[Federal Register Volume 75, Number 55 (Tuesday, March 23, 2010)]
[Rules and Regulations]
[Pages 13672-13674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6371]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 774
[Docket No. 100119033-0042-01]
RIN 0694-AE85
Implementation of Both the Understandings Reached at the 2009
Australia Group (AG) Plenary Meeting and a Decision Adopted Under the
AG Intersessional Silent Approval Procedures
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: The Bureau of Industry and Security (BIS) is publishing this
final rule to amend the Export Administration Regulations (EAR) to
implement the understandings reached at the September 2009 plenary
meeting of the Australia Group (AG). This rule also amends the EAR to
implement a decision recommended at the 2009 AG Plenary that was
adopted under the AG intersessional silent approval procedures in
October 2009.
Consistent with the understandings reached at the 2009 AG Plenary,
this final rule amends the EAR to reflect the addition of technical
notes to the AG ``Control List of Dual-Use Chemical Manufacturing
Facilities and Equipment and Related Technology and Software.'' The
purpose of the new technical notes is to: clarify the term ``alloys,''
as used in reference to the types of ``materials'' from which such
equipment is made; and clarify the term ``nominal size,'' as used in
reference to the valves described on this AG control list.
This final rule also amends the EAR to reflect the AG decision
(recommended at the 2009 AG Plenary and adopted under the AG
intersessional silent approval procedures) to remove ``white pox''
virus from the AG ``List of Biological Agents for Export Control.''
DATES: This rule is effective March 23, 2010. Although there is no
formal comment period, public comments on this regulation are welcome
on a continuing basis.
ADDRESSES: You may submit comments, identified by RIN 0694-AE85, by any
of the following methods:
E-mail: [email protected]. Include ``RIN 0694-
AE85'' in the subject line of the message.
Fax: (202) 482-3355. Please alert the Regulatory Policy
Division, by calling (202) 482-2440, if you are faxing comments.
[[Page 13673]]
Mail or Hand Delivery/Courier: Willard Fisher, U.S.
Department of Commerce, Bureau of Industry and Security, Regulatory
Policy Division, 14th Street & Pennsylvania Avenue, W., Room 2705,
Washington, DC 20230, Attn: RIN 0694-AE85.
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 [email protected], or by fax to (202) 395-7285; 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-AE85)--all comments on the latter should be submitted by one of
the three methods outlined above.
FOR FURTHER INFORMATION CONTACT: Dr. Betty Lee, Microbiologist,
Chemical and Biological Controls Division, Office of Nonproliferation
and Treaty Compliance, Bureau of Industry and Security, Telephone:
(202) 482-5817.
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, on September 21-25, 2009, as well as a
decision recommended at the 2009 AG Plenary that was adopted under the
AG intersessional silent approval procedures in October 2009. The AG is
a multilateral forum, consisting of 40 participating countries, that
maintains 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 2009 AG Plenary,
this final rule amends the EAR to conform with certain changes to the
AG ``Control List of Dual-Use Chemical Manufacturing Facilities and
Equipment and Related Technology and Software.'' Specifically, this
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) by adding a new
technical note and amending an existing technical note to clarify the
use of the terms ``nominal size'' and ``alloy'' in connection with
items controlled under this ECCN.
First, this rule adds a new technical note immediately following
2B350.g to clarify that, for purposes of the valves described therein,
the term ``nominal size'' is defined as the smaller of the inlet and
outlet port diameters. Second, this rule amends Technical Note 2 at the
end of ECCN 2B350 to clarify that, with respect to the ``materials''
from which the equipment is made, the term ``alloy,'' when not
accompanied by a specific elemental concentration, is understood as
identifying those alloys where the identified metal is present in a
higher percentage by weight than any other element.
Finally, this rule amends ECCN 1C351 on the CCL to reflect the AG
decision (recommended at the 2009 AG Plenary and adopted under the AG
intersessional silent approval procedures) to remove ``white pox''
virus from the AG ``List of Biological Agents for Export Control.''
Consistent with this change, this rule renumbers and/or reorders
certain viruses listed in ECCN 1C351.a to conform with the format in
the AG List of Biological Agents. The AG decision to remove this virus
from its list of biological agents is based on the fact that the
International Committee on Taxonomy of Viruses does not recognize
``white pox'' virus as a separate entity, since the virus has been
determined to be a laboratory artifact resulting from sample
contamination with the variola virus.
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 13,
2009, 74 FR 41325 (August 14, 2009), has continued the Export
Administration Regulations in effect under the International Emergency
Economic Powers Act.
Saving Clause
Shipments of items removed from eligibility for export or reexport
under a license exception or without a license (i.e., under the
designator ``NLR'') as a result of this regulatory action that were on
dock for loading, on lighter, laden aboard an exporting carrier, or en
route aboard a carrier to a port of export, on April 22, 2010, pursuant
to actual orders for export or reexport to a foreign destination, may
proceed to that destination under the previously applicable license
exception or without a license (NLR) so long as they are exported or
reexported before May 7, 2010. Any such items not actually exported or
reexported before midnight, on May 7, 2010, require a license in
accordance with this regulation.
``Deemed'' exports of ``technology'' and ``source code'' removed
from eligibility for export under a license exception or without a
license (under the designator ``NLR'') as a result of this regulatory
action may continue to be made under the previously available license
exception or without a license (NLR) before May 7, 2010. Beginning at
midnight on May 7, 2010, such ``technology'' and ``source code'' may no
longer be released, without a license, to a foreign national subject to
the ``deemed'' export controls in the EAR when a license would be
required to the home country of the foreign national in accordance with
this regulation.
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 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
[[Page 13674]]
States (See 5 U.S.C. 553(a)(1)). 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 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. Although there
is no formal comment period, public comments on this regulation are
welcome on a continuing basis.
List of Subjects in 15 CFR Part 774
Exports, Foreign trade, Reporting and recordkeeping requirements.
0
Accordingly, part 774 of the Export Administration Regulations (15 CFR
parts 730-774) is amended as follows:
PART 774--[AMENDED]
0
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; 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 August 13, 2009, 74 FR 41325 (August 14, 2009).
Supplement No. 1 to Part 774--[Amended]
0
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 revising
paragraph (a) under ``Items'' in the List of Items Controlled, to read
as follows:
1C351 Human and zoonotic pathogens and ``toxins'', as follows (see List
of Items Controlled).
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: * * *
Related Definitions: * * *
Items:
a. Viruses, as follows:
a.1. Chikungunya virus;
a.2. Congo-Crimean haemorrhagic fever virus (a.k.a. Crimean-Congo
haemorrhagic fever virus);
a.3. Dengue fever virus;
a.4. Eastern equine encephalitis virus;
a.5. Ebola virus;
a.6. Hantaan virus;
a.7. Junin virus;
a.8. Lassa fever virus;
a.9. Lymphocytic choriomeningitis virus;
a.10. Machupo virus;
a.11. Marburg virus;
a.12. Monkey pox virus;
a.13. Rift Valley fever virus;
a.14. Tick-borne encephalitis virus (Russian Spring-Summer
encephalitis virus);
a.15. Variola virus;
a.16. Venezuelan equine encephalitis virus;
a.17. Western equine encephalitis virus;
a.18. Yellow fever virus;
a.19. Japanese encephalitis virus;
a.20. Kyasanur Forest virus;
a.21. Louping ill virus;
a.22. Murray Valley encephalitis virus;
a.23. Omsk haemorrhagic fever virus;
a.24. Oropouche virus;
a.25. Powassan virus;
a.26. Rocio virus;
a.27. St. Louis encephalitis virus;
a.28. Hendra virus (Equine morbillivirus);
a.29. South American haemorrhagic fever (Sabia, Flexal, Guanarito);
a.30. Pulmonary and renal syndrome-haemorrhagic fever viruses
(Seoul, Dobrava, Puumala, Sin Nombre); or
a.31. Nipah virus.
* * * * *
0
3. In Supplement No. 1 to Part 774 (the Commerce Control List),
Category 2--Materials Processing, ECCN 2B350 is amended by adding a
Technical Note immediately following paragraph (g) under ``Items'' in
the List of Items Controlled and by revising Technical Note 2 at the
end of the entry to read as follows:
2B350 Chemical manufacturing facilities and equipment, except valves
controlled by 2A226 or 2A292, as follows (see List of Items
Controlled).
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: * * *
Related Definitions: * * *
Items:
* * * * *
g. * * *
Technical Note to 2B350.g: The `nominal size' is defined as the
smaller of the inlet and outlet port diameters
.* * * * *
j. * * *
Technical Note 1: * * *
Technical Note 2: For the items listed in 2B350, the term
`alloy,' when not accompanied by a specific elemental concentration,
is understood as identifying those alloys where the identified metal
is present in a higher percentage by weight than any other element.
Dated: March 17, 2010.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2010-6371 Filed 3-22-10; 8:45 am]
BILLING CODE 3510-33-P