05-6271. Amendments Affecting the Country Scope of the Chemical/Biological End-User/End-Use Controls

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

The Bureau of Industry and Security (BIS) is publishing this final rule to amend the chemical and biological weapons end-user/end-use controls in the Export Administration Regulations (EAR). Specifically, this final rule expands the country scope of the EAR restrictions on certain chemical and biological weapons end-uses to apply to exports and reexports of items subject to the EAR to any destination, worldwide. Prior to the publication of this rule, such restrictions applied only to exports and reexports of items subject to the EAR to certain countries of concern for chemical and/or biological reasons. The amendments are consistent with the “catch-all” provisions in the Australia Group's (AG) “Guidelines for Transfers of Sensitive Chemical or Biological Items.”

DATES:

This rule is effective March 30, 2005.

ADDRESSES:

You may submit comments, identified by RIN 0694-AD15, by any of the following methods:

• E-mail: [e-mail]. Include “RIN 0694-AD15” in the subject line of the message.
• Fax: [phone]. Please alert the Regulatory Policy Division, by calling [phone], if you are faxing comments.
• Mail or Hand Delivery/Courier: Willard Fisher, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, Attn: RIN 0694-AD15.

FOR FURTHER INFORMATION CONTACT:

Mark Sagrans, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

This rule expands the country scope of the “end-user/end-use” controls in Section 744.4(a) of the EAR. Section 744.4 sets forth the EAR “end-user/end-use” provisions that apply to chemical and biological weapons end-uses. Section 744.4(a) of the EAR requires a license to export or reexport items subject to the EAR if, at the time of the export or reexport, the exporter or reexporter knows that the items are intended for chemical or biological weapons activities. Prior to the publication of this rule, the country scope of this “end-user/end-use” license requirement applied only to countries of concern for chemical and biological weapons reasons (i.e., Country Group D:3 in Supplement 1 to part 740 of the EAR). This final rule amends Section 744.4(a) of the EAR to expand the number of countries subject to this EAR “end-user/end-use” license requirement to include all destinations, worldwide, including the countries identified in Country Group A:3 (i.e., the AG-participating countries). The amendments are consistent with the “catch-all” provisions in the Australia Group's (AG) “Guidelines for Transfers of Sensitive Chemical or Biological Items” (Guidelines).

The AG-related changes described above do not affect Section 744.4(b) of the EAR, which describes certain “end-user/end-use” license requirements that apply to any exporter or reexporter who has been “informed” by BIS that a license is required by a certain end-user due to an unacceptable risk of use in or diversion to chemical or biological weapons activities, because this EAR provision currently has a worldwide country scope that is consistent with the equivalent “catch-all” provision in the AG Guidelines.

This rule imposes new export controls for foreign policy reasons. As required by section 6 of the Export Administration Act of 1979, as amended (the Act), a report on the imposition of these controls was delivered to the Congress on March 21, 2005. Although the Act expired on August 20, 2001, Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 6, 2004, 69 FR 48763 (August 10, 2004), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

Savings Clause

Shipments of items removed from license exception eligibility or eligibility for export without a license 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 April 14, 2005, pursuant to actual orders for export to a foreign destination, may proceed to that destination under the previous license exception eligibility or without a license so long as they have been exported from the United States before April 29, 2005. Any such items not actually exported before midnight, on April 29, 2005, require a license in accordance with this regulation.

Rulemaking Requirements

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

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 a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to [e-mail], or by fax to [phone]; 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 in Executive Order 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 (Sec. 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 5 U.S.C. 553 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.

List of Subjects in 15 CFR Part 744

• Exports
• Foreign trade
• Reporting and recordkeeping requirements

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-799) is amended as follows:

PART 744—[AMENDED]

1. The authority citation for 15 CFR part 744 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. 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. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of October 29, 2003, 68 FR 62209, 3 CFR, 2003 Comp., p. 347; Notice of August 6, 2004, 69 FR 48763 (August 10, 2004).

2. Section 744.4 is amended by revising paragraph (a) to read as follows:

§ 744.4

Restrictions on certain chemical and biological weapons end-uses.

(a) General prohibition. In addition to the license requirements for items specified on the CCL, you may not export or reexport an item subject to the EAR without a license if, at the time of export or reexport you know that the item will be used in the design, development, production, stockpiling, or use of chemical or biological weapons in or by any country or destination, worldwide.

* * * * *

Dated: March 23, 2005.

Matthew S. Borman,

Deputy Assistant Secretary for Export Administration.