Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Rules and Regulations 22191 

and management of IFR operations at 

the airport. The geographic coordinates 

also are adjusted to coincide with the 

FAAs aeronautical database. 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current, is non-controversial and 

unlikely to result in adverse or negative 

comments. It, therefore, (1) is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866; (2) is not a 

‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

Regulatory Evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified that this rule, when 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities under the 

criteria of the Regulatory Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the United States Code. 

Subtitle I, Section 106 describes the 

authority of the FAA Administrator. 

Subtitle VII, Aviation Programs, 

describes in more detail the scope of the 

agency’s authority. 

This rulemaking is promulgated 

under the authority described in 

Subtitle VII, Part A, Subpart I, Section 

40103. Under that section, the FAA is 

charged with prescribing regulations to 

assign the use of airspace necessary to 

ensure the safety of aircraft and the 

efficient use of airspace. This regulation 

is within the scope of that authority as 

it amends controlled airspace at 

Columbia, SC, and establishes 

controlled airspace at Lexington County 

Airport at Pelion, Pelion, SC. 

Lists of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR Part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for Part 71 

continues to read as follows: 

Authority: 49 U.S.C. 106(g); 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of Federal Aviation 

Administration Order 7400.9V, Airspace 

Designations and Reporting Points, 

dated August 9, 2011, effective 

September 15, 2011, is amended as 

follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface of the earth. 

* * * * * 

ASO SC E5 Columbia, SC [Amended] 

Columbia Metropolitan Airport, SC 

(Lat. 33°56′20′′ N., long. 81°07′10′′ W.) 

Columbia Owens Downtown Airport 

(Lat. 33°58′14′′ N., long. 80°59′43′′ W.) 

That airspace extending upward from 700 

feet above the surface within a 10-mile radius 

of Columbia Metropolitan Airport and within 

a 6.5-mile radius of Columbia Owens 

Downtown Airport. 

* * * * * 

ASO SC E5 Pelion, SC [New] 

Lexington County Airport at Pelion, Pelion, 

SC 

(Lat. 33°47′41′′ N., long. 81°14′45′′ W.) 

That airspace extending upward from 700 

feet above the surface within a 6.6-mile 

radius of the Lexington County Airport at 

Pelion. 

Issued in College Park, Georgia, on March 

30, 2012. 

Barry A. Knight, 

Manager, Operations Support Group, Eastern 

Service Center, Air Traffic Organization. 

[FR Doc. 2012–8566 Filed 4–12–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Parts 732, 734, 738, 740, 742 

and 774 

[Docket No. 110310188–2058–03] 

RIN 0694–AF17 

Revisions to the Export Administration 

Regulations (EAR): Export Control 

Classification Number 0Y521 Series, 

Items Not Elsewhere Listed on the 

Commerce Control List (CCL) 

AGENCY: Bureau of Industry and 

Security, Commerce. 

ACTION: Final rule. 

SUMMARY: The Bureau of Industry and 

Security (BIS) publishes this final rule, 

which amends the Export 

Administration Regulations (EAR) by 

establishing a new Export Control 

Classification Number (ECCN) series, 

0Y521, on the Commerce Control List 

(CCL) and makes corresponding changes 

to the EAR. The ECCN 0Y521 series will 

be used for items that warrant control 

on the CCL but are not yet identified in 

an existing ECCN. As BIS explained in 

the proposed rule issued on July 15, 

2011 (76 FR 41958), this new temporary 

holding classification is equivalent to 

United States Munitions List (USML) 

Category XXI (Miscellaneous Articles), 

but with a limitation that while an item 

is temporarily classified under ECCN 

0Y521, the U.S. Government works to 

adopt a control through the relevant 

multilateral regime(s); to determine an 

appropriate longer-term control over the 

item; or determines that the item does 

not warrant control on the CCL. Items 

will be added to the 0Y521 ECCNs by 

the Department of Commerce, with the 

concurrence of the Departments of 

Defense and State, when it identifies an 

item that should be controlled because 

it provides a significant military or 

intelligence advantage to the United 

States or because foreign policy reasons 

justify such control. 

The 0Y521 series was described in the 

July 15, 2011 proposed rule that 

identified a framework for how articles, 

which the President determines, as part 

of the Administration’s Export Control 

Reform Initiative, no longer warrant 

control on the USML would be 

controlled under the CCL. In this rule, 

however, the 0Y521 provisions are 

being published in final form, with 

necessary corresponding changes, 

separate from the other July 15 rule 

proposals. Public comments on the 

other July 15 proposals remain under 

BIS review. 

DATES: This rule is effective April 13, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Eileen Albanese, Director, Office of 

National Security and Technology 

Transfer Controls, by phone at (202) 

482–0092 or by email at 

Eileen.Albanese@bis.doc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On July 15, 2011, as part of the 

Administration’s ongoing Export 

Control Reform Initiative, the Bureau of 

Industry and Security (BIS) published a 

proposed rule (76 FR 41958) (herein 

‘‘the July 15 proposed rule’’) that set 

forth a framework for how articles the 

President determines, in accordance 

with section 38(f) of the Arms Export 

Control Act (AECA) (22 U.S.C. 2778(f)), 

no longer warrant control on the United 

States Munitions List (USML) instead 

would be controlled under the 

Commerce Control List (CCL) in 

Supplement No. 1 to part 774 of the 


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22192 Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Rules and Regulations 

Export Administration Regulations 

(EAR). With that proposed rule, BIS also 

proposed establishing a new Export 

Control Classification Number (ECCN) 

series, 0Y521, on the CCL, which would 

be equivalent to United States 

Munitions List (USML) Category XXI 

(Miscellaneous Articles), but with some 

limitations, and requested public 

comments thereon. The 0Y521 ECCN 

series will provide a mechanism for 

identifying and controlling items that 

warrant export controls, but that are not 

yet categorized on the CCL or USML, 

such as emerging technologies. It will 

provide a temporary control category for 

such items, while the U.S. Government 

works to adopt a control through the 

relevant multilateral regime(s); to 

determine an appropriate longer-term 

control over the item; or determines that 

the item does not warrant control on the 

CCL. With this final rule, BIS adopts 

this proposal, with some modifications 

described below, and makes 

corresponding necessary changes to the 

EAR. 

Consistent with the July 15 proposed 

rule, BIS is amending the EAR to 

establish new ECCNs 0A521, 0B521, 

0C521, 0D521 and 0E521 and to make 

corresponding changes. As proposed in 

the July 15 proposed rule, ECCN 0Y521 

items will be subject to a nearly 

worldwide license requirement (i.e., for 

every country except Canada) with a 

case-by-case license review policy, 

through regional stability (RS Column 1) 

controls. The U.S. Government will 

review the sensitivity of each potential 

ECCN 0Y521 item on a case-by-case 

basis and make a positive determination 

regarding the sensitivity of each item. 

Items classified under ECCN 0Y521 

will stay so-classified from the date a 

final rule identifying the item is 

published in the Federal Register 

amending the EAR for one year 

following the date of Federal Register 

publication, unless the item is reclassified under a different ECCN or the 

0Y521 classification is extended. During 

this time, the U.S. Government will 

determine whether it is appropriate to 

submit a proposed control to the 

applicable export control regime (e.g., 

the Wassenaar Arrangement) for 

potential multilateral control, with the 

understanding that multilateral controls 

are preferable when practical. An item’s 

ECCN 0Y521 classification may be 

extended for two one-year periods to 

provide time for the U.S. Government 

and multilateral regime(s) to reach 

agreement on controls for the item. As 

discussed in the July 15 preamble, the 

July 15 proposed rule allowed for no 

more than two one-year extensions 

provided that the Departments of 

Commerce, State and Defense made a 

consensus determination to seek 

multilateral controls for the ECCN 

0Y521 item and the U.S. Government 

submitted a proposal to obtain 

multilateral controls over the item. As 

described below under ‘‘Changes from 

Proposed Rule,’’ this final rule clarifies 

that agencies will determine whether a 

multilateral control is appropriate at the 

time that the items are classified under 

ECCN 0Y521. In addition, this final rule 

allows for further extension beyond 

three years if the Under Secretary for 

Industry and Security makes a 

determination that such extension is in 

the national security or foreign policy 

interests of the United States. An 

extension or re-extension, including a 

determination by the Under Secretary 

for Industry and Security, will be 

published in the Federal Register. 

The U.S. Government’s decision to 

identify an item as included in ECCN 

0Y521 is a classification based on a 

determination of whether the item has 

significant military or intelligence 

advantage to the United States or for 

foreign policy reasons, not a 

classification of the item’s technical 

characteristics. ECCN 0Y521 

classifications are excluded from the 

part 756 appeals process. Parties would 

nonetheless be encouraged to provide to 

BIS information and comments about 

the item and the ECCN 0Y521 controls 

on it. 

As proposed in the July 15 proposed 

rule, BIS is also adding a new paragraph 

(a)(7) to § 742.6 to describe the regional 

stability reason for control that applies 

to items in the 0Y521 series, and is 

adding a reference to ECCN 0Y521 items 

in the licensing policy paragraph (b)(1) 

of the same section. The license review 

policy will be used to evaluate on a 

case-by-case basis whether the export or 

reexport could contribute directly or 

indirectly to any country’s military 

capabilities in a manner that would 

destabilize a region’s military balance 

contrary to the foreign policy interests 

of the United States. 

In the July 15 proposed rule, BIS 

proposed that no license exceptions 

would be available for any item 

classified under the 0Y521 ECCN series 

other than License Exception GOV, if 

the item is within the scope of 

§ 740.11(b)(2)(ii) (Items for official use 

by personnel and agencies of the U.S. 

Government). A new § 740.2(a)(14) is 

being added to reflect this. As described 

below under ‘‘Changes from Proposed 

Rule,’’ BIS will have the authority to 

apply additional license exceptions on 

an item-specific basis at any time if the 

Departments of Defense and State 

concur with such application. 

Comments and Responses 

BIS received 43 public comments on 

the July 15 proposed rule, 19 of which 

pertained to the ECCN 0Y521 series 

proposal. Summaries of those comments 

and BIS Responses appear below. 

Similar comments are consolidated. As 

noted above, the ECCN 0Y521 series 

proposal was separated from the rest of 

the July 15 proposed rule for purposes 

of this final rule; public comments 

received on issues other than the 0Y521 

provisions remain under review 

separate from this final rule. 

Purpose of Creating the 0Y521 ECCN 

Series 

Comment 1: Commenters generally 

were receptive to, or positive toward, 

the proposed creation of the ECCN 

0Y521 series. One commenter expressed 

that the addition of the ECCN 0Y521 

series is a feature of the EAR long 

overdue and is consistent with the 

statutory requirements of the Export 

Administration Act (EAA) to update the 

control list as warranted. 

Response: BIS agrees the addition of 

the ECCN 0Y521 series will play an 

important role on the CCL, along with 

helping to move forward the Export 

Control Reform Initiative’s goal of 

structurally aligning the CCL and 

USML. The CCL is reviewed and 

updated on a continuous basis, and the 

new ECCN 0Y521 series will aid in this 

process by identifying those items 

where a temporary control is 

appropriate while the U.S. Government 

identifies a permanent classification. 

Comment 2: Some commenters 

expressed concern that the proposed 

three-year maximum that an item could 

be classified under ECCN 0Y521 was too 

long. 

Response: The July 15 proposed rule 

stated that items may be classified 

under ECCN 0Y521 for a one-year 

period, which may be extended for two 

one-year periods. This three-year period 

was intended to provide sufficient time 

for the U.S. Government and its 

multilateral regime partners to assess a 

particular item and determine its 

appropriate classification. Shortening 

the maximum period would not provide 

an adequate opportunity to consider, 

develop and implement multilateral 

regime control for such items. 

In reviewing the timing associated 

with proposing multilateral regime 

controls, BIS determined that, in fact, 

three years may, on rare occasions, be 

insufficient to accomplish necessary 

multilateral negotiations. To expedite 

that process, this final rule clarifies that 

the United States will attempt to submit 

any proposals for 0Y521 items to the 


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relevant multilateral regime for 

consideration of multilateral controls 

during the initial one-year 0Y521 

classification period or will determine 

whether a different ECCN or EAR99 

designation might be more appropriate. 

In addition, consistent with the July 15 

proposed rule, this final rule generally 

limits extension to two additional oneyear periods, and such extensions may 

only be made provided that the U.S. 

Government submitted a proposal to 

obtain multilateral controls over the 

item. However, recognizing, inter alia, 

that there may be a need for additional 

time for the U.S. Government and its 

multilateral regime partners to review 

and discuss appropriate controls, this 

final rule allows for additional 

extensions. The Under Secretary for 

Industry and Security may further 

extend an ECCN 0Y521 control upon a 

determination that such extension is in 

the national security or foreign policy 

interests of the United States. This 

change is in keeping with the July 15 

proposed rule’s anticipation that time 

extensions may be necessary to achieve 

multilateral controls. All extension and 

re-extensions, including the 

determination by the Under Secretary 

for Industry and Security, will be 

published in the Federal Register. 

In addition, the case-by-case license 

review policy for ECCN 0Y521 items 

will provide discretion to the U.S. 

Government to approve many exports 

and reexports potentially affected by 

ECCN 0Y521 classification. 

Comment 3: Commenters cautioned 

that: classification should not be 

overused; when used, the classification 

process should not be hindered or 

protracted; and the classification 

process should only be used in 

exceptional circumstances. Commenters 

further expressed concern that because 

they believed that USML Category XXI, 

which the ECCN 0Y521 entries are 

designed to parallel, is ‘‘vague and 

worrisome,’’ the ECCN 0Y521 process 

will suffer from the same problems. 

Response: Although BIS cannot 

predict how often items will be 

classified in ECCN 0Y521 entries, BIS 

will use this classification only when 

the item has significant military or 

intelligence advantage to the United 

States or foreign policy considerations 

warrant its use. Given the breadth and 

scope of the USML and the CCL, BIS 

does not anticipate that a large number 

of now EAR99 items will be listed on 

the CCL under ECCN 0Y521. The ECCN 

0Y521 series is a mechanism to impose 

license requirements when needed 

within a transparent process and with 

stated parameters of when an item 

would transition out of temporary ECCN 

0Y521 classification. Each item’s ECCN 

0Y521 classification will expire one 

year from the date of its initial ECCN 

0Y521 classification, unless specifically 

extended. As noted in response to the 

previous comment, for items whose 

ECCN 0Y521 status is extended, such 

extension is limited to two one-year 

periods, unless the Under Secretary for 

Industry and Security makes a 

determination that it is in the national 

security or foreign policy interests of the 

United States to further extend the 

temporary ECCN 0Y521 controls. For 

additional discussion on how ECCN 

0Y521 items will be identified and the 

classification process initiated, see BIS’s 

response to Comment 4. 

With respect to concerns that the 

USML Category XXI process is, and the 

ECCN 0Y521 process will be, ‘‘vague 

and worrisome,’’ the ECCN 0Y521- 

related provisions have been drafted to 

create as much transparency for the 

public as possible. This final rule 

clarifies that the U.S. Government will 

attempt to submit any proposals for 

items classified under ECCN 0Y521 

during the one-year classification period 

or will determine whether a different 

ECCN or EAR99 designation might be 

more appropriate. In addition, with this 

final rule, BIS has made efforts to clarify 

that an extension of 0Y521 classification 

may only occur for a second or third 

year, provided that the U.S. Government 

has already submitted a proposal to 

obtain multilateral controls over the 

item. Moreover, just as the State 

Department continues to improve the 

substance and processes of export 

controls under the ITAR, BIS intends to 

continue making the EAR increasingly 

effective, and welcomes public 

comments on an ongoing basis. 

Comment 4: A commenter noted that 

BIS did not clearly explain whether 

exporters have an affirmative 

requirement to seek a formal 

determination regarding whether an 

item not listed on the CCL should be 

subject to ECCN 0Y521 control. Related 

to that point, some commenters seemed 

unsure about how the ECCN 0Y521 

items would be identified and the 

classification process initiated. One 

commenter recommended that BIS add 

a new ECCN entry for the item if enough 

information about the item is known, 

instead of classifying the item under an 

ECCN 0Y521 entry. 

Response: Neither the July 15 

proposed rule nor this final rule require 

exporters or reexporters to seek a 

determination from the U.S. 

Government as to whether an item that 

is not identified on the CCL should be 

classified as an ECCN 0Y521 item. If an 

item that is subject to the EAR is not 

described in an ECCN on the CCL, 

including in an existing ECCN 0Y521 

entry, the item is an EAR99 item. As 

noted in the July 15 rule, ECCN 0Y521 

controls only become applicable once a 

final rule is published in the Federal 

Register adding a description of such an 

item to Supplement No. 5 to part 774. 

With regard to identifying new items 

to classify under ECCN 0Y521 entries, 

the U.S. Government is responsible for 

identifying such items. Specifically, 

BIS, with the concurrence of the 

Departments of Defense and State, will 

identify and classify items that warrant 

control under 0Y521 ECCNs. BIS also 

relies on input received from its 

Technical Advisory Committees (TACs). 

As BIS drafts final rules to add 

additional items to an ECCN 0Y521 

classification, such rules will be 

reviewed by the TACs, which will 

provide BIS an opportunity to receive 

industry input on whether the items in 

question, including emerging 

technologies, warrant control as an 

ECCN 0Y521 item. 

Finally, in response to the comment 

that a new ECCN entry specific to an 

item at issue be added to the CCL if 

sufficient information is known about 

the item, rather than temporarily 

classifying it as ECCN 0Y521, BIS 

believes for several reasons that use of 

ECCN 0Y521 will better serve the 

purpose of identifying and ultimately 

classifying emerging technologies and 

other items that may warrant control. 

ECCN 0Y521 advances the effort to 

streamline the CCL and simplify export 

and reexport provisions, which are 

primary goals of the Administration’s 

ongoing Export Control Reform 

Initiative. Adding new ECCNs for each 

new item would mean expanding the 

number of distinct ECCN entries on the 

CCL, contrary to the goals of Export 

Control Reform Initiative. The standard 

heading on the CCL for each ECCN 

0Y521 entry, listed by product group, 

immediately provides temporary 

classifications for items that warrant 

control. Supplement No. 5 to part 774 

describes the actual items under the 

ECCN 0Y521 series and allows the 

public to more easily access information 

about the 0Y521 items, i.e., the date of 

initial classification or subsequent BIS 

classification of the item. Finally, 

because the information is concentrated 

in Supplement No. 5, there are no 

unnecessary amendments to the CCL. 

Comment 5: A commenter suggested 

that the phrase ‘‘or for foreign policy 

reasons’’ be removed from the 0Y521 

entry headings. 

Response: BIS believes the 

commenter’s point was that items 

should not be added to the 0Y521 ECCN 


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22194 Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Rules and Regulations 

series for solely ‘‘foreign policy’’ 

reasons. BIS disagrees. An ECCN 0Y521 

item that has significant military or 

intelligence advantage may warrant 

worldwide or widespread controls. By 

including controls for foreign policy 

reasons from the outset, BIS facilitates a 

broader basis for control of ECCN 0Y521 

items because such controls include 

both multilateral and unilateral 

designations. Although the U.S. 

Government would most likely work to 

obtain multilateral status for items 

classified under the ECCN 0Y521 series, 

while the items are classified under 

ECCN 0Y521, they will be subject to 

unilateral foreign policy-based control 

(RS1) to secure control of the items in 

a timely manner and thereby avoid an 

EAR99 designation. At this point and 

with this final rule, items placed under 

0Y521 ECCNs are controlled for RS1 

reasons. 

ECCN 0Y521 Control Entry Text 

Comment 6: Commenters 

recommended that BIS revise the 

heading for the entry of a 0Y521 ECCN 

to name the particular group instead of 

using the term ‘‘item.’’ 

Response: BIS agrees. After reviewing 

comments indicating that it would help 

public understanding of the ECCN 

0Y521 provisions if product groupspecific terminology were used for each 

of the respective 0Y521 ECCNs (i.e., 

using ‘‘commodity’’ in 0A521 and 

0B521, material in 0C521, ‘‘software’’ in 

0D521 and ‘‘technology’’ in 0E521) 

rather than ‘‘item,’’ as was proposed in 

the July 15 rule, BIS accepted this 

suggested change, which is included in 

the headings for ECCNs 0A521, 0B521, 

0C521, 0D521 and 0E521 included in 

this final rule. 

Comment 7: A commenter suggested 

that ECCN 0Y521 items be listed in 

ECCN 0A521, 0B521, 0C521, 0D521 and 

0E521 entries instead of in the proposed 

Supplement No. 5 to part 774 (Items 

Classified Under ECCNs 0A521, 0B521, 

0C521, 0D521 and 0E521). 

Response: As discussed in the 

Response to Comment 4, in evaluating 

how to structure the ECCN 0Y521 

entries, BIS and the other agencies 

participating in the Export Control 

Reform Initiative determined that the 

Supplement No. 5 approach was a better 

alternative to adding individual ECCNs 

to the CCL. Listing the items under the 

respective entries would require adding 

0Y521 ECCNs to each of the ten CCL 

categories. This would mean instead of 

adding five ECCN 0Y521 entries in the 

CCL, fifty ECCNs would be added to the 

CCL to account for all of the potential 

future 0Y521 items. The CCL currently 

contains approximately 500 ECCNs, so 

this alternative approach would have 

increased by 10 percent the overall 

number of ECCNs on the CCL. While 

BIS cannot affirmatively state how often 

items will be classified under ECCN 

0Y521, the number of items that will 

likely warrant control under ECCN 

0Y521 would not justify such a large 

expansion of ECCN entries. 

Additionally, the table format contained 

in the new Supplement No. 5 to part 

774 has a structure that BIS believes 

makes it easy for the public to identify 

when an item was originally classified 

as an ECCN 0Y521 item and when that 

classification will no longer apply. 

Comment 8: A commenter asserted 

that listing particular ECCN 0Y521 

items in the respective ECCNs would 

permit deletion of proposed 

Supplement No. 5 to part 774. 

Response: As noted above, BIS 

evaluated this option in developing the 

proposed Supplement No. 5 to part 774 

included in the July 15 rule, along with 

the other related ECCN 0Y521 

provisions. BIS agrees with the 

commenter that if that change were 

accepted that the supplement could be 

eliminated. However, for the reasons 

noted above in response to Comment 7, 

BIS decided against adopting such an 

approach. 

Comment 9: With respect to the 

proposed ECCN 0Y521 heading stating 

that an item may be classified in a ECCN 

0Y521 entry because it provides ‘‘at 

least a significant military or 

intelligence advantage to the United 

States,’’ a commenter described the use 

of the term ‘‘advantage’’ as too 

subjective and added that the term sets 

a higher bar than the term ‘‘advance’’ to 

determine whether items would be 

classified under 0Y521 ECCNs. 

Response: BIS agrees there is some 

degree of interpretation required in 

applying the standard ‘‘significant 

military or intelligence advantage to the 

United States,’’ but does not agree that 

a more expansive term such as 

‘‘advance’’ would be appropriate. BIS’s 

intent is to create a fairly high threshold 

for an item to warrant control in the 

ECCN 0Y521 series, and for that reason 

the term advantage is appropriate. 

Ultimately, it is the U.S. Government 

that will determine whether the criteria 

for classifying an item under a 0Y521 

ECCN have been met, but BIS’s intent is 

to limit ECCN 0Y521 classification to 

those items that truly warrant the 

temporary classification. 

License Requirements and Related 

Policies for ECCNs 0Y521 

Comment 10: A commenter expressed 

confusion about the purpose and scope 

of the proposed ECCN 0Y521 series in 

relation to the items that would be listed 

in Supplement No. 5 to part 774. That 

commenter recommended that BIS edit 

or expand proposed § 742.6(a)(7) (RS 

Column 1 license requirements and 

related policies for ‘0Y521’) to clarify 

that the list of items determined to be 

classified under ECCN 0Y521 is limited 

to those proposed to be enumerated in 

Supplement No. 5 to part 774. 

Response: As noted above, only those 

items listed in Supplement No. 5 to part 

774 are classified under ECCN 0Y521 on 

the CCL. To make this explicit, BIS is 

revising paragraph (a)(7) as suggested in 

the comment. 

Comment 11: A commenter stated that 

§ 742.6(a)(7) (RS Column 1 license 

requirements and related policies for 

‘0Y521’) should be revised to clarify that 

it is consistent with the foreign 

availability provisions in Section 4(c) of 

the Export Administration Act (EAA), 

50 U.S.C. app. § 2403(c) (2000), 

regarding the imposition of unilateral 

controls. 

Response: BIS intends that 

classifications of the ECCN 0Y521 items 

will be consistent with the foreign 

availability provisions of the EAA. 

Accordingly, no changes are necessary 

to the rule at this time. 

Comment 12: A commenter stated that 

license exception eligibility should be 

added to conform with ITAR 

exemptions available for items in 

parallel ITAR Category XXI. 

Response: In the July 15 proposed 

rule, BIS proposed that items classified 

under the ECCN 0Y521 series would be 

eligible only for License Exception GOV 

(§ 740.11(b)(2)(ii)). After reviewing the 

public comments, BIS has determined 

that additional license exception 

eligibility may be warranted for certain 

items that may be classified under 

ECCN 0Y521, but this additional license 

exception eligibility should be 

determined at the time an item is added 

to Supplement No. 5 to part 774 of the 

EAR. As such, BIS is revising the 

language of Section 740.2(a)(14) 

(Restrictions on all License Exceptions) 

and adding a clarifying note to that 

paragraph, as described above. 

In terms of a parallel to the ITAR, as 

items falling under the ECCN 0Y521 

series will not be defense articles being 

moved from the USML to the CCL, an 

ITAR parallel is unnecessary. The ECCN 

0Y521 series is not part of the proposed 

‘‘600 series,’’ informally known as the 

Commerce Munitions List inside the 

larger CCL. 

Finally, in terms of adding license 

exception authorizations, BIS is 

conducting a comprehensive evaluation 

of the ITAR exemptions to determine if 

the EAR should be revised to add any 


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exceptions available in the ITAR for 

defense articles. This review is ongoing, 

and any changes would be published in 

separate rulemaking notices. 

Comment 13: One commenter 

encouraged BIS to contact exporters 

before adding any new ECCN 0Y521 

item to the CCL. According to the 

commenter, consulting with companies 

or the industry that created the 

technology in question or that have the 

greatest expertise about the technology 

would ensure that accurate information 

is considered before an item is classified 

under an 0Y521 ECCN. Similarly, one 

commenter stated that 0Y521 ECCN 

classifications should be appealable. 

Response: BIS understands the 

rationale behind these comments. 

However, BIS is unable to implement 

the suggestion for a number of reasons. 

First, in terms of fairness and regulatory 

rulemaking requirements, if BIS were to 

contact and notify select companies or 

individuals in drafting a new control 

without providing the same opportunity 

to the entire public, one group of 

interested persons may be 

disadvantaged over another. This result 

would be unfair and inconsistent with 

the legal requirements of the 

Administrative Procedure Act (APA), 5 

U.S.C. 551–559. However, as explained 

in response to a previous comment, BIS, 

as a matter of practice, consults with the 

TACs as final rules are drafted to 

classify items under 0Y521 ECCNs. The 

rule also does not prohibit any party 

from sending information to BIS about 

the item or comments about a control 

that was imposed on it. Also as noted 

above, such rules classifying items 

under ECCN 0Y521 would not be 

published as proposed rules because of 

the harm that would likely be done to 

U.S. national security interests if 

exporters and reexporters were given 

advance notice of future licensing 

requirements for items such as emerging 

technologies that warranted controls. 

Regarding the appealability of ECCN 

0Y521 classifications, as noted in the 

preamble of the July 15 proposed rule, 

the United States Government’s 

decision to identify an item as classified 

under an 0Y521 ECCN is based on 

whether the item has significant 

military or intelligence advantage to the 

United States or a foreign policy reason, 

not a technical classification. Under 

§ 756.1(a)(1), listing items in 

Supplement No. 5 to part 774 would be 

excluded from the part 756 appeals 

process. However, as stated in 

§ 756.1(a)(1), the EAR provides that the 

public may submit a request to amend, 

revoke, or appeal a regulation at any 

time. As such, the public has an 

opportunity to provide input to BIS as 

soon as an ECCN 0Y521 classification is 

made. Given the limited duration that 

an item is likely to be classified under 

an 0Y521 ECCN, and the fact that BIS 

cannot classify items under an 0Y521 

ECCN without the consensus of the 

Departments of State and Defense, the 

public may find it more useful to focus 

any comments after a regulation 

identifies a new item in Supplement No. 

5 to part 774 on how an ECCN 0Y521 

item should be permanently classified 

on the CCL. 

Comment 14: A commenter stated that 

it would be appropriate to impose RS1 

controls on ECCN 0Y521 items, 

provided that RS1 controls apply only 

to ‘‘600 series’’ items not yet controlled 

by multilateral agreement. However, the 

commenter added, subsequent 

relocation on the CCL for such items, if 

and when multilateral agreement is 

reached on how the ECCN 0Y521 items 

should be controlled permanently, 

should be made effective in a timely 

fashion to reduce unwarranted licensing 

burdens. 

Response: As noted above, the ECCN 

0Y521 series is not part of the ‘‘600 

series,’’ which was initially proposed in 

the July 15 proposed rule. As such, 

reasons to control items classified under 

ECCN 0Y521 entries are not related to 

reasons to control proposed ‘‘600 series’’ 

items. ECCN 0Y521 classifications are 

temporary; if a permanent classification 

for an ECCN 0Y521 item is identified, 

the ECCN 0Y521 item would be reclassified under an existing, but revised, 

ECCN or a new ECCN and would thus 

no longer be subject to ECCN 0Y521 

controls. Any ECCN 0Y521 items that 

are later added to multilateral control 

lists would be re-classified at the time 

a final rule is published implementing 

that change to the multilateral regime’s 

control list by adding the items to the 

CCL. Alternatively, ECCN 0Y521 

controls may expire if an extension or 

re-classification does not occur before 

the date identified for the items in 

Supplement No. 5 to part 774 entry, at 

which point the item would return to 

being an EAR99 item. An item’s ECCN 

0Y521 classification may be extended 

for two one-year periods, the 

requirements for which are described in 

BIS’s response to Comment 2. Further 

extension may occur only if the Under 

Secretary for Industry and Security 

makes a determination that an extension 

is in the national security or foreign 

policy interests of the United States. 

Any extension or re-extension of an 

ECCN 0Y521 item will be published in 

the Federal Register. 

Comment 15: Another commenter 

recognized the usefulness of a 0Y521 

ECCN series and appreciates the careful 

consideration of how items should 

move out of the 0Y521 ECCN 

classification and into positive existing 

ECCNs or EAR99 designation in a 

consistent and timely fashion. However, 

the commenter also expressed concern 

with the proposal to include emerging 

technologies in the 0Y521 series of 

ECCNs, given the potential to capture 

technologies that are the product of 

university fundamental research 

activity. The commenter suggests that 

BIS clarify and open to the public prior 

to publication in a final rule the criteria 

for including items and technologies in 

the new 0Y521 ECCNs. 

Response: Items classified in 0Y521 

ECCNs by definition would only be 

items subject to the EAR. If an item were 

not subject to the EAR—such as 

technology that arises during, or results 

from, fundamental research, as 

described in § 734.8 of the EAR—then it 

would not be subject to the EAR. BIS 

will have the authority to control items 

under 0Y521 ECCNs if (i) they are not 

already controlled on the CCL or the 

USML and (ii) BIS determines that they 

provide at least a significant military or 

intelligence advantage to the United 

States or there is a foreign policy reason 

for controlling the item. Emerging 

technologies of concern that are subject 

to the EAR are likely to be items whose 

technological innovation outpaces 

existing CCL or USML controls. The 

CCL is constructed as a positive control 

list, so if an item is subject to the EAR, 

but not identified in an ECCN, the 

USML, or the controls of another 

government agency such as the 

Department of Energy, it is an EAR99 

item. The 0Y521 ECCNs are intended to 

provide BIS the authority to impose 

quickly a license requirement on 

otherwise uncontrolled items in a 

transparent way for a limited period. 

During that period, BIS and its 

interagency partners will work with the 

relevant multilateral export control 

regime(s) to determine what, if any, 

more lasting controls are appropriate for 

the item. Items that the U.S. 

Government determines are more 

appropriately captured under the 

United States Munitions List (USML) 

Category XXI (Miscellaneous Articles) 

or other USML control, which are 

identified as part of the 0Y521 review 

will be controlled as such. 

Publication of ECCN 0Y521 

Classifications 

Comment 16: One commenter 

recommended that BIS consult with the 

appropriate TACs on the process to 

determine descriptions for Supplement 

No. 5 to part 774. 


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Response: As noted above, BIS plans 

to consult with the TACs to identify the 

appropriate descriptions to be added to 

Supplement No. 5 to part 774 for ECCN 

0Y521 items. 

Comment 17: A commenter observed 

that identification of software and 

technology based on its model or a 

broader descriptor may present 

situations in which descriptions will 

need to be performance-based. 

Response: The CCL has many 

software and technology ECCNs 

classified under product groups D and 

E. Although the item descriptor column 

in Supplement No. 5 to part 774 will be 

in a table format, the expertise BIS has 

in describing software and technology 

in other parts of the CCL will be relied 

on to ensure objective identification of 

software and technology in this 

Supplement. Other ECCNs on the CCL 

have identified items by model number, 

such as the QRS11–00100–100/101 and 

QRS11–00050–443569 Micromachined 

Angular Rate Sensors classified under 

ECCN 7A994. 

Comment 18: A commenter asked 

what BIS anticipates will be the 

potential risk to industry of positively 

and publicly identifying items via 

Supplement No. 5 to part 774. 

Response: Supplement No. 5 to part 

774 will not disclose any proprietary 

information regarding the items 

classified therein. In addition, in most 

cases BIS will seek, with the assistance 

of the TACs, to identify items by a 

broader descriptor that need not be 

company specific. 

Comment 19: One commenter 

disagrees with using a model number or 

a broader descriptor that is not 

necessarily company-specific for the 

ECCN 0Y521 items. The commenter 

adds that common nomenclatures and 

standards are used across industries, 

which might result in an overly generic 

and therefore confusing descriptor. Yet, 

in trying to avoid confusion, the 

commenter believes BIS still would 

need to avoid publishing company 

proprietary information. 

Response: As noted in the BIS 

Response to Comment 18, the 

identification of an item in Supplement 

No. 5 to part 774 will not disclose any 

proprietary information regarding the 

item. BIS will seek, with the input of the 

TACs, to specifically enumerate the 

ECCN 0Y521 items as ‘‘positively’’ as 

possible. Also as noted above, where 

possible, BIS will seek to identify items 

by general descriptors, but these 

descriptors will need to be objective and 

avoid the potential pitfalls identified in 

this comment. This concern is not 

specific to Supplement No. 5, and is an 

issue that BIS and the multilateral 

export control regimes confront 

whenever a control parameter is written. 

BIS is confident that general descriptors 

can be developed and where a model 

number needs to be used, such as is the 

case in ECCN 7A994, that such 

descriptors will adequately define ECCN 

0Y521 items. 

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 12, 2011, 76 FR 50661 

(August 16, 2011), has continued the 

Export Administration Regulations in 

effect under the International 

Emergency Economic Powers Act. BIS 

continues to carry out the provisions of 

the Export Administration Act, as 

appropriate and to the extent permitted 

by law, pursuant to Executive Order 

13222. 

This action is taken after consultation 

with the Secretary of State. BIS 

submitted a foreign policy report to the 

Congress indicating the imposition of 

new foreign policy controls on March 

26, 2012. 

Changes From Proposed Rule 

The ECCN 0Y521 proposal set forth in 

the July 15 proposed rule is mainly 

unchanged in this final rule. However, 

in response to public comments, BIS has 

changed its approach to the 

circumstances and length of time an 

item may be controlled under ECCN 

0Y521 and the availability of license 

exceptions for items classified under 

0Y521 ECCNs. BIS has also made 

conforming changes to the EAR to 

clarify the ECCN 0Y521 series. 

In the July 15 proposed rule, BIS 

proposed a mechanism for situations in 

which an item that warrants control is 

not controlled yet. The July 15 proposed 

rule proposed a three-year maximum 

control period for ECCN 0Y521 items, 

during which the initial one-year period 

would only be extended if the 

Departments of Commerce, State and 

Defense made a consensus 

determination to seek multilateral 

controls for the ECCN 0Y521 item and 

the U.S. Government submitted a 

proposal to obtain multilateral controls 

over the item. This final rule clarifies 

that the Departments of Commerce, 

State and Defense will decide whether 

to seek multilateral controls at the same 

time that the agencies consider 

classifying the item as an ECCN 0Y521 

item. Consistent with the July 15 

preamble, a second or third-year 

extension would still require that the 

United States has submitted a proposal 

for multilateral control for the ECCN 

0Y521 item to the relevant multilateral 

regime. While the requirement to submit 

a proposal for extension for one or more 

one-year periods was identified in the 

preamble to the July 15 proposed rule, 

with this final rule, BIS has 

incorporated into revised Section 

742.6(a)(7)(iii) the circumstances in 

which an item’s ECCN 0Y521 

classification may be extended for a 

second or third year. 

In contrast to the proposed rule, this 

final rule also establishes the potential 

for further extension of ECCN 0Y521 

controls beyond three years for a 

specific item if the Under Secretary for 

Industry and Security makes a 

determination that such extension is in 

the national security or foreign policy 

interests of the United States. Any 

extension or re-extension, including a 

determination by the Under Secretary 

for Industry and Security will be 

published in the Federal Register. As 

discussed in the ‘‘Comments and 

Response’’ section above, allowing for 

potential additional extensions is 

necessary to provide sufficient time for 

BIS and its interagency partners to work 

with the relevant multilateral export 

control regime(s) to determine what, if 

any, controls are appropriate for the 

item. Regulatory provisions related to 

this extension are set forth in revised 

§ 742.6(a)(7)(iii). 

Although License Exception GOV, set 

forth in § 740.11(b)(2)(ii), remains the 

only license exception identified at this 

time for all items classified in ECCN 

0Y521, in contrast to the July 15 

proposed rule, this final rule establishes 

the potential availability of additional 

license exceptions on an item-specific 

basis. To implement this change, in this 

final rule BIS adds a fourth column 

identified as ‘‘Item-specific License 

Exceptions’’ to Supplement No. 5 to part 

774. To conform with that change, BIS 

also includes in this final rule a revision 

to § 740.2(a)(14) that differs from the 

proposed rule. In the July 15 proposed 

rule, that paragraph stated a restriction 

on all license exceptions for items 

designated as 0Y521, except for License 

Exception GOV (§ 740.11(b)(ii)). In this 

final rule, paragraph (a)(14) specifies 

that the only license exceptions that 

may be used to authorize items 

designated as 0Y521 are GOV 

(§ 740.11(b)(2)(ii)) or an item-specific 

license exception identified in 

Supplement No. 5 to part 774 for a 

particular ECCN 0Y521 item. This final 

rule also adds a new Note to paragraph 

(a)(14) of § 740.2 to indicate that license 

exception availability is specific to each 

ECCN 0Y521 entry in Supplement No. 

5 to part 774 and may not be used for 

any other ECCN 0Y521 entries in the 

supplement. At the time the U.S. 


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Government makes a determination that 

items are classified under ECCNs 

0A521, 0B521, 0C521, 0D521 or 0E521, 

the U.S. Government will specify 

whether any license exceptions in 

addition to License Exception GOV will 

be available. BIS also amends ECCN 

0Y521 control entry text appearing in 

Supp. No. 1 to part 774 of the EAR to 

reflect that other license exceptions may 

be eligible for particular items. If there 

are additional license exceptions, they 

will be listed in Supplement No. 5 to 

part 774 under each designated item. In 

a corresponding change, to provide 

guidance about the applicability of 

licensing exceptions, BIS also adds 

paragraph (a)(14) and a note to 

paragraph (a)(14) to § 740.2. 

BIS incorporated a recommendation 

to use product group-specific 

terminology for each of the respective 

0Y521 ECCNs (i.e., using the term 

‘‘commodity’’ in 0A521 and 0B521, 

material in 0C521 (as defined in the July 

15 proposed rule), ‘‘software’’ in 0D521 

and ‘‘technology’’ in 0E521), rather than 

‘‘item,’’ as was proposed in the July 15 

rule. The change has been made to the 

headings for ECCNs 0A521, 0B521, 

0C521, 0D521 and 0E521 in this final 

rule. 

Finally, to correspond with 

establishing the ECCN 0Y521 

provisions, BIS is making other changes 

that are necessary to provide guidance 

to the public about these provisions, the 

applicability of licensing exceptions, 

and to make locating those provisions 

easier. To identify the 0Y521 ECCN 

series as within the scope of the EAR 

and primary provisions for the series, 

BIS amends: § 732.3 (Steps regarding the 

ten general prohibitions) by adding 

paragraph (b)(4); § 734.3 (Items Subject 

to the EAR) by revising paragraph (c); 

§ 738.1(a) (Introduction—Commerce 

Control List Scope) by adding paragraph 

(a)(3); and § 774.1 by adding a new 

paragraph to the Introduction. 

Rulemaking Requirements 

1. Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distribute impacts, and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This rule has been 

designated a ‘‘significant regulatory 

action,’’ although not economically 

significant, under section 3(f) of 

Executive Order 12866. Accordingly, 

the rule has been reviewed by the Office 

of Management and Budget (OMB). 

2. Notwithstanding any other 

provision of law, no person is required 

to respond to, nor is subject to a penalty 

for failure to comply with, a collection 

of information, subject to the 

requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.) (PRA), unless that collection of 

information displays a currently valid 

OMB control number. This rule affects 

two approved collections: (1) The 

Simplified Network Application 

Processing + System (control number 

0694–0088), which carries a burden 

hour estimate of 43.8 minutes, including 

the time necessary to submit license 

applications, among other things, as 

well as miscellaneous and other 

recordkeeping activities that account for 

12 minutes per submission. BIS does 

not believe that this rule will materially 

increase the number of submissions 

under this collection. (2) License 

Exceptions and Exclusions (0694–0137). 

BIS cannot at this point describe or 

estimate the items that may be classified 

under the new 0Y521 ECCN series. 

3. This rule does not contain policies 

with Federalism implications as that 

term is defined under E.O. 13132. 

4. The Chief Counsel for Regulation of 

the Department of Commerce has 

certified to the Chief Counsel for 

Advocacy of the Small Business 

Administration that the proposed rule, 

if adopted in final form, would not have 

a significant economic impact on a 

substantial number of small entities. 

The basis for that certification was 

published in the preamble to the 

proposed rule and is not repeated here. 

BIS received no comments regarding the 

certification. As a result, a final 

regulatory flexibility analysis is not 

required and none has been prepared. 

5. BIS finds good cause to waive the 

requirement of 5 U.S.C.(d)(3) that this 

rule’s effectiveness be delayed 30 days 

from its publication in the Federal 

Register. Delaying the rule’s 

effectiveness for 30 days is unnecessary 

and contrary to the public interest. The 

delay is unnecessary because the rule is 

non-substantive and has no external 

impact. The agency is essentially 

inserting an empty box to be filled as 

items warranting export control under 

the CCL are identified. The rule adds no 

new requirements or burdens on the 

public, which need not take any action 

as a result of this rule to comply with 

its terms. In addition, a delay in 

effectiveness is contrary to the public 

interest, because additional delay would 

prevent the identification and addition 

of items to the CCL, which in turn could 

inhibit the public’s ability to obtain 

export licenses for these items and 

potentially require the public to seek 

licenses under the USML licensing 

process during the period of delay. This 

rule, therefore, is effective upon 

publication in the Federal Register. 

List of Subjects 

15 CFR Parts 732 and 740 

Administrative practice and 

procedure, Exports, Reporting and 

recordkeeping requirements. 

15 CFR Part 734 

Administrative practice and 

procedure, Exports, Inventions and 

patents, Research science and 

technology. 

15 CFR Part 738 

Exports. 

15 CFR Part 742 

Exports, Terrorism. 

15 CFR Part 774 

Exports, Reporting and recordkeeping 

requirements. 

Accordingly, parts 732. 734, 738, 740, 

742 and 774 of the Export 

Administration Regulations (15 CFR 

parts 730–774) are amended as follows: 

PART 732—[AMENDED] 

■ 1. The authority citation for 15 CFR 

part 732 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 12, 2011, 76 FR 50661 (August 16, 

2011). 

■ 2. Amend § 732.3 by adding paragraph 

(b)(4) to read as follows: 

§ 732.3 Steps regarding the ten general 

prohibitions. 

* * * * * 

(b) * * * 

(4) Items subject to temporary CCL 

controls are classified under the ECCN 

0Y521 series (i.e., 0A521, 0B521, 0C521, 

0D521 and 0E521) pursuant to 

§ 742.6(a)(7) of the EAR while a 

determination is being made as to 

whether classification under a revised 

or new ECCN or EAR99 designation is 

appropriate . 

* * * * * 

PART 734—[AMENDED] 

■ 3. The authority citation for 15 CFR 

part 734 continues to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 

3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 


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FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 

13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 

228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 

Comp., p. 783; Notice of August 12, 2011, 76 

FR 50661 (August 16, 2011); Notice of 

November 9, 2011, 76 FR 70319 (November 

10, 2011). 

■ 4. Revise paragraph (c) of § 734.3 to 

read as follows: 

§ 734.3 Items subject to the EAR. 

* * * * * 

(c) ‘‘Items subject to the EAR’’ consist 

of the items listed on the Commerce 

Control List (CCL) in part 774 of the 

EAR and all other items which meet the 

definition of that term. For ease of 

reference and classification purposes, 

items subject to the EAR which are not 

listed on the CCL are designated as 

‘‘EAR99.’’ Items subject to temporary 

CCL controls are classified under the 

ECCN 0Y521 series (i.e., 0A521, 0B521, 

0C521, 0D521, and 0E521) pursuant to 

§ 742.6(a)(7) of the EAR, while a 

determination is made as to whether 

classification under a revised or new 

ECCN, or an EAR99 designation, is 

appropriate. 

* * * * * 

PART 738—[AMENDED] 

■ 5. The authority citation for 15 CFR 

part 738 continues to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 

7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et 

seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 

42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 

1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 

U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 

13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 

228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 

Comp., p. 783; Notice of August 12, 2011, 76 

FR 50661 (August 16, 2011). 

■ 6. Amend § 738.1 by adding paragraph 

(a)(3) to read as follows: 

§ 738.1 Introduction. 

(a) * * * 

(3) Items that warrant control for 

export or reexport but currently are not 

permanently classified on the CCL. 

Items subject to temporary CCL controls 

are classified under the ECCN 0Y521 

series (i.e., 0A521, 0B521, 0C521, 

0D521, and 0E521) pursuant to 

§ 742.6(a)(7) of the EAR while a 

determination is made as to whether 

classification under a revised or new 

ECCN, or an EAR99 designation, is 

appropriate. 

* * * * * 

PART 740—[AMENDED] 

■ 7. 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 12, 2011, 76 

FR 50661 (August 16, 2011). 

§ 740.2 [Amended] 

■ 8. Amend § 740.2 by 

■ a. Adding and reserving paragraphs 

(a)(12) and (a)(13); 

■ b. Adding paragraph (a)(14); and 

■ c. Adding a note to paragraph (a)(14), 

to read as follows: 

§ 740.2 Restrictions on all License 

Exceptions. 

(a) * * * 

(12) [Reserved] 

(13) [Reserved] 

(14) Items classified under ECCNs 

0A521, 0B521, 0C521, 0D521 and 0E521 

may only be authorized by License 

Exception GOV (§ 740.11(b)(2)(ii)) or an 

item-specific license exception 

identified in Supplement No. 5 to part 

774 for a particular ECCN 0Y521 item. 

Note to Paragraph (a)(14): Itemspecific license exception availability is 

specific to each ECCN 0Y521 entry in 

Supplement No. 5 to part 774 and may 

not be used for any other ECCN 0Y521 

entries in the Supplement. The U.S. 

Government makes a determination at 

the time items are classified under 

ECCNs 0A521, 0B521, 0C521, 0D521 

and 0E521 regarding whether any 

license exceptions will be available, in 

addition to License Exception GOV 

(§ 740.11(b)(2)(ii)). 

* * * * * 

PART 742—[AMENDED] 

■ 9. 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.; E.O. 12938, 59 FR 59099, 

3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 

FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 

13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 

228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 

Comp., p. 783; Notice of August 12, 2011, 76 

FR 50661 (August 16, 2011); Notice of 

November 9, 2011, 76 FR 70319 (November 

10, 2011). 

■ 10. Amend § 742.6 by 

■ a. Adding paragraph (a)(7), and 

■ b. Revising the first sentence of 

paragraph (b)(1), to read as follows: 

§ 742.6 Regional stability. 

(a) * * * 

(7) RS Column 1 license requirements 

and related policies for ECCN 0Y521 

items. 

(i) Scope. This paragraph (a)(7) 

supplements the information in the 

0Y521 ECCNs and in Supplement No. 5 

to part 774 (Items Classified Under 

ECCNs 0A521, 0B521, 0C521, 0D521 

and 0E521). This paragraph alerts 

exporters, reexporters and transferors to 

the procedures that apply to items 

classified under the 0Y521 ECCNs. 

(ii) 0Y521 Items. Items subject to the 

EAR that are not listed elsewhere in the 

CCL, but which the Department of 

Commerce, with the concurrence of the 

Departments of Defense and State, has 

determined should be controlled for 

export because the items provide at least 

a significant military or intelligence 

advantage to the United States or for 

foreign policy reasons are classified 

under ECCNs 0A521, 0B521, 0C521, 

0D521 and 0E521. These items are 

typically emerging technologies 

(including emerging commodities, 

software and technology) that are not 

yet included in the CCL, so such items 

are listed on the CCL in 0Y521 ECCNs 

while the U.S. Government determines 

whether classification under a revised 

or new ECCN, or an EAR 99 designation, 

is appropriate. The list of items 

classified under a 0Y521 ECCN is 

limited to those listed in Supplement 

No. 5 to part 774. 

(iii) Requirement to be classified 

under another ECCN within one 

calendar year of classification under 

ECCN 0Y521. Items classified under an 

ECCN 0Y521 entry must be re-classified 

under another ECCN within one 

calendar year from the date they are 

listed in Supplement No. 5 to part 774 

of the EAR. If such re-classification does 

not occur within that period, 

classification under an ECCN 0Y521 

entry expires, and such items are 

designated as EAR99 items unless either 

the CCL is amended to impose a control 

on such items under another ECCN or 

the ECCN 0Y521 classification is 

extended. BIS may extend an item’s 

ECCN 0Y521 classification for two oneyear periods, provided that the U.S. 

Government has submitted a proposal to 

the relevant multilateral regime(s) to 

obtain multilateral controls over the 

item. Further extension beyond three 

years may occur only if the Under 

Secretary for Industry and Security 

makes a determination that such 

extension is in the national security or 

foreign policy interests of the United 

States. Any extension or re-extension of 

control of an ECCN 0Y521 item, 

including the determination by the 

Under Secretary, shall be published in 

the Federal Register. 

(b) Licensing policy. (1) Applications 

for exports and reexports described in 

paragraph (a)(1), (a)(2), (a)(6) or (a)(7) of 

this section will be reviewed on a caseby-case basis to determine whether the 

export or reexport could contribute 

directly or indirectly to any country’s 


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Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Rules and Regulations 22199 

military capabilities in a manner that 

would alter or destabilize a region’s 

military balance contrary to the foreign 

policy interests of the United States. 

* * * 

* * * * * 

PART 774—[AMENDED] 

■ 11. 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. 

1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 

U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 

13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 

228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 

Comp., p. 783; Notice of August 12, 2011, 76 

FR 50661 (August 16, 2011). 

■ 12. Revise § 774.1 to read as follows: 

§ 774.1 Introduction. 

(a) In this part, references to the EAR 

are references to 15 CFR chapter VII, 

subchapter C. The Bureau of Industry 

and Security (BIS) maintains the 

Commerce Control List (CCL) that 

describes items (i.e., commodities, 

software, and technology) subject to the 

jurisdiction of the EAR. The CCL does 

not include those items exclusively 

controlled for export by another 

department or agency of the U.S. 

Government. In instances where other 

agencies administer controls over 

related items, entries in the CCL will 

contain a reference to these controls. 

Those items subject to the EAR but not 

specified on the CCL are identified by 

the designator ‘‘EAR99.’’ See § 734.2(a) 

of the EAR for items that are ‘‘subject to 

the EAR.’’ You should consult part 738 

of the EAR for an explanation of the 

organization of the CCL and its 

relationship to the Country Chart. 

(b) Items that warrant control on the 

CCL, but for which a classification has 

yet to be determined, are temporarily 

classified under one of the 0Y521 

ECCNs (i.e., 0A521, 0B521, 0C521, 

0D521 or 0E521), according to their 

respective product group, pursuant to 

§ 742.6(a)(7) of the EAR, while a 

determination is made as to whether 

classification under a revised or new 

ECCN, or an EAR99 designation, is 

appropriate. The technical description 

and list of such items appear in 

Supplement No. 5 to part 774—Items 

Classified Under ECCNs 0A521, 0B521, 

0C521, 0D521 and 0E521. Items that the 

U.S. Government determines are more 

appropriately captured under the 

United States Munitions List (USML) 

Category XXI (Miscellaneous Articles) 

or other USML control, as part of the 

0Y521 review process will be controlled 

as such. 

(c) The CCL is contained in 

Supplement No. 1 to this part, and 

Supplement No. 2 to this part contains 

the General Technology and Software 

Notes relevant to entries contained in 

the CCL. 

■ 13. In Supplement No. 1 to part 774 

(the Commerce Control List), Category 

0—Nuclear Materials, Facilities, and 

Equipment (and Miscellaneous Items), 

is amended by: 

■ a. Adding Export Control 

Classification Number (ECCN) 0A521 

after ECCN 0A018 and before ECCN 

0A918, 

■ b. Adding ECCN 0B521 after ECCN 

0B006 and before ECCN 0B986; 

■ c. Adding ECCN 0C521 after ECCN 

0C201 and before the header that reads 

‘‘D. Software’’; 

■ d. Adding ECCN 0D521 after ECCN 

0D001 and before ECCN 0D999; and 

■ e. Adding ECCN 0E521 after ECCN 

0E018 and before ECCN 0E918, to read 

as follows: 

SUPPLEMENT NO. 1 TO PART 774— 

THE COMMERCE CONTROL LIST 

CATEGORY 0—NUCLEAR 

MATERIALS, FACILITIES, AND 

EQUIPMENT [AND MISCELLANEOUS 

ITEMS] 

A. SYSTEMS, EQUIPMENT AND 

COMPONENTS 

* * * * * 

0A521 Any commodity subject to the EAR 

that is not listed elsewhere in the CCL, but 

which is controlled for export because it 

provides at least a significant military or 

intelligence advantage to the United States or 

for foreign policy reasons. 

0A521 commodities are subject to RS1 

controls with no license exception eligibility 

other than License Exception GOV for U.S. 

Government personnel and agencies under 

§ 740.11(b)(2)(ii) of the EAR, or an itemspecific license exception identified in 

Supplement No. 5 to part 774 particular to 

an item covered under ECCN 0A521. The list 

of commodities determined to be classified 

under ECCN 0A521 controls is published in 

Supplement No. 5 to part 774. The license 

requirements and licensing policy relating to 

ECCN 0A521 are set forth in § 742.6(a)(7) of 

the EAR. 

* * * * * 

B. TEST, INSPECTION AND 

PRODUCTION EQUIPMENT 

* * * * * 

0B521 Any commodity subject to the EAR 

that is not listed elsewhere in the CCL, but 

which is controlled for export because it 

provides at least a significant military or 

intelligence advantage to the United States or 

for foreign policy reasons. 

0B521 commodities are subject to RS1 

controls with no license exception eligibility 

other than License Exception GOV for U.S. 

Government personnel and agencies under 

§ 740.11(b)(2)(ii) of the EAR, or an itemspecific license exception identified in 

Supplement No. 5 to part 774 particular to 

an item covered under ECCN 0B521. The list 

of commodities determined to be classified 

under ECCN 0B521 controls is published in 

Supplement No. 5 to part 774. The license 

requirements and licensing policy relating to 

ECCN 0B521 are set forth in § 742.6(a)(7) of 

the EAR. 

* * * * * 

C. MATERIALS 

* * * * * 

0C521 Any material subject to the EAR that 

is not listed elsewhere in the CCL, but which 

is controlled for export because it provides at 

least a significant military or intelligence 

advantage to the United States or for foreign 

policy reasons. 

0C521 materials are subject to RS1 controls 

with no license exception eligibility other 

than License Exception GOV for U.S. 

Government personnel and agencies under 

§ 740.11(b)(2)(ii) of the EAR, or an itemspecific license exception identified in 

Supplement No. 5 to part 774 particular to 

an item covered under ECCN 0C521. The list 

of materials determined to be classified 

under ECCN 0C521 controls is published in 

Supplement No. 5 to part 774. The license 

requirements and licensing policy relating to 

ECCN 0C521 are set forth in § 742.6(a)(7) of 

the EAR. 

* * * * * 

D. SOFTWARE 

* * * * * 

0D521 Any software subject to the EAR that 

is not listed elsewhere in the CCL, but which 

is controlled for export because it provides at 

least a significant military or intelligence 

advantage to the United States or for foreign 

policy reasons. 

0D521 software is subject to RS1 controls 

with no license exception eligibility other 

than License Exception GOV for U.S. 

Government personnel and agencies under 

§ 740.11(b)(2)(ii) of the EAR, or an itemspecific license exception identified in 

Supplement No. 5 to part 774 particular to 

an item covered under ECCN 0D521. The list 

of software determined to be classified under 

ECCN 0D521 controls is published in 

Supplement No. 5 to part 774. The license 

requirements and licensing policy relating to 

ECCN 0D521 are set forth in § 742.6(a)(7) of 

the EAR. 

* * * * * 

E. TECHNOLOGY 

* * * * * 

0E521 Any technology subject to the EAR 

that is not listed elsewhere in the CCL, but 

which is controlled for export because it 

provides at least a significant military or 

intelligence advantage to the United States or 

for foreign policy reasons. 

0E521 technology is subject to RS1 controls 

with no license exception eligibility other 

than License Exception GOV for U.S. 


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22200 Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Rules and Regulations 

1Public Law 111–203, 124 Stat. 1376 (2010). 

2 15 U.S.C. 1692–1692p. 

3 12 U.S.C. 1831t(c)-(f). 

4Public Law 111–8, section 626, 123 Stat. 524 

(Mar. 11, 2009). 

Government personnel and agencies under 

§ 740.11(b)(2)(ii) of the EAR, or an itemspecific license exception identified in 

Supplement No. 5 to part 774 particular to 

an item covered under ECCN 0E521. The list 

of technologies determined to be classified 

under ECCN 0E521 controls is published in 

Supplement No. 5 to part 774. The license 

requirements and licensing policy relating to 

ECCN 0E521 are set forth in § 742.6(a)(7) of 

the EAR. 

* * * * * 

■ 14. Add and reserve Supplement No. 

4 to part 774 to read as follows: 

SUPPLEMENT NO. 4 TO PART 774— 

[RESERVED] 

■ 15. Add Supplement No. 5 to part 774 

to read as follows: 

SUPPLEMENT NO. 5 TO PART 774— 

ITEMS CLASSIFIED UNDER ECCNS 

0A521, 0B521, 0C521, 0D521 AND 

0E521 

The following table lists items subject 

to the EAR that are not listed elsewhere 

in the CCL, but which the Department 

of Commerce, with the concurrence of 

the Departments of Defense and State, 

has identified warrant control for export 

or reexport because the items provide at 

least a significant military or 

intelligence advantage to the United 

States or for foreign policy reasons. 

Item descriptor. 

Note: The description must match 

by model number or a broader 

descriptor that does not necessarily need to be company 

specific. 

1. [Reserved] 

2. [Reserved] 

Date of initial or subsequent BIS 

classification. 

Date when the item will be designated EAR99, unless reclassified in another ECCN or the 

0Y521 classification is reissued. 

Item-specific license exception eligibility. 

Dated: April 9, 2012. 

Kevin J. Wolf, 

Assistant Secretary for Export 

Administration. 

[FR Doc. 2012–8944 Filed 4–12–12; 8:45 am] 

BILLING CODE 3510–33–P 

FEDERAL TRADE COMMISSION 

16 CFR Parts 320, 321, 322, 603, 610, 

611, 613, 614, and 901 

RIN 3084–AB31 

Rescission of Rules 

AGENCY: Federal Trade Commission 

(‘‘FTC’’ or ‘‘Commission’’). 

ACTION: Final rule; rescission of 

regulations. 

SUMMARY: Title X of the Dodd-Frank 

Wall Street Reform and Consumer 

Protection Act transferred rulemaking 

authority for a number of consumer 

financial protection laws to the 

Consumer Financial Protection Bureau 

(‘‘CFPB’’). As a result, the Commission 

is rescinding the following rules under 

the Fair Credit Reporting Act: ‘‘[Identity 

Theft] Definitions’’; ‘‘Free Annual File 

Disclosures Rule’’; ‘‘Prohibition Against 

Circumventing Treatment as a 

Nationwide Consumer Reporting 

Agency’’; ‘‘Duration of Active Duty 

Alerts’’; and ‘‘Appropriate Proof of 

Identity.’’ In addition, the Commission 

is rescinding two rules addressing 

mortgage advertising and mortgage 

assistance relief services under the 2009 

Omnibus Appropriations Act: 

‘‘Mortgage Acts and Practices– 

Advertising Rule’’ and ‘‘Mortgage 

Assistance Relief Services Rule.’’ The 

Commission is also rescinding its rules 

governing ‘‘Disclosure Requirements for 

Depository Institutions Lacking Federal 

Deposit Insurance’’ under the Federal 

Deposit Insurance Corporation 

Improvement Act and its ‘‘Procedures 

for State Application for Exemption 

from the Provisions of the [Federal Debt 

Collection Practices] Act.’’ These rules 

have been republished by the CFPB. 

DATES: Effective Date: April 13, 2012. 

ADDRESSES: Copies of this document are 

available from: Public Reference Branch, 

Room 130, Federal Trade Commission, 

600 Pennsylvania Avenue NW., 

Washington, DC 20580. Copies of this 

document are also available on the 

Internet at the Commission’s Web site: 

http://www.ftc.gov. 

FOR FURTHER INFORMATION CONTACT: 

FCRA Rules: Katherine Armstrong, 

Senior Attorney, Division of Privacy and 

Identity Protection, Bureau of Consumer 

Protection, (202) 326–3250, Federal 

Trade Commission, 600 Pennsylvania 

Avenue NW., Washington, DC 20580. 

Mortgage Rules: For the Mortgage 

Acts and Practices—Advertising Rule, 

contact Laura Johnson, Senior Attorney, 

Financial Practices Division, Bureau of 

Consumer Protection, (202) 326–3224, 

Federal Trade Commission, 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. For the Mortgage Assistance 

Relief Services Rule, contact Evan 

Zullow, Senior Attorney, Financial 

Practices Division, Bureau of Consumer 

Protection, (202) 326–3224, Federal 

Trade Commission, 600 Pennsylvania 

Avenue NW., Washington, DC 20580. 

Deposit Insurance: Hampton 

Newsome, Senior Attorney, 

Enforcement Division, Bureau of 

Consumer Protection, (202) 326–2889, 

Federal Trade Commission, 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. 

Debt Collection: Thomas Kane, Senior 

Attorney, Financial Practices Division, 

Bureau of Consumer Protection, (202) 

326–3224, Federal Trade Commission, 

600 Pennsylvania Avenue NW., 

Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On July 21, 2010, President Obama 

signed into law the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act (‘‘Dodd-Frank Act’’).1 The DoddFrank Act substantially changed the 

federal legal framework for financial 

services providers. Among the changes, 

the Dodd-Frank Act transferred to the 

CFPB the Commission’s rulemaking 

authority under the Fair Debt Collection 

Practices Act (‘‘FDCPA’’),2 section 43 of 

the Federal Deposit Insurance Act 

(‘‘FDIA’’),3 section 626 of the 2009 

Omnibus Appropriations Act,4 and 

portions of the Fair Credit Reporting Act 


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