[Federal Register Volume 69, Number 88 (Thursday, May 6, 2004)]
[Rules and Regulations]
[Pages 25312-25314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10230]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 744

[Docket No. 040220063-4063-01]
RIN 0694-AC64


Protective Equipment Export License Jurisdiction

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: This rule revises the Commerce Control List to conform the 
description of certain protection and detection equipment to that found 
in the Wassenaar Arrangement List of Dual Use Goods and Technologies 
(the Dual Use List), to impose national security and anti-terrorism 
license requirements on those items, and to impose antiterrorism 
controls on certain items that are excluded from the Dual Use List.

DATES: This rule is effective May 6, 2004.

FOR FURTHER INFORMATION CONTACT: Scott Hubinger, Office of Chemical and 
Biological Controls and Treaty Compliance, telephone: (202) 482-5223, 
e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Commerce Control List (15 CFR part 774, supp. 1) (CCL) contains 
entries called Export Control Classification Numbers (ECCNs) and is 
used in determining whether a license from the Bureau of Industry and 
Security (BIS) is required for certain exports and reexports. It also 
describes some items that are subject to the export licensing 
jurisdiction of the Directorate of Defense Trade Controls (DTC), U.S. 
Department of State. In general, DTC has export licensing authority 
over items that have been specifically designed, developed, configured, 
adapted, or modified for military application and do not have 
predominantly civil applications or that have significant military or 
intelligence applications. BIS generally has export licensing authority 
over items having predominantly civil uses even if they also may be 
used by the military. Prior to publication of this rule ECCN 1A004 
referred readers to the DTC controls with regard to ``[p]rotective and 
detection equipment and components, not specially designed for military 
use.``
    This rule revises ECCN 1A004 to emulate entry 1.A.4 on the 
Wassenaar Arrangement List of Dual Use Goods and Technologies, 
including an exclusion note from that entry. This rule applies national 
security (NS2) and antiterrorism (AT1) controls to items covered by 
ECCN 1A004, including gas masks, filter canisters, decontamination 
equipment, protective suits, gloves and shoes specially designed or 
modified for defense against biological agents or radioactive materials 
adapted for use in war or chemical warfare agents, and certain nuclear, 
chemical, and biological detection systems. The national security 
controls require a license for export or reexport to all destinations 
except Country Group A:1 and cooperating countries as listed in 15 CFR 
part 740, supp. No. 1.
    This rule also creates a new ECCN 1A995 that imposes antiterrorism 
controls (AT1) on personal radiation monitoring dosimeters and 
equipment limited by design or function to protect against hazards 
specific to civil industries, such as mining, quarrying, agriculture, 
pharmaceuticals, medical, veterinary, environmental, waste management, 
or to the food industry that are excluded from 1A004. The antiterrorism 
controls require a license for export or reexport to countries 
designated by the Secretary of State as state sponsors of international 
terrorism. New ECCN 1A995 includes a note that items for protection 
against chemical or biological agents that are consumer goods, packaged 
for retail sale or personal use and medical products are excluded from 
1A995, and are EAR99. EAR99 items are not listed in any specific entry 
on the Commerce Control List, but are subject to other provisions of 
the EAR, including those that impose a license requirement based on 
recipient or end-use, those that apply to embargoed destinations, the 
prohibitions on violating denial orders, and export clearance 
requirements.
    The antiterrorism controls imposed by this rule are new foreign 
policy controls. As required by the Export Administration Act of 1979, 
as amended (the Act), a report on the imposition of these controls was 
delivered to Congress on April 27, 2004.
    Although the Act expired on August 20, 2001, Executive Order 13222 
of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), as extended by the 
Notice of August 7, 2003 (68 FR 47833, August 11, 2003), continues the 
Export Administration Regulations in effect under the International 
Emergency Economic Powers Act. BIS continues to carry out the 
provisions of the Act, as appropriate and to the extent permitted by 
law, pursuant to Executive Order 13222.

Savings Clause

    Exports and reexports that did not require a license prior to 
publication of this rule and for which this rule imposes a new license 
requirement may be made without a license if the items being exported 
or reexported were on dock for loading, on lighter, laden aboard an 
exporting carrier, or en route aboard a carrier to a port of export 
pursuant to actual orders for export or reexport on May 20, 2004, and 
exported or reexported on or before June 7, 2004. Any such exports or 
reexports not actually made before midnight on June 7, 2004, require a 
license in accordance with this rule.

Rulemaking Requirements

    1. This rule has been determined to be not significant for purposes 
of E.O. 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information, subject to the 
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) (PRA), unless that collection of information displays a currently 
valid Office of Management and Budget (OMB) Control Number. This rule 
involves collections of information subject to the PRA. These 
collections have been approved by the Office of Management and Budget 
(OMB) under control number 0694-0088, ``Multi-Purpose Application,'' 
which carries a burden hour estimate of 40 minutes to prepare and 
submit electronically and 45 minutes to submit manually form BIS-748P. 
Send comments regarding these burden estimates or any other aspect of 
these collections of information, including suggestions for reducing 
the burden, to David Rostker, OMB Desk Officer, by e-mail at [email protected] or by fax to 202.395.285; and to the Regulatory 
Policy Division, Bureau of Industry and Security, Department of 
Commerce, P.O. Box 273, Washington, DC 20044.
    3. This rule does not contain policies with federalism implications 
as this term is defined in Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C.

[[Page 25313]]

553) requiring notice of proposed rulemaking, the opportunity for 
public participation, and a delay in effective date, are inapplicable 
because this regulation involves a military and foreign affairs 
function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no 
other law requires that a notice of proposed rulemaking and an 
opportunity for public comment be given for this rule. Because a notice 
of proposed rulemaking and an opportunity for public comment are not 
required to be given for this rule under 5 U.S.C. 553 or by any other 
law, the analytical requirements of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) are not applicable. Therefore, this rule is being 
issued in final form.

List of Subjects in 15 CFR Part 774

    Exports, Foreign trade.

0
For the reasons set forth in the preamble, the supplement No. 1 to part 
774 of the Export Administration Regulations (15 CFR parts 730-799) is 
amended as follows:

Supplement No. 1 to Part 774--[Amended]

0
1. The authority citation for part 774 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C. 
287c, 22 U.S.C. 3201 et seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 
185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. 
app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 
221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of 
August 7, 2003, 68 FR 47833, 3 CFR, 2003 Comp., p. 328.

0
2. Supplement No. 1 to part 774 (the Commerce Control List), Category 
1--``Materials, Chemicals, `Microorganisms' and `Toxins' '', Export 
Control Classification Number 1A004 is revised to read as follows:

1A004 Protective and detection equipment and components not 
specially designed for military use as follows (see List of Items 
Controlled).

License Requirements

    Reason for Control: NS, AT

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               Control(s)                          Country chart
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NS applies to entire entry..............  NS Column 2
AT applies to entire entry..............  AT Column 1
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License Exceptions

    LVS: N/A
    GBS: N/A
    CIV: N/A

List of Items Controlled

    Unit: $ value
    Related Controls: (1) See ECCNs 1A995, 2B351, and 2B352. (2) 
Chemical and biological protective and detection equipment 
specifically designed, developed, modified, configured, or adapted 
for military applications is subject to the export licensing 
jurisdiction of the Department of State, Directorate of Defense 
Trade Controls (see 22 CFR part 121, category XIV(f)), as is 
commercial equipment that incorporates components or parts 
controlled under that category unless those components or parts are: 
(1) Integral to the device; (2) inseparable from the device; and (3) 
incapable of replacement without compromising the effectiveness of 
the device, in which case the equipment is subject to the export 
licensing jurisdiction of the Department of Commerce under ECCN 
1A004.
    Related Definitions: N/A
    Items:
    a. Gas masks, filter canisters and decontamination equipment 
therefor designed or modified for defense against biological agents 
or radioactive materials adapted for use in war or chemical warfare 
(CW) agents and specially designed components therefor;
    b. Protective suits, gloves and shoes specially designed or 
modified for defense against biological agents or radioactive 
materials adapted for use in war or chemical warfare (CW) agents;
    c. Nuclear, biological and chemical (NBC) detection systems 
specially designed or modified for detection or identification of 
biological agents or radioactive materials adapted for use in war or 
chemical warfare (CW) agents and specially designed components 
therefor.

    Note: In this entry, the phrase ``adapted for use in war'' 
means: Any modification or selection (such as altering purity, shelf 
life, virulence, dissemination characteristics, or resistance to UV 
radiation) designed to increase the effectiveness in producing 
casualties in humans or animals, degrading equipment or damaging 
crops or the environment.


    Note: 1A004 does not control:
    a. Personal radiation monitoring dosimeters;
    b. Equipment limited by design or function to protect against 
hazards specific to civil industries, such as mining, quarrying, 
agriculture, pharmaceuticals, medical, veterinary, environmental, 
waste management, or to the food industry.


    Note: Protective equipment and components are classified as 
1A004 if they have been tested and proven effective against 
penetration of BW/CW agents or their simulants using test protocols 
published by a U.S. Government Agency, such as the National 
Institute of Occupational Safety and Health (NIOSH) or the U.S. 
Army, for use by emergency responders or evacuees in chemical, 
biological, radiological or nuclear environments and labeled with or 
otherwise identified by the manufacturer or exporter as being 
effective against penetration by BW/CW agents even if such equipment 
or components are used in civil industries such as mining, 
quarrying, agriculture, pharmaceuticals, medical, veterinary, 
environmental, waste management, or the food industry.



0
3. In supplement No. 1 to part 774 (Commerce Control List), Category 
1--``Materials, Chemicals, `Microorganisms' & `Toxins' '', add a new 
Export Control Classification Number 1A995 immediately following Export 
Control Classification Number 1A985 and immediately preceding Export 
Control Classification Number 1A999 reading as follows:

1A995 Protective and detection equipment and components not 
specially designed for military use and not controlled by ECCN 
1A004, as follows (see List of Items Controlled).

License Requirements

    Reason for Control: AT

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               Control(s)                          Country chart
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AT applies to entire entry..............  AT Column 1
------------------------------------------------------------------------

License Exceptions

    LVS: N/A
    GBS: N/A
    CIV: N/A

List of Items Controlled

    Unit: $ value
    Related controls: See ECCNs 1A004, 2B351, and 2B352.
    Related Definitions: N/A
    Items:
    a. Personal radiation monitoring dosimeters;
    b. Equipment limited by design or function to protect against 
hazards specific to civil industries, such as mining, quarrying, 
agriculture, pharmaceuticals, medical, veterinary, environmental, 
waste management, or to the food industry.

    Note: This entry (1A995) does not control items for protection 
against chemical or biological agents that are consumer goods, 
packaged for retail sale or personal use, or medical products, such 
as latex exam gloves, latex surgical gloves, liquid disinfectant 
soap, disposable surgical drapes, surgical gowns, surgical foot 
covers, and surgical masks. Such items are classified as EAR99.



0
4. Supplement No. 1 to part 774 (the Commerce Control List), Category 
2--``Materials Processing'', Export Control Classification Number 2B351 
is amended by revising the Related Controls paragraph of the List of 
Items Controlled section to read as follows:

2B351 Toxic gas monitoring systems that operate on-line and 
dedicated detectors therefor.
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: See ECCNs 1A004 and 1A995 for detection 
equipment that is not covered by this entry.
    Related Definitions: * * *

[[Page 25314]]

    Items: * * *


0
5. Supplement No. 1 to part 774 (the Commerce Control List), Category 
2--``Materials Processing'', Export Control Classification Number 2B352 
is amended by revising the Related Controls paragraph of the List of 
Items Controlled section to read as follows:

2B352 Equipment capable of use in handling biological materials, as 
follows (see List of Items Controlled).
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: See ECCNs 1A004 and 1A995 for protective 
equipment that is not covered by this entry.
    Related Definitions: * * *
    Items: * * *

    Dated: April 29, 2004.
Peter Lichtenbaum,
Assistant Secretary for Export Administration.
[FR Doc. 04-10230 Filed 5-5-04; 8:45 am]
BILLING CODE 3510-33-P