Revisions to the Export Administration Regulations to Enhance U.S. Homeland Security: Addition of Three Export Control Classification Numbers (ECCNs) and License Review Policy

Federal Register: March 25, 2010 (Volume 75, Number 57)

Rules and Regulations

Page 14335-14342

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr25mr10-5

DEPARTMENT OF COMMERCE

Bureau of Industry and Security 15 CFR Parts 740, 742, 748, and 774

Docket No. 0906041008-91452-01

RIN 0694-AE64

Revisions to the Export Administration Regulations To Enhance

U.S. Homeland Security: Addition of Three Export Control Classification

Numbers (ECCNs) and License Review Policy

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

SUMMARY: This rule amends the Export Administration Regulations (EAR) by revising controls to advance U.S. homeland security and foreign policy interests. The revisions include language that should facilitate public understanding of how concealed object detection equipment is treated for purposes of U.S. Government export controls, in particular by detailing the

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technical parameters of concealed object detection equipment that is subject to the Export Administration Regulations. These amendments reflect issues identified by an interagency working group that is reviewing export control issues related to homeland security. The interagency working group is made up of representatives from the

Departments of Commerce, Defense, Homeland Security and State. The purpose of the interagency working group is to ensure that appropriate export controls are in place to protect U.S. export control interests for homeland security related items, while at the same time facilitating the development, production and use of items that will enhance U.S. homeland security and the homeland security of key U.S. allies. To help accomplish these objectives, this rule adds three new entries to the Commerce Control List (CCL) to control certain concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and related software and technology. In addition, to facilitate the export and reexport of these items to certain trusted destinations and end-users, this rule adds new license review criteria to the EAR to create a presumption of approval for certain cooperating countries provided the items are being made to a government end-user or to a person designated by the government end-user pursuant to contract.

DATES: Effective Date: This rule is effective March 25, 2010. 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-AE64, by any of the following methods:

E-mail: publiccomments@bis.doc.gov. Include ``RIN 0694-AE64'' 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: Timothy Mooney, 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-AE64.

Send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to

Jasmeet K. Seehra, Office of Management and Budget (OMB), by e-mail to

Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security,

Department of Commerce, 14th St. & 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-AE64)--all comments on the latter should be submitted by one of the three methods outlined above.

FOR FURTHER INFORMATION CONTACT: Ronald Rolfe, Senior Engineer/

Licensing Officer, Nuclear Missile Technology Controls Division, Office of Nonproliferation and Treaty Compliance, telephone: (202) 482-4563.

SUPPLEMENTARY INFORMATION:

Background

The Export Administration Regulations (EAR) protect the national security and foreign policy interests of the United States, which includes protecting the homeland security interests of the United

States. BIS has previously adapted the EAR to address homeland security related export control issues through measures such as expanding the

Entity List to add Sec. 744.11 (License Requirements that Apply to

Entities Acting Contrary to the National Security or Foreign Policy

Interests of the United States to the EAR), see 73 FR 49311, Aug. 21, 2008, and adding restrictions on certain designated persons in Sec. 744.8 (Restrictions on exports and reexports to persons designated pursuant to Executive Order 13382--Blocking Property of Weapons of Mass

Destruction Proliferators and Their Supporters), see 74 FR 2355, Jan. 15, 2009. An interagency working group on homeland security export control issues, composed of representatives from the Departments of

Commerce, Defense, Homeland Security, and State, has identified additional areas where changes should be made to the EAR. This rule implements the first set of changes identified by the interagency working group by adding language to facilitate public understanding of how concealed object detection equipment is treated for purposes of

U.S. Government export controls in particular by detailing the technical parameters of concealed object detection equipment that is subject to the Export Administration Regulations. These changes to the

EAR are also in the foreign policy interest of the United States.

Development, Production and Procurement of Homeland Security Items

The Department of Homeland Security (DHS) has research and development (R&D) and procurement programs that are used to develop, produce and procure items for homeland security. These R&D and procurement activities include the use of various government agencies, both within DHS and outside of DHS, along with various private sector contractors. The U.S. Government also maintains international cooperative homeland security agreements with certain countries. These agreements facilitate collaborative efforts with partner countries to develop, produce and deploy homeland security items. The U.S.

Government has agreements with the following nine countries: Australia,

Canada, France, Germany, Israel, Mexico, Singapore, Sweden, and the

United Kingdom. The U.S. Government has pending agreements with the

European Union (nonbinding implementing arrangement only), the

Netherlands, New Zealand and Japan.

CCL Based Controls Need To Evolve To Keep Pace With Homeland Security

Innovations

The interagency working group on homeland security related export control issues is working to identify any areas in which CCL-based controls may not control DHS-related innovations at an appropriate level. This rule addresses one such area by adding three new entries to the Commerce Control List (CCL) to control certain concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and related software and technology. Specifically, this rule makes the following changes to the Export Administration Regulations:

(1) In Supplement No. 1 to part 774, the Commerce Control List

(CCL), this rule adds three new Export Control Classification Numbers

(ECCNs) 2A984, 2D984 and 2E984. These three new ECCNs will be subject to Regional Stability (RS 2) and Anti-terrorism (AT 1) controls on the

CCL. BIS worked with the Departments of State, Defense and Homeland

Security to develop these new controls.

ECCN 2A984 controls concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution of 0.5 milliradian up to and including 1 milliradian at a standoff distance of 100 meters. A ``Note'' to this ECCN entry clarifies that concealed object detection equipment includes but is not limited to equipment for screening people, documents, baggage, other personal effects, cargo and/or mail. A ``Technical Note'' to this ECCN entry clarifies that the range of frequencies span what is generally

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considered as the millimeter-wave, submillimeter-wave and terahertz frequency regions.

ECCN 2A984 includes references to make the public aware of

``Related Controls'' for these types of concealed object detection equipment. Specifically, ECCN 2A984 specifies the following three

``Related Controls'': (1) Concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution less than 0.5 milliradian (a lower milliradian number means a more accurate image resolution) at a standoff distance of 100 meters is under the export licensing authority of the U.S.

Department of State (22 CFR parts 120 through 130). (2) Concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution greater than 1 milliradian

(a higher milliradian number means a less accurate image resolution) at a standoff distance of 100 meters is designated as EAR99. (3) See ECCNs 2D984 and 2E984 for related software and technology controls.

ECCN 2D984 controls software ``required'' for the ``development,''

``production'' or ``use'' of concealed object detection equipment controlled by 2A984.

ECCN 2E984 controls technology ``required'' for the

``development,'' ``production'' or ``use'' of equipment controlled by 2A984 or ``required'' for the ``development'' of software controlled by 2D984.

(2) This rule amends two existing ECCNs to conform with the three new ECCNs added to the CCL with this final rule. Specifically:

ECCN 2E001 is amended by revising the heading of the ECCN to clarify that this ECCN entry does not include technology for 2A984, which will be controlled under new ECCN 2E984, as described above.

ECCN 2E002 is amended by revising the heading of the ECCN to clarify that this ECCN entry does not include technology for 2A984, which will be controlled under new ECCN 2E984, as described above.

(3) In part 740 (License Exceptions), this rule expands one of the general restrictions on the use of license exceptions under Sec. 740.2

(Restrictions on all License Exceptions) by adding three additional

ECCNs that are included in the scope of the general restrictions.

Specifically, this rule adds ECCNs 2A984, 2D984 and 2E984 to paragraph

(a)(8) of Sec. 740.2. Prior to publication of this rule, paragraph

(a)(8) of Sec. 740.2 only applied to ECCNs 2A983, 2D983 and 2E983.

With the publication of this rule, paragraph (a)(8) of Sec. 740.2 will include ECCNs 2A983, 2A984, 2D983, 2D984, 2E983 and 2E984. Because of this general restriction, items controlled under ECCNs 2A983, 2A984, 2D983, 2D984, 2E983 or 2E984 are not eligible for export pursuant to any license exception unless the license exception is one of those specified in paragraph (a)(8)(i), (ii) or (iii).

Lastly, as a technical correction to a final rule that was published in July 2004, this rule removes an incorrect cross reference in paragraph (a)(8)(ii) that referenced a paragraph in License

Exception GOV (i.e., Sec. 740.11(b)(2)(v)) that does not exist. This inadvertent cross reference was added to the EAR on July 30, 2004 (69

FR 46070).

(4) In Sec. 740.10 (Servicing and replacement of parts and equipment (RPL)), this rule expands the scope of paragraph (c) (Special

Recordkeeping Requirements: ECCNs 2A983 and 2D983) by adding new ECCNs 2A984 and 2D984 to these special record keeping requirements.

Specifically, in addition to any other recordkeeping requirements set forth elsewhere in the EAR, exporters are required to maintain records, as specified in this section, for any items exported or reexported pursuant to License Exception RPL to repair or service previously legally exported or reexported items controlled under ECCNs 2A983, 2A984, 2D983 and 2D984. Requirements for what additional information needs to be kept are specified under paragraph (c).

(5) In Sec. 740.13 (Technology and software--unrestricted (TSU)), this rule expands the scope of paragraph (f)(Special Recordkeeping

Requirements: ECCNs 2D983 and 2E983) by adding new ECCNs 2D984 and 2E984 to these special record keeping requirements. Specifically, in addition to any other recordkeeping requirements set forth elsewhere in the EAR, exporters are required to maintain records, as specified in this paragraph, when exporting operation software or technology controlled under ECCNs 2D983, 2D984, 2E983, and 2E984, respectively, under License Exception TSU. Records maintained pursuant to this section may be requested at any time by an appropriate BIS official as set forth in Sec. 762.7 of the EAR. Requirements for what additional information needs to be kept are specified under paragraph (f).

(6) In part 742 (Control Policy--CCL Based Controls), this rule adds a new license review policy in Sec. 742.6 (Regional Stability), to facilitate the export of items classified under ECCNs 2A984, 2D984 and 2E984 that are being exported or reexported to certain trusted destinations and end-users. Specifically, this new license review policy states that applications to export and reexport items controlled under ECCNs 2A984, 2D984 and 2E984 will be reviewed under a presumption of approval when exported or reexported to Austria, Cyprus, Finland,

Ireland, Israel, Malta, Mexico, Singapore or Sweden, provided the items are being made to a government end-user or to a person designated by the government end-user pursuant to contract. License applications to export to a designated person must include a statement from the government end-user that the contractor is so designated.

This license review policy specifically names Austria, Cyprus,

Finland, Ireland, Israel, Malta, Mexico, Singapore and Sweden because, under Sec. 742.6(a)(4)(i), as indicated in the CCL and in RS Column 2 of the Country Chart (see Supplement No. 1 to part 738 of the EAR), a license is not required to export items controlled for RS Column 2 to

Australia, Japan, New Zealand, and countries in the North Atlantic

Treaty Organization (NATO). Implementing this license review policy for

Austria, Cyprus, Finland, Ireland, Israel, Malta, Mexico, Singapore and

Sweden will therefore facilitate the export and reexport of items controlled under ECCNs 2A984, 2D984 and 2E984 to all of the countries that currently maintain international cooperative homeland security agreements or are party to an implementing arrangement with the United

States.

This new licensing policy for ECCNs 2A984, 2D984 and 2E984 differs from the licensing policy for the other RS Column 2 controlled items listed under Sec. 742.6(a)(4)(i). Applications to export or reexport any other RS Column 2 controlled items listed in Sec. 742.6(a)(4)(i) to Austria, Cyprus, Finland, Ireland, Israel, Malta, Mexico, Singapore and Sweden will generally be considered favorably on a case-by-case basis unless there is evidence that the export or reexport would contribute significantly to the destabilization of the region to which the equipment is destined. The license review policy for any destination other than for Austria, Cyprus, Finland, Ireland, Israel,

Malta, Mexico, Singapore and Sweden (i.e., other countries subject to an RS Column 2 license requirement) for the new ECCNs will be the same as other RS Column 2 controlled items listed under Sec. 742.6(a)(4)(i), meaning applications to export or reexport items controlled by ECCNs 2A984, 2D984 and 2E984 will generally be considered favorably on a case-by-case basis unless there is evidence that the export or reexport

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would contribute significantly to the destabilization of the region to which the equipment is destined.

(7) Also in Sec. 742.6, this rule revises paragraph (c) (Contract

Sanctity Date) by redesignating paragraph (c) as paragraph (c)(1) and adding a new paragraph (c)(2) to provide contract sanctity provisions for the three new ECCNs added to the CCL with this rule: ECCNs 2A984, 2D984 and 2E984. These new contract sanctity provisions will be applicable as of March 19, 2010. This contract sanctity date applies only to items controlled under ECCNs 2A984, 2D984 and 2E984 destined for countries not listed in Country Group E (Supplement 1 to part 740).

(8) In Sec. Sec. 742.9 (Syria), 742.10 (Sudan) and 742.19 (North

Korea), under paragraph (b) (Licensing Policy) in each of these sections, this rule adds three new paragraphs under paragraph (b) to indicate the licensing policy for the three new ECCNs added to the CCL with this rule: ECCNs 2A984, 2D984 and 2E984. These new paragraphs indicate that applications for export and reexport to all end-users in these three countries (Syria, Sudan, and North Korea) of items controlled under ECCNs 2A984, 2D984 and 2E984 will generally be denied.

(9) In Supplement No. 2 to part 742 (Anti-Terrorism Controls: North

Korea, Syria and Sudan Contract Sanctity Dates and Related Policies), to conform with the contract sanctity provisions added to paragraph (b) in Sec. Sec. 742.9, 742.10 and 742.19, as described above, this rule adds new contract sanctity provisions under paragraph (c) of Supplement

No. 2 for the three ECCNs added to the CCL with this rule: ECCNs 2A984, 2D984 and 2E984. Specifically, this rule adds new paragraphs (c)(46),

(c)(47) and (c)(48) to Supplement No. 2 to provide guidance to the public on the license review policy for ECCNs 2A984, 2D984 and 2E984 for North Korea, Syria and Sudan, respectively.

(10) In Supplement No. 2 to part 748 (Unique application and submission requirements), this rule revises paragraph (k) (Regional stability controlled items) by redesignating paragraph (k) as paragraph

(k)(1) and adding a new paragraph (k)(2) to provide guidance on additional support documentation that must be submitted for certain export or reexport license applications for items classified as ECCNs 2A984, 2D984 and 2E984 to certain countries and end-users.

Specifically, this new paragraph states that if you are submitting a license application for the export or reexport to Austria, Cyprus,

Finland, Ireland, Israel, Malta, Mexico, Singapore or Sweden of items controlled by ECCNs 2A984, 2D984 and 2E984 to a person designated by a government end-user, pursuant to contract, your license application to export to such designated person must include a statement from the government end-user that the person is so designated. A responsible official representing the designated end-user must sign the statement.

``Responsible official'' is defined as someone with personal knowledge of the information included in the statement, and authority to bind the designated end-user for whom they sign, and who has the power and authority to control the use and disposition of the licensed items.

Statements from government end-users that the person is so designated

(i.e., support documents submitted in accordance with paragraph (k)(2)) must address the following three criteria for a license application to be reviewed in accordance with the license review policy in Sec. 742.6(b)(2)(ii): (1) U.S. Department of Homeland Security (DHS)

Customer Contract Number or agreement reference number, End-user name

(company), complete address (including street address, city, state, country and postal code), end-user point of contact (POC); (2) Brief contract description, including DHS Project information and projected outcome; and (3) the statement shall include a certification stating

``We certify that all of the representations in this statement are true and correct to the best of our knowledge and we do not know of any additional representations which are inconsistent with the above statement.''

Savings Clause

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on March 25, 2010, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a

License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before April 26, 2010. Any such items not actually exported or reexported before midnight, on April 26, 2010, require a license in accordance with this rule.

Consistent with the provisions of section 6 of the Export

Administration Act of 1979, as amended (EAA), a foreign policy report was submitted to Congress on March 19, 2010, notifying Congress of the imposition of foreign policy-based licensing requirements reflected in this rule.

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 August 13, 2009

(74 FR 41325 (August 14, 2009)), has continued the Export

Administration Regulations in effect under the International Emergency

Economic Powers Act.

Rulemaking Requirements 1. This rule has been determined to be significant for purposes of

Executive Order 12866. 2. Notwithstanding any other provision of law, no person is required to respond to nor 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 regulation involves collections previously approved by the OMB under control numbers 0694- 0088, ``Multi-Purpose Application,'' which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748.

Miscellaneous and recordkeeping activities account for 12 minutes per submission. Total burden hours associated with the Paperwork Reduction

Act and Office of Management and Budget control number 0694-0088 are expected to increase slightly as a result 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 or foreign affairs function of the United States. (See 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 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.

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List of Subjects 15 CFR Parts 740 and 748

Administrative practice and procedure, Exports, Reporting and recordkeeping requirements. 15 CFR Part 742

Exports, Terrorism. 15 CFR Part 774

Exports, Reporting and recordkeeping requirements. 0

Accordingly, parts 740, 742, 748, and 774 of the Export Administration

Regulations (15 CFR parts 730-774) are amended as follows:

PART 740--[AMENDED] 0 1. The authority citation for 15 CFR 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 13, 2009, 74 FR 41325 (August 14, 2009). 0 2. Section 740.2 is amended: 0 a. By revising the introductory text of paragraph (a)(8); and 0 b. By revising paragraph (a)(8)(ii) to read as follows:

Sec. 740.2 Restrictions on all License Exceptions.

(a) * * *

(8) The item is controlled under ECCNs 2A983, 2A984, 2D983, 2D984, 2E983 or 2E984 and the License Exception is other than:

* * * * *

(ii) GOV, restricted to eligibility under the provisions of Sec. 740.11(b)(2)(ii); or

* * * * * 0 3. Section 740.10 is amended: 0 a. By redesignating paragraph (a)(3)(vi) as paragraph (a)(3)(vii); 0 b. By adding new paragraph (a)(3)(vi); and 0 c. By revising the heading for paragraph (c) and the introductory text of paragraph (c)(1).

The revision and addition read as follows:

Sec. 740.10 Servicing and replacement of parts and equipment (RPL).

* * * * *

(a) * * *

* * * * *

(3) * * *

(vi) No replacement parts may be exported to countries in Country

Group E:1 if the commodity to be repaired is concealed object detection equipment controlled under ECCN 2A984 or related software controlled under ECCN 2D984.

* * * * *

(c) Special recordkeeping requirements: ECCNs 2A983, 2A984, 2D983 and 2D984. (1) In addition to any other recordkeeping requirements set forth elsewhere in the EAR, exporters are required to maintain records, as specified in this section, for any items exported or reexported pursuant to License Exception RPL to repair or service previously legally exported or reexported items controlled under ECCNs 2A983, 2A984, 2D983 and 2D984. The following information must be specially maintained for each such export or reexport transaction:

* * * * * 0 4. Section 740.13 is amended by revising the introductory text of paragraph (f) to read as follows:

Sec. 740.13 Technology and software --unrestricted (TSU).

* * * * *

(f) Special recordkeeping requirements: ECCNs 2D983, 2D984, 2E983 and 2E984. In addition to any other recordkeeping requirements set forth elsewhere in the EAR, exporters are required to maintain records, as specified in this paragraph, when exporting operation software or technology controlled under ECCNs 2D983, 2D984, 2E983, and 2E984, respectively, under License Exception TSU. Records maintained pursuant to this section may be requested at any time by an appropriate BIS official as set forth in Sec. 762.7 of the EAR. The following information must be specially maintained for each export or reexport transaction, under License Exception TSU, of operation software and technology controlled by ECCNs 2D983, 2D984, 2E983, and 2E984:

* * * * *

PART 742--[AMENDED] 0 5. 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 August 13, 2009, 74 FR 41325 (August 14, 2009); Notice of November 6, 2009, 74 FR 58187 (November 10, 2009). 0 6. Section 742.6 is amended: 0 a. By revising paragraph (a)(4)(i); 0 b. By revising paragraph (b)(2); 0 c. By redesignating paragraph (c) as (c)(1); and 0 d. By adding paragraph (c)(2), to read as follows:

Sec. 742.6 Regional stability.

(a) * * *

(4) * * *

(i) License Requirements Applicable to Most RS Column 2 Items. As indicated in the CCL and in RS Column 2 of the Commerce Country Chart

(see Supplement No. 1 to part 738 of the EAR), a license is required to any destination except Australia, Japan, New Zealand, and countries in the North Atlantic Treaty Organization (NATO) for items described on the CCL under ECCNs 0A918, 0E918, 1A004.d, 1D003 (software to enable equipment to perform the functions of equipment controlled by 1A004.d), 1E001 (technology for the development, production, or use of 1A004.d), 2A983, 2A984, 2D983, 2D984, 2E983, 2E984, 8A918, and for military vehicles and certain commodities (specially designed) used to manufacture military equipment, described on the CCL in ECCNs 0A018.c, 1B018.a, 2B018, 9A018.a and .b, 9D018 (only software for the ``use'' of commodities in ECCN 9A018.a and .b), and 9E018 (only technology for the

``development'', ``production'', or ``use'' of commodities in 9A018.a and .b).

* * * * *

(b) * * *

(2) Licensing policy for RS Column 2 items. (i) Except as described in paragraph (b)(2)(ii), applications to export and reexport commodities described in paragraph (a)(4) of this section will generally be considered favorably on a case-by-case basis unless there is evidence that the export or reexport would contribute significantly to the destabilization of the region to which the equipment is destined.

(ii) Applications to export and reexport items controlled under

ECCNs 2A984, 2D984 and 2E984 will be reviewed under a presumption of approval when exported or reexported to Austria, Cyprus, Finland,

Ireland, Israel, Malta, Mexico, Singapore or Sweden, provided the items to be exported or reexported are being made to a government end-user or to a person designated by the government end-user pursuant to contract.

License applications to export to a designated person must include a statement from the government end-user that the person is so designated. See Supplement No. 2 to part 748, paragraph (k)(2).

* * * * *

(c) * * *

(2) Contract sanctity date: March 19, 2010. This contract sanctity date applies

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only to items controlled under ECCNs 2A984, 2D984 and 2E984 destined for countries not listed in Country Group E (Supplement 1 to part 740).

See parts 742 and 746 for the contract sanctity requirements applicable to exports and reexports to countries listed in Country Group E.

* * * * * 0 7. Section 742.9 is amended by adding paragraphs (b)(1)(xii),

(b)(1)(xiii), and (b)(1)(xiv), to read as follows:

Sec. 742.9 Anti-terrorism: Syria.

* * * * *

(b) * * *

(1) * * *

(xii) Concealed object detection equipment controlled under ECCN 2A984.

(xiii) ``Software'' (ECCN 2D984) ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984.

(xiv) ``Technology'' (ECCN 2E984) ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984, or the ``development'' of

``software'' controlled by 2D984.

* * * * * 0 8. Section 742.10 is amended by adding paragraphs (b)(1)(xii),

(b)(1)(xiii), and (b)(1)(xiv), to read as follows:

Sec. 742.10 Anti-Terrorism: Sudan.

* * * * *

(b) * * *

(1) * * *

(xii) Concealed object detection equipment controlled under ECCN 2A984.

(xiii) ``Software'' (ECCN 2D984) ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984.

(xiv) ``Technology'' (ECCN 2E984) ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984, or the ``development'' of

``software'' controlled by 2D984.

* * * * * 0 9. Section 742.19 is amended by adding paragraphs (b)(1)(xxii),

(b)(1)(xxiii), and (b)(1)(xxiv), to read as follows:

Sec. 742.19 Anti-terrorism: North Korea.

* * * * *

(b) * * *

(1) * * *

(xxii) Concealed object detection equipment controlled under ECCN 2A984.

(xxiii) ``Software'' (ECCN 2D984) ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984.

(xxiv) ``Technology'' (ECCN 2E984) ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984, or the ``development'' of

``software'' controlled by 2D984.

* * * * * 0 10. Supplement No. 2 to Part 742 is amended by adding paragraphs

(c)(46), (c)(47), and (c)(48), to read as follows:

Supplement No. 2 to Part 742--Anti-Terrorism Controls: North Korea,

Syria and Sudan Contract Sanctity Dates and Related Policies

* * * * *

(c) * * *

* * * * *

(46) Concealed object detection equipment described in ECCN 2A984.

(i) Syria. Applications for all end-users in Syria of these commodities will generally be denied. Contract sanctity date: March 19, 2010.

(ii) Sudan. Applications for all end-users in Sudan of these commodities will generally be denied. Contract sanctity date: March 19, 2010.

(iii) North Korea. Applications for all end-users in North Korea of these commodities will generally be denied. Contract sanctity date: March 19, 2010.

(47) ``Software'' described in ECCN 2D984 ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984.

(i) Syria. Applications for all end-users in Syria of these software will generally be denied. Contract sanctity date: March 19, 2010.

(ii) Sudan. Applications for all end-users in Sudan of these software will generally be denied. Contract sanctity date: March 19, 2010.

(iii) North Korea. Applications for all end-users in North Korea of these software will generally be denied. Contract sanctity date:

March 19, 2010.

(48) ``Technology'' described in ECCN 2E984 ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984, or the ``development'' of

``software'' controlled by 2D984.

(i) Syria. Applications for all end-users in Syria of these items will generally be denied. Contract sanctity date: March 19, 2010.

(ii) Sudan. Applications for all end-users in Sudan of these items will generally be denied. Contract sanctity date: March 19, 2010.

(iii) North Korea. Applications for all end-users in North Korea of these items will generally be denied. Contract sanctity date:

March 19, 2010.

PART 748--[AMENDED] 0 11. The authority citation for 15 CFR part 748 continues to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 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 13, 2009, 74

FR 41325 (August 14, 2009). 0 12. Supplement No. 2 to part 748 is amended by revising paragraph (k), to read as follows:

Supplement No. 2 to Part 748--Unique Application and Submission

Requirements

* * * * *

(k) Regional stability controlled items. (1) If you are submitting a license application for the export or reexport of items controlled for regional stability reasons and subject to licensing under RS Column 1 on the Country Chart, your license application must be accompanied by full technical specifications.

(2) If you are submitting a license application for the export or reexport to Austria, Cyprus, Finland, Ireland, Israel, Malta,

Mexico, Singapore or Sweden of items controlled by ECCNs 2A984, 2D984 or 2E984 to a person designated by a government end-user, pursuant to contract, your license application to export to such designated person must include a statement from the government end- user to be eligible for the licensing policy under Sec. 742.6(b)(2)(ii). A responsible official representing the designated end-user must sign the statement. ``Responsible official'' is defined as someone with personal knowledge of the information included in the statement, and authority to bind the designated end- user for whom they sign, and who has the power and authority to control the use and disposition of the licensed items. Statements from government end-users that the person is so designated (i.e., support documents submitted in accordance with this paragraph

(k)(2)) must address the following three criteria for a license application to be reviewed in accordance with the license review policy in Sec. 742.6(b)(2)(ii):

(i) U.S. Department of Homeland Security (DHS) Customer Contract

Number or agreement reference number, End-user name (company), complete address (including street address, city, state, country and postal code), end-user point of contact (POC);

(ii) Brief contract description, including DHS Project information and projected outcome; and

(iii) The statement shall include a certification stating ``We certify that all of the representations in this statement are true and correct to the best of our knowledge and we do not know of any additional representations which are inconsistent with the above statement.''

* * * * *

PART 774--[AMENDED] 0 13. 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.

Page 14341

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 13, 2009, 74 FR 41325 (August 14, 2009). 0 14. In Supplement No. 1 to part 774 (the Commerce Control List),

Category 2--Materials Processing, is amended by adding Export Control

Classification Number (ECCN) 2A984 after ECCN 2A983 and before ECCN 2A991, to read as follows:

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

* * * * * 2A984 Concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution of 0.5 milliradian up to and including 1 milliradian at a standoff distance of 100 meters; and parts and components, n.e.s.

License Requirements

Reason for Control: RS, AT

Control(s)

Country chart

RS applies to entire entry............... RS Column 2.

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) Concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution less than 0.5 milliradian (a lower milliradian number means a more accurate image resolution) at a standoff distance of 100 meters is under the export licensing authority of the U.S. Department of State (22 CFR parts 120 through 130). (2)

Concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution greater than 1 milliradian (a higher milliradian number means a less accurate image resolution) at a standoff distance of 100 meters is designated as EAR99. (3) See ECCNs 2D984 and 2E984 for related software and technology controls.

Related Definitions: N/A

Items: The list of items controlled is contained in the ECCN heading.

Note: Concealed object detection equipment includes but is not limited to equipment for screening people, documents, baggage, other personal effects, cargo and/or mail.

Technical Note: The range of frequencies span what is generally considered as the millimeter-wave, submillimeter-wave and terahertz frequency regions.

* * * * * 0 15. In Supplement No. 1 to part 774 (the Commerce Control List),

Category 2--Materials Processing, is amended by adding Export Control

Classification Number (ECCN) 2D984 after ECCN 2D983 and before ECCN 2D991, to read as follows:

* * * * * 2D984 ``Software'' ``required'' for the ``development'', ``production'' or ``use'' of concealed object detection equipment controlled by 2A984.

License Requirements

Reason for Control: RS, AT

Control(s)

Country chart

RS applies to entire entry............... RS 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: (1) ``Software'' ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution less than 0.5 milliradian

(a lower milliradian number means a more accurate image resolution) at a standoff distance of 100 meters is under the export licensing authority of the U.S. Department of State (22 CFR parts 120 through 130). (2) ``Software'' ``required'' for the ``development'',

``production'' or ``use'' of concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution greater than 1 milliradian spatial resolution

(a higher milliradian number means a less accurate image resolution) at a standoff distance of 100 meters is designated as EAR99. (3) See

ECCNs 2A984 and 2E984 for related commodity and technology controls.

Related Definitions: N/A.

Items: The list of items controlled is contained in the ECCN heading.

* * * * * 0 16. In Supplement No. 1 to part 774 (the Commerce Control List),

Category 2--Materials Processing, Export Control Classification Number

(ECCN) 2E001 is amended by revising the Heading, to read as follows:

* * * * * 2E001 ``Technology'' according to the General Technology Note for the

``development'' of equipment or ``software'' controlled by 2A (except 2A983, 2A984, 2A991, or 2A994), 2B (except 2B991, 2B993, 2B996, 2B997, or 2B998), or 2D (except 2D983, 2D984, 2D991, 2D992, or 2D994).

* * * * * 0 17. In Supplement No. 1 to part 774 (the Commerce Control List),

Category 2--Materials Processing, Export Control Classification Number

(ECCN) 2E002 is amended by revising the Heading, to read as follows:

* * * * * 2E002 ``Technology'' according to the General Technology Note for the

``production'' of equipment controlled by 2A (except 2A983, 2A984, 2A991, or 2A994), or 2B (except 2B991, 2B993, 2B996, 2B997, or 2B998).

* * * * * 0 18. In Supplement No. 1 to part 774 (the Commerce Control List),

Category 2--Materials Processing, is amended by adding Export Control

Classification Number (ECCN) 2E984 after ECCN 2E983 and before ECCN 2E991, to read as follows:

* * * * * 2E984 ``Technology'' ``required'' for the ``development'',

``production'' or ``use'' of equipment controlled by 2A984 or

``required'' for the ``development'' of ``software'' controlled by 2D984.

License Requirements

Reason for Control: RS, AT

Control(s)

Country chart

RS applies to entire entry............... RS 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: (1) ``Technology'' ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution less than 0.5 milliradian

(a lower milliradian number means a more accurate image resolution) at a standoff distance of 100 meters or ``required'' for the

``development'' of ``software'' ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution less than 0.5 milliradian at a standoff distance of 100 meters is under the export licensing authority of the U.S. Department of State (22 CFR parts 120 through 130). (2) ``Technology'' ``required'' for the ``development'',

``production'' or ``use'' of concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution greater than 1 milliradian spatial resolution

(a higher milliradian number means a less accurate image resolution) at a standoff distance of 100 meters or ``required'' for the

``development'' of ``software'' ``required'' for the

``development'', ``production'' or ``use'' of concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution greater than 1 milliradian spatial resolution (a higher milliradian number means a less accurate image resolution) at a standoff distance of 100 meters is designated as EAR99. (3) See ECCNs 2A984 and 2D984 for related commodity and software controls.

Page 14342

Related Definitions: N/A

Items: The list of items controlled is contained in the ECCN heading.

* * * * *

Dated: March 19, 2010.

Kevin J. Wolf,

Assistant Secretary for Export Administration.

FR Doc. 2010-6588 Filed 3-24-10; 8:45 am

BILLING CODE 3510-33-P