31850 Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Rules and Regulations 

Adoption of the Amendment 

■ In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for part 71 

continues to read as follows: 

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

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

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order 7400.9S, 

Airspace Designations and Reporting 

Points, signed October 3, 2008, and 

effective October 31, 2008, is amended 

as follows: 

Paragraph 6010(b) Alaskan VOR Federal 

Airways. 

* * * * * 

V–319 [Revised] 

From Yakutat, AK, via Johnstone Point, 

AK, INT Johnstone Point 286° and 

Anchorage, AK, 117° radials; Anchorage, AK; 

Sparrevohn, AK; Bethel, AK; Hooper Bay, 

AK; to Nanwak, AK NDB. 

* * * * * 

V–333 [Revised] 

From Hooper Bay, AK; Nome, AK; to 

Shishmaref, AK. 

* * * * * 

V–328 [Removed] 

* * * * * 

V–480 [Revised] 

From Mt. Moffett, AK, NDB, 20 AGL via St. 

Paul Island, AK, NDB, 20 AGL; Bethel, AK; 

McGrath, AK; Nenana, AK; to Fairbanks, AK. 

* * * * * 

Issued in Washington, DC, on June 26, 

2009. 

Edith V. Parish, 

Manager, Airspace and Rules Group. 

[FR Doc. E9–15694 Filed 7–2–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Parts 742, 745, and 774 

[Docket No. 090113021–9025–01] 

RIN 0694–AE55 

Implementation of the 2008 Australia 

Group (AG) Intersessional Decisions; 

Additions to the List of States Parties 

to the Chemical Weapons Convention 

(CWC) 

AGENCY: Bureau of Industry and 

Security, Commerce. 

ACTION: Final rule. 

SUMMARY: The Bureau of Industry and 

Security (BIS) is publishing this final 

rule to amend the Export 

Administration Regulations (EAR) to 

implement the 2008 Australia Group 

(AG) intersessional decisions, which 

were recommended at the Intersessional 

Implementation Meeting held at The 

Hague on October 8–9, 2008, and 

adopted under the AG intersessional 

silent approval procedures in December 

2008. This final rule amends the EAR to 

reflect changes to the AG ‘‘Control List 

of Dual-Use Chemical Manufacturing 

Facilities and Equipment and Related 

Technology and Software’’ affecting 

valves and toxic gas monitoring 

systems. Consistent with these changes, 

this rule expands the EAR controls on 

valves to include those having contact 

surfaces lined with certain ceramic 

materials. In addition, this rule clarifies 

the types of dedicated detecting 

components that are subject to the EAR 

controls on toxic gas monitoring 

systems and expands these controls to 

include dedicated software for such 

systems. 

This rule also amends the EAR to 

reflect changes to the AG ‘‘Control List 

of Dual-Use Biological Equipment and 

Related Technology and Software’’ 

affecting cross (tangential) flow 

filtration equipment. Consistent with 

these changes, the rule clarifies the EAR 

controls on such equipment to 

specifically identify equipment using 

disposable or single-use filtration 

components. 

In addition, this rule amends the EAR 

to reflect changes to the AG ‘‘Guidelines 

for Transfers of Sensitive Chemical or 

Biological Items.’’ Consistent with these 

changes, the rule amends the AG-related 

software entries in the EAR to include 

references to several definitions that 

were recently added to the AG 

‘‘Guidelines.’’ 

Finally, this rule amends the list of 

countries that currently are States 

Parties to the CWC by adding 

‘‘Bahamas,’’ ‘‘Dominican Republic,’’ 

‘‘Iraq,’’ and ‘‘Lebanon,’’ which recently 

became States Parties. As a result of this 

change, the CW (Chemical Weapons) 

license requirements and policies in the 

EAR that apply to these countries now 

conform with those applicable to other 

CWC States Parties. However, because 

of the special EAR controls that apply 

to Iraq, items controlled under the EAR 

for CW reasons continue to require a 

license for export or reexport to Iraq, or 

for transfer within Iraq. 

DATES: This rule is effective July 6, 

2009. Although there is no formal 

comment period, public comments on 

this regulation are welcome on a 

continuing basis. 

ADDRESSES: You may submit comments, 

identified by RIN 0694–AE55, by any of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: 

publiccomments@bis.doc.gov. Include 

‘‘RIN 0694–AE55’’ in the subject line of 

the message. 

• Fax: (202) 482–3355. Please alert 

the Regulatory Policy Division, by 

calling (202) 482–2440, if you are faxing 

comments. 

• Mail or Hand Delivery/Courier: 

Willard Fisher, U.S. Department of 

Commerce, Bureau of Industry and 

Security, Regulatory Policy Division, 

14th Street & Pennsylvania Avenue, 

NW., Room 2705, Washington, DC 

20230, ATTN: RIN 0694–AE55. 

Send comments regarding this 

collection of information, including 

suggestions for reducing the burden, to 

Jasmeet Seehra, Office of Management 

and Budget (OMB), by e-mail to 

Jasmeet_K._Seehra@omb.eop.gov, or by 

fax to (202) 395–7285; and to the 

Regulatory Policy Division, Bureau of 

Industry and Security, Department of 

Commerce, 14th Street & Pennsylvania 

Avenue, NW., Room 2705, Washington, 

DC 20230. Comments on this collection 

of information should be submitted 

separately from comments on the final 

rule (i.e., RIN 0694–AE55)—all 

comments on the latter should be 

submitted by one of the four methods 

outlined above. 

FOR FURTHER INFORMATION CONTACT: 

Theodore Curtin, Export Policy Analyst, 

Chemical and Biological Controls 

Division, Office of Nonproliferation and 

Treaty Compliance, Bureau of Industry 

and Security, Telephone: (202) 482– 

1975. 

SUPPLEMENTARY INFORMATION: 


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Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Rules and Regulations 31851 

1Process control software in ECCN 1D390 is not 

included on the AG ‘‘Control List of Dual-Use 

Chemical Manufacturing Facilities and Equipment 

and Related Technology and Software.’’ However, 

BIS controls such software consistent with the 

chemical/biological (CB) controls described in 

Section 742.2(a)(2) of the EAR. 

Background 

The Bureau of Industry and Security 

(BIS) is amending the Export 

Administration Regulations (EAR) to 

implement the 2008 Australia Group 

(AG) intersessional decisions, which 

were recommended at the Intersessional 

Implementation Meeting held at The 

Hague on October 8–9, 2008, and 

adopted under the AG intersessional 

silent approval procedures in December 

2008. The AG is a multilateral forum, 

consisting of 40 participating countries, 

that maintains export controls on a list 

of chemicals, biological agents, and 

related equipment and technology that 

could be used in a chemical or 

biological weapons program. The AG 

periodically reviews items on its control 

list to enhance the effectiveness of 

participating governments’ national 

controls and to achieve greater 

harmonization among these controls. 

The 2008 AG intersessional decisions 

included changes to the AG ‘‘Control 

List of Dual-Use Chemical 

Manufacturing Facilities and Equipment 

and Related Technology and Software’’ 

affecting valves and toxic gas 

monitoring systems. Consistent with 

these changes, this rule amends Export 

Control Classification Number (ECCN) 

2B350 on the Commerce Control List 

(CCL) (Supplement No. 1 to Part 774 of 

the EAR) by revising the controls on 

valves described in ECCN 2B350.g to 

include any such valves (including 

casings or preformed casing liners 

designed for such valves) that are made 

from any of the following ceramic 

materials: 

(1) Silicon carbide with a purity of 

80% or more by weight; (2) aluminum 

oxide (alumina) with a purity of 99.9% 

or more by weight; or (3) zirconium 

oxide (zirconia). 

This rule also amends ECCN 2B351 

on the CCL, which controls certain toxic 

gas monitoring systems, to specify the 

types of dedicated detecting 

components therefor that are controlled 

under this ECCN (i.e., detectors, sensor 

devices, and replaceable sensor 

cartridges). In addition, this rule adds a 

new ECCN 2D351 to control dedicated 

software for toxic gas monitoring 

systems and their dedicated detecting 

components controlled under ECCN 

2B351. Software controlled under this 

new ECCN requires a license for 

destinations indicated under CB 

Column 2 and/or AT Column 1 on the 

Commerce Country Chart (Supplement 

No. 1 to Part 738 of the EAR). The rule 

also makes two related conforming 

changes by: (1) Amending ECCN 2E001 

(technology for the ‘‘development’’ of 

most 2A, 2B, or 2D items) to add a 

reference to new ECCN 2D351 under the 

CB controls paragraph in the License 

Requirements section of the ECCN and 

(2) adding a reference to new ECCN 

2D351 in Section 742.2(a)(2) of the EAR, 

which identifies those items that require 

a license to destinations indicated under 

CB Column 2 on the Commerce Country 

Chart. 

The 2008 AG intersessional decisions 

also included changes to the AG 

‘‘Control List of Dual-Use Biological 

Equipment and Related Technology and 

Software’’ affecting cross (tangential) 

flow filtration equipment. Consistent 

with these changes, the rule amends 

ECCN 2B352 on the CCL by revising the 

controls on cross (tangential) flow 

filtration equipment described in ECCN 

2B352.d to specifically identify any 

such equipment using disposable or 

single-use filtration components as 

subject to control. 

In addition, the 2008 AG 

intersessional decisions included 

changes to the AG ‘‘Guidelines for 

Transfers of Sensitive Chemical or 

Biological Items.’’ As a result of these 

decisions, the AG ‘‘Guidelines’’ were 

revised to include definitions for 

‘‘software,’’ ‘‘program,’’ and 

‘‘microprogram,’’ as well as language 

indicating that software identified on 

the AG Common Control Lists does not 

include mass market software, i.e., 

software that: (i) Is generally available to 

the public by being sold from stock at 

retail selling points, without restriction, 

by means of over-the-counter 

transactions, mail order transactions, 

electronic transactions, or telephone call 

transactions and (ii) is designed for 

installation by the user without further 

substantial support by the supplier. 

Since the three definitions that were 

added to the AG ‘‘Guidelines’’ are 

currently found in Section 772.1 of the 

EAR, this rule simply adds a reference 

to the definitions in the ‘‘Related 

Definitions’’ paragraph for ECCN 

1D390 1 on the CCL, which controls 

‘‘software’’ for process control that is 

specifically configured to control or 

initiate ‘‘production’’ of chemicals 

controlled by 1C350, and new ECCN 

2D351, which controls dedicated 

software for toxic gas monitoring 

systems and their dedicated 

components controlled under ECCN 

2B351. This rule does not include in 

either of these two ECCNs a mass 

market software exclusion, as described 

in the AG ‘‘Guidelines,’’ because the 

General Technology Note (Note 2) in 

Supplement No. 2 to Part 774 of the 

EAR contains an identical mass market 

software exclusion, which is available 

for all software on the CCL (except 

encryption software controlled for ‘‘EI’’ 

reasons) under License Exception TSU, 

and which applies to all destinations, 

except those identified in Country 

Group E:1. Note that software that is 

eligible for the mass market exemption 

under License Exception TSU is distinct 

from publicly available software 

described in Section 734.3(b)(3) of the 

EAR, since the latter is not subject to the 

EAR while the former continues to be 

subject to the EAR. 

Finally, this rule amends Supplement 

No. 2 to Part 745 of the EAR (titled 

‘‘States Parties to the Convention on the 

Prohibition of the Development, 

Production, Stockpiling, and Use of 

Chemical Weapons and on Their 

Destruction’’) by adding ‘‘Bahamas,’’ 

‘‘Dominican Republic,’’ ‘‘Iraq,’’ and 

‘‘Lebanon,’’ which became States Parties 

to the CWC on May 21, 2009, April 26, 

2009, February 12, 2009, and December 

20, 2008, respectively. As a result of this 

change, the CW (Chemical Weapons) 

license requirements and policies that 

apply to these countries now conform 

with those applicable to other CWC 

States Parties, as described in Section 

742.18 of the EAR. However, items 

controlled for CW reasons under the 

EAR continue to require a license for 

export or reexport to Iraq, or for transfer 

within Iraq, in accordance with the 

licensing policy for Iraq described in 

Section 746.3(a) of the EAR. 

Although the Export Administration 

Act expired on August 20, 2001, the 

President, through Executive Order 

13222 of August 17, 2001, 3 CFR, 2001 

Comp., p. 783 (2002), as extended by the 

Notice of July 23, 2008, 73 FR 43603 

(July 25, 2008), has continued the 

Export Administration Regulations in 

effect under the International 

Emergency Economic Powers Act. 

Saving Clause 

Shipments of items removed from 

eligibility for export or reexport under a 

license exception or without a license 

(i.e., under the designator ‘‘NLR’’) as a 

result of this regulatory action that were 

on dock for loading, on lighter, laden 

aboard an exporting carrier, or en route 

aboard a carrier to a port of export, on 

August 5, 2009, pursuant to actual 

orders for export or reexport to a foreign 

destination, may proceed to that 

destination under the previously 

applicable license exception or without 

a license (NLR) so long as they are 

exported or reexported before August 


cprice-sewell on PROD1PC69 with RULES
31852 Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Rules and Regulations 

20, 2009. Any such items not actually 

exported or reexported before midnight, 

on August 20, 2009, require a license in 

accordance with this regulation. 

‘‘Deemed’’ exports of ‘‘technology’’ 

and ‘‘source code’’ removed from 

eligibility for export under a license 

exception or without a license (under 

the designator ‘‘NLR’’) as a result of this 

regulatory action may continue to be 

made under the previously available 

license exception or without a license 

(NLR) before August 20, 2009. 

Beginning at midnight on August 20, 

2009, such ‘‘technology’’ and ‘‘source 

code’’ may no longer be released, 

without a license, to a foreign national 

subject to the ‘‘deemed’’ export controls 

in the EAR when a license would be 

required to the home country of the 

foreign national in accordance with this 

regulation. 

Rulemaking Requirements 

1. This rule has been determined to be 

not significant for purposes of Executive 

Order 12866. 

2. Notwithstanding any other 

provision of law, no person is required 

to respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the Paperwork 

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

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

information displays a currently valid 

Office of Management and Budget 

(OMB) Control Number. This rule 

contains a collection of information 

subject to the requirements of the PRA. 

This collection has been approved by 

OMB under Control Number 0694–0088 

(Multi-Purpose Application), which 

carries a burden hour estimate of 58 

minutes to prepare and submit form 

BIS–748. Send comments regarding this 

burden estimate or any other aspect of 

this collection of information, including 

suggestions for reducing the burden, to 

Jasmeet Seehra, Office of Management 

and Budget (OMB), and to the 

Regulatory Policy Division, Bureau of 

Industry and Security, Department of 

Commerce, as indicated in the 

ADDRESSES section of this rule. 

3. This rule does not contain policies 

with Federalism implications as that 

term is defined in Executive Order 

13132. 

4. The provisions of the 

Administrative Procedure Act (5 U.S.C. 

553) requiring notice of proposed 

rulemaking, the opportunity for public 

participation, and a delay in effective 

date, are inapplicable because this 

regulation involves a military and 

foreign affairs function of the United 

States (Section 5 U.S.C. 553(a)(1)). 

Further, no other law requires that a 

notice of proposed rulemaking and an 

opportunity for public comment be 

given for this final rule. Because a 

notice of proposed rulemaking and an 

opportunity for public comment are not 

required to be given for this rule under 

5 U.S.C. 553 or by any other law, the 

analytical requirements of the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) are not applicable. 

Therefore, this regulation is issued in 

final form. Although there is no formal 

comment period, public comments on 

this regulation are welcome on a 

continuing basis. 

List of Subjects 

15 CFR Part 742 

Exports, Foreign trade. 

15 CFR Part 745 

Administrative practice and 

procedure, Chemicals, Exports, Foreign 

trade, Reporting and recordkeeping 

requirements. 

15 CFR Part 774 

Exports, Foreign trade, Reporting and 

recordkeeping requirements. 

■ Accordingly, Parts 742, 745, and 774 

of the Export Administration 

Regulations (15 CFR Parts 730–774) are 

amended as follows: 

PART 742—[AMENDED] 

■ 1. The authority citation for 15 CFR 

part 742 continues to read as follows: 

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

U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 

42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 

U.S.C. 7210; Sec. 1503, Pub. L. 108–11, 117 

Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 

1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 

3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 

FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 

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

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

Comp., p. 783; Presidential Determination 

2003–23 of May 7, 2003, 68 FR 26459, May 

16, 2003; Notice of July 23, 2008, 73 FR 

43603 (July 25, 2008); Notice of November 

10, 2008, 73 FR 67097 (November 12, 2008). 

■ 2. Section 742.2 is amended by 

redesignating paragraphs (a)(2)(viii) and 

(a)(2)(ix) as paragraphs (a)(2)(x) and 

(a)(2)(xi) and by adding new paragraphs 

(a)(2)(viii) and (a)(2)(ix) to read as 

follows: 

§ 742.2 Proliferation of chemical and 

biological weapons. 

(a) * * * 

(2) * * * 

(viii) Dedicated software identified in 

ECCN 2D351 for the ‘‘use’’ of toxic gas 

monitoring systems and their dedicated 

detecting components controlled by 

ECCN 2B351. 

(ix) Technology identified in ECCN 

2E001 for the ‘‘development’’ of 

software controlled by ECCN 2D351. 

* * * * * 

PART 745—[AMENDED] 

■ 3. The authority citation for 15 CFR 

part 745 continues to read as follows: 

Authority: 50 U.S.C. 1701 et seq.; E.O. 

12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 

950; Notice of November 10, 2008, 73 FR 

67097 (November 12, 2008). 

Supplement No. 2 to Part 745— 

[Amended] 

■ 4. Supplement No. 2 to Part 745 is 

amended: 

■ a. By revising the undesignated center 

heading ‘‘List of States Parties as of July 

1, 2008’’ to read ‘‘List of States Parties 

as of May 21, 2009’’; and 

■ b. By adding, in alphabetical order, 

the countries ‘‘Bahamas’’, ‘‘Dominican 

Republic’’, ‘‘Iraq’’, and ‘‘Lebanon’’. 

PART 774—[AMENDED] 

■ 5. 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; 46 U.S.C. app. 466c; 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 July 23, 2008, 73 FR 

43603 (July 25, 2008). 

Supplement No. 1 to Part 774— 

[Amended] 

■ 6. In Supplement No. 1 to Part 774 

(the Commerce Control List), Category 

1—Materials, Chemicals, 

‘‘Microorganisms’’ & ‘‘Toxins,’’ ECCN 

1D390 is amended by revising the 

‘‘Related Definitions’’ paragraph, under 

the List of Items Controlled, to read as 

follows: 

1D390 ‘‘Software’’ for process control 

that is specifically configured to control or 

initiate ‘‘production’’ of chemicals 

controlled by 1C350. 

* * * * * 

List of Items Controlled 

Unit: * * * 

Related Controls: * * * 

Related Definitions: See Section 772.1 of 

the EAR for the definitions of ‘‘software,’’ 

‘‘program,’’ and ‘‘microprogram.’’ 

Items: * * * 

■ 7. In Supplement No. 1 to Part 774 

(the Commerce Control List), Category 

2—Materials Processing, ECCN 2B350 is 

amended by revising paragraph (g) 

under ‘‘Items’’ in the List of Items 

Controlled to read as follows: 


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Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Rules and Regulations 31853 

2B350 Chemical manufacturing facilities 

and equipment, except valves controlled by 

2A226 or 2A292, as follows (see List of Items 

Controlled). 

* * * * * 

List of Items Controlled 

Unit: * * * 

Related Controls: * * * 

Related Definitions: * * * 

Items: 

* * * * * 

g. Valves with nominal sizes greater than 

1.0 cm (3⁄8 in.), and casings (valve bodies) or 

preformed casing liners designed for such 

valves, in which all surfaces that come in 

direct contact with the chemical(s) being 

processed or contained are made from any of 

the following materials: 

g.1. Alloys with more than 25% nickel and 

20% chromium by weight; 

g.2. Nickel or alloys with more than 40% 

nickel by weight; 

g.3. Fluoropolymers; 

g.4. Glass or glass lined (including vitrified 

or enameled coatings); 

g.5. Tantalum or tantalum alloys; 

g.6. Titanium or titanium alloys; 

g.7. Zirconium or zirconium alloys; 

g.8. Niobium (columbium) or niobium 

alloys; or 

g.9. Ceramic materials, as follows: 

g.9.a. Silicon carbide with a purity of 80% 

or more by weight; 

g.9.b. Aluminum oxide (alumina) with a 

purity of 99.9% or more by weight; or 

g.9.c. Zirconium oxide (zirconia). 

* * * * * 

■ 8. In Supplement No. 1 to Part 774 

(the Commerce Control List), Category 

2—Materials Processing, ECCN 2B351 is 

amended by revising the ECCN heading 

and by revising the ‘‘Related Controls’’ 

and ‘‘Related Definitions’’ paragraphs, 

under the List of Items Controlled, to 

read as follows: 

2B351 Toxic gas monitoring systems and 

their dedicated detecting components (i.e., 

detectors, sensor devices, and replaceable 

sensor cartridges), as follows, except those 

systems and detectors controlled by ECCN 

1A004.c (see List of Items Controlled). 

* * * * * 

List of Items Controlled 

Unit: * * * 

Related Controls: See ECCN 2D351 for 

‘‘software’’ for toxic gas monitoring systems 

and their dedicated detecting components 

controlled by this ECCN. Also see ECCN 

1A004, which controls chemical detection 

systems and specially designed components 

therefor that are specially designed or 

modified for detection or identification of 

chemical warfare agents, but not specially 

designed for military use, and ECCN 1A995, 

which controls certain detection equipment 

and components not controlled by ECCN 

1A004 or by this ECCN. 

Related Definitions: (1) For the purposes of 

this entry, the term ‘‘dedicated’’ means 

committed entirely to a single purpose or 

device. (2) For the purposes of this entry, the 

term ‘‘continuous operation’’ describes the 

capability of the equipment to operate on line 

without human intervention. The intent of 

this entry is to control toxic gas monitoring 

systems capable of collection and detection 

of samples in environments such as chemical 

plants, rather than those used for batch-mode 

operation in laboratories. 

* * * * * 

■ 9. In Supplement No. 1 to Part 774 

(the Commerce Control List), Category 

2—Materials Processing, ECCN 2B352 is 

amended by revising paragraph (d)(1)(b) 

under ‘‘Items’’ in the List of Items 

Controlled to read as follows: 

2B352 Equipment capable of use in 

handling biological materials, as follows (see 

List of Items Controlled). 

* * * * * 

List of Items Controlled 

Unit: * * * 

Related Controls: * * * 

Related Definitions: * * * 

Items: 

* * * * * 

d. * * * 

d.1. * * * 

d.1.b. Having any of the following 

characteristics: 

d.1.b.1. Capable of being sterilized or 

disinfected in-situ; or 

d.1.b.2. Using disposable or single-use 

filtration components. 

* * * * * 

■ 10. Supplement No. 1 to Part 774 (the 

Commerce Control List), Category 2— 

Materials Processing, is amended by 

adding a new ECCN 2D351 immediately 

following ECCN 2D290 to read as 

follows: 

2D351 Dedicated ‘‘software’’ for toxic gas 

monitoring systems and their dedicated 

detecting components controlled by ECCN 

2B351. 

License Requirements 

Reason for Control: CB, AT 

Control(s) Country chart 

CB applies to entire entry ..... CB Column 2. 

AT applies to entire entry ...... AT Column 1. 

License Exceptions 

CIV: N/A. 

TSR: N/A. 

List of Items Controlled 

Unit: $ value. 

Related Controls: N/A. 

Related Definitions: (1) For the purposes of 

this entry, the term ‘‘dedicated’’ means 

committed entirely to a single purpose or 

device. (2) See Section 772.1 of the EAR for 

the definitions of ‘‘software,’’ ‘‘program,’’ and 

‘‘microprogram.’’ 

Items: 

The list of items controlled is contained in 

the ECCN heading. 

■ 11. In Supplement No. 1 to Part 774 

(the Commerce Control List), Category 

2—Materials Processing, ECCN 2E001 is 

amended by revising the CB controls 

paragraph in the ‘‘License 

Requirements’’ section to read as 

follows: 

2E001 ‘‘Technology’’ according to the 

General Technology Note for the 

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

controlled by 2A (except 2A983, 2A991, or 

2A994), 2B (except 2B991, 2B993, 2B996, 

2B997, or 2B998), or 2D (except 2D983, 

2D991, 2D992, or 2D994). 

License Requirements 

Reason for Control: * * * 

Control(s) Country chart 

* * * * * * * 

CB applies to ‘‘technology’’ for equipment controlled by 2B350 to 2B352, valves controlled by 2A226 or 2A292 having the 

characteristics of those controlled by 2B350.g, and software controlled by 2D351.

CB Column 2. 


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31854 Federal Register / Vol. 74, No. 127 / Monday, July 6, 2009 / Rules and Regulations 

* * * * * 

Dated: June 29, 2009. 

Matthew S. Borman, 

Acting Assistant Secretary for Export 

Administration. 

[FR Doc. E9–15827 Filed 7–2–09; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 21 

RIN 2900–AM91 

Vocational Rehabilitation and 

Employment Program—Duty To Assist 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document amends the 

vocational rehabilitation and 

employment regulations of the 

Department of Veterans Affairs (VA) 

concerning VA’s responsibility to 

provide notification regarding 

information or evidence needed for an 

individual to substantiate a claim for 

vocational rehabilitation benefits and 

services, and regarding applicable time 

periods. VA’s duty to assist claimants in 

substantiating their claims for benefits 

was expanded by the Veterans Claims 

Assistance Act of 2000. This rulemaking 

incorporates those provisions in VA’s 

regulations. Specifically, upon receipt of 

a substantially complete application for 

benefits, VA will make reasonable 

efforts to help the claimant obtain the 

evidence necessary to substantiate the 

claim. In addition, VA is making 

changes to improve readability and 

other clarifying changes that are 

nonsubstantive. 

DATES: Effective Date: This final rule is 

effective August 5, 2009. 

Applicability Date: For information 

concerning the date of applicability, see 

the Supplementary Information section 

of this document. 

FOR FURTHER INFORMATION CONTACT: 

Alvin Bauman, Senior Policy Analyst, 

Vocational Rehabilitation and 

Employment Service (28), Veterans 

Benefits Administration, Department of 

Veterans Affairs, 810 Vermont Ave., 

NW., Washington, DC 20420, (202) 461– 

9613. 

SUPPLEMENTARY INFORMATION: In a 

document published in the Federal 

Register on July 1, 2008 (73 FR 37402), 

we proposed to amend regulations 

governing VA’s responsibility to provide 

notification regarding information or 

evidence needed for an individual to 

substantiate a claim for vocational 

rehabilitation benefits and services, and 

regarding applicable time periods. We 

provided a 60-day comment period that 

ended on September 2, 2008. 

We received comments from one 

organization and one individual. With 

respect to the individual commenter, 

the submission stated ‘‘see the attached 

for proposed changes to this 

regulation,’’ yet we did not receive an 

attachment or the commenter’s contact 

information. Consequently, we make no 

changes based on the commenter’s 

submission. 

The organization commented with 

respect to the 30-day period in proposed 

38 CFR 21.32(a)(3) and (d) after which 

VA may decide a claim if the claimant 

has not responded to the notification 

provided under proposed § 21.32(a) 

concerning information and evidence 

that is necessary to substantiate the 

claim. The commenter expressed the 

view that 30 days from the date of 

notice is not sufficient time for a 

claimant to respond. It asserted that 

after taking into account time after the 

date of the notice until receipt by the 

claimant, and time for mailing back to 

VA, the 30-day period ‘‘will effectively 

give most disabled veterans only about 

15 days from receipt of your letter in 

which to digest its contents, obtain 

assistance and/or needed 

documentation, and prepare and mail a 

response to you.’’ We do not agree with 

this comment and make no change in 

the 30-day period based on the 

comment. 

We note that the commenter provided 

no evidence supporting its assertions as 

to the time that is involved prior to 

receipt of VA’s notice and that is needed 

to allow for receipt by VA of the 

claimant’s response. Even considering 

that there may be significantly less than 

the full 30 days to prepare a response, 

a claimant need not provide all the 

information and evidence within the 30- 

day period. A claimant may delay VA 

action beyond the 30 days by simply 

responding with a request that VA wait 

beyond the 30-day period. We believe 

that the 30-day time period referred to 

in proposed § 21.32(a)(3) and (d) is a 

reasonable time period for these 

claimants to respond. It is specifically 

supported by our experience in 

administering VA’s vocational 

rehabilitation programs, and is the same 

time for response provided in other 

circumstances under those programs. 

Further, whether or not the claimant 

responds within 30 days, proposed 

§ 21.32 provided a one-year time limit 

for receipt by VA of the information of 

evidence referred to in the notice, and 

for readjudication if VA had decided the 

claim prior to the one-year time period. 

In addition, we note that the 30-day 

time period is supported by 

administrative concerns, and is 

intended to assure that a lack of 

response does not unnecessarily delay a 

VA decision on the claim. 

With respect to proposed § 21.33(d), 

the commenter stated that it would be 

‘‘unreasonable to expect that VA will be 

able to determine from a cursory review 

of a ‘substantially complete application’ 

that there is no reasonable possibility 

that any notice and/or assistance the VA 

would provide to the claimant would 

substantiate the claim.’’ However, under 

proposed § 21.33(d), more than a 

cursory review would be involved 

before deciding to discontinue 

providing assistance. VA would be 

required to evaluate the application for 

benefits to determine whether any of the 

four circumstances under which VA 

will discontinue assistance exists. 

Further, the provision is consistent with 

principles relied upon throughout 38 

CFR part 21. (See 38 CFR 21.1032(d) 

concerning VA’s duty to assist claimants 

for VA education benefits.) We do not 

believe any change is warranted based 

on this comment. 

VA appreciates the submissions in 

response to the proposed rule. For the 

reasons stated above and those in the 

notice of proposed rulemaking, the 

proposed rule is adopted as a final rule 

without change. 

The preamble to the proposed rule 

provided notice of our intent that its 

provisions be applicable to claims filed 

on or after the effective date of the final 

rule. In accordance with that statement 

of our intent, VA will apply the 

provisions of this final rule to claims for 

vocational rehabilitation benefits and 

services filed on or after August 5, 2009. 

Paperwork Reduction Act of 1995 

This document contains no provisions 

constituting a new collection of 

information under the Paperwork 

Reduction Act (44 U.S.C. 3501–3521). 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

year. This final rule would have no such 

effect on State, local, and tribal 

governments, or on the private sector. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all costs and benefits 


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