[Federal Register Volume 77, Number 5 (Monday, January 9, 2012)]
[Rules and Regulations]
[Pages 1017-1019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-135]


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

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740, 742 and 774

[Docket No. 110825537-1539-02]
RIN 0694-AF38


Export and Reexport License Requirements for Certain Microwave 
and Millimeter Wave Electronic Components

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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

SUMMARY: This rule imposes a license requirement on exports and 
reexports to all destinations other than Canada of two types of 
microwave and millimeter wave electronic components. The two components 
are packaged high electron mobility transistors and packaged microwave 
``monolithic integrated circuits'' power amplifiers that meet certain 
criteria with respect to frequency range, size and output power. BIS 
takes this step to control exports and reexports of these components, 
which have uses in military radar systems as well as in civilian radar 
and telecommunications systems. The U.S. Government also plans to 
propose adding these components to the Dual List of the Wassenaar 
Arrangement on Export Controls for Conventional Arms and Dual-Use Goods 
and Technologies (Wassenaar Arrangement Dual Use List) in 2012.

DATES: Effective date: January 9, 2012.

FOR FURTHER INFORMATION CONTACT: Brian Baker, Director, Electronics and 
Materials Division, Office of National Security and Technology Transfer 
Controls, (202) 482-5534, [email protected].

SUPPLEMENTARY INFORMATION: This rule imposes a license requirement on 
exports and reexports to all destinations other than Canada of two 
types of microwave and millimeter wave electronic components. The two 
components are packaged high electron mobility transistors (HEMT) and 
packaged microwave ``monolithic integrated circuits'' (MMIC) power 
amplifiers. The U.S. Government plans to propose adding these 
components to the Wassenaar Arrangement Dual-Use List in 2012.
    This rule imposes this license requirement by creating a new Export 
Control Classification Number (ECCN) 3A982 containing two ``items'' 
paragraphs. Paragraph 3A982.a covers packaged HEMTs with physical 
dimensions less than 43 mm per side, rated for operation at frequencies 
from 2.7 GHz up to and including 3.2 GHz and having either an average 
output power equal to or greater than 48 W (46.8 dBm); or a pulsed 
output power equal to or greater than 240 W (53.8 dBm) and a duty cycle 
of 20 percent or more.
    Paragraph 3A982.b covers packaged MMIC power amplifiers with 
physical dimensions less than 43mm per side, rated for operation at 
frequencies from 2.7 GHz up to and including 3.2 GHz and having either 
an average output power equal to or greater than 15W (41.7 dBm); or a 
pulsed output power equal to or greater than 75 W (48.75 dBm) and a 
duty cycle of 20 percent or more.
    This rule also creates new ECCNs 3D982 and 3E982 to control the 
software and technology, respectively, associated with the new controls 
set forth in new ECCN 3A982.
    This rule also revises License Exception STA (Sec.  740.20 of the 
EAR) to preclude use of License Exception STA for any export, reexport 
or transfer of items in ECCN 3A982.b.
    The U.S. Government plans to submit a proposal for control of the 
commodities covered by ECCN 3A982 in 2012. BIS publishes this rule to 
protect against the diversion of these items to users or for uses that 
would threaten the security of the United States or that of its allies.
    The application of regional stability and antiterrorism controls to 
the items covered by this rule imposes a foreign policy control. 
Section 6(f) of the Export Administration Act requires that a report be 
delivered to Congress before imposing such controls. The report was 
delivered to Congress on December 29, 2011.
    The Export Administration Act of 1979, as amended, expired on 
August 21, 2001. Since this lapse, the President has continued the EAR 
in effect through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 
Comp. 783 (2002)), under the authority of the International Emergency 
Economic Powers Act, with the most recent extension being implemented 
by the Notice of August 12, 2011 (76 FR 50661 (August 16, 2011)). BIS 
continues to carry out the provisions of the 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

[[Page 1018]]

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 rule affects an existing approved 
collection 0694-0088, Simple Network Application Process and 
Multipurpose Application Form for which the estimated burden is 58 
minutes per submission. BIS does not believe that this rule will 
materially increase the number of submissions under this collection.
    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 comment and a delay in effective date are inapplicable because 
this regulation involves a military or foreign affairs function of the 
United States (See 5 U.S.C. 553(a)(1)). BIS is implementing this rule 
to protect U.S. national security or foreign policy interests by 
imposing an export and reexport license requirement on two items that 
are used in military radar systems. The U.S. Government plans to 
propose that these two items be added to the Wassenaar Arrangement 
Dual-Use List. Immediate imposition of a license requirement is 
necessary to effect the national security and foreign policy goals of 
this rule. Immediate implementation will allow BIS to prevent exports 
of these items to users and for uses that pose a security threat to the 
United States or its allies. If BIS published a proposed rule 
soliciting notice and comment, the resulting delay in implementation 
would afford an opportunity to export these items to users and uses 
that pose such a security threat, thereby undermining the purpose of 
the rule. Furthermore, by demonstrating its own willingness to impose a 
license requirement on its exports of these items, this rule will 
provide support for the planned United States proposal that the 
Wassenaar Arrangement should add these items to its Dual-Use List. 
Inclusion of these items on the Wassenaar Arrangement Dual-Use and the 
resulting implementation of export license requirements by other 
Wassenaar Arrangement will further the goal of this rule by removing 
potential sources of these items for parties who would act in ways that 
threaten the security of the United States or its allies.
    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 by 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.

List of Subjects

15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Part 742

    Exports, Terrorism.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

    Accordingly, the Export Administration Regulations (15 CFR parts 
730-774) are amended as follows:

PART 740--[AMENDED]

0
1. The authority citation for part 740 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. 7201 et seq.; 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 12, 2011, 76 FR 50661 (August 16, 2011).


0
2. Section 740.20 is amended by adding paragraph (b)(2)(viii) to read 
as follows:


Sec.  740.20  License Exception Strategic Trade Authorization (STA).

* * * * *
    (b) * * *
    (2) * * *
    (viii) License Exception STA may not be used to export, reexport or 
transfer any packaged microwave ``monolithic integrated circuits'' 
(MMIC) power amplifiers classified under ECCN 3A982.b.
* * * * *

PART 742--[AMENDED]

0
3. The authority citation for 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 August 12, 2011, 76 FR 50661 (August 16, 2011); Notice of 
November 9, 2011, 76 FR 70319 (November 10, 2011).


Sec.  742.6  [Amended]

0
4. Section 742.6(a)(1) is amended by adding the phrase ``3A982; 3D982; 
3E982; '' immediately following the phrase ``for items described on the 
CCL under ECCNs''

PART 774--[AMENDED]

0
5. 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); 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 12, 2011, 76 FR 50661 (August 16, 2011).


0
6. Supplement No. 1 to Part 774--the Commerce Control List, Category 3, 
Export Control Classification Number 3A001 is amended by adding two 
sentences at the end of the ``Related Controls'' paragraph of the 
``List of Items Controlled'' section to read as follows:

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

* * * * *
3A001 Electronic components and specially designed components 
therefor, as follows (see List of Items Controlled).
* * * * *

List of Items Controlled

* * * * *
Related Controls: * * * (3) See ECCN 3A982.a for discrete microwave 
transistors not controlled by paragraph .b.3 of this entry. (4) 
Packaged microwave ``monolithic integrated circuits'' (packaged 
MMIC) power amplifiers that operate within the frequency range 
specified in 3A982.b and that have the dimensional and output power 
characteristics specified for packaged MMIC power amplifiers 
specified in ECCN 3A982 are controlled by ECCN 3A982 even if such 
packaged MMIC power amplifiers also operate within the frequency 
range specified in ECCN 3A001.b.2.a.
* * * * *


0
7. Supplement No. 1 to Part 774--the Commerce Control List, Category 3, 
is amended by adding, immediately following the entry for Export 
Control Classification Number (ECCN) 3A981 and immediately preceding 
the entry for ECCN 3A991, a new ECCN 3A982 entry to read as follows:

3A982 Microwave or millimeter wave components that operate at 
frequencies below those controlled by 3A001 as follows (See List of 
Items Controlled).

[[Page 1019]]

License Requirements

Reasons for Control: RS, AT

------------------------------------------------------------------------
                Control(s)                          Country chart
------------------------------------------------------------------------
RS applies to entire entry................  RS Column 1
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: (1) See ECCN 3A001.b.2 for certain microwave 
``monolithic integrated circuits'' (MMIC) power amplifiers other 
than those controlled by this entry. (2) See ECCN 3A001.b.3 for 
discrete microwave transistors other than those controlled by this 
entry. (3) See ECCN 3A001.h for high electron mobility transistors 
that are solid state semiconductor switches, diodes or modules 
rather than discrete microwave transistors.
Related Definitions: N/A
Items:
    a. Packaged high electron mobility transistors (HEMTs) with 
physical dimensions less than 43 mm per side, rated for operation at 
frequencies from 2.7 GHz up to and including 3.2 GHz and having any 
of the following:
    a.1. An average output power equal to or greater than 48 W (46.8 
dBm); or
    a.2. A pulsed output power equal to or greater than 240 W (53.8 
dBm) and a duty cycle of 20 percent or more.
    b. Packaged microwave ``monolithic integrated circuits'' (MMIC) 
power amplifiers with physical dimensions less than 43mm per side, 
rated for operation at frequencies from 2.7 GHz up to and including 
3.2 GHz and having either of the following:
    b.1. An average output power equal to or greater than 15W (41.7 
dBm); or
    b.2. A pulsed output power equal to or greater than 75 W (48.75 
dBm) and a duty cycle of 20 percent or more.


0
8. Supplement No. 1 to Part 774--The Commerce Control List is amended 
by adding immediately following the entry for ECCN 3D980 and 
immediately preceding the entry for ECCN 3D991 a new entry 3D982 to 
read as follows:

3D982 ``Software'' ``specially designed'' for the ``development'' or 
``production'' of microwave or millimeter wave components classified 
under ECCN 3A982.

License Requirements

Reasons for Control: RS, AT

------------------------------------------------------------------------
                Control(s)                          Country chart
------------------------------------------------------------------------
RS applies to entire entry................  RS Column 1
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: N/A
Items: The list of items controlled is in the ECCN heading.


0
9. Supplement No. 1 to Part 774--The Commerce Control List is amended 
by adding immediately following the entry for ECCN 3E980 and 
immediately preceding the entry for ECCN 3E991 a new entry 3E982 to 
read as follows:

3E982 ``Technology'' ``required'' for the ``development'' or 
``production'' of microwave or millimeter wave components classified 
under ECCN 3A982.

License Requirements

Reasons for Control: RS, AT

------------------------------------------------------------------------
                Control(s)                          Country chart
------------------------------------------------------------------------
RS applies to entire entry................  RS Column 1
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: N/A
Items: The list of items controlled is in the ECCN heading.

    Dated: January 3, 2012.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2012-135 Filed 1-6-12; 8:45 am]
BILLING CODE 3510-33-P