Daily Rules, Proposed Rules, and Notices of the Federal Government
The revisions in this rule include clarifications to existing controls; eliminating redundant or outdated controls; and establishing more focused and rationalized controls. This rule also makes CCL related changes to other parts of the EAR, including CCL related definitions and license exceptions.
Send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by e-mail to
This rule amends the EAR to make various revisions as a result of a systematic review of the Commerce Control List (CCL) that was conducted by BIS. This rule is the third phase of the regulatory implementation of the results of that systematic review of the CCL that was conducted by BIS beginning in 2007. The CCL review benefited from input received from BIS's Technical Advisory Committees (TACs) and public comments received in response to a notice of inquiry (July 17, 2007, 72 FR 39052).
On April 18, 2008, BIS published the first phase of the regulatory implementation of the CCL review in a rule titled, “Technical Corrections to the Export Administration Regulations based upon a Systematic Review of the CCL” (73 FR 21035). The first CCL review rule made needed technical corrections and clarifications to the CCL. The second CCL review rule made substantive revisions to the EAR, including the CCL (October 6, 2008, 73 FR 58033).
As a part of the implementation phase of the CCL review, BIS has also taken other non-regulatory actions to improve the public's understanding of the CCL. These actions have involved publishing certain advisory opinions and creating new web guidance to provide greater clarity to exporters and reexporters regarding existing provisions of the CCL. BIS has also created a new process whereby it has stated its intention to conduct similar types of systematic reviews of the CCL in the future in order to continuously improve the CCL.
This rule makes the following revisions to the Export Administration Regulations (EAR):
In § 734.4(b)(1), this rule adds paragraph (a)(9) of ECCN 5A002 to the list of 5A002 classified commodities that are subject to the special
In § 734.4 (
In § 740.7 (Computers (APP)) under paragraph (b)(2)(i)(Computers and software), this rule removes and reserves this paragraph because the restrictions refer to a supplement of the EAR that is currently reserved. Supplement No. 3 to part 742 was removed and reserved in the EAR on April 24, 2006 (71 FR 20876). Paragraph (b)(2)(i) is also reserved because restricting physical access to areas housing the computer is no longer necessary in protecting U.S. export control interests in a distributed computing environment.
Also in § 740.7, this rule revises the Weighted TeraFLOPS (WT) level in paragraphs (c)(3)(ii) from 0.1 WT to 0.5 WT. This change is being made to address advances in technology levels that justify an adjustment for what level of “development” and “production” technology and source code should be authorized under these provisions of License Exception APP.
In § 772.1 (Definitions of terms as used in the Export Administration Regulations (EAR)), this rule revises the definition of “reasons for control” to conform that definition to the reasons for control listed in § 738.2(d)(2)(i)(A) of the EAR. Specifically, this rule removes the control “High Performance Computers (XP)” because that control is no longer in the EAR, and adds five reasons for control that were in the EAR but were not included in the “reasons for control” definition prior to this rule being published. Specifically, this rule adds “Chemical Weapons Convention (CW)”, “Encryption Items (EI)”, “Firearms Convention (FC)”, “Significant Items (SI)”, and “Surreptitious Listening (SL)” to the “reasons for control” definition.
This rule makes various substantive revisions to the CCL, divided below into three types of revisions:
This rule makes revisions to the headings of three (3) CCL entries: 0E018, 4E992 and 4E993 to clarify the items controlled under those CCL entries.
ECCN 0E018 is amended by removing the phrase “0A018.a through 0A018.c” and replacing that with “0A018” for consistency with the International Munitions List (IML) 22.
ECCNs 4E992 and 4E993 are amended by revising the headings to conform to the removal of ECCNs 4B994 and 4C994 from the CCL. The changes in the headings of ECCNs 4E992 and 4E993 remove references to “technology” applicable to the ECCNs 4B994 and 4C994 that are removed from the CCL with this rule, as described in the next two paragraphs. The removal of ECCNs 4B994 and 4C994 are described below under the discussion on “Eliminating Redundant or Outdated Controls.”
ECCN 4E992 is amended by revising the heading to remove the reference to 4B994 and materials controlled by 4C994. The heading will be revised to specify the technology controlled under this ECCN entry is “technology” other than that controlled in 4E001 for the “development,” “production,” or “use” of equipment controlled by 4A994, or “software” controlled by 4D993 or 4D994.
ECCN 4E993 is amended by revising the heading to remove the reference to technology required for the development or production of graphic accelerators and magnetic disk drives. The heading is being revised to specify the technology controlled under this ECCN entry is “technology” for the “development” or “production” of equipment for “multi-data stream processing.” As described below, this rule also revises the “items” paragraph in the List of Items of controlled to conform to this change to the heading.
ECCN 4E993 is amended by removing the “items” paragraph (a), (b) and (c) and replacing it with a sentence stating, “The list of items controlled is contained in the ECCN heading.” As described above, the technology described in paragraphs (a) and (c) is being removed from this entry, and the only items that this entry will now control are listed in the entry's heading.
ECCN 9A991 is amended by making two clarifications. First, this rule revises “items” paragraph (b) to remove the word “and” because this word is not needed. Second, this rule amends the Note to paragraph (c) of the “items” paragraph, to specify that for aero gas turbine engines that are destined for use in civil “aircraft” and have been in use in bona fide civil “aircraft” for more than eight years, such engines are controlled under 9A991.d. This is not a change in the control parameter, but rather a clarification regarding the original intent of that Note to paragraph (c).
ECCN 8A018 is amended by revising paragraphs (b)(1), (b)(2), (b)(3), (b)(4) and (b)(5) of the “Items” paragraph, to conform to IML 9.b.3, 9.d and b.1-4, respectively. Specifically, under paragraph (b)(1), this rule adds the phrase “and specially designed components therefor” to conform to IML 9.b.1. Under paragraph (b)(2), this rule adds the phrase “and specially designed components therefor” to conform to IML 9.b.2. Under paragraph (b)(3), this rule revises the “items” paragraph to specify that the commodities controlled under this paragraph are “nonmagnetic diesel engines, 50 hp and over, specially designed for military purposes with nonmagnetic content in excess of 75 percent of total mass and specially designed components therefor.” This change is being made to conform to IML 9.b.2. Paragraph (b)(5) is removed from the CCL entry because the components, parts, accessories, and attachments for the above are now controlled under paragraphs (b)(1)-(b)(4) with the publication of this rule. This change is being made to conform to the IML 9 portion that was moved to (b)(1)-(b)(4) of the “items” paragraph of this CCL entry.
ECCN 9A018 is amended by revising paragraphs (c) and (d) of the “items” paragraphs to clarify the items controlled under this CCL entry. Specifically, under paragraph (c) this rule adds quotes around the term “aircraft” and removes the phrase “and helicopters,” to conform to IML 10.f. Under paragraph (d), this rule adds quotes around the term “aircraft” and
ECCN 4A003 is amended by making a correction in the Anti-Terrorism (AT) control in the License Requirements section of this ECCN. This correction is made to conform to a change made on October 6, 2008 (73 FR 58040) in the Adjusted Peak Performance (APP) level in ECCN 4A994. To conform to the October 2008 change, this rule updates the AT control cross reference in the License Requirements section of ECCN 4A003 that refers to the “Adjusted Peak Performance” level in 4A994. Specifically, this rule corrects the AT control cross reference to inform the public to “refer to 4A994 for controls on `digital computer' with an APP > 0.0128 but ≤ to 0.75 WT).”
This rule amends ECCN 4A994 by revising the Related Definitions paragraph of the List of Items Controlled to read “N/A” because the definition for “two dimensional vector rate” applied to items controlled by ECCN 4A994.g, which was removed and reserved on October 6, 2008 (73 FR 58040).
ECCN 5A001 is amended to revise the Technical Note (2) to 5A001.b.6 to remove the redundant phrase, “samples of human voice and then convert these.” This same phrase only needs to be stated once in this technical note, so this rule is removing the redundant phrasing.
ECCN 7A008 is amended by revising the License Exceptions section by removing “TSR: N/A” because this ECCN is not a technology or software entry and adding License Exceptions “GBS: N/A” and “LVS: N/A” to indicate these license exceptions are not eligible for this entry.
ECCN 9E003 is amended by revising the SI control under the “License Requirements” section to conform the SI reason for control to the hot section technology for the development, production or overhaul of commercial aircraft engines, components and systems that are currently controlled in the “items” paragraphs of ECCN 9E003 (
ECCN 3A992 is amended by removing License Exception LVS eligibility for Syria. Syria is
ECCNs 4B994 and 4C994 are removed from the CCL because storage equipment previously controlled under ECCN 4A994 was removed from control on October 8, 2008 (73 FR 58033). Because the storage equipment is no longer controlled under 4A994, equipment for the “development” and “production” of magnetic and optical storage equipment no longer needs to be controlled under ECCN 4B994. In addition, for the same reason, materials specially formulated and required for the fabrication of head/disk assemblies for controlled magnetic and magneto-optical hard disk drives no longer needs to be controlled under ECCN 4C994. To conform to the removal of ECCNs 4B994 and 4C994, this rule also makes revisions to ECCNs 4E992 and 4E993 to remove references to “technology” applicable to these ECCNs 4B994 and 4C994 that are removed from the CCL with this rule. The changes to ECCNs 4E992 and 4E993 are described above under the discussion on “Revisions to the `headings' of existing CCL entries.”
ECCN 8A018 is amended by removing “items” paragraph (b)(5) to conform to a change to the IML. The IML 9 control that was under 8A018.b.5, prior to the publication of this rule, has been moved to paragraphs 8A018.b.1 through 8A018.b.4.
In Supplement No. 1 to part 738 (Commerce Country Chart), this rule removes the license requirement for Regional Stability (RS 2) from Austria, Finland, Ireland, Sweden and Switzerland (
Removing the RS column 2 license requirement that applied to these countries is consistent with the stated purpose of regional stability controls in § 742.6(b), which is to prevent “export[s] or reexport[s] that could contribute directly or indirectly to any country's military capability in a manner that would alter or destabilize a region's military balance contrary to the foreign policy interests of the United States.” This removal raises the number of countries that are in all three groups from 24 to 29 and creates more consistency in these EAR license requirements.
Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on June 28, 2010, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport NLR so long as they are exported or reexported July 28, 2010. Any such items not actually
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 13, 2009, 74 FR 41325 (August 14, 2009), has continued the EAR in effect under the International Emergency Economic Powers Act.
1. This final rule has been determined to be significant for purposes of E.O. 12866.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule contains a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
5. The other changes made under this rule are nonsubstantive changes that would not meet the criteria noted in the preceding paragraph. For these nonsubstantive changes described in this paragraph, the Department of Commerce finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary and contrary to the public interest. The changes made by this rule described under this paragraph are not substantive changes, but rather are clarifications to existing controls. These nonsubstantive changes are described under Part I:
Administrative practice and procedure, Exports, Inventions and patents, Research Science and technology.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports, Reporting and recordkeeping requirements.
50 U.S.C. app. 2401
(a) * * *
(4) There is no
(b) * * *
(1) The U.S. origin commodities or software, if controlled under ECCNs 5A002.a.1, .a.2, .a.5, or .a.6, .a.9, or 5D002, must have been:
50 U.S.C. app. 2401
50 U.S.C. app. 2401
(b) * * *
(2) * * *
(c) * * *
(3) * * *
(ii) “Development” and “production” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 0.5 Weighted TeraFLOPS (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
(iii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 3 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
50 U.S.C. app. 2401
(a) * * * These items include hot section technology for the development, production or overhaul of commercial aircraft engines controlled under ECCN 9E003.a.1 through a.10, and .h, and related controls.
50 U.S.C. app. 2401
50 U.S.C. app. 2401
The list of items controlled is contained in the ECCN heading.
b.6. * * *
a. * * *
b. Naval equipment, as follows:
b.1. Diesel engines of 1,500 hp and over with rotary speed of 700 rpm or over specially designed for submarines, and specially designed components therefor;
b.2. Electric motors specially designed for submarines, i.e., over 1,000 hp, quick reversing type, liquid cooled, and totally enclosed, and specially designed components therefor;
b.3. Nonmagnetic diesel engines, 50 hp and over, specially designed for military purposes with nonmagnetic content in excess of 75 percent of total mass and specially designed components therefor;
b.4. Submarine and torpedo nets and specially designed components therefor.
c. Pressure refuelers, pressure refueling equipment, equipment specially designed to facilitate operations in confined areas; and ground equipment, developed specially for military “aircraft”, and specially designed parts and accessories, n.e.s.;
d. Pressurized breathing equipment specially designed for use in military “aircraft”;
e. * * *
f. Military instrument flight trainers, except for combat simulation; and components and accessories specially designed for such equipment.
b. Civil aircraft;
c. Aero gas turbine engines, and specially designed parts therefor.
9A991.c does not control aero gas turbine engines that are destined for use in civil “aircraft” and that have been in use in bona fide civil “aircraft” for more than eight years. If they have been in use in bona fide civil “aircraft” for more than eight years, such engines are controlled under 9A991.d.