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Rule

Revisions of Export Licensing Jurisdiction of Certain Types of Energetic Material and Other Chemicals Based on Review of the United States Munitions List

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AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Export Administration Regulations (EAR) to implement decisions to move export licensing jurisdiction of certain types of energetic materials and other chemicals from the Department of State, Directorate of Defense Trade Controls (DTC), to the Department of Commerce, Bureau of Industry and Security (BIS), and to move such jurisdiction for other chemicals from BIS to DTC.

DATES:

This rule is effective July 19, 2004.

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FOR FURTHER INFORMATION CONTACT:

Robert Teer at (202) 482-4749 for questions concerning changes to Export Control Classification Numbers (ECCN) 1C018 and 1C992; Steve Clagett (202) 482-1461 for questions concerning coverage of guanidine nitrate or nitroguanidine under ECCN 1C011; Joan Roberts (202) 482-4252 for questions concerning the coverage of liquid pepper in ECCN 1A984; Scott Hubinger at (202) 482-5223, for questions concerning changes to ECCNs 1C350, 1C355, and 1C395, and related changes in parts 742 and 770; and William Arvin Start Printed Page 42863at (202) 482-2440 for other questions about this rule.

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SUPPLEMENTARY INFORMATION:

Background

This rule, along with a complementary rule published by the Department of State (67 FR 70839, November 27, 2002) (hereinafter “November 27 rule”), implements decisions reached in an ongoing review of the United States Munitions List (USML) that is part of the Defense Trade Security Initiative. That initiative, announced on May 24, 2000 at a NATO ministerial meeting by the Secretary of State, includes annual review of portions of the USML with the objective of reviewing the entire list every four years. This rule adds some chemicals formerly on the USML to the Export Administration Regulations (EAR) and removes from the EAR other chemicals that were added to the USML by the November 27 rule.

This rule adds to the Commerce Control List (CCL) the following chemicals: chloropicrin; propyleneimine (2-methylaziridine) (CAS 75-55-8); liquid pepper, except when packaged in individual containers of 3 ounces (85.05 grams) or less; and oxidizers and mixtures thereof that are compounds composed of fluorine and one or more of the following—other halogens, oxygen, or nitrogen. In addition, three chemicals that were removed from the USML by the November 27 rule are not being added to the CCL because they were already listed thereon. Those chemicals are fluorine, guanidine nitrate, and nitroguanidine. This rule removes from the CCL: 0-ethyl-2-diisopropyl aminoethyl methylphosphonite (QL), ethyl phosphonyl difluoride, methylphosphonyl difluoride (DF), methyl phosphonous dichloride, methylphosphinyl difluoride, and methylphosphonyl dichloride because the November 27 rule placed them on the USML.

This rule also replaces the phrase “Office of Defense Trade Controls” with “Directorate of Defense Trade Controls” in several places to reflect the name change of that organization and revises the references to Libya and Syria in the License Requirements section of ECCN 1C350 to reflect the current provisions of the EAR that address export controls that apply to those countries.

The specific descriptions of the changes to the EAR made by this rule are as follows.

Chemicals Transferred from the United States Munitions List to the Commerce Control List

This rule adds chloropicrin to ECCN 1C355 by creating a new paragraph (b.1.d) in the List of Items Controlled section of that entry. This action imposes a reexport license requirement on chloropicrin that is subject to the EAR when reexported from one country that is not a party to the Chemical Weapons Convention (Convention) to another country not a party to the Chemical Weapons Convention, and when exported from the United States to a country not a party to the Convention if the exporter has not received an End Use Certificate issued by the importing country. This rule also imposes a license requirement for antiterrorism reasons for exports and reexports of chloropicrin to a limited number of destinations. The imposition of this control is described in a report to Congress on July 2, 2004. This rule removes a reference to chloropicrin as being under the export license jurisdiction of DTC in the Related Controls paragraph of the List of Items controlled section of ECCN 1C355. This rule also removes and reserves paragraph (.b.3) from ECCN 1C355 because the mixtures containing chloropicrin described therein are subsumed in the new paragraph (b.1.d.)

This rule adds propyleneimine (2-methylaziridine) (CAS 75-55-8) to ECCN 1C018 by adding a new paragraph (l) to the List of Items Controlled section of ECCN 1C018. This rule adds oxidizers and mixtures thereof that are compounds composed of fluorine and one or more of the following: other halogens, oxygen, or nitrogen to ECCN 1C018 by adding a new paragraph (m) to that entry and by adding “MT column 1” as a reason for control applicable only to the items covered by the new paragraph (m) because these oxidizers are listed on both the Missile Technology Control Regime (MTCR) Annex and the Munitions List maintained by the Wasssenaar Arrangement. A note to new paragraph 1C018.m excludes nitrogen trifluoride (NF3) in a gaseous state and refers readers to 1C992. Another note to that paragraph excludes chlorine triflouride (ClF3) from national security controls. Cross references are added to the “Related Controls” paragraphs of ECCN 1C018 and ECCN 1C238 to alert readers that both entries impose controls on ClF3. The addition of the oxidizers and mixtures to new paragraph 1C018.m is a new foreign policy control requiring a report to Congress. The report was delivered to Congress on July 2, 2004.

This rule also adds language to the “Related Controls” paragraph of ECCN 1C111 to notify readers that oxidizers and mixtures thereof that are compounds composed of fluorine and one or more of other halogens, oxygen, or nitrogen, are controlled under ECCN 1C018.

This rule also amends the heading of ECCN 1C018 to add “and Certain Chemicals as follows (See List of Items Controlled)” because the chemicals added by this rule are controlled by that entry regardless of whether they are incorporated into a commercial charge or device. This rule also adds paragraph references to the Related Controls paragraph of ECCN 1C018 to clarify for the reader which paragraphs in those related ECCNs describe commercial charges and devices containing USML controlled materials, and which do not. USML controlled materials, when not incorporated into the charges and devices described in the paragraphs of those ECCNs, remain on the USML. However, the chemicals being added to those ECCNs by this rule are subject to the EAR unless they are incorporated into an item on the USML. This rule adds a sentence to the Related Controls paragraph of ECCN 1C018 to alert readers to that fact. This rule also corrects the citations to the USML at several places in both of those entries. This rule also imposes a license requirement on the chemicals that it adds to ECCN 1C018 for antiterrorism reasons to some destinations. The antiterrorism controls imposed by these changes are in a report submitted to Congress on July 2, 2004.

A note is added to ECCN 1C018 providing that when a chemical in paragraphs .1 or .m of ECCN 1C018 is incorporated into a commercial charge or device described in paragraphs .a through .k of ECCN 1C018 or of ECCN 1C992, the item is classified as the commercial charge or device.

The November 27 rule also removed liquid pepper from the USML. This rule adds liquid pepper, except when in individual containers with net weight of 3 ounces (85.05 grams) or less, to ECCN 1A984. This addition is a new foreign policy control requiring a report to Congress. The report was delivered to Congress on July 2, 2004.

This rule also revises the heading and list of items controlled paragraph in ECCN 1C992 to add nitrogen trifluoride in a gaseous state. It also adds a reference to 1C018 to the related controls paragraph of 1C992 alerting readers to the fact that nitrogen trifluoride when not in a gaseous state is controlled by 1C018. Start Printed Page 42864

Chemicals Removed From the USML That Are Not Being Added to the CCL

The November 27 rule published by the Department of State removed fluorine, guanidine nitrate, and nitroguanidine from the USML. These chemicals were already listed on the CCL prior to the publication of this rule. Guanidine nitrate and nitroguanidine will continue to be covered by ECCN 1C011 paragraphs .c and .d, which impose a license requirement to all destinations except Canada. Fluorine will continue to be subject to ECCN 1C999, which imposes a license requirement to North Korea.

Chemicals Transferred From the Commerce Control List to the United States Munitions List

This rule removes 0-ethyl-2-diisopropyl aminoethyl methylphosphonite (QL), ethyl phosphonyl difluoride, and methyl phosphonyl difluoride (DF), from the CCL by removing and reserving paragraph (a) in the “List of Items Controlled” section of ECCN 1C350. This rule also removes methylphosphonous dichloride, methylphosphonous difluoride, and methylphosphonyl dichloride from the Commerce Control List by removing and reserving subparagraphs (b.15) (b.16) and (b.17) in the List of Items Controlled section of ECCN 1C350. These six chemicals are now on the USML.

This rule removes references to ECCN 1C350.a from the following: paragraph (a)(2)(i)(A) of § 742.2; paragraphs (a)(1), (b)(1)(i), (b)(1)(ii), and (b)(1)(iii) of § 742.18; paragraph (q) of part 748, Supplement No. 2; the Reason for Control and License Requirements Notes paragraphs of the License Requirements section of ECCN 1C350; the Related Controls paragraph of the License Requirements section of 1C395; and the Related Controls Paragraph of the List of Items Controlled section of ECCN 1C995.

This rule removes the following references to chemicals that are now subject to the licensing jurisdiction of DTC and no longer subject to the licensing control of BIS. References to methylphosphonyl difluoride are removed from paragraphs (1), (4) and (8) and methylphosphonyl dichloride is removed from paragraph (8) of part 742, Supplement No. 1, which deals with contract sanctity dates. References to 0-ethyl-2-diisopropyl aminoethyl methylphosphonite (QL), ethyl phosphonyl difluoride, methyl phosphonyl difluoride (DF), methylphosphonous dichloride, methylphosphonous difluoride, and methylphosphonyl dichloride and their synonyms are removed from paragraph (k) of § 770.2, which provides alternative names for chemicals subject to ECCN 1C350.

Conforming Changes to ECCN 1C350

In the “License Requirements” section of ECCN 1C350, this rule replaces the reference to part 742 of the EAR as the source of information about antiterrorism controls that apply to Syria with a reference to Supplement No. 1 to part 736. It also replaces the reference to part 746 as the source of information about antiterrorism controls that apply to Libya with a reference to part 742. These changes are being made to make this ECCN conform to recently published rules about Libya (69 FR 23626, April 29, 2004) and a general order implementing the Syria Accountability and Lebanese Sovereignty Act (69 FR 26766, May 14, 2004).

Savings Clause

Items that this rule transfers to BIS export licensing jurisdiction, and that have been authorized for export or reexport pursuant to a license issued by DTC, may be exported or reexported in accordance with the terms of that license until that license expires. Items that this rule removes from BIS licensing that have been authorized for export or reexport pursuant to a license issued by BIS may be exported or reexported in accordance with the terms of that license until that license expires. Items that will require an export or reexport license from BIS upon publication of this rule and that, prior to publication of this rule, were eligible for export or reexport under a License Exception or with no license required (NLR) may be exported or reexported under those conditions if they are on dock for loading, on lighter, laden aboard an exporting carrier or en route aboard a carrier to a port of export on August 2, 2004, pursuant to actual orders for export to a specific destination, and actually are exported from the United States or reexported from another country before August 16, 2004. Any such items not actually exported or reexported before midnight August 16, 2004 may be exported or reexported only if authorized by BIS.

Rulemaking Requirements

1. This final rule has been determined to be not significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by the OMB under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748 . Miscellaneous and recordkeeping activities account for 12 minutes per submission. Burden hours associated with the Paperwork Reduction Act and Office and Management and Budget control number 0694-0088 are not impacted by this regulation. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to David Rostker, OMB Desk Officer, by e-mail at david_rostker@omb.eop.gov or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to William Arvin, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, Room H2705, Washington, DC 20230.

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List of Subjects

, 770 and 774

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For the reasons set forth in the preamble parts 742 and 774 of the Export Administration Regulations (

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PART 742—[AMENDED]

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1. The authority citation for

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Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 18 U.S.C. 2510 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of October 29, 2003, 68 FR 62209, 3 CFR, 2003 Comp., p. 347; Notice of August 7, 2003, 68 FR 47833, 3 CFR, 2003 Comp., p. 328.

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2. In § 742.2 revise paragraph (a)(2)(i)(A) to read as follows:

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Proliferation of chemical and biological weapons.

(a) * * * * *

(2) * * *

(i) * * *

(A) This license requirement includes chemical mixtures identified in ECCN 1C350.b, .c, or .d, except as specified in License Requirements Note 2 to that ECCN.

* * * * *
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3. In § 742.18 revise paragraph (a)(1), the introductory text of paragraphs (b)(1)(i), and paragraphs (b)(1)(ii) and (b)(1)(iii) to read as follows:

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Chemical Weapons Convention (CWC or Convention).
* * * * *

(a) License requirements. (1) Schedule 1 chemicals and mixtures controlled under ECCN 1C351. A license is required for CW reasons to export or reexport Schedule 1 chemicals controlled under ECCN 1C351.d.5 or d.6 to all destinations including Canada. CW applies to 1C351.d.5 for ricin in the form of Ricinus Communis AgglutininII (RCAII), which is also known as ricin D or Ricinus Communis LectinIII (RCLIII), and Ricinus Communis LectinIV (RCLIV), which is also known as ricin E. CW applies to 1C351.d.6 for saxitoxin identified by C.A.S. #35523-89-8. (Note that the advance notification procedures and annual reporting requirements described in § 745.1 of the EAR also apply to exports of Schedule 1 chemicals.)

* * * * *

(b) Licensing Policy. (1) Schedule 1 chemicals and mixtures. (i) Exports to States Parties to the CWC. Applications to export Schedule 1 Chemicals controlled under ECCN 1C351.d.5 or .d.6 to States Parties to the CWC (destinations listed in Supplement No. 2 to part 745 of the EAR) generally will be denied, unless all of the following conditions are met:

* * * * *

(ii) Exports to States not Party to the CWC. Applications to export Schedule 1 chemicals controlled under ECCN 1C351.d.5 or .d.6 to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR) generally will be denied, consistent with U.S. obligations under the CWC to prohibit exports of these chemicals to States not Party to the CWC.

(iii) Reexports. Applications to reexport Schedule 1 chemicals controlled under ECCN 1C351.d.5 or .d.6 generally will be denied to all destinations (including both States Parties to the CWC and States not Party to the CWC).

* * * * *
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4. In Supplement No. 1 to part 742—Nonproliferation of Chemical and Biological Weapons—revise paragraphs (1), (4) and (8) to read as follows:

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SUPPLEMENT NO. 1 TO PART 742—NONPROLIFERATION OF CHEMICAL AND BIOLOGICAL WEAPONS

* * * * *

(1) The contract sanctity date for exports to Iran or Syria of dimethyl methylphosphonate, phosphorous oxychloride, thiodiglycol, dimethylamine hydrochloride, dimethylamine, ethylene chlorohydrin (2-chloroethanol), and potassium fluoride is April 28, 1986.

* * * * *

(4) The contract sanctity date for exports to Iran of dimethyl methylphosphonate, phosphorus oxychloride, and thiodiglycol is February 22, 1989.

* * * * *

(8) The contract sanctity date for exports to all destinations (except Iran, Libya or Syria) of chemicals controlled by ECCN 1C350 is March 7, 1991, except for applications to export the following chemicals: 2-chloroethanol, dimethyl methylphosphonate, dimethyl phosphite (dimethyl hydrogen phosphite), phosphorus oxychloride, phosphorous trichloride, thiodiglycol, thionyl chloride triethanolamine, and trimethyl phosphite. (See also paragraphs (6) and (7) of this Supplement.) For exports to Iran, Libya or Syria, see paragraphs (1) through (6) of this Supplement.

* * * * *
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SUPPLEMENT NO. 2 TO PART 748—[AMENDED]

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5. The authority citation for

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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 7, 2003, 68 FR 47833, 3 CFR, 2003 Comp., p. 328.

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6. In Supplement No. 2 to part 748—Unique License Application Requirements, revise paragraph (q) to read as follows:

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SUPPLEMENT NO. 2 TO PART 748—UNIQUE LICENSE APPLICATION REQUIREMENTS

* * * * *

(q) Chemicals controlled for CW reasons under ECCN 1C350. In addition to any supporting documentation required by part 748, you must also obtain from your consignee an End-Use Certificate for the export of chemicals controlled for CW reasons by ECCN 1C350 to non-States Parties (destinations not listed in Supplement No. 2 to part 745 of the EAR). See § 745.2 of the EAR. In addition to the End-Use Certificate, you may still be required to obtain a Statement by Ultimate Consignee and Purchaser (Form BIS-711P) as support documentation. Consult §§ 748.9 and 748.11 of the EAR.

* * * * *
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PART 770—[AMENDED]

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7. The authority citation for

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Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 7, 2003, 68 FR 47833, 3 CFR, 2003 Comp., p. 328.

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8. In § 770.2, remove and reserve paragraphs (k)(20), (24), (28), (29), (30), and (31).

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SUPPLEMENT NO. 1 TO PART 774—[AMENDED]

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9. The authority citation for

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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); 18 U.S.C. 2510 et seq.; 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 Start Printed Page 42866U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; 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 7, 2003, 68 FR 47833, 3 CFR, 2003 Comp., p. 328.

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10. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms,” and Toxins—Export Control Classification Number 1A984, revise the heading to read as follows:

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1A984 Chemical agents, including tear gas formulation containing 1 percent or less of orthochlorobenzalmalononitrile (CS), or 1 percent or less of chloroacetophenone (CN) except in individual containers with a net weight of 20 grams or less; liquid pepper except when packaged in individual containers with a net weight of 3 ounces (85.05 grams) or less; smoke bombs; non-irritant smoke flares, canisters, grenades and charges; and other pyrotechnic articles having dual military and commercial use.

* * * * *
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11. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms,” and Toxins—Export Control Classification Number 1C018, revise the heading, Reason for Control paragraph in the License Requirements section and the Related Controls, Related Definitions, and Items paragraphs in the List of Items Controlled section to read as follows:

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1C018 Commercial charges and devices containing energetic materials on the International Munitions List and certain chemicals as follows (see List of Items Controlled).

License Requirements

Reason for Control: NS, MT, AT, UN

Control(s)Country chart
NS applies to entire entry except as noted in 1C018.mNS column 1.
MT applies to 1C018.m except as noted thereinMT Column 1.
AT applies to entire entryAT Column 1.
UN applies to entire entryRwanda.
* * * * *

List of Items Controlled

Unit: * * *

Related Controls: (1) Explosive devices or charges in paragraphs .a through .k of this entry that utilize USML controlled energetic materials (See 22 CFR 121.1 Category V) are subject to the licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls if they have been specifically designed, developed, configured, adapted, or modified for a military application. (2) With the exception of slurries, cutters and severing tools, if the USML controlled materials utilized in devices and charges controlled by paragraphs .a through .k of this entry can be easily extracted without destroying the device or charge, then they are subject to the export licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls. (3) Commercial prefabricated slurries and emulsions containing greater than 35% of USML controlled energetic materials are subject to the export licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls. (4) The individual USML controlled energetic materials in paragraphs .a through .k of this entry, even when compounded with other materials, remain subject to the export licensing authority of the Department of State when not incorporated into explosive devices or charges controlled by this entry or 1C992. (5) The chemicals in paragraphs .l and .m of this entry, when incorporated into items listed on the United States Munitions List, become subject to the licensing jurisdiction of the U.S. Department of State, Directorate of Defense Trade Controls (6) See also ECCNs 1C011, 1C111, and 1C239 for additional controlled energetic materials. (7) See ECCN 1C238 for additional controls on chlorine trifluoride (ClF3).

Related Definitions: (1) For purposes of this entry, the term “controlled materials” means controlled energetic materials (see ECCNs 1C011, 1C111, 1C239 and 22 CFR 121.1 Category V). (2) For purposes of this entry, the mass of aluminum powder, potassium perchlorate, and any of the substances listed in the note to the USML (see 22 CFR 121.1 Category V) (such as ammonium pictrate, black powder, etc.) contained in commercial explosive devices and in the charges are omitted when determining the total mass of controlled material.

Items:

a. Shaped charges specially designed for oil well operations, utilizing one charge functioning along a single axis, that upon detonation produce a hole; and

a.1. Contain any controlled materials;

a.2. Have a uniform shaped conical liner with an included angle of 90 degrees or less;

a.3. Have more than 0.090 kg but not more that 2.0 kg of controlled materials; and

a.4. Have a diameter not exceeding 4.5 inches.

b. Detonating cord or shock tubes containing greater than 0.064 kg per meter (300 grains per foot), but not more than 0.1 kg per meter (470 grains per foot) of controlled materials;

c. Cartridge power devices containing greater than 0.70 kg, but not more than 1.0 kg of controlled materials;

d. Detonators (electric or nonelectric) and assemblies thereof containing greater than 0.01 kg, but not more than 0.1 kg of controlled materials;

e. Igniters containing greater than 0.01 kg, but not more than 0.1 kg of controlled materials;

f. Oil well cartridges containing greater than 0.015 kg, but not more than 0.1 kg of controlled materials;

g. Commercial cast or pressed boosters containing greater than 1.0 kg, but not more than 5.0 kg of controlled materials;

h. Commercial prefabricated slurries and emulsions containing greater than 10 kg and less than or equal to thirty-five percent by weight of USML controlled materials;

i. Cutters and severing tools containing greater than 3.5 kg, but not more than 10 kg of controlled materials;

j. Pyrotechnic devices when designed exclusively for commercial purposes (e.g., theatrical stages, motion picture special effects, and fireworks displays), and containing greater than 3.0 kg, but not more than 5.0 kg of controlled materials;

k. Other commercial explosive devices and charges, not controlled by 1C018.a through g above, when used for commercial applications and containing greater than 1.0 kg but not more than 5.0 kg of controlled materials;

l. Propyleneimine (2-methylaziridine) (CAS 75-55-8); or

m. Any oxidizer or mixture thereof that is a compound composed of fluorine and one or more of the following—other halogens, oxygen, or nitrogen.

Note: Nitrogen trifluoride (NF3) in a gaseous state is controlled by ECCN 1C992 and not by 1C018.

Note: National security is not a reason for control for chlorine trifluoride.

Note: If a chemical in paragraphs .1 or .m of 1C018 is incorporated into a commercial charge or device described in paragraphs .a through .k of ECCN 1C018 or in 1C992, the classification of the commercial charge or device applies to the item.

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12. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms,” and Toxins, Export Control Classification Number 1C111

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1C111 Propellants and constituent chemicals for propellants, other than those specified in 1C011, as follows (see List of Items Controlled)

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: (1) Butacene as defined by 1C111.c.1 is subject to the export licensing authority of the U.S. Department of State, Office of Defense Trade Controls (See 22 CFR 121.12 (b)(6), other ferrocene derivatives). (2) See 1C018 for controls on oxidizers that are composed of fluorine and one or more of the following—other halogens, oxygen, or nitrogen.

Related Definitions: * * *

Items: * * *

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13. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms” and Toxins—Export Control Classification Number 1C238, Chlorine trifluoride, revise the Related Controls paragraph of the List of Items controlled section to read as follows:

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1C238 Chlorine trifluoride (ClF3)

* * * * *

List of Items Controlled

Unit * * *

Related Controls: See ECCNs 1E001 (“development” and “production”) and 1E201 (“use”) for technology for items controlled by this entry. See 1C018 for additional controls on Chlorine trifluoride (ClF3).

* * * * *
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14. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms,” and Toxins—Export Control Classification Number 1C350, revise the License Requirements section and the Related Controls and Items paragraphs of the List of Items Controlled Section to read as follows:

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1C350 Chemicals that may be used as precursors for toxic chemical agents

License Requirements

Reason for Control: CB, CW, AT

Control(s)Country chart
CB applies to entire entryCB Column 2.

CW applies to 1C350 .b and .c. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for CW reasons. A license is required, for CW reasons, to export or reexport Schedule 2 chemicals and mixtures identified in 1C350.b to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR). A license is required, for CW reasons, to export Schedule 3 chemicals and mixtures identified in 1C350.c to States not Party to the CWC, unless an End-Use Certificate issued by the government of the importing country has been obtained by the exporter prior to export. A license is required, for CW reasons, to reexport Schedule 3 chemicals and mixtures identified in 1C350.c from a State not Party to the CWC to any other State not Party to the CWC. (See § 742.18 of the EAR for license requirements and policies for toxic and precursor chemicals controlled for CW reasons. See § 745.2 of the EAR for End-Use Certificate requirements that apply to exports of Schedule 3 chemicals to countries not listed in Supplement No. 2 to part 745 of the EAR.)

AT applies to entire entry. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for AT reasons in 1C350. A license is required, for AT reasons, to export or reexport items controlled by 1C350 to Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. (See part 742 of the EAR for additional information on the AT controls that apply to Iran, North Korea, Sudan, and Libya. See part 746 of the EAR for additional information on the comprehensive trade sanctions that apply to Cuba, Iran, and Iraq. (See Supplement No. 1 to part 736 of the EAR for export controls on Syria.)

License Requirement Notes:

1. SAMPLE SHIPMENTS: Subject to the following requirements and restrictions, a license is not required for sample shipments when the cumulative total of these shipments does not exceed a 55-gallon container or 200 kg of a single chemical to any one consignee during a calendar year. A consignee that receives a sample shipment under this exclusion may not resell, transfer, or reexport the sample shipment, but may use the sample shipment for any other legal purpose unrelated to chemical weapons.

a. Chemicals Not Eligible:

A. [RESERVED]

B. CWC Schedule 2 chemicals (States not Party to the CWC). No CWC Schedule 2 chemical or mixture identified in 1C350.b is eligible for sample shipment to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR) without a license.

b. Countries Not Eligible: The following countries are not eligible to receive sample shipments of any chemicals controlled by this ECCN without a license: Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria.

c. Sample shipments that require an End-Use Certificate for CW reasons: No CWC Schedule 3 chemical or mixture identified in 1C350.c is eligible for sample shipment to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR) without a license, unless an End-Use Certificate issued by the government of the importing country is obtained by the exporter prior to export (see § 745.2 of the EAR for End-Use Certificate requirements).

d. Sample shipments that require a license for reasons set forth elsewhere in the EAR: Sample shipments, as described in this Note 1, may require a license for reasons set forth elsewhere in the EAR. See, in particular, the end-use/end-user restrictions in part 744 of the EAR, and the restrictions that apply to embargoed countries in part 746 of the EAR.

e. Quarterly report requirement. The exporter is required to submit a quarterly written report for shipments of samples made under this Note 1. The report must be on company letterhead stationery (titled “Report of Sample Shipments of Chemical Precursors” at the top of the first page) and identify the chemical(s), Chemical Abstract Service Registry (C.A.S.) number(s), quantity(ies), the ultimate consignee's name and address, and the date exported. The report must be sent to the U.S. Department of Commerce, Bureau of Industry and Security, P.O. Box 273, Washington, DC 20044, Attn: “Report of Sample Shipments of Chemical Precursors”.

2. MIXTURES:

a. Mixtures that contain precursor chemicals identified in ECCN 1C350, in concentrations that are below the levels indicated in 1C350.b through .d, are controlled by ECCN 1C395 or 1C995 and are subject to the licensing requirements specified in those ECCNs.

b. A license is not required for mixtures controlled under this ECCN when the controlled chemical in the mixture is a normal ingredient in consumer goods packaged for retail sale for personal use. Such consumer goods are classified as EAR99.

Note to Mixtures: Calculation of concentrations of AG-controlled chemicals:

a. Exclusion. No chemical may be added to the mixture (solution) for the sole purpose of circumventing the Export Administration Regulations;

b. Percent Weight Calculation. When calculating the percentage, by weight, of Start Printed Page 42868components in a chemical mixture, include all components of the mixture, including those that act as solvents.

3. COMPOUNDS. Compounds created with any chemicals identified in this ECCN 1C350 may be shipped NLR (No License Required), without obtaining an End-Use Certificate, unless those compounds are also identified in this entry or require a license for reasons set forth elsewhere in the EAR.

4. TESTING KITS: Certain medical, analytical, diagnostic, and food testing kits containing small quantities of chemicals identified in this ECCN 1C350, are excluded from the scope of this ECCN and are controlled under ECCN 1C395 or 1C995. (Note that replacement reagents for such kits are controlled by this ECCN 1C350 if the reagents contain one or more of the precursor chemicals identified in 1C350 in concentrations equal to or greater than the control levels for mixtures indicated in 1C350.)

Technical Notes: 1. For purposes of this entry, a “mixture” is defined as a solid, liquid or gaseous product made up of two or more components that do not react together under normal storage conditions.

2. The scope of this control applicable to Hydrogen Fluoride (see 1C350.d.7 in the List of Items Controlled) includes its liquid, gaseous, and aqueous phases, and hydrates.

License Exceptions

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: The chemicals 0-Ethyl-2-diisopropylaminoethyl methyl phosphonite (QL) (C.A.S. #57856-11-8); Ethyl phosphonyl difluoride (C.A.S. #753-98-0); and Methyl phosphonyl difluoride.(C.A.S. #676-99-3); methylphosphinyl dichloride (C.A.S. 676-83-5); methylphosphinyl difluoride (C.A.S. #753-59-3); and methylphosphonyl dichloride (C.A.S. # 676-.97-1) are subject to the licensing jurisdiction of the Directorate of Defense Trade Controls, U.S. Department of State.

Related Definitions: * * *

Items:

a. [RESERVED]

b. Australia Group-controlled precursor chemicals also identified as Schedule 2 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:

b.1. (C.A.S. #7784-34-1) Arsenic trichloride;

b.2. (C.A.S. #76-93-7) Benzilic acid;

b.3. (C.A.S. #78-38-6) Diethyl ethylphosphonate;

b.4. (C.A.S. #15715-41-0) Diethyl methylphosphonite;

b.5. (C.A.S.#2404-03-7) Diethyl-N,N-dimethylphosphoroamidate;

b.6. (C.A.S. #5842-07-9) N,N-Diisopropyl-beta-aminoethane thiol;

b.7. (C.A.S. #4261-68-1) N,N-Diisopropyl-beta-aminoethyl chloride hydrochloride;

b.8. (C.A.S. #96-80-0) N,N-Diisopropyl-beta-aminoethanol;

b.9. (C.A.S. #96-79-7), N,N-Diisopropyl-beta-aminoethyl chloride;

b.10. (C.A.S. #6163-75-3) Dimethyl ethylphosphonate;

b.11. (C.A.S. #756-79-6) Dimethyl methylphosphonate;

b.12. (C.A.S. #1498-40-4) Ethyl phosphonous dichloride [Ethyl phosphinyl dichloride];

b.13. (C.A.S. #430-78-4) Ethyl phosphonus difluoride [Ethyl phosphinyl difluoride];

b.14. (C.A.S. #1066-50-8) Ethyl phosphonyl dichloride;

b.15. [RESERVED]

b.16. [RESERVED]

b.17. [RESERVED]

b.18. (C.A.S. #464-07-3) Pinacolyl alcohol;

b.19. (C.A.S. #1619-34-7) 3-Quinuclidinol;

b.20. (C.A.S. #111-48-8) Thiodiglycol.

c. Australia Group-controlled precursor chemicals also identified as Schedule 3 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:

c.1. (C.A.S. #762-04-9) Diethyl phosphite;

c.2. (C.A.S. #868-85-9) Dimethyl phosphite (dimethyl hydrogen phosphite);

c.3. (C.A.S. #10025-87-3) Phosphorus oxychloride;

c.4. (C.A.S. #10026-13-8) Phosphorus pentachloride;

c.5. (C.A.S. #7719-12-2) Phosphorus trichloride;

c.6. (C.A.S. #10025-67-9) Sulfur monochloride;

c.7. (C.A.S. #10545-99-0) Sulfur dichloride;

c.8. (C.A.S. #7719-09-7) Thionyl chloride;

c.9. (C.A.S. #102-71-6) Triethanolamine;

c.10. (C.A.S. #122-52-1) Triethyl phosphite;

c.11. (C.A.S. #121-45-9) Trimethyl phosphite.

d. Other Australia Group-controlled precursor chemicals not also identified as Schedule 1, 2, or 3 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:

d.1. (C.A.S. #1341-49-7) Ammonium hydrogen fluoride;

d.2. (C.A.S. #107-07-3) 2-Chloroethanol;

d.3. (C.A.S. #100-37-8) N,N-Diethylaminoethanol;

d.4. (C.A.S. #108-18-9) Di-isopropylamine;

d.5. (C.A.S. #124-40-3) Dimethylamine;

d.6. (C.A.S. #506-59-2) Dimethylamine hydrochloride;

d.7. (C.A.S. #7664-39-3) Hydrogen fluoride;

d.8. (C.A.S. #3554-74-3) 3-Hydroxyl-1-methylpiperidine;

d.9. (C.A.S. #76-89-1) Methyl benzilate;

d.10. (C.A.S. #1314-80-3) Phosphorus pentasulfide;

d.11. (C.A.S. #75-97-8) Pinacolone;

d.12. (C.A.S. #151-50-8) Potassium cyanide;

d.13. (C.A.S. #7789-23-3) Potassium fluoride;

d.14. (C.A.S. #7789-29-9) Potassium bifluoride;

d.15. (C.A.S. #3731-38-2) 3-Quinuclidone;

d.16. (C.A.S. #1333-83-1) Sodium bifluoride;

d.17. (C.A.S. #143-33-9) Sodium cyanide;

d.18. (C.A.S. #7681-49-4) Sodium fluoride;

d.19. (C.A.S. #1313-82-2) Sodium sulfide;

d.20. (C.A.S. #637-39-8) Triethanolamine hydrochloride;

Start Amendment Part

15. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms,” and Toxins—Export Control Classification Number 1C355 revise the Related Controls and Items paragraphs of the List of Items Controlled section to read as follows:

End Amendment Part

1C355 Chemical Weapons Convention (CWC) Schedule 2 and 3 chemicals and families of chemicals not controlled by ECCN 1C350 or by the Department of State under the ITAR

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: See also ECCNs 1C350, 1C351, 1C395, and 1C995. See §§ 742.18 and 745.2 of the EAR for End-Use Certification requirements.

Related Definitions: * * *

Items:

a. CWC Schedule 2 chemicals and mixtures containing Schedule 2 chemicals: Start Printed Page 42869

a.1. Toxic chemicals, as follows, and mixtures containing toxic chemicals:

a.1.a. PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene (C.A.S. 382-21-8) and mixtures in which PFIB constitutes more than 1 percent of the weight of the mixture;

a.1.b. [RESERVED]

a.2. Precursor chemicals, as follows, and mixtures in which at least one of the following precursor chemicals constitutes more than 10 percent of the weight of the mixture:

a.2.a. Chemicals except for those listed in Schedule 1, containing a phosphorus atom to which is bonded one methyl, ethyl, or propyl (normal or iso) group but not further carbon atoms.

Note: 1C355.a.2.a does not control Fonofos: O-Ethyl S-phenyl ethylphosphonothiolothionate (C.A.S. 944-22-9).

a.2.b. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides;

a.2.c. FAMILY: Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr, or i-Pr)-phosphoramidates;

a.2.d. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and corresponding protonated salts;

a.2.e. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and corresponding protonated salts;

Note: 1C355.a.2.e. does not control N,N-Dimethylaminoethanol and corresponding protonated salts (C.A.S. 108-01-0) or N,N-Diethylaminoethanol and corresponding protonated salts (C.A.S. 100-37-8).

a.2.f. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and corresponding protonated salts.

b. CWC Schedule 3 chemicals and mixtures containing Schedule 3 chemicals:

b.1. Toxic chemicals, as follows, and mixtures in which at least one of the following toxic chemicals constitutes 30 percent or more of the weight of the mixture:

b.1.a. Phosgene: Carbonyl dichloride (C.A.S. 75-44-5);

b.1.b. Cyanogen chloride (C.A.S. 506-77-4);

b.1.c. Hydrogen cyanide (C.A.S. 74-90-8);

b.1.d. Chloropicrin: Trichloronitromethane (CAS 76-06-2).

b.2. Precursor chemicals, as follows, and mixtures in which at least one of the following precursor chemicals constitutes 30 percent or more of the weight of the mixture:

b.2.a. Ethyldiethanolamine (C.A.S. 139-87-7);

b.2.b. Methyldiethanolamine (C.A.S. 105-59-9).

Start Amendment Part

16. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms,” and Toxins—Export Control Classification Number 1C395, revise the Related Controls paragraph in the List of Items Controlled section is to read as follows:

End Amendment Part

1C395 Mixtures and medical, analytical, diagnostic, and food testing kits not controlled by ECCN 1C350, as follows (See List of Items Controlled)

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: 1. ECCN 1C350 controls mixtures containing 30 percent or higher concentrations, by weight, of any single CWC Schedule 2 chemical identified in ECCN 1C350.b; ECCN 1C995 controls such mixtures containing concentrations of 10 percent or less. 2. ECCN 1C995 controls “medical, analytical, diagnostic, and food testing kits” (as defined in the Related Definitions paragraph of this ECCN) that contain precursor chemicals listed in ECCN 1C350.d. ECCN 1C350 controls any such kits in which the amount of any single chemical listed in 1C350.b, .c, or .d exceeds 300 grams by weight.

Related Definitions: * * *

Items: * * *

Start Amendment Part

17. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms,” and Toxins—Export Control Classification Number 1C992, revise the heading, and the Related Controls and Items paragraphs of the List of Items Controlled section to read as follows:

End Amendment Part

1C992 Commercial charges and devices containing energetic materials, n.e.s and nitrogen trifluoride in a gaseous state

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: (1) Commercial charges and devices containing USML controlled energetic materials that exceed the quantities noted or that are not covered by this entry are controlled under 1C018. (2) Nitrogen trifluoride when not in a gaseous state is controlled under 1C018.

Related Definitions: * * *

Items:

a. Shaped charges specially designed for oil well operations, utilizing one charge functioning along a single axis, that upon detonation produce a hole, and

a.1. Contain any formulation of controlled materials;

a.2. Have only a uniform shaped conical liner with an included angle of 90 degrees or less;

a.3. Contain more than 0.010 kg but less than or equal to 0.090 kg of controlled materials; and

a.4. Have a diameter not exceeding 4.5 inches;

b. Shaped charges specially designed for oil well operations containing less than or equal to 0.010 kg of controlled materials;

c. Detonation cord or shock tubes containing less than or equal to 0.064 kg per meter (300 grains per foot) of controlled materials;

d. Cartridge power devices, that contain less than or equal to 0.70 kg of controlled materials in the deflagration material;

e. Detonators (electric or nonelectric) and assemblies thereof, that contain less than or equal to 0.01 kg of controlled materials;

f. Igniters, that contain less than or equal to 0.01 kg of controlled materials;

g. Oil well cartridges, that contain less than or equal to 0.015 kg of controlled energetic materials;

h. Commercial cast or pressed boosters containing less than or equal to 1.0 kg of controlled materials;

i. Commercial prefabricated slurries and emulsions containing less than or equal to 10.0 kg and less than or equal to thirty-five percent by weight of USML controlled materials;

j. Cutters and severing tools containing less than or equal to 3.5 kg of controlled materials;

k. Pyrotechnic devices when designed exclusively for commercial purposes (e.g., theatrical stages, motion picture special effects, and fireworks displays) and containing less than or equal to 3.0 kg of controlled materials; or

l. Other commercial explosive devices and charges not controlled by 1C992.a through .k containing less than or equal to 1.0 kg of controlled materials.

Note: 1C992.l includes automotive safety devices; extinguishing systems; cartridges for riveting guns; explosive charges for agricultural, oil and gas operations, sporting goods, commercial mining, or public works purposes; and delay tubes used in the assembly of commercial explosive devices.

m. Nitrogen trifluoride (NF3) in a gaseous state.

Start Amendment Part

18. In supplement No. 1 to part 774, Category 1—Materials, Chemicals, “Microorganisms,” and Toxins—Export Control Classification Number 1C995, revise the Related Controls paragraph of the List of Items Controlled section to read as follows:

End Amendment Part

1C995 Mixtures not controlled by ECCN 1C350, ECCN 1C355 or ECCN 1C395 that contain chemicals controlled by ECCN 1C350 or ECCN 1C355 and medical, analytical, diagnostic, and food testing kits not controlled by ECCN 1C350 or ECCN 1C395 that contain chemicals controlled by ECCN 1C350.d, as follows (see List of Items Controlled).

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: 1. ECCN 1C350 controls mixtures containing 30 percent or higher concentrations of any single CWC Schedule 2 chemical identified in ECCN 1C350.b. ECCN 1C395 controls mixtures containing concentrations of more than 10 percent, but less than 30 percent, of any single CWC Schedule 2 chemical identified in ECCN 1C350.b. 2. ECCN 1C350 controls mixtures containing chemicals identified in ECCN 1C350.c or .d that exceed the concentration levels indicated in 1C995.a.2. 3. ECCN 1C355 controls mixtures containing chemicals identified in ECCN 1C355 that exceed the concentration levels indicated in 1C995.b. 4. ECCN 1C395 controls “medical, analytical, diagnostic, and food testing kits” (as defined in the Related Controls paragraph of this ECCN) that contain CWC Schedule 2 or 3 chemicals listed in 1C350.b or .c. ECCN 1C350 controls any such testing kits in which the amount of any single chemical listed in 1C350.b, .c., or .d exceeds 300 grams by weight.

Related Definitions: * * *

Items: * * *

Start Signature

Dated: July 12, 2004.

Peter Lichtenbaum,

Assistant Secretary for Export Administration.

End Signature End Supplemental Information

[FR Doc. 04-16351 Filed 7-16-04; 8:45 am]

BILLING CODE 3510-33-P