05-23533. Revisions to the Import Certificate Requirements in the Export Administration Regulations

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

The Bureau of Industry and Security is removing the requirement to obtain an Import Certificate in support of an export or reexport license when the ultimate consignee or purchaser is a foreign government or agency of Bulgaria, Czech Republic, Hungary, Poland, Romania, Slovakia, and India. The requirement is being removed for Bulgaria, Czech Republic, Hungary, Poland, Romania, and Slovakia because of their membership in the North Atlantic Treaty Organization (NATO) and their commitment to export controls, as is reflected by their membership in multiple export control regimes, such as the Wassenaar Arrangement, the Australia Group, the Missile Technology Control Regime, and Nuclear Suppliers Group. This requirement is being removed for India because of the actions it has taken under the U.S.-India Next Steps in Strategic Partnership.

EFFECTIVE DATE:

December 1, 2005.

ADDRESSES:

Although this is a final rule, comments are welcome and should be addressed to Timothy Mooney, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044, E-mailed to: [e-mail], or faxed to 202-482-3355.

Comments regarding the collections of information associated with this rule, including suggestions for reducing the burden, should be sent to OMB Desk Officer, New Executive Office Building, Washington, DC 20503—Attention: David Rostker; and to the Office of Administration, Bureau of Industry and Security, Department of Commerce, 14th and Pennsylvania Avenue, NW., Room 6883, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT:

Eileen Albanese, Director, Office of Exporter Services, Bureau of Industry and Security, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

The import certificate requirement has its foundation in the Coordinating Committee on Multilateral Export Controls (COCOM). COCOM is a former multilateral organization that cooperated in restricting strategic exports (conventional weapons and dual use items that are controlled for national security reasons on the Commerce Control List) to Eastern Bloc (communist-governed countries) during the Cold War era. Although COCOM was officially disbanded on March 31, 1994, the import certificate remains in use by the United States and many other countries.

U.S. exporters are required by §§ 748.9 and 748.10 of the Export Administration Regulations (EAR) to obtain and retain Import Certificates for the export of items controlled for national security (NS) reasons on the Commerce Control List, when a license is required. This import certificate requirement applies to licensed exports to 29 Wassenaar Arrangement members and 7 additional countries (India, China, Hong Kong, Liechtenstein, Pakistan, Singapore and Taiwan). An Import Certificate is a certification by the issuing government that the importer has undertaken to import the items stated on the import certificate, that the items will not be diverted or reexported without notification or authorization of the importing government, and, depending on the country, the importer will notify or seek authorization from the importing government if any of the facts of the import certificate change. For some countries, the importer also certifies that he or she will provide, if asked, verification that possession of the item was taken. In general, there is an exemption from obtaining an Import Certificate when the ultimate consignee or purchaser is a government agency. However, prior to publication of this rule, certain countries were excluded from this exemption (see § 748.9(a)(2)).

This rule eliminates the requirement for Import Certificates set forth in section 748.9(a)(2) when the ultimate consignee or purchaser is a government entity in Bulgaria, the Czech Republic, Hungary, Poland, Romania, and Slovakia. These countries are members of North Atlantic Treaty Organization (NATO), and have taken steps to implement effective national security export control regimes, as demonstrated by their membership in the Wassenaar Arrangement.

In addition, in 2004, the United States committed to reviewing the Import Certificate requirement for India, as a part of the U.S.-India High Technology Group (HTCG) discussions. The HTCG was formed in 2002 to identify barriers to legitimate high technology trade. In the course of these discussions, the Import Certificate requirement was identified as a non-tariff barrier to expanded trade. In light of the actions taken by the Government of India with regard to controlled goods or technologies it imports from the United States pursuant to the U.S.-India Next Steps in Strategic Partnership, this rule removes the Import Certificate requirement for exports to Indian Government entities under section 748.9(a)(2).

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 2, 2005, 70 FR 45273 (August 5, 2005), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

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 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 involves a collection of information subject to the PRA. This collection has been approved by OMB under control number 0694-0093, Import Certificates, End-User Certificates, and Delivery Verification Procedures,” which carries a burden hour estimate of 15 to 30 minutes per response. This rule is anticipated to have a slight decrease on the number of licenses that require Import Certificates and not to alter the range of total burden hours associated with this control number. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to OMB Desk Officer, New Executive Office Building, Washington, DC 20503; and to the Office of Administration, Bureau of Industry and Security, Department of Commerce, 14th and Pennsylvania Avenue, NW., Room 6883, Washington, DC 20230.

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 Timothy Mooney, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

List of Subjects in 15 CFR Part 748

• Administrative practice and procedure
• Exports
• Reporting and recordkeeping requirements

Accordingly, part 748 of the Export Administration Regulations (15 CFR parts 730-799) are amended as follows:

PART 748—[AMENDED]

1. The authority citation for 15 CFR part 748 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 2, 2005, 70 FR 45273 (August 5, 2005).

2. Section 748.9 is amended by revising paragraph (a)(2) to read as follows:

§ 748.9

Support Documents for License Applications.

(a) * * *

(2) The ultimate consignee or purchaser is a foreign government(s) or foreign government agency(ies), other than the government of the People's Republic of China. To determine whether the parties to your transaction meet the definition of “government agency” refer to the definition contained in part 772 of the EAR. Remember, if either the ultimate consignee or purchaser is not a foreign government or foreign government agency, a statement is required from the nongovernmental party.

* * * * *

Dated: November 28, 2005.

Matthew S. Borman,

Deputy Assistant Secretary for Export Administration.