[Federal Register Volume 74, Number 127 (Monday, July 6, 2009)]
[Rules and Regulations]
[Pages 31850-31854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15827]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 742, 745, and 774

[Docket No. 090113021-9025-01]
RIN 0694-AE55


Implementation of the 2008 Australia Group (AG) Intersessional 
Decisions; Additions to the List of States Parties to the Chemical 
Weapons Convention (CWC)

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) to 
implement the 2008 Australia Group (AG) intersessional decisions, which 
were recommended at the Intersessional Implementation Meeting held at 
The Hague on October 8-9, 2008, and adopted under the AG intersessional 
silent approval procedures in December 2008. This final rule amends the 
EAR to reflect changes to the AG ``Control List of Dual-Use Chemical 
Manufacturing Facilities and Equipment and Related Technology and 
Software'' affecting valves and toxic gas monitoring systems. 
Consistent with these changes, this rule expands the EAR controls on 
valves to include those having contact surfaces lined with certain 
ceramic materials. In addition, this rule clarifies the types of 
dedicated detecting components that are subject to the EAR controls on 
toxic gas monitoring systems and expands these controls to include 
dedicated software for such systems.
    This rule also amends the EAR to reflect changes to the AG 
``Control List of Dual-Use Biological Equipment and Related Technology 
and Software'' affecting cross (tangential) flow filtration equipment. 
Consistent with these changes, the rule clarifies the EAR controls on 
such equipment to specifically identify equipment using disposable or 
single-use filtration components.
    In addition, this rule amends the EAR to reflect changes to the AG 
``Guidelines for Transfers of Sensitive Chemical or Biological Items.'' 
Consistent with these changes, the rule amends the AG-related software 
entries in the EAR to include references to several definitions that 
were recently added to the AG ``Guidelines.''
    Finally, this rule amends the list of countries that currently are 
States Parties to the CWC by adding ``Bahamas,'' ``Dominican 
Republic,'' ``Iraq,'' and ``Lebanon,'' which recently became States 
Parties. As a result of this change, the CW (Chemical Weapons) license 
requirements and policies in the EAR that apply to these countries now 
conform with those applicable to other CWC States Parties. However, 
because of the special EAR controls that apply to Iraq, items 
controlled under the EAR for CW reasons continue to require a license 
for export or reexport to Iraq, or for transfer within Iraq.

DATES: This rule is effective July 6, 2009. Although there is no formal 
comment period, public comments on this regulation are welcome on a 
continuing basis.

ADDRESSES: You may submit comments, identified by RIN 0694-AE55, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include ``RIN 0694-
AE55'' 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 Street & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230, ATTN: RIN 0694-AE55.
    Send comments regarding this collection of information, including 
suggestions for reducing the burden, to Jasmeet Seehra, 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, 14th Street & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230. Comments on this collection of information should 
be submitted separately from comments on the final rule (i.e., RIN 
0694-AE55)--all comments on the latter should be submitted by one of 
the four methods outlined above.

FOR FURTHER INFORMATION CONTACT: Theodore Curtin, Export Policy 
Analyst, Chemical and Biological Controls Division, Office of 
Nonproliferation and Treaty Compliance, Bureau of Industry and 
Security, Telephone: (202) 482-1975.

SUPPLEMENTARY INFORMATION:

[[Page 31851]]

Background

    The Bureau of Industry and Security (BIS) is amending the Export 
Administration Regulations (EAR) to implement the 2008 Australia Group 
(AG) intersessional decisions, which were recommended at the 
Intersessional Implementation Meeting held at The Hague on October 8-9, 
2008, and adopted under the AG intersessional silent approval 
procedures in December 2008. The AG is a multilateral forum, consisting 
of 40 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.
    The 2008 AG intersessional decisions included changes to the AG 
``Control List of Dual-Use Chemical Manufacturing Facilities and 
Equipment and Related Technology and Software'' affecting valves and 
toxic gas monitoring systems. Consistent with these changes, this rule 
amends Export Control Classification Number (ECCN) 2B350 on the 
Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) 
by revising the controls on valves described in ECCN 2B350.g to include 
any such valves (including casings or preformed casing liners designed 
for such valves) that are made from any of the following ceramic 
materials:
    (1) Silicon carbide with a purity of 80% or more by weight; (2) 
aluminum oxide (alumina) with a purity of 99.9% or more by weight; or 
(3) zirconium oxide (zirconia).
    This rule also amends ECCN 2B351 on the CCL, which controls certain 
toxic gas monitoring systems, to specify the types of dedicated 
detecting components therefor that are controlled under this ECCN 
(i.e., detectors, sensor devices, and replaceable sensor cartridges). 
In addition, this rule adds a new ECCN 2D351 to control dedicated 
software for toxic gas monitoring systems and their dedicated detecting 
components controlled under ECCN 2B351. Software controlled under this 
new ECCN requires a license for destinations indicated under CB Column 
2 and/or AT Column 1 on the Commerce Country Chart (Supplement No. 1 to 
Part 738 of the EAR). The rule also makes two related conforming 
changes by: (1) Amending ECCN 2E001 (technology for the ``development'' 
of most 2A, 2B, or 2D items) to add a reference to new ECCN 2D351 under 
the CB controls paragraph in the License Requirements section of the 
ECCN and (2) adding a reference to new ECCN 2D351 in Section 
742.2(a)(2) of the EAR, which identifies those items that require a 
license to destinations indicated under CB Column 2 on the Commerce 
Country Chart.
    The 2008 AG intersessional decisions also included changes to the 
AG ``Control List of Dual-Use Biological Equipment and Related 
Technology and Software'' affecting cross (tangential) flow filtration 
equipment. Consistent with these changes, the rule amends ECCN 2B352 on 
the CCL by revising the controls on cross (tangential) flow filtration 
equipment described in ECCN 2B352.d to specifically identify any such 
equipment using disposable or single-use filtration components as 
subject to control.
    In addition, the 2008 AG intersessional decisions included changes 
to the AG ``Guidelines for Transfers of Sensitive Chemical or 
Biological Items.'' As a result of these decisions, the AG 
``Guidelines'' were revised to include definitions for ``software,'' 
``program,'' and ``microprogram,'' as well as language indicating that 
software identified on the AG Common Control Lists does not include 
mass market software, i.e., software that: (i) Is generally available 
to the public by being sold from stock at retail selling points, 
without restriction, by means of over-the-counter transactions, mail 
order transactions, electronic transactions, or telephone call 
transactions and (ii) is designed for installation by the user without 
further substantial support by the supplier.
    Since the three definitions that were added to the AG 
``Guidelines'' are currently found in Section 772.1 of the EAR, this 
rule simply adds a reference to the definitions in the ``Related 
Definitions'' paragraph for ECCN 1D390 \1\ on the CCL, which controls 
``software'' for process control that is specifically configured to 
control or initiate ``production'' of chemicals controlled by 1C350, 
and new ECCN 2D351, which controls dedicated software for toxic gas 
monitoring systems and their dedicated components controlled under ECCN 
2B351. This rule does not include in either of these two ECCNs a mass 
market software exclusion, as described in the AG ``Guidelines,'' 
because the General Technology Note (Note 2) in Supplement No. 2 to 
Part 774 of the EAR contains an identical mass market software 
exclusion, which is available for all software on the CCL (except 
encryption software controlled for ``EI'' reasons) under License 
Exception TSU, and which applies to all destinations, except those 
identified in Country Group E:1. Note that software that is eligible 
for the mass market exemption under License Exception TSU is distinct 
from publicly available software described in Section 734.3(b)(3) of 
the EAR, since the latter is not subject to the EAR while the former 
continues to be subject to the EAR.
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    \1\ Process control software in ECCN 1D390 is not included on 
the AG ``Control List of Dual-Use Chemical Manufacturing Facilities 
and Equipment and Related Technology and Software.'' However, BIS 
controls such software consistent with the chemical/biological (CB) 
controls described in Section 742.2(a)(2) of the EAR.
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    Finally, this rule amends Supplement No. 2 to Part 745 of the EAR 
(titled ``States Parties to the Convention on the Prohibition of the 
Development, Production, Stockpiling, and Use of Chemical Weapons and 
on Their Destruction'') by adding ``Bahamas,'' ``Dominican Republic,'' 
``Iraq,'' and ``Lebanon,'' which became States Parties to the CWC on 
May 21, 2009, April 26, 2009, February 12, 2009, and December 20, 2008, 
respectively. As a result of this change, the CW (Chemical Weapons) 
license requirements and policies that apply to these countries now 
conform with those applicable to other CWC States Parties, as described 
in Section 742.18 of the EAR. However, items controlled for CW reasons 
under the EAR continue to require a license for export or reexport to 
Iraq, or for transfer within Iraq, in accordance with the licensing 
policy for Iraq described in Section 746.3(a) of the EAR.
    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 July 23, 2008, 
73 FR 43603 (July 25, 2008), has continued the Export Administration 
Regulations in effect under the International Emergency Economic Powers 
Act.

Saving Clause

    Shipments of items removed from eligibility for export or reexport 
under a license exception or without a license (i.e., under the 
designator ``NLR'') as a result of this regulatory action that were on 
dock for loading, on lighter, laden aboard an exporting carrier, or en 
route aboard a carrier to a port of export, on August 5, 2009, pursuant 
to actual orders for export or reexport to a foreign destination, may 
proceed to that destination under the previously applicable license 
exception or without a license (NLR) so long as they are exported or 
reexported before August

[[Page 31852]]

20, 2009. Any such items not actually exported or reexported before 
midnight, on August 20, 2009, require a license in accordance with this 
regulation.
    ``Deemed'' exports of ``technology'' and ``source code'' removed 
from eligibility for export under a license exception or without a 
license (under the designator ``NLR'') as a result of this regulatory 
action may continue to be made under the previously available license 
exception or without a license (NLR) before August 20, 2009. Beginning 
at midnight on August 20, 2009, such ``technology'' and ``source code'' 
may no longer be released, without a license, to a foreign national 
subject to the ``deemed'' export controls in the EAR when a license 
would be required to the home country of the foreign national in 
accordance with this regulation.

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 Jasmeet Seehra, Office of Management and Budget (OMB), and 
to the Regulatory Policy Division, Bureau of Industry and Security, 
Department of Commerce, as indicated in the ADDRESSES section of this 
rule.
    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 (Section 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

15 CFR Part 742

    Exports, Foreign trade.

15 CFR Part 745

    Administrative practice and procedure, Chemicals, Exports, Foreign 
trade, Reporting and recordkeeping requirements.

15 CFR Part 774

    Exports, Foreign trade, Reporting and recordkeeping requirements.

0
Accordingly, Parts 742, 745, and 774 of the Export Administration 
Regulations (15 CFR Parts 730-774) are amended as follows:

PART 742--[AMENDED]

0
1. The authority citation for 15 CFR part 742 continues to read as 
follows:

    Authority:  50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 
U.S.C. 7210; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 
43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 
CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., 
p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 
13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential 
Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; 
Notice of July 23, 2008, 73 FR 43603 (July 25, 2008); Notice of 
November 10, 2008, 73 FR 67097 (November 12, 2008).


0
2. Section 742.2 is amended by redesignating paragraphs (a)(2)(viii) 
and (a)(2)(ix) as paragraphs (a)(2)(x) and (a)(2)(xi) and by adding new 
paragraphs (a)(2)(viii) and (a)(2)(ix) to read as follows:


Sec.  742.2  Proliferation of chemical and biological weapons.

    (a) * * *
    (2) * * *
    (viii) Dedicated software identified in ECCN 2D351 for the ``use'' 
of toxic gas monitoring systems and their dedicated detecting 
components controlled by ECCN 2B351.
    (ix) Technology identified in ECCN 2E001 for the ``development'' of 
software controlled by ECCN 2D351.
* * * * *

PART 745--[AMENDED]

0
3. The authority citation for 15 CFR part 745 continues to read as 
follows:

    Authority:  50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 
CFR, 1994 Comp., p. 950; Notice of November 10, 2008, 73 FR 67097 
(November 12, 2008).

Supplement No. 2 to Part 745--[Amended]

0
4. Supplement No. 2 to Part 745 is amended:
0
a. By revising the undesignated center heading ``List of States Parties 
as of July 1, 2008'' to read ``List of States Parties as of May 21, 
2009''; and
0
b. By adding, in alphabetical order, the countries ``Bahamas'', 
``Dominican Republic'', ``Iraq'', and ``Lebanon''.

PART 774--[AMENDED]

0
5. 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; 46 U.S.C. app. 466c; 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 July 23, 2008, 73 FR 43603 (July 25, 2008).

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

0
6. In Supplement No. 1 to Part 774 (the Commerce Control List), 
Category 1--Materials, Chemicals, ``Microorganisms'' & ``Toxins,'' ECCN 
1D390 is amended by revising the ``Related Definitions'' paragraph, 
under the List of Items Controlled, to read as follows:

    1D390 ``Software'' for process control that is specifically 
configured to control or initiate ``production'' of chemicals 
controlled by 1C350.
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: See Section 772.1 of the EAR for the 
definitions of ``software,'' ``program,'' and ``microprogram.''
    Items: * * *

0
7. In Supplement No. 1 to Part 774 (the Commerce Control List), 
Category 2--Materials Processing, ECCN 2B350 is amended by revising 
paragraph (g) under ``Items'' in the List of Items Controlled to read 
as follows:


[[Page 31853]]


    2B350 Chemical manufacturing facilities and equipment, except 
valves controlled by 2A226 or 2A292, as follows (see List of Items 
Controlled).
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: * * *
    Items:
* * * * *
    g. Valves with nominal sizes greater than 1.0 cm (\3/8\ in.), 
and casings (valve bodies) or preformed casing liners designed for 
such valves, in which all surfaces that come in direct contact with 
the chemical(s) being processed or contained are made from any of 
the following materials:
    g.1. Alloys with more than 25% nickel and 20% chromium by 
weight;
    g.2. Nickel or alloys with more than 40% nickel by weight;
    g.3. Fluoropolymers;
    g.4. Glass or glass lined (including vitrified or enameled 
coatings);
    g.5. Tantalum or tantalum alloys;
    g.6. Titanium or titanium alloys;
    g.7. Zirconium or zirconium alloys;
    g.8. Niobium (columbium) or niobium alloys; or
    g.9. Ceramic materials, as follows:
    g.9.a. Silicon carbide with a purity of 80% or more by weight;
    g.9.b. Aluminum oxide (alumina) with a purity of 99.9% or more 
by weight; or
    g.9.c. Zirconium oxide (zirconia).
* * * * *

0
8. In Supplement No. 1 to Part 774 (the Commerce Control List), 
Category 2--Materials Processing, ECCN 2B351 is amended by revising the 
ECCN heading and by revising the ``Related Controls'' and ``Related 
Definitions'' paragraphs, under the List of Items Controlled, to read 
as follows:

    2B351 Toxic gas monitoring systems and their dedicated detecting 
components (i.e., detectors, sensor devices, and replaceable sensor 
cartridges), as follows, except those systems and detectors 
controlled by ECCN 1A004.c (see List of Items Controlled).
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: See ECCN 2D351 for ``software'' for toxic gas 
monitoring systems and their dedicated detecting components 
controlled by this ECCN. Also see ECCN 1A004, which controls 
chemical detection systems and specially designed components 
therefor that are specially designed or modified for detection or 
identification of chemical warfare agents, but not specially 
designed for military use, and ECCN 1A995, which controls certain 
detection equipment and components not controlled by ECCN 1A004 or 
by this ECCN.
    Related Definitions: (1) For the purposes of this entry, the 
term ``dedicated'' means committed entirely to a single purpose or 
device. (2) 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.
* * * * *

0
9. In Supplement No. 1 to Part 774 (the Commerce Control List), 
Category 2--Materials Processing, ECCN 2B352 is amended by revising 
paragraph (d)(1)(b) under ``Items'' in the List of Items Controlled 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: * * *
    Related Definitions: * * *
    Items:
* * * * *
    d. * * *
    d.1. * * *
    d.1.b. Having any of the following characteristics:
    d.1.b.1. Capable of being sterilized or disinfected in-situ; or
    d.1.b.2. Using disposable or single-use filtration components.
* * * * *

0
10. Supplement No. 1 to Part 774 (the Commerce Control List), Category 
2--Materials Processing, is amended by adding a new ECCN 2D351 
immediately following ECCN 2D290 to read as follows:

    2D351 Dedicated ``software'' for toxic gas monitoring systems 
and their dedicated detecting components controlled by ECCN 2B351.

License Requirements

    Reason for Control: CB, AT

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
CB applies to entire entry...............  CB Column 2.
AT applies to entire entry...............  AT Column 1.
------------------------------------------------------------------------

License Exceptions

    CIV: N/A.
    TSR: N/A.

List of Items Controlled

    Unit: $ value.
    Related Controls: N/A.
    Related Definitions: (1) For the purposes of this entry, the 
term ``dedicated'' means committed entirely to a single purpose or 
device. (2) See Section 772.1 of the EAR for the definitions of 
``software,'' ``program,'' and ``microprogram.''
    Items:
    The list of items controlled is contained in the ECCN heading.

0
11. In Supplement No. 1 to Part 774 (the Commerce Control List), 
Category 2--Materials Processing, ECCN 2E001 is amended by revising the 
CB controls paragraph in the ``License Requirements'' section to read 
as follows:

    2E001 ``Technology'' according to the General Technology Note 
for the ``development'' of equipment or ``software'' controlled by 
2A (except 2A983, 2A991, or 2A994), 2B (except 2B991, 2B993, 2B996, 
2B997, or 2B998), or 2D (except 2D983, 2D991, 2D992, or 2D994).

License Requirements

    Reason for Control: * * *

------------------------------------------------------------------------
              Control(s)                          Country chart
------------------------------------------------------------------------
 
                              * * * * * * *
CB applies to ``technology'' for        CB Column 2.
 equipment controlled by 2B350 to
 2B352, valves controlled by 2A226 or
 2A292 having the characteristics of
 those controlled by 2B350.g, and
 software controlled by 2D351.
------------------------------------------------------------------------


[[Page 31854]]

* * * * *

    Dated: June 29, 2009.
Matthew S. Borman,
Acting Assistant Secretary for Export Administration.
[FR Doc. E9-15827 Filed 7-2-09; 8:45 am]
BILLING CODE 3510-33-P