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.

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: wfisher@bis.doc.gov. 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.” 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 David_Rostker@omb.eop.gov, 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

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

PART 774—[AMENDED]

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]

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.

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.