing procedure. Currently, 
USML applicants must pay to use the USML licensing procedure even if 
they never actually are authorized to export. Registration fees for 
manufacturers and exporters of articles on the USML start at $2,250 per 
year, increase to $2,750 for organizations applying for one to ten 
licenses per year and further increases to $2,750 plus $250 per license 
application (subject to a maximum of three percent of total application 
value) for those who need to apply for more than ten licenses per year. 
There are no registration or application processing fees for 
applications to export items listed on the CCL. Once the Category XI 
articles and Category IV altimeters that are the subject to this 
rulemaking are added to the CCL and removed from the USML, entities 
currently applying for licenses from the Department of State would find 
their registration fees reduced if the number of USML licenses those 
entities need declines. If an entity's entire product line is moved to 
the CCL, then its ITAR registration and registration fee requirement 
would be eliminated.
    De minimis treatment under the EAR would become available for all 
items that this rule would transfer from the USML to the CCL. Items 
subject to the ITAR remain subject to the ITAR when they are 
incorporated abroad into a foreign-made product regardless of the 
percentage of U.S. content in that foreign-made product. Foreign-made 
products that incorporate items that this rule would move to the CCL 
would be subject to the EAR only if their total controlled U.S.-origin 
content exceeded 10 percent. Because including small amounts of U.S.-
origin content would not subject foreign-made products to the EAR, 
foreign manufacturers would have less incentive to avoid such U.S.-
origin parts and components, a development that potentially would mean 
greater sales for U.S. suppliers, including small entities.
    This rule also contains proposed EAR controls on cryogenic and 
superconducting equipment ``specially designed'' to be installed in a 
vehicle for military ground, marine, airborne, or space applications, 
and related test, inspection and production equipment, software and 
technology. BIS believes that these items are largely experimental or 
developmental and has not identified evidence of trade in such items. 
Therefore, removing them from the USML and adding them to the CCL is 
unlikely to have a significant impact on large or small entities.
Conclusion
    BIS is unable to determine the precise number of small entities 
that would be affected by this rule. Based on the facts and conclusions 
set forth above, BIS believes that any burdens imposed by this rule 
would be offset by the reduction in the number of items that would 
require a license, increased opportunities for use of license 
exceptions for exports to certain countries, simpler export license 
applications, reduced or eliminated registration fees and application 
of a de minimis threshold for foreign-made items incorporating U.S.-
origin parts and components, which would reduce the incentive for 
foreign buyers to design out or avoid U.S.-origin content. For these 
reasons, the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule, if adopted in final form, would not have 
a significant economic impact on a substantial number of small 
entities.

List of Subjects in 15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

    Accordingly, part 774 of the Export Administration Regulations (15 
CFR parts 730-774) is proposed to be amended as follows:

PART 774--[AMENDED]

    1. The authority citation for 15 CFR 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); 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; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 
U.S.C. 7201 et seq.; 22 U.S.C. 7210; 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 15, 2012, 77 FR 49699 (August 16, 2012).

    2. In Supplement No. 1 to Part 774, Category 3, amend Export 
Control Classification Number (ECCN) 3A101 by:
    a. Revising the Related Controls paragraph in the List of Items 
Controlled section; and
    b. Revising paragraph a. in the Items paragraph in the List of 
Items Controlled section, to read as follows:

[[Page 70952]]

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *

3A101 Electronic Equipment, Devices and Components, Other Than Those 
Controlled by 3A001, as Follows (See List of Items Controlled)

* * * * *

List of Items Controlled

* * * * *
    Related Controls: See also ECCN 4A003.e for controls on 
electrical input type analog-to-digital converter printed circuit 
boards or modules.
* * * * *
    Items:
    a. Analog-to-digital converters useable in ``missiles,'' and 
having any of the following characteristics:
    a.1. ``Specially designed'' to meet military specifications for 
ruggedized equipment;
    a.2. Analog-to-digital converter microcircuits which are 
radiation-hardened;
    a.3. Analog-to-digital converter microcircuits having all of the 
following characteristics:
    a.3.a. Having a quantization corresponding to 8 bits or more 
when coded in the binary system;
    a.3.b. Rated for operation in the temperature range from -54 
[deg]C to above +125 [deg]C; and
    a.3.c. Hermetically sealed; or
    a.4. Electrical input type analog-to-digital converter printed 
circuit boards or modules having all of the following 
characteristics:
    a.4.a. Having a quantization corresponding to 8 bits or more 
when coded in the binary system;
    a.4.b. Rated for operation in the temperature range from below -
45[deg]C to above +55[deg]C; and
    a.4.c. Incorporating microcircuits identified in 3A101.a.2 or 
a.3;
* * * * *

    3. In Supplement No. 1 to Part 774, between the entries for ECCNs 
3A292 and 3A980, add new entry for ECCN 3A611 to read as follows:

3A611 Military Electronics, as Follows (See List of Items Controlled)

    Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry except 3A611.y.  NS Column 1
RS applies to entire entry except 3A611.y.  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry except 3A611.y.  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

LVS: $1500 (except for ECCN 3A611.c)
GBS: N/A
CIV: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2)) 
of the EAR may not be used for any item in 3A611.

List of Items Controlled

Unit: End items in number; parts, component, accessories and 
attachments in $ value
Related Controls: (1) Electronic items that are enumerated in USML 
Category XI or other USML categories, and technical data (including 
software) directly related thereto, are subject to the ITAR. (2) 
Electronic items ``specially designed'' for military use that are 
not controlled in any USML category but are within the scope of 
another ``600 series'' ECCN are controlled by that ``600 series'' 
ECCN. Thus, ECCN 3A611 controls only electronic items ``specially 
designed'' for a military use that are not otherwise within the 
scope of a USML Category or ``600 series'' ECCN other than ECCN 
3A611. For example, electronic components not enumerated on the USML 
or another 600 series entry that are ``specially designed'' for a 
military aircraft controlled by USML Category VIII or ECCN 9A610 are 
controlled by the catch-all control in ECCN 9A610.x. Electronic 
components not enumerated on the USML or another 600 series entry 
that are ``specially designed'' for a military vehicle controlled by 
USML Category VII or ECCN 0A606 are controlled by ECCN 0A606.x. 
Electronic components not enumerated on the USML that are 
``specially designed'' for a missile controlled by USML Category IV 
are controlled by ECCN 0A604.
Related Definitions: N/A
Items:

    a. Electronic ``equipment,'' ``end items,'' and ``systems'' 
``specially designed'' for military use that are not enumerated in 
either a USML category or another ``600 series'' ECCN.

    Note: ECCN 3A611.a includes any radar, telecommunications, or 
computer equipment, end items, or systems ``specially designed'' for 
military use that are not enumerated in any USML category or 
controlled by a ``600 series'' ECCN.

    b. [Reserved]
    c. Microwave ``monolithic integrated circuits'' (MMIC) power 
amplifiers having any of the following:
    1. Rated for operation at frequencies of 2.7 GHz up to and 
including 3.2 GHz, having a power added efficiency of 30% or 
greater, and having any of the following:
    a. An average output power greater than 15 W (41.7 dBm) with a 
``fractional bandwidth'' greater than 15%;
    b. A pulse power output greater than 75 W (48.75 dBm) and a duty 
cycle of 20% or more; or
    c. A `peak saturated power output' greater than 75 W (48.75 
dBm);
    2. Rated for operation at frequencies exceeding 3.2 GHz up to 
and including 6.8 GHz and with a `peak saturated power output 
greater' than 40W (46 dBm) with a ``fractional bandwidth'' greater 
than 15% and a power added efficiency of 40% or greater;
    3. Rated for operation at frequencies exceeding 6.8 GHz up to 
and including 16 GHz and with a `peak saturated power output' 
greater than 10W (40 dBm) with a ``fractional bandwidth'' greater 
than 10% and a power added efficiency of 35% or greater;
    4. Rated for operation at frequencies exceeding 16 GHz up to and 
including 31.8 GHz and with a `peak saturated power output' greater 
than 5 W (37 dBm) with a ``fractional bandwidth'' greater than 10% 
and a power added efficiency of 30% or greater;

    Note to paragraph .c.4:  See ECCN 3A001.b.2.d for MMIC power 
amplifiers that are rated for operation at frequencies exceeding 
31.8 GHz up to and including 37.5 GHz.

    5. Rated for operation at frequencies exceeding 37.5 GHz up to 
and including 43.5 GHz and with a `peak saturated power output' 
greater than 2.5 W (34dBm) with a ``fractional bandwidth'' greater 
than 10% and a power added efficiency of 15% or greater; or
    6. Rated for operation at frequencies exceeding 43.5 GHz up to 
and including 75 GHz and with a `peak saturated power output' 
greater than 2.0 W (33dBm) with a ``fractional bandwidth'' greater 
than 5% and a power added efficiency of 10% or greater.

    Note 1 to paragraph c:  See ECCN 3A001.b.2.f for MMIC power 
amplifiers that are rated for operation at frequencies exceeding 75 
GHz.


    Note 2 to paragraph c:  `Peak saturated power output' is defined 
as that value where an increase in input rf power does not produce a 
concurrent increase in rf output power and may also be referred to 
as output power, saturated power output, maximum power output, peak 
power output, or peak envelope power output.

    d. Discrete microwave transistors having any of the following:
    1. Rated for operation at frequencies of 2.7 GHz up to and 
including 3.2 GHz, having a power added efficiency of 30% or 
greater, and having any of the following:
    a. An average output power greater than 48 W (46.8 dBm);
    b. A pulse power output greater than 240 W (53.8 dBm) and a duty 
cycle of 20% or more; or
    c. A `peak saturated power output' greater than 240 W (53.8 
dBm);
    2. Rated for operation at frequencies exceeding 3.2 GHz up to 
and including 6.8 GHz and having a `peak saturated power output' 
greater than 60W (47.8 dBm) and a power added efficiency of 45% or 
greater;
    3. Rated for operation at frequencies exceeding 6.8 GHz up to 
and including 31.8 GHz and having a `peak saturated power output' 
greater than 20W (43 dBm) and a power added efficiency of 35% or 
greater;

    Note to paragraph.d.3:  See ECCN 3A001.b.3.c for discrete 
microwave transistors that are rated for operation at frequencies 
exceeding 31.8 GHz up to and including 37.5 GHz.

    4. Rated for operation at frequencies exceeding 37.5 GHz up to 
and including 43.5 GHz and having a `peak saturated power output' 
greater than 1W (30 dBm) and a power added efficiency of 20% or 
greater; or
    5. Rated for operation at frequencies exceeding 43.5 GHz up to 
and including 75

[[Page 70953]]

GHz and having a `peak saturated power output' greater than 0.5W (27 
dBm) and a power added efficiency of 15% or greater; or

    Note 1 to paragraph .d: See ECCN 3A001.b.3.e for discrete 
microwave transistors that are rated for operation at frequencies 
exceeding 75 GHz.


    Note 2 to paragraph .d: `Peak saturated power output' is defined 
as that value where an increase in input rf power does not produce a 
concurrent increase in rf output power and may also be referred to 
as saturated power, output power, saturated power output, maximum 
power output, peak power output, or peak envelope power output.

    e. High frequency (HF) surface wave radar capable of 
``tracking'' maritime surface targets or low altitude airborne 
targets.

    Note: ECCN 3A611.e does not apply to systems, equipment, and 
assemblies ``specially designed'' for marine traffic control.

    f. Microelectronic devices or printed circuit boards not 
otherwise controlled on the USML that are certified to be a `trusted 
device' from a defense microelectronics activity (DMEA) accredited 
supplier.

    Note: A ``trusted device'' is a device that is certified as 
produced or manufactured under accredited defense microelectronics 
activity (DMEA) procedures at a ``trusted foundry,'' a ``trusted 
source,'' or an ``accredited supplier.'' A ``trusted foundry'' is a 
semiconductor foundry that is accredited through the defense 
microelectronics activity (DMEA) to be a trusted source for the 
following services: design, foundry services, packaging, assembly, 
and test. A ``trusted source,'' or DMEA ``accredited supplier,'' is 
a source or supplier that is accredited through DMEA to be a trusted 
source for the following services: design, foundry services, 
packaging, assembly, and test. Not all devices developed or 
manufactured by a company that is a trusted foundry, trusted source, 
or accredited supplier are per se ``trusted devices.'' Thus, ECCN 
3A001.f does not include or apply to any other device that is not a 
``trusted device'' manufactured or exported by such companies.

    g. through w. [Reserved]
    x. ``Parts,'' ``components,'' ``accessories'' and 
``attachments'' that are ``specially designed'' for a commodity 
controlled by ECCN 3A611 or for an article controlled by USML 
Category XI, and not enumerated in a USML Category.

    Note 1 to ECCN 3A611.x: ECCN 3A611.x includes parts, components, 
accessories, and attachments ``specially designed'' for a radar, 
telecommunications, or computer ``specially designed'' for military 
use that are neither enumerated in any USML Category nor controlled 
in another ``600 series'' ECCN.


    Note 2 to ECCN 3A611.x: ECCN 3A611.x controls parts and 
components ``specially designed'' for underwater sensors or 
projectors controlled by USML Category XI(c)(12) containing single-
crystal lead magnesium niobate lead titanate (PMN-PT) based 
piezoelectrics.

    y. Specific ``parts,'' ``components,'' ``accessories'' and 
``attachments'' ``specially designed'' for a commodity subject to 
control in this ECCN and not elsewhere specified in the CCL, as 
follows:

y.1. Electric couplings
y.2. Cathode ray tubes (CRTs)
y.3. Electrical connectors
y.4. Electric fans
y.5. Rotron fans
y.6. Electric fuses other than those specially designed for 
explosive detonation
y.7. Grid vacuum tubes
y.8. Audio headphones, earphones, handsets, and headsets
y.9. Heat sinks
y.10. Intercom systems
y.11. Joy sticks
y.12. Loudspeakers
y.13. Mica paper capacitors
y.14. Microphones
y.15. Potentiometers
y.16. Rheostats
y.17. Electric connector backshells
y.18. Solenoids
y.19. Speakers
y.20. Electric switches other than RF, pressure, diplexer, duplexer, 
circulator, or isolator switches
y.21. Trackballs
y.22. Electric transformers
y.23. Vacuum tubes other than TWTs, klystron tubes, or tubes 
specially designed for articles enumerated in USML Category XII
y.24. Waveguide

    4. In Supplement No. 1 to Part 774, between the entries for ECCNs 
3B002 and 3B991, add new entry for ECCN 3B611 to read as follows:

3B611 Test, Inspection, and Production Commodities for Military 
Electronics, as Follows (See List of Items Controlled)

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

LVS: $1500
GBS: N/A
CIV: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2)) 
of the EAR may not be used for any item in 3B611.

List of Items Controlled

Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:

    a. Test, inspection, and production end items and equipment 
``specially designed'' for items controlled in ECCN 3A611 or USML 
Category XI that are not enumerated in USML XI or controlled by 
another ``600 series'' ECCN.
    b. through w. [Reserved]
    x. ``Parts,'' ``components,'' ``accessories'' and 
``attachments'' that are ``specially designed'' for a commodity 
listed in this entry and that are not enumerated on the USML or 
controlled by another ``600 series'' ECCN.

    5. In Supplement No. 1 to Part 774, between the entries for ECCNs 
3D101 and 3D980, add a new entry for ECCN 3D611 to read as follows:

3D611 ``Software'' ``Specially Designed'' for Military Electronics, 
as Follows (See List of Items Controlled)

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry except 3D611.y.  NS Column 1
RS applies to entire entry except 3D611.y.  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry except 3D611.y.  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

CIV: N/A
TSR: N/A
STA: 1. Paragraph (c)(2) of License Exception STA (Sec.  
740.20(c)(2)) of the EAR may not be used for any ``software'' in 
3D611. 2. License Exception STA is not eligible for software for the 
``development,'' ``production,'' operation, installation, 
maintenance, repair, or overhaul of items enumerated in ECCN 
3E611.b.

List of Items Controlled

Unit: $ value
Related Controls: ``Software'' directly related to articles 
enumerated in USML Category XI is subject to the control of USML 
paragraph XI(d).
Related Definitions: N/A
Items:

    a. Software ``specially designed'' for the ``development,'' 
``production,'' operation, or maintenance of commodities controlled 
by ECCN 3A611 (other than 3A611.y), 3B611.
    b. through x. [RESERVED]
    y. Specific ``software'' ``specially designed'' for the 
``production,'' ``development,'' operation or maintenance of 
commodities enumerated in ECCNs 3A611.y.

    6. In Supplement No. 1 to Part 774, between the entries for ECCNs 
3E292 and 3E980, add new entry for ECCN 3E611 to read as follows:

3E611 Technology ``Required'' for Military Electronics, as Follows 
(See List of Items Controlled)

License Requirements

Reason for Control: NS, RS, AT, UN

[[Page 70954]]



 
                Control(s)                          Country chart
 
NS applies to entire entry except 3E611.y.  NS Column 1
RS applies to entire entry except 3E611.y.  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry except 3E611.y.  See Sec.   746.1(b) for UN
                                             controls
 

 License Exceptions

CIV: N/A
TSR: N/A
STA: 1. Paragraph (c)(2) of License Exception STA (Sec.  
740.20(c)(2)) of the EAR may not be used for any technology in 
3E611. 2. Except for ``build-to-print'' technology, License 
Exception STA is not eligible for technology enumerated in ECCN 
3E611.b.

List of Items Controlled

Unit: $ value
Related Controls: Technical data directly related to articles 
enumerated in USML Category XI is subject to the control of USML 
paragraph XI(d).
Related Definitions: N/A
Items:

    a. ``Technology'' (other than that described in 3E611.b or 
3E611.y) not otherwise enumerated in this ECCN ``required'' for the 
``development,'' ``production,'' operation, installation, 
maintenance, repair, or overhaul of commodities or software 
controlled by ECCN 3A611, 3B611 or 3D611.
    b. ``Technology'' ``required'' for the ``development,'' 
``production,'' operation, installation, maintenance, repair, or 
overhaul of
    (1) Helix traveling wave tubes (TWTs);
    (2) Transmit/receive or transmit modules;
    (3) Microwave monolithic integrated circuits (MMIC); or
    (4) Discrete radio frequency transistors.
    c. through x. [RESERVED]
    y. Specific ``technology'' ``required'' for the ``production,'' 
``development,'' operation, installation, maintenance, repair or 
overhaul of commodities enumerated in ECCNs 3A611.y or 3D611.y.

    7. In Supplement No. 1 to Part 774, amend ECCN 4A003 by revising 
the License Requirements section to read as follows:

4A003 ``Digital Computers'', ``Electronic Assemblies'', and Related 
Equipment Therefor, as Follows (See List of Items Controlled) and 
Specially Designed Components Therefor

License Requirements

Reason for Control: NS, MT, CC, AT, NP

 
                Control(s)                          Country chart
 
NS applies to 4A003.b and .c..............  NS Column 1
NS applies to 4A003.e and .g..............  NS Column 2
MT applies to 4A003.e when the parameters   MT Column 1
 in 3A101.a.4 are met or exceeded.
CC applies to ``digital computers'' for     CC Column 1
 computerized finger-print equipment.
AT applies to entire entry (refer to 4A994  AT Column 1
 for controls on ``digital computers''
 with a APP > 0.0128 but <=3.0 WT).
 

    NP applies, unless a License Exception is available. See Sec.  
742.3(b) of the EAR for information on applicable licensing review 
policies.

    Note 1: For all destinations, except those countries in Country 
Group E:1 of Supplement No. 1 to part 740 of the EAR, no license is 
required (NLR) for computers with an ``Adjusted Peak Performance'' 
(``APP'') not exceeding 3.0 Weighted TeraFLOPS (WT) and for 
``electronic assemblies'' described in 4A003.c that are not capable 
of exceeding an ``Adjusted Peak Performance'' (``APP'') exceeding 
3.0 Weighted TeraFLOPS (WT) in aggregation, except certain transfers 
as set forth in Sec.  746.3 (Iraq).


    Note 2: Special Post Shipment Verification reporting and 
recordkeeping requirements for exports of computers to destinations 
in Computer Tier 3 may be found in Sec.  743.2 of the EAR.

* * * * *

    8. In Supplement No. 1 to Part 774, between the entries for ECCNs 
4A102 and 4A980, add a new entry for ECCN 4A611 as follows:
4A611 Computers, and Parts, Components, Accessories, and Attachments 
``Specially Designed'' Therefor, ``Specially Designed'' for Military 
Use That Are Not Enumerated in Any USML Category Are Controlled by 
ECCN 3A611

    9. In Supplement No. 1 to Part 774, amend ECCN 5A001 by revising 
the Related Controls paragraph of the List of Items Controlled section, 
to read as follows:

5A001 Telecommunications Systems, Equipment, Components and 
Accessories, as Follows (See List of Items Controlled)
* * * * *

List of Items Controlled

* * * * *
Related Controls: 1. See USML Category XV for controls on 
telecommunications equipment defined in 5A001.a.1 and any other 
equipment used in satellites that are subject to the ITAR. See USML 
Category XI for controls on direction finding equipment defined in 
5A001.e and any other military or intelligence electronic equipment 
subject to the ITAR. 2. See USML Category XI(a)(4)(iii) for controls 
on electronic attack and jamming equipment defined in 5A001.f and .h 
that are subject to the ITAR. 3. See also ECCNs 5A101, 5A980, and 
5A991.
* * * * *

    10. In Supplement No. 1 to Part 774, between the entries for ECCNs 
5A101 and 5A980, add a new entry for ECCN 5A611 as follows:
5A611 Telecommunications Equipment, and Parts, Components, 
Accessories, and Attachments ``Specially Designed'' Therefor, 
``Specially Designed'' for Military Use That Are Not Enumerated in 
Any USML Category Are Controlled by ECCN 3A611
    11. In Supplement No. 1 to Part 774, between the entries for ECCNs 
6A226 and 6A991, add a new entry for ECCN 6A611 as follows:
6A611 Radar, and Parts, Components, Accessories, and Attachments 
``Specially Designed'' Therefor, ``Specially Designed'' for Military 
Use That Are Not Enumerated in Any USML Category or Other ECCN Are 
Controlled by ECCN 3A611.
    12. In Supplement No. 1 to Part 774, ECCN 7A006, revise the Reasons 
for Control paragraph of the License Requirements section to read as 
follows:
7A006 Airborne Altimeters Operating at Frequencies Other Than 4.2 to 
4.4 GHz Inclusive and Having Any of the Following (See List of Items 
Controlled).

License Requirements

Reason for Control: NS, MT, AT

 
                Control(s)                          Country chart
 
NS applies to entire entry................  NS Column 1
MT applies to commodities in this entry     MT Column 1
 that meet or exceed the parameters of
 7A106.
AT applies to entire entry................  AT Column 1
 

* * * * *
    13. In Supplement No. 1 to Part 774, ECCN 7D101, revise the heading 
to read as follows:
7D101 ``Software'' Specially Designed or Modified for the ``Use'' of 
Equipment Controlled for Missile Technology (MT) Reasons by 7A001 to 
7A006, 7A101 to 7A107, 7A115, 7A116, 7A117,7B001, 7B002, 7B003, 
7B101, 7B102, or 7B103.
* * * * *
    14. In Supplement No. 1 to Part 774, between the entries for ECCNs 
9A120 and 9A980, add a new entry for ECCN 9A620 to read as follows:
9A620 Cryogenic and ``Superconductive'' Equipment, as Follows (See 
List of Items Controlled).

Reason for Control: NS, RS, AT, UN

[[Page 70955]]



 
                Control(s)                          Country chart
 
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

LVS: $1500
GBS: N/A
CIV: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2)) 
of the EAR may not be used for any item in 9A620.

List of Items Controlled

Unit: End items in number; parts, component, accessories and 
attachments in $ value
Related Controls: Electronic items that are enumerated in USML 
Category XI or other USML categories, and technical data (including 
software) directly related thereto, are subject to the ITAR.
Related Definitions: N/A.
Items:

    a. Equipment ``specially designed'' to be installed in a vehicle 
for military ground, marine, airborne, or space applications, and 
capable of operating while in motion and of producing or maintaining 
temperatures below 103 K (-170 [deg]C).

    Note to 9A620.a: ECCN 9A620.a includes mobile systems 
incorporating or employing accessories or components manufactured 
from non-metallic or non-electrical conductive materials such as 
plastics or epoxy-impregnated materials.


    b. ``Superconductive'' electrical equipment (rotating machinery 
and transformers) ``specially designed'' to be installed in a 
vehicle for military ground, marine, airborne, or space 
applications, and capable of operating while in motion.

    Note to 3A610.b: ECCN 9A620.b. does not control direct-current 
hybrid homopolar generators that have single-pole normal metal 
armatures which rotate in a magnetic field produced by 
superconducting windings, provided those windings are the only 
superconducting components in the generator.


    c. through w. [Reserved]
    x. ``Parts,'' ``components,'' ``accessories'' and 
``attachments'' that are ``specially designed'' for a commodity 
controlled by ECCN 9A620.
    15. In Supplement No. 1 to Part 774, between the entries for ECCNs 
9B117 and 9B990, add a new entry for ECCN 9B620 to read as follows:

9B620 Test, Inspection, and Production Commodities for Cryogenic and 
``Superconductive'' Equipment (See List of Items Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

------------------------------------------------------------------------
                Control(s)                          Country chart
------------------------------------------------------------------------
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
------------------------------------------------------------------------

License Exceptions

LVS: $1500
GBS: N/A
CIV: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2)) 
of the EAR may not be used for any item in 9B620.

List of Items Controlled

Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: Test, inspection, and production end items and equipment 
``specially designed'' for items controlled in ECCN 9A620.

    16. In Supplement No. 1 to Part 774, between the entries for ECCNs 
9D105 and 9D990, add a new entry for ECCN 9D620 to read as follows:

9D620 ``Software'' ``Specially Designed'' for Cryogenic and 
``Superconductive'' Equipment, as Follows (See List of Items 
Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

------------------------------------------------------------------------
                Control(s)                          Country chart
------------------------------------------------------------------------
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
------------------------------------------------------------------------

License Exceptions

CIV: N/A
TSR: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2)) 
of the EAR may not be used for any ``software'' in 9D620.

List of Items Controlled

Unit: $ value
Related Controls: ``Software'' directly related to articles 
enumerated on USML are subject to the control of that USML category.
Related Definitions: N/A
Items: Software ``specially designed'' for the ``development,'' 
``production,'' operation, or maintenance of commodities controlled 
by ECCNs 9A620 or 9B620.
    17. In Supplement No. 1 to Part 774, between the entries for ECCNs 
9E102 and 9E990, add a new entry for ECCN 9E620 to read as follows:

9E620 Technology ``Required'' for Cryogenic and ``Superconductive'' 
Equipment, as Follows (See List of Items Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

CIV: N/A
TSR: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2)) 
of the EAR may not be used for any technology in 9E620.

List of Items Controlled

Unit: $ value
Related Controls: Technical data directly related to articles 
enumerated on USML are subject to the control of that USML category.
Related Definitions: N/A
    Items: ``Technology'' ``required'' for the ``development,'' 
``production,'' operation, installation, maintenance, repair, or 
overhaul of commodities or software controlled by ECCN 9A620, 9B620 
or 9D620.

    Dated: November 16, 2012.
Kevin J. Wolf,
Assistant Secretary of Commerce for Export Administration.
[FR Doc. 2012-28396 Filed 11-23-12; 11:15 am]
BILLING CODE 3510-33-P