E8-20585. Clarification of the Classification of Crew Protection Kits on the Commerce Control List

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to clarify that crew protection kits used as protective cabs on construction equipment are on the Wassenaar Arrangement Munitions List and are correctly classified on the Commerce Control List in the entry that applies to construction equipment built to military specifications.

DATES:

Effective date is September 5, 2008.

ADDRESSES:

You may submit comments, identified by RIN 0694-AE24, by any of the following methods:

• E-mail: [e-mail]. Include “RIN 0694-AE24” in the subject line of the message.
• Fax: [phone].
• Hand Delivery/Courier: U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, ATTN: RIN 0694-AE24.

FOR FURTHER INFORMATION CONTACT:

Gene Christiansen, Office of National Security and Technology Transfer Controls, telephone: [phone].

SUPPLEMENTARY INFORMATION:

BIS is amending the Export Administration Regulations (EAR) to add the phrase “crew protection kits” to Export Control Classification Number (ECCN) 0A018.a. This ECCN is used to control items that are listed on the Wassenaar Arrangement Munitions List (WAML). Specifically, the WAML category ML-17.b lists construction equipment “specially designed for military use.” On the Commerce Control List (CCL), ECCN 0A018.a controls items listed in category ML-17.b as “construction equipment built to military specifications.”

Recently, the Departments of Commerce, State, and Defense reviewed ECCN 0A018.a and concluded that although crew protection kits are covered by the phrase “[c]onstruction equipment built to military specifications * * * and specially designed parts and accessories therefor” as set forth in that ECCN, it would enhance the ECCN's clarity if crew protection kits were added explicitly to the ECCN's text. Crew protection kits are items that can be used as protective cabs on construction equipment to help protect crews operating in a military or otherwise hostile environment. To facilitate public understanding that crew protection kits are considered construction equipment built to military specifications, the Departments of Commerce, State, and Defense agreed to include specific reference to these kits in the descriptive text of ECCN 0A018.a.

Therefore, this regulation amends ECCN 0A018.a to include crew protection kits in the descriptive language of that paragraph. Moreover, this regulation makes slight changes to the language of ECCN 0A018.a to further clarify that the items listed are all considered to be construction equipment built to military specifications, and thus are all controlled by that ECCN. These changes do not create new export controls for crew protection kits.

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 July 23, 2008, 73 FR 43603 (July 25, 2008), 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 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 expects that this rule will not change that burden hour estimate.

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

4. Pursuant to 5 U.S.C. 553(a)(1), the provisions of the Administrative Procedure Act requiring a notice of proposed rulemaking and the opportunity for public comment are waived, because this regulation involves a military or foreign affairs function of the United States. 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 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. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted via courier or via hand delivery to Steven Emme, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230.

List of Subjects in 15 CFR Part 774

• Exports
• Reporting and recordkeeping requirements

For the reasons set forth in the preamble, the Export Administration Regulations (15 CFR 730-774) are amended as follows:

PART 774—[AMENDED]

1. The authority citation for 15 CFR 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; 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 July 23, 2008, 73 FR 43603 (July 25, 2008).

2. In Supplement No. 1 to part 774 (the Commerce Control List), Category 0—Nuclear Materials, Facilities, and Equipment [and Miscellaneous Items], ECCN 0A018 is amended by revising “Items” paragraph a. in the List of Items Controlled section to read as follows:

Supplement No. 1 to Part 774—The Commerce Control List

* * * * *

Category 0—Nuclear Materials, Facilities, and Equipment [and Miscellaneous Items]

* * * * *

0A018 Items on the Wassenaar Munitions List

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: * * *

Related Definitions: * * *

Items:

a. Construction equipment built to military specifications, including equipment specially designed for airborne transport; and specially designed parts and accessories for such construction equipment, including crew protection kits used as protective cabs;

* * * * *

Dated: August 29, 2008.

Christopher R. Wall,

Assistant Secretary for Export Administration.