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Federal Register / Vol. 86, No. 190 / Tuesday, October 5, 2021 / Rules and Regulations Column 2 and AT Column 1, respectively, on the Commerce Country Chart in Supplement No. 1 to part 738
of the EAR. Consequently, this software generally does not require a license for export, reexport or transfer in-country to destinations located in AG-participating countries. That being the case, the controls that apply to this software under new ECCN 2D352
should not impair the ability of the United States to trade in intermediate goods with most of its allies or to collaborate on R&D with such countries.
Comment: One respondent asserted that the nucleic acid assembler and synthesizer software proposed for control under new ECCN 2D352 by BISs November 6 proposed rule is currently subject to the controls described in Category XIV m of the United States Munitions List USML
22 CFR 121.1, as well as the controls described in USML Category XIVf8.
Specifically, this respondent stated that such software involves technical data directly related to the defense articles enumerated in paragraphs a through l and n of USML Category XIV and that, as such, it is subject to the export licensing jurisdiction of the Directorate of Defense Trade Controls, U.S.
Department of State, under the International Traffic in Arms Regulations ITAR 22 CFR parts 120
130. Furthermore, the respondent asserted that such software is also restricted per USML Category XIVf8ii and f8iii, which apply to any part, component, accessory, attachment, equipment, or system that is either manufactured using classified production data or being developed using classified information.
BIS Response: The software that this final rule controls under new ECCN
2D352 on the CCL is dual-use software that, as noted above, was added to the AG Control List of DualUse Biological Equipment and Related Technology and Software following a decision made at the AGs May 2021
Virtual Implementation Meeting session. As indicated in its title, all of the items included on this AG common control list are dual-use itemsnot military items. Consequently, the respondent is mistaken in claiming that such software is restricted per USML
Category XIVf8ii and f8iii, which apply to any part, component, accessory, attachment, equipment, or system that is either manufactured using classified production data or being developed using classified information.
New ECCN 2D352 does not control software that was manufactured, or is in the process of being developed, using classified information subject to control
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under the ITAR or the regulations of any other U.S. Government agency.
Saving Clause Shipments of items removed from eligibility for export, reexport or transfer in-country under a license exception or without a license i.e., under the designator NLR as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on October 5, 2021, pursuant to actual orders for export, reexport or transfer in-country to a foreign destination, may proceed to that destination under the previously applicable license exception or without a license NLR so long as they are exported, reexported or transferred incountry before December 6, 2021. Any such items not actually exported, reexported or transferred in-country before midnight, on December 6, 2021, require a license in accordance with this regulation.
Deemed exports of technology and source code removed from eligibility for export under a license exception or without a license under the designator NLR as a result of this regulatory action may continue to be made under the previously available license exception or without a license NLR before December 6, 2021.
Beginning at midnight on December 6, 2021, such technology and source code may no longer be released, without a license, to a foreign national subject to the deemed export controls in the EAR when a license would be required to the home country of the foreign national in accordance with this regulation.
Export Control Reform Act of 2018
The Export Control Reform Act of 2018 ECRA, as amended, codified at 50 U.S.C. 48014852, serves as the authority under which BIS issues this rule.
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; distributive impacts; and equity. Executive Order 13563
emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules, and promoting flexibility. This rule has been designated a significant regulatory action, although not
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economically significant, under section 3f of Executive Order 12866.
Accordingly, this rule has been reviewed by the Office of Management and Budget.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 44 U.S.C. 3501
et seq. PRA, unless that collection of information displays a currently valid Office of Management and Budget OMB Control Number. This rule contains the following collections of information subject to the requirements of the PRA. These collections have been approved by OMB under control numbers 06940088 Simplified Network Application Processing System and 06940096 Five Year Records Retention Period. The approved information collection under OMB control number 06940088
includes license applications, among other things, and carries a burden estimate of 29.6 minutes per manual or electronic submission for a total burden estimate of 31,833 hours. The approved information collection under OMB
control number 06940096 includes recordkeeping requirements and carries a burden estimate of less than 1 minute per response for a total burden estimate of 248 hours.
Although this final rule makes important changes to the EAR for items controlled for chemical/biological CB
reasons, BIS has determined that the overall increase in costs and burdens due to this rule will be minimal.
Specifically, BIS expects the burden hours associated with these collections will increase, slightly, by 7 hours and 39
minutes i.e., 15 applications 30.6
minutes per response for a total estimated cost increase of $230 i.e., 7
hours and 39 minutes $30 per hour.
The $30 per hour cost estimate for OMB
control number 06940088 is consistent with the salary data for export compliance specialists currently available through glassdoor.com glassdoor.com estimates that an export compliance specialist makes $55,280
annually, which computes to roughly $26.58 per hour. This increase is not expected to exceed the existing estimates currently associated with OMB control numbers 06940088 and 06940096.
Written comments and recommendations for the information collections referenced above should be sent within 30 days of the publication of this final rule to: www.reginfo.gov/
public/do/PRAMain. Find these
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