2011-9613. Implementation of the Understandings Reached at the 2010 Australia Group (AG) Plenary Meeting and Other AG-Related Clarifications and Corrections to the EAR

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

The Bureau of Industry and Security (BIS) publishes this final rule to amend the Export Administration Regulations (EAR) to implement the understandings reached at the June 2010 plenary meeting of the Australia Group (AG) and to make certain AG-related editorial clarifications and corrections to the EAR. Consistent with the June 2010 AG understandings, this rule amends the chemical manufacturing equipment entry on the Commerce Control List (CCL) of the EAR to reflect the addition of two parenthetical phrases that clarify the description of certain “materials” contained in items on the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software.” In addition, this rule makes AG-related clarifications and corrections to the EAR. Specifically, this rule amends the human and zoonotic pathogens and toxins entry and the animal pathogens entry on the CCL by making an update and a clarification that are consistent with the description of items on the AG “List of Biological Agents for Export Control” and the AG “List of Animal Pathogens for Export Control,” respectively. Finally, this rule amends the listing for “valves” in the chemical manufacturing equipment entry on the CCL to clarify that it controls “valves” for the “production” of chemicals, as well as “valves” for the “processing” or “containment” of chemicals. The purpose of this rule is to ensure that the AG-related entries on the CCL conform with the wording in the AG Control Lists (as updated by the understandings reached at the 2010 AG Plenary) and to clarify the meaning of terms used in these entries.

DATES:

This rule is effective April 20, 2011.

ADDRESSES:

Send comments regarding this collection of information, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to [e-mail], or by fax to [phone]; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th Street & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230. Comments on this collection of information should be submitted separately from comments on the final rule (i.e., RIN 0694-AF04)—all comments on the latter should be submitted by one of the three methods outlined above.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Sangine, Director, Chemical and Biological Controls Division, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to implement the understandings reached at the annual plenary meeting of the Australia Group (AG) that was held in Paris, France, from May 31 through June 4, 2010. The AG is a multilateral forum consisting of 40 participating countries that maintain export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

Consistent with the understandings reached at the 2010 AG Plenary, this final rule amends Export Control Classification Number (ECCN) 2B350 (Chemical manufacturing facilities and equipment) on the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) to reflect the addition of two parenthetical phrases that describe types of “materials” contained in items on the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software.” Specifically, this rule adds a parenthetical phrase to ECCN 2B350.a .3, .b.3, .c.3, .d.3, .e.3, .g.3, .h.3., and .i.3 to clarify the meaning of the term “fluoropolymers” in connection with the types of “materials” from which certain chemical manufacturing equipment is made. This parenthetical phrase describes “fluoropolymers” as “polymeric or elastomeric materials with more than 35% fluorine by weight.” This rule also adds a parenthetical phrase in ECCN 2B350.i.11 (under the listing for “pumps”) to clarify that the “material” “ferrosilicon” refers to “high silicon iron alloys.”

In addition to the AG Plenary changes described above, this rule amends ECCN 1C351 (human and zoonotic pathogens and “toxins”) and ECCN 1C352 (animal pathogens) on the CCL by updating ECCN 1C351 and clarifying ECCN 1C352 consistent with the controls described in the AG “List of Biological Agents for Export Control” and the AG “List of Animal Pathogens for Export Control,” respectively. Specifically, this rule revises the listing for “Chlamydia psittaci” in ECCN 1C351.c.7 by updating the name of the bacterium to read “Chlamydophilapsittaci (formerly known as Chlamydia psittaci).” This rule also revises the listing for the “Lyssa virus” in ECCN 1C352.a.8 by adding a parenthetical phrase to indicate that the virus is also known as “Rabies.”

This rule also makes two clarifications to ECCN 2B350, consistent with the controls described in the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software.” First, this rule amends the introductory text of ECCN 2B350.g (“valves”) to clarify that the ECCN controls valves specified therein that are used in the “production” of chemicals, as well as valves that are used in the “processing” or “containment” of chemicals. Second, this rule revises the description of the material “Glass or glasslined (including vitrified or enameled coatings)” in ECCN 2B350.g.4 to read “Glass (including vitrified or enameled coating or glass lining)” to clarify the extent to which valves containing this type of material are controlled under this ECCN.

None of the changes made by this rule alters the scope of the controls in ECCNs 1C351, 1C352, or 2B350.

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 12, 2010, 75 FR 50681 (August 16, 2010), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

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 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 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 contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget (OMB), and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, as indicated in the ADDRESSES section of this rule.

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 and foreign affairs function of the United States (See 5 U.S.C. 553(a)(1)). Immediate implementation of these amendments is non-discretionary and fulfills the United States' international obligation to the Australia Group (AG). The AG contributes to international security and regional stability through the harmonization of export controls and seeks to ensure that exports do not contribute to the development of chemical and biological weapons. The AG consists of 40 member countries that act on a consensus basis and the amendments set forth in this rule implement agreements reached at the June 2010 plenary session of the AG and other changes that are necessary to ensure consistency with the controls maintained by the AG. Since the United States is a significant exporter of the items in this rule, implementation of this provision is necessary for the AG to achieve its purpose. Any delay in implementation will create a disruption in the movement of affected items globally because of disharmony between export control measures implemented by AG members, resulting in tension between member countries. Export controls work best when all countries implement the same export controls in a timely and coordinated manner.

Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment 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.Therefore, this regulation is issued in final form.

List of Subjects in 15 CFR Part 774

• Exports
• Foreign trade
• Reporting and recordkeeping requirements

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

PART 774—[AMENDED]

1. The authority citation for 15 CFR part 774 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 774—[Amended]

2. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 1—Special Materials and Related Equipment, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C351 is amended by removing the name “Chlamydia psittaci”, where it appears in paragraph c.7 of the “Items” paragraph in the List of Items Controlled section, and adding in its place the name “Chlamydophilapsittaci (formerly known as Chlamydia psittaci)”.

3. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 1—Special Materials and Related Equipment, Chemicals, “Microorganisms” & “Toxins,” ECCN 1C352 is amended by removing the name “Lyssa virus”, where it appears in paragraph a.8 of the “Items” paragraph in the List of Items Controlled section, and adding in its place the name “Lyssa virus (a.k.a. Rabies)”.

4. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 2—Materials Processing, ECCN 2B350 is amended under the “Items ” paragraph in the List of Items Controlled section:

a. By adding the parenthetical phrase “(polymeric or elastomeric materials with more than 35% fluorine by weight)” immediately following the word “Fluoropolymers”, where it appears in paragraphs a.3, b.3, c.3, d.3, e.3, g.3, h.3, and i.3;

b. By removing the phrase “chemical(s) being processed or contained”, where it appears in the introductory text to paragraph g, and adding in its place the phrase “chemical(s) being produced, processed, or contained”;

c. By removing the phrase “Glass or glasslined (including vitrified or enameled coatings);”, where it appears in paragraph g.4, and adding in its place the phrase “Glass (including vitrified or enameled coating or glass lining)”; and

d. By adding the parenthetical phrase “(high silicon iron alloys)” immediately following the word “Ferrosilicon”, where it appears in paragraph i.11.

Dated: April 12, 2011.

Kevin J. Wolf,

Assistant Secretary for Export Administration.