Revisions and Clarifications to the Export Administration Regulations, 54626-54629 [05-18373]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security
• Industry and Security Bureau

[Federal Register Volume 70, Number 179 (Friday, September 16, 2005)]
[Rules and Regulations]
[Pages 54626-54629]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-18373]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
                                                            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.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

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