```

[Federal Register Volume 78, Number 143 (Thursday, July 25, 2013)]
[Proposed Rules]
[Pages 45026-45049]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17559]

Federal Register / Vol. 78, No. 143 / Thursday, July 25, 2013 / 
Proposed Rules

[[Page 45026]]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 774

[Docket No. 120330233-3326-02]
RIN 0694-AF64

Revisions to the Export Administration Regulations (EAR): Control 
of Military Electronic Equipment and Related Items the President 
Determines No Longer Warrant Control Under the United States Munitions 
List (USML)

AGENCY: Bureau of Industry and Security, Department of Commerce.

ACTION: Proposed rule.

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SUMMARY: This is the second proposed rule to describe how military 
electronics and certain superconducting and cryogenic equipment and 
related items the President determines no longer warrant control under 
the United States Munitions List (USML) would be controlled on the 
Commerce Control List (CCL). This proposed rule also would amend ECCNs 
7A001 and 7A101 to apply the ``missile technology'' reason for control 
only to items in those ECCNs on the Missile Technology Control Regime 
(MTCR) Annex.
    This action is one in a planned series of proposed rules that would 
implement the Administration's Export Control Reform Initiative by 
describing how certain types of articles would be controlled on the CCL 
after the President determines that the articles no longer warrant USML 
control. This proposed rule is being published in conjunction with a 
proposed rule from the Department of State, Directorate of Defense 
Trade Controls, which would amend the list of articles controlled by 
USML Category XI.
    The revisions proposed in this rule are part of Commerce's 
retrospective plan under EO 13563 completed in August 2011. Commerce's 
full plan can be accessed at: http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing-rules.

DATES: Comments must be received by September 9, 2013.

ADDRESSES: You may submit comments by any of the following methods:
     By the Federal eRulemaking Portal: http://www.regulations.gov. The identification number for this rulemaking is 
BIS-2012-0045.
     By email directly to publiccomments@bis.doc.gov. Include 
RIN 0694-AF64 in the subject line.
     By mail or delivery to Regulatory Policy Division, Bureau 
of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th 
Street and Pennsylvania Avenue NW., Washington, DC 20230. Refer to RIN 
0694-AF64.

FOR FURTHER INFORMATION CONTACT: Brian Baker, Director, Electronics and 
Materials Division, Office of National Security and Technology Transfer 
Controls, (202) 482-5534, brian.baker@bis.doc.gov.

SUPPLEMENTARY INFORMATION: 

Background

The Export Control Reform Initiative

    This proposed rule is part of the Administration's Export Control 
Reform Initiative, the objective of which is to protect and enhance 
U.S. national security interests. The Initiative began in August 2009 
when President Obama directed the Administration to conduct a broad-
based review of the U.S. export control system to identify additional 
ways to enhance national security. In April 2010, then-Secretary of 
Defense Robert M. Gates, describing the initial results of that effort, 
explained that fundamental reform of the U.S. export control system is 
necessary to enhance national security. Once the Department of State's 
International Traffic in Arms Regulations (ITAR) and its U.S. Munitions 
List (USML) are amended so that they control only the items that 
provide the United States with a critical military or intelligence 
advantage or otherwise warrant such controls, and the Export 
Administration Regulations (EAR) are amended to control military items 
that do not warrant USML controls, the U.S. export control system will 
enhance national security by (i) improving interoperability of U.S. 
military forces with allied countries, (ii) strengthening the U.S. 
industrial base by, among other things, reducing incentives for foreign 
manufacturers to design out and avoid U.S.-origin content and services, 
and (iii) allowing export control officials to focus government 
resources on transactions that pose greater concern.
    Pursuant to section 38(f) of the Arms Export Control Act (AECA), 
the President is obligated to review the USML ``to determine what 
items, if any, no longer warrant export controls under'' the AECA. The 
President must report the results of the review to Congress and wait 30 
days before removing any such items from the USML. The report must 
``describe the nature of any controls to be imposed on that item under 
any other provision of law.'' 22 U.S.C. 2778(f)(1).
    BIS has published and will continue to publish additional Federal 
Register notices containing proposed amendments to the CCL that 
describe proposed controls for additional categories of articles the 
President determines no longer warrant control under the USML. The 
State Department will publish concurrently proposed amendments to the 
USML that correspond to the BIS notices. BIS will also publish proposed 
rules to further align the CCL with the Wassenaar Arrangement on Export 
Controls for Conventional Arms and Dual-Use Goods and Technologies' 
(Wassenaar Arrangement) Munitions List (Wassenaar Arrangement Munitions 
List or WAML) and the Missile Technology Control Regime's (MTCR) 
Equipment, Software and Technology Annex (MTCR Annex).

Overview of This Proposed Rule

    Following the structure set forth in the final rule entitled 
``Revisions to the Export Administration Regulations: Initial 
Implementation of Export Control Reform'' (78 FR 22660, April 16, 2013) 
(``April 16 (initial implementation) rule''), this proposed rule 
describes BIS's proposal for controlling under the EAR's CCL certain 
military electronic equipment and related articles now controlled by 
the ITAR's USML Category XI, and equipment and related items in 
category ML20 of the WAML, which pertains to certain cryogenic and 
superconductive equipment. These items are currently controlled by 
``catch all'' provisions of the ITAR's USML Categories VI, VII, VIII, 
and XV. Finally, this proposed rule would correct two ECCNs in CCL 
Category 7 to apply the ``missile technology'' reason for control only 
to items that are on the MTCR Annex.
    This action re-proposes moving export control of certain military 
electronic equipment from the USML to the CCL. BIS originally proposed 
transferring the control of these items to the EAR in 2012, in a rule 
entitled, ``Revisions to the Export Administration Regulations (EAR): 
Control of Military Electronic Equipment and Related Items the 
President Determines No Longer Warrant Control under the United States 
Munitions List (USML)'' (77 FR 70945, November 28, 2012) (``November 28 
(military electronics) rule''). That action was issued simultaneously 
with a proposed rule by the Department of State, entitled, ``Amendment 
to the International Traffic in Arms Regulations: Revisions of US 
Munitions List Category XI and Definition for `Equipment' '' (77 FR 
70958, November 28, 2012) (``State's November 28, 2012 (military 
electronics) rule'') (collectively, the ``November 28, 2012 (military 
electronics) rules''). The

[[Page 45027]]

provisions in this second proposed rule by BIS are based on a review of 
public comments to the November 28 (military electronics) rule, and on 
a review of USML Category XI and WAML category ML20 by the Department 
of Defense, which worked with the Departments of State and Commerce in 
preparing these proposed amendments. BIS is proposing this action a 
second time because the comments suggested changes from the original 
proposed rule that are sufficiently distinct from the November 28 
(military electronics) rule to warrant providing them to the public for 
further review and to obtain public input on the feasibility of 
implementing the rule as re-proposed. The criteria used in this review 
are described in the November 28 (military electronics) rule. See 77 FR 
70945.
    The revisions proposed in this rule are part of Commerce's 
retrospective plan under EO 13563 completed in August 2011. Commerce's 
full plan can be accessed at: http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing-rules.

Consistency of Controls

    This proposed rule would alter the scope of ECCNs 3B611, 3E611, 
9B620 and 9E620 from what was proposed in the November 28 (military 
electronics) rule. Upon review, BIS determined that standard elements 
for test, inspection, and production equipment ECCNs and for technology 
ECCNs would reduce the possibility of confusion. Accordingly, BIS 
adopted the elements ``development, production, repair, overhaul, or 
refurbishing'' for test, inspection, and production equipment ECCNs in 
the 600 series and adopted ``development, production, operation, 
installation, maintenance, repair, overhaul, or refurbishing'' for 
technology ECCNs in the 600 series (see 78 FR 40892, 40894, July 8, 
2013). This proposed rule would include those elements in 3B611, 3E611, 
9B620 and 9E620 to conform with that decision.

Need to Avoid Ambiguous Classifications or Inadvertent License 
Requirements

    BIS recognizes that because electronics frequently are installed in 
some other commodity, they are particularly susceptible to ambiguous 
classification or classification under multiple entries on the CCL. For 
example, a given electronic device might also be viewed as a part for 
an aircraft, radar, computer, laser, or some other article. How the 
device is viewed might affect its classification on the CCL, which 
could, in turn, affect license requirements or licensing policy. BIS's 
intent is that the new ECCNs proposed here would not increase the 
number of destinations to which a license is required, alter the policy 
under which license application are reviewed, or create any apparent 
instances of an item that is subject to the EAR being covered by more 
than one ECCN. Parties who believe that they can identify instances 
where the effect of the proposed rule would be contrary to this intent 
are encouraged to identify those instances in a public comment on this 
proposed rule.

Relationship to April 16, Initial Implementation Rule

    The April 16 (initial implementation) rule will become effective on 
October 15, 2013. Because any final rule resulting from this proposed 
rule would not become effective until after that date, this proposed 
rule and BIS's responses to the public comments on the November 28 
(military electronics) rule discussed below are written as if the April 
16 (initial implementation) rule were already effective. Accordingly, 
commenters on this proposed rule should become familiar with the April 
16 (initial implementation) rule and take it into account in 
formulating their comments on this proposed rule. Although BIS 
encourages public understanding of the entire April 16 (initial 
implementation) rule, the provisions listed below are likely to be 
particularly useful because they provide background for understanding 
terms and concepts that are used extensively in this proposed rule and 
in the discussion of the public comments. The listed page numbers refer 
to pages in the Federal Register published on April 16, 2013.
     ``600 series:'' preamble discussion, pages 22661-22663 and 
22691; regulatory text, page 22727.
     Definition of ``component:'' regulatory text, page 22727.
     Definitions of ``end item'' and ``part:'' regulatory text, 
page 22728.
     Definition of ``specially designed:'' preamble discussion, 
pages 22682-22691; regulatory text, pages 22728-22729.
     ``Dual licensing:'' preamble discussion, page 22664-22665; 
regulatory text, page 22707.
     License Exceptions TMP, RPL, GOV, TSU and STA: preamble 
discussion, pages 22669-22674; regulatory text, pages 22709-22720 and 
22726.
     ``Order of review'': preamble discussion, page 22704; 
regulatory text, pages 22735-22736.

Public Comments on the November 28 (Military Electronics) Rule and BIS 
Responses

    BIS received comments from 17 organizations and one individual, 
proposing a number of ideas for revising the proposed rule.
    Comment: Several commenters expressed general approval of 
transferring some military items from the USML. As part of their 
comments, they noted that (i) electronic parts and components are 
rarely almost exclusively available from the United States; (ii) 
current USML requirements impose a heavy cost burden on low value parts 
and US manufacturers may thus be more inclined to continue making the 
parts if that burden is reduced; and (iii) the removal of a ``see-
through'' rule on electronic parts and components will reduce the 
incentive for foreign customers in non-embargoed countries to refuse to 
buy US-origin parts. One commenter approved of BIS's use of ``specially 
designed'' in ``600 series'' ECCNs because it would help standardize 
the identification of which items are and are not controlled. One 
commenter noted that placing monolithic microware integrated circuit 
power amplifiers in 3A611.c and discrete power transistors in 3A611.d 
are positive moves that clearly define the articles covered.
    Response: BIS agrees and these comments are consistent with the 
second proposed rule.
    Comment: Some commenters expressed concern that the rule did not 
refer to a Department of Defense review process for low observable and 
counter low observable related items moving from the USML to the CCL.
    Response: In accordance with Executive Order 12981, as amended, the 
Department of Defense has authority to review license applications 
submitted to the Department of Commerce. BIS expects that Department to 
continue existing review policies for any items referred to by these 
commenters that are added to the CCL. In any event, no change to the 
regulations is necessary to implement this policy.
    Comment: A commenter recommended adding an interpretation to Part 
770 clarifying that items subject to a parameter-based CCL entry will 
be controlled by such entry if the item meets the parameter at the time 
of export, and not by whether it has potential capability (e.g., 
dormant capability) to meet the control, so long as the additional 
capability cannot be executed by the end-user without additional 
activity by the exporters. Exporters would be required to obtain

[[Page 45028]]

any necessary authorizations to activate such a capability for a 
customer.
    Response: Items with characteristics that are within the scope of 
the parameters of a particular ECCN are classified under that ECCN. BIS 
believes that no change is needed to the regulatory text from what was 
published in the November 28 (military electronics) rule.
    Comment: Commenters stated that more information about the order of 
precedence or order of review was needed for the public to be able to 
classify items reliably. Many items might be reasonably classified 
under a USML category or an ECCN, more than one ECCN, or more than one 
ECCN paragraph.
    Response: BIS received comments along this line in response to 
other proposed rules. The April 16 (initial implementation) rule 
includes an order of review, which is intended to eliminate the 
possible uncertainty noted by these commenters.
    Comment: Commenters expressed concern that moving items from the 
USML to the CCL would increase the number of licenses that some 
companies would need for two reasons.
    First, in many instances, the Directorate of Defense Trade Controls 
(DDTC) in practice issues licenses covering items that are subject to 
the EAR, when they are being exported in conjunction with defense 
articles that are subject to the ITAR. The commenter suggested that 
these circumstances might increase the time needed to gain approval for 
transactions that require the export of both USML and CCL items, 
because BIS licenses generally take longer to obtain than DDTC 
licenses. The commenter proposed as a solution allowing DDTC to issue 
licenses for items on the CCL in such transactions. This commenter 
suggested that a formal process for DDTC to issue licenses for items 
that are subject to the EAR be authorized.
    Second, license exceptions under the EAR do not apply to some 
transactions that would be exempt from license requirements under the 
ITAR. Two solutions were proposed. First, amend license exceptions 
under the EAR to make sure that they cover transactions that would 
qualify for an exemption under the ITAR. Second, create a new license 
exemption that authorizes using ITAR exemptions for transactions that 
are subject to the EAR.
    Response: The potential problem of needing both a DDTC and a BIS 
license for a single transaction is sometimes referred to as the dual 
licensing issue. BIS's and DDTC's April 16 (initial implementation) 
rules address the dual licensing issue with a procedure for DDTC to 
issue licenses for items that are subject to the EAR in situations 
where a single transaction includes exports or reexports of items that 
are subject the ITAR and items that are subject to the EAR. BIS 
welcomes comments on whether these provisions effectively address the 
issues identified in the comments.
    The April 16 (initial implementation) rule revises several EAR 
license exceptions to make them comparable to ITAR license exemptions. 
BIS believes that the second proposed solution--amending the EAR to 
allow use of ITAR license exemptions for transactions that are subject 
to the EAR--would create legal and policy complications that can be 
avoided by simply amending existing EAR license exceptions. BIS 
welcomes comments on whether the revisions to license exceptions in the 
April 16 (initial implementation) rule effectively address the issues 
identified in the comments with respect to military electronic items.
    Comment: A commenter recommended several steps to deal with the 
expected increase in the number of license applications to be submitted 
to BIS, such as: Increase staffing levels; ``enhance'' the DOC 
licensing process to reduce cycle times; include reviewing agencies in 
efforts to streamline the license application review process; and 
leverage lessons learned and best practices from the Department of 
State, which has reduced processing time in recent years.
    Response: BIS is taking these steps. No revision to the EAR is 
needed to do so.

Comments Concerning Proposed ECCNs 4A611, 5A611 and 6A611

    Proposed ECCNs 4A611, 5A611 and 6A611 refer readers to ECCN 3A611. 
They are included to alert readers that military computers, military 
telecommunications equipment and military radars would be controlled by 
ECCN 3A611, a structure more similar to that of the USML, which 
controls all three in Category XI, than that of the CCL, which controls 
computers in Category 4, telecommunications equipment in Category 5, 
and radars in Category 6.
    Comment: Commenters expressed a belief that following the USML 
pattern would make classification more difficult than would following 
the CCL pattern.
    Response: This proposed rule republishes those three cross-
reference ECCNs along with a fourth one: ECCN 7A613, which refers 
readers to 3A611 for military avionics and navigation items. BIS 
continues to seek comments on which pattern would be easier to 
understand and comply with. One pattern would create substantive ECCNs 
in five CCL Categories--Category 4 (computers), Category 5 
(telecommunications), Category 6 (sensors and lasers), Category 7 
(avionics), and Category 3 (all other military electronics not 
described on the USML). The other pattern would place all substantive 
control text for military electronics in Category 3 with cross 
references to Category 3 in Categories 4, 5, 6 and 7. The advantage of 
breaking the different types out among the categories is that they 
would be described in more detail and in the CCL categories that 
control similar dual-use items. The disadvantage would be that 20 new 
substantive 600 series ECCNs would need to be created that all contain 
essentially contain the same descriptions as compared to 4 new 
substantive and four cross reference ECCNs that would be required by 
the second alternative.
    Comment: A commenter requested a six-month grace period to 
implement the changes that would be required by the proposed rule.
    Response: BIS plans to make the final rule adding to the CCL 
military electronic systems the President determines no longer warrant 
control under the USML effective 180 days after publication.
    Comment: One commenter noted that the EAR contain no definition of 
``avionics,'' making the decision to classify an item under Category 
7--Navigation and Avionics or Category 9--Aerospace and Propulsion, 
difficult. The commenter stated as an example that a control panel for 
anti-ice bleed air valves might belong under either Category 7 or 
Category 9, depending on whether it contains a digital circuit even 
though the function performed is the same.
    Response: BIS is making no changes to this proposed rule in 
response to this comment, because it is outside the scope of the 
November 28 (military electronics) rule. However, BIS will look into 
ways to address elsewhere the issues raised by this commenter.
    Comment: One commenter stated the policy implications of the 
phrase, ``parts and components n.e.s. in ECCNs 7A994 and 9A991.d,'' are 
unclear with the addition of the proposed definition of ``specially 
designed.'' The commenter noted that neither ECCN uses the term 
``specially designed,'' and stated that the ECCNs have never been 
understood to control EAR99 items common to non-aircraft applications.
    Response: BIS is making no changes to this proposed rule in 
response to this

[[Page 45029]]

comment because it is outside the scope of the November 28 (military 
electronics) rule. BIS does not intend that anything in this proposed 
rule or in the April 16 (initial implementation) rule make a currently 
EAR99 item controlled under either ECCN 7A994 or 9A991. BIS will look 
into ways to address elsewhere the issues raised by this commenter.
    Comment: Several commenters expressed concern over use of the term 
``specially designed'' in the November 28 (military electronics) rule 
when the final rule defining that term had not been published. The 
commenters noted that they could not analyze the impact of the term 
without knowing its precise language.
    Response: The April 16 (initial implementation) rule included the 
definition of ``specially designed'' that will apply to this proposed 
rule has now been published. See 78 FR 22682-91, 22728-29.
    Comment: Several commenters proposed features that they thought the 
definition of ``specially designed'' should have. These recommendations 
were:
     Include in subsection (a)(1) of the definition 
application-specific components of end items for which the control 
parameters or character can be ascertained;
     Restrict the ``necessary'' standard for components set 
forth in subsection (a)(2) to components for which there is no basis to 
assess the controlled parameters or character of the end item in which 
the component is incorporated;
     Create a note that provides an appropriate industry 
definition of ASICs;
     Capture the natural meaning of the term ``specially 
designed,'' and avoid overarching exclusions and exceptions; and
     Eliminate reference in subsection (b)(3) to ``form and 
fit'' for components of equivalent performance.
    It is logical and feasible to tie the control of ``specially 
designed'' components to the related end-item, but only to the extent 
that the ``specially designed'' component is peculiarly responsible for 
the controlled parameters of the controlled character as a whole of the 
end item.
    Form and fit adapted to a particular end item or special protective 
packaging adapted to the environment in which that end-item functions 
should not make a part or component specially designed for a particular 
end item if the function that the part or component performs is the 
same as that it would perform in some other end-item where a different 
form or fit is required, or such special protective packaging or 
housing is not needed.
    Consider modifications to basic hardware as minor and, therefore 
not ``specially designed'' if they: (a) Are unclassified; (b) are not 
for the purpose of improving the item's resistance or hardness to 
nuclear radiation, nuclear electromagnetic pulse, or resistance to 
chemicals or biological agents controlled under the ITAR; and c) are 
not made to achieve special designated military properties (e.g., 
special low observable, acoustic, electromagnetic properties, hot 
section technology for military gas turbine engines, or characteristics 
identified in the proposed Supplement No. 4 to Part 740 of the EAR).
    Response: Following the closing comment period date for the 
November 28 (military electronics) rule, the April 16 (initial 
implementation) rule set forth the definition of ``specially 
designed.'' This definition provides that modifications to a part or 
component made solely to fit a particular commodity do not make the 
part or component specially designed. The definition also states that 
certain specific parts are not specially designed. The definition is 
not limited to parts or components that are peculiarly responsible for 
achieving the control parameters of the end item, nor does it exclude 
modifications or packaging applied to a part or component adapted to 
the environment in which the end-item performs. Although the notion of 
a short ``natural meaning'' definition is interesting, experience has 
indicated that determining the actual purpose for which something was 
designed is often difficult and can lead different readers to different 
conclusions based on the same sets of facts. BIS believes that the 
definition set forth in April 16 (initial implementation) rule provides 
a reasonable, repeatable, verifiable, and as certain as possible 
framework for determining which parts and components are and are not 
``specially designed.'' However, BIS welcomes comments regarding the 
impact the term ``specially designed'' has on the ECCNs in this 
proposed rule.
    Comment: One commenter recommended removing minor parts and 
components in normal commercial use to which minor modifications have 
been made from the catch-all paragraphs for the 600 series ECCNs, 
arguing that such common hardware does not warrant this level of 
control.
    Response: BIS is not adopting this recommendation. License 
requirements on parts and components that are specially designed for 
military equipment, even if they do not give the military equipment its 
military character, can serve the U.S. government's national security 
and foreign policy interests in being able to monitor, control, and 
otherwise have visibility into the supply chain of the parts and 
components that are necessary to keep military equipment functioning. 
The U.S. government has made a determination that such parts and 
components, which are now ITAR controlled, do not warrant all the 
controls of the ITAR. The government has not made, and does not intend 
to make, a determination that such items do not warrant control at all.
    Comment: One commenter stated that BIS should respect prior 
commodity jurisdiction rulings. The U.S. government has already 
determined that these items do not warrant control on the ITAR as it 
currently exists. Therefore, they should not warrant control under 600 
series ECCNs.
    Response: Items not currently on the USML, in an ECCN that ends 
with ``018,'' or in ECCN 0A918, have been determined not to be military 
items. BIS confirmed in General Order No. 5 in the April 16 (initial 
implementation rule) that one may conclude that such items within the 
scope of a Commodity Jurisdiction (``CJ'') determination are not 600 
series items (See 78 FR 22660, 22708, April 16, 2013). If readers 
believe that this proposed rule would do so, they should submit a 
comment indicating specifically what items in ECCNs other than those 
described above or what EAR99 items they believe would be moved to the 
600 series by this proposed rule.

Comments on ECCN 3A101

    Comment: One commenter recommended replacing the phrase ``usable in 
missiles'' with ``specially designed for use in missiles,'' stating 
that the former language could lead to controlling almost any analog to 
digital converter because it would be impossible to prove that it could 
not be used in some capacity in anything considered a missile. This 
same commenter recommended removing paragraph .a.1 from ECCN 3A101, 
which applies to analog to digital converters that are `` `Specially 
designed' to meet military specifications for ruggedized equipment,'' 
because published military specifications for ruggedized equipment 
address a number of characteristics that are not uniquely military.
    Response: The phrases ``usable in missiles'' and `` `[s]pecially 
designed' to meet military specifications for ruggedized equipment'' 
are close paraphrases that accurately convey the

[[Page 45030]]

meaning of the corresponding language in Category II, Item 14, 14.A.1 
of the MTCR Annex. The ECCNs at issue implement the controls described 
in the MTCR Annex. The changes that this commenter proposes would alter 
ECCN 3A101 sufficiently that it would no longer accurately convey the 
meaning of the Annex. Therefore, BIS is not making this change. BIS 
notes that the control phrase ``usable in missiles'' is indeed 
substantially broader in scope than the control phrase ``specially 
designed.'' BIS encourages the public to review the definition of the 
term in EAR section 772 for purposes of making classification 
determinations of items that are potentially within the scope of ECCNs 
that use the phrase ``usable in missiles.''
    Comment: One commenter stated that adding analog-to-digital 
converters to ECCN 3A101.a is a positive change, but thought that doing 
so was inconsistent with the other changes that were adding electronic 
items from the USML to ECCN 3A611. The commenter thought the departure 
from the standard pattern would cause confusion.
    Response: BIS proposed adding these analog-to-digital converters to 
ECCN 3A101.a because that paragraph currently addresses those analog-
to-digital converters by referring readers to the USML. BIS believes 
that implementing the EAR control in the paragraph that currently 
refers readers to the USML for controls on the same commodities would 
be less confusing than adding these analog-to-digital converters to a 
new 600 series ECCN. This proposed rule slightly revises the November 
28 (military electronics) rule language to conform more closely to the 
MTCR text, but continues to control these analog-to-digital converters 
under ECCN 3A101.a. BIS invites further comment on whether controlling 
these analog-to-digital converters in ECCN 3A101 or in ECCN 3A611 would 
be easier for readers of the EAR.

Comments on ECCN 3A611

    Comment: One commenter recommended changing the LVS paragraph in 
ECCN 3A611 to read $1500, N/A for 3A611.c, to be consistent with other 
ECCN entries that contain similar paragraph restrictions.
    Response: BIS agrees that the proposed rule phrasing was not 
consistent with the pattern used in most ECCNs. To improve consistency 
and clarity, this proposed phrases the LVS limit as $1500 for 3A611.a, 
.d through .h and .x; N/A for 3A611.c and .y
    Comment: BIS received several comments concerning related controls 
note number (2) in the November 28 (military electronics) rule (related 
control note number 6 in this proposed rule), which reads:

    Electronic items ``specially designed'' for military use that 
are not controlled in any USML category but are within the scope of 
another ``600 series'' ECCN are controlled by that ``600 series'' 
ECCN. Thus, ECCN 3A611 controls only electronic items ``specially 
designed'' for a military use that are not otherwise within the 
scope of a USML category or ``600 series'' ECCN other than ECCN 
3A611. For example, electronic components not enumerated on the USML 
or another 600 series entry that are ``specially designed'' for a 
military aircraft controlled by USML Category VIII or ECCN 9A610 are 
controlled by the catch-all control in ECCN 9A610.x. Electronic 
components not enumerated on the USML or another 600 series entry 
that are ``specially designed'' for a military vehicle controlled by 
USML Category VII or ECCN 0A606 are controlled by ECCN 0A606.x. 
Electronic components not enumerated on the USML that are 
``specially designed'' for a missile controlled by USML Category IV 
are controlled by ECCN 0A604.

    One commenter stated that many types of electronic equipment are 
used in military vehicles or other military equipment and have no 
functional or technical difference from similar equipment used in 
civilian vehicles or equipment. Unless the definition of ``specially 
designed'' allows for minor modifications to be made without an item 
being considered ``specially designed,'' the proposed rule would have 
the potential to impose significant controls on automotive electronic 
items that are in normal commercial use throughout the world. The 
proposed rule should be clarified to address this issue by including a 
note reading, ``Automotive electronic parts, components, accessories 
and attachments, controlled by 0A606.y are not subject to 3A611.y 
simply because they contain electronics, rather they are controlled by 
0A606.y.''
    Response: The definition of ``specially designed'' as published in 
the April 16, (initial implementation) rule excludes parts that 
otherwise would be specially designed if the only modification is to 
make the part fit a particular commodity. Even for electronic parts and 
components that, according to the definition, are specially designed 
for military ground vehicles, BIS believes that the commenter's 
proposed language is unnecessary. The first sentence of the related 
control note in ECCN 3A611 states that electronic items that are not on 
the USML and are within the scope of another 600 series ECCN are 
controlled by that 600 series ECCN. BIS believes that neither 
modification to this text nor an additional note in paragraph .x is 
necessary to make the point. A note should not be necessary for the .y 
paragraphs because the .y paragraphs list specific commodities.
    Comment: One commenter recommended that the sentence reading: 
``Thus, ECCN 3A611 controls only electronic items `specially designed' 
for a military use that are not otherwise within the scope of a USML 
category or `600 series' ECCN other than ECCN 3A611'' be revised by 
replacing the phrase or ```600 series' ECCN other than ECCN 3A611'' 
with ``another 600 series ECCN,'' because the note is within ECCN 
3A611, and therefore the reference to 3A611 is unnecessary.
    Response: BIS acknowledges the reference to ECCN 3A611 is, as a 
matter of syntax, unnecessary. However, experience indicates that in 
the EAR, explicit references, even at the risk of sounding pedantic, 
often result in fewer misunderstandings. Therefore, BIS is not adopting 
this change.
    Comment: One commenter stated that the text in the related control 
note to 3A611 that reads ``. . . that are not controlled in any USML 
category but are within the scope of another `600 series' ECCN are 
controlled by that `600 series' ECCN'' appears contrary to the 
reasoning used to include military computers, telecommunications 
devices and radars in 3A611, and further clouds exactly where 
electronic components should be classified.
    Response: ECCNs 4A611, 5A611 and 6A611 in the November 28 (military 
electronics) rule are merely ECCN headers that indicate that specially 
designed military computers, telecommunications equipment and radars, 
respectively, if not on the USML are controlled under ECCN 3A611. They 
do not contain any ``List of Items Controlled'' or other text 
indicating that they are used to impose license requirements. BIS 
thinks it unlikely that readers, on the basis of the related control 
note in ECCN 3A611, will look for license requirements in ECCNs 4A611, 
5A611 or 6A611; even if they do so, they would be directed back to ECCN 
3A611. Accordingly, this proposed rule does not change the text of the 
first sentence of related control note (6). However, readers are 
encouraged to submit further comments on this point. As described 
above, BIS is specifically seeking comments about whether it would be 
easier to understand and make compliance determinations if separate 600 
series ECCNs sets were created for military computers, military 
telecommunications, and military lasers and radar in CCL Categories 4, 
5, and 6, respectively or if all such items are

[[Page 45031]]

controlled within the scope of a general military electronics 600 
series ECCN, i.e., 3x611.
    Comment: One commenter noted that the second sentence of this 
related control note (number 6 in this proposed rule) refers to ECCN 
3A611, whereas the corresponding explanatory text in the preamble 
refers to ECCN 3A611.x. The commenter believes that the regulatory text 
is correct and that the explanatory text should be modified 
accordingly.
    Response: BIS agrees and the explanatory text has been modified 
accordingly in this proposed rule.
    Comment: One commenter recommended changing ``directly related'' to 
``specially designed'' in the first related controls note, which states 
technical data that are directly related to electronic items controlled 
in USML Category XI or other USML categories are subject to the ITAR.
    Response: BIS is not adopting this recommendation. The purpose of 
the related controls note is to call readers' attention to regulatory 
provisions that apply to items related to or similar to the items in 
the ECCN in which the note appears. In this instance, the relevant 
regulatory provision is Category XI of the USML, which uses the phrase 
``directly related to . . .'' in describing the technical data that it 
controls. Comments or questions regarding the meaning of ``directly 
related'' should be directed to the Department of State's Directorate 
of Defense Trade Controls.
    Comment: BIS received several comments about the terms used in ECCN 
3A611.a. Commenters thought certain terms were imprecise and should be 
eliminated or replaced with more specific listings of items controlled. 
The criticized terms were ``equipment,'' ``end items,'' ``systems,'' 
``specially designed'' and ``military use.''
    Response: This proposed rule does not eliminate any of those 
criticized terms. The definitions of the terms ``end item,'' 
``equipment,'' ``specially designed'' and ``system'' that will apply to 
this proposed rule were published in the April 16 (initial 
implementation) rule. BIS believes that, with these definitions, the 
terms will be sufficiently precise to be widely understood by readers 
of the EAR. If, after reviewing the new definitions, readers are 
uncertain about their meanings, BIS encourages them to describe the 
basis for the uncertainty in their comments to this or any other 
relevant proposed rule BIS publishes.
    Although the term ``military use'' was not defined in April 16 
(initial implementation) rule, that term is used in the WAML category 
ML11 to describe the types of electronics subject to that category. 
Additionally, the term ``military application'' is currently used in 
USML Category XI to describe the electronics subject to that category. 
BIS believes that in practical usage, the phrase ``military use'' is 
synonymous with ``military application.'' This proposed rule retains 
the term ``military use'' to avoid inadvertent decontrol of items 
currently in WAML category ML11 or USML Category XI.
    Comment: One commenter focused on the portion of the note to ECCN 
3A611.a that reads: ``3A611.a includes any radar, telecommunications or 
computer equipment, end items or systems `specially designed' for 
military use that are not enumerated in any USML category or controlled 
by a `600 series' ECCN.'' The commenter suggested that this note could 
create confusion as to, for example, license requirements for items 
controlled under ECCNs 5A002, 5A991 or EAR99. This commenter also 
stated that a manufacturer typically will develop a standard prototype 
and offer the system in whatever frequency range the customer 
specifies. Such systems perform identical functions using identical 
technology regardless of whether they are set to operate in a 
traditional military or civilian frequency band. Communications systems 
for military customers are often assembled with commercial-off-the-
shelf equipment. ECCN 3A611.a should be clarified to enumerate specific 
categories of items with particular threshold parameters. This 
commenter suggested that ECCN 3A611.a should be modified to exclude 
explicitly items that are composed of commercially available 
components--similar to the exclusion in USML Category XI(c). This 
commenter proposed adding a note to 3A611 that would implement both of 
its proposals: ``Note: This ECCN does not control equipment or systems 
that are comprised of parts, components, or accessories in normal 
commercial use, which operate in a frequency range allocated for 
military use.''
    Response: BIS is making no changes to the proposed rule in response 
to this comment. Items specially designed for military applications and 
that are not described on the USML warrant the degree of control and 
government visibility set forth in the 600 series ECCNs. That such 
items may be technologically similar to items not specially designed 
for military applications misses the point of 600 series controls, 
which is to have U.S. government visibility and control over their 
export and reexport to various destinations, end users, and end uses of 
concern. It is because such items are technologically similar to items 
used in commercial applications that their jurisdictional status is 
being changed from an ITAR-controlled item to an EAR-controlled item. 
BIS also rejects that suggestion that items specially designed for 
military applications not be controlled by a military export control if 
they are composed of commercially available parts and components. 
Regulations that fail to control the export of items with military 
applications solely because they can be built from commercially 
available components would risk strengthening adversaries' military 
capability. Moreover, such a decontrol note would likely lead to 
inconsistent interpretations of the EAR as each individual exporter 
applies its own interpretation of the term ``commercially available.'' 
Finally, BIS believes that this commenter is misinterpreting USML 
Category XI(c), which first controls components of equipment that is 
controlled by Category XI(a) and (b), and then excludes from that 
control only those otherwise ITAR controlled parts, components, 
accessories, and attachments that are ``in normal commercial use.'' The 
State Department has confirmed for BIS that Category XI does not 
exclude items specifically designed or modified for military 
applications from ITAR control merely because they are made from 
components in normal commercial use. Rather, USML Category XI(c) 
excludes from control the part, component, accessory, or attachment 
itself that is ``in normal commercial use.''
    Comment: One commenter recommended removing the technical 
parameters for microwave monolithic integrated circuits (MMIC) and 
discrete microwave transistors from ECCN 3A611.c and .d. The commenter 
recommended that ECCN 3A611.c and .d should cover microwave monolithic 
integrated circuits and discrete microwave transistors specially 
designed for military applications and not found in commercial 
applications instead.
    Response: BIS is not adopting this recommendation. One of the goals 
of the Export Control Reform Initiative is to describe the controlled 
items using specific parameters whenever feasible. The text of ECCN 
3A611.c and .d in this proposed rule reflects the efforts of the 
Departments of Defense, State, and Commerce to tailor the control text 
so that it describes the MMIC power amplifiers and discrete microwave 
transistors that have significant military application. If we have 
described in the proposed text items that are or are likely

[[Page 45032]]

to be in normal commercial use, then please provide a comment regarding 
such uses and the evidence to support the comment.
    Comment: One commenter noted that MMIC power amplifiers in ECCN 
3A001.b.2 have a higher threshold floor operating frequency than MMIC 
power amplifier in 3A611.c. The commenter recommended that the 3A611.c 
operating frequency threshold floor be raised to at least 3.2 GHz.
    Response: BIS is not adopting this proposal to raise the threshold 
floor frequency for MMIC power amplifiers. Although the current 
threshold floor frequency for MMIC power amplifiers listed in ECCN 
3A001.b.2 is 3.2 GHz, the frequency threshold floor for MMIC power 
amplifiers listed in in ECCN 3A982 is 2.7 GHz. The U.S. government has 
presented a proposal to the Wassenaar Arrangement to make 2.7 GHz the 
threshold floor on the Wassenaar Arrangement Dual-Use List. In this 
proposed rule, ECCN 3A611.c and .d are based on that proposal with the 
addition of power added efficiency, higher peak saturated power, 
increased fractional bandwidth, or some combination of these factors to 
limit ECCN 3A611.c and .d. to those MMIC power amplifiers and discrete 
microwave transistors that have significant military applications. BIS 
encourages comments on the parameters set forth in this proposed rule.
    Comment: One commenter stated that MMICs and discrete microware 
transistors with significant military applications operate at 
frequencies that fall within the gaps between the operating frequency 
ranges listed in paragraph .c and .d of ECCN 3A611 in the November 28 
(military electronics) rule.
    Response: There are no gaps between the operating frequency ranges 
in ECCN 3A611.c and .d in this proposed rule.
    Comment: One commenter provided extensive comments on the MMIC 
amplifiers and discrete microwave transistors in ECCN 3A611.c and .d of 
the November 28 (military electronics) rule. Those comments are 
summarized below.
     Wireless broadband and mobile carriers operate in the 2.5-
2.7 GHz segment of the S-band frequency range.
     Descriptions of operating frequency thresholds should be 
consistent among ECCNs, and recommend the pattern currently in ECCN 
3A001 (frequencies exceeding X up to and including Y) as being better 
than the pattern in the November 28 (military electronics) rule 
(frequencies of X up to and including Y). The commenter stated that the 
bottom threshold creates a problem because standard cell phone carrier 
equipment typically operates in the range of 2.5 to 2.7 GHz, with a 
performance roll off slightly above that frequency. Using ``exceeding'' 
would prevent 3A611 from capturing a large segment of commercial 
products that are currently EAR99.
     A total overlap exists between the frequency ranges for 
both MMIC amplifier and transistors in proposed ECCN 3A611 and existing 
ECCN 3A982. ECCN 3A611 would add a power added efficiency metric of 30% 
and a third unit of measure for power thresholds to the two already 
implemented under ECCN 3A982. The result would make ECCN 3A982 entirely 
redundant, and make these products ineligible for License Exception 
STA, i.e., tightening export controls in these products.
     ECCNs 3A611.c and .d--For tiers exceeding 3.2 GHz, 
proposed ECCN 3A611 would encompass the same frequencies currently 
covered by ECCN 3A001 (with carve outs in the 31.8 GHz range and for 
frequencies exceeding 75 GHz). However, by changing the unit of measure 
for the wattage cut-off points from average power to peak power, the 
power thresholds would become more restrictive.
     The proposed power thresholds for transistors and MMICs in 
ECCN 3A611 bear no direct correlation to military-specific applications 
in accordance with the stated intention. By taking the existing 
frequency and power thresholds under ECCNs 3A001 and 3A982 and 
converting the power unit of measure to a tighter metric, this rule 
would have the opposite effect.
     The addition of a power-added efficiency metric to the 
transistor and MMIC controls does not lessen the impact of overly 
restrictive power thresholds. Most Gallium Nitride (GaN) transistors 
and MMICs perform at levels that exceed the proposed power added 
efficiency thresholds for 3A611. Accordingly, it does not help to focus 
the ECCN on high performance parts, which instead would capture most of 
the GaN transistors and MMICs presently used in telecom, backhaul, 
point-to-point, and satellite applications.
     Telecom infrastructure providers use wide band gap 
products, such as with a frequency range of DC-18 GHz for backhaul 
services (telecom providers can take the traffic at a local cell phone 
tower back to the switchboard by aggregating the calls).
     The proposed power added efficiency thresholds, as a 
function of bandwidth, bear no logical correlation to the way that 
discrete microwave transistors and MMIC technologies actually work. The 
lower frequencies should correspond with higher power-added efficiency; 
as the frequency goes higher, the power-added efficiency should 
decrease.
     The proposed power-added efficiency values start at 30% 
for the lowest frequency tier, go up to 40%, then go back down to 35% 
before hitting 30% again. The commenter believes that these thresholds 
are arbitrary and impractical, and proposes alternatives of 60%, 53%, 
45%, 30%, 15%, & 10% for HEMTs and 65%, 57%, 50%, 30%, & 15% for MMICs.
     Saturated peak output power is the most appropriate 
measure. A peak output power metric would most accurately address 
potential concern relating to military importance for parts. This unit 
also would eliminate many of the close-to-the-threshold concerns by 
providing a more precise measure of power. BIS should adopt peak output 
power for all ECCNs that apply to discrete microwave transistors and 
MMICs. In particular, the average power metric should be eliminated 
from proposed 3A611, 3A001 and 3A982, or at least that term should be 
clearly defined in a way that corresponds to peak power.
     The commenter expects a surge in demand for discrete 
microwave transistors with a rated peak power of 120 W in the 3.55-3.65 
GHz band (currently used by naval radar systems) because of an FCC 
proposal to allow small cells/citizens band radio to operate in that 
range (78 FR 1188, January 8, 2013).
     The commenter recommended that 3A611 exclude discrete 
microwave transistors and MMICs that are specifically designed for 
communications in a frequency band allocated by the International 
Telecommunications Union, stating that similar language is used in ECCN 
3A001.
     Proposed 3A611 would expand controls on several commercial 
parts that are, and should continue to be, 3A001 or EAR99. Similar 
parts are available without license restrictions from UMS (Germany), 
Mitsubishi (Japan), Toshiba (Japan), and Sumitomo (Japan).
     Increasing controls on parts that currently are available 
without restriction, and creating ambiguity among proposed ECCN 3A611 
and existing ECCNs 3A001 and 3A982, would create an unlevel playing 
field for U.S. manufacturers and jeopardize thousands of high paying 
jobs.
     This commenter urged removal of discrete microwave 
transistors and MMICs from proposed 3A611

[[Page 45033]]

altogether, because proposed control thresholds overlap with existing 
controls on the CCL. Alternatively, if they are to remain in 3A611, the 
commenter stated that BIS should tailor the provisions narrowly so that 
they apply only to a limited range of products that truly are specially 
designed for military use, with no potential commercial applications in 
the designated power, frequency, and efficiency ranges. There should be 
a logical progression from ECCNs 3A001 to 3A983 to 3A611. Additionally, 
the units of measure should be harmonized for all three ECCNs.
    Response: BIS has substantially revamped the criteria for proposed 
ECCNs 3A611.c and .d in this proposed rule compared to the November 28 
(military electronics) rule, in an effort to tailor these paragraphs to 
apply to MMIC power amplifiers and discrete microwave transistors that 
have significant military applications. These changes are also intended 
to avoid controlling MMIC power amplifiers and discrete microwave 
transistors that have significant civil applications, which will remain 
in ECCNs 3A001 and 3A982. Furthermore, The U.S. government has 
presented a proposal to the Wassenaar Arrangement to modify the 
Wassenaar Arrangement Dual List parameters for MMIC power amplifiers 
and discrete transistors. These proposed modifications are being 
evaluated and would align controls among ECCNs 3A001, 3A982, and 3A611 
and prevent overlap.
    In this proposed rule, paragraph .c would control MMIC power 
amplifiers and paragraph .d would control discrete microwave 
transistors, as was the case in the November 28 (military electronics) 
rule. As recommended by this commenter, frequency ranges are expressed 
in the form ``frequencies exceeding X up to and including Y'' for all 
subparagraphs of both paragraphs .c and .d.
    The MMIC power amplifiers subject to paragraph .c would be 
described in 13 subparagraphs. Each subparagraph would apply to a 
specified operating frequency range, starting with subparagraph .c.1, 
which would apply to MMIC power amplifiers with operating frequencies 
exceeding 2.7 GHz up to and including 2.9 GHz, and increasing with each 
paragraph to paragraph c.13, which applies to MMIC power amplifiers 
with operating frequencies exceeding 110 GHz. Each subparagraph would 
be further defined by the peak saturated power output value that the 
MMIC power amplifiers must exceed to be included within that paragraph. 
Fractional bandwidth and power added efficiency would further define 
the MMIC power amplifiers controlled by some of the subparagraphs. The 
terms ``average power output,'' ``pulse power output,'' and ``duty 
cycle,'' would not be used to describe the MMIC power amplifiers in 
paragraph .c.
    The Departments of Defense, State and Commerce identified these 
parameters as describing the MMIC power amplifiers that are 
sufficiently important to military applications to justify control 
under a 600 series ECCN. BIS believes that when the EAR are read 
according to the order of review published in the April 16 (initial 
implementation) rule, any apparent overlap between the MMIC power 
amplifiers listed in proposed ECCN 3A611 and those listed in ECCNs 
3A001 or 3A982 would be unambiguously resolved, and that only those 
MMIC power amplifiers with significant military application would be in 
ECCN 3A611.c. BIS welcomes comments on whether such is, in fact, the 
case.
    The discrete microwave transistors subject to paragraph .d are 
described in 12 subparagraphs. Each subparagraph applies to a specified 
operating frequency range starting with subparagraph .d.1, which 
applies to discrete microwave transistors with operating frequencies 
exceeding 2.7 GHz up to and including 2.9 GHz, increasing with each 
paragraph to paragraph c.12, which applies to discrete microwave 
transistors with operating frequencies exceeding 75 GHz. Within each of 
the first 11 subparagraphs peak saturated power output and power added 
efficiency further define the discrete microwave transistors to which 
paragraph .d would apply. In the twelfth and final subparagraph, only 
peak saturated power output further defines the controlled discrete 
microwave transistors. BIS and the Departments Defense, State and 
Commerce identified these parameters as describing the discrete 
microwave transistors that are sufficiently important to military 
applications to justify control under a 600 series ECCN. BIS believes 
that when the EAR are read according to the order of review published 
in the April 16 (initial implementation) rule, any apparent overlap 
between the transistors listed in proposed ECCN 3A611 and those listed 
in ECCNs 3A001.b.3 or 3A982 can be unambiguously resolved and that only 
those discrete microwave transistors with significant military 
application would be in ECCN 3A611.d. BIS welcomes comments on whether 
such is, in fact, the case.
    Comment: One commenter stated that the description in 3A611.d 
``discrete radio frequency transistors'' should be the same as ECCN 
3A001.b.3 ``discrete microwave transistors.''
    Response: The preamble to the November 28 (military electronics) 
rule used the phrase ``discrete radio frequency transistors,'' whereas 
the regulatory text used the phrase ``discrete microwave transistors.'' 
This proposed rule uses the latter phrase in the preamble.
    Comment: One commenter stated that discrete microwave transistors 
in 3A611.d have a higher operating frequency than those in 3A001.b.3. 
This commenter recommended that threshold floor operating frequency in 
3A611.d be raised to at least 3.2 GHz.
    Response: This second proposed rule would not raise the operating 
frequency threshold floor for discrete microwave transistors as 
compared to the November 28 (military electronics) rule. Although the 
current threshold floor frequency for power transistors listed in ECCN 
3A001.b.3 is 3.2 GHz, the frequency threshold floor for transistors 
listed in in ECCN 3A982 is 2.7 GHz. The U.S. government has presented a 
proposal to the Wassenaar Arrangement to make 2.7 GHz the threshold for 
coverage on the Wassenaar Arrangement Dual Use List. In this proposed 
rule, ECCN 3A611.d is based on that proposal with the added factor of 
power added efficiency, or peak saturated power, or some combination 
thereof, to identify discrete microwave transistors that have 
sufficient military significance to warrant inclusion in a 600 series 
ECCN. BIS encourages comments on the parameters in this proposed rule.
    Comment: One commenter stated that proposed ECCN 3A611.e duplicates 
equipment proposed to be classified under Category XI(a)(2)(v) and 
(vi). The commenter urged the Departments of State and Commerce to 
specify exactly what is proposed for each list either by name or 
discrete technical parameters.
    Response: BIS believes that the commenter was referring to proposed 
Category XI(a)(3)(v) and (vi), which address radars, as does ECCN 
3A611.e. (The Department of State's November 28 (military electronics) 
rule did not contain a Category XI(a)(2)(v) or (vi)). This second 
proposed rule and the proposed rule being published simultaneously by 
the Department of State include revisions to proposed Category 
XI(a)(3)(v) and ECCN 3A611.e to more precisely describe each than was 
done in BIS's and State's November 28 (military electronics) rules. 
Under the order of review published in the April 16 (initial 
implementation) rule, if

[[Page 45034]]

an item meets the specific parameters of a USML category, it is 
classified under that category, and one need not refer to the CCL. BIS 
believes that the revised text in this second proposed rule, combined 
with the order of review, removes any ambiguity that may have existed 
in the November 28 (military electronics) rule.
    Comment: Several commenters addressed the originally proposed ECCN 
3A611.f, which applied to microelectronic devices or printed circuit 
boards produced at a trusted foundry, trusted source or trusted 
supplier accredited by the Defense Microelectronics Activity (DEMA). 
One commenter stated that this paragraph would be a positive move that 
would clearly define the articles covered. Other commenters perceived 
problems with the paragraph. Those perceived problems were: the 
paragraph appeared to be a delegation by BIS of a Department of State 
classification authority to the DEMA; the rule provided no guidance as 
to how to validate a supplier's accreditation; the paragraph would 
control items not necessarily made for military use if they were 
trusted devices; and DEMA accredits various facilities for a variety of 
functions relating to production and testing--the rule needs clarifying 
language on this point.
    Response: Upon review, the Department of Defense concluded that all 
of the items in proposed 3A611.f that would be appropriate for ``600 
series'' ECCN classification can be fully covered elsewhere in 3A611 or 
other ``600 series'' ECCNs. Therefore, this re-proposed rule does not 
mention microelectronic devices or printed circuit boards produced at a 
trusted foundry, trusted source or trusted supplier accredited by DEMA.
    Comments: One commenter stated that the .x concept in the 600 
series is confusing and would frustrate users attempting to classify 
parts correctly. This commenter also stated that the .x control did not 
clearly align jurisdictional status of software and technology with the 
items to which they relate. This commenter suggested that confusion 
could be reduced by revising the first two related control notes in 
ECCN 3A611 to read, ``(1) Electronic items that are BY THEMSELVES 
enumerated . . . .'' and ``(2) Electronic items `specially designed' 
for military end us that are not BY THEMSELVES controlled within any 
USML category but are within the scope of another `600 series' ECCN . . 
. .''
    Another commenter stated that 3A611.x includes parts, components, 
accessories and attachments ``specially designed'' for military end use 
that are neither enumerated in any USML category nor another ``600 
series'' ECCN. The commenter stated that it is not clear that there are 
any such parts, components, accessories and attachments. The commenter 
noted that electronics are often found in other end-items, and as such 
would be controlled under the ECCN for the end-item, and that the 
proposed language is not required and needlessly complicates the CCL.
    Response: This proposed rule would continue to use the ``.x'' 
concept. The April 16 (initial implementation) rule specifies an order 
of review and provides a definition of the term ``specially designed.'' 
BIS believes that these provisions, read together, would make clear 
that a part, software, or technology for a commodity, unless 
specifically enumerated elsewhere on the USML or CCL, is treated for 
purposes of EAR license requirements as a part of that component rather 
than as a part of an end-item into which the component will be 
installed. The specially designed definition provides greater clarity 
as to which parts and components are specially designed for commodities 
on the CCL.
    Moreover, listing in ECCN 3A611 every single specially designed 
part or component of every piece of military electronic equipment found 
on the USML or in ECCN 3A611 would make the ECCN long and cumbersome. 
Some catch-all license requirements, as currently exist on the USML, 
are needed to provide the United States Government with visibility into 
the disposition and use of military equipment around the world. 
Finally, there are many types of electronic components specially 
designed for military items that would not be controlled under other 
600 series items.
    BIS welcomes further comments on whether the definition of 
``specially designed'' and the order of review add clarity and 
certainty to the process of classifying parts for military electronics.

Comments on ECCN 3A611.y and .y Paragraphs Generally

    Comment: One commenter expressed a belief that placing the .y 
paragraphs in separate ECCNs would lead to inconsistent 
classifications. That commenter offered several examples from various 
BIS proposed rules, e.g., indicator lights for commodities in some 
ECCNs would be in the .y paragraph, but not in other ECCNs that apply 
to items that have indicator lights. This commenter asserted that the 
multiple .y paragraphs would create an unnecessary classification 
burden. This commenter recommended a single list of all .y items. (The 
only CCL reason for control that applies to items in the .y paragraphs 
of 600 series ECCNs is antiterrorism. Such items are also subject to 
the China military end-use requirement.)
    Response: Although this second proposed rule continues to list 
separate ECCN-specific .y paragraphs, BIS is considering four options 
to address items of limited military significance, and would like 
additional public comments on the desirability of each alternative. 
Those options are: (1) Creating separate ECCN-specific .y paragraphs; 
(2) creating a single list of 600 series items subject only to 
antiterrorism and China military end-use license requirements; (3) 
establishing a classification request procedure whereby a 600 series 
item could be designated as subject to only antiterrorism and China 
military end-use license requirements, but eliminating the .y listings 
from the regulations; or removing all .y lists completely. In 
evaluating the desirability of each option, commenters should bear in 
mind that the .y designation indicates that the Departments of Defense, 
State and Commerce have agreed that a specified item is of such limited 
military significance, for almost all destinations, that the U.S. 
government need not attempt to control access to items or monitor their 
distribution to obtain visibility into supply chains necessary to keep 
military equipment functioning. Each option presents different 
advantages and disadvantages.
    Creating separate ECCN specific .y paragraphs would allow BIS to 
tailor the controls most precisely, but would also produce the most 
complex and lengthy regulations. Control over a commodity designed for 
a military ground vehicle might provide less visibility into relevant 
supply chains than would control over that same type of commodity for a 
submarine or surface vessel of war. A single .y list would make the 
regulation of insignificant military items shorter and less complex, 
but likely would contain fewer items than separate .y paragraphs. Such 
a list would need to be a lowest common denominator list equally 
relevant to all parts for all types of military end items, from 
military trucks to advanced submarines. Only those items that do not 
provide useful visibility into the relevant supply chain for any 600 
series ECCN or USML category could be included in such a list. A case-
by-case classification process would likely produce the simplest and 
shortest regulations; it could also tailor .y status

[[Page 45035]]

to very specific items. However, the classification process likely 
would be time consuming and, because classifications are not published 
by BIS, the results would not be as widely distributed as would a list 
or lists in the EAR. Removing all .y lists completely. This would have 
the benefit of substantially simplifying and shortening the relevant 
ECCNs and leaving to one paragraph--the .x paragraphs--the controls 
over non-enumerated parts, components, accessories, and attachments. 
The downside to this option would be substantial over-control on 
insignificant items.
    Comment: Some commenters expressed concern about controlling 
commodities of little or no military significance in 3A611.y. One 
commenter thought that such items could be controlled in existing 
ECCNs. Another commenter suggested that paragraph .y might cause 
confusion with items controlled under other categories, and might 
increase controls on items already classified as EAR99. One commenter 
recommended that three specific commodities: Electrical connectors, 
electrical connector backshells, and waveguides, would be more 
appropriately controlled in a non-600 series ECCN because of their 
commercial applications.
    Response: Commodities proposed for ECCN 3A611.y are currently 
controlled in the catch-all paragraph XI(c) on the USML. BIS has not 
proposed moving any EAR99 items and is proposing to move only items 
controlled by other than -018 ECCNs or ECCN 0A918 into the 600 series 
ECCNs. Although commodities with the same or a similar name, e.g., 
``electric fans,'' may be controlled under other ECCNs or may be EAR99, 
the distinguishing factor that makes a commodity subject to 3A611.y is 
that it is both ```specially designed' for a commodity in ECCN 3A611 
and not elsewhere specified in the CCL (revised to read ``not elsewhere 
specified in a 600 series ECCN'' in this proposed rule--see explanation 
below). Items that are specified in a non- 600 series ECCN (other than 
those ending in ``018,'' all of which are expected to be subsumed into 
the 600 series in the course of the Export Control Reform Initiative) 
would not be specifically designed for the military electronic 
equipment in 3A611. Items that are specially designed need some measure 
of control and for consistency that control should be in a 600 series. 
Readers should review the final definition of ``specially designed'' 
(cited above) in evaluating paragraph .y in this proposed rule.
    Comment: Some commenters recommended adding some commodities to 
3A611.y because they believed that the commodities have commercial 
application or perform the same function in military equipment as they 
do in commercial applications. The items proposed for addition were:

 Crystals and crystal oscillators used a components in articles 
enumerated under USML Category XI
 Cross-field amplifiers, inductive output tubes
 Optical and electrical cables, and harnesses
 Capacitors, crystals oscillators, diodes
 Electrical sockets, optical connectors
 Inductors
 Relays, resistors
 Optical connector backshells
 Optical switches
 Laser and optical terminals
 Digital signal processors
 Power supply
 Passive microwave components
 Telecom receivers and transmitters

    Response: This proposed rule does not add any items to the .y 
paragraphs that did not appear in the November 28 (military 
electronics) rule. Based on the responses to the question whether to 
modify or even maintain the .y list as proposed. BIS will consider 
whether to add more items to a .y structure. The public is encouraged 
to provide justification why particular types of items, regardless of 
how they would be modified for any military item, are nonetheless so 
insignificant as to not warrant more than AT-only controls.

Comment on ECCN 3B611

    Comment: One commenter noted that BIS originally stated that ECCN 
3B611 is intended to align with WAML category ML18. This commenter 
recommended including the WAML category ML18 note listing the equipment 
subject to this control in ECCN 3B611.
    Response: BIS is not adopting this recommendation. ECCN 3B611 
applies to test, inspection and production equipment for military 
electronics. WAML category ML18 applies to such equipment for items on 
the WAML in general. Note 2 to WAML category ML18 lists examples of 
production and test equipment for a wide range of items on the WAML, 
but none of the examples relates specifically to production or testing 
of military electronics. Therefore, BIS believes that adding that list 
to ECCN 3B611 would be less helpful than suggested.

Comment on ECCN 3D611

    Comment: One commenter recommended that ECCN 3D611 be revised for 
consistency with the EAR interpretation of ``use,'' i.e., all six 
elements of the term use must be present for the software to be 
controlled as ``use'' software. Alternatively, the commenter 
recommended limiting ECCN 3D611 to software for development and 
production. The commenter thought the proposed rule language may cause 
confusion and result in a ``roll-back'' from BIS's prior 
interpretation. See 71 FR 30840, 30843 (May 31, 2006).
    Response: BIS is not adopting either of these recommendations. The 
Federal Register notice to which the commenter referred interpreted the 
adjective ``use'' as it applied to software and technology on the CCL 
prior to the creation of the 600 series ECCNs. Nearly all of the 
software and technology in existing and proposed 600 series ECCNs comes 
from USML categories. One goal of the US government in the Export 
Control Reform Initiative is not to decontrol completely and 
inadvertently items the President determines no longer warrant control 
on the USML. BIS believes that the formulation in ECCN 3D611 in the 
November 28 (military electronics) rule, controlling ``software 
`specially designed' for the `production,' `development,' operation or 
maintenance . . .'' achieves this objective.

Comments on ECCN 3E611

    Comment: One commenter stated that the following phrase in ECCN 
3E611.a ``Technology'' (other than that described in ECCN 3E611.b or 
3E611.y) not otherwise enumerated in this ECCN . . .'' was redundant.
    Response: BIS agrees. The phrase ``not otherwise enumerated in this 
ECCN'' . . .'' does not appear in ECCN 3E611.a of this proposed rule.
    Comment: One commenter noted that paragraph .b of ECCN 3E611 in the 
November 28 (military electronics) rule lists technology for helix 
traveling wave tubes, transmit/receive modules, MMICs and discrete 
radio frequency transistors. However, nothing in this paragraph would 
limit its scope to technology for commodities and software in ECCNs 
3A611, 3B611 or 3D611. This omission gives the impression that 3E611 
controls technology for commodities and software in non-600 series 
ECCNs, which is inconsistent with the wording in the preamble. See 77 
FR 70947 (November 28, 2012). The commenter suggests removing paragraph 
.b and the reference to paragraph .b that was in the parenthetical in 
paragraph .a as a way to eliminate the problem.
    Response: BIS agrees that the technology in ECCN 3E611.b should not 
apply beyond helix traveling wave tubes, transmit/receive modules, 
MMICs

[[Page 45036]]

and discrete microwave transistors covered by ECCN 3A611, and this 
proposed rule modifies ECCN 3E611.b to that effect. This proposed rule 
does not adopt the commenter's suggestion to eliminate paragraph .b. 
Paragraph .b is needed because use of License Exception STA is limited 
to ``build-to-print'' technology with respect to the items listed in 
paragraph .b. No such limitation applies to paragraph .a.
    Comment: One commenter noted that proposed ECCN 3E611 applied to `` 
`technology' `required' for the `development,' `production,' operation, 
installation, maintenance, repair, or overhaul of . . . .'' and 
proposed replacing that phrase with the phrase `` `technology' 
`required' for the `development,' `production,' operation, 
installation, maintenance, repair, and overhaul of . . .'' or with the 
word ``use.'' The commenter noted that its recommended change would 
make ECCN 3E611 consistent with other technology ECCNs in which the 
word use indicates that the software must perform all six functions to 
be covered.
    Response: BIS is not making this change. As described above, BIS is 
revising 3E611 to include all six elements.
    Comment: One commenter noted BIS's December 6 (military vehicles) 
rule (See 76 FR 76085 (December 6, 2011)), which stated that BIS was 
considering recommendations to ``limit the controls on form, fit, and 
function data needed to provide military insignificant items for 
military vehicles to the antiterrorism reason.'' This commenter 
recommended that the rule make clear that ECCN 3E611 does not control 
information about automotive electronics that is outside the scope of 
ECCN 0E606, nor does it control information about automotive 
electronics that is controlled by ECCN 0E606, because that information 
relates to an item controlled by ECCN 0A606.y. This commenter also 
noted that manufacturers of commercially available automotive 
electronics may employ people from a number of countries. If 
information about minor adaptations to widely commercially available 
components must be kept from foreign employees, or licenses are 
required to share such information with foreign employees, compliance 
costs would be significant, resulting in higher costs for the U.S. 
military. The commenter reiterated the definition of specially designed 
that it provided in response to the proposed rule entitled ```Specially 
Designed' Definition'' (77 FR 36409, June 19, 2012) as an alternative 
to its specific proposal that ECCN 3E611 should not control information 
controlled by ECCN 0E606.
    Response: The Related Controls paragraph of ECCN 3A611 in this 
second proposed rule contains the following statement ``Electronic 
components not enumerated on the USML or another 600 series entry that 
are `specially designed' for a military vehicle controlled by USML 
Category VII or ECCN 0A606 are controlled by ECCN 0A606.x.'' 
Additionally, the final definition of ``specially designed,'' in the 
April 16 (initial implementation) rule, excludes certain named parts 
and components, parts and components that are identical to parts and 
components used in civil items that are in production or that differ 
from items only with respect to fit. It also excludes parts and 
components where documentation contemporaneous with development 
indicates the part or component was designed for a civil item or for no 
specific item. BIS welcomes comments on the impact of that definition 
on the provisions of this proposed rule.
    Comment: One commenter expressed approval of using the word 
``required'' in ECCN 3E611, because it serves to focus the controls on 
critical technology and is well understood by exporters.
    Response: BIS agrees. The term ``required'' is based on the 
Wassenaar Arrangement general technology note and is used in technology 
ECCNs throughout the EAR to focus the scope of the control.
    Comment: One commenter questioned whether the reference to ``Sec.  
746.3 (Iraq)'' is needed in note 1 in ECCN 4A003.
    Response: The reference to Sec.  746.3 (Iraq) is currently in note 
1 in ECCN 4A003. The note indicates that certain transactions that do 
not require a license for many destinations do, however, require a 
license pursuant to Sec.  746.3 of the EAR for destinations in Iraq. It 
is unrelated to the purpose of the proposed revisions to ECCN 4A003 in 
the November 28 (military electronics) rule, which was to impose the 
missile technology (MT Column 1) reason for control on analog-to-
digital converters in 4A003.e that meet or exceed the parameters of 
ECCN 3A101.a.4. Therefore, BIS is not making any changes to the text of 
proposed ECCN 4A003 as a result of this comment.
    Comment: One commenter stated that ECCN 5A001.f and .h duplicate 
items found in proposed USML Category XI(a)(4)(iii), and recommended 
that the overlap be resolved before releasing a final rule.
    Response: The proposed Department of State rule being published 
simultaneously with this proposed rule contains a note to USML Category 
XI(a)(4)(iii) stating that ``Paragraph XI(a)(4)(iii) does not control 
mobile telecommunications jamming equipment determined to be subject to 
the EAR via a commodity jurisdiction determination . . . .'' BIS 
believes that the commodity jurisdiction process will effectively 
resolve the overlap that this commenter perceived and is, therefore, 
not making any changes to the text of ECCN 5A001.f and .h in this 
proposed rule.
    Comment: One commenter stated that changes proposed to USML 
Category XI(b) would complicate the classification of equipment 
currently classified in 5A001.i and 5A980, and recommended that both 
rules be revised to create jurisdictional ``bright lines'' and 
``positive lists'' of the equipment controlled in each list as intended 
by the Export Control Reform Initiative.
    Response: BIS believes that the USML Category XI(b) as set forth in 
the proposed Department of State rule being published simultaneously 
with this proposed rule, along with the order of review in the April 16 
(initial implementation) final rule published by BIS (See 78 FR 22735, 
April 16, 2013), will provide certainty as to which agency has 
jurisdiction over which articles. Under the order of review, items 
enumerated on the USML are subject to the ITAR, even if they are within 
the parameters of an ECCN. Accordingly, BIS is making no changes to 
ECCNs 5A001.i or 5A980 as a result of this comment. However, if upon 
review of the Department of State text in light of the ``order of 
review,'' readers believe uncertainty still exists, BIS will consider 
comments to that effect. In addition, BIS invites recommendations from 
the public regarding text that would provide a clear distinction 
between the items controlled by USML Category XI(b) and items 
controlled by ECCN 5A001.i or 5A980.
    Comment: One commenter stated that the ``Reason for Control'' table 
in ECCN 7A006 indicates that MT controls apply to commodities that meet 
or exceed the parameters of 7A106. It appears that, by definition, all 
items in 7A006 meet or exceed the parameters of 7A106; therefore this 
language should be removed.
    Response: BIS believes that this language is needed because of the 
longstanding order of review of non-600 series ECCNs, wherein one 
reviews ECCNs within a category in order. ECCNs with a 0 as the third 
character follow the Wassenaar Arrangement Dual Use List text. ECCNs 
with a 1 as the third character generally follow the MTCR text. When 
the two regimes have

[[Page 45037]]

identical text about a particular item, the MT reason for control is 
included in an ECCN with the 0 as the third character. However, when 
the MTCR text differs from the Wassenaar Arrangement Dual Use List 
text, the reference to the parameters of the MTCR based ECCN are used 
to identify items in the text of the ECCN with the 0 as the third 
character to be precise. This system is used throughout the EAR. 
Therefore, BIS is making no changes in response to this comment.

Comments Concerning License Exception STA

    Comment: Some commenters noted that exports under STA are likely to 
be in support of foreign defense programs. One commenter recommended 
the proposed language for the License Exception STA consignee statement 
set forth in the June 21 (transition) rule (See 77 FR 37541, June 21, 
2013) be revised to include the following underscored language: ``(vi) 
For `600 series' items, confirms that unless otherwise authorized by 
the U.S. government, the items are for end use by a government of a 
country listed in Sec.  740.20(c) . . . .'' The Commenter cited the 
example of a European-built military transport aircraft that contains 
some US-origin parts and components. Some of the aircraft would be sold 
to governments eligible to receive items under STA, while others would 
be sold elsewhere. Neither the U.S. supplier nor the foreign 
manufacturer would have any way of knowing which parts would go into 
aircraft for eligible governments and which would not and, thus, under 
BIS's proposed language, could not use STA. This commenter appeared to 
contemplate a situation in which the consignee could apply for a 
license to use parts already received under License Exception STA in 
connection with an activity or end-user not authorized by License 
Exception STA.
    One commenter proposed allowing use of STA based on the consignee's 
assurance that the appropriate U.S. government authorization would be 
obtained before sending the item outside the STA eligible countries. 
Another commenter proposed allowing some kind of use of STA on a 
program basis.
    Response: BIS intends that the U.S. government will have authority 
to license shipments under STA that will not be limited to the end 
users specified in Sec.  740.20(c). Under the April 16 (initial 
implementation) rule, the U.S. government could issue a license 
authorizing the use of License Exception STA to ship to a consignee 
parts that would ultimately be incorporated into items that will be 
used by end-users not otherwise be eligible to receive 600 series end 
items. BIS did not intend to require that the license explicitly 
mention License Exception STA. BIS intends to publish a correction rule 
so that any license issued to the STA consignee authorized the end use, 
could be a basis for authorizing an export, reexport or transfer to 
that consignee under License Exception STA of items otherwise eligible 
for transfer under License Exception STA.
    The consignee would have to obtain the license prior to any 
shipment of parts to it under License Exception STA because the 
consignee would have to furnish a copy of the license to the exporter 
before the exporter could ship under License Exception STA. If after 
the consignee received parts under License Exception STA, the consignee 
learned that those already received parts are needed for an item being 
produced for an end user other than one authorized under STA, that 
consignee could still apply to the U.S. government for a license to use 
those parts in such production, notwithstanding the language about end 
use in the consignee's prior statement. BIS does not intend to preclude 
STA consignees from requesting a new or expanded authorization based on 
facts of which the consignee was unaware at the time it made the 
original statement. BIS does not believe that a change in the 
regulatory text is needed to make this point. BIS is interested in 
comments on whether the approach described in the initial 
implementation rule is feasible and addresses the point of the comment.
    Comment: One commenter expressed general approval of License 
Exception STA and recommended more outreach to increase understanding 
and use of it.
    Response: BIS is developing outreach programs to address this need.
    Comment: One commenter recommended that, provided security needs 
are adequately addressed, the number of eligible STA destinations 
should be increased.
    Response: Although the number of License Exception STA eligible 
destinations may grow or shrink over time, expanding the geographic 
scope of License Exception STA is not a part of this rulemaking 
exercise, which is concerned with adding to the CCL items that the 
President determines no longer warrant control under the USML.
    Comment: One commenter recommended that BIS eliminate the STA 
consignee statement entirely (or at least to NATO countries) to 
significantly ease the administrative burden on industry when using 
this exception. The commenter asserted that this statement is similar 
to the DSP-83 ``Nontransfer and Use Certificate'' form, which is 
required currently for Significant Military Equipment (SME) but not for 
the non-SME articles in Category XI(c). Most of the items would be 
moved to the CCL 600 series under the proposed rule are not SME.
    Response: BIS is not adopting this recommendation. Use of the STA 
consignee statement can readily be distinguished from use of the DSP-
83. The consignee must send the STA consignee statement to the exporter 
as one of the requirements that the parties to the transaction must 
meet in order to be able to execute the transaction without prior US 
government approval. The DSP-83 is a document that must be submitted to 
the US government in support of an application for a government 
authorization to proceed with the transaction. The STA consignee 
statement is required for all transactions under License Exception STA. 
Although statements for 600 series items have more elements than 
statements for non-600 series items, those additional elements reflect 
the limitations on use of License Exception STA that are appropriate 
given the military nature of the 600 series items. This STA consignee 
statement is necessary to provide reasonable assurance that the 
consignee is aware of the requirements and limitations of License 
Exception STA, and has agreed to abide by them before the parties are 
permitted to proceed with a license-free transaction. The alternative 
is to apply for a license, which parties are free to do.
    Comment: One commenter stated that making ECCN 3A611.c and d. high 
electron mobility transistors (HEMT)s and microwave monolithic 
integrated circuits (MMIC)s ineligible for License Exception STA would, 
when combined with the NS1 and RS1, impose a license requirement for 
all destinations other than Canada, making these commodities controlled 
as if they were subject to the ITAR. The commenter noted that 
commodities in ECCN 3A001 and HEMTs in ECCN 3A982 are both eligible for 
STA.
    Response: The November 28 (military electronics) rule and this 
second proposed rule would make all commodities controlled in ECCN 
3A611 ineligible for paragraph (c)(2) of License Exception STA (which 
authorizes shipments to eight countries), but would not preclude use of 
paragraph (c)(1) of STA (which authorizes shipments to 36 countries).
    Comment: One commenter stated that two of BIS's prior proposed 
Export Control Reform Initiative rules (the

[[Page 45038]]

November 7 (aircraft) and the December 6 (gas turbine engine) rules) 
would preclude use of License Exception STA for electrical equipment, 
parts, and components specially designed for electro-magnetic 
interference (EMI) that conform to the requirements of MIL-STD-461. The 
commenter stated that this preclusion raises two difficulties. First, 
the distinction between electric and electronic parts and components is 
often unclear and that they may be ambiguously classified. The 
commenter also stated that this difficulty made it appropriate to raise 
the issue in a comment on the November 28 (military electronics) rule. 
Second, the commenter stated that standard MIL-STD-461 is a poor 
criterion for determining when items designed for EMI compatibility 
should be restricted from STA eligibility or subject to any reasons for 
control other than anti-terrorism because: (1) There are several 
historical versions of MIL-STD-461 that remain in effect for existing 
programs; (2) A number of civil requirements offer performance equal to 
or superior to MIL-STD-461; and (3) Military programs outside the 
United States may use multinational or foreign standards. The commenter 
states that a better criterion would be a degree of EMI protection 
exceeding the equivalent civil requirements for the item.
    Response: BIS believes that the commenter misunderstood the scope 
of the rules. The rules cited by the commenter proposed restricting 
from STA software and technology for the development or production of 
aircraft electrical equipment, parts and components electrical 
equipment, parts, and components specially designed for electro-
magnetic interference (EMI) that conform to the requirements of MIL-
STD-461. They did not propose restricting from STA the equipment, parts 
and components themselves. The April 16 (initial implementation) rule 
published these restrictions in ECCNs 9D610 and 9E610 (See 78 FR 22733-
22734, April 16, 2013).
    Comment: One commenter provided two sets of comments. The first set 
provided detailed proposals for rewording USML Category XI and a number 
of ECCNs as they appeared in the November 28 (military electronics) 
rules of the Departments of State and Commerce. The second set proposed 
detailed rewording of a number of ECCNs and the creation of some new 
ECCNs in Category 9 of the CCL.

First Set of Comments

    The commenter divided the proposals in his first set of comments 
into three topics, which he characterized as edits to remove: Overlaps 
in BIS's and State's November 28 (military electronics) rules that 
would move items from the CCL to the USML; ambiguities in the November 
28 [Commerce] rule; and other CCL ambiguities that the commenter 
perceived to be relevant.

Instances in Which the Commenter Expressed a Belief That the Rule Would 
Transfer Items From the CCL to the USML

    The commenter identified 18 instances in which he asserted that 
overlapping text would have the effect of transferring items from the 
CCL to the USML. BIS is not adopting any of the specific changes 
proposed by the commenter under this topic. In some instances, the 
commenter proposed only changes to the USML and not to the CCL. In 
other instances, the comment appeared to reflect an incomplete reading 
of either the USML or CCL entries such that detailed technical 
specifications were interpreted without consideration of introductory 
text that limited the overall range of the items to which the technical 
specifications applied. BIS does not believe that the November 28 
(military electronics) rule or this proposed rule would transfer any 
items from the CCL to the USML. BIS invites comments that describe 
specific examples of actual items that are today subject to the EAR 
that would become subject to the ITAR were this and the corresponding 
State proposed rule to become final.

Instances in Which the Commenter Expressed a Belief That the Rule 
November 28 (Military Electronics) Rule Was Ambiguous

    The commenter cited about 50 situations in which he thought the 
rule was ambiguous and needed changes for precision. In most instances, 
BIS either does not agree that the proposed text cited by the commenter 
was ambiguous or believes that the comment addressed text that is 
outside the scope of the proposal. However, in four instances, this 
proposed rule adopts changes recommended by this commenter.
    The four instances in which this second proposed rule adopts 
changes from the November 28 (military electronics) rule in response to 
the comments proposed by this commenter are:
     Adding the phrase ``or software'' to paragraph .y of ECCN 
3E611. Paragraph .y of ECCN 3E611 applies to technology for 3A611.y and 
3D611.y. ECCN 3A611 applies to commodities and ECCN 3D611 applies to 
software. Use of the term ``commodities'' to apply to technology for 
both ECCNs in the November 28 (military electronics) rule was in error.
     Adding the word ``acoustic'' to the list of items in the 
note to ECCN 3A611.a and note 1 to 3A611.x. These notes describe in 
general terms the items that if not enumerated on the USML or another 
600 series ECCN, are controlled by ECCN 3A611. Adding the word 
``acoustic'' makes the listing more comprehensive.
     Adding the phrase ``Acoustic systems and equipment'' to 
the header of ECCN 6A611. In the November 28 (military electronics) 
rule, ECCN 6A611 referred readers to ECCN 3A611 for radar and related 
items specially designed for military use. The reference was included 
because CCL Category 6 controls a number of other radars. ECCN 3A611 
would control acoustic systems and equipment specially designed for 
military use that are not on the USML or any other 600 series ECCN and 
other acoustic systems and equipment also in Category 6 of the CCL. 
Including the additional phrase will make ECCN 6A611 more descriptive 
and comprehensive.
     Adding a new ECCN 7A611 that only refers readers to ECCN 
3A611 for navigation and avionics, parts, components, accessories and 
attachments ``specially designed'' for military use that are not 
enumerated in any USML category or other ``600 series'' ECCN. ECCN 
3A611 applies to military electronic avionic and navigation devices not 
enumerated on the USML or in another 600 series ECCN. Because CCL 
Category 7 applies to such devices not specially designed for military 
use, the cross-reference will be helpful to alerting readers to check 
ECCN 3A611.
    This proposed rule did not adopt the following proposals of this 
commenter.
    Comment: Indicate in the foregoing cross-reference ECCNs that ECCN 
3A611 does not control radar, acoustic systems and equipment, 
computers, telecommunication equipment or navigation and avionics and 
related items if controlled by any other ECCN, including non-600 series 
ECCNs. Apply ECCN 3A611 to commodities that are specially designed for 
military use.
    Response: Commodities in non-600 series ECCNs (other than ECCNs 
ending in ``018'' and ECCN 0A918) are not specially designed for 
military use, so there should be no overlap between ECCN 3A611 and non-
600 series ECCNs. Moreover, the April 16 (initial implementation) rule 
created an order of review that gives 600 series ECCNs preferences over 
non-600 series ECCNs. Adopting the commenter's proposal

[[Page 45039]]

would appear to undermine that order of review.
    Comment: Replace the term ``specially designed'' with ``required'' 
in several ECCNs covering software. The term ``required'' as a well-
defined meaning in the EAR that is based on a Wassenaar Arrangement 
definition. That term is defined in relation to technology rather than 
software.
    Response: BIS believes that the term ``specially designed'' as 
defined on the April 16 (initial implementation) rule provides 
reasonable, practical and objective criteria for classifying products, 
the term ``required'' as currently defined would exclude many parts and 
components that are in fact designed for military items and that have 
no other practical use.
    Comment: Do not use the term ``specially designed'' in instances 
where the Missile Technology Control Regime uses the word ``designed.'' 
Generally, the commenter recommended that no word replace the phrase 
``specially designed,'' on the ground that the specifications in the 
ECCN are sufficiently precise that no qualifier is needed.
    Response: BIS believes that the term specially designed as defined 
in the April 16 (initial implementation) rule is adequate to meet its 
MTCR obligations.
    Comment: Replace the term ``operation or maintenance'' with the 
term ``use'' in several software ECCNs.
    Response: BIS has adopted the phrase `` `development,' 
`production,' operation or maintenance'' as a standard practice in 600 
series ECCNs. The commenter suggested no persuasive reason to change 
this policy.
    Comment: Remove the term ``directly related'' and, in some 
instances, replace it with the word ``required'' in the several 
``Related controls'' notes of software and technology ECCNs.
    Response: The related control notes at issue refer readers to the 
USML for controls on ``technical data'' (which, on the USML, includes 
both software and technology) that is similar to the software or 
technology covered by that ECCN. The USML uses the term ``related to'' 
in describing the objects to which those technical data apply. In these 
cross-references to the USML, using the USML terminology is 
appropriate.
    Comment: Do not use the phrase ``technical data,'' except in its 
meaning as defined in part 772 of the EAR.
    Response: The specific uses of the term ``technical data'' to which 
this commenter objected are references to the USML. In that context, 
the term is used in a way that is consistent with its meaning in the 
USML. The term is not surrounded by quotation marks, which would 
signify that it is defined in part 772.
    Comment: Replace the word ``and'' with the word ``or'' in the 
definition of ``use'' in the EAR.
    Response: This proposal would affect every software ECCN in the 
entire CCL and is outside the scope of the November 28 (military 
electronics) rule.
    Comment: The commenter recommended a number of changes to ECCNs or 
ECCN paragraphs for which modifications are not needed to accomplish 
the purpose of the November 28 (military electronics) rule and this 
proposed rule, which is to control on the CCL items that the President 
determines no longer warrant control on the USML.
    Response: Without commenting on the merit of each of those proposed 
changes, BIS is not including them in this proposed rule because they 
are outside the scope of what BIS proposed in the November 28 (military 
electronics) rule. Including them in this proposed rule would distract 
readers and potential commenters, possibly depriving BIS of the benefit 
of informed analysis and comments on the rule's efficacy in achieving 
its purpose as stated above.
    In addition to the changes discussed above, this commenter 
recommended several changes to the proposed ECCNs in CCL Category 9 
concerning cryogenic and superconductive equipment and related items.
    Comment:
     Add the phrase ``not controlled by 1C005, 3A001.d, 
3A001.e.3, 3A201.b, 6A002.d.1, 6A006.a.1 or 8A002.o.2.c'' to the header 
of ECCN 9A620
     Add a related control note referring to ECCNs 1C005, 
3A001.d, 3A001.e.3, 3A201.b, 6A002.d.1, 6A006.a.1 or 8A002.o.2.c.
     Remove the phrase ```specially designed' to be installed'' 
and the phrase ``and capable of'' from paragraphs .a and .b of 9A620
     Remove the words ``Parts'' and ``attachments'' from 
9A620.x
     Change the word ``and'' to ``or'' everywhere it appears in 
the following phrase in ECCN 9B620: ``Test, inspection and production 
end items and equipment . . .''
     In ECCN 9A620.x, replace the phrase ``specially designed 
for a commodity controlled by ECCN 9A620'' with ``for a commodity 
controlled by ECCN 9A620.a or 9A620.b having any of the characteristics 
described in the texts of those sub-items.''
     In ECCN 9B620, replace the phrase: `` `Specially designed' 
for items controlled in ECCN 9A620'' with the phrase ``having any of 
the characteristics described in 9A620.a or 9A620.b.''
    Response: The ECCNs that this commenter proposes adding to the 
header of ECCN 9A620 and to a related control note in that ECCN apply, 
inter alia, to a number of commodities that have cryogenic or 
superconducting properties. None of them has the qualifier `` 
`specially designed' to be installed in a vehicle for military . . . 
applications,'' which appears in paragraphs .a and .b of proposed ECCN 
9A620. In fact, only one ECCN, 8A002.o.2.c, relates to a vehicle of any 
kind. In addition, the order of review in the April 16 (initial 
implementation) rule makes clear that items with characteristics that 
meet the parameters of a 600 series ECCN are controlled by that 600 
series ECCN and not by a non-600 series ECCN.
    The phrases `` `specially designed' to be installed'' and the 
phrase ``and capable of'' are drawn from WAML category ML20, on which 
ECCN 9A620 is based. The commenter offered no specific reason to depart 
from the regime text. WAML category ML20 also uses the phrase 
``components and attachments.'' The Wassenaar Arrangement does not 
define either ``components'' or ``attachments.'' However, BIS believes 
that as used in the Wassenaar Arrangement's control lists, the term 
``components'' would encompass ``parts'' and ``components'' as defined 
in the April 16 (initial implementation) rule and the term 
``attachments'' would encompass ``accessories'' and ``attachments'' as 
defined in the April 16 (initial implementation) rule. The phrase 
``Test, inspection and production equipment'' is also used widely in 
describing product group B in all nine categories of the EAR. BIS 
believes that it is widely understood to encompass each of those three 
types of equipment, and that changing the formula for one ECCN would be 
more likely to increase than to decrease any misunderstandings that may 
exist. The suggested alternative phrases for ECCNs 9A620.x and 9B620 
(replacing ``specially designed'' with ``having any of the 
characteristics of'') would distort the meaning of these ECCNs in ways 
that would in some instances extend the control beyond what BIS 
intends, and in other instances fail to control things that BIS intends 
to control. BIS believes that with the publication of the definition of 
the term ``specially designed'' in the April 16 (initial 
implementation) rule, these ECCNs will be best understood and 
appropriately tailored by retaining that term.

[[Page 45040]]

Comments That Commenter Characterized as ``Other'' Military Electronics 
Ambiguities

    Comment: This commenter cited ten instances of alleged military 
electronics ambiguities, i.e., instances in which the applicable ECCN 
for an item was uncertain.
    Response: BIS is not adopting any of this commenter's recommended 
changes in this category. Two of the comments in essence repeated the 
view that ECCNs 3A001.d and .e.3 should be cross referenced in ECCN 
9A620 because they apply to superconducting commodities. The remaining 
eight comments do not address any text on the CCL that is related to or 
affected by the decision to control on the CCL items that the President 
determines no longer warrant control on the USML and are thus outside 
the scope of the November 28 (military electronics) rule.

Second Set of Comments Submitted by This Commenter

    Comment: The commenter proposed changes to 57 of the 63 ECCNs 
currently in CCL Category 9, and the creation of five new ECCNs for 
that category. The commenter did not propose any changes to the four 
new ECCNs proposed for that category by the November 28 (military 
electronics) rule.
    Response: All these proposed changes are outside the scope of the 
November 28 (military electronics) rule, and are extraneous to the 
purpose of that or this second proposed rule. Therefore, BIS is not 
making any changes to this proposed rule in response to these comments.

Detailed Description of Changes Proposed by This Rule

Revisions to ECCN 3A101

    Currently, ECCN 3A101 refers readers to the ITAR for analog-to-
digital converters described in paragraph .a. These converters would 
move to the CCL and continue to be controlled for MT reasons because 
they are identified on the MTCR Annex. Placing such items in this ECCN, 
rather than the new ECCN 3A611, will make it easier to identify, 
classify, and control such items. Consequently, this proposed rule adds 
analog-to-digital converters usable in ``missiles'' and having any of 
the characteristics described in proposed 3A101.a.1 or a.2. This 
proposed rule modifies the text of ECCN 3A101.a.1 compared to what was 
published in the November 28 (military electronics) rule to more 
closely follow the format and text of Category II, Item 14, 14.A.1 of 
the MTCR Annex. This is not a substantive change from what was 
previously proposed.
New 3Y611 Series of ECCNs
    Proposed new ECCNs 3A611, 3B611, 3D611, and 3E611 would control 
military electronics and related test, inspection, and production 
equipment and software and technology currently controlled by USML 
Category XI that the President determines no longer warrant control on 
the USML. To the extent that they are not enumerated on the proposed 
revisions to Category XI, these proposed new ECCNs would also control 
computers, telecommunications equipment, radar ``specially designed'' 
for military use, parts, components, accessories, and attachments 
``specially designed'' therefor, and related software and technology. 
This structure aligns with the current USML Category XI and ML11, which 
include within the scope of ``electronics'' such items as computers, 
telecommunications equipment, and radar. BIS believes that it will be 
easier to include such items within the scope of the proposed new 600 
series that corresponds to USML Category XI, rather than creating new 
600 series ECCNs in CCL Categories 4 (computers), 5 
(telecommunications), 6 (radar) and 7(avionics). BIS, however, proposes 
including cross references in CCL Categories 4, 5, 6 and 7 to alert 
readers that ECCN 3A611 may control such items. As described above, BIS 
nonetheless solicits comments regarding whether it would be easier to 
understand and comply with controls on military electronics that move 
to the CCL from the USML if they were divided among 600 series entries 
in CCL Categories 4, 5, 6, and 7.
    The proposed ECCN 3X611 series, except for ECCN 3X611.y, would be 
controlled for national security (NS Column 1 or NS1), regional 
stability (RS Column 1 or RS1), antiterrorism (AT Column 1 or AT1), and 
United Nations embargo (UN) reasons. ECCNs 3X611.y would only be 
controlled for AT1 reasons (ECCN 3B611 would not have a .y paragraph). 
Each ECCN in this 3X611 series is described more specifically below.
New ECCN 3A611
    Proposed ECCN 3A611 paragraph .a would control electronic 
``equipment,'' ``end items,'' and ``systems'' ``specially designed'' 
for military use that are not enumerated in either a USML category or 
another ``600 series'' ECCN.
    Paragraph .b would be reserved. The corresponding USML Category is 
XI(b), which, in the Department of State proposed rule being published 
concurrently with this rule, would continue to be a catch-all control 
and would contain the following clarified version of the current 
Category XI(b): ``Electronic systems or equipment specially designed 
for intelligence purposes that collects, surveys, monitors, or exploits 
the electromagnetic spectrum (regardless of transmission medium), or 
for counteracting such activities.'' In the Department of State's 
proposed rule being published simultaneously with this proposed rule, 
Category XI(b) references certain types of equipment and systems that 
are per se within the scope of the revised Category XI(b). BIS 
encourages the public to comment on whether this approach creates any 
confusion regarding the jurisdictional status of any items that are 
commonly used in normal commercial, non-intelligence, or non-security 
use, including those controlled under ECCN 5A980 (``Devices primarily 
useful for the surreptitious interception of wire, oral, or electronic 
communications.'')
    Paragraphs .c and .d would control MMIC power amplifiers and 
discrete microwave transistors, respectively. These two paragraphs have 
been extensively revised from what was proposed in the November 28 
(military electronics) rule in an effort to tailor them to control MMIC 
power amplifiers and discrete microwave transistors that have military 
end use and little or no civilian application. The new parameters are 
discussed under the heading ``Public Comments on the November 28 
(military electronics) rule'' below. Additionally, a note has been 
added stating that paragraph .d includes bare dice, dice mounted on 
carriers or dice mounted in packages. The note also recognizes discrete 
transistors may also be referred to as power amplifiers but that doing 
so does not change the classification, whether under ECCN 3A001.b.3 or 
3A611.d.
    Paragraph .e would control high frequency (HF) surface wave radar 
capable of ``tracking'' surface targets on oceans.
    In this proposed rule, microelectronic devices and printed circuit 
boards that are certified to be a `trusted device' from a DMEA 
accredited supplier that were listed in paragraph .f in the November 28 
(military electronics) rule are not listed because, upon review, all 
such devices and printed circuit boards that needed to be controlled 
were covered by other paragraphs of 3A611.
    Paragraphs .f, .g, and .h in this proposed rule apply respectively 
to: (1) Application specific integrated circuits (ASICs) and 
programmable logic devices (PLD) programmed for 600 series items; (2) 
printed circuit boards and populated

[[Page 45041]]

circuit card assemblies whose layout is ``specially designed'' for 600 
series items; and (3) multichip modules for which the pattern or layout 
is ``specially designed'' for 600 series items. These commodities were 
not explicitly included in the November 28 (military electronics) rule, 
but would have been covered by the ``catch all'' paragraph 3A611.x in 
that rule. However, these same types of devices, if for defense 
articles on the USML, were explicitly identified in Category XI.c.1, .2 
and .3 of the Department of State rule of November 28. A comment on 
that Department of State proposal stated that greater clarity was 
needed to prevent classifying ASICs, PLDs, and printed circuit boards 
for 600 series items as defense articles subject to the ITAR. 
Identifying ASICs, PLDs and printed circuit boards for 600 series items 
explicitly in ECCN 3A611 contributes to this clarity. These additions 
are not substantive changes from what was proposed in the November 28 
(military electronics) rule.
    Each of the foregoing ECCN 3A611 paragraphs describes electronic 
items that BIS understands to be inherently military or otherwise 
exclusively designed and manufactured for military use. BIS encourages 
the public to test this understanding and identify items, if any, that 
fall within the scope of these new ECCNs that are in normal commercial 
use. If so, the comments should provide details on such commercial 
applications. In particular, BIS asks the public to comment on whether 
the controls in proposed new paragraphs 3A611.c (MMIC power amplifiers) 
and 3A611.d (discrete microwave transistors) are sufficiently limited 
to those not now or likely to be in normal commercial use by US or 
foreign telecommunications or other non-military applications. The 
basis for this request is that the current USML Category XI(c) does not 
now control any electronic parts, components, accessories, attachments, 
or associated equipment ``in normal commercial use'' even if they were 
``specifically designed or modified for use with the equipment'' 
controlled in USML categories XI(a) or XI(b), which are, in essence, 
electronic equipment ``specifically designed, modified, or configured 
for military application.'' One of the goals of the reform effort is to 
ensure that items that are currently EAR controlled are not, through 
the creation of the more positive lists, unintentionally made ITAR or 
``600 series'' controlled. This objective, however, does not preclude 
the possibility of the Administration intentionally making ITAR or 
``600 series'' controlled items that are today subject to the other 
parts of the EAR.
    Paragraphs .i through .w would be reserved.
    Paragraph .x would control ``parts,'' ``components,'' 
``accessories'' and ``attachments'' that are ``specially designed'' for 
a commodity controlled by ECCN 3A611 or for an article controlled by 
USML Category XI, and not enumerated in a USML category.
    A related control note is proposed for ECCN 3A611 clarifying that 
electronic parts, components, accessories, and attachments that are 
``specially designed'' for military use that are not enumerated in any 
USML Category, but are within the scope of a ``600 series'' ECCN, are 
controlled by that ``600 series'' ECCN. For example, electronic 
components not enumerated on the USML that are ``specially designed'' 
for a military aircraft controlled by USML Category VIII or ECCN 9A610 
would be controlled by ECCN 9A610.x. Similarly, electronic components 
not enumerated on the USML that are ``specially designed'' for a 
military vehicle controlled by USML Category VII or ECCN 0A606 would be 
controlled by ECCN 0A606.x. The purpose of this note and the 
limitations in ECCN 3A611.x is to prevent any overlap of controls over 
electronics specially designed for particular types of items described 
in other 600 series ECCNs (which would not be controlled by 3A611.x), 
on one hand, and other electronic parts, components, accessories, and 
attachments specially designed for military electronics that are not 
enumerated on the USML (which would be controlled by ECCN 3A611.x), on 
the other.
    Additional proposed related control notes address: Electronic items 
that are enumerated in USML categories, application specific integrated 
circuits, unprogrammed programmable logic devices, printed circuit 
boards and populated circuit cards, and multichip modules. Finally, a 
related control note informs readers that certain radiation hardened 
microelectronic circuits would be controlled by proposed ECCN 9A515.d. 
See 78 FR 31431, 31442 (May 24, 2013) for the proposed text of ECCN 
9A515.
    A note proposed for ECCN 3A611.x specifies that ECCN 3A611.x 
controls parts and components ``specially designed'' for underwater 
sensors or projectors controlled by proposed USML Category XI(c)(12) 
containing single-crystal lead magnesium niobate lead titanate (PMN-PT) 
based piezoelectrics.
    ECCN 3A611 also would contain a paragraph .y for items of little or 
no military significance that would be controlled only for AT1 reasons.
New ECCN 3B611
    Proposed ECCN 3B611 would impose, under paragraph .a, controls on 
test, inspection, and production end items and equipment ``specially 
designed'' for the ``development,'' ``production,'' repair, overhaul, 
or refurbishing of items controlled in ECCN 3A611 or USML Category XI 
that are not enumerated in USML XI or controlled by a ``600 series'' 
ECCN and, under paragraph .x, for ``parts,'' ``components,'' 
``accessories'' and ``attachments'' that are ``specially designed'' for 
such test, inspection and production end items and equipment that are 
not enumerated on the USML or controlled by another ``600 series'' 
ECCN. Paragraphs .b through .w would be reserved.
New ECCN 3D611
    Proposed ECCN 3D611 paragraph .a would impose controls on software 
``specially designed'' for the ``development,'' ``production,'' 
operation, or maintenance of commodities controlled by 3A611 or 3B611 
other than software for 3A611.y. Paragraph .b would impose controls on 
software specially designed for the ``development,'' ``production,'' 
operation or maintenance of technology in ECCN 3E611.b; i.e., software 
(other than build-to-print software) for technology for helix traveling 
wave tubes (TWTs), transmit/receive or transmit modules, MMICs; and 
discrete microwave circuits controlled under ECCN 3A611 would not be 
eligible for License Exception STA. Paragraphs .c through .x would be 
reserved. Paragraph .y would control specific ``software'' ``specially 
designed'' for the ``production,'' ``development,'' operation or 
maintenance of commodities enumerated in ECCNs 3A611.y.
New ECCN 3E611
    Proposed ECCN 3E611 would impose controls on ``technology'' 
``required'' for the ``development,'' ``production,'' operation, 
installation, maintenance, repair, overhaul, or refurbishing of 
commodities or software controlled by ECCN 3A611, 3B611 or 3D611 
(except technology for 3A611.y and 3D611.y, which would be controlled 
for AT1 reasons only). Technology (other than ``build-to-print'' 
technology for helix traveling wave tubes (TWTs), transmit/receive or 
transmit modules, MMICs; and discrete microwave circuits controlled 
under ECCN 3A611 would not be eligible for License Exception STA.

[[Page 45042]]

Revisions to ECCN 4A003
    As noted above, the analog-to-digital converters described in the 
proposed revision to 3A101.a would become subject to the EAR. Adding 
the text in 3A101.a.2.b for electrical input type analog-to-digital 
converter printed circuit boards or modules requires that this proposed 
rule amend ECCN 4A003 to add an MT control for items classified under 
ECCN 4A003.e when meeting or exceeding the parameters described in ECCN 
3A101.a.2.b. This amendment is necessary because the MT items in new 
paragraph 3A101.a.2.b are a subset of the items in paragraph 4A003.e.
Revisions to ECCN 5A001
    This proposed rule revises the Related Controls paragraph in ECCN 
5A001 to provide more detailed references to telecommunications 
equipment subject to the ITAR under USML Categories XI and XV, while 
maintaining references to ECCNs 5A101, 5A980, and 5A991.
New Cross Reference ECCNs
    Four new cross reference ECCNs would be created to alert readers 
that computers, telecommunications equipment, radar and avionics--and 
parts, components, accessories and attachments ``specially designed'' 
therefor--are controlled by ECCN 3A611 if they are specially designed 
for military use. These cross references are intended to reduce the 
likelihood of confusion that might otherwise arise because computers, 
telecommunications equipment, radar and avionics generally are in CCL 
Categories 4, 5 (Part 1), 6 and 7, respectively. The new cross 
reference ECCNs and the Categories in which they would appear are: 
4A611, Category 4; 5A611, Category 5, Part 1; 6A611, Category 6; 7A611, 
Category 7. The avionics cross reference ECCN was not in the November 
28 (military electronics) rule. As discussed below, BIS received public 
comments expressing a preference for controlling 600 series computers, 
telecommunications and radar in the CCL Categories under which other 
computers, telecommunications and radar are controlled rather than in a 
single ECCN in Category 3. The latter approach more closely follows the 
USML pattern. BIS encourages further comment on this issue.
Corrections to ECCNs 7A006 and 7D101
    This proposed rule would correct the reasons for control paragraph 
of ECCN 7A006 to state that the MT reason for control applies to those 
items covered by ECCN 7A006 that also meet or exceed the parameters of 
ECCN 7A106. ECCN 7A006 now applies the missile technology reason for 
control to a range of airborne altimeters that extends beyond the range 
of altimeters that are on the MTCR Annex. BIS's practice is to apply 
the MT reason for control only to items on that Annex. This proposed 
change would conform ECCN 7A006 to that practice. Similarly, this 
proposed rule would add the phrase ``for missile technology reasons'' 
to the heading of ECCN 7D101. ECCN 7D101 applies the missile technology 
reason for control to software for a range of commodity ECCNs. Not all 
of those commodities are controlled for MT reasons. The text proposed 
here would limit the scope of missile technology controls in ECCN 7A106 
to commodities on the MTCR Annex, and that of ECCN 7D101 to software 
for commodities on the MTCR Annex.
New 9X620 Series of ECCNs
    Proposed ECCNs 9A620, 9B620, 9D620, and 9E620 would apply NS1, RS1, 
AT1 and UN reasons for control to cryogenic and superconducting 
equipment described in category ML20 of the WAML, and to test, 
inspection and production equipment, software and technology therefor. 
Category ML20 covers cryogenic and superconducting equipment that is 
``specially designed'' to be installed in a vehicle for military 
ground, marine, airborne, or space applications. BIS believes that such 
equipment is used in experimental or developmental vehicle propulsion 
systems that employ superconducting components and cryogenic equipment 
to cool those components. BIS has not identified evidence of trade in 
such items. To the extent that exports do exist, the items would be 
subject to the license requirements of the USML category that controls 
the vehicle into which the equipment would be installed, i.e., Category 
VI, surface vessels; Category VII, ground vehicles; Category VIII, 
aircraft; and Category XV, spacecraft. BIS proposes to place this 
cryogenic and superconducting equipment, its related test, inspection 
and production equipment, and its related software and technology into 
a single set of 600 series ECCNs ending with the digits ``20'' to 
correspond to the relevant WAML category. This approach would further 
the administration's Export Control Reform Initiative goal of aligning 
US controls with multilateral controls wherever feasible. Each ECCN in 
this series is described more specifically below.
New ECCN 9A620
    Proposed ECCN 9A620.a would control equipment ``specially 
designed'' to be installed in a vehicle for military ground, marine, 
airborne, or space applications, capable of operating while in motion 
and of producing or maintaining temperatures below 103 K (-170 [deg]C). 
Paragraph .b would control ``superconductive'' electrical equipment 
(rotating machinery and transformers) ``specially designed'' to be 
installed in a vehicle for military ground, marine, airborne, or space 
applications, and capable of operating while in motion. Paragraphs .c 
through .w would be reserved. Paragraph .x would control parts, 
components, accessories and attachments ``specially designed'' for a 
commodity controlled by ECCN 9A620.
New ECCN 9B620
    Proposed ECCN 9B620 would control test, inspection, and production 
end items and equipment ``specially designed'' for the ``development,'' 
``production,'' repair, overhaul or refurbishing of items controlled in 
proposed ECCN 9A620.
New ECCN 9D620
    Proposed ECCN 9D620 would control software ``specially designed'' 
for the ``development,'' ``production,'' operation, or maintenance of 
commodities controlled by ECCNs 9A620 or 9B620.
New ECCN 9E620
    Proposed ECCN 9E620 would control a ``technology'' ``required'' for 
the ``development,'' ``production,'' operation, installation, 
maintenance, repair, overhaul, or refurbishing of commodities or 
software controlled by ECCNs 9A620, 9B620 or 9D620.
Proposed New ECCNs and License Exception STA
    One of the objectives of the Export Control Reform Initiative is to 
align the jurisdictional status of technology and software with the 
items to which they relate. Thus, for example, as a general matter, all 
technical data and software directly related to a defense article, 
i.e., an item identified on the ITAR's USML, will also be ITAR 
controlled. All technology, including technical data (other than 
classified technical data directly related to items controlled under 
ECCNs 3A611, 3B611, 3C611, or 3D611), and software for the production, 
development, or other aspects of an item on the EAR's CCL, will be 
subject to the EAR. Nevertheless, some types of software and technology 
are more significant than the commodities that are developed or 
produced from or that utilize such software or technology. In 
recognition of that fact, this proposed rule would preclude in the 
ECCNs the use of License Exception STA for

[[Page 45043]]

software and technology (other than build-to-print software and 
technology) for the following types of items if controlled by ECCN 
3A611: (1) Helix traveling wave tubes (TWTs); (2) Transmit/receive or 
transmit modules; (3) Microwave monolithic integrated circuits (MMIC)s; 
and (4) Discrete microwave transistors. This fact is noted in the 
License Exception STA paragraphs for ECCNs 3D611 and 3E611.

Request for Comments

    All comments must be in writing and submitted via one or more of 
the methods listed under the ADDRESSES caption to this notice. All 
comments (including any personal identifiable information) will be 
available for public inspection and copying. Those wishing to comment 
anonymously may do so by submitting their comment via regulations.gov 
and leaving the fields for identifying information blank.

Effects of This Proposed Rule

Use of License Exceptions

    Military electronic equipment, certain cryogenic and 
superconducting equipment, and parts, components, and test, inspection, 
and production equipment therefor currently on the USML that this rule 
would place on the CCL would become eligible for several license 
exceptions, including STA, which would be available for exports to 
certain agencies of NATO governments and other multi-regime close 
allies. The exchange of information and statements required under STA 
are substantially less burdensome than the license application 
requirements under the ITAR, as discussed in more detail in the 
``Regulatory Requirements'' section of this proposed rule. BIS does not 
intend with this proposed rule to move any items currently subject to 
the EAR to a 600 series ECCN; therefore, it would not narrow the scope 
of license exception eligibility for any items currently on the CCL.

Alignment With the Wassenaar Arrangement Munitions List

    The Administration has stated since the beginning of the Export 
Control Reform Initiative that the reforms will be consistent with the 
obligations of the United States to the multilateral export control 
regimes. Accordingly, the Administration will, in this and subsequent 
proposed rules, exercise its national discretion to implement, clarify, 
and, to the extent feasible, align its control text with those of the 
regimes. This proposed rule would maintain the alignment that exists 
between the USML, in which military electronics are controlled under 
Category XI, and the WAML, in which military electronic equipment is 
controlled under ML11, and would be controlled by ECCN 3A611 in this 
proposed rule. Similarly, 3B611 aligns with WAML 18, which, inter alia, 
controls ``specially designed or modified `production' equipment for 
the `production' of products specified by the Munitions List, and 
specially designed components therefor.''
    This proposed rule would align cryogenic and superconducting 
equipment currently controlled in Categories VI, VII, VIII, and XV of 
the USML with Wassenaar Arrangement Munitions List category ML20 by 
controlling them under ECCN 9A620. As with other 600 series ECCNs, this 
rule follows the existing CCL numbering pattern for test, inspection 
and production equipment (3B611 and 9B620), software (3D611 and 9D620) 
and technology (3E611 and 9E620), rather than strictly following the 
Wassenaar Arrangement Munitions List pattern of placing production 
equipment, software and technology for munitions list items in 
categories ML18, ML21 and ML22, respectively. BIS believes that 
including the ECCNs for test, inspection and production equipment, 
software, and technology in the same category as the items to which 
they relate results in an easier to understand CCL than would separate 
categories.
    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 amended by Executive Order 13637 of March 
8, 2013, 78 FR 16129 (March 13, 2013), as extended by the Notice of 
August 15, 2012, 77 FR 49699 (August 16, 2012), 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.

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 proposed rule would affect two approved 
collections: Simplified Network Application Processing System (control 
number 0694-0088), which includes, among other things, license 
applications, and License Exceptions and Exclusions (0694-0137).
    As stated in the proposed rule published at 76 FR 41958 (July 15, 
2011), BIS initially believed that the combined effect of all rules to 
be published adding items to the EAR that would be removed from the 
ITAR as part of the administration's Export Control Reform Initiative 
would increase the number of license applications to be submitted by 
approximately 16,000 annually. As the review of the USML has 
progressed, the interagency group has gained more specific information 
about the number of items that would come under BIS jurisdiction, 
whether those items would be eligible for export under license 
exception. As of June 21, 2012, BIS believes the increase in license 
applications may be 30,000 annually, resulting in an increase in burden 
hours of 8,500 (30,000 transactions at 17 minutes each) under control 
number 0694-0088.
    Military electronic equipment, certain cryogenic and 
superconducting equipment, related test, inspection and production 
equipment, ``parts,'' ``components,'' ``accessories'' and 
``attachments,'' ``software'' and ``technology'' formerly on the USML 
would become eligible for License Exception STA under this rule. BIS 
believes that the increased use of License Exception STA resulting from 
the combined effect of all rules to be published adding items to the 
EAR that would be removed from the ITAR as part of the Administration's 
Export Control Reform Initiative would increase the burden associated 
with control number 0694-0137 by about 23,858 hours (20,450 
transactions @ 1 hour and 10 minutes each).

[[Page 45044]]

    BIS expects that this increase in burden will be more than offset 
by a reduction in burden hours associated with approved collections 
related to the ITAR. The largest impact of the proposed rule would 
likely apply to exporters of replacement parts for military electronic 
equipment that has been approved under the ITAR for export to allies 
and regime partners. Because, with few exceptions, the ITAR allows 
exemptions from license requirements only for exports to Canada, most 
exports of such parts, even when destined to NATO and other close 
allies, require specific State Department authorization. Under the EAR, 
as proposed here, such parts would become eligible for export to NATO 
and other multi-regime allies under License Exception STA. Use of 
License Exception STA imposes a paperwork and compliance burden 
because, for example, exporters must furnish information about the item 
being exported to the consignee and obtain from the consignee an 
acknowledgement and commitment to comply with the EAR. However, the 
Administration understands that complying with the burdens of STA is 
likely less burdensome than applying for licenses. For example, under 
License Exception STA, a single consignee statement can apply to an 
unlimited number of products, need not have an expiration date, and 
need not be submitted to the government in advance for approval. 
Suppliers with regular customers can tailor a single statement and 
assurance to match their business relationship rather than applying 
repeatedly for licenses with every purchase order to supply reliable 
customers in countries that are close allies or members of export 
control regimes or both.
    Even in situations in which a license would be required under the 
EAR, the burden is likely to be reduced compared to the license 
requirement of the ITAR. In particular, license applications for 
exports of technology controlled by ECCN 3E611 are likely to be less 
complex and burdensome than the authorizations required to export ITAR-
controlled technology, i.e., Manufacturing License Agreements and 
Technical Assistance Agreements.
    3. This rule does not contain policies with Federalism implications 
as that term is defined under E.O. 13132.
    4. The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice and comment 
rulemaking requirements under the Administrative Procedure Act (5 
U.S.C. 553) or any other statute, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Under section 605(b) of the RFA, however, if 
the head of an agency (or his or her designee) certifies that a rule 
will not have a significant impact on a substantial number of small 
entities, the statute does not require the agency to prepare a 
regulatory flexibility analysis. Pursuant to section 605(b), the Chief 
Counsel for Regulation, Department of Commerce, submitted a memorandum 
to the Chief Counsel for Advocacy, Small Business Administration, 
certifying that the November 28 (military electronics) rule would not 
have a significant impact on a substantial number of small entities. 
The rationale for that certification was set forth in the preamble to 
that proposed rule (77 FR 70945, 70950-70951, November 28, 2012). 
Although BIS received no comments on that rationale, and has 
accordingly made no changes to the proposed rule based on the RFA 
certification, BIS has determined that, in the interest of openness and 
transparency, it will briefly restate the rationale behind the 
certification here.
    This rule, if implemented, is part of the Administration's Export 
Control Reform Initiative, which seeks to revise the USML to a positive 
list--one that does not use generic, catch-all controls for items 
listed--and to move some items that the President has determined no 
longer merit control under the ITAR to control under the CCL.
    Although BIS does not collect data on the size of entities that 
apply for and are issued export licenses, and is therefore unable to 
estimate the exact number of small entities--as defined by the Small 
Business Administration's regulations implementing the RFA--BIS 
acknowledges that some small entities may be affected by this proposed 
rule.
    The main effects on small entities resulting from this rule will be 
in application times, costs, and delays in receiving licenses to export 
goods subject to the CCL. However, while small entities may experience 
some costs and time delays for exports due to the license requirements 
of the CCL, these costs and delays will likely be significantly less 
than they were for items previously subject to the USML. BIS believes 
that in fact this rule will result in significantly reduced 
administrative costs and delays for exports of items that will, upon 
this rule's implementation, be subject to the EAR rather than the ITAR. 
Currently, USML applicants must pay to use the USML licensing procedure 
even if they never actually are authorized to export. Registration fees 
for manufacturers and exporters of articles on the USML start at $2,250 
per year, increase to $2,750 for organizations applying for one to ten 
licenses per year and further increases to $2,750 plus $250 per license 
application (subject to a maximum of three percent of total application 
value) for those who need to apply for more than ten licenses per year. 
By contrast, BIS is statutorily prohibited from imposing licensing 
fees. In addition, exporters and reexporters of goods that would become 
subject to the EAR under this rule would need fewer licenses because 
their transactions would become eligible for license exceptions that 
were not available under the ITAR. Additionally, the ITAR controlled 
parts and components even when they were incorporated--in any amount--
into a foreign-made product. That limitation on the use of U.S.-made 
goods subject to the ITAR discouraged foreign manufacturers from 
importing U.S. goods. However, the EAR has a de minimis exception for 
U.S.-manufactured goods that are incorporated into foreign-made 
products. This exception may benefit small entities by encouraging 
foreign producers to use more U.S.-made items in their goods.
    Even where an exporter or reexporter would need to obtain a license 
under the EAR, that process is both cheaper and the process is more 
flexible than obtaining a license under the ITAR. For example, unlike 
the ITAR, the EAR does not require license applicants to provide BIS 
with a purchase order with the application, meaning that small (or any) 
entities can enter into negotiations or contracts for the sale of goods 
without having to caveat any sale presentations with a reference to the 
need to obtain a license under the ITAR before shipment can occur. 
Second, the EAR allows license applicants to obtain licenses to cover 
all expected exports or reexports to a particular consignee over the 
life of a license, rather than having to obtain a new license for every 
transaction.
    In short, BIS expects that the changes to the EAR proposed in this 
rule will have a positive effect on all affected entities, including 
small entities. While BIS acknowledges that this rule may have some 
cost impacts to small (and other) entities, those costs are more than 
offset by the benefits to the entities from the licensing procedures 
under the EAR, which are much less costly and less time consuming than 
the procedures under the ITAR. Accordingly, the Chief Counsel for 
Regulation for the

[[Page 45045]]

Department of Commerce has certified that this rule, if implemented, 
will not have a significant economic impact on a substantial number of 
small entities. Accordingly, an initial regulatory flexibility analysis 
is not required, and none has been prepared.

List of Subjects in 15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

    Accordingly, part 774 of the Export Administration Regulations (15 
CFR Parts 730-774) is proposed to be amended as follows:

PART 774--[AMENDED]

0
1. The authority citation for 15 CFR part 774 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 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 15, 2012, 77 FR 49699 (August 16, 2012).

0
2. In Supplement No. 1 to Part 774, Category 3, amend Export Control 
Classification Number (ECCN) 3A101 by:
0
a. revising the Related Controls paragraph in the List of Items 
Controlled section; and
0
b. revising paragraph a in the Items paragraph in the List of Items 
Controlled section, to read as follows:

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

* * * * *
3A101 Electronic equipment, devices and components, other than those 
controlled by 3A001, as follows (see List of Items Controlled).
* * * * *

List of Items Controlled

* * * * *
Related Controls: See also ECCN 4A003.e for controls on analog-to-
digital converter, printed circuit boards, or modules for computers.
* * * * *

Items:

    a. Analog-to-digital converters usable in ``missiles,'' and 
having any of the following characteristics:
    a.1. ``Specially designed'' to meet military specifications for 
ruggedized equipment;
    a.2. ``Specially designed'' for military use and being any of 
the following types:
    a.2.a. Analog-to-digital converter microcircuits which are 
radiation-hardened or have all of the following characteristics:
    a.2.a.1. Having a quantization corresponding to 8 bits or more 
when coded in the binary system;
    a.2.a.2. Rated for operation in the temperature range from -54 
[deg]C to above +125 [deg]C; and
    a.2.a.3. Hermetically sealed; or
    a.2.b. Electrical input type analog-to-digital converter printed 
circuit boards or modules, having all of the following 
characteristics:
    a.2.b.1. Having a quantization corresponding to 8 bits or more 
when coded in the binary system;
    a.2.b.2. Rated for operation in the temperature range from below 
-45 [deg]C to above +55 [deg]C; and
    a.2.b.3. Incorporating microcircuits identified in 3A101.a.2 or 
a.3;
* * * * *
0
3. In Supplement No. 1 to Part 774, between the entries for ECCNs 3A292 
and 3A980, add new entry for ECCN 3A611 to read as follows:

3A611 Military electronics, as follows (see list of items 
controlled).
Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry except 3A611.y.  NS Column 1
RS applies to entire entry except 3A611.y.  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry except 3A611.y.  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

LVS: $1500 for 3A611.a, .d through .h and .x; N/A for ECCN 3A611.c 
and .y
GBS: N/A
CIV: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2) 
of the EAR) may not be used for any item in 3A611.

List of Items Controlled

Unit: End items in number; parts, components, accessories and 
attachments in $ value
Related Controls: (1) Electronic items that are enumerated in USML 
Category XI or other USML categories, and technical data (including 
software) directly related thereto, are subject to the ITAR. (2) 
Application specific integrated circuits (ASICs) and programmable 
logic devices that are programmed for defense articles that are 
subject to the ITAR are controlled in USML Category XI(c)(1). (3) 
See ECCN 3A001.a.7 for controls on unprogrammed programmable logic 
devices. (4) Printed circuit boards and populated circuit cards 
whose layout is specially designed for defense articles that are 
subject to the ITAR are controlled in USML Category XI(c)(2). (5) 
Multichip modules for which the pattern or layout is ``specially 
designed'' for defense articles that are subject to the ITAR are 
controlled in USML Category XI(c)(3). (6) Electronic items 
``specially designed'' for military use that are not controlled in 
any USML category but are within the scope of another ``600 series'' 
ECCN are controlled by that ``600 series'' ECCN. Thus, ECCN 3A611 
controls only electronic items ``specially designed'' for a military 
use that are not otherwise within the scope of a USML category or 
``600 series'' ECCN other than ECCN 3A611. For example, electronic 
components not enumerated on the USML or a 600 series other than 
3A611 that are ``specially designed'' for a military aircraft 
controlled by USML Category VIII or ECCN 9A610 are controlled by the 
catch-all control in ECCN 9A610.x. Electronic components not 
enumerated on the USML or another 600 series entry that are 
``specially designed'' for a military vehicle controlled by USML 
Category VII or ECCN 0A606 are controlled by ECCN 0A606.x. 
Electronic components not enumerated on the USML that are 
``specially designed'' for a missile controlled by USML Category IV 
are controlled by ECCN 0A604. (7) Certain radiation hardened 
microelectronic circuits are controlled by ECCN 9A515.d, when 
``specially designed'' for defense articles, 600 series items, or 
items controlled by 9A515.
Related Definitions: N/A
Items:

    a. Electronic ``equipment,'' ``end items,'' and ``systems'' 
``specially designed'' for military use that are not enumerated in 
either a USML category or another ``600 series'' ECCN.

    Note: ECCN 3A611.a includes any radar, telecommunications, 
acoustic or computer equipment, end items, or systems ``specially 
designed'' for military use that are not enumerated in any USML 
category or controlled by a ``600 series'' ECCN.

    b. [Reserved]
    c. Microwave ``monolithic integrated circuits'' (MMIC) power 
amplifiers having any of the following:
    c.1. Rated for operation at frequencies exceeding 2.7 GHz up to 
and including 2.9 GHz and having any of the following:
    c.1.a. A ``fractional bandwidth'' greater than 15%, with a peak 
saturated power output greater than 75 W (48.75 dBm) and a power 
added efficiency of 50% or greater anywhere within the operating 
frequency range; or
    c.1.b. A ``fractional bandwidth'' greater than 60%, with a peak 
saturated power output greater than 150 W (51.8 dBm) anywhere within 
the operating frequency range;
    c.2. Rated for operation at frequencies exceeding 2.9 GHz up to 
and including 3.2 GHz and having any of the following:
    c.2.a A ``fractional bandwidth'' greater than 15%, with a peak 
saturated power output greater than 55 W (47.4 dBm) and a power 
added efficiency of 45% or greater anywhere within the operating 
frequency range; or
    c.2.b. A ``fractional bandwidth'' greater than 55%, with a peak 
saturated power output greater than 110 W (50.4 dBm) anywhere within 
the operating frequency range;

[[Page 45046]]

    c.3. Rated for operation at frequencies exceeding 3.2 GHz up to 
and including 3.7 GHz and having any of the following:
    c.3.a A ``fractional bandwidth'' greater than 15%, with a peak 
saturated power output greater than 40 W (46 dBm) and a power added 
efficiency of 45% or greater anywhere within the operating frequency 
range; or
    c.3.b A ``fractional bandwidth'' greater than 50%, with a peak 
saturated power output greater than 80 W (49 dBm) anywhere within 
the operating frequency range;
    c.4. Rated for operation at frequencies exceeding 3.7 GHz up to 
and including 6.8 GHz and having any of the following:
    c.4.a. A ``fractional bandwidth'' greater than 15%, with a peak 
saturated power output greater than 20 W (43 dBm) and a power added 
efficiency of 40% or greater anywhere within the operating frequency 
range; or
    c.4.b A ``fractional bandwidth'' greater than 45%, with a peak 
saturated power output greater than 40 W (46 dBm) anywhere within 
the operating frequency range;
    c.5. Rated for operation at frequencies exceeding 6.8 GHz up to 
and including 8.5 GHz and having any of the following:
    c.5.a A ``fractional bandwidth'' greater than 10%, with a peak 
saturated power output greater than 10 W (40.0 dBm) and a power 
added efficiency of 40% or greater anywhere within the operating 
frequency range; or
    c.5.b A ``fractional bandwidth'' greater than 40%, with a peak 
saturated power output greater than 20 W (43 dBm) anywhere within 
the operating frequency range;
    c.6. Rated for operation at frequencies exceeding 8.5 GHz up to 
and including 16 GHz and having any of the following:
    c.6.a. A ``fractional bandwidth'' greater than 10%, with a peak 
saturated power output greater than 5 W (37 dBm) and a power added 
efficiency of 35% or greater anywhere within the operating frequency 
range; or
    c.6.b A ``fractional bandwidth'' greater than 40%, with a peak 
saturated power output greater than 10 W (40 dBm) anywhere within 
the operating frequency range;
    c.7. Rated for operation at frequencies exceeding 16 GHz up to 
and including 31.8 GHz with a ``fractional bandwidth'' greater than 
10%, and having a peak saturated power output greater than 3 W 
(34.77 dBm) and a power added efficiency of 20% or greater anywhere 
within the operating frequency range;
    c.8. Rated for operation at frequencies exceeding 31.8 GHz up to 
and including 37 GHz, and having a peak saturated power output 
greater than 2 W (33 dBm) anywhere within the operating frequency 
range;
    c.9. Rated for operation at frequencies exceeding 37 GHz up to 
and including 43.5 GHz with a ``fractional bandwidth'' greater than 
10%, and having a peak saturated power output greater than 1 W (30 
dBm) and a power added efficiency of 15% or greater anywhere within 
the operating frequency range;
    c.10. Rated for operation at frequencies exceeding 43.5 GHz up 
to and including 75 GHz with a ``fractional bandwidth'' greater than 
10%, and having a peak saturated power output greater than 31.62 mW 
(15 dBm) and a power added efficiency of 10% or greater anywhere 
within the operating frequency range;
    c.11. Rated for operation at frequencies exceeding 75 GHz up to 
and including 90 GHz with a ``fractional bandwidth'' greater than 
5%, and having a peak saturated power output greater than 10 mW (10 
dBm) and a power added efficiency of 10% or greater anywhere within 
the operating frequency range;
    c.12. Rated for operation at frequencies exceeding 90 GHz up to 
and including 110 GHz and having a peak saturated power output 
greater than 1.0 mW (0 dBm) anywhere within the operating frequency 
range; or
    c.13. Rated for operation at frequencies exceeding 110 GHz and 
having a peak saturated power output greater than 100 nW (-40 dBm) 
anywhere within the operating frequency range.

    Note 1 to 3A611.c: The status of an item whose rated operating 
frequency includes frequencies listed in more than one frequency 
range, as defined by 3A611.c.1 through 3A611.c.13 is determined by 
the lowest saturated output power threshold.

    Note 2 to 3A611.c: Peak saturated power output may also be 
referred to as output power, saturated power output, maximum power 
output, peak power output, or peak envelope power output.

    d. Discrete microwave transistors having any of the following:
    d.1. Rated for operation at frequencies exceeding 2.7 GHz up to 
and including 2.9 GHz and having a peak saturated power output 
greater than 400 W (56 dBm) and a power added efficiency of 50% or 
greater anywhere within the operating frequency range;
    d.2. Rated for operation at frequencies exceeding 2.9 GHz up to 
and including 3.2 GHz and having a peak saturated power output 
greater than 205 W (53.12 dBm) and a power added efficiency of 50% 
or greater anywhere within the operating frequency range;
    d.3. Rated for operation at frequencies exceeding 3.2 GHz up to 
and including 3.7 GHz and having a peak saturated power output 
greater than 115 W (50.61 dBm) and a power added efficiency of 45% 
or greater anywhere within the operating frequency range;
    d.4. Rated for operation at frequencies exceeding 3.7 GHz up to 
and including 6.8 GHz and having a peak saturated power output 
greater than 60 W (47.78 dBm) and a power added efficiency of 45% or 
greater anywhere within the operating frequency range;
    d.5. Rated for operation at frequencies exceeding 6.8 GHz up to 
and including 8.5 GHz and having a peak saturated power output 
greater than 50 W (47 dBm) and a power added efficiency of 50% or 
greater anywhere within the operating frequency range;
    d.6. Rated for operation at frequencies exceeding 8.5 GHz and up 
to and including 12 GHz and having a peak saturated power output 
greater than 20 W (43 dBm) and a power added efficiency of 35% or 
greater anywhere within the operating frequency range;
    d.7. Rated for operation at frequencies exceeding 12 GHz up to 
and including 16 GHz and having a peak saturated power output 
greater than 40 W (46 dBm) and a power added efficiency of 35% or 
greater anywhere within the operating frequency range;
    d.8. Rated for operation at frequencies exceeding 16 GHz up to 
and including 31.8 GHz and having a peak saturated power output 
greater than 20 W (43 dBm) and a power added efficiency of 30% or 
greater anywhere within the operating frequency range;
    d.9. Rated for operation at frequencies exceeding 31.8 GHz up to 
and including 37 GHz and having a peak saturated power output 
greater than 2 W (33 dBm) anywhere within the operating frequency 
range;
    d.10. Rated for operation at frequencies exceeding 37 GHz up to 
and including 43.5 GHz and having a peak saturated power output 
greater than 1 W (30 dBm) and a power added efficiency of 20% or 
greater anywhere within the operating frequency range; or
    d.11. Rated for operation at frequencies exceeding 43.5 GHz to 
and including 75 GHz and having a peak saturated power output 
greater than 0.5 W (27 dBm) and a power added efficiency of 15% or 
greater anywhere within the operating frequency range;
    d.12. Rated for operation at frequencies exceeding 75 GHz and 
having a peak saturated power output greater than 0.1 W (20 dBm) 
anywhere within the operating frequency range.

    Note 1 to 3A611.d: The status of an item whose rated operating 
frequency includes frequencies listed in more than one frequency 
range, as defined by 3A611.d.1 through 3A611.d.12 is determined by 
the lowest saturated output power threshold.

    Note 2 to 3A611.d: Peak saturated power output may also be 
referred to as output power, saturated power output, maximum power 
output, peak power output, or peak envelope power output.

    Note 3 to 3A611.d: 3A611.d includes bare dice, dice mounted on 
carriers, or dice mounted in packages. Some discrete transistors may 
also be referred to as power amplifiers, but the status of these 
products are determined by 3A001.b.3. and 3A611.d.

    e. High frequency (HF) surface wave radar that maintains the 
positional state of maritime surface or low altitude airborne 
objects of interest in a received radar signal through time.

    Note: ECCN 3A611.e does not apply to systems, equipment, and 
assemblies ``specially designed'' for marine traffic control.

    f. Application specific integrated circuits (ASICs) and 
programmable logic devices (PLD) programmed for 600 series items.
    g. Printed circuit boards and populated circuit card assemblies 
for which the layout is ``specially designed'' for 600 series items.
    h. Multichip modules for which the pattern or layout is 
``specially designed'' for 600 series items.

[[Page 45047]]

    i. through w. [Reserved]
    x. ``Parts,'' ``components,'' ``accessories'' and 
``attachments'' that are ``specially designed'' for a commodity 
controlled by this entry or for an article controlled by USML 
Category XI, and not enumerated in any USML category.

    Note 1 to ECCN 3A611.x: ECCN 3A611.x includes parts, components, 
accessories, and attachments ``specially designed'' for a radar, 
telecommunications, acoustic systems or equipment or computer 
``specially designed'' for military use that are neither enumerated 
in any USML category nor controlled in another ``600 series'' ECCN.

    Note 2 to ECCN 3A611.x: ECCN 3A611.x controls parts and 
components ``specially designed'' for underwater sensors or 
projectors controlled by USML Category XI(c)(12) containing single-
crystal lead magnesium niobate lead titanate (PMN-PT) based 
piezoelectrics.

    y. Specific ``parts,'' ``components,'' ``accessories'' and 
``attachments'' ``specially designed'' for a commodity subject to 
control in this entry and not elsewhere specified in any 600-series 
ECCN as follows:
    y.1. Electric couplings;
    y.2. Cathode ray tubes (CRTs);
    y.3. Electrical connectors;
    y.4. Electric fans;
    y.5. Rotron fans;
    y.6. Electric fuses other than those specially designed for 
explosive detonation;
    y.7. Grid vacuum tubes;
    y.8. Audio headphones, earphones, handsets, and headsets;
    y.9. Heat sinks;
    y.10. Intercom systems;
    y.11. Joy sticks;
    y.12. Loudspeakers;
    y.13. Mica paper capacitors;
    y.14. Microphones;
    y.15. Potentiometers;
    y.16. Rheostats;
    y.17. Electric connector backshells;
    y.18. Solenoids;
    y.19. Speakers;
    y.20. Electric switches other than RF, pressure, diplexer, 
duplexer, circulator, or isolator switches;
    y.21. Trackballs;
    y.22. Electric transformers;
    y.23. Vacuum tubes other than TWTs, klystron tubes, or tubes 
specially designed for articles enumerated in USML Category XII;
    y.24. Waveguide.

0
4. In Supplement No. 1 to Part 774, between the entries for ECCNs 3B002 
and 3B991, add new entry for ECCN 3B611 to read as follows:

3B611 Test, inspection, and production commodities for military 
electronics, as follows (see List of Items Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

LVS: $1500
GBS: N/A
CIV: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2) 
of the EAR) may not be used for any item in 3B611.

List of Items Controlled

Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:

    a. Test, inspection, and production end items and equipment 
``specially designed'' for the ``development,'' ``production,'' 
repair, overhaul or refurbishing of items controlled in ECCN 3A611 
or USML Category XI that are not enumerated in USML Category XI or 
controlled by another ``600 series'' ECCN.
    b. through w. [Reserved]
    x. ``Parts,'' ``components,'' ``accessories'' and 
``attachments'' that are ``specially designed'' for a commodity 
listed in this entry and that are not enumerated on the USML or 
controlled by another ``600 series'' ECCN.

0
5. In Supplement No. 1 to Part 774, between the entries for ECCNs 3D101 
and 3D980, add a new entry for ECCN 3D611 to read as follows:

3D611 ``Software'' ``specially designed'' for military electronics, 
as follows (see List of Items Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry except 3D611.y.  NS Column 1
RS applies to entire entry except 3D611.y.  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry except 3D611.y.  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

CIV: N/A
TSR: N/A
STA: 1. Paragraph (c)(2) of License Exception STA (Sec.  
740.20(c)(2) of the EAR) may not be used for any ``software'' in 
3D611. 2. Except for ``build-to-print'' software, License Exception 
STA is not eligible for software enumerated in ECCN 3D611.b.

List of Items Controlled

Unit: $ value
Related Controls: ``Software'' directly related to articles 
enumerated in USML Category XI is controlled in USML Category XI(d).
Related Definitions: N/A
Items:

    a. Software ``specially designed'' for the ``development,'' 
``production,'' operation, or maintenance of commodities controlled 
by ECCN 3A611 (other than 3A611.y) and 3B611.
    b. Software specially designed for the ``development,'' 
``production,'' operation or maintenance of technology in ECCN 
3E611.b.
    c. through x. [Reserved]
    y. Specific ``software'' ``specially designed'' for the 
``production,'' ``development,'' operation or maintenance of 
commodities enumerated in ECCNs 3A611.y.

0
6. In Supplement No. 1 to Part 774, between the entries for ECCNs 3E292 
and 3E980, add new entry for ECCN 3E611 to read as follows:

3E611 Technology ``required'' for military electronics, as follows 
(see List of Items Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry except 3E611.y.  NS Column 1
RS applies to entire entry except 3E611.y.  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry except 3E611.y.  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

CIV: N/A
TSR: N/A
STA: 1. Paragraph (c)(2) of License Exception STA (Sec.  
740.20(c)(2) of the EAR) may not be used for any technology in 
3E611. 2. Except for ``build-to-print'' technology, License 
Exception STA is not eligible for technology enumerated in ECCN 
3E611.b.

List of Items Controlled

Unit: $ value
Related Controls: Technical data directly related to articles 
enumerated in USML Category XI is controlled in USML Category XI(d).
Related Definitions: N/A
Items:

    a. ``Technology'' (other than that described in 3E611.b or 
3E611.y) ``required'' for the ``development,'' ``production,'' 
operation, installation, maintenance, repair, overhaul, or 
refurbishing of commodities or software controlled by ECCN 3A611, 
3B611 or 3D611.
    b. ``Technology'' ``required'' for the ``development,'' 
``production,'' operation, installation, maintenance, repair, 
overhaul, or refurbishing of the following if controlled by ECCN 
3A611, including 3A611.x:
    b.1. Helix traveling wave tubes (TWTs);
    b.2. Transmit/receive or transmit modules;
    b.3. Microwave monolithic integrated circuits (MMIC); or
    b.4. Discrete microwave transistors.
    c. through x. [Reserved]
    y. Specific ``technology'' ``required'' for the ``production,'' 
``development,'' operation,

[[Page 45048]]

installation, maintenance, repair, overhaul, or refurbishing of 
commodities or software enumerated in ECCNs 3A611.y or 3D611.y.

0
7. In Supplement No. 1 to Part 774, amend ECCN 4A003 by revising the 
License Requirements section to read as follows:

4A003 ``Digital computers'', ``electronic assemblies'', and related 
equipment therefor, as follows (see List of Items Controlled) and 
specially designed components therefor.

License Requirements

Reason for Control: NS, MT, CC, AT, NP

 
                Control(s)                          Country chart
 
NS applies to 4A003.b and .c..............  NS Column 1
NS applies to 4A003.e and .g..............  NS Column 2
MT applies to 4A003.e when the parameters   MT Column 1
 in 3A101.a.2.b are met or exceeded.
CC applies to ``digital computers'' for     CC Column 1
 computerized finger-print equipment.
AT applies to entire entry (refer to 4A994  AT Column 1
 for controls on ``digital computers''
 with a APP >0.0128 but A
CIV: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2) 
of the EAR) may not be used for any item in 9A620.

List of Items Controlled

Unit: End items in number; parts, components, accessories and 
attachments in $ value.
Related Controls: Electronic items that are enumerated in USML 
Category XI or other USML categories, and technical data (including 
software) directly related thereto, are subject to the ITAR.
Related Definitions: N/A
Items:

    a. Equipment ``specially designed'' to be installed in a vehicle 
for military ground, marine, airborne, or space applications, and 
capable of operating while in motion and of producing or maintaining 
temperatures below 103 K (-170[deg]C).

    Note to 9A620.a: ECCN 9A620.a includes mobile systems 
incorporating or employing accessories or components manufactured 
from non-metallic or non-electrical conductive materials such as 
plastics or epoxy-impregnated materials.

[[Page 45049]]

    b. ``Superconductive'' electrical equipment (rotating machinery 
and transformers) ``specially designed'' to be installed in a 
vehicle for military ground, marine, airborne, or space 
applications, and capable of operating while in motion.

    Note to 9A610.b: ECCN 9A620.b. does not control direct-current 
hybrid homopolar generators that have single-pole normal metal 
armatures which rotate in a magnetic field produced by 
superconducting windings, provided those windings are the only 
superconducting components in the generator.

    c. through w. [Reserved]
    x. ``Parts,'' ``components,'' ``accessories'' and 
``attachments'' that are ``specially designed'' for a commodity 
controlled by ECCN 9A620.

0
16. In Supplement No. 1 to Part 774, between the entries for ECCNs 
9B117 and 9B990, add a new entry for ECCN 9B620 to read as follows:

9B620 Test, inspection, and production commodities for cryogenic and 
``superconductive'' equipment (see List of Items controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

LVS: $1500
GBS: N/A
CIV: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2) 
of the EAR) may not be used for any item in 9B620.

List of Items Controlled

Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:

    a. Test, inspection, and production end items and equipment 
``specially designed'' for the ``development,'' ``production,'' 
repair, overhaul or refurbishing of items controlled in ECCN 9A620.
    b. [Reserved]

0
17. In Supplement No. 1 to Part 774, between the entries for ECCNs 
9D105 and 9D990, add a new entry for ECCN 9D620 to read as follows:

9D620 ``Software'' ``specially designed'' for cryogenic and 
``superconductive'' equipment, as follows (see List of Items 
Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

CIV: N/A
TSR: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2) 
of the EAR) may not be used for any ``software'' in 9D620.

List of Items Controlled

Unit: $ value
Related Controls: ``Software'' directly related to articles 
enumerated on USML are subject to the control of that USML category.
Related Definitions: N/A
    Items: Software ``specially designed'' for the ``development,'' 
``production,'' operation, or maintenance of commodities controlled 
by ECCNs 9A620 or 9B620.

0
18. In Supplement No. 1 to Part 774, between the entries for ECCNs 
9E102 and 9E990, add a new entry for ECCN 9E620 to read as follows:

9E620 Technology ``required'' for cryogenic and ``superconductive'' 
equipment, as follows (see List of Items Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

 
                Control(s)                          Country chart
 
NS applies to entire entry................  NS Column 1
RS applies to entire entry................  RS Column 1
AT applies to entire entry................  AT Column 1
UN applies to entire entry................  See Sec.   746.1(b) for UN
                                             controls
 

License Exceptions

CIV: N/A
TSR: N/A
STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2) 
of the EAR) may not be used for any technology in 9E620.

List of Items Controlled

Unit: $ value
Related Controls: Technical data directly related to articles 
enumerated on USML are subject to the control of that USML category.
Related Definitions: N/A
Items: ``Technology'' ``required'' for the ``development,'' 
``production,'' operation, installation, maintenance, repair, 
overhaul, or refurbishing of commodities or software controlled by 
ECCN 9A620, 9B620 or 9D620.

    Dated: July 12, 2013.
Kevin J. Wolf,
Assistant Secretary of Commerce for Export Administration.
[FR Doc. 2013-17559 Filed 7-24-13; 8:45 am]
BILLING CODE 3510-33-P
```