E8-3808. Expanded Authorization for Temporary Exports and Reexports of Tools of Trade to Sudan

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This rule increases the number of end-uses for which certain “tools of trade” may be exported temporarily to Sudan under a license exception. It also makes more types of commodities eligible under the category “tools of trade” for purposes of this license exception and authorizes reexports under this provision to the same extent as exports are authorized.

DATES:

Effective Date: This rule is effective February 28, 2008.

ADDRESSES:

Comments may be submitted by e-mail to the Federal eRulemaking site www.regulations.gov,, by e-mail directly to BIS at [e-mail]; by fax to [phone]; or on paper to—Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, Room H2705, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230. Refer to Regulatory Identification Number (RIN) 0694-AE20 in all comments. Comments on the information collection contained in this rule should also be sent to David Rostker, Office of Management and Budget Desk Officer; by e-mail to [e-mail]; or by fax to [phone]. Refer to RIN 0694-AE20 in all comments.

FOR FURTHER INFORMATION CONTACT:

Eric Longnecker, Office of Nonproliferation and Treaty Compliance, tel. [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Background

Section 740.9 of the Export Administration Regulations provides inter alia an exception to export and reexport license requirements for certain temporary exports and reexports. One category of such exports and reexports is entitled “tools of trade.” In February 2005, BIS revised § 740.9 to allow temporary exports, but not reexports, to Sudan of certain computers, communications devices, and global satellite positioning devices by employees and staff of certain organizations engaged in humanitarian work in Sudan (70 FR 8257, February 18, 2005 and 70 FR 9703, February 28, 2005). The experiences of the organizations using this provision, the increase in computer performance levels since that rule was published, the implementation of the Comprehensive Peace Agreement and the Darfur Peace Agreement, the passage of the Darfur Peace and Accountability Act, the issuance of Executive Order 13412, the implementation of that Act and that Executive Order by the Department of the Treasury, and the changing nature of the assistance being provided in Sudan by non-governmental organizations have led BIS to conclude that changes to this provision are warranted.

Specific Changes Made by This Rule

This rule modifies § 740.9(a)(2)(i)(B) of the EAR, which sets forth the provisions that apply specifically to Sudan for temporary exports and reexports of tools of trade under License Exception TMP. This rule breaks that paragraph into further subparagraphs to make the provisions easier to follow and cite.

This rule adds reexports to the types of transactions authorized by § 740.9(a)(2)(i)(B).

This rule adds certain support activities to relieve human suffering or to implement the Darfur Peace Agreement or the Comprehensive Peace Agreement by an organization authorized by the Department of the Treasury, and certain support activities to relieve human suffering in Sudan in areas that are exempt from the Sudanese Sanctions Regulations by virtue of the Darfur Peace and Accountability Act and Executive Order 13412, to the purposes for which § 740.9(a)(2)(1)(B) authorizes sending tools of trade under License Exception TMP to Sudan.

This rule allows exports and reexports to an eligible user in Sudan by a method reasonably calculated to assure delivery to the permissible user. Prior to publication of this rule, § 740.9(a)(2)(i)(B) required that shipments accompany a traveler to Sudan.

This rule raises the adjusted peak performance (APP) of computers controlled under Export Control Classification Number (ECCN) 4A994.b eligible under § 740.9(a)(2)(1)(B) from 0.0015 weighted teraFLOPS (WT) to 0.008 WT.

This rule makes disk drives controlled under ECCN 4A991.d, input/output control units controlled under ECCN 4A994.e (other than industrial controllers for chemical processing), graphics accelerators controlled under 4A994.g and color displays and monitors controlled under 4A994.h eligible for export and reexport under § 740.9(a)(2)(i)(B).

This rule authorizes export or reexport of software to be used solely for servicing or in-kind replacement of software legally exported or reexported pursuant to § 740.9(a)(2)(i)(B). Prior to this rule all such software had to be loaded on to the hardware prior to sending the hardware to Sudan.

Reasons for the Changes Made by This Rule

BIS is making these changes for several reasons. The increase in the performance level of the computers authorized by this rule is needed because few, if any, computers with an APP of 0.0015 WT level are easily available at retail outlets. The additional commodities are peripheral equipment to computers that are used for routine business tasks such as word processing, spreadsheets and Web browsing. Allowing reexports of such items and removing the requirements that the items accompany a traveler to Sudan and that software be loaded prior to arrival of the hardware in Sudan will allow persons working for non-governmental organizations engaged in humanitarian or development efforts in Sudan to procure items subject to the EAR outside the United States and send them to Sudan more easily. Since 2005, when BIS last amended § 740.9(a)(2)(1)(B), the nature of the activities of U.S.-supported NGOs in Sudan has evolved from humanitarian assistance and efforts to relieve human suffering to include not only those goals but some development assistance as well. This rule allows support of that broader scope of activities consistent with the Darfur Peace Agreement, the Comprehensive Peace Agreement, the Darfur Peace and Accountability Act and Executive Order 13412.

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 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 contains a collection 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. BIS believes that this rule will have no material effect on the burden imposed by that collection.

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 or foreign affairs function of the United States (see 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 rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 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.

List of Subjects in 15 CFR Part 740

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

For the reasons set forth in the preamble, the Export Administration Regulations (15 CFR 730-799) are amended as follows:

PART 740—AMENDED

1. The authority citation for part 740 continues to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; Sec. 901-911, Pub. L. 106-387; 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 3, 2006, 71 FR 44551 (August 7, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007).

2. Revise § 740.9(a)(2)(i)(B) to read as follows:

§ 740.9

Temporary imports, exports, and reexports (TMP).

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(a) * * *

(B) Sudan. Exports or reexports of tools of trade may be made to Sudan as authorized by this paragraph.

(1) Permissible users of this provision. A non-governmental organization or an individual staff member, employee or contractor of such organization traveling to Sudan at the direction or with the knowledge of such organization may export or reexport under this paragraph.

(2) Authorized purposes. Any tools of trade exported or reexported under this paragraph must be used to support activities to implement the Darfur Peace Agreement or the Comprehensive Peace Agreement, to provide humanitarian or development assistance in Sudan to support activities to relieve human suffering in Sudan by an organization registered by the Department of the Treasury, Office of Foreign Assets Control (OFAC) pursuant to 31 CFR 538.521, to support the actions in Sudan for humanitarian or development purposes by an organization authorized by OFAC to take such actions that would otherwise would be prohibited by the Sudanese Sanctions Regulations (31 CFR part 538), or to support the activities to relieve human suffering in Sudan in areas that are exempt from the Sudanese Sanctions Regulations by virtue of the Darfur Peace and Accountability Act and Executive Order 13412.

(3) Method of export and maintenance of control. The tools of trade must accompany (either hand carried or as checked baggage) a traveler who is a permissible user of this provision or be shipped or transmitted to an eligible user of this provision by a method reasonably calculated to assure delivery to the permissible user of this provision. The permissible user of this provision must maintain “effective control” (See § 772.1 of the EAR) of the tools of trade while in Sudan.

(4) The only tools of trade that may be exported to Sudan under this paragraph (a)(2)(i)(B) are:

(i) Commodities controlled under ECCNs 4A994.b (not exceeding an adjusted peak performance of 0.008 weighted teraFLOPS), 4A994.d, 4A994.e (other than industrial controllers for chemical processing), 4A994.g and 4A994.h and “software” controlled under ECCNs 4D994 or 5D992 to be used on such commodities. Software must be loaded onto such commodities prior to export or reexport or be exported or reexported solely for servicing or in-kind replacement of legally exported or reexported software. All such software must remain loaded on such commodities while in Sudan;

(ii) Telecommunications equipment controlled under ECCN 5A991 and “software” controlled under ECCN 5D992 to be used in the operation of such equipment. Software must be loaded onto such equipment prior to export or be exported or reexported solely for servicing or in-kind replacement of legally exported or reexported software. All such software must remain loaded on such equipment while in Sudan;

(iii) Global positioning systems (GPS) or similar satellite receivers controlled under ECCN 7A994; and

(iv) Parts and components that are controlled under ECCN 5A992, that are installed with, or contained in, commodities in paragraphs (a)(2)(i)(B)(4) (i) and (ii) of this section and that remain installed with or contained in such commodities while in Sudan.

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Dated: February 21, 2008.

Matthew S. Borman,

Deputy Assistant Secretary for Export Administration.