[Federal Register: September 16, 2005 (Volume 70, Number 179)]
[Rules and Regulations]
[Page 54626-54629]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16se05-7]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 736, 738, 742, 744, and 748
[Docket No. 050803216-5216-01]
RIN 0694-AD30
Revisions and Clarifications to the Export Administration
Regulations
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: This rule amends the Export Administration Regulations (EAR)
by deleting a redundant paragraph and redesignating the remaining
paragraphs in one section for clarity; inserting material inadvertently
omitted from previous rules in three places in the EAR; clarifying
instructions for applying for authorization to transfer items subject
to the EAR in-country; adding an alias for a previously listed entity
on the Entity List; and removing references to two Export Control
Classification Numbers (ECCNs) that do not exist. The purpose of these
amendments is to make corrections and clarifications to the EAR so the
public will find them easier to use.
DATES: This rule is effective September 16, 2005.
ADDRESSES: Although this is a final rule, comments are welcome and
should be sent to publiccomments@bis.doc.gov, fax (202) 482-3355, or to
Regulatory Policy Division, Bureau of Industry and Security, Room
H2705, U.S. Department of Commerce, Washington, DC 20230. Please refer
to regulatory identification number (RIN) 0694-AD30 in all comments,
and in the subject line of e-mail comments.
FOR FURTHER INFORMATION CONTACT: Timothy Mooney, Office of Exporter
Services, Bureau of Industry and Security, Telephone: (202) 482-2440,
E-mail: tmooney@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
This rule makes the following corrections and clarifications:
1. A redundant paragraph is deleted in Supplement No. 2 to part 736
of the EAR, which sets forth the Administrative Orders of the Bureau of
Industry and Security (BIS). Prior to the publication of this rule,
Administrative Order Two contained a paragraph designated as (a), the
introductory text of which merely repeated the title of the order. The
order contained no paragraph designated as (b). This rule removes the
introductory text of paragraph (a) and redesignates all subsequent
paragraphs accordingly.
2. In paragraph 738.2(d)(2)(i)(A), an omission is corrected by
adding ``UN United Nations Embargo'' in alphabetical order to the list
of all possible Reasons for Control. That phrase was previously
inadvertently omitted.
3. In paragraph 738.4(b)(3) (Sample analysis), a typographical
error is fixed in the third sentence by inserting the preposition
``of'' into the phrase discussing nuclear nonproliferation controls.
The phrase ``I understand that though nuclear nonproliferation controls
apply to a portion the entry * * *'' now reads ``I understand that
though nuclear nonproliferation controls apply to a portion of the
entry * * *''.
4. In Section 742.19, references to ECCNs 2B994 and 2C994, which do
not exist, are removed, and references to ECCNs 2D994 and 2E994 are
added. In June 2000, the EAR were amended to reduce export and reexport
controls to North Korea (65 FR 38148, June 19, 2000). Prior to
publication of that rule, almost all exports and reexports to North
Korea of items subject to the EAR required a license. Although that
rule reduced license requirements to North Korea overall, it retained
license requirements for most items controlled on the Commerce Control
List (CCL). These license requirements were enumerated in a newly
created Section 742.19 and included all items on the CCL except those
items controlled under ECCNs 0A988 and 0A989. This was clarified as
including all items controlled for Anti-Terrorism (AT) reasons,
including any item on the CCL containing AT column 1 or AT column 2 in
the Country Chart column of the
[[Page 54627]]
License Requirements section of an ECCN, as well as numerous
specifically identified ECCNs which were controlled for AT reasons but
which did not make reference to the Country Chart. When listing the
ECCNs of items controlled for AT reasons but which did not make
reference to the Country Chart, the rule mistakenly listed ECCNs 2B994
and 2C994, which did not then (and still do not) exist. In addition,
the rule neglected to specifically mention ECCNs 2D994 and 2E994, both
of which were controlled for AT reasons but did not reference the
Country Chart. This rule corrects that error by replacing the
references in paragraph 742.19(a)(1) to 2B994 and 2C994 with references
to 2D994 and 2E994.
5. Supplement No. 4 to part 744 (Entity List) is amended by
revising the entry for the Beijing University of Aeronautics and
Astronautics (BUAA) by adding an alias, Beihang University. This alias
is being added because the Chinese name for BUAA is sometimes
translated into English as Beihang University. The Entity List now
notifies the public that a license is required for the export or
reexport of all items subject to the EAR to the ``Beijing University of
Aeronautics and Astronautics (BUAA), a.k.a. Beihang University''.
6. In section 748.8 (Unique Application and Submission
Requirements), this rule adds instructions on how to apply for
authorization to transfer items subject to the EAR in-country using the
BIS Multipurpose Application (Form 748-P) and its electronic equivalent
in the Simplified Network Application Process (SNAP). This rule adds
paragraph ``(v) In-country transfers'' to section 748.8 and adds
specific instructions for filling out applications for in-country
transfers in Supplement No. 2 to part 748 (Unique Application and
Submission Requirements). These application instructions will insure
that applications for in-country transfer authorization are filled out
correctly, and will also clarify for the public that a temporary
license application process created in 2004 is no longer necessary and
should no longer be used due to improvements in BIS software. The
history of the application process for in-country transfer
authorization is explained in more detail below.
In July 2004, the EAR were amended when licensing responsibility
for exports and reexports to Iraq of items subject to the EAR reverted
from the Department of the Treasury to the Department of Commerce (69
FR 46077, July 30, 2004). These amendments created a new requirement
for authorization to make certain in-country transfers in Iraq. Because
of an inability at that time to modify the BIS software that processes
and tracks license application data submitted through the Multipurpose
Application, BIS created a unique process to apply for authorization to
transfer items in-country, which did not require use of either BIS Form
748-P or its electronic equivalent, but required the applicant to
submit a letter request to BIS. That process was explained in guidance
published on the BIS Web site. Since July 2004, additional requirements
for in-country transfer authorization have been issued, specifically in
sections 744.3 and 744.4 of the EAR.
From November 17, 2004 to June 17, 2005, BIS received 209
applications for in-country transfer authorization under section 746.3
and part 744 of the EAR, and pursuant to conditions that had been
placed on licenses issued by BIS. Only one of these applications was
submitted according to the letter process set up in July 2004, and the
rest were submitted using BIS Form 748-P. To improve the handling of
these applications, BIS updated its software, which can now more
effectively process and track in-country transfer application data
received from the Multipurpose Application. With this improved
software, BIS is now eliminating the letter application process created
in July 2004, and is instead requiring all in-country transfer
authorization applications to be submitted using BIS Form 748-P or its
electronic equivalent. This new process will apply to applications to
make in-country transfers under the EAR, including under sections
744.3, 744.4, 744.6, 744.18 and 746.3 of the EAR, and pursuant to
conditions imposed on licenses issued under the EAR.
Despite the progress that has been made updating BIS software, it
still has not been modified to process and track data provided through
fields that are not currently available on the BIS Form 748-P and its
electronic equivalent. Therefore, as an interim measure, BIS requires
an applicant for in-country transfer authorization to designate its
proposed transaction as a ``reexport'' in Box 5 of the BIS 748-P or its
electronic equivalent, which will allow BIS software to process and
track information regarding both an original ultimate consignee and a
new ultimate consignee related to the transaction. This rule also
instructs the applicant to enter ``in-country transfer'' in Box 9 of
BIS 748-P or its electronic equivalent, which will allow BIS software
to recognize that the application is for in-country transfer
authorization, rather than reexport authorization. Further, the
applicant is directed by this rule to state the same foreign country
for both the original ultimate consignee and the new ultimate
consignee.
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 2, 2005,
70 FR 45273 (August 5, 2005), has continued the Export Administration
Regulations in effect under the International Emergency Economic Powers
Act.
Rulemaking Requirements
1. This final rule has been determined to be not significant for
purposes of E.O. 12866.
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, unless that collection of
information displays a currently valid Office of Management and Budget
Control Number. This rule involves a collection of information subject
to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). 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 for a manual or electronic
submission. Send comments regarding these burden estimates or any other
aspect of these collections of information, including suggestions for
reducing the burden, to David Rostker, Office of Management and Budget
(OMB), by e-mail to David_Rostker@omb.eop.gov, or by fax to (202) 395-
7285; and to the Office of Administration, Bureau of Industry and
Security, Department of Commerce, 14th and Pennsylvania Avenue, NW.,
Room 6883, Washington, DC 20230.
3. This rule does not contain policies with Federalism implications
as that term is defined under E.O. 13132.
4. The Department finds that there is good cause under 5 U.S.C.
553(b)(3) to waive the provisions of the Administrative Procedure Act
requiring prior notice and the opportunity for public comment because
it is unnecessary. This regulation deletes a redundant paragraph and
redesignates the remaining paragraphs in one section for clarity;
inserts material inadvertently omitted from previous rules in three
places in the EAR; clarifies instructions for applying for
authorization to transfer items subject to the EAR in-country; adds an
alias for a listed entity on the
[[Page 54628]]
Entity List; and removes references to two ECCNs that do not exist. The
revisions made by this rule are administrative in nature and do not
affect the rights and obligations of the public. Because these
revisions are not substantive changes to the EAR, it is unnecessary to
provide notice and opportunity for public comment. In addition, the 30-
day delay in effectiveness required by U.S.C. 553(d) is not applicable
because this rule is not a substantive rule. No other law requires that
a notice of proposed rulemaking and an opportunity for public comment
be given for this rule.
Because notice of proposed rulemaking and 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
15 CFR Parts 736 and 738
Exports.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism.
15 CFR part 748
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
0
Accordingly, parts 736, 738, 742, 744, and 748 of the Export
Administration Regulations (15 CFR parts 730-799) are amended as
follows:
PART 736--[AMENDED]
0
1. The authority citation for part 736 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. 2151 (note), Pub. L. 108-175; E.O. 12938, 59 FR 59099, 3
CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp.,
p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR
26751, 3 CFR, 2004 Comp., p. 168; Notice of November 4, 2004, 69 FR
64637, 3 CFR, 2004 Comp., p. 303; Notice of August 2, 2005, 70 FR
45273 (August 5, 2005).
0
2. Supplement No. 2 to part 736, is amended in ``Administrative Order
Two'' by:
0
a. Removing the introductory text of paragraph (a);
0
b. By redesignating paragraph (a)(1) as paragraph (a) introductory text
and by redesignating paragraph (a)(2) as paragraph (b);
0
c. By redesignating paragraphs (a)(1)(i) and (a)(1)(ii) as paragraphs
(a)(1) and (a)(2);
0
d. By redesignating paragraph (a)(1)(iii) as paragraph (a)(3); and
0
e. By redesignating paragraph (a)(1)(iv) as paragraph (a)(4).
PART 738--[AMENDED]
0
3. The authority citation for 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); 18 U.S.C. 2510 et seq.; 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 2, 2005, 70 FR 45273 (August 5, 2005).
Sec. 738.2 [Amended]
0
4. Section 738.2 paragraph (d)(2)(i)(A), is amended by adding in
alphabetical order ``UN United Nations Embargo'' to the list of all
possible Reasons for Control.
Sec. 738.4 [Amended]
0
5. Section 738.4 paragraph (b)(3) is amended by revising the phrase in
the third sentence, `` I understand that though nuclear
nonproliferation controls apply to a portion the entry'' to read ``I
understand that though nuclear nonproliferation controls apply to a
portion of the entry''.
PART 742--[AMENDED]
0
6. 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.;
18 U.S.C. 2510 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, 3 CFR, 2003 Comp., p. 320; Notice of November 4,
2004, 69 FR 64637, 3 CFR, 2004 Comp., p. 303; Notice of August 2,
2005, 70 FR 45273 (August 5, 2005).
0
7. Section 742.19 is amended by revising the second sentence of
paragraph (a)(1), to read as follows:
Sec. 742.19 Anti-terrorism: North Korea.
(a) License requirements.
(1) * * * This includes all items controlled for AT reasons,
including any item on the CCL containing AT column 1 or AT column 2 in
the Country Chart column of the License Requirements section of an
ECCN; and ECCNs 0A986, 0A999, 0B986, 0B999, 0D999, 1A999, 1B999, 1C995,
1C999, 1D999, 2A994, 2A999, 2B999, 2D994, 2E994, 3A999, and 6A999.
* * * * *
PART 744--[AMENDED]
0
8. The authority citation for part 744 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; 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. 12947, 60
FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p.
208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224,
66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of November 4, 2004,
69 FR 64637, 3 CFR, 2004 Comp., p. 303; Notice of August 2, 2005, 70
FR 45273 (August 5, 2005).
0
9. Supplement No. 4 to part 744 is amended by revising under the
Country, ``China, People's Republic of'' the entry for ``Beijing
University of Aeronautics and Astronautics (BUAA)'', to read as
follows.
[[Page 54629]]
Supplement No. 4 to Part 744.--Entity List
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License License review Federal Register
Country Entity requirement policy citation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
China, People's Republic of..... Beijing University For all items See Sec. 66 FR 24266 5/14/
of Aeronautics subject to the 744.3(d) of this 01
and Astronautics EAR. part. 70 FR [Insert FR
(BUAA), a.k.a. Page Number] 9/16/
Beihang 05.
University.
* * * * * * *
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PART 748--[AMENDED]
0
10. The authority citation for part 748 is revised to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 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 2, 2005, 70 FR
45273 (August 5, 2005).
0
11. Section 748.8 is amended by adding new paragraph (v), to read as
follows:
Sec. 748.8 Unique application and submission requirements.
* * * * *
(v) In-country transfers.
0
12. Supplement No. 2 to part 748 is amended by adding new paragraph
(v), to read as follows:
Supplement No. 2 to Part 748--Unique Application and Submission
Requirements
* * * * *
(v) In-country transfers. To request an in-country transfer, you
must specify ``in-country transfer'' in Block 9 (Special Purpose) and
mark ``Reexport'' in Block 5 (Type of Application) of the BIS-748P
``Multipurpose Application'' form. The application also must specify
the same foreign country for both the original ultimate consignee and
the new ultimate consignee.
Dated: September 9, 2005.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 05-18373 Filed 9-15-05; 8:45 am]
BILLING CODE 3510-33-P