[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Proposed Rules]
[Pages 36419-36423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14473]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 774

[Docket No. 120426028-1028-01]
RIN 0694-AF68


Feasibility of Enumerating ``Specially Designed'' Components

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Advanced notice of proposed rulemaking (ANPRM).

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SUMMARY: As part of the President's Export Control Reform (ECR) 
Initiative, this ANPRM requests comments on the feasibility of 
positively identifying ``specially designed'' ``components'' on the 
Commerce Control List (CCL) so as to decrease the use of the term, 
which appears extensively throughout the CCL,

[[Page 36420]]

and thereby facilitate enhanced public compliance with the Export 
Administration Regulations. Specifically, the Bureau of Industry and 
Security (BIS) is evaluating whether it is feasible to create 
exhaustive lists of the ``specially designed'' ``components'' referred 
to in certain Export Control Classification Numbers on the CCL that 
currently use ``specially designed'' catch-all paragraphs, and seeks 
public input to assist in this evaluation. If BIS ultimately determines 
that such lists might be beneficial, it intends to submit these 
findings to the appropriate multilateral export control regimes in the 
normal course of list proposal changes. The request for comments in 
this ANPRM is part of Commerce's retrospective plan under EO 13563 
completed in August 2011. Commerce's full plan can be accessed at: 
http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing-rules.

DATES: Comments must be received by BIS no later than September 17, 
2012.

ADDRESSES: Comments on this advanced notice of proposed rulemaking may 
be submitted to the Federal rulemaking portal (www.regulations.gov). 
The regulations.gov ID for this rule is: BIS-2012-0022. Written 
comments on this advanced notice of proposed rulemaking may also be 
submitted via email to [email protected] or on paper to 
Regulatory Policy Division, Bureau of Industry and Security, Room 
2099B, U.S. Department of Commerce, 14th St. and Pennsylvania Ave. NW., 
Washington, DC 20230. Please refer to RIN 0694-AF68 in all comments and 
in the subject line of email comments. All comments must be in writing. 
All comments (including any personal identifiable information) will be 
available for public inspection and copying. Those wishing to comment 
anonymously may do so by submitting their comment via regulations.gov 
and leaving the fields for identifying information blank.

FOR FURTHER INFORMATION CONTACT: Timothy Mooney, Regulatory Policy 
Division, Bureau of Industry and Security, Department of Commerce, 
Phone: (202) 482-2440, Fax: (202) 482-3355, Email: 
[email protected].

SUPPLEMENTARY INFORMATION

Background

    This ANPRM requests comments on a longer-term project involving 
minimizing the use of the term ``specially designed'' on the current 
Commerce Control List (CCL) by specifically identifying ``components.'' 
Specifically listing ``components,'' with multilateral agreement where 
appropriate, would make the CCL a more positive list.
    As part of the implementation of the Export Control Reform (ECR) 
Initiative, the Departments of Commerce and State published rules that 
proposed, as much as possible, a common definition of the term 
``specially designed.'' A common definition of ``specially designed'' 
would protect and enhance U.S. national security interests because the 
term ``specially designed'' would be used in the ``600 series'' that 
would be created to control United States Munitions List (USML) items 
moved to the CCL. In addition, the term ``specially designed'' is used 
widely on the current CCL.
    The request for comments in this ANPRM is part of Commerce's 
retrospective plan under EO 13563 completed in August 2011. Commerce's 
full plan can be accessed at: http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing-rules.

Request for Comments on the Feasibility of Enumerating ``Specially 
Designed'' ``Components''

    This ANPRM requests comments on the use of the term ``specially 
designed'' when applied to ``components'' outside of the ``600 series'' 
on the CCL. Specifically, the Bureau of Industry and Security is 
evaluating whether it is feasible to create exhaustive lists of the 
``specially designed'' ``components'' in certain Export Control 
Classification Numbers on the CCL that currently use ``specially 
designed'' catch-all paragraphs. BIS does not believe a similar 
approach is needed for ``parts'' controlled on the CCL, but BIS also 
requests public comments regarding whether a similar approach should 
also be evaluated for ``parts'' controlled on the CCL.
    Ultimately, any changes to multilaterally-controlled CCL entries 
would be made in cooperation with the multilateral export control 
regimes. This longer-term project may result eventually in a reduction 
in the use of the term ``specially designed'' outside of the ``600 
series'' on the CCL if exhaustive lists of such ``components'' can be 
identified and specified. To assist the public, BIS has identified the 
set of ECCN entries that are the best candidates for taking this 
approach.
    Most of the public comments and concerns about the July 15 proposed 
``specially designed'' definition included in the rule, Proposed 
Revisions to the Export Administration Regulations (EAR): Control of 
Items the President Determines No Longer Warrant Control Under the 
United States Munitions List (USML) (76 FR 41958) revolved around 
references in the application of the definition to existing CCL 
controls on ``components'' ``specially designed'' for a particular 
``end item'' or purpose. Minimizing use of the term ``specially 
designed'' by specifically listing controlled ``components'' may 
address some of these concerns.
    As described below, BIS parsed the CCL and removed all text that 
does not directly describe controls on ``components'' ``specially 
designed'' for an end item or purpose. To make the analysis easier and 
more relevant to the proposed definition of ``specially designed,'' BIS 
has not included in this ANPRM references to such controls in ECCNs 
that are controlled for only anti-terrorism reasons, because the number 
of circumstances where a licensing determination would be affected by 
whether a component is EAR99 or AT-only controlled is relatively small.
    BIS has also not included in this ANPRM the ECCNs where a component 
is solely or primarily controlled for Missile Technology (MT) reasons 
or where the MT controls overlap other controls, such as National 
Security (NS) controls. Because the EAR has adopted the Missile 
Technology Control Regime's definition of the term for such controls, 
BIS needs to further evaluate whether those ECCNs controlled for MT 
reasons would also be good candidates for specifically identifying 
``components.'' In responding to this ANPRM, the public may also submit 
comments regarding whether they believe a similar approach would also 
be feasible for items controlled for MT reasons, which BIS will factor 
into the evaluation for the scope of this review project going forward.
    Unlike the USML, the CCL does not contain a broad catch-all control 
on essentially all ``components'' ``specially designed'' for any other 
item identified on the CCL. You must carefully read each heading and 
each subparagraph. Some catch-all controls are in the heading and apply 
by reference to all items described in the subparagraphs, such as in 
ECCN 3B001. Other headings merely refer to the fact that some of the 
subparagraphs contain catch-all controls ``as follows,'' such as ECCN 
2B001 where only its subparagraph ``f'' contains controls on 
``specially designed'' ``components.'' (The fact that a ``specially 
designed'' ``component'' control exists in some of an ECCN's 
subparagraphs means, by negative implication, that such controls do not 
exist in the other subparagraphs in the

[[Page 36421]]

same ECCN.) Some ECCN headings do not refer to catch-all controls but 
individual subparagraphs do, such as in ECCN 8A002.a. Some ECCNs refer 
to specific types of ``components'' ``specially designed'' for other 
items in that ECCN, such as 2B005, which limits its ``component'' 
controls to ``specially designed automated handling, positioning, 
manipulation and control components.''
    Finally, a few ECCNs, such as 3A292, contain a specific, positive 
list of the types of components that are within the scope of that 
ECCN's controls on ``specially designed'' ``components.'' Specifically, 
3A292 contains a ``note'' stating that ``[s]pecially designed 
components controlled by this item are the following, for analog 
oscilloscopes: 1. Plug-in units; 2. External amplifiers; 3. Pre-
amplifiers; 4. Sampling devices; 5. Cathode ray tubes.'' Thus, only 
those particularly identified components are controlled in that ECCN. 
Another example is ECCN 6A002. ECCN 6A002.a.2 controls ``components'' 
``specially designed'' for ``image intensifier tubes'' described in 
ECCN 6A002.a.2.a. These components are described in three subparagraphs 
that specify the specially designed components under paragraph a.2.b, 
as follows: 1. Microchannel plates having a hole pitch (center-to-
center spacing) of 12 [micro]m or less; 2. GaAs or GaInAs 
photocathodes; and 3. Other III-V compound semiconductor photocathodes. 
To further refine what are considered specially designed components, a 
``note'' specifies that ``6A002.a.2.b.3 does not control compound 
semiconductor photocathodes with a maximum radiant sensitivity of 10 
mA/W or less.''

Request for Comments

    BIS seeks the advice and suggestions of the public regarding 
whether identifying the specific types of ``components'' controlled by 
the ECCNs identified below would be of assistance to exporters. If so, 
BIS requests public comment regarding the ``components'' that should be 
identified in a positive list within the scope of the ``specially 
designed'' controls of the ECCNs identified below. In addition to the 
ECCNs identified below, the public may also submit public comments on 
other ``specially designed'' ``component'' references on the CCL where 
the public believes a similar approach of identifying the specific 
types of ``components'' would be feasible. If a list of such components 
could be created, the United States could consider developing proposals 
for the relevant multilateral export control regimes to control only 
those ``components'' within the scope of the relevant ECCNs. BIS does 
not believe a similar approach is needed for ``parts'' controlled on 
the CCL, but BIS also requests public comments regarding whether a 
similar approach should also be evaluated for ``parts'' controlled on 
the CCL.
    BIS is particularly interested in comments from those with 
technical expertise related to or experience with classifying items 
identified below to provide advice on those items. The identified 
``components'' should be those that have specific performance 
parameters or functions which make them particularly suitable for use 
in the controlled items. They should also include those ``components'' 
that are the essence of the controlled end item.

CCL Entries Where the U.S. Government Is Evaluating the Feasibility of 
Enumerating ``Specially Designed'' ``Components''

    In the following list, BIS identifies ECCNs containing a control on 
a generic ``component'' ``specially designed'' for another item. The 
list does not include any references to any explanatory notes that may 
be germane to classifying an item against the ECCN. Thus, when 
preparing your suggested positive list of components for BIS to 
consider inserting into the ECCN, please read the whole ECCN for 
context.
    For purposes of this ANPRM, BIS is using the definition of 
``component'' from the July 15 proposed rule, as follows:
    ``Component.'' This is an item that is useful only when used in 
conjunction with an ``end item.'' Components are also commonly referred 
to as assemblies. For purposes of this definition an assembly and a 
component are the same. There are two types of ``components'': ``Major 
components'' and ``minor components.'' A ``major component'' includes 
any assembled element which forms a portion of an ``end item'' without 
which the end item is inoperable. For example, for an automobile, 
components will include the engine, transmission, and battery. If you 
do not have all those items, the automobile will not function, or 
function as effectively. A ``minor component'' includes any assembled 
element of a ``major component.'' ``Components'' consist of `parts.' '' 
References in the CCL to ``components'' include both ``major 
components'' and ``minor components.''

List of ECCN ``Specially Designed'' Paragraphs

    1. ECCN 1A004.a controls ``components'' ``specially designed'' for 
``gas masks, filter canisters and decontamination equipment therefor, 
designed or modified for defense against'' (1) ``biological agents 
`adapted for use in war;' '' (2) ``radioactive materials `adapted for 
use in war;' '' (3) ``chemical warfare (CW) agents;'' or (4) specific 
``riot control agents'' listed in ECCN 1A004.a.4.
    2. ECCN 1A004.c controls ``components'' ``specially designed'' for 
``[d]etection systems, specially designed or modified for detection or 
identification of'' (1) ``[b]iological agents `adapted for use in war;' 
'' (2) ``[r]adioactive materials `adapted for use in war;' '' or (3) 
``[c]hemical warfare (CW) agents.''
    3. ECCN 1A006 controls ``components'' ``specially designed'' for 
``remotely operated vehicles'' and ``disruptors'' ``specially designed 
or modified for the disposal of improvised explosive devices.''
    4. ECCN 1A008.b controls ``components'' ``specially designed'' for 
``linear shaped cutting charges'' that have ``an explosive load greater 
than 40 g/m'' and ``a width of 10 mm or more.''
    5. ECCN 1B001.e controls ``components'' ``specially designed'' for 
``[e]quipment for producing prepregs controlled by 1C010.e by the hot 
melt method.''
    6. ECCN 1B001.f controls ``components'' ``specially designed'' for 
``[n]on-destructive inspection equipment specially designed for 
`composite' materials'' as described in ECCN 1B001.f.1 and f.2.
    7. ECCN 1B003.c controls ``components'' ``specially designed'' for 
``[t]ools, dies, molds or fixtures, for `superplastic forming' or 
`diffusion bonding' titanium, aluminum or their alloys, specially 
designed for the manufacture of'' ``airframe or aerospace structures'' 
or ``aerospace engines.''
    8. ECCN 2B003 controls ``components'' ``specially designed'' for ` 
``[n]umerically controlled' or manual machine tools * * * specially 
designed for the shaving, finishing, grinding or honing of hardened 
(Rc = 40 or more) spur, helical and double-helical gears 
with a pitch diameter exceeding 1,250 mm and a face width of 15% of 
pitch diameter or larger finished to a quality of AGMA 14 or better 
(equivalent to ISO 1328 class 3).''
    9. ECCN 3A001.c controls ``components'' ``specially designed'' for 
``[a]coustic wave devices'' that have any of the characteristics 
described in 3A001.c.1.a., c.1.b., c.1.c, c.2 or c.3.

[[Page 36422]]

    10. ECCN 3A003 controls ``components'' ``specially designed'' for 
``[s]pray cooling thermal management systems employing closed loop 
fluid handling and reconditioning equipment in a sealed enclosure where 
a dielectric fluid is sprayed onto electronic components using 
specially designed spray nozzles that are designed to maintain 
electronic components within their operating temperature range.''
    11. ECCN 3A292.d controls ``components'' ``specially designed'' for 
``[d]igital oscilloscopes and transient recorders, using analog-to-
digital conversion techniques, capable of storing transients by 
sequentially sampling single-shot inputs at successive intervals of 
less than 1 ns (greater than 1 giga-sample per second), digitizing to 8 
bits or greater resolution and storing 256 or more samples.''
    12. ECCN 3B001.a controls ``components'' ``specially designed'' for 
``equipment designed for epitaxial growth as follows:'' (1) 
``[e]quipment capable of producing a layer of any material other than 
silicon with a thickness uniform to less than 2.5% across a 
distance of 75 mm or more;'' (2) ``Metal Organic Chemical Vapor 
Deposition (MOCVD) reactors specially designed for compound 
semiconductor crystal growth by the chemical reaction between materials 
controlled by 3C003 or 3C004;'' or (3) ``[m]olecular beam epitaxial 
growth equipment using gas or solid sources.''
    13. ECCN 3B001.b. controls ``components'' ``specially designed'' 
for ``[e]quipment designed for ion implantation and having any of the 
following:'' (1) ``[a] beam energy (accelerating voltage) exceeding 
1MeV;'' (2) ``[b]eing specially designed and optimized to operate at a 
beam energy (accelerating voltage) of less than 2 keV;'' (3) ``[d]irect 
write capability;'' or (4) ``beam energy of 65 keV or more and a beam 
current of 45 mA or more for high energy oxygen implant into a heated 
semiconductor material `substrate.' ''
    14. ECCN 3B001.c. controls ``components'' ``specially designed'' 
for ``[a]nisotropic plasma dry etching equipment'' having all the 
following: (1) ``[d]esigned or optimized to produce critical dimensions 
of 65 nm or less;'' and (2) ``[w]ithin wafer non-uniformity equal to or 
less than 10% 3[sigma] measured with an edge exclusion of 2 mm or 
less.''
    15. ECCN 3B001.e controls ``components'' ``specially designed'' for 
``[a]utomatic loading multi-chamber central wafer handling systems'' 
having (1) ``[i]nterfaces for wafer input and output, to which more 
than two functionally different `semiconductor process tools' 
controlled by 3B001.a, 3B001.b, 3B001.c or 3B001.d are designed to be 
connected;'' and (2) ``[d]esigned to form an integrated system in a 
vacuum environment for `sequential multiple wafer processing.' ''
    16. ECCN 3B001.f.1 controls ``components'' ``specially designed'' 
for ``[l]ithography equipment'' that ``[a]lign[s] and expose[s] step 
and repeat (direct step on wafer) or step and scan (scanner) equipment 
for wafer processing using photo-optical or X-ray methods and having'' 
any of the following (a) ``light source wavelength shorter than 245 
nm;'' or (b) ``[c]apable of producing a pattern with a `Minimum 
Resolvable Feature size' (MRF) of 95 nm or less.''
    17. ECCN 3B001.f.2 controls ``components'' ``specially designed'' 
for ``[i]mprint lithography equipment capable of production features of 
95 nm or less'' described in ECCN 3B001.f.2.
    18. ECCN 3B001.f.3 controls ``components'' ``specially designed'' 
for ``[e]quipment specially designed for mask making or semiconductor 
device processing using direct writing methods, having'' all the 
characteristics described in ECCN 3B001.f.3.a. and any of the 
characteristics described in .b.
    19. ECCN 3B002 controls ``components'' ``specially designed'' for 
``[t]est equipment specially designed for testing finished or 
unfinished semiconductor devices as follows * * *'' (1) ``[f]or testing 
S-parameters of transistor devices at frequencies exceeding 31.8 GHz;'' 
or (2) ``[f]or testing microwave integrated circuits controlled by 
3A001.b.2.''
    20. ECCN 4A003.c controls `` `[e]lectronic assemblies' specially 
designed or modified to be capable of enhancing performance by 
aggregation of processors so that the `APP' of the aggregation exceeds 
the limit in 4A003.b.''
    21. ECCN 4A003.e controls ``components'' ``specially designed'' for 
``[e]quipment performing analog-to-digital conversions exceeding the 
limits in 3A001.a.5.''
    22. ECCN 4A003.g controls ``components'' ``specially designed'' for 
``[e]quipment specially designed for aggregating the performance of 
`digital computers' by providing external interconnections which allow 
communications at unidirectonal data rates exceeding 2.0 Gbyte/s per 
link.''
    23. ECCN 4A004 controls ``components'' ``specially designed'' for 
(a) ``[s]ystolic array computers;'' (b) ``[n]eural computers;'' and (c) 
``[o]ptical computers.''
    24. ECCN 5A001.b controls ``components'' ``specially designed'' for 
``telecommunication systems and equipment, having any of 
``characteristics, functions or features'' described in ECCN 5A001.b.1, 
b.2, b.3, b.4, b.5, or b.6.
    25. ECCN 5A001.e controls ``components'' ``specially designed'' for 
radio direction finding equipment operating at frequencies above 30 MHz 
and having (1) `` `instantaneous bandwidth' of 10 MHz or more;'' and 
(2) ``capable of finding a Line Of Bearing (LOB) to non-cooperating 
radio transmitters with a signal duration of less than 1 ms.''
    26. ECCN 5A001.f controls ``components'' ``specially designed'' for 
``[j]amming equipment specially designed or modified to intentionally 
and selectively interfere with, deny, inhibit, degrade or seduce mobile 
telecommunication services and'' (1) ``simulate the functions of Radio 
Access Network (RAN) equipment;'' (2) ``detect and exploit specific 
characteristics of the mobile telecommunications protocol employed 
(e.g., GSM);'' or (3) ``exploit specific characteristics of the mobile 
telecommunications protocol employed (e.g., GSM).''
    27. ECCN 5B001.a controls ``components'' ``specially designed'' for 
``equipment * * * specially designed for the `development', 
`production' or `use' of equipment, functions or features, controlled 
by 5A001.''
    28. ECCN 5B001.b controls ``components'' ``specially designed'' for 
``equipment * * * specially designed for the `development' of any of 
the following telecommunication transmission or switching equipment'' 
``employing a `laser' '' and (a) having ``a transmission wavelength 
exceeding 1750 nm;'' (b) ``performing `optical amplification' using 
Praseodymium-Doped Fluoride Fiber Amplifiers (PDFFA);'' (c) ``employing 
coherent optical transmission or coherent optical detection techniques 
(also called optical heterodyne or homodyne techniques);'' or (d) 
``employing analog techniques and having a bandwidth exceeding 2.5 
GHz.''
    29. ECCN 5B001.b also controls ``components'' ``specially 
designed'' for ``equipment * * * specially designed for the 
`development' of any of the following telecommunication transmission or 
switching equipment'' (a) ``radio equipment employing Quadrature-
Amplitude-Modulation (QAM) techniques above level 256;'' or (b) 
``equipment employing `common channel signaling' operating in non-
associated mode of operation.''

[[Page 36423]]

    30. ECCN 5A002.a controls ``components'' ``specially designed'' for 
``systems, equipment, application specific `electronic assemblies', 
modules and integrated circuits for `information security' '' if they 
were also ``specially designed for `information security.' ''
    31. ECCN 6A001.a.1 controls ``components'' ``specially designed'' 
for ``marine acoustic systems'' that are within the scope of ECCN 
6A001.a.1.a, a.1.b, a.1.c., a.1.d, or a.1.e.
    32. ECCN 6A001.a.2 controls ``components'' ``specially designed'' 
for ``passive systems'' described in 6A001.a.2.a, a.2.b, a.2.c., a.2.d, 
a.2.e, or a.2.f.
    33. ECCN 6A004.a.1 controls ``components'' `` `specially designed' 
for `deformable mirrors' having either continuous or multi-element 
surfaces * * * capable of dynamically repositioning portions of the 
surface of the mirror at rates exceeding 100 Hz.''
    34. ECCN 6A005.e.2. controls ``components'' (optical mirrors, 
transmissive or partially transmissive optical or electro-optical 
components) ``specially designed'' for use with controlled lasers.
    35. ECCN 6A203.a controls ``components'' ``specially designed'' for 
``mechanical rotating mirror cameras'' that are (1) ``framing cameras 
with recording rates greater than 225,000 frames per second;'' or (2) 
``streak cameras with writing speeds greater than 0.5 mm per 
microsecond.''
    36. ECCN 6A998.a controls ``components'' ``specially designed'' for 
``airborne radar equipment, n.e.s.''
    37. ECCN 6A998.b controls ``components'' ``specially designed for 
`` `space-qualified' `laser' radar or Light Detection and Ranging 
(LIDAR) equipment specially designed for surveying or for 
meteorological observation.''
    38. ECCN 7A008 controls ``components'' ``specially designed'' for 
``underwater sonar navigation systems using Doppler velocity or 
correlation velocity logs integrated with a heading source and having a 
positioning accuracy of equal to or less (better) than 3% of distance 
traveled `Circular Error Probable' (`CEP').''
    39. ECCN 8A002.a controls ``components'' ``specially designed'' for 
``submersible vehicles and designed to operate at depths exceeding 
1,000 m'' that have (1) ``pressure housings or pressure hulls with a 
maximum inside chamber diameter exceeding 1.5 m,'' (2) ``direct current 
propulsion motors or thrusters,'' (3) ``umbilical cables, and 
connectors therefor, using optical fiber and having synthetic strength 
members,'' and (4) ``components manufactured from material specified by 
ECCN 8C001.''
    40. ECCN 9A002 controls ``components'' ``specially designed'' for 
`` `marine gas turbine engines' with an ISO standard continuous power 
rating of 24,245 kW or more and a specific fuel consumption not 
exceeding 0.219 kg/kWh in the power range from 35 to 100%.''
    41. ECCN 9A003.a controls ``components'' and ``assemblies'' that 
``incorporat[e] any of the `technologies' controlled by 9E003.a, 
9E003.h or 9E003.i'' and were ``specially designed'' for gas turbine 
engines ``controlled by ECCN 9A001.''
    42. ECCN 9A003.b controls ``components'' and ``assemblies'' that 
``incorporat[e] any of the `technologies' controlled by 9E003.a, 
9E003.h or 9E003.i'' and ``whose design or production origins are 
either countries in Country Group D:1 or unknown to the manufacturer.''
    Comments should be submitted to BIS as described in the ADDRESSES 
section of this notice by September 17, 2012.

    Dated: June 6, 2012.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2012-14473 Filed 6-15-12; 11:15 am]
BILLING CODE 3510-33-P