2011-5079. Amendment to the Export Administration Regulations: Application Processing, Issuance, and Denial

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) by clarifying the Application Processing, Issuance, and Denial provisions concerning BIS's authority to revise, suspend or revoke licenses.

DATES:

This rule is effective March 2, 2011.

FOR FURTHER INFORMATION CONTACT:

Sheila Quarterman, Bureau of Industry and Security, Regulatory Policy Division, by phone at 202-482-2440, or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

 

Amendment to the Export Administration Regulations: Part 750—Application Processing, Issuance, and Denial

Part 750 of the EAR provides for the revision, suspension or revocation of licenses whenever it is known that the EAR have been violated or that a violation is about to occur. In this final rule, BIS revises the first sentence in paragraph (a) of Section 750.8 (Revocation or suspension of licenses) by removing the phrase “whenever it is known that the EAR have been violated or that a violation is about to occur.” Harmonization is an objective for agencies under Executive Order 13563, which states: “In developing regulatory actions and identifying appropriate approaches, each agency shall attempt to promote such coordination, simplification, and harmonization.” This change will clarify BIS's authority to revise, suspend, or revoke licenses and will harmonize Section 750.8(a) of the EAR, concerning licenses, with an analogous provision in Section 740.2(b) regarding the revision, suspension or revocation of license exceptions under the EAR. BIS makes this change in Part 750 to make it clear and consistent with § 740.2(b) that the United States' ability to revoke or suspend a license is not limited to only when the EAR have been violated or that a violation is about to occur but also to prevent licensed export transactions in which the United States may subsequently have an interest, including a foreign policy interest.

Since August 21, 2001, the Export Administration Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 16, 2010 (75 FR 50681, August 16, 2010), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

Rulemaking Requirements

1. This final rule has been determined to be significant for the purposes of Executive Order 12866.

2. Notwithstanding any other provisions 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 rule does not involve a collection of information and, therefore, does not implicate requirements of the PRA.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. The Department finds that the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring prior notice, 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)) or, in the alternative, the Department for good cause finds that prior notice and opportunity for public comment are contrary to the public interest (5 U.S.C. 553(b)(B)). It is contrary to the public interest to delay clarifying the Department's authority to revise, suspend or revoke licenses because this delay may allow for the occurrence of certain export transactions that the United States has an interest, including a foreign policy interest, in preventing. Therefore, this regulation is issued in final form. In addition, the Department finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the reasons provided above. Accordingly, this regulation is made effective immediately upon publication.

No other law requires that a notice of proposed rulemaking and an opportunity for public comments 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.

List of Subjects in 15 CFR Part 750

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

Accordingly, part 750 of the Export Administration Regulations (15 CFR Parts 730-774) is amended as follows:

PART 750—[AMENDED]

1. The authority citation for 15 CFR Part 750 continues to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; Sec 1503, Pub. L. 108-11, 117 Stat. 559: 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 2003-21 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 12, 2010, 75 FR 50681 (August, 16, 2010).

§ 750.8

[Amended]

2. The first sentence of paragraph (a) of § 750.8 is amended by removing the text “whenever it is known that the EAR have been violated or that a violation is about to occur.”

Dated: March 2, 2011.

Kevin J. Wolf,

Assistant Secretary for Export Administration.