[Federal Register Volume 69, Number 246 (Thursday, December 23, 2004)]
[Rules and Regulations]
[Pages 76842-76844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28104]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 774

[Docket No. 041123328-4328-01]
RIN 0694-AD16


Revision of Export Control Classification Number (ECCN) 2B351 To 
Conform With the Australia Group (AG) ``Control List of Dual-Use 
Chemical Manufacturing Facilities and Equipment and Related 
Technology''

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: The Bureau of Industry and Security (BIS) is publishing this 
final rule to amend the Export Administration Regulations (EAR) by 
revising the Commerce Control List (CCL) entry that describes controls 
on certain toxic gas monitoring systems to conform with the Australia 
Group (AG) ``Control List of Dual-Use Chemical Manufacturing Facilities 
and Equipment and Related Technology.'' Specifically, this final rule 
removes a technical note that contained an overly broad description of 
the types of toxic gas monitoring systems and detectors subject to 
chemical/biological (CB) controls under the EAR. The note covered a 
number of toxic gas monitoring systems and detectors not included on 
the AG control list. By removing the technical note, this final rule 
eliminates the CB license requirement for these toxic gas monitoring 
systems and detectors. Toxic gas monitoring systems and detectors that 
are included on the AG control list continue to require a license, for 
CB reasons, to certain destinations.

DATES: This rule is effective December 23, 2004.

ADDRESSES: You may submit comments, identified by RIN 0694-AD16, by any 
of the following methods:
     E-mail: [email protected]. Include ``RIN 0694-AD16'' in 
the subject line of the message.
     Fax: (202) 482-3355. Please alert the Regulatory Policy 
Division, by calling (202) 482-2440, if you are faxing comments.
     Mail or Hand Delivery/Courier: Willard Fisher, U.S. 
Department of Commerce, Bureau of Industry and Security, Regulatory 
Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230, ATTN: RIN 0694-AD16.

FOR FURTHER INFORMATION CONTACT: Mark Sagrans, Office of 
Nonproliferation and Treaty Compliance, Bureau of Industry and 
Security, Telephone: (202) 482-7900.

SUPPLEMENTARY INFORMATION:

Background

    The Bureau of Industry and Security (BIS) is amending the Export 
Administration Regulations (EAR) by revising Export Control 
Classification Number (ECCN) 2B351 on the Commerce Control List (CCL) 
(Supplement No. 1 to Part 774 of the EAR) to conform with the Australia 
Group (AG) ``Control List of Dual-Use Chemical Manufacturing Facilities 
and Equipment and Related Technology.''

[[Page 76843]]

The AG is a multilateral forum, consisting of 38 participating 
countries, that maintains export controls on a list of chemicals, 
biological agents, and related equipment and technology that could be 
used in a chemical or biological weapons program. The AG periodically 
reviews items on its control list to enhance the effectiveness of 
participating governments' national controls and to achieve greater 
harmonization among these controls.
    Specifically, this rule revises ECCN 2B351 by removing the 
Technical Note at the end of the entry. BIS is removing this Technical 
Note because it is not included in the AG ``Control List of Dual-Use 
Chemical Manufacturing Facilities and Equipment and Related 
Technology'' and its inclusion in ECCN 2B351 resulted in controls on 
certain toxic gas monitoring systems and devices not designed for the 
detection of chemical warfare agents or precursors. The wording of the 
Technical Note indicated that the toxic gas monitoring systems 
controlled under ECCN 2B351.a included systems (such as environmental 
air pollution detectors, anesthetic gas monitors for patients, and 
sulfur hexafluoride detectors) that have a detection capability for 
chemicals, which contain phosphorus, sulfur, fluorine or chlorine, but 
are not controlled under ECCN 1C350.
    As a result of the removal of the Technical Note by this final 
rule, ECCN 2B351.a no longer controls toxic gas monitoring systems that 
have a detection capability for chemicals (other than chemical warfare 
agents), which contain phosphorus, sulfur, fluorine or chlorine, but 
are not controlled under ECCN 1C350. A license no longer is required, 
for chemical/biological (CB) reasons, to export or reexport such 
systems; however, such systems may require a license for reasons 
specified elsewhere in the EAR (e.g., the end-user/end-use restrictions 
described in Part 744 of the EAR or the restrictions described in Part 
746 of the EAR that apply to embargoed countries). Systems designed for 
continuous operation that are capable of detecting chemical warfare 
agents or any of the chemicals controlled under ECCN 1C350 (including 
those containing phosphorus, sulfur, fluorine or chlorine), at 
concentrations of less than 0.3 mg/m3, continue to be 
controlled under ECCN 2B351.a and continue to require a license, for CB 
reasons, to destinations listed in Country Group D:3 (as specified in 
Supplement No. 1 to Part 740 of the EAR).
    Although the Export Administration Act expired on August 20, 2001, 
Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 
(2002)), as extended by the Notice of August 6, 2004 (69 FR 48763, 
August 10, 2004), continues the Regulations in effect under the 
International Emergency Economic Powers Act .

Rulemaking Requirements

    1. This rule has been determined to be not significant for purposes 
of Executive Order 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 
contains a collection of information subject to the requirements of the 
PRA. This collection has been approved by OMB under Control Number 
0694-0088 (Multi-Purpose Application), which carries a burden hour 
estimate of 58 minutes to prepare and submit form BIS-748. Send 
comments regarding this burden estimate or any other aspect of this 
collection of information, including suggestions for reducing the 
burden, to David Rostker, Office of Management and Budget (OMB), by e-
mail to [email protected], or by fax to (202) 395-7285; 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 that term is defined in Executive Order 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 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 regulation is issued in final form. Although there 
is no formal comment period, public comments on this regulation are 
welcome on a continuing basis.

List of Subjects in 15 CFR Part 774

    Exports, Foreign trade, Reporting and recordkeeping requirements.

0
Accordingly, Part 774 of the Export Administration Regulations (15 CFR 
Parts 730-799) is amended as follows:

PART 774--[AMENDED]

0
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); 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 6, 2004, 68 FR 47833 (August 10, 2004).

Supplement No. 1 to Part 774 [Amended]

0
2. In Supplement No. 1 to Part 774 (the Commerce Control List), 
Category 2--Materials Processing, ECCN 2B351 is revised to read as 
follows:

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

License Requirements

    Reason for Control: CB, AT.

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                Control(s)                         Country chart
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CB applies to entire entry...............  CB Column 3.
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: Equipment in number.
    Related Controls: See ECCNs 1A004 and 1A995 for detection 
equipment that is not covered by this entry.
    Related Definitions: For the purposes of this entry, the term 
``continuous operation'' describes the capability of the equipment 
to operate on line without human intervention. The intent of this 
entry is to control toxic gas monitoring systems capable of 
collection and detection of samples in environments such as chemical 
plants, rather than those used for batch-mode operation in 
laboratories.
    Items:
    a. Designed for continuous operation and usable for the 
detection of chemical warfare agents or chemicals controlled by 
1C350 at concentrations of less than 0.3 mg/m3; or
    b. Designed for the detection of cholinesterase-inhibiting 
activity.


[[Page 76844]]


    Dated: December 16, 2004.
Peter Lichtenbaum,
Assistant Secretary for Export Administration.
[FR Doc. 04-28104 Filed 12-22-04; 8:45 am]
BILLING CODE 3510-33-P