76664 Federal Register / Vol. 75, No. 236 / Thursday, December 9, 2010 / Proposed Rules 

59. In Supplement No. 1 to Part 774 

(the Commerce Control List), Category 9, 

ECCN 9E001 is amended by adding at 

the end of the License Exception 

section, a new License Exception STA 

paragraph to read as follows: 

9E001 ‘‘Technology’’ according to the 

General Technology Note for the 

‘‘development’’ of equipment or ‘‘software’’, 

controlled by 9A001.b, 9A004 to 9A012, 9B 

(except 9B990 or 9B991), or 9D (except 

9D990 or 9D991). 

* * * * * 

License Exceptions 

* * * * * 

STA: Paragraph (c)(2) of License Exception 

STA (§ 740.20(c)(2)) of the EAR may not be 

used for any technology in this entry. 

* * * * * 

60. In Supplement No. 1 to Part 774 

(the Commerce Control List), Category 9, 

ECCN 9E002 is amended by adding at 

the end of the License Exception 

section, a new License Exception STA 

paragraph to read as follows: 

9E002 ‘‘Technology’’ according to the 

General Technology Note for the 

‘‘production’’ of equipment controlled by 

9A001.b, 9A004 to 9A011 or 9B (except 

9B990 or 9B991). 

* * * * * 

License Exceptions 

* * * * * 

STA: Paragraph (c)(2) of License Exception 

STA (§ 740.20(c)(2)) of the EAR may not be 

used for any technology in this entry. 

* * * * * 

61. In Supplement No. 1 to Part 774 

(the Commerce Control List), Category 9, 

ECCN 9E003 is amended by adding at 

the end of the License Exception 

section, a new License Exception STA 

paragraph to read as follows: 

9E003 Other ‘‘technology’’ as follows (see 

List of Items Controlled). 

* * * * * 

License Exceptions 

* * * 

STA: Paragraph (c)(2) of License Exception 

STA (§ 740.20(c)(2)) of the EAR may not be 

used for any technology in 9E003.a.1, 

9E003.a.2 to a.5, 9E003.a.8, or 9E003.h. 

* * * * * 

Dated: December 6, 2010. 

Gary Locke, 

Secretary of Commerce. 

[FR Doc. 2010–30968 Filed 12–8–10; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Part 774 

[Docket No. 101112562–0577–01] 

Commerce Control List: Revising 

Descriptions of Items and Foreign 

Availability 

AGENCY: Bureau of Industry and 

Security, Commerce. 

ACTION: Advance notice proposed 

rulemaking. 

SUMMARY: As part of the President’s 

export control reform initiative, the 

Bureau of Industry and Security (BIS) 

seeks public comments on how the 

descriptions of items controlled on the 

Commerce Control List (CCL) of the 

Export Administration Regulations 

(EAR) could be more clear and positive 

and ‘‘tiered’’ in a manner consistent with 

the control criteria the Administration 

has developed as part of the reform 

effort. The request for comments on how 

items on the CCL could be tiered 

includes a request for comments on the 

degree to which a controlled item 

provides the United States with a 

critical, substantial, or significant 

military or intelligence advantage; and 

the availability of the item outside 

certain groups of countries. 

DATES: Comments must be received by 

February 7, 2011. 

ADDRESSES: Written comments on this 

notice of inquiry may be sent by e-mail 

to publiccomments@bis.doc.gov. 

Include ‘‘Notice of Inquiry—CCL’’ in the 

subject line of the message. Comments 

may also be submitted by mail or hand 

delivery to Timothy Mooney, Office of 

Exporter Services, Regulatory Policy 

Division, Bureau of Industry and 

Security, Department of Commerce, 

1401 Constitution Avenue, NW., Room 

2705, Washington, DC 20230, ATTN: 

Notice of Inquiry—CCL. 

FOR FURTHER INFORMATION CONTACT: 

Timothy Mooney, Regulatory Policy 

Division, Bureau of Industry and 

Security, Telephone: (202) 482–2440, 

E-mail: tmooney@bis.doc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

A core task of the Administration’s 

Export Control Reform Initiative is to 

enhance national security by reviewing 

and revising, as necessary and to the 

extent permitted by law and regime 

obligations, the lists of items (i.e., 

commodities, software, and technology) 

controlled for export and reexport so 

that they (1) are clearer and more 

‘‘positive’’ in nature and (2) can more 

easily be screened into three tiers based 

upon a set of criteria. The 

Administration has developed a threetiered set of criteria to help determine 

whether a license should be required or 

a license exception should be available 

to allow license-free export, reexport, or 

transfer (in-country) of a given item, 

with appropriate conditions, to various 

destinations. The three-tiered set of 

criteria has two primary elements—(a) 

the degree to which an item provides 

the United States with a military or 

intelligence advantage and (b) the 

availability of the item outside the 

United States, its close allies and 

multilateral export control regime 

partners. 

1. Request for Comments on How To 

Make the CCL More Clear and ‘‘Positive’’ 

a. Background—The Current Commerce 

Control List and the Reform Effort 

The Commerce Control List (CCL), 

which is in Supplement No. 1 to part 

774 of the Export Administration 

Regulations (EAR) (15 CFR part 774), is 

the list of items for which BIS controls 

the export, reexport, and transfer (incountry). The CCL’s ten categories 

identify controlled items by fivecharacter Export Control Classification 

Numbers (ECCNs). Items that are not 

listed on the CCL but are still ‘‘subject 

to the EAR’’ are designated as ‘‘EAR99’’ 

items. 

Most items on the CCL are controlled 

in accordance with the United States’ 

commitments to the four multilateral 

export control regimes, i.e., the 

Wassenaar Arrangement on Export 

Controls for Conventional Arms and 

Dual-Use Goods and Technologies, the 

Missile Technology Control Regime, the 

Australia Group, and the Nuclear 

Suppliers Group. Members of the 

regimes have the discretion to clarify 

the descriptions of regime-controlled 

items on their domestic control lists. 

BIS also has items on the CCL that are 

controlled unilaterally by the United 

States, and thus generally has the 

authority to clarify the descriptions of 

those items. For purposes of this notice, 

a unilaterally controlled item is any 

item listed on the CCL that is not listed 

on a control list of one of the four 

multilateral export control regimes. 

These unilaterally controlled items are 

typically listed in the ‘‘900’’ series on the 

CCL, such as ECCNs 1C998 or 9A980, 

but many multilaterally controlled items 

(i.e., items listed in the ECCNs in the 

‘‘000’’, ‘‘100’’, ‘‘200’’ and ‘‘300’’ series) also 

include reasons for control that are 

unilateral, such as an item in the ‘‘000’’ 

series that is controlled for national 


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Federal Register / Vol. 75, No. 236 / Thursday, December 9, 2010 / Proposed Rules 76665 

security (NS) reasons but is also 

controlled for antiterrorism (AT) 

reasons. 

The CCL is mostly a ‘‘positive’’ control 

list that describes items using objective 

criteria, such as qualities to be measured 

(e.g., accuracy, speed, and wavelength), 

units of measure (e.g., hertz, 

horsepower, and microns), or other 

precise descriptions, rather than broad, 

open-ended, subjective, catch-all, or 

design intent-based criteria. However, 

not all ECCNs contain ‘‘positive’’ 

descriptions and some descriptions 

could be clearer and more specific. The 

Administration wants the lists of items 

controlled pursuant to export control 

laws and regulations (i.e., the CCL and 

the United States Munitions List 

(USML) (22 CFR part 121) of the 

International Traffic in Arms 

Regulations (ITAR) (22 CFR parts 120 

through 130)) to be sufficiently 

‘‘positive,’’ clear, and precise so that 

persons, including persons who are not 

knowledgeable about U.S. export 

controls, who understand the technical 

parameters, characteristics, and 

capabilities of an item ordinarily will be 

able to determine its export control 

classification and jurisdictional status 

without needing to consult the 

government for an interpretation. For 

these reasons, BIS seeks public 

comment on how to improve the 

descriptions of items on the CCL that 

are unclear or that use vague, openended, or subjective criteria. 

b. The Types of Comments BIS Seeks 

Pertaining to the Text of the ECCNs 

If possible, suggestions on ways to 

improve the descriptions of items on the 

CCL should reflect internationally 

accepted standards and use industrystandard terms and references. Where 

objective criteria are missing from 

ECCNs, BIS seeks specific suggestions 

on what technical parameters, 

characteristics, thresholds, and 

capabilities should be used to describe 

the item. All suggestions should include 

proposed revisions to the text of ECCNs 

or proposed Technical Notes to ECCNs 

that explain terms or phrases used in 

the ECCN. Suggestions may include 

proposed revisions to the text of ECCNs 

to rearrange the order of words or 

technical parameters to make the entries 

more clear. All suggestions should 

contain an explanation, with supporting 

materials if available, of why the 

proposed change is needed to the ECCN 

and why the proposed changes would 

make the ECCN more clear and positive 

than the current ECCN. 

2. Request for Comments on the 

‘‘Tiering’’ of Items on the CCL 

a. Background—The Criteria Used in the 

Reform Effort for Evaluating Controlled 

Items 

The Administration is considering 

whether to amend, to the extent 

permitted by law and U.S. regime 

obligations, the lists of export controlled 

items—the CCL and the USML—and 

related licensing policies to accord with 

new criteria that focus controls on the 

most sensitive items. These criteria 

would place items listed on these two 

control lists into three tiers. Tier 1 items 

are (a) weapons of mass destruction 

(WMD); (b) WMD-capable unmanned 

delivery system; (c) plants, facilities, or 

items specially designed for producing, 

processing, or using WMDs, special 

nuclear materials, or WMD-capable 

unmanned delivery systems; or (d) 

items almost exclusively available from 

the United States and which provide a 

critical military or intelligence 

advantage to the United States. Tier 2 

items are almost exclusively available 

from regime partners or adherents and 

provide a substantial military or 

intelligence advantage to the United 

States, or make a substantial 

contribution to the indigenous 

development, production, use, or 

enhancement of a Tier 1 or Tier 2 item. 

Tier 3 items are more broadly available 

and provide a significant military or 

intelligence advantage to the United 

States or make a significant contribution 

to the indigenous development, 

production, use, or enhancement of a 

Tier 1, 2, or 3 item, or are otherwise 

controlled for national security, foreign 

policy, or human rights reasons. Thus, 

an aspect of the criteria the 

Administration has developed is the 

degree to which a controlled item is 

available outside of different groups of 

countries. 

The following are definitions of 

several of the key terms and phrases 

used in the tiered criteria set forth 

above. The term ‘‘almost exclusively 

available’’ means that the item is only 

available from a very small number of 

other countries that have in place 

effective export controls on the item. 

The term ‘‘critical’’ means providing a 

capability with respect to which the 

United States cannot afford to fall to 

parity and that would pose a grave 

threat to U.S. national security if not 

controlled (i.e., a ‘‘crown jewel’’). 

Examples of ‘‘grave threat to U.S. 

national security’’ include: Armed 

hostilities against the United States or 

its allies; disruption of foreign relations 

vitally affecting the national security; 

the compromise of vital national 

defense plans or complex crypto-logic 

and communications intelligence 

systems; the revelation of sensitive 

intelligence operations; the disclosure of 

scientific or technological developments 

vital to national security; or critical 

assistance to foreign development or 

acquisition of WMD. 

The term ‘‘substantial’’ means 

providing a capability with respect to 

which the United States must maintain 

parity and that would pose a serious 

threat to U.S. national security if not 

controlled. Examples of a ‘‘serious threat 

to the U.S. national security’’ include: 

Disruption of foreign relations 

significantly affecting the national 

security; substantial impairment of a 

program or policy directly related to the 

national security; revelation of 

significant military plans or intelligence 

operations; compromise of scientific or 

technological developments important 

to national security; or substantial 

assistance to foreign development or 

acquisition of a WMD. 

The term ‘‘significant’’ means 

providing a capability that could be 

reasonably expected to cause damage to 

U.S. national security if not controlled. 

Examples of ‘‘damage to U.S. national 

security’’ include: Disruption of foreign 

relations affecting the national security; 

impairment of a program or policy 

directly related to the national security; 

revelation of military plans or 

intelligence operations; compromise of 

scientific or technological developments 

relating to national security; or 

assistance to foreign development or 

acquisition of a WMD. 

The basic premise of this aspect of the 

Export Control Reform effort is that if an 

item type falls within the scope of one 

of the criteria’s three tiers, the item 

should be controlled for export, 

reexport, and in-country transfer at the 

level set forth in the licensing policy the 

U.S. Government is developing for that 

tier. The licensing policies to be 

assigned to each tier are still under 

development but generally, the highest 

tier of control will carry the most 

comprehensive license and compliance 

requirements. If an item is determined 

not to be within the scope of any of the 

three tiers, it should not be on a control 

list. Items that do not meet one of the 

primary elements of the tiered criteria, 

such as being significant for maintaining 

a military or intelligence advantage, that 

must nonetheless be controlled for a 

separate foreign policy, statutory, or 

multilateral obligation, will be 

identified as Tier 3 items with the 

required licensing policy. 


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76666 Federal Register / Vol. 75, No. 236 / Thursday, December 9, 2010 / Proposed Rules 

b. The Types of Information BIS Seeks 

Regarding the How Items on the CCL 

Could Be Tiered 

As described above, there are two 

primary aspects to determining how an 

item on the CCL should be tiered—(i) 

the degree to which the item provides 

a military or intelligence advantage to 

the United States and (ii) its availability 

outside of certain groups of countries. 

i. Request for Comments on How Items 

on the CCL Could Be Described Based 

on the Tier Criteria 

BIS seeks public comments on 

whether items on the CCL that are 

controlled for other than solely AntiTerrorism (AT) or Crime Control (CC) 

reasons provide a ‘‘critical,’’ 

‘‘substantial,’’ or ‘‘significant’’ military or 

intelligence advantage to the United 

States, as these terms are defined above. 

This includes a request for comments on 

how existing ECCNs, down to the 

subparagraph level, could be further 

divided so that their descriptions are 

divided by technical or other objective 

characteristics consistent with the 

‘‘critical,’’ ‘‘substantial,’’ and ‘‘significant’’ 

criteria. The U.S. Government will make 

the final decisions on what types of 

CCL-listed items are within the scope of 

any of the three tiers and, thus, may or 

may not accept suggestions regarding 

how items should be tiered. 

Nonetheless, BIS is interested in the 

public’s comments on the issue of how 

CCL-listed items can be described so 

that they are distinguished even within 

ECCNs by tier. 

ii. Request for Comments on the 

Availability of Items on the CCL 

BIS also seeks public comments on 

whether items with the capabilities and 

characteristics described on the CCL, 

and controlled for other than solely antiterrorism (AT) reasons or Crime Control 

(CC) reasons, are indigenously 

developed, produced, or enhanced (a) 

almost exclusively in the United States 

or (b) in destinations other than 

Argentina, Australia, Austria, Belgium, 

Bulgaria, Canada, Croatia, the Czech 

Republic, Denmark, Estonia, Finland, 

France, Germany, Greece, Hungary, 

Iceland, Ireland, Italy, Japan, Latvia, 

Lithuania, Luxembourg, Netherlands, 

New Zealand, Norway, Poland, 

Portugal, Romania, Slovakia, Slovenia, 

South Korea, Spain, Sweden, 

Switzerland, Turkey, Ukraine, or the 

United Kingdom. For purposes of this 

notice, ‘‘enhanced’’ means that (a) the 

basic characteristics, such as accuracy, 

capability, performance, or productivity 

of the item listed on the CCL are 

improved to provide greater 

functionality, and (b) the enhancement 

is effected in destinations outside the 

above-listed destinations. Information 

about the availability of these CCL-listed 

items will help BIS and the other 

relevant U.S. Government agencies 

determine the appropriate tier for these 

items. 

Public comments should do more 

than merely state that specific items are 

available outside the United States or 

this group of countries. Rather, they 

should include specific, objectively 

verifiable information regarding the 

availability—that is, the indigenous 

development, production, or 

enhancement of the CCL-listed items. 

The types of availability information 

that will be most useful to BIS include, 

for example, those set out in EAR 

section 768.6, which are evidence that 

the item is (i) available-in-fact, (ii) from 

a non-U.S. source, (iii) in sufficient 

quantity, and (iv) of comparable quality. 

For example, a public comment 

identifying a CCL-listed item as being 

manufactured outside the above-listed 

countries should ideally include (a) 

information about its foreign 

manufacturer(s), (b) relevant company 

catalogues or print-outs from company 

websites that describe the item’s 

technical capabilities and parameters, 

and (c) a detailed, documented 

explanation of why these parameters 

equal or exceed those contained in the 

relevant ECCN entry. Company claims 

that are made in catalogues or Web sites 

that are based on accepted international 

standards or other internationally 

recognized certification authorities are 

more likely to be useful to BIS than 

claims that are more difficult to 

objectively verify. 

3. Comments That Are Outside the 

Scope of This Notice 

As a separate regulatory initiative, BIS 

and the State Department are planning 

to coordinate on the parallel publishing 

of proposed rules in the Federal 

Register that would create a definition 

of the term ‘‘specially designed’’ that 

would be common within the CCL and 

that would replace the definition of 

‘‘specifically designed’’ in the ITAR. 

Accordingly, this notice of inquiry does 

not solicit comments pertaining to the 

use of this term. In addition, this notice 

does not seek public comment on 

whether an item should or should not 

be controlled on the CCL, whether the 

United States should ask any of the four 

export control regimes to change the 

controls on an item, or whether an item 

should be controlled differently for 

export and reexport to different 

countries. General comments on the 

overall reform process or the other 

aspects of current export controls are 

similarly outside the scope of this 

inquiry. 

Comments should be submitted to BIS 

as described in the ADDRESSES section of 

this notice by February 7, 2011. 

Dated: December 6, 2010. 

Kevin J. Wolf, 

Assistant Secretary of Commerce for Export 

Administration. 

[FR Doc. 2010–30966 Filed 12–8–10; 8:45 am] 

BILLING CODE 3510–33–P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 23 

RIN 3038–AC96 

Reporting, Recordkeeping, and Daily 

Trading Records Requirements for 

Swap Dealers and Major Swap 

Participants 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Commodity Futures 

Trading Commission (Commission or 

CFTC) is proposing regulations to 

implement new statutory provisions 

established under Title VII of the DoddFrank Wall Street Reform and Consumer 

Protection Act (Dodd-Frank Act). 

Section 731 of the Dodd-Frank Act 

added new sections 4s(f) and (g) to the 

Commodity Exchange Act (CEA), which 

set forth reporting and recordkeeping 

requirements and daily trading records 

requirements for swap dealers and 

major swap participants. The proposed 

rules would establish the regulatory 

standards for compliance with these 

new sections of the CEA. 

DATES: Submit comments on or before 

February 7, 2011. 

ADDRESSES: You may submit comments, 

identified by RIN number 3038–AC96 

and Reporting, Recordkeeping, and 

Daily Trading Records Requirements for 

Swap Dealers and Major Swap 

Participants, by any of the following 

methods: 

• Agency Web site, via its Comments 

Online process: http:// 

comments.cftc.gov. Follow the 

instructions for submitting comments 

through the Web site. 

• Mail: David A. Stawick, Secretary of 

the Commission, Commodity Futures 

Trading Commission, Three Lafayette 

Centre, 1155 21st Street, NW., 

Washington, DC 20581. 

• Hand Delivery/Courier: Same as 

mail above. 


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