Response: BIS agrees and the explanatory text has been modified accordingly in this proposed rule.
Comment: One commenter recommended changing "directly related" to "specially designed" in the first related controls note, which states technical data that are directly related to electronic items controlled in USML Category XI or other USML categories are subject to the ITAR.
Response: BIS is not adopting this recommendation. The purpose of the related controls note is to call readers' attention to regulatory provisions that apply to items related to or similar to the items in the ECCN in which the note appears. In this instance, the relevant regulatory provision is Category XI of the USML, which uses the phrase "directly related to . . ." in describing the technical data that it controls. Comments or questions regarding the meaning of "directly related" should be directed to the
Comment: BIS received several comments about the terms used in ECCN 3A611.a. Commenters thought certain terms were imprecise and should be eliminated or replaced with more specific listings of items controlled. The criticized terms were "equipment," "end items," "systems," "specially designed" and "military use."
Response: This proposed rule does not eliminate any of those criticized terms. The definitions of the terms "end item," "equipment," "specially designed" and "system" that will apply to this proposed rule were published in the
Although the term "military use" was not defined in
Comment: One commenter focused on the portion of the note to ECCN 3A611.a that reads: "3A611.a includes any radar, telecommunications or computer equipment, end items or systems `specially designed' for military use that are not enumerated in any USML category or controlled by a `600 series' ECCN." The commenter suggested that this note could create confusion as to, for example, license requirements for items controlled under ECCNs 5A002, 5A991 or EAR99. This commenter also stated that a manufacturer typically will develop a standard prototype and offer the system in whatever frequency range the customer specifies. Such systems perform identical functions using identical technology regardless of whether they are set to operate in a traditional military or civilian frequency band. Communications systems for military customers are often assembled with commercial-off-the-shelf equipment. ECCN 3A611.a should be clarified to enumerate specific categories of items with particular threshold parameters. This commenter suggested that ECCN 3A611.a should be modified to exclude explicitly items that are composed of commercially available components--similar to the exclusion in USML Category XI(c). This commenter proposed adding a note to 3A611 that would implement both of its proposals: "Note: This ECCN does not control equipment or systems that are comprised of parts, components, or accessories in normal commercial use, which operate in a frequency range allocated for military use."
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