E7-3895. Revisions and Clarifications of License Exception Availability, License Requirements and Licensing Policy for Certain Crime Control Items

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This rule removes the geographic restrictions on use of a license exception used to ship items to U.S. government agencies, applies those geographic restrictions on use of license exceptions to crime control software and technology, reclassifies thumbcuffs on the Commerce Control List, and restates and emphasizes BIS's policy of distinguishing crime control items from specially designed implements of torture for export control purposes.

DATES:

This rule is effective March 6, 2007.

ADDRESSES:

Comments may be submitted by e-mail to [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-AD47 in all comments. Comments on the information collection 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 Regulatory Identification Number (RIN) 0694-AD47 in all comments.

FOR FURTHER INFORMATION CONTACT:

Steven B. Clagett, Director, Nuclear and Missile Technology Controls Division, Office of Nonproliferation and Treaty Compliance [phone].

SUPPLEMENTARY INFORMATION:

Background

The Export Administration Regulations (EAR) impose license requirements on certain items because of their potential use in crime control activities. These license requirements are maintained to support U.S. foreign policy to promote human rights. This rule revises the EAR to make certain shipments of crime control items consigned to and for the use of U.S. government agencies eligible for a license exception. It also clarifies and strengthens limits on use of License Exceptions for crime control items generally and clearly delineates between our export control policies regarding legitimate crime control items (a policy of reviewing license applications based on the human rights record in the destination country with some exceptions to the license requirements available in appropriate circumstances) and our policies regarding specially designed implements of torture (a general policy of denial of license applications and no license exceptions available). In addition to these changes, BIS is continuing to review the list of items restricted for crime control reasons to ensure that such controls keep pace with the technologies currently used by law enforcement. The specific changes made by this rule are described more fully below.

Specific Changes Made by This Rule

Clarification of the Application of the Restrictions in § 740.2(a)(4) to Software and Technology

This rule replaces the word “commodities” in paragraph (a)(4) of § 740.2 with the word “items” to make clear that the restrictions of paragraph (a)(4) on the use of License Exceptions to export or reexport crime control items apply to software and technology, as well as commodities.

Exemption of Exports and Reexports to and for the Official Use of the United States Government From the Restrictions of § 740.2(a)(4)

This rule revises paragraph (a)(4) of § 740.2 to permit the use of License Exception GOV for the export of items subject to § 742.7 of the EAR if consigned to and for the official use of any U.S. government agency, worldwide. Although this change applies to any U.S. Government agency, BIS is making it at this time because of the need to supply U.S. armed forces in locations that, prior to publication of this rule, would be subject to the geographic restriction on use of License Exceptions for crime control items. This rule does not expand the scope of eligible recipients under License Exception GOV. In particular, this rule does not make shipments consigned to contractors employed by the U.S. government eligible for License Exception GOV. This rule also reformats paragraph (a)(4) while retaining its pre-existing exemptions for shipments to NATO countries, Australia, New Zealand and Japan as well as certain shipments of shotguns for personal use.

Clarification of Policy Regarding Specially Designed Implements of Torture

This rule creates a new paragraph (a)(10) in § 740.2. The new paragraph (a)(10) expressly prohibits the use of License Exceptions for all commodities subject to the license requirements of § 742.11 of the EAR (specially designed implements of torture and some related commodities).

Clarification of the Applicability of § 742.11 to All Commodities in ECCN 0A983

This rule revises the heading and paragraph (a) of § 742.11 of the EAR to make clear that the license requirements and licensing policy of that section apply to all commodities that are controlled by Export Control Classification Number (ECCN) 0A983. Such was BIS's interpretation prior to publication of this rule and BIS does not view this as a substantive change. However, prior to publication of this rule, ECCN 0A983 referred to “specially designed implements of torture and thumbscrews; and parts and accessories, n.e.s.,” whereas § 742.11 referred to “specially designed implements of torture controlled by ECCN 0A983.” This rule makes the wording of the headings of § 742.11 and ECCN 0A983 identical and revises the license requirements section of § 742.11 to refer to “any commodity controlled by ECCN 0A983.”

Placement of Thumbcuffs in ECCN 0A983 To Reflect Licensing Policy

This rule removes thumbcuffs from ECCN 0A982 and adds them to ECCN 0A983. BIS's licensing policy is generally to deny applications to export or reexport thumbcuffs. Controlling them under ECCN 0A983, for which § 742.11 of the EAR provides a general policy of denial, more accurately states BIS's licensing policy than does controlling them under ECCN 0A982, for which § 742.7 provides for favorable case-by-case consideration “unless there is civil disorder in the country or region or unless there is evidence that the government of the importing country may have violated internationally recognized human rights.” In addition, this change will make thumbcuffs ineligible for any License Exception under any circumstances. This rule also adds a “related controls” note to ECCN 0A982 to guide readers to ECCN 0A983 for controls on thumbcuffs.

Although the Export Administration Act of 1979 (EAA), as amended, 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 3, 2006, 71 FR 44551 (August 7, 2006), continues the EAR in effect under the International Emergency Economic Powers Act (IEEPA).

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 involves collections 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 estimates that this rule will reduce the number of multi-purpose application forms that must be filed by about 100 per year.

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

15 CFR Part 740

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

15 CFR Part 742

• Exports
• Terrorism

15 CFR Part 774

• Exports
• Reporting and recordkeeping requirements

For the reasons set forth in the preamble, parts 740, 742 and 774 of 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).

2. In § 740.2, revise paragraph (a)(4) and add paragraph (a)(10) to read as follows:

§ 740.2

Restrictions on all License exceptions.

(a) * * *

(4) The item being exported or reexported is subject to the license requirements described in § 742.7 of the EAR and the export or reexport is not:

(i) Being made to Australia, Japan, New Zealand, or a NATO (North Atlantic Treaty Organization) member state (see NATO membership listing in § 772.1 of the EAR);

(ii) Authorized by § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. government); or

(iii) Authorized by § 740.14(e) of the EAR (certain shotguns and shotgun shells for personal use).

* * * * *

(10) The commodity being exported or reexported is subject to the license requirements of § 742.11 of the EAR.

* * * * *

PART 742—[AMENDED]

3. The authority citation for part 742 is revised 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; Sec. 1503, Pub. L. 108-11,117 Stat. 559; 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. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of October 27, 2006, 71 FR 64109 (October 31, 2006).

4. In § 742.11, revise the heading and paragraph (a) to read as follows:

§ 742.11

Specially designed implements of torture, thumbscrews, and thumbcuffs; and parts and accessories, n.e.s.

(a) License Requirements. In support of U.S. foreign policy to promote the observance of human rights throughout the world, a license is required to export any commodity controlled by ECCN 0A983 to all destinations including Canada.

* * * * *

PART 774—[AMENDED]

5. The authority citation for part 774 is revised to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; 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).

Supplement No. 1 to Part 774—[Amended]

6. In Supplement No. 1 to Part 774, Category 0, Export Control Classification Number 0A982, revise the heading and the “Related Controls” paragraph in the “List of Items Controlled” section to read as follows:

0A982 Restraint devices, including leg irons, shackles, and handcuffs; straight jackets, plastic handcuffs; and parts and accessories, n.e.s.

* * * * *

List of Items Controlled

Unit * * *

Related Controls: Thumbcuffs are controlled under ECCN 0A983.

* * * * *

Supplement No. 1 to Part 774—[Amended]

7. In Supplement No. 1 to Part 774, Category 0, Export Control Classification Number 0A983, revise the heading to read as follows:

0A983 Specially designed implements of torture, thumbscrews, and thumbcuffs; and parts and accessories, n.e.s.

* * * * *

Dated: February 26, 2007.

Christopher A. Padilla,

Assistant Secretary for Export Administration.