06-2685. Corrections and Clarifications to the Export Administration Regulations

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This rule revises the Export Administration Regulations (EAR) to clarify certain provisions or to update technical information. The Bureau of Industry and Security identified these revisions through internal review or questions from the public.

DATES:

This rule is effective March 21, 2006.

ADDRESSES:

Send comments regarding the Paperwork Reduction Act burden estimates or any other aspect of the collection of information affected by this rule to David Rostker, OMB Desk Officer, by e-mail at [e-mail] or by fax to 202 395 7285; with a copy to the Regulatory Policy Division, Bureau of Industry and Security at one of the addresses below. Send comments concerning any other aspect of this rule via e-mail to [e-mail], via fax to 202 482 3355 or to the Regulatory Policy Division, Bureau of Industry and Security, Room H2017, U.S. Department of Commerce, Washington, DC 20230. Please refer to RIN 0694-AD67 in all comments.

FOR FURTHER INFORMATION CONTACT:

William Arvin, Regulatory Policy Division, [e-mail], tel. [phone].

SUPPLEMENTARY INFORMATION:

Background

BIS reviews the EAR to identify provisions that contain incorrect citations, are obsolete, or that otherwise need correcting. In addition, members of the public sometimes point out provisions that need revising. This rule makes several such revisions as more fully described below.

Clarification of Country Group Restrictions on Use of Certain License Exceptions

Section 740.9(b) of the Export Administration Regulations provides an exception to export license requirements for items temporarily in the United States under certain circumstances. Two of those circumstances are: Items traveling through the United States, and items imported into the United States for display at exhibitions or trade fairs. If such items are listed on the Commerce Control List for national security, nuclear nonproliferation, chemical or biological weapons proliferation or missile technology reasons, the License Exception provisions that govern these two circumstances do not authorize exports to certain destinations in Country Group D (Supp. No. 1 to Part 740) because of national security, nuclear nonproliferation, chemical or biological weapons, or missile technology concerns.

Clarification of Country Group Restrictions on Use of License Exception TMP for Items Moving Through the United States

Prior to publication of this rule, § 740.9(b)(1)(i), which relates to items moving in transit through the United States, transposed terms in a way that could appear to restrict items controlled for missile technology reasons from being sent to countries of concern for chemical and biological weapons reasons and to restrict items controlled for chemical and biological reasons to countries of concern regarding missiles. Specifically, the phrase “Items controlled for national security, nuclear proliferation, missile technology, or chemical and biological weapons reasons may not be exported to Country Group D:1, 2, 3, or 4 * * * respectively * * *” appeared to restrict items controlled for missile technology reasons from Country Group D:3, although Country Group D:3 lists countries of concern for chemical and biological weapons reasons, and to restrict items controlled for chemical or biological weapons proliferation reasons from Country Group D:4, although Country Group D:4 of the EAR, lists countries of concern for missile technology reasons. This rule transposes the phrases “missile technology” and “chemical or biological weapons” in § 740.9(b)(1)(i) to match them to their relevant country groups.

Clarification of Country Group Restrictions on Use of License Exception TMP for Items Imported Into the United States for Exhibitions or Trade Fairs

Prior to publication of this rule, § 740.9(b)(2)(ii)(C), which relates to items imported for display at exhibitions or trade fairs and being exported to a destination other than that from which imported, transposed terms in a way that could appear to restrict items controlled for missile technology reasons from being sent to countries of concern for nuclear proliferation reasons and to restrict items controlled for nuclear proliferation reasons from being sent to countries of concern for missile proliferation reasons. Specifically, the phrase “Exports to Country Group D:1, 2, 3, or 4 * * * of items controlled for national security, missile technology, chemical or biological weapons reasons or nuclear proliferation, respectively” illogically appeared to restrict items controlled for missile technology reasons from Country Group D:2 although Country Group D:2 lists countries of concern for nuclear proliferation reasons and to restrict items controlled for nuclear nonproliferation reasons from Country Group D:4 although Country Group D:4 lists countries of concern for missile proliferation reasons. This rule transposes the phrases “missile technology” and “nuclear proliferation” in § 740.9(b)(2)(ii)(C) to match them to their relevant country groups.

Correction of Citations in Statement of Licensing Policy Regarding Entities Sanctioned Pursuant to Section 11B(1)(B) of the Export Administration Act

Section 744.19 of the EAR describes BIS's licensing policy regarding certain sanctioned entities, including entities sanctioned pursuant to section 11B(1)(B) of the Export Administration Act of 1979 as amended. Prior to publication of this rule, paragraph (c) of § 744.19 incorrectly cited section 11B(1)(B)(i) of the EAA as the section providing for denial of items controlled pursuant to the Export Administration Act of 1979 and paragraph (d) incorrectly cited section 11B(1)(B)(ii) as the section providing for denial of items on the MTCR Annex. The citations should be reversed. This rule replaces the “(i)” in the citation in paragraph (c) with a “(ii)” and the “(ii)” in the citation in paragraph (d) with a “(i)” thereby correcting the citations.

Revision of Administrative Law Judge Address

This rule revises the address of the Administrative Law Judge in § 766.24 to reflect the address currently in use.

Removal of Obsolete Interpretation

This rule removes and reserves § 770.1(c)—Interpretation 3—because the commodities to which it applies are no longer on the Commerce Control List. That interpretation first appeared in the regulations in 1966, when metallic wire and cable were listed on the antecedent of the Commerce Control List. No such entry has appeared on the Commerce Control List in several years.

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 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, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule involves collections of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et. seq.). These collections have been approved by Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes for a manual or electronic submission. BIS believes that this rule will not materially affect the burden imposed by this collection.

3. This rule does not contain policies with federalism implications as that term is defined under E.O. 13132.

4. The Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because it is unnecessary. The changes made by this rule correct inadvertent drafting errors. Therefore it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule.

Because notice of proposed rulemaking and 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.

List of Subjects

15 CFR Part 740

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

15 CFR Part 744

• Exports
• Reporting and recordkeeping requirements
• Terrorism

15 CFR Part 766

• Administrative practice and procedure
• Confidential business information
• Exports
• Law enforcement
• Penalties

15 CFR Part 770

• Exports

Accordingly, parts 740, 744, 766 and 770 of the Export Administration Regulations (15 CFR 770-799) are amended as follows:

PART 740—LICENSE EXCEPTIONS

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 2, 2005, 70 FR 45273 (August 5, 2005).

2. In § 740.9, revise paragraphs (b)(1)(i) and (b)(2)(ii)(C) to read as follows:

§ 740.9

Temporary imports, exports, and reexports (TMP).

* * * * *

(b) * * *

(1) * * *

(i) Items controlled for national security reasons, nuclear nonproliferation reasons, chemical and biological weapons reasons or missile technology reasons may not be exported to Country Group D:1, 2, 3, or 4 (see Supplement No. 1 to part 740), respectively, under this paragraph (b)(1).

* * * * *

(2) * * *

(ii) * * *

(C) Exports to Country Group D:1, 2, 3, or 4 (see Supplement No. 1 to part 740) of items controlled for national security reasons, nuclear nonproliferation reasons, chemical and biological weapons reasons or missile technology reasons, respectively.

* * * * *

PART 744—CONTROL POLICY: END-USER AND END-USE BASED

3. The authority citation for 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 August 2, 2005, 70 FR 45273 (August 5, 2005); Notice of October 25, 2005, 70 FR 62027 (October 27, 2005).

4. In § 744.19, revise paragraphs (c) and (d) to read as follows:

§ 744.19

Licensing policy regarding persons sanctioned pursuant to specified statutes.

* * * * *

(c) A sanction issued pursuant to section 11B(b)(1)(B)(ii) of the Export Administration Act of 1979, as amended, and as carried out by Executive Order 13222 of August 17, 2001, that prohibits the issuance of new licenses for exports to the sanctioned entity of items controlled pursuant to the Export Administration Act of 1979.

(d) A sanction issued pursuant to section11B(b)(1)(B)(i) of the Export Administration Act of 1979, as amended (Missile Technology Control Act of 1990), and as carried out by an Executive Order 13222 of August 17, 2001, that prohibits the issuance of new licenses for exports to the sanctioned entity of MTCR Annex equipment or technology controlled pursuant to the Export Administration Act of 1979.

PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS

5. The authority citation for part 766 is revised to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005).

6. In § 766.24, revise the second sentence of paragraph (e)(3) to read as follows:

§ 766.24

Temporary denials.

* * * * *

(e) * * *

(3) Appeal Procedure.

* * * Service on the administrative law judge shall be addressed to U.S. Coast Guard, ALJ Docketing Center, 40 S. Gay Street, Baltimore, Maryland, 21202-4022. * * *

* * * * *

PART 770—INTERPRETATIONS

7. The authority citation for part 770 is revised to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 2, 2005, 70 FR 45273 (August 5, 2005).

§ 770.2

[Amended]

8. In § 770.2, remove and reserve paragraph (c).

Dated: March 14, 2006.

Matthew S. Borman,

Deputy Assistant Secretary for Export Administration.