1 Peer Review Comments on:

Technical Background Document: Mercury Wastes Evaluation of Treatment of Mercury Surrogate Waste January 24, 2003 Submitted by:

Science Applications International Corporation Engineering and Environmental Management Group 11251 Roger Bacon Drive Reston, Virginia 20190 Submitted to:

U. S. Environmental Protection Agency Ariel Rios Building Office of Solid Waste 1200 Pennsylvania Avenue, N. W. Washington, D. C. 20460 EPA Contract No. 68 W0 0122 Work Assignment No. 1 2 SAIC Project No. 06 0758 08 2889 000 2 Evaluation of Treatment of Mercury Surrogate Waste In order to help evaluate whether EPA could propose treatment and disposal alternatives to the current land disposal restriction ( LDR) treatment standard of mercury retorting, EPA conducted a study on the treatment of a surrogate waste contaminated with multiple forms of mercury. The study was performed to assess conditions that affect the stability of waste residues resulting from the treatment of high mercury ( greater than 260 mg/ kg total mercury) wastes. The results of the study were submitted for formal, independent peer review by three national experts with significant technical expertise in hazardous waste leaching. These peer reviewers have no prior association with this study, and have no perceived or actual conflict with any impact of the study results. The members of the peer review panel were tasked with evaluating the adequacy of the experimental design, conduct, and conclusions of the study. The peer review panel also provided information on how the study can be used to provide a framework to determine whether additional protective measures are required to prevent loss of mercury to the environment from the treatment and co disposal of mercury bearing wastes in landfills. Additionally, the members of the peer review panel were asked if additional studies were warranted for other factors that impact solubility ( e. g., liquid/ solid ratio, redox conditions, leachate composition) or affect ability to leach ( such as use of macroencapsulation). The specific questions asked of the peer reviewers are provided in this document, along with the peer reviewer's comments, and EPA's responses to those comments.

Charge Question 1: Was the experimental design of the study appropriate?

Reviewer # 1: Yes. My review of the report and the accompanying appendices indicates that this study was conducted with clearly defined objectives and with careful designing and implementation of the testing details. This study was a controlled laboratory study that focused on creating a surrogate waste sludge covering multiple forms of mercury at high concentrations. This study focused on laboratory leaching tests to determine the effectiveness of treatment technologies that were tested. Sufficient replicates were utilized and a number of technologies were selected and tested in the study in an appropriate manner.

Reviewer # 2: The design did not follow the Data Quality Objectives process, nor a similar planning process. As a result, there is little relationship between the objectives and the design. A RCRA disposal scenario was implied, but the pH range did not extend to pH 12.5, and data show, e. g., Figure 5.3, that major changes occur in extraction at high pH.

Response: EPA has developed the DQOs process as the Agency's recommended planning process when environmental data are used to select between two opposing conditions, such as achieving or not achieving a numerical standard. The DQOs process is used to develop qualitative and quantitative statements of the overall level of uncertainty that a decision maker is willing to accept in results or decisions derived from environmental data, i. e., Data Quality Objectives. The DQOs process entails a seven step systematic procedure for defining the criteria that a data collection design should satisfy, including when to collect samples, where to collect 3 samples, the tolerable level of decision error for the study, and how many samples to collect, balancing risk and cost in an acceptable manner. When this process is not directly applicable ( i. e., the experimental objective is estimation, research, or any other objective that does not select between two distinct conditions), the Agency recommends the use of a systematic planning method for defining performance criteria. For this research project, a systematic planning method was used. A Quality Assurance Project Plan ( QAPP) was developed by EPA and was followed throughout the project. EPA believes that the project objectives and criteria were logical, given the intended end use of the data, well defined, and achievable.

The reviewer has placed undue significance on pH 12.5. Few Landfills exhibit such extreme conditions. We believe the trend of performance can be adequately established with testing in the pH 2  12 range. However, if disposal under extreme conditions were planned, then we concur that testing should encompass such conditions with testing at pH 13 or above.

The QAPP for this study was also included in the electronic file for the evaluation of bulk elemental mercury. A statement of accreditation for the labs could have been substituted for much of the generic material in the QAPP.

Response: The QAPP approved for this study was developed according to EPA QA R 5 guidelines.

Reviewer # 3: The experimental design employed was appropriate in most regards. One problem with the plan was the variability introduced by having vendors prepare the surrogate waste.

Response: EPA provided each of the vendors with all of the components necessary to prepare the waste, with the exception of water, and instructions for combining the materials, including how much water to add. This approach was chosen because it was faster and cheaper to ship the individual components to the vendors rather than to ship the prepared surrogate waste. EPA had anticipated that the participants would follow the preparation directions closely. This was not the case. In retrospect, EPA would not use this approach again.

Data in Appendix C shows that concentrations of potassium, calcium and magnesium were much higher in the surrogates prepared by all vendors than the surrogate prepared by Alter. Furthermore, the concentrations of chloride in surrogate waste prepared by Vendors A, B, and C were much higher than concentrations in the surrogate prepared by Alter and Vendor D. Chloride concentrations are particularly important because of the ability of chloride ions to form soluble complexes with mercury, thereby enhancing its release during leaching tests. Therefore, it is possible that the surrogate waste treated by Vendor D was " easier" to treat, than that treated by the other vendors. Vendor C reported using only about one half of the specified water in preparing its surrogate waste. The effect of reduced water content in the surrogate waste on performance in leaching tests is not clear, but the lack of consistency in surrogate waste preparation is undesirable. 4 Response: EPA does not believe that the variability of the surrogate waste is as large as implied by the reviewer. The measured concentrations of potassium and chloride in the untreated surrogate prepared by Alter, Inc. and the four vendors are all within 1 order of magnitude of each other. The concentration of calcium is very similar in the wastes prepared by all four vendors. With one exception ( Vendor C), the concentration of magnesium in the waste prepared by Alter and the vendors varies within one order of magnitude. We believe that this variation does not adversely impact the results of the study, nor the conclusions based on those results.

Charge Question 2: Was the study conducted properly?

Reviewer # 1: Yes. My review of the SAIC ( 2000) report indicates that all vendors and laboratories properly carried out the surrogate sample preparation, and the leaching tests on the prepared treated surrogate waste samples. All characterization data appears to be properly collected and reported.

Reviewer # 2: The appropriate procedures were used, and the study appears to have been done as planned.

Reviewer # 3: The conduct of the study appears to have been proper.

Charge Question 3: Were the stated objectives adequately met?

Reviewer # 1: Yes, for the most part. The study objectives as stated in the report dealt with ( 1) an evaluation of alternative stabilization process by examining the TCLP test results to meet a goal of 0.025 mg/ L or less, and ( 2) to compare proposed new leaching test protocols to the standard TCLP results. The study also included leach testing of pellets and crushed forms of the stabilized wastes. Fixed pH leach tests were replicated only part of the time. The results and graphs presented in the report clearly indicate that leachate concentrations derived from the stabilized waste are always significantly lower than those obtained from the un stabilized waste. The results presented also show that there are significant differences in the effectiveness of the various treatment technologies that were tested. The results further show that the constant pH leaching test results depict a pH dependent leaching behavior of mercury. Based on this one surrogate waste testing results, it also appears that Vendor A technology performs the best except when the stabilized waste is exposed to very alkaline condition ( i. e., pH > 11.0). Vendor B stabilized waste seems to meet the 0.025 mg/ L goal only for the very alkaline condition, and Vendor C stabilized waste meets the leachate goal of 0.025 at pH greater than 9. The Vendor D stabilized waste meets the 0.025 mg/ L goal only at pH greater than 10.

Therefore, this report should conclude that all treatment technologies that were tested are not equally effective, and that Vendor A technology provides the most treatment effectiveness for a much broader range of pH conditions than the other three vendors. This report should also recognize that the new leaching test protocols yield significantly different results than TCLP test. 5 This is not surprising in light of the fact that TCLP test was developed to simulate a mismanagement case of waste disposal in a municipal landfill, whereas the constant pH leaching test covers a broad range of environmental conditions for leaching.

Response: The intent of this study was to evaluate the stability of treatment residuals from commercially available technologies against bench mark standards, and not to compare the technologies to each other. Therefore, EPA believes that it is inappropriate to reach the relative conclusions suggested by the reviewer. The testing protocol of the TCLP yields final pH conditions that differ for each waste tested. However, the concentrations measured were consistent with the concentration gradients indicated by the constant pH protocol measurements. In general, the two test procedures provide similar results when compared at the same pH level. In some cases, TCLP results are lower. This could be due to equilibrium not being attained in the shorter exposure period of the TCLP.

A couple of editorial suggestions are added here for the summary tables in the report. Tables containing analytical results on TCLP for the various vendors ( e. g., Table 5 3) should be better labeled to show which are pelletized samples, which are crushed samples, and which ones are untreated samples.

Response: These editorial suggestions were implemented in a final revision of the study report.

Reviewer # 2: The first objective in the peer review charge was to evaluate alternative treatment technologies to obtain a goal of 0.025 mg/ L Hg over a range of pH 2 to pH 12. This objective was adequately met with the exception of an apparent sample heterogeneity problem.

Response: EPA agrees that sample heterogeneity was a recurring issue, albeit a minor one. We believe that the sample heterogeneity is inherent in the nature of both the untreated and treated materials, and difficult to control. As the study was intended to evaluate the treatment residuals from the stabilization technologies as they are used commercially, we believe that this heterogeneity is a variable that must be considered.

The second objective was to compare constant pH protocol results to standard TCLP results. This was adequate with the exception of the apparent sample heterogeneity.

Response: As noted in the previous response, EPA agrees that sample heterogeneity was a minor, recurring issue. We believe that it is useful to compare the constant pH leaching protocol to the TCLP, and that any minor issues caused by heterogeneity do not interfere with that comparison.

Reviewer # 3: a) Effectiveness of meeting goal of 0.025 mg/ L in leaching tests i) TCLP Test The treatment process of Vendor A was able to consistently meet the goal ( 0.025 mg/ L) in the 6 TCLP test by substantial margin ( concentrations < 0.01 mg/ L). There was little, if any, difference between the treated materials in crushed or pellet forms. The ability of this treated waste to meet the goal was confirmed by its performance in the constant pH leaching test ( CPLT), in which concentrations were measured below the goal at pH values near that observed in the TCLP.

The treatment process of Vendor B was not able to meet the goal in any samples submitted. This performance was confirmed by the CPLT.

The treatment process of Vendor C was able to meet the treatment goal in all samples submitted ( Batch 1, Batch 2). The degree by which the goal was exceeded was greater in Batch 2 than Batch 1. This behavior was confirmed by performance in the CPLT, although concentrations were higher in the CPLT.

The treatment process of Vendor D was able to meet the treatment goal in one sample submitted ( Batch 1), but did not meet the treatment goal in another sample ( Batch 2). The average TCLP concentration for Batch 2 exceeded the goal, although one sub sample out of three was lower than the treatment goal. This performance was confirmed by performance of Batch # 2 in the CPLT. However, Batch # 1 gave a very high concentration in the CPLT near the pH of the TCLP. However, this point does not follow the general trend of the rest of the data for this treated waste or the treated wastes of other vendors, so it appears to be an outlier.

These results support the conclusion that there are existing stabilization technologies that can meet a TCLP goal of 0.025 mg/ L in wastes with mercury concentrations well in excess of 260 mg/ kg.

ii) Constant pH test Only a few ( pH 2, 8, 12) CPLT were replicated, so there is limited data to evaluate the reproducibility of the test procedure. The average relative percentage difference ( RPD) for all vendors was 35%, but many individual RPD exceeded 100%. This limits the confidence that can be placed on individual test results, especially when they approach the treatment goal.

Response: The number of test replicates that could be conducted, and consequently the amount of data that could be collected, was limited by available resources. EPA believes that sufficient data are available to consider the data set in aggregate, and to support the conclusions presented in the report.

The treatment process of Vendor A was able to meet the treatment goal at all pH values except pH 12. All samples meeting the goal did so by a substantial margin ( concentration < 0.01 mg/ L), except one of the duplicates at pH 8.

The treatment process of Vendor B was not able to meet the treatment goal at any pH values, except for both duplicates of one sample ( Phase II, pH 12). 7 The treatment process of Vendor C was able to meet the goal under some conditions. In general, the goal could be met at higher pH and in Batch # 2. Both duplicates met the treatment goal in Batch # 2 at pH 8, but only one met the goal in Batch # 1 at that pH. Both duplicates met the treatment goal in Batch # 2 at pH 12, but neither did in Batch # 1 at that pH. The variability in performance between batches shown by the treatment process of Vendor C is not substantially different from that shown by treatment processes of other vendors. However, the treated waste provided by Vendor C produced concentrations in the CPLT that were near the treatment goal, so that there was more variation in whether a particular sample met the goal. The variability in performance of all treated wastes indicates the problems of heterogeneity of the waste and/ or variability in application of the treatment process.

The treatment process of Vendor D was not able to meet the goal, except at higher pH. At pH 12, three samples met the goal and one sample was at the goal ( 0.025 mg/ L). However, none of the samples at pH 12 exceeded the goal by a substantial margin (< 0.01 mg/ L).

Response: EPA agrees with the reviewer's assessment of the data. We believe that the heterogeneity of the waste and/ or variability in application of the treatment process noted by the reviewer for Vendor C is relevant to some degree to all of the vendors, and is a significant factor in treating granular, complex wastes using batch treatment processes. Therefore, these factors, and the resulting performance variability, must be examined and considered when evaluating the ability of a commercial treatment technology to meet a performance goal.

b) Comparison of TCLP to constant pH leach test ( CPLT). The CPLT is similar to the TCLP, but it does not duplicate all conditions of the TCLP. In addition to operating at different pH, the CPLT has a longer leaching time ( 14 days compared to 18 hours), different L/ S ratio ( 20 L/ kg dry mass compared to 20 L/ kg total mass) and uses a different leaching solution ( mixture of nitric acid and/ or sodium hydroxide compared to acetic acid and possibly sodium hydroxide). These differences can lead to observing higher or lower concentrations in the CPLT compared to those measured in the TCLP, even when the CPLT is at the pH observed in the TCLP. Using a L/ S ratio defined in terms of dry mass rather than total mass will result in a greater amount of waste being used in the CPLT per unit volume of leachate compared to the TCLP. This would tend to lead to higher concentrations being measured in the CPLT. A longer leaching time in the CPLT would tend to result in the leaching solution approaching more closely to equilibrium conditions with the solids. This could result in higher or lower concentrations being observed, because concentrations in the TCLP test can be increasing or decreasing as the end of the leaching period approaches. Concentrations would tend to continuously increase for components whose solubility is not strongly affected by pH or when the pH of the leaching fluid does not change appreciably. However, concentrations of compounds that are strongly affected by pH would tend to increase initially when pH is low and then decrease as pH rises in the leaching fluid. The presence of nitrate rather than acetic acid/ acetate could affect leaching results when one or the other of these compounds forms stronger complexes with a metal being extracted. 8 The treated waste provided by Vendor A showed concentrations in the TCLP to be similar, but lower than concentrations in the CPLT when interpolated to the pH of the TCLP. However, the constant pH test resulted in some concentrations at other pH values that were much higher than observed for the TCLP at pH values different from that observed in the TCLP.

The treated waste provided by Vendor B showed good agreement in concentrations measured in the TCLP and in the CPLT, when concentrations in the CPLT are interpolated to the pH of the TCLP. However, the CPLT resulted in some concentrations that were higher and lower than those measured in the TCLP, when measured at pH values different from those observed in the TCLP.

The treated waste provided by Vendor C showed similar concentrations measured in the TCLP and in the CPLT, when concentrations in the CPLT are interpolated to the pH of the TCLP. However, the interpolated concentrations of the CPLT tended to be higher than those in the TCLP. However, the CPLT resulted in some concentrations that were much higher than those observed for the TCLP at pH values different from those observed in the TCLP.

The treated waste provided by Vendor D showed similar concentrations in both leach tests, when compared at the same pH and when the result in the CPLT at pH 10 for Batch # 1 is considered an outlier. This point should be considered an outlier because it is much higher than the general trend at other pH values for Batch # 1 and very different from that observed for Batch # 2 at pH 10. The CPLT resulted in some concentrations that were much higher than those observed for the TCLP at pH values different from those observed in the TCLP.

In general, the two test procedures provided similar results when compared at the same pH. In some cases, the concentrations measured in the TCLP tended to be a little lower than those observed by interpolating concentrations measured in the CPLT to the pH of the TCLP. This could be due to the fact that the TCLP has a higher effective L/ S and shorter leaching time than the CPLT. The CPLT also produced concentrations at other pH values that could be much higher than those measured in the TCLP.

Response: EPA notes that the reviewer has simply summarized the study results, and that no response is necessary.

Supplementary Information Question 1: Are you aware of any other data/ studies that are relevant to the assessment of stabilized mercury bearing wastes and the behavior of these wastes in the environment?

Reviewer # 1: No, I am not aware of any other data/ studies that are similar in nature to this study.

Reviewer # 2: This report does not have a list of baseline references, so the question is very broad. A start would be the studies completed for EPA or used by EPA in previous rule making. Second would be a literature review using appropriate keywords 9 Response: A bibliography ( provided by Reviewer # 3) was included in a final revision of the report.

Reviewer # 3: The following is list of articles relevant to both studies:

" Stabilization/ solidification ( S/ S) of mercury containing wastes using reactivated carbon and Portland cement", Zhang, Jian; Bishop, Paul L. Journal of Hazardous Materials ( 2002), 92( 2), 199 212. " Sulfide induced stabilization and leachability studies of mercury containing wastes", Piao, Haishan; Bishop, Paul, Abstracts of Papers, 223rd ACS National Meeting, Orlando, FL, United States, April 7 11, 2002 ( 2002), ENVR 207. " Phosphate induced mercury stabilization", Zhang, Jian; Bishop, Paul L., Preprints of Extended Abstracts presented at the ACS National Meeting, American Chemical Society, Division of Environmental Chemistry ( 2001), 41( 1), 422 424. " Sulfide induced mercury stabilization", Piao, Haishan; Bishop, Paul L., Preprints of Extended Abstracts presented at the ACS National Meeting, American Chemical Society, Division of Environmental Chemistry ( 2001), 41( 1), 428 431. " Stabilization of radioactively contaminated elemental mercury wastes", Stewart, Robin; Broderick, Tom; Litz, John; Brown, Cliff; Faucette, Andrea., Proceedings of the International Conference on Decommissioning and Decontamination and on Nuclear and Hazardous Waste Management, Denver, Sept. 13 18, 1998 ( 1998), 3 33 36. " Mercury stabilization in chemically bonded phosphate ceramics", Wagh, Arun S.; Jeong, Seung Young; Singh, Dileep, Ceramic Transactions ( 1998), 87( Environmental Issues and Waste Management Technologies in the Ceramic and Nuclear Industries III), 63 73. " A Framework for Risk Assessment of Disposal of Wastes Treated by Solidification/ Stabilization", Batchelor, B., Environmental Engineering Science, 14( 1): 3 13, 1997. " A study of immobilization of four heavy metals by solidification/ stabilizatioin with Portland cement", Susan A. Trussell, Ph. D. Dissertation, Texas A& M University, College Station, Texas, 1994. " Immobilization of chromium and mercury from industrial wastes", Wasay, S. A.; Das, H. A. , J. Environ. Sci. Health, Part A ( 1993), A28( 2), 285 97. Chemical Fixation and Solidification of Hazardous Wastes, Jesse R. Conner, Van Nostrand Reinhold, New York, 1990. " An investigation of mercury solidification and stabilization in portland cement using x ray photoelectron spectroscopy and energy dispersive spectroscopy", McWhinney, Hylton G.; Cocke, David L.; Balke, Karl; Ortego, J. Dale., Cem. Concr. Res. ( 1990), 20( 1), 79 91. " Studies of zinc, cadmium and mercury stabilization in OPC/ PFA mixtures", Poon, C. S.; Perry, R., Mater. Res. Soc. Symp. Proc. ( 1987), 86( Fly Ash Coal Convers. By Prod.), 67 76. " Permeability study on the cement based solidification process for the disposal of hazardous wastes", Poon, C. S.; Clark, A. I.; Perry, R.; Barker, A. P.; Barnes, P., Cem. Concr. Res. ( 1986), 16( 2), 161 72. " Mechanisms of metal fixation and leaching by cement based fixation processes", Poon, C. S.; Clark, A. I.; Peters, C. J.; Perry, R., Waste Manage. Res. ( 1985), 3( 2), 127 42. 10 " Mechanisms of metal stabilization by cement based fixation processes", Poon, C. S.; Peters, C. J.; Perry, R.; Barnes, P.; Barker, A. P., Sci. Total Environ. ( 1985), 41( 1), 55 71.

A database is being prepared that will contain information on many characteristics of wastes. This will include those containing mercury. The final report has not been prepared but information is available at: http:// www. concrete. cv. ic. ac. uk/ iscowaa/ nnapics/ intro. html Response: The bibliography provided by the Reviewer was included in a final revision of the report.

Question 2: With regard to the disposal of treated mercury wastes, are additional studies warranted for other factors that impact solubility or affect ability to leach, such as use of macroencapsulation? If you believe that additional studies are needed, please explain why.

Reviewer # 1: Yes. This study was conducted by preparing and evaluating a surrogate waste sample. However, no data/ results have been generated to show that stabilization and leaching characteristics of actual wastes would yield similar results when tested in a similar manner. I suggest that two or more wastes containing over 260 mg/ kg of mercury be subjected to stabilization and leaching by TCLP as well as by the constant pH leaching protocols. If those test results show that leachates do not exceed 0.025 mg/ L goal at all pH values then selection of stabilization technology would not require any site specific considerations.

Response: The additional study proposed by the Reviewer will be considered as additional resources become available, however, EPA believes that it is reasonable to expect the surrogate waste constructed for this study to be representative of actual wastes, both with respect to composition and response to stabilization.

Reviewer # 2: An additional study is needed to supplement this report, particularly extractions up to at least pH 12.5. If the mercuric selenide process is considered a viable technology, then mercuric selenide containing waste should be evaluated over the range of pH 2 12.5 and with varied chloride content in the leachate. Additional studies on other factors could be done, but the priorities seem to be: pH effects ( 2 12.5), leachate composition ( e. g., chloride) effects, and redox effects. A decision should be made about how accurately a waste treatment evaluation needs to be, then deciding on the relative importance of variables.

Response: The reviewer has placed undue significance on pH 12.5. Few Landfills exhibit such extreme conditions. We believe the trend of performance can be adequately established with testing in the pH 2  12 range. However, if disposal under extreme conditions were planned, then we concur that testing should encompass such conditions with testing at pH 13 or above. The additional studies proposed by the Reviewer will be considered as additional resources become available.

Reviewer # 3: These studies have adequately demonstrated that a goal of 0.025 mg/ L in the TCLP can be met by existing stabilization technologies, both for a surrogate waste containing various 11 forms of mercury at a total concentration of 5,000 mg/ kg and for elemental mercury. However, meeting this goal does not insure that adequate protection of human health and the environment is assured for all conditions of waste disposal. However, this statement is not limited to mercury wastes, but is a limitation of the TCLP for all hazardous constituents. Therefore, additional studies are not warranted to determine if existing technologies can meet a TCLP goal of 0.025 mg/ L for wastes that contain mercury at concentrations above 260 mg/ kg. However, additional studies are warranted to develop characterization methods and analytical techniques that will insure safe disposal of hazardous wastes containing toxic materials including mercury under a range of site specific disposal conditions.

Response: The Agency is currently considering alternative leaching technologies that will be applicable to a broad spectrum of hazardous wastes, including those containing mercury. The Agency is also developing guidance for the use of leachate protocols in site specific hazard assessment. As these considerations are completed, and new approaches developed, the results will be published.

Question 3: Do you agree that the following statement is supported by the research results?

( a) Site specific disposal conditions must be considered along with appropriate treatment technology as decisions are made about disposal of mercury wastes.

Reviewer # 1: I partially agree. As indicated in my response to the foregoing Question 2, the answer to this question is that it depends on the results obtained from carrying out the recommended testing of actual wastes. However, based on the results presented in this report, it seems that pH was the only environmental parameter tested for the evaluation of effectiveness. The Vendor A technology will require that the site be evaluated to determine if the leaching fluid that will be infiltrating through the stabilized waste has a pH of 10 or less. No other disposal conditions would need to be considered. In my technical evaluation of the test results presented in the report, I see that Vendor A technology should be used because of its effectiveness under a large range of pH conditions.

Response: pH was the only environmental variable evaluated in this study. EPA acknowledges that there are other variables, but believes that pH is certainly a significant variable. The Reviewer acknowledges that the pH of the leachate in the landfill cell, a site specific condition, must be considered when selecting a technology. EPA believes that this supports the conclusion that " Site specific disposal conditions must be considered along with appropriate treatment technology as decisions are made about disposal of mercury wastes.".

Reviewer # 2: No. The study provides useful data on pH effects, but it does not provide adequate data to support an absolute requirement for site specific data. An alternative to using sitespecific conditions is a robust treatment standard which addresses the most important variables. A major implementation problem with requiring site specific conditions is the regulatory feasibility of using site specific information. For any disposal of hazardous wastes, treated or untreated, it is scientifically preferable to use site specific conditions as well as the waste 12 properties. It is not obvious that using site specific data would be better than non site specific approaches to meet the public health and environmental protection goals, in part because those specific goals are not stated in this report.

Response: We agree that it is scientifically preferable to use site specific conditions as well as the waste properties to assess disposal options. EPA believes that consideration of site specific disposal conditions along with appropriate treatment technology information is the best alternative when making environmentally sound decisions about the disposition of these high mercury stabilized wastes. As the reviewer correctly notes, implementation of such requirements into a regulatory framework would be problematic. We believe that the reviewer's suggestion of using a robust treatment standard that addresses only the most important variables would be equally problematic to implement on a national basis.

Reviewer # 3: These research results do support this statement, because they demonstrate that pH can have an important impact on the amount of mercury leached from treated wastes. The pH of a leaching fluid can be very different under different disposal conditions. However, the research results do not prove the statement, because there could be conditions under which a waste could be characterized so that site specific disposal conditions would not be required to insure a reasonable degree of confidence in protection of human health and the environment.

Response: EPA acknowledges the difference noted by the Reviewer between data " supporting" and " proving" a premise. The Agency does not anticipate having sufficient resources available to investigate all of the characterizations conditions possible in order to definitively prove or disprove the hypothesis.

Question 4: Do you have any other comments?

Reviewer # 1 No.

Reviewer # 2: Table 3 1 presumably shows target concentrations and not actual measured concentrations. Section 3.3.1 lists the worker protection standard as 0.05 g/ m3, but Section lists the TLV as 0.025 mg/ m3. The conclusions in Section 5.6 refer to "... waste bulk elemental mercury..." although this study included several forms of mercury.

Response: The editorial corrections suggested by the reviewer were incorporated in a final revision to the report.

Reviewer # 3: The following are suggestions for corrections to the report: C ( Various places) The relationship of ALTER and the University of Cincinnati should be clarified. It appears that the two are used interchangeably. C ( p. 2 5, bullet 3) should be "< 260 ppm" C ( p. 3 4, line 5 from bottom and elsewhere) Provide units for liquid/ solid ratio. C ( p. 5 1, Table 5 1 and others) Percentages should be reported with no more significant digits than the measurements upon which they are based. 13 C ( p. 5 1, Table 5 1 and others) The leaching fluid used in the TCLP tests should be specified. C ( p. 5 5, Table 5 4, columns 2,3,6,7) Replace " 3/ 4" with blank or other indication that presenting the percent leached is not appropriate for a blank.

Response: The editorial corrections suggested by the reviewer were incorporated in a final revision to the report.


[Federal Register Volume 77, Number 72 (Friday, April 13, 2012)]
[Rules and Regulations]
[Pages 22191-22200]
[FR Doc No: 2012-8944]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 732, 734, 738, 740, 742 and 774

[Docket No. 110310188-2058-03]
RIN 0694-AF17

Revisions to the Export Administration Regulations (EAR): Export
Control Classification Number 0Y521 Series, Items Not Elsewhere Listed
on the Commerce Control List (CCL)

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: The Bureau of Industry and Security (BIS) publishes this final
rule, which amends the Export Administration Regulations (EAR) by
establishing a new Export Control Classification Number (ECCN) series,
0Y521, on the Commerce Control List (CCL) and makes corresponding
changes to the EAR. The ECCN 0Y521 series will be used for items that
warrant control on the CCL but are not yet identified in an existing
ECCN. As BIS explained in the proposed rule issued on July 15, 2011 (76
FR 41958), this new temporary holding classification is equivalent to
United States Munitions List (USML) Category XXI (Miscellaneous
Articles), but with a limitation that while an item is temporarily
classified under ECCN 0Y521, the U.S. Government works to adopt a
control through the relevant multilateral regime(s); to determine an
appropriate longer-term control over the item; or determines that the
item does not warrant control on the CCL. Items will be added to the
0Y521 ECCNs by the Department of Commerce, with the concurrence of the
Departments of Defense and State, when it identifies an item that
should be controlled because it provides a significant military or
intelligence advantage to the United States or because foreign policy
reasons justify such control.
    The 0Y521 series was described in the July 15, 2011 proposed rule
that identified a framework for how articles, which the President
determines, as part of the Administration's Export Control Reform
Initiative, no longer warrant control on the USML would be controlled
under the CCL. In this rule, however, the 0Y521 provisions are being
published in final form, with necessary corresponding changes, separate
from the other July 15 rule proposals. Public comments on the other
July 15 proposals remain under BIS review.

DATES: This rule is effective April 13, 2012.

FOR FURTHER INFORMATION CONTACT: Eileen Albanese, Director, Office of
National Security and Technology Transfer Controls, by phone at (202)
482-0092 or by email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Background

    On July 15, 2011, as part of the Administration's ongoing Export
Control Reform Initiative, the Bureau of Industry and Security (BIS)
published a proposed rule (76 FR 41958) (herein ``the July 15 proposed
rule'') that set forth a framework for how articles the President
determines, in accordance with section 38(f) of the Arms Export Control
Act (AECA) (22 U.S.C. 2778(f)), no longer warrant control on the United
States Munitions List (USML) instead would be controlled under the
Commerce Control List (CCL) in Supplement No. 1 to part 774 of the

Export Administration Regulations (EAR). With that proposed rule, BIS
also proposed establishing a new Export Control Classification Number
(ECCN) series, 0Y521, on the CCL, which would be equivalent to United
States Munitions List (USML) Category XXI (Miscellaneous Articles), but
with some limitations, and requested public comments thereon. The 0Y521
ECCN series will provide a mechanism for identifying and controlling
items that warrant export controls, but that are not yet categorized on
the CCL or USML, such as emerging technologies. It will provide a
temporary control category for such items, while the U.S. Government
works to adopt a control through the relevant multilateral regime(s);
to determine an appropriate longer-term control over the item; or
determines that the item does not warrant control on the CCL. With this
final rule, BIS adopts this proposal, with some modifications described
below, and makes corresponding necessary changes to the EAR.
    Consistent with the July 15 proposed rule, BIS is amending the EAR
to establish new ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521 and to make
corresponding changes. As proposed in the July 15 proposed rule, ECCN
0Y521 items will be subject to a nearly worldwide license requirement
(i.e., for every country except Canada) with a case-by-case license
review policy, through regional stability (RS Column 1) controls. The
U.S. Government will review the sensitivity of each potential ECCN
0Y521 item on a case-by-case basis and make a positive determination
regarding the sensitivity of each item.
    Items classified under ECCN 0Y521 will stay so-classified from the
date a final rule identifying the item is published in the Federal
Register amending the EAR for one year following the date of Federal
Register publication, unless the item is re-classified under a
different ECCN or the 0Y521 classification is extended. During this
time, the U.S. Government will determine whether it is appropriate to
submit a proposed control to the applicable export control regime
(e.g., the Wassenaar Arrangement) for potential multilateral control,
with the understanding that multilateral controls are preferable when
practical. An item's ECCN 0Y521 classification may be extended for two
one-year periods to provide time for the U.S. Government and
multilateral regime(s) to reach agreement on controls for the item. As
discussed in the July 15 preamble, the July 15 proposed rule allowed
for no more than two one-year extensions provided that the Departments
of Commerce, State and Defense made a consensus determination to seek
multilateral controls for the ECCN 0Y521 item and the U.S. Government
submitted a proposal to obtain multilateral controls over the item. As
described below under ``Changes from Proposed Rule,'' this final rule
clarifies that agencies will determine whether a multilateral control
is appropriate at the time that the items are classified under ECCN
0Y521. In addition, this final rule allows for further extension beyond
three years if the Under Secretary for Industry and Security makes a
determination that such extension is in the national security or
foreign policy interests of the United States. An extension or re-
extension, including a determination by the Under Secretary for
Industry and Security, will be published in the Federal Register.
    The U.S. Government's decision to identify an item as included in
ECCN 0Y521 is a classification based on a determination of whether the
item has significant military or intelligence advantage to the United
States or for foreign policy reasons, not a classification of the
item's technical characteristics. ECCN 0Y521 classifications are
excluded from the part 756 appeals process. Parties would nonetheless
be encouraged to provide to BIS information and comments about the item
and the ECCN 0Y521 controls on it.
    As proposed in the July 15 proposed rule, BIS is also adding a new
paragraph (a)(7) to Sec.  742.6 to describe the regional stability
reason for control that applies to items in the 0Y521 series, and is
adding a reference to ECCN 0Y521 items in the licensing policy
paragraph (b)(1) of the same section. The license review policy will be
used to evaluate on a case-by-case basis whether the export or reexport
could contribute directly or indirectly to any country's military
capabilities in a manner that would destabilize a region's military
balance contrary to the foreign policy interests of the United States.
    In the July 15 proposed rule, BIS proposed that no license
exceptions would be available for any item classified under the 0Y521
ECCN series other than License Exception GOV, if the item is within the
scope of Sec.  740.11(b)(2)(ii) (Items for official use by personnel
and agencies of the U.S. Government). A new Sec.  740.2(a)(14) is being
added to reflect this. As described below under ``Changes from Proposed
Rule,'' BIS will have the authority to apply additional license
exceptions on an item-specific basis at any time if the Departments of
Defense and State concur with such application.

Comments and Responses

    BIS received 43 public comments on the July 15 proposed rule, 19 of
which pertained to the ECCN 0Y521 series proposal. Summaries of those
comments and BIS Responses appear below. Similar comments are
consolidated. As noted above, the ECCN 0Y521 series proposal was
separated from the rest of the July 15 proposed rule for purposes of
this final rule; public comments received on issues other than the
0Y521 provisions remain under review separate from this final rule.

Purpose of Creating the 0Y521 ECCN Series

    Comment 1: Commenters generally were receptive to, or positive
toward, the proposed creation of the ECCN 0Y521 series. One commenter
expressed that the addition of the ECCN 0Y521 series is a feature of
the EAR long overdue and is consistent with the statutory requirements
of the Export Administration Act (EAA) to update the control list as
warranted.
    Response: BIS agrees the addition of the ECCN 0Y521 series will
play an important role on the CCL, along with helping to move forward
the Export Control Reform Initiative's goal of structurally aligning
the CCL and USML. The CCL is reviewed and updated on a continuous
basis, and the new ECCN 0Y521 series will aid in this process by
identifying those items where a temporary control is appropriate while
the U.S. Government identifies a permanent classification.
    Comment 2: Some commenters expressed concern that the proposed
three-year maximum that an item could be classified under ECCN 0Y521
was too long.
    Response: The July 15 proposed rule stated that items may be
classified under ECCN 0Y521 for a one-year period, which may be
extended for two one-year periods. This three-year period was intended
to provide sufficient time for the U.S. Government and its multilateral
regime partners to assess a particular item and determine its
appropriate classification. Shortening the maximum period would not
provide an adequate opportunity to consider, develop and implement
multilateral regime control for such items.
    In reviewing the timing associated with proposing multilateral
regime controls, BIS determined that, in fact, three years may, on rare
occasions, be insufficient to accomplish necessary multilateral
negotiations. To expedite that process, this final rule clarifies that
the United States will attempt to submit any proposals for 0Y521 items
to the

relevant multilateral regime for consideration of multilateral controls
during the initial one-year 0Y521 classification period or will
determine whether a different ECCN or EAR99 designation might be more
appropriate. In addition, consistent with the July 15 proposed rule,
this final rule generally limits extension to two additional one-year
periods, and such extensions may only be made provided that the U.S.
Government submitted a proposal to obtain multilateral controls over
the item. However, recognizing, inter alia, that there may be a need
for additional time for the U.S. Government and its multilateral regime
partners to review and discuss appropriate controls, this final rule
allows for additional extensions. The Under Secretary for Industry and
Security may further extend an ECCN 0Y521 control upon a determination
that such extension is in the national security or foreign policy
interests of the United States. This change is in keeping with the July
15 proposed rule's anticipation that time extensions may be necessary
to achieve multilateral controls. All extension and re-extensions,
including the determination by the Under Secretary for Industry and
Security, will be published in the Federal Register.
    In addition, the case-by-case license review policy for ECCN 0Y521
items will provide discretion to the U.S. Government to approve many
exports and reexports potentially affected by ECCN 0Y521
classification.
    Comment 3: Commenters cautioned that: classification should not be
overused; when used, the classification process should not be hindered
or protracted; and the classification process should only be used in
exceptional circumstances. Commenters further expressed concern that
because they believed that USML Category XXI, which the ECCN 0Y521
entries are designed to parallel, is ``vague and worrisome,'' the ECCN
0Y521 process will suffer from the same problems.
    Response: Although BIS cannot predict how often items will be
classified in ECCN 0Y521 entries, BIS will use this classification only
when the item has significant military or intelligence advantage to the
United States or foreign policy considerations warrant its use. Given
the breadth and scope of the USML and the CCL, BIS does not anticipate
that a large number of now EAR99 items will be listed on the CCL under
ECCN 0Y521. The ECCN 0Y521 series is a mechanism to impose license
requirements when needed within a transparent process and with stated
parameters of when an item would transition out of temporary ECCN 0Y521
classification. Each item's ECCN 0Y521 classification will expire one
year from the date of its initial ECCN 0Y521 classification, unless
specifically extended. As noted in response to the previous comment,
for items whose ECCN 0Y521 status is extended, such extension is
limited to two one-year periods, unless the Under Secretary for
Industry and Security makes a determination that it is in the national
security or foreign policy interests of the United States to further
extend the temporary ECCN 0Y521 controls. For additional discussion on
how ECCN 0Y521 items will be identified and the classification process
initiated, see BIS's response to Comment 4.
    With respect to concerns that the USML Category XXI process is, and
the ECCN 0Y521 process will be, ``vague and worrisome,'' the ECCN
0Y521-related provisions have been drafted to create as much
transparency for the public as possible. This final rule clarifies that
the U.S. Government will attempt to submit any proposals for items
classified under ECCN 0Y521 during the one-year classification period
or will determine whether a different ECCN or EAR99 designation might
be more appropriate. In addition, with this final rule, BIS has made
efforts to clarify that an extension of 0Y521 classification may only
occur for a second or third year, provided that the U.S. Government has
already submitted a proposal to obtain multilateral controls over the
item. Moreover, just as the State Department continues to improve the
substance and processes of export controls under the ITAR, BIS intends
to continue making the EAR increasingly effective, and welcomes public
comments on an ongoing basis.
    Comment 4: A commenter noted that BIS did not clearly explain
whether exporters have an affirmative requirement to seek a formal
determination regarding whether an item not listed on the CCL should be
subject to ECCN 0Y521 control. Related to that point, some commenters
seemed unsure about how the ECCN 0Y521 items would be identified and
the classification process initiated. One commenter recommended that
BIS add a new ECCN entry for the item if enough information about the
item is known, instead of classifying the item under an ECCN 0Y521
entry.
    Response: Neither the July 15 proposed rule nor this final rule
require exporters or reexporters to seek a determination from the U.S.
Government as to whether an item that is not identified on the CCL
should be classified as an ECCN 0Y521 item. If an item that is subject
to the EAR is not described in an ECCN on the CCL, including in an
existing ECCN 0Y521 entry, the item is an EAR99 item. As noted in the
July 15 rule, ECCN 0Y521 controls only become applicable once a final
rule is published in the Federal Register adding a description of such
an item to Supplement No. 5 to part 774.
    With regard to identifying new items to classify under ECCN 0Y521
entries, the U.S. Government is responsible for identifying such items.
Specifically, BIS, with the concurrence of the Departments of Defense
and State, will identify and classify items that warrant control under
0Y521 ECCNs. BIS also relies on input received from its Technical
Advisory Committees (TACs). As BIS drafts final rules to add additional
items to an ECCN 0Y521 classification, such rules will be reviewed by
the TACs, which will provide BIS an opportunity to receive industry
input on whether the items in question, including emerging
technologies, warrant control as an ECCN 0Y521 item.
    Finally, in response to the comment that a new ECCN entry specific
to an item at issue be added to the CCL if sufficient information is
known about the item, rather than temporarily classifying it as ECCN
0Y521, BIS believes for several reasons that use of ECCN 0Y521 will
better serve the purpose of identifying and ultimately classifying
emerging technologies and other items that may warrant control. ECCN
0Y521 advances the effort to streamline the CCL and simplify export and
reexport provisions, which are primary goals of the Administration's
ongoing Export Control Reform Initiative. Adding new ECCNs for each new
item would mean expanding the number of distinct ECCN entries on the
CCL, contrary to the goals of Export Control Reform Initiative. The
standard heading on the CCL for each ECCN 0Y521 entry, listed by
product group, immediately provides temporary classifications for items
that warrant control. Supplement No. 5 to part 774 describes the actual
items under the ECCN 0Y521 series and allows the public to more easily
access information about the 0Y521 items, i.e., the date of initial
classification or subsequent BIS classification of the item. Finally,
because the information is concentrated in Supplement No. 5, there are
no unnecessary amendments to the CCL.
    Comment 5: A commenter suggested that the phrase ``or for foreign
policy reasons'' be removed from the 0Y521 entry headings.
    Response: BIS believes the commenter's point was that items should
not be added to the 0Y521 ECCN

series for solely ``foreign policy'' reasons. BIS disagrees. An ECCN
0Y521 item that has significant military or intelligence advantage may
warrant worldwide or widespread controls. By including controls for
foreign policy reasons from the outset, BIS facilitates a broader basis
for control of ECCN 0Y521 items because such controls include both
multilateral and unilateral designations. Although the U.S. Government
would most likely work to obtain multilateral status for items
classified under the ECCN 0Y521 series, while the items are classified
under ECCN 0Y521, they will be subject to unilateral foreign policy-
based control (RS1) to secure control of the items in a timely manner
and thereby avoid an EAR99 designation. At this point and with this
final rule, items placed under 0Y521 ECCNs are controlled for RS1
reasons.

ECCN 0Y521 Control Entry Text

    Comment 6: Commenters recommended that BIS revise the heading for
the entry of a 0Y521 ECCN to name the particular group instead of using
the term ``item.''
    Response: BIS agrees. After reviewing comments indicating that it
would help public understanding of the ECCN 0Y521 provisions if product
group-specific terminology were used for each of the respective 0Y521
ECCNs (i.e., using ``commodity'' in 0A521 and 0B521, material in 0C521,
``software'' in 0D521 and ``technology'' in 0E521) rather than
``item,'' as was proposed in the July 15 rule, BIS accepted this
suggested change, which is included in the headings for ECCNs 0A521,
0B521, 0C521, 0D521 and 0E521 included in this final rule.
    Comment 7: A commenter suggested that ECCN 0Y521 items be listed in
ECCN 0A521, 0B521, 0C521, 0D521 and 0E521 entries instead of in the
proposed Supplement No. 5 to part 774 (Items Classified Under ECCNs
0A521, 0B521, 0C521, 0D521 and 0E521).
    Response: As discussed in the Response to Comment 4, in evaluating
how to structure the ECCN 0Y521 entries, BIS and the other agencies
participating in the Export Control Reform Initiative determined that
the Supplement No. 5 approach was a better alternative to adding
individual ECCNs to the CCL. Listing the items under the respective
entries would require adding 0Y521 ECCNs to each of the ten CCL
categories. This would mean instead of adding five ECCN 0Y521 entries
in the CCL, fifty ECCNs would be added to the CCL to account for all of
the potential future 0Y521 items. The CCL currently contains
approximately 500 ECCNs, so this alternative approach would have
increased by 10 percent the overall number of ECCNs on the CCL. While
BIS cannot affirmatively state how often items will be classified under
ECCN 0Y521, the number of items that will likely warrant control under
ECCN 0Y521 would not justify such a large expansion of ECCN entries.
Additionally, the table format contained in the new Supplement No. 5 to
part 774 has a structure that BIS believes makes it easy for the public
to identify when an item was originally classified as an ECCN 0Y521
item and when that classification will no longer apply.
    Comment 8: A commenter asserted that listing particular ECCN 0Y521
items in the respective ECCNs would permit deletion of proposed
Supplement No. 5 to part 774.
    Response: As noted above, BIS evaluated this option in developing
the proposed Supplement No. 5 to part 774 included in the July 15 rule,
along with the other related ECCN 0Y521 provisions. BIS agrees with the
commenter that if that change were accepted that the supplement could
be eliminated. However, for the reasons noted above in response to
Comment 7, BIS decided against adopting such an approach.
    Comment 9: With respect to the proposed ECCN 0Y521 heading stating
that an item may be classified in a ECCN 0Y521 entry because it
provides ``at least a significant military or intelligence advantage to
the United States,'' a commenter described the use of the term
``advantage'' as too subjective and added that the term sets a higher
bar than the term ``advance'' to determine whether items would be
classified under 0Y521 ECCNs.
    Response: BIS agrees there is some degree of interpretation
required in applying the standard ``significant military or
intelligence advantage to the United States,'' but does not agree that
a more expansive term such as ``advance'' would be appropriate. BIS's
intent is to create a fairly high threshold for an item to warrant
control in the ECCN 0Y521 series, and for that reason the term
advantage is appropriate. Ultimately, it is the U.S. Government that
will determine whether the criteria for classifying an item under a
0Y521 ECCN have been met, but BIS's intent is to limit ECCN 0Y521
classification to those items that truly warrant the temporary
classification.

License Requirements and Related Policies for ECCNs 0Y521

    Comment 10: A commenter expressed confusion about the purpose and
scope of the proposed ECCN 0Y521 series in relation to the items that
would be listed in Supplement No. 5 to part 774. That commenter
recommended that BIS edit or expand proposed Sec.  742.6(a)(7) (RS
Column 1 license requirements and related policies for `0Y521') to
clarify that the list of items determined to be classified under ECCN
0Y521 is limited to those proposed to be enumerated in Supplement No. 5
to part 774.
    Response: As noted above, only those items listed in Supplement No.
5 to part 774 are classified under ECCN 0Y521 on the CCL. To make this
explicit, BIS is revising paragraph (a)(7) as suggested in the comment.
    Comment 11: A commenter stated that Sec.  742.6(a)(7) (RS Column 1
license requirements and related policies for `0Y521') should be
revised to clarify that it is consistent with the foreign availability
provisions in Section 4(c) of the Export Administration Act (EAA), 50
U.S.C. app. Sec.  2403(c) (2000), regarding the imposition of
unilateral controls.
    Response: BIS intends that classifications of the ECCN 0Y521 items
will be consistent with the foreign availability provisions of the EAA.
Accordingly, no changes are necessary to the rule at this time.
    Comment 12: A commenter stated that license exception eligibility
should be added to conform with ITAR exemptions available for items in
parallel ITAR Category XXI.
    Response: In the July 15 proposed rule, BIS proposed that items
classified under the ECCN 0Y521 series would be eligible only for
License Exception GOV (Sec.  740.11(b)(2)(ii)). After reviewing the
public comments, BIS has determined that additional license exception
eligibility may be warranted for certain items that may be classified
under ECCN 0Y521, but this additional license exception eligibility
should be determined at the time an item is added to Supplement No. 5
to part 774 of the EAR. As such, BIS is revising the language of
Section 740.2(a)(14) (Restrictions on all License Exceptions) and
adding a clarifying note to that paragraph, as described above.
    In terms of a parallel to the ITAR, as items falling under the ECCN
0Y521 series will not be defense articles being moved from the USML to
the CCL, an ITAR parallel is unnecessary. The ECCN 0Y521 series is not
part of the proposed ``600 series,'' informally known as the Commerce
Munitions List inside the larger CCL.
    Finally, in terms of adding license exception authorizations, BIS
is conducting a comprehensive evaluation of the ITAR exemptions to
determine if the EAR should be revised to add any

exceptions available in the ITAR for defense articles. This review is
ongoing, and any changes would be published in separate rulemaking
notices.
    Comment 13: One commenter encouraged BIS to contact exporters
before adding any new ECCN 0Y521 item to the CCL. According to the
commenter, consulting with companies or the industry that created the
technology in question or that have the greatest expertise about the
technology would ensure that accurate information is considered before
an item is classified under an 0Y521 ECCN. Similarly, one commenter
stated that 0Y521 ECCN classifications should be appealable.
    Response: BIS understands the rationale behind these comments.
However, BIS is unable to implement the suggestion for a number of
reasons. First, in terms of fairness and regulatory rulemaking
requirements, if BIS were to contact and notify select companies or
individuals in drafting a new control without providing the same
opportunity to the entire public, one group of interested persons may
be disadvantaged over another. This result would be unfair and
inconsistent with the legal requirements of the Administrative
Procedure Act (APA), 5 U.S.C. 551-559. However, as explained in
response to a previous comment, BIS, as a matter of practice, consults
with the TACs as final rules are drafted to classify items under 0Y521
ECCNs. The rule also does not prohibit any party from sending
information to BIS about the item or comments about a control that was
imposed on it. Also as noted above, such rules classifying items under
ECCN 0Y521 would not be published as proposed rules because of the harm
that would likely be done to U.S. national security interests if
exporters and reexporters were given advance notice of future licensing
requirements for items such as emerging technologies that warranted
controls.
    Regarding the appealability of ECCN 0Y521 classifications, as noted
in the preamble of the July 15 proposed rule, the United States
Government's decision to identify an item as classified under an 0Y521
ECCN is based on whether the item has significant military or
intelligence advantage to the United States or a foreign policy reason,
not a technical classification. Under Sec.  756.1(a)(1), listing items
in Supplement No. 5 to part 774 would be excluded from the part 756
appeals process. However, as stated in Sec.  756.1(a)(1), the EAR
provides that the public may submit a request to amend, revoke, or
appeal a regulation at any time. As such, the public has an opportunity
to provide input to BIS as soon as an ECCN 0Y521 classification is
made. Given the limited duration that an item is likely to be
classified under an 0Y521 ECCN, and the fact that BIS cannot classify
items under an 0Y521 ECCN without the consensus of the Departments of
State and Defense, the public may find it more useful to focus any
comments after a regulation identifies a new item in Supplement No. 5
to part 774 on how an ECCN 0Y521 item should be permanently classified
on the CCL.
    Comment 14: A commenter stated that it would be appropriate to
impose RS1 controls on ECCN 0Y521 items, provided that RS1 controls
apply only to ``600 series'' items not yet controlled by multilateral
agreement. However, the commenter added, subsequent relocation on the
CCL for such items, if and when multilateral agreement is reached on
how the ECCN 0Y521 items should be controlled permanently, should be
made effective in a timely fashion to reduce unwarranted licensing
burdens.
    Response: As noted above, the ECCN 0Y521 series is not part of the
``600 series,'' which was initially proposed in the July 15 proposed
rule. As such, reasons to control items classified under ECCN 0Y521
entries are not related to reasons to control proposed ``600 series''
items. ECCN 0Y521 classifications are temporary; if a permanent
classification for an ECCN 0Y521 item is identified, the ECCN 0Y521
item would be re-classified under an existing, but revised, ECCN or a
new ECCN and would thus no longer be subject to ECCN 0Y521 controls.
Any ECCN 0Y521 items that are later added to multilateral control lists
would be re-classified at the time a final rule is published
implementing that change to the multilateral regime's control list by
adding the items to the CCL. Alternatively, ECCN 0Y521 controls may
expire if an extension or re-classification does not occur before the
date identified for the items in Supplement No. 5 to part 774 entry, at
which point the item would return to being an EAR99 item. An item's
ECCN 0Y521 classification may be extended for two one-year periods, the
requirements for which are described in BIS's response to Comment 2.
Further extension may occur only if the Under Secretary for Industry
and Security makes a determination that an extension is in the national
security or foreign policy interests of the United States. Any
extension or re-extension of an ECCN 0Y521 item will be published in
the Federal Register.
    Comment 15: Another commenter recognized the usefulness of a 0Y521
ECCN series and appreciates the careful consideration of how items
should move out of the 0Y521 ECCN classification and into positive
existing ECCNs or EAR99 designation in a consistent and timely fashion.
However, the commenter also expressed concern with the proposal to
include emerging technologies in the 0Y521 series of ECCNs, given the
potential to capture technologies that are the product of university
fundamental research activity. The commenter suggests that BIS clarify
and open to the public prior to publication in a final rule the
criteria for including items and technologies in the new 0Y521 ECCNs.
    Response: Items classified in 0Y521 ECCNs by definition would only
be items subject to the EAR. If an item were not subject to the EAR--
such as technology that arises during, or results from, fundamental
research, as described in Sec.  734.8 of the EAR--then it would not be
subject to the EAR. BIS will have the authority to control items under
0Y521 ECCNs if (i) they are not already controlled on the CCL or the
USML and (ii) BIS determines that they provide at least a significant
military or intelligence advantage to the United States or there is a
foreign policy reason for controlling the item. Emerging technologies
of concern that are subject to the EAR are likely to be items whose
technological innovation outpaces existing CCL or USML controls. The
CCL is constructed as a positive control list, so if an item is subject
to the EAR, but not identified in an ECCN, the USML, or the controls of
another government agency such as the Department of Energy, it is an
EAR99 item. The 0Y521 ECCNs are intended to provide BIS the authority
to impose quickly a license requirement on otherwise uncontrolled items
in a transparent way for a limited period. During that period, BIS and
its interagency partners will work with the relevant multilateral
export control regime(s) to determine what, if any, more lasting
controls are appropriate for the item. Items that the U.S. Government
determines are more appropriately captured under the United States
Munitions List (USML) Category XXI (Miscellaneous Articles) or other
USML control, which are identified as part of the 0Y521 review will be
controlled as such.

Publication of ECCN 0Y521 Classifications

    Comment 16: One commenter recommended that BIS consult with the
appropriate TACs on the process to determine descriptions for
Supplement No. 5 to part 774.

    Response: As noted above, BIS plans to consult with the TACs to
identify the appropriate descriptions to be added to Supplement No. 5
to part 774 for ECCN 0Y521 items.
    Comment 17: A commenter observed that identification of software
and technology based on its model or a broader descriptor may present
situations in which descriptions will need to be performance-based.
    Response: The CCL has many software and technology ECCNs classified
under product groups D and E. Although the item descriptor column in
Supplement No. 5 to part 774 will be in a table format, the expertise
BIS has in describing software and technology in other parts of the CCL
will be relied on to ensure objective identification of software and
technology in this Supplement. Other ECCNs on the CCL have identified
items by model number, such as the QRS11-00100-100/101 and QRS11-00050-
443569 Micromachined Angular Rate Sensors classified under ECCN 7A994.
    Comment 18: A commenter asked what BIS anticipates will be the
potential risk to industry of positively and publicly identifying items
via Supplement No. 5 to part 774.
    Response: Supplement No. 5 to part 774 will not disclose any
proprietary information regarding the items classified therein. In
addition, in most cases BIS will seek, with the assistance of the TACs,
to identify items by a broader descriptor that need not be company
specific.
    Comment 19: One commenter disagrees with using a model number or a
broader descriptor that is not necessarily company-specific for the
ECCN 0Y521 items. The commenter adds that common nomenclatures and
standards are used across industries, which might result in an overly
generic and therefore confusing descriptor. Yet, in trying to avoid
confusion, the commenter believes BIS still would need to avoid
publishing company proprietary information.
    Response: As noted in the BIS Response to Comment 18, the
identification of an item in Supplement No. 5 to part 774 will not
disclose any proprietary information regarding the item. BIS will seek,
with the input of the TACs, to specifically enumerate the ECCN 0Y521
items as ``positively'' as possible. Also as noted above, where
possible, BIS will seek to identify items by general descriptors, but
these descriptors will need to be objective and avoid the potential
pitfalls identified in this comment. This concern is not specific to
Supplement No. 5, and is an issue that BIS and the multilateral export
control regimes confront whenever a control parameter is written. BIS
is confident that general descriptors can be developed and where a
model number needs to be used, such as is the case in ECCN 7A994, that
such descriptors will adequately define ECCN 0Y521 items.
    Although the Export Administration Act expired on August 20, 2001,
the President, through Executive Order 13222 of August 17, 2001, 3 CFR,
2001 Comp., p. 783 (2002), as extended by the Notice of August 12,
2011, 76 FR 50661 (August 16, 2011), has continued the Export
Administration Regulations in effect under the International Emergency
Economic Powers Act. BIS continues to carry out the provisions of the
Export Administration Act, as appropriate and to the extent permitted
by law, pursuant to Executive Order 13222.
    This action is taken after consultation with the Secretary of
State. BIS submitted a foreign policy report to the Congress indicating
the imposition of new foreign policy controls on March 26, 2012.

Changes From Proposed Rule

    The ECCN 0Y521 proposal set forth in the July 15 proposed rule is
mainly unchanged in this final rule. However, in response to public
comments, BIS has changed its approach to the circumstances and length
of time an item may be controlled under ECCN 0Y521 and the availability
of license exceptions for items classified under 0Y521 ECCNs. BIS has
also made conforming changes to the EAR to clarify the ECCN 0Y521
series.
    In the July 15 proposed rule, BIS proposed a mechanism for
situations in which an item that warrants control is not controlled
yet. The July 15 proposed rule proposed a three-year maximum control
period for ECCN 0Y521 items, during which the initial one-year period
would only be extended if the Departments of Commerce, State and
Defense made a consensus determination to seek multilateral controls
for the ECCN 0Y521 item and the U.S. Government submitted a proposal to
obtain multilateral controls over the item. This final rule clarifies
that the Departments of Commerce, State and Defense will decide whether
to seek multilateral controls at the same time that the agencies
consider classifying the item as an ECCN 0Y521 item. Consistent with
the July 15 preamble, a second or third-year extension would still
require that the United States has submitted a proposal for
multilateral control for the ECCN 0Y521 item to the relevant
multilateral regime. While the requirement to submit a proposal for
extension for one or more one-year periods was identified in the
preamble to the July 15 proposed rule, with this final rule, BIS has
incorporated into revised Section 742.6(a)(7)(iii) the circumstances in
which an item's ECCN 0Y521 classification may be extended for a second
or third year.
    In contrast to the proposed rule, this final rule also establishes
the potential for further extension of ECCN 0Y521 controls beyond three
years for a specific item if the Under Secretary for Industry and
Security makes a determination that such extension is in the national
security or foreign policy interests of the United States. Any
extension or re-extension, including a determination by the Under
Secretary for Industry and Security will be published in the Federal
Register. As discussed in the ``Comments and Response'' section above,
allowing for potential additional extensions is necessary to provide
sufficient time for BIS and its interagency partners to work with the
relevant multilateral export control regime(s) to determine what, if
any, controls are appropriate for the item. Regulatory provisions
related to this extension are set forth in revised Sec.
742.6(a)(7)(iii).
    Although License Exception GOV, set forth in Sec.
740.11(b)(2)(ii), remains the only license exception identified at this
time for all items classified in ECCN 0Y521, in contrast to the July 15
proposed rule, this final rule establishes the potential availability
of additional license exceptions on an item-specific basis. To
implement this change, in this final rule BIS adds a fourth column
identified as ``Item-specific License Exceptions'' to Supplement No. 5
to part 774. To conform with that change, BIS also includes in this
final rule a revision to Sec.  740.2(a)(14) that differs from the
proposed rule. In the July 15 proposed rule, that paragraph stated a
restriction on all license exceptions for items designated as 0Y521,
except for License Exception GOV (Sec.  740.11(b)(ii)). In this final
rule, paragraph (a)(14) specifies that the only license exceptions that
may be used to authorize items designated as 0Y521 are GOV (Sec.
740.11(b)(2)(ii)) or an item-specific license exception identified in
Supplement No. 5 to part 774 for a particular ECCN 0Y521 item. This
final rule also adds a new Note to paragraph (a)(14) of Sec.  740.2 to
indicate that license exception availability is specific to each ECCN
0Y521 entry in Supplement No. 5 to part 774 and may not be used for any
other ECCN 0Y521 entries in the supplement. At the time the U.S.

Government makes a determination that items are classified under ECCNs
0A521, 0B521, 0C521, 0D521 or 0E521, the U.S. Government will specify
whether any license exceptions in addition to License Exception GOV
will be available. BIS also amends ECCN 0Y521 control entry text
appearing in Supp. No. 1 to part 774 of the EAR to reflect that other
license exceptions may be eligible for particular items. If there are
additional license exceptions, they will be listed in Supplement No. 5
to part 774 under each designated item. In a corresponding change, to
provide guidance about the applicability of licensing exceptions, BIS
also adds paragraph (a)(14) and a note to paragraph (a)(14) to Sec.
740.2.
    BIS incorporated a recommendation to use product group-specific
terminology for each of the respective 0Y521 ECCNs (i.e., using the
term ``commodity'' in 0A521 and 0B521, material in 0C521 (as defined in
the July 15 proposed rule), ``software'' in 0D521 and ``technology'' in
0E521), rather than ``item,'' as was proposed in the July 15 rule. The
change has been made to the headings for ECCNs 0A521, 0B521, 0C521,
0D521 and 0E521 in this final rule.
    Finally, to correspond with establishing the ECCN 0Y521 provisions,
BIS is making other changes that are necessary to provide guidance to
the public about these provisions, the applicability of licensing
exceptions, and to make locating those provisions easier. To identify
the 0Y521 ECCN series as within the scope of the EAR and primary
provisions for the series, BIS amends: Sec.  732.3 (Steps regarding the
ten general prohibitions) by adding paragraph (b)(4); Sec.  734.3
(Items Subject to the EAR) by revising paragraph (c); Sec.  738.1(a)
(Introduction--Commerce Control List Scope) by adding paragraph (a)(3);
and Sec.  774.1 by adding a new paragraph to the Introduction.

Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget (OMB).
    2. Notwithstanding any other provision of law, no person is
required to respond to, nor is subject to a penalty for failure to
comply with, a collection of information, subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid OMB
control number. This rule affects two approved collections: (1) The
Simplified Network Application Processing + System (control number
0694-0088), which carries a burden hour estimate of 43.8 minutes,
including the time necessary to submit license applications, among
other things, as well as miscellaneous and other recordkeeping
activities that account for 12 minutes per submission. BIS does not
believe that this rule will materially increase the number of
submissions under this collection. (2) License Exceptions and
Exclusions (0694-0137). BIS cannot at this point describe or estimate
the items that may be classified under the new 0Y521 ECCN series.
    3. This rule does not contain policies with Federalism implications
as that term is defined under E.O. 13132.
    4. The Chief Counsel for Regulation of the Department of Commerce
has certified to the Chief Counsel for Advocacy of the Small Business
Administration that the proposed rule, if adopted in final form, would
not have a significant economic impact on a substantial number of small
entities. The basis for that certification was published in the
preamble to the proposed rule and is not repeated here. BIS received no
comments regarding the certification. As a result, a final regulatory
flexibility analysis is not required and none has been prepared.
    5. BIS finds good cause to waive the requirement of 5 U.S.C.(d)(3)
that this rule's effectiveness be delayed 30 days from its publication
in the Federal Register. Delaying the rule's effectiveness for 30 days
is unnecessary and contrary to the public interest. The delay is
unnecessary because the rule is non-substantive and has no external
impact. The agency is essentially inserting an empty box to be filled
as items warranting export control under the CCL are identified. The
rule adds no new requirements or burdens on the public, which need not
take any action as a result of this rule to comply with its terms. In
addition, a delay in effectiveness is contrary to the public interest,
because additional delay would prevent the identification and addition
of items to the CCL, which in turn could inhibit the public's ability
to obtain export licenses for these items and potentially require the
public to seek licenses under the USML licensing process during the
period of delay. This rule, therefore, is effective upon publication in
the Federal Register.

List of Subjects

15 CFR Parts 732 and 740

    Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.

15 CFR Part 734

    Administrative practice and procedure, Exports, Inventions and
patents, Research science and technology.

15 CFR Part 738

    Exports.

15 CFR Part 742

    Exports, Terrorism.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

    Accordingly, parts 732. 734, 738, 740, 742 and 774 of the Export
Administration Regulations (15 CFR parts 730-774) are amended as
follows:

PART 732--[AMENDED]

0
1. The authority citation for 15 CFR part 732 continues to read as
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66
FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 12, 2011, 76
FR 50661 (August 16, 2011).

0
2. Amend Sec.  732.3 by adding paragraph (b)(4) to read as follows:

Sec.  732.3  Steps regarding the ten general prohibitions.

* * * * *
    (b) * * *
    (4) Items subject to temporary CCL controls are classified under
the ECCN 0Y521 series (i.e., 0A521, 0B521, 0C521, 0D521 and 0E521)
pursuant to Sec.  742.6(a)(7) of the EAR while a determination is being
made as to whether classification under a revised or new ECCN or EAR99
designation is appropriate .
* * * * *

PART 734--[AMENDED]

0
3. The authority citation for 15 CFR part 734 continues to read as
follows:

    Authority:  50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61

FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of August 12, 2011, 76 FR 50661 (August 16, 2011);
Notice of November 9, 2011, 76 FR 70319 (November 10, 2011).

0
4. Revise paragraph (c) of Sec.  734.3 to read as follows:

Sec.  734.3  Items subject to the EAR.

* * * * *
    (c) ``Items subject to the EAR'' consist of the items listed on the
Commerce Control List (CCL) in part 774 of the EAR and all other items
which meet the definition of that term. For ease of reference and
classification purposes, items subject to the EAR which are not listed
on the CCL are designated as ``EAR99.'' Items subject to temporary CCL
controls are classified under the ECCN 0Y521 series (i.e., 0A521,
0B521, 0C521, 0D521, and 0E521) pursuant to Sec.  742.6(a)(7) of the
EAR, while a determination is made as to whether classification under a
revised or new ECCN, or an EAR99 designation, is appropriate.
* * * * *

PART 738--[AMENDED]

0
5. The authority citation for 15 CFR part 738 continues to read as
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42
U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of August 12, 2011, 76 FR 50661 (August 16, 2011).

0
6. Amend Sec.  738.1 by adding paragraph (a)(3) to read as follows:

Sec.  738.1  Introduction.

    (a) * * *
    (3) Items that warrant control for export or reexport but currently
are not permanently classified on the CCL. Items subject to temporary
CCL controls are classified under the ECCN 0Y521 series (i.e., 0A521,
0B521, 0C521, 0D521, and 0E521) pursuant to Sec.  742.6(a)(7) of the
EAR while a determination is made as to whether classification under a
revised or new ECCN, or an EAR99 designation, is appropriate.
* * * * *

PART 740--[AMENDED]

0
7. The authority citation for 15 CFR part 740 continues to read as
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp.,
p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice
of August 12, 2011, 76 FR 50661 (August 16, 2011).

Sec.  740.2  [Amended]

0
8. Amend Sec.  740.2 by
0
a. Adding and reserving paragraphs (a)(12) and (a)(13);
0
b. Adding paragraph (a)(14); and
0
c. Adding a note to paragraph (a)(14), to read as follows:

Sec.  740.2  Restrictions on all License Exceptions.

    (a) * * *
    (12) [Reserved]
    (13) [Reserved]
    (14) Items classified under ECCNs 0A521, 0B521, 0C521, 0D521 and
0E521 may only be authorized by License Exception GOV (Sec.
740.11(b)(2)(ii)) or an item-specific license exception identified in
Supplement No. 5 to part 774 for a particular ECCN 0Y521 item.
    Note to Paragraph (a)(14): Item-specific license exception
availability is specific to each ECCN 0Y521 entry in Supplement No. 5
to part 774 and may not be used for any other ECCN 0Y521 entries in the
Supplement. The U.S. Government makes a determination at the time items
are classified under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521
regarding whether any license exceptions will be available, in addition
to License Exception GOV (Sec.  740.11(b)(2)(ii)).
* * * * *

PART 742--[AMENDED]

0
9. The authority citation for 15 CFR part 742 continues to read as
follows:

    Authority:  50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61
FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of August 12, 2011, 76 FR 50661 (August 16, 2011);
Notice of November 9, 2011, 76 FR 70319 (November 10, 2011).

0
10. Amend Sec.  742.6 by
0
a. Adding paragraph (a)(7), and
0
b. Revising the first sentence of paragraph (b)(1), to read as follows:

Sec.  742.6  Regional stability.

    (a) * * *
    (7) RS Column 1 license requirements and related policies for ECCN
0Y521 items.
    (i) Scope. This paragraph (a)(7) supplements the information in the
0Y521 ECCNs and in Supplement No. 5 to part 774 (Items Classified Under
ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521). This paragraph alerts
exporters, reexporters and transferors to the procedures that apply to
items classified under the 0Y521 ECCNs.
    (ii) 0Y521 Items. Items subject to the EAR that are not listed
elsewhere in the CCL, but which the Department of Commerce, with the
concurrence of the Departments of Defense and State, has determined
should be controlled for export because the items provide at least a
significant military or intelligence advantage to the United States or
for foreign policy reasons are classified under ECCNs 0A521, 0B521,
0C521, 0D521 and 0E521. These items are typically emerging technologies
(including emerging commodities, software and technology) that are not
yet included in the CCL, so such items are listed on the CCL in 0Y521
ECCNs while the U.S. Government determines whether classification under
a revised or new ECCN, or an EAR 99 designation, is appropriate. The
list of items classified under a 0Y521 ECCN is limited to those listed
in Supplement No. 5 to part 774.
    (iii) Requirement to be classified under another ECCN within one
calendar year of classification under ECCN 0Y521. Items classified
under an ECCN 0Y521 entry must be re-classified under another ECCN
within one calendar year from the date they are listed in Supplement
No. 5 to part 774 of the EAR. If such re-classification does not occur
within that period, classification under an ECCN 0Y521 entry expires,
and such items are designated as EAR99 items unless either the CCL is
amended to impose a control on such items under another ECCN or the
ECCN 0Y521 classification is extended. BIS may extend an item's ECCN
0Y521 classification for two one-year periods, provided that the U.S.
Government has submitted a proposal to the relevant multilateral
regime(s) to obtain multilateral controls over the item. Further
extension beyond three years may occur only if the Under Secretary for
Industry and Security makes a determination that such extension is in
the national security or foreign policy interests of the United States.
Any extension or re-extension of control of an ECCN 0Y521 item,
including the determination by the Under Secretary, shall be published
in the Federal Register.
    (b) Licensing policy. (1) Applications for exports and reexports
described in paragraph (a)(1), (a)(2), (a)(6) or (a)(7) of this section
will be reviewed on a case-by-case basis to determine whether the
export or reexport could contribute directly or indirectly to any
country's

military capabilities in a manner that would alter or destabilize a
region's military balance contrary to the foreign policy interests of
the United States. * * *
* * * * *

PART 774--[AMENDED]

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

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et
seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42
U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of August 12, 2011, 76 FR 50661 (August 16, 2011).

0
12. Revise Sec.  774.1 to read as follows:

Sec.  774.1  Introduction.

    (a) In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C. The Bureau of Industry and Security (BIS)
maintains the Commerce Control List (CCL) that describes items (i.e.,
commodities, software, and technology) subject to the jurisdiction of
the EAR. The CCL does not include those items exclusively controlled
for export by another department or agency of the U.S. Government. In
instances where other agencies administer controls over related items,
entries in the CCL will contain a reference to these controls. Those
items subject to the EAR but not specified on the CCL are identified by
the designator ``EAR99.'' See Sec.  734.2(a) of the EAR for items that
are ``subject to the EAR.'' You should consult part 738 of the EAR for
an explanation of the organization of the CCL and its relationship to
the Country Chart.
    (b) Items that warrant control on the CCL, but for which a
classification has yet to be determined, are temporarily classified
under one of the 0Y521 ECCNs (i.e., 0A521, 0B521, 0C521, 0D521 or
0E521), according to their respective product group, pursuant to Sec.
742.6(a)(7) of the EAR, while a determination is made as to whether
classification under a revised or new ECCN, or an EAR99 designation, is
appropriate. The technical description and list of such items appear in
Supplement No. 5 to part 774--Items Classified Under ECCNs 0A521,
0B521, 0C521, 0D521 and 0E521. Items that the U.S. Government
determines are more appropriately captured under the United States
Munitions List (USML) Category XXI (Miscellaneous Articles) or other
USML control, as part of the 0Y521 review process will be controlled as
such.
    (c) The CCL is contained in Supplement No. 1 to this part, and
Supplement No. 2 to this part contains the General Technology and
Software Notes relevant to entries contained in the CCL.

0
13. In Supplement No. 1 to part 774 (the Commerce Control List),
Category 0--Nuclear Materials, Facilities, and Equipment (and
Miscellaneous Items), is amended by:
0
a. Adding Export Control Classification Number (ECCN) 0A521 after ECCN
0A018 and before ECCN 0A918,
0
b. Adding ECCN 0B521 after ECCN 0B006 and before ECCN 0B986;
0
c. Adding ECCN 0C521 after ECCN 0C201 and before the header that reads
``D. Software'';
0
d. Adding ECCN 0D521 after ECCN 0D001 and before ECCN 0D999; and
0
e. Adding ECCN 0E521 after ECCN 0E018 and before ECCN 0E918, to read as
follows:

SUPPLEMENT NO. 1 TO PART 774--THE COMMERCE CONTROL LIST

CATEGORY 0--NUCLEAR MATERIALS, FACILITIES, AND EQUIPMENT [AND
MISCELLANEOUS ITEMS]

A. SYSTEMS, EQUIPMENT AND COMPONENTS

* * * * *

0A521 Any commodity subject to the EAR that is not listed elsewhere in
the CCL, but which is controlled for export because it provides at
least a significant military or intelligence advantage to the United
States or for foreign policy reasons.

    0A521 commodities are subject to RS1 controls with no license
exception eligibility other than License Exception GOV for U.S.
Government personnel and agencies under Sec.  740.11(b)(2)(ii) of
the EAR, or an item-specific license exception identified in
Supplement No. 5 to part 774 particular to an item covered under
ECCN 0A521. The list of commodities determined to be classified
under ECCN 0A521 controls is published in Supplement No. 5 to part
774. The license requirements and licensing policy relating to ECCN
0A521 are set forth in Sec.  742.6(a)(7) of the EAR.
* * * * *

B. TEST, INSPECTION AND PRODUCTION EQUIPMENT

* * * * *

0B521 Any commodity subject to the EAR that is not listed elsewhere in
the CCL, but which is controlled for export because it provides at
least a significant military or intelligence advantage to the United
States or for foreign policy reasons.

    0B521 commodities are subject to RS1 controls with no license
exception eligibility other than License Exception GOV for U.S.
Government personnel and agencies under Sec.  740.11(b)(2)(ii) of
the EAR, or an item- specific license exception identified in
Supplement No. 5 to part 774 particular to an item covered under
ECCN 0B521. The list of commodities determined to be classified
under ECCN 0B521 controls is published in Supplement No. 5 to part
774. The license requirements and licensing policy relating to ECCN
0B521 are set forth in Sec.  742.6(a)(7) of the EAR.
* * * * *

C. MATERIALS

* * * * *

0C521 Any material subject to the EAR that is not listed elsewhere in
the CCL, but which is controlled for export because it provides at
least a significant military or intelligence advantage to the United
States or for foreign policy reasons.

    0C521 materials are subject to RS1 controls with no license
exception eligibility other than License Exception GOV for U.S.
Government personnel and agencies under Sec.  740.11(b)(2)(ii) of
the EAR, or an item-specific license exception identified in
Supplement No. 5 to part 774 particular to an item covered under
ECCN 0C521. The list of materials determined to be classified under
ECCN 0C521 controls is published in Supplement No. 5 to part 774.
The license requirements and licensing policy relating to ECCN 0C521
are set forth in Sec.  742.6(a)(7) of the EAR.
* * * * *

D. SOFTWARE

* * * * *

0D521 Any software subject to the EAR that is not listed elsewhere in
the CCL, but which is controlled for export because it provides at
least a significant military or intelligence advantage to the United
States or for foreign policy reasons.

    0D521 software is subject to RS1 controls with no license
exception eligibility other than License Exception GOV for U.S.
Government personnel and agencies under Sec.  740.11(b)(2)(ii) of
the EAR, or an item-specific license exception identified in
Supplement No. 5 to part 774 particular to an item covered under
ECCN 0D521. The list of software determined to be classified under
ECCN 0D521 controls is published in Supplement No. 5 to part 774.
The license requirements and licensing policy relating to ECCN 0D521
are set forth in Sec.  742.6(a)(7) of the EAR.
* * * * *

E. TECHNOLOGY

* * * * *

0E521 Any technology subject to the EAR that is not listed elsewhere in
the CCL, but which is controlled for export because it provides at
least a significant military or intelligence advantage to the United
States or for foreign policy reasons.

    0E521 technology is subject to RS1 controls with no license
exception eligibility other than License Exception GOV for U.S.

Government personnel and agencies under Sec.  740.11(b)(2)(ii) of
the EAR, or an item-specific license exception identified in
Supplement No. 5 to part 774 particular to an item covered under
ECCN 0E521. The list of technologies determined to be classified
under ECCN 0E521 controls is published in Supplement No. 5 to part
774. The license requirements and licensing policy relating to ECCN
0E521 are set forth in Sec.  742.6(a)(7) of the EAR.
* * * * *

0
14. Add and reserve Supplement No. 4 to part 774 to read as follows:

SUPPLEMENT NO. 4 TO PART 774--[RESERVED]

0
15. Add Supplement No. 5 to part 774 to read as follows:

SUPPLEMENT NO. 5 TO PART 774--ITEMS CLASSIFIED UNDER ECCNS 0A521,
0B521, 0C521, 0D521 AND 0E521

    The following table lists items subject to the EAR that are not
listed elsewhere in the CCL, but which the Department of Commerce, with
the concurrence of the Departments of Defense and State, has identified
warrant control for export or reexport because the items provide at
least a significant military or intelligence advantage to the United
States or for foreign policy reasons.

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

------------------------------------------------------------------------
Item descriptor.   Date of initial    Date when the     Item-specific
Note: The           or subsequent      item will be      license
 description must   BIS                designated        exception
 match by model     classification.    EAR99, unless     eligibility.
 number or a                           reclassified in
 broader                               another ECCN or
 descriptor that                       the 0Y521
 does not                              classification
 necessarily need                      is reissued.
 to be company
 specific.
1. [Reserved]
2. [Reserved]
------------------------------------------------------------------------

    Dated: April 9, 2012.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2012-8944 Filed 4-12-12; 8:45 am]
BILLING CODE 3510-33-P