83_FR_40077 83 FR 39921 - Commerce Control List: Request for Comments Regarding Controls on Certain Spraying or Fogging Systems and “Parts” and “Components” Therefor

83 FR 39921 - Commerce Control List: Request for Comments Regarding Controls on Certain Spraying or Fogging Systems and “Parts” and “Components” Therefor

DEPARTMENT OF COMMERCE
Bureau of Industry and Security

Federal Register Volume 83, Issue 156 (August 13, 2018)

Page Range39921-39923
FR Document2018-17249

The Bureau of Industry and Security (BIS), Department of Commerce, maintains the Export Administration Regulations, including the Commerce Control List (CCL). Certain items identified on the CCL are controlled for chemical/biological (CB) reasons, because they are identified on one of the common control lists maintained by the Australia Group (AG), which is a multilateral forum of countries (plus the European Union) that maintain export controls on specified chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons (CBW) program. Among the items subject to these CB controls are spraying or fogging systems described in Export Control Classification Number (ECCN) 2B352.i on the CCL. Through this notice, BIS is seeking public comments as part of a review of the effectiveness of its controls on these systems, and ``parts'' and ``components'' therefor, to ensure that the descriptions of these items on the CCL are clear, do not inadvertently control items in normal commercial use, accurately reflect CB-related technological capabilities and developments, and are consistent with the principal objective of the AG, which is to ensure that exports of certain chemicals, biological agents, and dual-use chemical and biological manufacturing facilities and equipment, do not contribute to the spread of chemical and biological weapons (CBW). This notice also requests public comments on potential alternatives to the current controls in ECCN 2B352.i.

Federal Register, Volume 83 Issue 156 (Monday, August 13, 2018)
[Federal Register Volume 83, Number 156 (Monday, August 13, 2018)]
[Proposed Rules]
[Pages 39921-39923]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-17249]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR part 774

[Docket No. 180227222-8222-01]


Commerce Control List: Request for Comments Regarding Controls on 
Certain Spraying or Fogging Systems and ``Parts'' and ``Components'' 
Therefor

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Notice of inquiry.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Industry and Security (BIS), Department of 
Commerce, maintains the Export Administration Regulations, including 
the Commerce Control List (CCL). Certain items identified on the CCL 
are controlled for chemical/biological (CB) reasons, because they are 
identified on one of the common control lists maintained by the 
Australia Group (AG), which is a multilateral forum of countries (plus 
the European Union) that maintain export controls on specified 
chemicals, biological agents, and related equipment and technology that 
could be used in a chemical or biological weapons (CBW) program. Among 
the items subject to these CB controls are spraying or fogging systems 
described in Export Control Classification Number (ECCN) 2B352.i on the 
CCL. Through this notice, BIS is seeking public comments as part of a 
review of the effectiveness of its controls on these systems, and 
``parts'' and ``components'' therefor, to ensure that the descriptions 
of these items on the CCL are clear, do not inadvertently control items 
in normal commercial use, accurately reflect CB-related technological 
capabilities and developments, and are consistent with the principal 
objective of the AG, which is to ensure that exports of certain 
chemicals, biological agents, and dual-use chemical and biological 
manufacturing facilities and equipment, do not contribute to the spread 
of chemical and biological weapons (CBW). This notice also requests 
public comments on potential alternatives to the current controls in 
ECCN 2B352.i.

DATES: Comments must be received by BIS no later than October 12, 2018.

ADDRESSES: Comments may be submitted via the Federal eRulemaking Portal 
(http://www.regulations.gov). You can find this notice by searching on 
its regulations.gov docket number, which is BIS-2018-0013. Comments may 
also be submitted via email to publiccommments@bis.doc.gov or on paper 
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. Please refer to RIN 0694-XC042 in all 
comments and in the subject line of email comments. All comments 
(including any personally identifying information) will be made 
available for public inspection and copying.

FOR FURTHER INFORMATION CONTACT: For questions on the CB controls that 
apply to spraying or fogging systems described in ECCN 2B352.i, contact 
Richard P. Duncan, Ph.D., Director, Chemical and Biological Controls 
Division, Office of Nonproliferation and Treaty Compliance, Bureau of 
Industry and Security, Telephone: (202) 482-3343, Email: 
Richard.Duncan@bis.doc.gov. For questions on the submission of comments 
in response to this notice of inquiry, contact Willard Fisher, 
Regulatory Policy Division, Office of Exporter Services, Bureau of 
Industry and Security, U.S. Department of Commerce, Phone: (202) 482-
2440.

SUPPLEMENTARY INFORMATION: 

Background

    The Bureau of Industry and Security (BIS), Department of Commerce, 
maintains the Export Administration Regulations (EAR) (15 CFR parts 
730-774), including the Commerce Control List (CCL) (Supplement No. 1 
to part 774 of the EAR). Through this notice, BIS is seeking public 
comments as part of a review of the effectiveness of its controls on 
spraying or fogging systems, and ``parts'' and ``components'' therefor, 
that are described in paragraph (i) of Export Control Classification 
Number (ECCN) 2B352 on the CCL. The items controlled by ECCN 2B352.i 
are subject to chemical/biological (CB) controls on the CCL, because 
they are identified on one of the common control lists maintained by 
the Australia Group (AG), specifically, the AG ``Control List of Dual-
Use Biological Equipment and Related Technology and Software.'' The AG 
is a multilateral forum consisting of 42 participating countries and 
the European Union that maintain export controls on specified 
chemicals, biological agents, and related equipment and technology that 
could be used in a chemical or biological weapons program.

Current EAR Controls on Spraying or Fogging Systems

    Currently, ECCN 2B352.i controls complete spraying or fogging 
systems, spray booms, and arrays of aerosol generating units that are: 
(1) ``specially designed'' or modified for fitting to aircraft, 
``lighter than air vehicles,'' or ``unmanned aerial vehicles'' 
(``UAVs''); and (2) capable of delivering, from a liquid suspension, an 
initial droplet volume median diameter (`VMD') of less than 50 microns 
at a flow rate of greater than 2 liters per minute. This ECCN also 
controls aerosol generating units that are ``specially designed'' for 
fitting to the aforementioned equipment.
    The Technical Notes immediately following ECCN 2B352.i clarify the 
scope of these controls and provide guidance on how to evaluate certain 
characteristics (e.g., droplet size) to determine whether specific 
equipment is controlled under this ECCN. Technical Note 1 states that 
aerosol generating units, for purposes of the controls in ECCN 2B352.i, 
are devices ``specially designed'' or modified for fitting to 
``aircraft'' and include nozzles, rotary drum atomizers and similar 
devices. Technical Note 2 clarifies the scope of ECCN 2B352 by 
indicating that this ECCN does not control spraying or fogging systems 
and ``parts'' and ``components'' therefor, as described in 2B352.i, 
that are demonstrated not to be

[[Page 39922]]

capable of delivering biological agents in the form of infectious 
aerosols. Technical Note 3 provides guidance on how to measure `VMD' 
for droplets produced by spray equipment or nozzles ``specially 
designed'' for use on ``aircraft'' or ``UAVs,'' indicating that, 
pending the adoption of internationally accepted standards, `VMD' 
should be measured using either of the following methods: (1) Doppler 
``laser'' method; or (2) forward ``laser'' diffraction method.
    The control text in ECCN 2B352.i, as described above, is consistent 
with the corresponding controls described in the AG ``Control List of 
Dual-Use Biological Equipment and Related Technology and Software,'' 
which were established to address a very specific threat, i.e., the 
dissemination of biological agents from the air.

Proposed Alternatives to the Current Controls in ECCN 2B352.i

    As part of its review of the ECCN 2B352.i controls on spraying or 
fogging systems, and ``parts'' and ``components'' therefor, BIS is 
considering expanding the scope of these controls to include: (1) 
Systems for the dissemination of chemicals controlled by ECCN 1C350 or 
1C355 (currently, CB controls apply only to systems for the 
dissemination of biological agents controlled by ECCN 1C351); and (2) 
ground-based systems (currently, CB controls apply only to airborne 
systems). These changes are being considered because potential 
chemical/biological warfare (CBW) threats are likely to include the 
dissemination of chemical agents, as well as the dissemination of 
biological agents, and may well involve ground-based methods of 
dissemination, as well as airborne means of dissemination.
    Consequently, BIS is considering one or more of the following 
options with respect to the EAR controls on spraying or fogging 
systems, and ``parts'' and ``components'' therefor.
    (1) Removing the criterion in ECCN 2B352.i that currently limits CB 
controls to those systems that are ``specially designed'' or modified 
for fitting to ``aircraft,'' ``lighter than air vehicles,'' or 
``UAVs.'' The rationale for this change is that the ability of such 
systems to produce an aerosol is not determined by whether the systems 
are ground-based or airborne.
    (2) Removing the criterion in ECCN 2B352.i based on initial droplet 
size (i.e., an initial droplet `VMD' of less than 50 microns). The 
rationale for this change is that initial droplet size is not 
necessarily a feature that is measured (or otherwise addressed) by all 
manufacturers of these systems. In addition, the initial droplet size 
currently indicated in ECCN 2B352.i is based solely on the airborne 
dissemination of biological agents (i.e., those controlled by ECCN 
1C351) and would not necessarily apply to systems for the airborne 
dissemination of chemicals (i.e., those controlled by ECCN 1C350 or 
1C355) or the ground-based dissemination of such chemicals or 
biological agents.
    (3) Lowering the flow rate at which spraying or fogging systems are 
controlled under ECCN 2B352.i. Currently, ECCN 2B352.i specifies a flow 
rate of ``greater than 2 liters per minute.'' However, BIS acknowledges 
that this change would involve determining a lower flow rate that would 
not catch typical commercial systems (e.g., systems designed for 
agricultural use), except when deemed necessary to ensure the continued 
effectiveness of CB controls on spraying or fogging systems.
    (4) Developing a control that would apply to spraying or fogging 
systems ``specially designed'' for the dissemination or dispersion of 
chemicals controlled by ECCN 1C350 or 1C355 or biological agents 
controlled by ECCN 1C351 in a manner likely to cause significant harm 
to humans or livestock or serious damage to crops.
    With respect to option #4 described above, note that paragraph 
(a)(1) of the definition of ``specially designed'' in Section 772.1 of 
the EAR states that an item is ``specially designed'' if, as a result 
of ``development,'' it ``has properties peculiarly responsible for 
achieving or exceeding the performance levels, characteristics, or 
functions in the relevant ECCN or U.S. Munitions List (USML) 
paragraph.'' Therefore, if the term ``specially designed'' were used in 
the control text for spraying or fogging systems in ECCN 2B352.i, the 
only systems that would be captured by these controls would be those 
that are peculiarly responsible for achieving the dissemination or 
dispersion of chemicals controlled by ECCN 1C350 or 1C355 or biological 
agents controlled by ECCN 1C351 in a manner likely to cause significant 
harm to humans or livestock or serious damage to crops (i.e., 
properties that would distinguish these systems from typical commercial 
systems, such as those designed for agricultural applications). 
Consequently, under option #4, the controls in ECCN 2B352.i would not 
apply to spraying or fogging systems designed for commercial use that 
have performance levels, characteristics, or functions that are capable 
of, but not peculiarly responsible for, achieving the dissemination or 
dispersion of chemicals controlled by ECCN 1C350 or 1C355 or biological 
agents controlled by ECCN 1C351 in the manner described above.

Request for Comments

    BIS is publishing this notice of inquiry to obtain public comments 
as part of a review of the effectiveness of the EAR controls on 
spraying or fogging systems, and ``parts'' and ``components'' therefor, 
as currently described in ECCN 2B352.i. Specifically, BIS is seeking 
comments that address whether the descriptions of these items on the 
CCL: (1) Are clear; (2) do not inadvertently control items in normal 
commercial use; (3) accurately reflect CB-related technological 
capabilities and developments; and (4) are consistent with the 
principal objective of the AG, which is to ensure that exports of 
certain chemicals, biological agents, and dual-use chemical and 
biological manufacturing facilities and equipment do not contribute to 
the spread of chemical and biological weapons (CBW).
    The public comments submitted in response to this notice of inquiry 
should address specific aspects of the current controls in ECCN 2B352.i 
in relation to the four criteria described above. For example, if the 
current control text is not sufficiently clear or does not accurately 
reflect CB-related technological capabilities and developments, please 
identify the specific aspects in which the current controls fall short 
with respect to these criteria. In addition, please indicate: (1) The 
extent to which the existing controls in ECCN 2B352.i would apply to 
any spraying or fogging systems that are currently being manufactured 
and/or sold; or (2) if the existing controls do not apply to any 
current systems, what specific aspects (e.g., flow rate or `VMD') would 
differentiate such systems from the systems described in ECCN 2B352.i. 
Also, if applicable, describe the manner in which your company 
evaluates spraying or fogging equipment, and ``parts'' and 
``components'' therefor, consistent with Technical Note 2 to ECCN 2B352 
as described above, which states that this ECCN does not control items 
specified in 2B352.i if they are ``demonstrated not to be capable of 
delivering biological agents in the form of infectious aerosols.''
    In addition, BIS encourages the public to submit comments on the 
aforementioned options to modify the current controls in ECCN 2B352.i. 
Comments on these options should focus on the extent to which they 
would satisfy the four criteria described above and also address the 
potential impact of

[[Page 39923]]

these alternative controls on specific types of spraying or fogging 
systems (including ``parts,'' ``components,'' ``accessories,'' and 
``attachments'' therefor) that are currently being manufactured and/or 
sold or that are likely to be manufactured and/or sold in the 
foreseeable future. Comments on option #4 (where the ECCN 2B352.i 
control text would include the term ``specially designed'') should not 
only address this option with reference to the four criteria described 
above, but also identify any performance levels, characteristics, or 
functions that clearly distinguish commercial spraying or fogging 
systems from those systems having properties that are peculiarly 
responsible for achieving the dissemination or dispersion of chemicals 
controlled by ECCN 1C350 or 1C355 or biological agents controlled by 
ECCN 1C351 in a manner likely to cause significant harm to humans or 
livestock or serious damage to crops.

    Dated: August 6, 2018.
Richard E. Ashooh,
Assistant Secretary for Export Administration.
[FR Doc. 2018-17249 Filed 8-10-18; 8:45 am]
 BILLING CODE 3510-33-P



                                                                         Federal Register / Vol. 83, No. 156 / Monday, August 13, 2018 / Proposed Rules                                             39921

                                                  (k) Related Information                                 biological weapons (CBW) program.                     Background
                                                     (1) Refer to Mandatory Continuing                    Among the items subject to these CB                     The Bureau of Industry and Security
                                                  Airworthiness Information (MCAI) EASA                   controls are spraying or fogging systems              (BIS), Department of Commerce,
                                                  Airworthiness Directive 2018–0076, dated                described in Export Control
                                                  April 6, 2018, for related information. This
                                                                                                                                                                maintains the Export Administration
                                                                                                          Classification Number (ECCN) 2B352.i                  Regulations (EAR) (15 CFR parts 730–
                                                  MCAI may be found in the AD docket on the               on the CCL. Through this notice, BIS is
                                                  internet at http://www.regulations.gov by                                                                     774), including the Commerce Control
                                                  searching for and locating Docket No. FAA–              seeking public comments as part of a                  List (CCL) (Supplement No. 1 to part
                                                  2018–0707.                                              review of the effectiveness of its                    774 of the EAR). Through this notice,
                                                     (2) For more information about this AD,              controls on these systems, and ‘‘parts’’              BIS is seeking public comments as part
                                                  contact Tom Rodriguez, Aerospace Engineer,              and ‘‘components’’ therefor, to ensure                of a review of the effectiveness of its
                                                  International Section, Transport Standards              that the descriptions of these items on               controls on spraying or fogging systems,
                                                  Branch, FAA, 2200 South 216th St., Des                  the CCL are clear, do not inadvertently               and ‘‘parts’’ and ‘‘components’’ therefor,
                                                  Moines, WA 98198; telephone and fax 206–                control items in normal commercial use,
                                                  231–3226.
                                                                                                                                                                that are described in paragraph (i) of
                                                     (3) For service information identified in
                                                                                                          accurately reflect CB-related                         Export Control Classification Number
                                                  this AD, contact Fokker Services B.V.,                  technological capabilities and                        (ECCN) 2B352 on the CCL. The items
                                                  Technical Services Dept., P.O. Box 1357,                developments, and are consistent with                 controlled by ECCN 2B352.i are subject
                                                  2130 EL Hoofddorp, the Netherlands;                     the principal objective of the AG, which              to chemical/biological (CB) controls on
                                                  telephone +31 (0)88–6280–350; fax +31                   is to ensure that exports of certain                  the CCL, because they are identified on
                                                  (0)88–6280–111; email technicalservices@                chemicals, biological agents, and dual-               one of the common control lists
                                                  fokker.com; internet http://                            use chemical and biological                           maintained by the Australia Group
                                                  www.myfokkerfleet.com. You may view this                manufacturing facilities and equipment,               (AG), specifically, the AG ‘‘Control List
                                                  service information at the FAA, Transport
                                                  Standards Branch, 2200 South 216th St., Des             do not contribute to the spread of                    of Dual-Use Biological Equipment and
                                                  Moines, WA. For information on the                      chemical and biological weapons                       Related Technology and Software.’’ The
                                                  availability of this material at the FAA, call          (CBW). This notice also requests public               AG is a multilateral forum consisting of
                                                  206–231–3195.                                           comments on potential alternatives to                 42 participating countries and the
                                                                                                          the current controls in ECCN 2B352.i.                 European Union that maintain export
                                                    Issued in Des Moines, Washington, on                                                                        controls on specified chemicals,
                                                  August 5, 2018.                                         DATES: Comments must be received by                   biological agents, and related equipment
                                                  Michael Kaszycki,                                       BIS no later than October 12, 2018.                   and technology that could be used in a
                                                  Acting Director, System Oversight Division,             ADDRESSES:   Comments may be                          chemical or biological weapons
                                                  Aircraft Certification Service.                         submitted via the Federal eRulemaking                 program.
                                                  [FR Doc. 2018–17322 Filed 8–10–18; 8:45 am]             Portal (http://www.regulations.gov). You              Current EAR Controls on Spraying or
                                                  BILLING CODE 4910–13–P                                  can find this notice by searching on its              Fogging Systems
                                                                                                          regulations.gov docket number, which is
                                                                                                          BIS–2018–0013. Comments may also be                      Currently, ECCN 2B352.i controls
                                                  DEPARTMENT OF COMMERCE                                                                                        complete spraying or fogging systems,
                                                                                                          submitted via email to
                                                                                                                                                                spray booms, and arrays of aerosol
                                                                                                          publiccommments@bis.doc.gov or on
                                                  Bureau of Industry and Security                                                                               generating units that are: (1) ‘‘specially
                                                                                                          paper to Regulatory Policy Division,
                                                                                                                                                                designed’’ or modified for fitting to
                                                                                                          Bureau of Industry and Security, U.S.
                                                  15 CFR part 774                                                                                               aircraft, ‘‘lighter than air vehicles,’’ or
                                                                                                          Department of Commerce, Room 2099B,
                                                                                                                                                                ‘‘unmanned aerial vehicles’’ (‘‘UAVs’’);
                                                  [Docket No. 180227222–8222–01]                          14th Street and Pennsylvania Avenue                   and (2) capable of delivering, from a
                                                                                                          NW, Washington, DC 20230. Please refer                liquid suspension, an initial droplet
                                                  Commerce Control List: Request for                      to RIN 0694–XC042 in all comments
                                                  Comments Regarding Controls on                                                                                volume median diameter (‘VMD’) of less
                                                                                                          and in the subject line of email                      than 50 microns at a flow rate of greater
                                                  Certain Spraying or Fogging Systems                     comments. All comments (including
                                                  and ‘‘Parts’’ and ‘‘Components’’                                                                              than 2 liters per minute. This ECCN also
                                                                                                          any personally identifying information)               controls aerosol generating units that are
                                                  Therefor                                                will be made available for public                     ‘‘specially designed’’ for fitting to the
                                                  AGENCY:  Bureau of Industry and                         inspection and copying.                               aforementioned equipment.
                                                  Security, Commerce.                                     FOR FURTHER INFORMATION CONTACT:     For                 The Technical Notes immediately
                                                  ACTION: Notice of inquiry.                              questions on the CB controls that apply               following ECCN 2B352.i clarify the
                                                                                                          to spraying or fogging systems described              scope of these controls and provide
                                                  SUMMARY:   The Bureau of Industry and                   in ECCN 2B352.i, contact Richard P.                   guidance on how to evaluate certain
                                                  Security (BIS), Department of                           Duncan, Ph.D., Director, Chemical and                 characteristics (e.g., droplet size) to
                                                  Commerce, maintains the Export                          Biological Controls Division, Office of               determine whether specific equipment
                                                  Administration Regulations, including                   Nonproliferation and Treaty                           is controlled under this ECCN.
                                                  the Commerce Control List (CCL).                        Compliance, Bureau of Industry and                    Technical Note 1 states that aerosol
                                                  Certain items identified on the CCL are                 Security, Telephone: (202) 482–3343,                  generating units, for purposes of the
                                                  controlled for chemical/biological (CB)                 Email: Richard.Duncan@bis.doc.gov.                    controls in ECCN 2B352.i, are devices
                                                  reasons, because they are identified on                                                                       ‘‘specially designed’’ or modified for
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                                                                          For questions on the submission of
                                                  one of the common control lists                         comments in response to this notice of                fitting to ‘‘aircraft’’ and include nozzles,
                                                  maintained by the Australia Group                       inquiry, contact Willard Fisher,                      rotary drum atomizers and similar
                                                  (AG), which is a multilateral forum of                                                                        devices. Technical Note 2 clarifies the
                                                                                                          Regulatory Policy Division, Office of
                                                  countries (plus the European Union)                                                                           scope of ECCN 2B352 by indicating that
                                                                                                          Exporter Services, Bureau of Industry
                                                  that maintain export controls on                                                                              this ECCN does not control spraying or
                                                                                                          and Security, U.S. Department of
                                                  specified chemicals, biological agents,                                                                       fogging systems and ‘‘parts’’ and
                                                                                                          Commerce, Phone: (202) 482–2440.
                                                  and related equipment and technology                                                                          ‘‘components’’ therefor, as described in
                                                  that could be used in a chemical or                     SUPPLEMENTARY INFORMATION:                            2B352.i, that are demonstrated not to be


                                             VerDate Sep<11>2014   17:58 Aug 10, 2018   Jkt 244001   PO 00000   Frm 00005   Fmt 4702   Sfmt 4702   E:\FR\FM\13AUP1.SGM   13AUP1


                                                  39922                  Federal Register / Vol. 83, No. 156 / Monday, August 13, 2018 / Proposed Rules

                                                  capable of delivering biological agents                 currently indicated in ECCN 2B352.i is                1C355 or biological agents controlled by
                                                  in the form of infectious aerosols.                     based solely on the airborne                          ECCN 1C351 in the manner described
                                                  Technical Note 3 provides guidance on                   dissemination of biological agents (i.e.,             above.
                                                  how to measure ‘VMD’ for droplets                       those controlled by ECCN 1C351) and
                                                                                                                                                                Request for Comments
                                                  produced by spray equipment or                          would not necessarily apply to systems
                                                  nozzles ‘‘specially designed’’ for use on               for the airborne dissemination of                        BIS is publishing this notice of
                                                  ‘‘aircraft’’ or ‘‘UAVs,’’ indicating that,              chemicals (i.e., those controlled by                  inquiry to obtain public comments as
                                                  pending the adoption of internationally                 ECCN 1C350 or 1C355) or the ground-                   part of a review of the effectiveness of
                                                  accepted standards, ‘VMD’ should be                     based dissemination of such chemicals                 the EAR controls on spraying or fogging
                                                  measured using either of the following                  or biological agents.                                 systems, and ‘‘parts’’ and ‘‘components’’
                                                  methods: (1) Doppler ‘‘laser’’ method; or                  (3) Lowering the flow rate at which                therefor, as currently described in ECCN
                                                  (2) forward ‘‘laser’’ diffraction method.               spraying or fogging systems are                       2B352.i. Specifically, BIS is seeking
                                                     The control text in ECCN 2B352.i, as                 controlled under ECCN 2B352.i.                        comments that address whether the
                                                  described above, is consistent with the                 Currently, ECCN 2B352.i specifies a                   descriptions of these items on the CCL:
                                                  corresponding controls described in the                 flow rate of ‘‘greater than 2 liters per              (1) Are clear; (2) do not inadvertently
                                                  AG ‘‘Control List of Dual-Use Biological                minute.’’ However, BIS acknowledges                   control items in normal commercial use;
                                                  Equipment and Related Technology and                    that this change would involve                        (3) accurately reflect CB-related
                                                  Software,’’ which were established to                   determining a lower flow rate that                    technological capabilities and
                                                  address a very specific threat, i.e., the               would not catch typical commercial                    developments; and (4) are consistent
                                                  dissemination of biological agents from                 systems (e.g., systems designed for                   with the principal objective of the AG,
                                                  the air.                                                agricultural use), except when deemed                 which is to ensure that exports of
                                                                                                          necessary to ensure the continued                     certain chemicals, biological agents, and
                                                  Proposed Alternatives to the Current                                                                          dual-use chemical and biological
                                                                                                          effectiveness of CB controls on spraying
                                                  Controls in ECCN 2B352.i                                                                                      manufacturing facilities and equipment
                                                                                                          or fogging systems.
                                                     As part of its review of the ECCN                       (4) Developing a control that would                do not contribute to the spread of
                                                  2B352.i controls on spraying or fogging                 apply to spraying or fogging systems                  chemical and biological weapons
                                                  systems, and ‘‘parts’’ and ‘‘components’’               ‘‘specially designed’’ for the                        (CBW).
                                                  therefor, BIS is considering expanding                  dissemination or dispersion of                           The public comments submitted in
                                                  the scope of these controls to include:                 chemicals controlled by ECCN 1C350 or                 response to this notice of inquiry should
                                                  (1) Systems for the dissemination of                    1C355 or biological agents controlled by              address specific aspects of the current
                                                  chemicals controlled by ECCN 1C350 or                   ECCN 1C351 in a manner likely to cause                controls in ECCN 2B352.i in relation to
                                                  1C355 (currently, CB controls apply                     significant harm to humans or livestock               the four criteria described above. For
                                                  only to systems for the dissemination of                or serious damage to crops.                           example, if the current control text is
                                                  biological agents controlled by ECCN                       With respect to option #4 described                not sufficiently clear or does not
                                                  1C351); and (2) ground-based systems                    above, note that paragraph (a)(1) of the              accurately reflect CB-related
                                                  (currently, CB controls apply only to                   definition of ‘‘specially designed’’ in               technological capabilities and
                                                  airborne systems). These changes are                    Section 772.1 of the EAR states that an               developments, please identify the
                                                  being considered because potential                      item is ‘‘specially designed’’ if, as a               specific aspects in which the current
                                                  chemical/biological warfare (CBW)                       result of ‘‘development,’’ it ‘‘has                   controls fall short with respect to these
                                                  threats are likely to include the                       properties peculiarly responsible for                 criteria. In addition, please indicate: (1)
                                                  dissemination of chemical agents, as                    achieving or exceeding the performance                The extent to which the existing
                                                  well as the dissemination of biological                 levels, characteristics, or functions in              controls in ECCN 2B352.i would apply
                                                  agents, and may well involve ground-                    the relevant ECCN or U.S. Munitions                   to any spraying or fogging systems that
                                                  based methods of dissemination, as well                 List (USML) paragraph.’’ Therefore, if                are currently being manufactured and/or
                                                  as airborne means of dissemination.                     the term ‘‘specially designed’’ were used             sold; or (2) if the existing controls do
                                                     Consequently, BIS is considering one                 in the control text for spraying or                   not apply to any current systems, what
                                                  or more of the following options with                   fogging systems in ECCN 2B352.i, the                  specific aspects (e.g., flow rate or
                                                  respect to the EAR controls on spraying                 only systems that would be captured by                ‘VMD’) would differentiate such
                                                  or fogging systems, and ‘‘parts’’ and                   these controls would be those that are                systems from the systems described in
                                                  ‘‘components’’ therefor.                                peculiarly responsible for achieving the              ECCN 2B352.i. Also, if applicable,
                                                     (1) Removing the criterion in ECCN                   dissemination or dispersion of                        describe the manner in which your
                                                  2B352.i that currently limits CB controls               chemicals controlled by ECCN 1C350 or                 company evaluates spraying or fogging
                                                  to those systems that are ‘‘specially                   1C355 or biological agents controlled by              equipment, and ‘‘parts’’ and
                                                  designed’’ or modified for fitting to                   ECCN 1C351 in a manner likely to cause                ‘‘components’’ therefor, consistent with
                                                  ‘‘aircraft,’’ ‘‘lighter than air vehicles,’’ or         significant harm to humans or livestock               Technical Note 2 to ECCN 2B352 as
                                                  ‘‘UAVs.’’ The rationale for this change is              or serious damage to crops (i.e.,                     described above, which states that this
                                                  that the ability of such systems to                     properties that would distinguish these               ECCN does not control items specified
                                                  produce an aerosol is not determined by                 systems from typical commercial                       in 2B352.i if they are ‘‘demonstrated not
                                                  whether the systems are ground-based                    systems, such as those designed for                   to be capable of delivering biological
                                                  or airborne.                                            agricultural applications).                           agents in the form of infectious
                                                     (2) Removing the criterion in ECCN                   Consequently, under option #4, the                    aerosols.’’
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                                                  2B352.i based on initial droplet size                   controls in ECCN 2B352.i would not                       In addition, BIS encourages the public
                                                  (i.e., an initial droplet ‘VMD’ of less                 apply to spraying or fogging systems                  to submit comments on the
                                                  than 50 microns). The rationale for this                designed for commercial use that have                 aforementioned options to modify the
                                                  change is that initial droplet size is not              performance levels, characteristics, or               current controls in ECCN 2B352.i.
                                                  necessarily a feature that is measured                  functions that are capable of, but not                Comments on these options should
                                                  (or otherwise addressed) by all                         peculiarly responsible for, achieving the             focus on the extent to which they would
                                                  manufacturers of these systems. In                      dissemination or dispersion of                        satisfy the four criteria described above
                                                  addition, the initial droplet size                      chemicals controlled by ECCN 1C350 or                 and also address the potential impact of


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                                                                         Federal Register / Vol. 83, No. 156 / Monday, August 13, 2018 / Proposed Rules                                                     39923

                                                  these alternative controls on specific                  Registration’’ and RIN number 3038–                   SUPPLEMENTARY INFORMATION:
                                                  types of spraying or fogging systems                    AE65, by any of the following methods:
                                                                                                                                                                Table of Contents
                                                  (including ‘‘parts,’’ ‘‘components,’’                      • CFTC Comments Portal: https://
                                                  ‘‘accessories,’’ and ‘‘attachments’’                    comments.cftc.gov. Select the ‘‘Submit                I. Background
                                                  therefor) that are currently being                      Comments’’ link for this rulemaking and                  A. Project KISS
                                                  manufactured and/or sold or that are                    follow the instructions on the Public                    B. Statutory and Regulatory Framework for
                                                                                                                                                                      Swaps Execution and Clearing
                                                  likely to be manufactured and/or sold in                Comment Form.                                            C. Statutory and Regulatory Requirements
                                                  the foreseeable future. Comments on                        • Mail: Send to Christopher                              for Registration and Operation of DCOs
                                                  option #4 (where the ECCN 2B352.i                       Kirkpatrick, Secretary of the                         II. Proposed Amendments to Part 39
                                                  control text would include the term                     Commission, Commodity Futures                            A. Regulation 39.1—Scope
                                                  ‘‘specially designed’’) should not only                 Trading Commission, Three Lafayette                      B. Regulation 39.2—Definitions
                                                  address this option with reference to the               Centre, 1155 21st Street NW,                             C. Regulation 39.6—Exemption Provisions
                                                  four criteria described above, but also                 Washington, DC 20581.                                    D. Regulation 39.9—Scope
                                                                                                             • Hand Delivery/Courier: Follow the                III. Proposed Amendments to Part 140—
                                                  identify any performance levels,
                                                                                                                                                                      Delegations of Authority
                                                  characteristics, or functions that clearly              same instructions as for Mail, above.                 IV. Request for Comments
                                                  distinguish commercial spraying or                         Please submit your comments using                  V. Consideration of Costs and Benefits
                                                  fogging systems from those systems                      only one of these methods. To avoid                      A. Introduction
                                                  having properties that are peculiarly                   possible delays with mail or in-person                   B. Proposed Regulation 39.6
                                                  responsible for achieving the                           deliveries, submissions through the                      C. Section 15(a) Factors
                                                  dissemination or dispersion of                          CFTC Comments Portal are encouraged.                  VI. Related Matters
                                                  chemicals controlled by ECCN 1C350 or                      All comments must be submitted in                     A. Regulatory Flexibility Act
                                                                                                          English, or if not, accompanied by an                    B. Paperwork Reduction Act
                                                  1C355 or biological agents controlled by
                                                  ECCN 1C351 in a manner likely to cause                  English translation. Comments will be                 I. Background
                                                  significant harm to humans or livestock                 posted as received to https://
                                                  or serious damage to crops.                             comments.cftc.gov. You should submit                  A. Project KISS
                                                    Dated: August 6, 2018.
                                                                                                          only information that you wish to make                   The Commission is engaging in an
                                                                                                          available publicly. If you wish the                   agency-wide review of its rules,
                                                  Richard E. Ashooh,
                                                                                                          Commission to consider information                    regulations, and practices to make them
                                                  Assistant Secretary for Export                          that you believe is exempt from                       simpler, less burdensome, and less
                                                  Administration.
                                                                                                          disclosure under the Freedom of                       costly, and to make progress on G–20
                                                  [FR Doc. 2018–17249 Filed 8–10–18; 8:45 am]
                                                                                                          Information Act (FOIA), a petition for                regulatory reforms. This initiative is
                                                  BILLING CODE 3510–33–P                                  confidential treatment of the exempt                  called Project KISS, which stands for
                                                                                                          information may be submitted according                ‘‘Keep It Simple, Stupid.’’ 2 The
                                                                                                          to the procedures established in § 145.9              Commission is proposing to adopt
                                                  COMMODITY FUTURES TRADING                               of the Commission’s regulations.1                     regulations that would codify the
                                                  COMMISSION                                                 The Commission reserves the right,                 policies and procedures that the
                                                                                                          but shall have no obligation, to review,              Commission is currently following with
                                                  17 CFR Parts 39 and 140                                 pre-screen, filter, redact, refuse or                 respect to granting exemptions from
                                                                                                          remove any or all of your submission                  DCO registration in order to make such
                                                  RIN 3038–AE65                                           from https://comments.cftc.gov that it                policies and procedures transparent to
                                                  Exemption From Derivatives Clearing                     may deem to be inappropriate for                      all potential applicants.
                                                  Organization Registration                               publication, such as obscene language.
                                                                                                                                                                B. Statutory and Regulatory Framework
                                                                                                          All submissions that have been redacted
                                                                                                                                                                for Swaps Execution and Clearing
                                                  AGENCY: Commodity Futures Trading                       or removed that contain comments on
                                                  Commission.                                             the merits of the rulemaking will be                    The Commodity Exchange Act (CEA) 3
                                                  ACTION: Notice of proposed rulemaking.                  retained in the public comment file and               provides that a clearing organization
                                                                                                          will be considered as required under the              may not ‘‘perform the functions of a
                                                  SUMMARY:   The Commodity Futures                        Administrative Procedure Act and other                [DCO]’’ 4 with respect to swaps unless
                                                  Trading Commission (Commission) is                      applicable laws, and may be accessible
                                                                                                                                                                   2 See Remarks of Acting Chairman J. Christopher
                                                  proposing amendments to its                             under the FOIA.
                                                                                                                                                                Giancarlo before the 42nd Annual International
                                                  regulations to establish a regulatory                   FOR FURTHER INFORMATION CONTACT:                      Futures Industry Conference in Boca Raton, FL,
                                                  framework within which the                              Eileen A. Donovan, Deputy Director,                   Mar. 15, 2017, available at https://www.cftc.gov/
                                                  Commission may exempt a clearing                        202–418–5096, edonovan@cftc.gov;                      PressRoom/SpeechesTestimony/opagiancarlo-20.
                                                  organization that is organized outside of                                                                     On February 24, 2017, President Donald J. Trump
                                                                                                          Parisa Abadi, Associate Director, 202–                issued Executive Order 13777: Enforcing the
                                                  the United States (hereinafter referred to              418–6620, pabadi@cftc.gov; Eileen R.                  Regulatory Reform Agenda (E.O. 13777). E.O. 13777
                                                  as ‘‘non-U.S. clearing organization’’)                  Chotiner, Senior Compliance Analyst,                  directs federal agencies, among other things, to
                                                  from registration as a derivatives                      202–418–5467, echotiner@cftc.gov;                     designate a Regulatory Reform Officer and establish
                                                  clearing organization (DCO) in                                                                                a Regulatory Reform Task Force. Although the
                                                                                                          Abigail S. Knauff, Special Counsel, 202–              CFTC, as an independent federal agency, is not
                                                  connection with the clearing                            418–5123, aknauff@cftc.gov; Division of               bound by E.O. 13777, the Commission is
                                                  organization’s clearing of swaps. In                    Clearing and Risk, Commodity Futures                  nevertheless engaging in an agency-wide review of
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                  addition, the Commission is proposing                   Trading Commission, Three Lafayette                   its rules, regulations, and practices to make them
                                                  certain amendments to its delegation                                                                          simpler, less burdensome, and less costly. See
                                                                                                          Centre, 1155 21st Street NW,                          Request for Information, 82 FR 23756 (May 24,
                                                  provisions in its regulations.                          Washington, DC 20581.                                 2017).
                                                  DATES: Comments must be received on                                                                              3 7 U.S.C. 1 et seq.

                                                  or before October 12, 2018.                               1 17 CFR 145.9. Commission regulations referred        4 The term ‘‘derivatives clearing organization’’ is

                                                                                                          to herein are found at 17 CFR chapter I (2018), and   statutorily defined to mean a clearing organization
                                                  ADDRESSES: You may submit comments,
                                                                                                          are accessible on the Commission’s website at         in general. However, for purposes of the discussion
                                                  identified by ‘‘Exemption from                          https://www.cftc.gov/LawRegulation/Commodity          herein, the term ‘‘DCO’’ refers to a Commission-
                                                  Derivatives Clearing Organization                       ExchangeAct/index.htm.                                                                             Continued




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Document Created: 2018-08-11 00:27:29
Document Modified: 2018-08-11 00:27:29
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of inquiry.
DatesComments must be received by BIS no later than October 12, 2018.
ContactFor questions on the CB controls that apply to spraying or fogging systems described in ECCN 2B352.i, contact Richard P. Duncan, Ph.D., Director, Chemical and Biological Controls Division, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, Telephone: (202) 482-3343, Email: [email protected] For questions on the submission of comments in response to this notice of inquiry, contact Willard Fisher, Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce, Phone: (202) 482- 2440.
FR Citation83 FR 39921 

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