2011-17607. Addition of the New State of the Republic of South Sudan to the Export Administration Regulations

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) to add controls on exports and reexports of U.S.-origin dual-use items to a new nation, the Republic of South Sudan. In January 2011, a referendum was held in the region of Southern Sudan to determine whether that region would remain part of Sudan or become a separate, independent nation. On February 7, 2011, the referendum commission announced that the region of Southern Sudan had voted to become a separate nation, effective July 9, 2011. On February 7, 2011, recognizing this historic milestone in the implementation of the Comprehensive Peace Agreement (CPA), President Obama announced the intention of the United States to formally recognize the Republic of South Sudan as a sovereign state in July, 2011.

BIS is therefore amending the EAR to reflect the July 9, 2011 formal recognition by adding the new nation, the Republic of South Sudan, to the Commerce Country Chart and including it in Country Group B, which will render the destination eligible for certain export and reexport License Exceptions. The controls that continue to apply to “Sudan” under the EAR will not apply to the Republic of South Sudan.

DATES:

This rule is effective July 9, 2011.

FOR FURTHER INFORMATION CONTACT:

Susan Kramer, Foreign Policy Controls Division, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, Telephone: [phone], or E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Background

Transition to the New and Independent State of the Republic of South Sudan

The Republic of the Sudan (“Sudan”), referred to as “Sudan” in the EAR, was designated by the Secretary of State as a state sponsor of terrorism under U.S. law on August 12, 1993 (58 FR 52523, Oct. 8, 1993). On November 3, 1997, the President issued Executive Order (E.O.) 13067 (Blocking Sudanese Government Property and Prohibiting Transactions with Sudan), imposing comprehensive economic sanctions against Sudan because of the policies and actions of the Government of Sudan, including its continued support for international terrorism.

Consistent with the state sponsor of terrorism designation, the Department of Commerce imposed anti-terrorism controls on Sudan under the authority of Section 6 of the Export Administration Act of 1979, as amended (EAA). Specifically, Section 742.10 of the EAR restricts the export or reexport to Sudan of most items subject to the EAR that are listed on the Commerce Control List (CCL).

On January 9, 2005, the Government of the Republic of the Sudan and the Sudan People's Liberation Movement signed the Comprehensive Peace Agreement (CPA) ending the 22-year civil war, and in October, 2006, pursuant to E.O. 13412 the regional government of Southern Sudan was excluded from the definition of the “Government of Sudan” set forth in E.O. 13067, consistent with Sec. 8(e) of the Darfur Peace and Accountability Act of 2006.

Pursuant to the constitution developed under the CPA, in January 2011, a referendum was held in the region of Southern Sudan to determine whether that region would remain part of Sudan or become a separate, independent nation. On February 7, 2011, the referendum commission announced that the region of Southern Sudan had voted to become a separate nation, effective July 9, 2011.

Recognizing this historic milestone in the implementation of the CPA, on February 7, 2011, President Obama announced the intention of the United States to formally recognize the Republic of South Sudan as a sovereign state. BIS is therefore amending the EAR to reflect this formal recognition as of July 9, 2011, by adding the new nation of the Republic of South Sudan to the Commerce Country Chart and including the new nation as part of Country Group B, which will render the destination eligible for certain export and reexport License Exceptions. The controls that continue to apply to “Sudan” under the EAR will not apply to the Republic of South Sudan. Through this amendment, BIS imposes appropriate export control requirements for U.S.-origin dual-use exports and reexports to the new nation.

Amendments to the EAR To Add the Republic of South Sudan

This rule adds the Republic of South Sudan to the Commerce Country Chart in Supplement No. 1 to Part 738 of the EAR and adds appropriate “X” symbols denoting license requirements implementing these controls for the new country. It also adds the new country to Country Group B in Supplement No. 1 to Part 740 of the EAR. Country Group B includes a wide range of countries raising relatively few national security concerns. Countries in Country Group B are eligible for several License Exceptions not available for exports or reexports to countries in Country Groups D or E. The EAR will now list two countries with “Sudan” in their names: the Republic of the Sudan, referred to as “Sudan” in the EAR, the capital city of which is Khartoum, and the Republic of South Sudan, the capital of which is expected to be Juba. With the publication of this rule, BIS will require a license for the export or reexport to the Republic of South Sudan of items controlled unilaterally for regional stability and crime control reasons, and items controlled by the multilateral export control regimes (Australia Group, Wassenaar Arrangement, Chemical/Biological Weapons Conventions, Nuclear Suppliers Group, Missile Technology Control Regime). Other reasons for control under the EAR also may apply.

This rule does not change the existing license requirements or licensing policy for exports and reexports of items to any other country under the EAR.

Since August 21, 2001, the Export Administration Act of 1979, as amended, 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. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

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 involves a collection of information subject to the PRA. This collection has been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule.

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

4. Pursuant to 5 U.S.C. 553(a)(1), the provisions of the Administrative Procedure Act 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)). This final rule implements the United States new policy to recognize the new and independent state of the Republic of South Sudan as announced by the President. 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. 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.

List of Subjects

15 CFR Part 738

• Exports

15 CFR Part 740

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

Accordingly, parts 738 and 740 of the EAR (15 CFR parts 730-774) are amended as follows:

PART 738—[AMENDED]

1. The authority citation for 15 CFR Part 738 continues 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; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; 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 12, 2010, 75 FR 50681 (August 16, 2010).

Supplement No. 1 to Part 738—[Amended]

2. Supplement No. 1 to part 738—Commerce Country Chart—is amended

a. By adding in alphabetical order the “Country” “South Sudan, Republic of”; and

b. By adding for “South Sudan, Republic of” an “X” in columns “CB1”, “CB2”, “NP1”, “NS1”, “NS2”, “MT1”, “RS1”, “RS2”, “CC1” and “CC3”.

PART 740—[AMENDED]

3. The authority citation for 15 CFR Part 740 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. 7201 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 12, 2010, 75 FR 50681 (August 16, 2010).

4. Supplement No. 1 to Part 740—Country Groups—is amended by adding in alphabetical order “South Sudan, Republic of” to “Country Group B”.

Dated: July 6, 2011.

Kevin J. Wolf,

Assistant Secretary for Export Administration.