Request for Public Comments on Deemed Export Advisory Committee Recommendations: Narrowing the Scope of Technologies on the Commerce Control List Subject to Deemed Export Licensing Requirements and Implementing a More Comprehensive Set of Criteria for Assessing Probable Country Affiliation for Foreign Nationals, 28795-28797 [E8-11169]
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Federal Register / Vol. 73, No. 97 / Monday, May 19, 2008 / Notices
Forest system roads, the use of
temporary roads, and the
decommissioning of some system and
temporary roads. The project would be
implemented through a combination of
commercial timber sales, service
contracts, and agency crews.
Alternatives
Alternatives proposed to date are the
Proposed Action as described above and
the No Action.
Responsible Official and Mailing
Address: Kathleen Morse, Forest
Supervisor, 2550 S. Riverside Drive,
Susanville, CA 96130 is the responsible
official.
Nature of Decision to Be Made: The
decision to be made is whether to
implement the proposed action as
described above, to meet the purpose
and need for action through some other
combination of activities, or to take no
action at this time.
pwalker on PROD1PC71 with NOTICES
Scoping Process
The environmental analysis will be
documented in an environmental
impact statement. This notice of intent
initiates the scoping process which
guides the development of the
environmental impact statement. The
scoping process will be used to identify
issues regarding the proposed action.
An issue is defined as a point of
dispute, debate, or disagreement related
to a specific proposed action based on
its anticipated effects. Significant issues
brought to our attention are used during
an environmental analysis to develop
alternatives to the proposed action.
Some issues raised in scoping may be
considered non-significant because they
are: (1) Beyond the scope of the
proposed action and its purpose and
need; (2) already decided by law,
regulation, or the Land and Resource
Management Plan; (3) irrelevant to the
decision to be made; or (4) conjectural
and not supported by scientific or
factual evidence.
Reviewer’s Obligation to Comment
On December 27, 2007, the HergerFeinstein Quincy Library Group
(HFQLG) Forest Recovery Act was
amended by H.R. 2764 to utilize the
analysis and appeal process identified
under H.R. 1904, known as the Healthy
Forests Restoration Act of 2003 (HFRA).
Provisions 104–106 of the HFRA apply
to HFQLG projects with a fuels
reduction component. The Creeks II
Forest Restoration Project is authorized
under the HFRA and is subject to the
use of notice, comment, and objection
process as described under 36 CFR 218.
The comment period on the draft EIS
will be 45 days from the date the
VerDate Aug<31>2005
17:18 May 16, 2008
Jkt 214001
Environmental Protection Agency
publishes the notice of availability of
the draft EIS in the Federal Register. To
be eligible to object to an EIS, an
individual or organization must submit
specific written comments related to a
project during the comment period for
the draft EIS. A 30-day objection period
prior to a decision being made will be
provided for this project, rather than an
appeal process after decision.
Objections will receive administrative
review and will be responded to within
30 days and before a decision is made.
The Forest Service believes, at this
early stage, it is important to give
reviewers notice of several court rulings
related to public participation in the
environmental review process. First,
reviewers of draft statements must
structure their participation in the
environmental review of the proposal so
that it is meaningful and alerts an
agency to the reviewer’s position and
contentions. Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519, 553
(1978). Also, environmental objections
that could be raised at the draft
environmental impact statement stage
but that are not raised until after
completion of the final environmental
impact statement may be waived or
dismissed by the courts. City of Angoon
v. Hodel, 803 F.2d 1016, 1022 (9th Cir.
1986) and Wisconsin Heritages, Inc. v.
Harris, 490 F. Supp. 1334, 1338 (E.D.
Wis. 1980). Because of these court
rulings, it is very important that those
interested in this proposed action
participate by the close of the 45-day
comment period so that comments and
objections are made available to the
Forest Service at a time when it can
meaningfully consider them and
respond to them in the final
environmental impact statement.
To assist the Forest Service in
identifying and considering issues and
concerns on the proposed action,
comments on the draft environmental
impact statement should be as specific
as possible. It is also helpful if
comments refer to specific pages or
chapters of the draft statement.
Comments may also address the
adequacy of the draft environmental
impact statement or the merits of the
alternatives formulated and discussed in
the statement. Reviewers may wish to
refer to the Council on Environmental
Quality Regulations for implementing
the procedural provisions of the
National Environmental Policy Act at 40
CFR 1503.3 in addressing these points.
Comments received, including the
names and addresses of those who
comment, will be considered part of the
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28795
public record on this proposal and will
be available for public inspection.
Jack T. Walton,
Acting Lassen National Forest Supervisor.
[FR Doc. E8–11063 Filed 5–16–08; 8:45 am]
BILLING CODE 3410–11–M
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket No. 080512652–8653–01]
Request for Public Comments on
Deemed Export Advisory Committee
Recommendations: Narrowing the
Scope of Technologies on the
Commerce Control List Subject to
Deemed Export Licensing
Requirements and Implementing a
More Comprehensive Set of Criteria for
Assessing Probable Country Affiliation
for Foreign Nationals
Bureau of Industry and
Security, Commerce.
ACTION: Notice of Inquiry.
AGENCY:
SUMMARY: The Bureau of Industry and
Security (BIS) is publishing a notice of
inquiry in order to elicit comments
regarding two specific recommendations
made by the Deemed Export Advisory
Committee (DEAC) with respect to BIS’s
deemed export licensing policy. BIS is
requesting comments on whether the
scope of technologies on the Commerce
Control List that are subject to deemed
export licensing requirements should be
narrowed, and if so, which technologies
should be subject to deemed export
licensing requirements. Additionally,
BIS is seeking comments on whether a
more comprehensive set of criteria
should be used to assess country
affiliation for foreign nationals with
respect to deemed exports.
DATES: Comments must be received no
later August 18, 2008.
FOR FURTHER INFORMATION CONTACT: Alex
Lopes, Director, Deemed Exports and
Electronics Division, 202–482–4875,
alopes@bis.doc.gov. Ilona Shtrom,
Senior Export Policy Analyst, Deemed
Exports and Electronics Division, 202–
482–3235, ishtrom@bis.doc.gov. The
DEAC report may be accessed at
https://tac.bis.doc.gov/2007/
deacreport.pdf.
ADDRESSES: You may submit comments,
identified by ‘‘DEAC Report comments,’’
by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail: rpd2@bis.doc.gov. Include
‘‘DEAC Report comments’’ in the subject
line of the message.
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28796
Federal Register / Vol. 73, No. 97 / Monday, May 19, 2008 / Notices
pwalker on PROD1PC71 with NOTICES
• Fax: 202–482–3355
• Hand Delivery/Courier: Steven
Emme, U.S. Department of Commerce,
Bureau of Industry and Security,
Regulatory Policy Division, 14th &
Pennsylvania Avenue, NW., Room 2705,
Washington, DC 20230, ATTN: DEAC
Report comments.
SUPPLEMENTARY INFORMATION:
Background
Under the Export Administration
Regulations (EAR), 15 CFR parts 730–
774 (2008), which implement the Export
Administration Act of 1979, as
amended, 50 U.S.C. app. 2401–2420
(2000), and the International Emergency
Economic Powers Act (50 U.S.C. 1701–
1706 (2000)), the Bureau of Industry and
Security (BIS) administers licensing for
deemed exports, which are the ‘‘release
of technology or source code subject to
the EAR to a foreign national’’
(§ 734.2(b)(ii) of the EAR). When
technology or source code is released to
a foreign national, it is deemed to be an
export to the home country or home
countries of the foreign national. For
purposes of the EAR’s deemed export
rule, foreign nationals do not include
U.S. citizens, U.S. permanent residents,
and protected individuals under the
Immigration and Naturalization Act ((8
U.S.C. 1324b(a)(3)).
To determine a foreign national’s
home country for purposes of deemed
export licensing, BIS uses a foreign
national’s most recently established
legal permanent residency or most
recently established citizenship. For
example, in the deemed exports context,
an Iranian foreign national who
establishes legal permanent residency in
Canada and subsequently immigrates to
the United States would be treated as a
Canadian. Similarly, an Iranian foreign
national who establishes citizenship in
the United Kingdom (U.K.) and
subsequently immigrates to the United
States would be treated as a U.K. citizen
for deemed export licensing purposes.
In implementing this policy, BIS relies
on exporters to self-determine a foreign
national’s home country with additional
guidance provided on the BIS Web site
at https://www.bis.doc.gov.
The existing guidance provided on
the BIS Web site emphasizes that there
will be deemed export licensing
scenarios where an exporter will have
difficulty determining where a foreign
national’s ties lie. Some of these
difficulties may include the following
scenarios: prior or current employment
at a prohibited end-user (such as
employment at an entity on the Entity
List in Supplement No. 4 to part 744),
expiration of the foreign national’s
permanent residency status while that
VerDate Aug<31>2005
17:18 May 16, 2008
Jkt 214001
foreign national continues to receive
technology or source code subject to
deemed export licensing requirements,
and the possibility of a foreign national
not being able to comply with a
country’s permanent residency
requirements. In these instances,
exporters are advised to submit a license
application or to seek guidance from BIS
before proceeding with the release of
controlled technology or source code
subject to the EAR to the foreign
national.
The issue of home country
determinations was highlighted in a
report issued by the Office of the
Inspector General (OIG) of the
Department of Commerce in March of
2004. The OIG report concluded that
BIS policies could enable foreign
nationals from countries and entities of
concern to access controlled technology
and source code without a license.
Among its findings, the OIG
recommended that the foreign national’s
country of birth should be used to
determine deemed export license
requirements rather than the foreign
national’s most recent citizenship or
legal permanent residency.
In response to this and other
recommendations made by the OIG, BIS
published an advance notice of
proposed rulemaking on March 28, 2005
(70 FR 15607), seeking comments on
how the OIG’s recommendations would
affect industry, the academic
community, and government agencies
involved in research. On May 22, 2006,
BIS published a notice (71 FR 29301)
that announced the creation of the
Deemed Export Advisory Committee
(DEAC), a federal advisory committee
established under the terms of the
Federal Advisory Committee Act
(FACA), 5 U.S.C., app. 2 (2005), the
EAA, and IEEPA to provide
recommendations to the Secretary on
BIS’s deemed export policy. The DEAC
was formed to help ensure that the
deemed export licensing policy most
effectively protects U.S. national
security while ensuring U.S.
technological innovation.
After reviewing comments submitted
in response to the advance notice of
proposed rulemaking, BIS published a
withdrawal of advance notice of
proposed rulemaking on May 31, 2006
(71 FR 30840). In that notice, BIS stated
that it would maintain the current
policy of using a foreign national’s most
recent country of citizenship or legal
permanent residency when determining
licensing requirements. BIS reasoned
that a declarative assertion of affiliation
was more significant than the
geographical circumstances of birth
PO 00000
Frm 00003
Fmt 4703
Sfmt 4703
when determining the home country of
the foreign national.
Comments submitted in response to
the advanced notice of proposed
rulemaking were reviewed by the DEAC.
Following six public meetings held in
Washington, DC and in cities around the
country at which the committee heard
from interested stakeholders in
academia, industry, and government,
the DEAC submitted its final report,
‘‘The Deemed Export Rule in the Era of
Globalization,’’ to the Secretary of
Commerce on December 20, 2007. The
report contained several
recommendations to improve and
streamline BIS’s deemed export rule.
This notice of inquiry focuses on two of
those recommendations.
DEAC Recommendations
Narrowing the Scope of Technologies on
the Commerce Control List Subject to
Deemed Export Licensing Requirements
and Conducting an Outside Review of
Technologies
Among its recommendations, the
DEAC urged that BIS narrow the scope
of technologies on the Commerce
Control List (CCL) and involve an
outside panel of experts to conduct an
annual ‘‘zero-based’’ review of which
technologies should be on the CCL, with
an eye toward determining which
technologies should be subject to
deemed export licensing requirements.
In its report, the DEAC recommended
narrowing the scope of technologies on
the CCL because it believed that BIS
should concentrate on those
technologies having the greatest
national security concerns and should
eliminate from the CCL those
technologies having little national
security concerns. By building higher
walls around fewer technologies, the
DEAC believed that BIS could more
effectively protect U.S. national security
interests while maintaining U.S.
innovation.
Partly in response to the DEAC’s
recommendation regarding the scope of
technologies on the CCL, BIS
announced the formation of the
Emerging Technologies and Research
Advisory Committee (ETRAC), a
technical advisory committee that will
be established under the terms of the
EAA, IEEPA, and FACA, and will
comprise representatives from research
universities, government research labs,
and industry. The ETRAC will make
recommendations to BIS regarding
emerging technologies on a regular basis
as well as advise BIS on the conduct of
a ‘‘zero-based’’ technology review
envisioned by the DEAC. A zero-based
review means determining what should
E:\FR\FM\19MYN1.SGM
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Federal Register / Vol. 73, No. 97 / Monday, May 19, 2008 / Notices
pwalker on PROD1PC71 with NOTICES
be controlled without reference to what
is currently controlled, rather than
reviewing current controls and
identifying what should be
decontrolled. While BIS is already
conducting a systematic review of the
CCL to assess what controls should be
retained or revised, many technologies
on the CCL are subject to multilateral
controls and thus cannot be changed
unilaterally by the United States.
However, deemed export licensing
requirements are not multilateral and
thus may be changed by the United
States without agreement by other
countries. Therefore, BIS is focusing this
recommendation for a zero-based review
only on those technologies that should
be subject to deemed export licensing
requirements.
With this notice of inquiry, BIS is
seeking comments from the public on
the DEAC’s recommendation to narrow
the scope of technologies on the CCL in
the specific context of BIS’s deemed
export licensing requirements.
Comprehensive Assessment of Foreign
National Affiliation
Within the recommended
environment of narrowing technologies
subject to deemed export licensing
requirements, the DEAC also
recommended that BIS expand its
analysis of determining the home
country of the foreign national, for
deemed export licensing purposes, in
favor of a more comprehensive
assessment of a foreign national’s
country of affiliation. Specifically, the
DEAC recommended expanding the
determination of national affiliation to
include country of birth, prior countries
of residence, current citizenship, and
character of individual’s prior and
present activities to provide an
increased level of assurance that
technology subject to deemed export
licensing requirements would not be
diverted to unauthorized end-users or
activities. The DEAC reasoned that
using the most recent citizenship or
legal permanent residency may not take
into account the actual risk of diversion
of export-controlled technology by the
foreign national. For instance, the DEAC
noted that most criminal cases of export
control violations of which it had been
made aware involve U.S. citizens and
U.S. legal permanent residents, who are
not even subject to deemed export
licensing requirements under current
BIS policy. Further, the DEAC stated
that an adequate distinction has not
been made for a foreign national
residing in a specific country for the
majority of his or her lifetime. For
example, the risk of diversion posed by
an individual recently attaining U.K.
VerDate Aug<31>2005
17:18 May 16, 2008
Jkt 214001
citizenship who was born and raised in
Iran may be different from that of a
native Iranian who became a citizen of
the U.K. shortly after birth.
BIS intends to consider the DEAC’s
recommendation of an expanded set of
criteria in determining home country/
national affiliation in the context of the
DEAC’s other recommendation that BIS
narrow the scope of technologies on the
CCL, in the context of deemed exports,
to a few critical technologies. With this
notice of inquiry, BIS is seeking
comments on the DEAC’s
recommendation to expand the criteria
for determining national affiliation of
foreign nationals for deemed export
licensing purposes.
Requests for Comments
To assist in developing a response to
these two recommendations made by
the DEAC, BIS is interested in
comments from the public. BIS
encourages all interested parties to
submit comments in response to this
notice of inquiry.
With respect to the first
recommendation for an outside, zerobased review of technologies, BIS is
seeking comments on whether
technologies on the CCL that are subject
to deemed export licensing
requirements should be narrowed to a
few critical technologies (i.e., a
narrower set of technologies than those
on the current CCL). If so, BIS would
like comments to address which
technologies the commenter believes
should be subject to deemed export
licensing requirements and what criteria
should be used to make that
determination. Comments providing a
description of the technology as well as
the use of the technology would be
particularly helpful. Moreover,
comments identifying the Export
Control Classification Number (ECCN)
of the technology would aid BIS in
assessing whether the technology would
rise to a level warranting deemed export
control under the ‘‘higher walls, fewer
fences’’ construct outlined by the DEAC.
Comments made in response to this first
DEAC recommendation will also be
shared with the ETRAC for its analysis.
Additionally, BIS is seeking
comments with respect to the DEAC
recommendation that a more
comprehensive assessment of foreign
national affiliation should be used in
the context of making home country
determinations in the deemed export
licensing process. BIS is interested in
public comments addressing the issue of
making foreign national affiliation
determinations in situations where a
foreign national’s ties may be easily
established and in situations where it
PO 00000
Frm 00004
Fmt 4703
Sfmt 4703
28797
may be difficult to determine where a
foreign national’s ties lie (such as for a
foreign national employed at a
prohibited entity). Comments submitted
in favor of a more comprehensive
assessment will be particularly helpful
if they address what information should
be taken into account for such a
comprehensive assessment. Comments
submitted in opposition to a more
comprehensive assessment will be
particularly helpful if they suggest what
parameter(s) should be used in
determining the home country for
foreign nationals.
Parties submitting comments are
asked to be as specific as possible.
Comments including detailed
statements of support will likely be
more useful than comments that state a
position without providing any support.
BIS encourages interested persons who
wish to comment to do so at the earliest
possible date. The period for submission
of comments will close August 18, 2008.
BIS will consider all comments received
before the close of the comment period
in responding to the DEAC
recommendations. Comments received
after the end of the comment period will
be considered if possible, but their
consideration cannot be assured. BIS
will not accept public comments
accompanied by a request that a part or
all of the material be treated
confidentially because of its business
proprietary nature or for any other
reason. BIS will return such comments
and materials to the persons submitting
the comments and will not consider
them in the development of a response.
All public comments on this notice of
inquiry must be in writing (including
fax or e-mail) and will be a matter of
public record, available for public
inspection and copying. The Office of
Administration, Bureau of Industry and
Security, U.S. Department of Commerce,
displays these public comments on
BIS’s Freedom of Information Act
(FOIA) Web site at https://
www.bis.doc.gov/foia. This office does
not maintain a separate public
inspection facility. If you have technical
difficulties accessing this Web site,
please call BIS’s Office of
Administration at (202) 482–0953 for
assistance.
Dated: May 14, 2008.
Matthew S. Borman,
Acting Assistant Secretary for Export
Administration.
[FR Doc. E8–11169 Filed 5–16–08; 8:45 am]
BILLING CODE 3510–33–P
E:\FR\FM\19MYN1.SGM
19MYN1
]]>Agencies
[Federal Register Volume 73, Number 97 (Monday, May 19, 2008)]
[Notices]
[Pages 28795-28797]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11169]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket No. 080512652-8653-01]
Request for Public Comments on Deemed Export Advisory Committee
Recommendations: Narrowing the Scope of Technologies on the Commerce
Control List Subject to Deemed Export Licensing Requirements and
Implementing a More Comprehensive Set of Criteria for Assessing
Probable Country Affiliation for Foreign Nationals
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Notice of Inquiry.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Industry and Security (BIS) is publishing a
notice of inquiry in order to elicit comments regarding two specific
recommendations made by the Deemed Export Advisory Committee (DEAC)
with respect to BIS's deemed export licensing policy. BIS is requesting
comments on whether the scope of technologies on the Commerce Control
List that are subject to deemed export licensing requirements should be
narrowed, and if so, which technologies should be subject to deemed
export licensing requirements. Additionally, BIS is seeking comments on
whether a more comprehensive set of criteria should be used to assess
country affiliation for foreign nationals with respect to deemed
exports.
DATES: Comments must be received no later August 18, 2008.
FOR FURTHER INFORMATION CONTACT: Alex Lopes, Director, Deemed Exports
and Electronics Division, 202-482-4875, alopes@bis.doc.gov. Ilona
Shtrom, Senior Export Policy Analyst, Deemed Exports and Electronics
Division, 202-482-3235, ishtrom@bis.doc.gov. The DEAC report may be
accessed at https://tac.bis.doc.gov/2007/deacreport.pdf.
ADDRESSES: You may submit comments, identified by ``DEAC Report
comments,'' by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: rpd2@bis.doc.gov. Include ``DEAC Report comments''
in the subject line of the message.
[[Page 28796]]
Fax: 202-482-3355
Hand Delivery/Courier: Steven Emme, U.S. Department of
Commerce, Bureau of Industry and Security, Regulatory Policy Division,
14th & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, ATTN:
DEAC Report comments.
SUPPLEMENTARY INFORMATION:
Background
Under the Export Administration Regulations (EAR), 15 CFR parts
730-774 (2008), which implement the Export Administration Act of 1979,
as amended, 50 U.S.C. app. 2401-2420 (2000), and the International
Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)), the Bureau
of Industry and Security (BIS) administers licensing for deemed
exports, which are the ``release of technology or source code subject
to the EAR to a foreign national'' (Sec. 734.2(b)(ii) of the EAR).
When technology or source code is released to a foreign national, it is
deemed to be an export to the home country or home countries of the
foreign national. For purposes of the EAR's deemed export rule, foreign
nationals do not include U.S. citizens, U.S. permanent residents, and
protected individuals under the Immigration and Naturalization Act ((8
U.S.C. 1324b(a)(3)).
To determine a foreign national's home country for purposes of
deemed export licensing, BIS uses a foreign national's most recently
established legal permanent residency or most recently established
citizenship. For example, in the deemed exports context, an Iranian
foreign national who establishes legal permanent residency in Canada
and subsequently immigrates to the United States would be treated as a
Canadian. Similarly, an Iranian foreign national who establishes
citizenship in the United Kingdom (U.K.) and subsequently immigrates to
the United States would be treated as a U.K. citizen for deemed export
licensing purposes. In implementing this policy, BIS relies on
exporters to self-determine a foreign national's home country with
additional guidance provided on the BIS Web site at https://
www.bis.doc.gov.
The existing guidance provided on the BIS Web site emphasizes that
there will be deemed export licensing scenarios where an exporter will
have difficulty determining where a foreign national's ties lie. Some
of these difficulties may include the following scenarios: prior or
current employment at a prohibited end-user (such as employment at an
entity on the Entity List in Supplement No. 4 to part 744), expiration
of the foreign national's permanent residency status while that foreign
national continues to receive technology or source code subject to
deemed export licensing requirements, and the possibility of a foreign
national not being able to comply with a country's permanent residency
requirements. In these instances, exporters are advised to submit a
license application or to seek guidance from BIS before proceeding with
the release of controlled technology or source code subject to the EAR
to the foreign national.
The issue of home country determinations was highlighted in a
report issued by the Office of the Inspector General (OIG) of the
Department of Commerce in March of 2004. The OIG report concluded that
BIS policies could enable foreign nationals from countries and entities
of concern to access controlled technology and source code without a
license. Among its findings, the OIG recommended that the foreign
national's country of birth should be used to determine deemed export
license requirements rather than the foreign national's most recent
citizenship or legal permanent residency.
In response to this and other recommendations made by the OIG, BIS
published an advance notice of proposed rulemaking on March 28, 2005
(70 FR 15607), seeking comments on how the OIG's recommendations would
affect industry, the academic community, and government agencies
involved in research. On May 22, 2006, BIS published a notice (71 FR
29301) that announced the creation of the Deemed Export Advisory
Committee (DEAC), a federal advisory committee established under the
terms of the Federal Advisory Committee Act (FACA), 5 U.S.C., app. 2
(2005), the EAA, and IEEPA to provide recommendations to the Secretary
on BIS's deemed export policy. The DEAC was formed to help ensure that
the deemed export licensing policy most effectively protects U.S.
national security while ensuring U.S. technological innovation.
After reviewing comments submitted in response to the advance
notice of proposed rulemaking, BIS published a withdrawal of advance
notice of proposed rulemaking on May 31, 2006 (71 FR 30840). In that
notice, BIS stated that it would maintain the current policy of using a
foreign national's most recent country of citizenship or legal
permanent residency when determining licensing requirements. BIS
reasoned that a declarative assertion of affiliation was more
significant than the geographical circumstances of birth when
determining the home country of the foreign national.
Comments submitted in response to the advanced notice of proposed
rulemaking were reviewed by the DEAC. Following six public meetings
held in Washington, DC and in cities around the country at which the
committee heard from interested stakeholders in academia, industry, and
government, the DEAC submitted its final report, ``The Deemed Export
Rule in the Era of Globalization,'' to the Secretary of Commerce on
December 20, 2007. The report contained several recommendations to
improve and streamline BIS's deemed export rule. This notice of inquiry
focuses on two of those recommendations.
DEAC Recommendations
Narrowing the Scope of Technologies on the Commerce Control List
Subject to Deemed Export Licensing Requirements and Conducting an
Outside Review of Technologies
Among its recommendations, the DEAC urged that BIS narrow the scope
of technologies on the Commerce Control List (CCL) and involve an
outside panel of experts to conduct an annual ``zero-based'' review of
which technologies should be on the CCL, with an eye toward determining
which technologies should be subject to deemed export licensing
requirements. In its report, the DEAC recommended narrowing the scope
of technologies on the CCL because it believed that BIS should
concentrate on those technologies having the greatest national security
concerns and should eliminate from the CCL those technologies having
little national security concerns. By building higher walls around
fewer technologies, the DEAC believed that BIS could more effectively
protect U.S. national security interests while maintaining U.S.
innovation.
Partly in response to the DEAC's recommendation regarding the scope
of technologies on the CCL, BIS announced the formation of the Emerging
Technologies and Research Advisory Committee (ETRAC), a technical
advisory committee that will be established under the terms of the EAA,
IEEPA, and FACA, and will comprise representatives from research
universities, government research labs, and industry. The ETRAC will
make recommendations to BIS regarding emerging technologies on a
regular basis as well as advise BIS on the conduct of a ``zero-based''
technology review envisioned by the DEAC. A zero-based review means
determining what should
[[Page 28797]]
be controlled without reference to what is currently controlled, rather
than reviewing current controls and identifying what should be
decontrolled. While BIS is already conducting a systematic review of
the CCL to assess what controls should be retained or revised, many
technologies on the CCL are subject to multilateral controls and thus
cannot be changed unilaterally by the United States. However, deemed
export licensing requirements are not multilateral and thus may be
changed by the United States without agreement by other countries.
Therefore, BIS is focusing this recommendation for a zero-based review
only on those technologies that should be subject to deemed export
licensing requirements.
With this notice of inquiry, BIS is seeking comments from the
public on the DEAC's recommendation to narrow the scope of technologies
on the CCL in the specific context of BIS's deemed export licensing
requirements.
Comprehensive Assessment of Foreign National Affiliation
Within the recommended environment of narrowing technologies
subject to deemed export licensing requirements, the DEAC also
recommended that BIS expand its analysis of determining the home
country of the foreign national, for deemed export licensing purposes,
in favor of a more comprehensive assessment of a foreign national's
country of affiliation. Specifically, the DEAC recommended expanding
the determination of national affiliation to include country of birth,
prior countries of residence, current citizenship, and character of
individual's prior and present activities to provide an increased level
of assurance that technology subject to deemed export licensing
requirements would not be diverted to unauthorized end-users or
activities. The DEAC reasoned that using the most recent citizenship or
legal permanent residency may not take into account the actual risk of
diversion of export-controlled technology by the foreign national. For
instance, the DEAC noted that most criminal cases of export control
violations of which it had been made aware involve U.S. citizens and
U.S. legal permanent residents, who are not even subject to deemed
export licensing requirements under current BIS policy. Further, the
DEAC stated that an adequate distinction has not been made for a
foreign national residing in a specific country for the majority of his
or her lifetime. For example, the risk of diversion posed by an
individual recently attaining U.K. citizenship who was born and raised
in Iran may be different from that of a native Iranian who became a
citizen of the U.K. shortly after birth.
BIS intends to consider the DEAC's recommendation of an expanded
set of criteria in determining home country/national affiliation in the
context of the DEAC's other recommendation that BIS narrow the scope of
technologies on the CCL, in the context of deemed exports, to a few
critical technologies. With this notice of inquiry, BIS is seeking
comments on the DEAC's recommendation to expand the criteria for
determining national affiliation of foreign nationals for deemed export
licensing purposes.
Requests for Comments
To assist in developing a response to these two recommendations
made by the DEAC, BIS is interested in comments from the public. BIS
encourages all interested parties to submit comments in response to
this notice of inquiry.
With respect to the first recommendation for an outside, zero-based
review of technologies, BIS is seeking comments on whether technologies
on the CCL that are subject to deemed export licensing requirements
should be narrowed to a few critical technologies (i.e., a narrower set
of technologies than those on the current CCL). If so, BIS would like
comments to address which technologies the commenter believes should be
subject to deemed export licensing requirements and what criteria
should be used to make that determination. Comments providing a
description of the technology as well as the use of the technology
would be particularly helpful. Moreover, comments identifying the
Export Control Classification Number (ECCN) of the technology would aid
BIS in assessing whether the technology would rise to a level
warranting deemed export control under the ``higher walls, fewer
fences'' construct outlined by the DEAC. Comments made in response to
this first DEAC recommendation will also be shared with the ETRAC for
its analysis.
Additionally, BIS is seeking comments with respect to the DEAC
recommendation that a more comprehensive assessment of foreign national
affiliation should be used in the context of making home country
determinations in the deemed export licensing process. BIS is
interested in public comments addressing the issue of making foreign
national affiliation determinations in situations where a foreign
national's ties may be easily established and in situations where it
may be difficult to determine where a foreign national's ties lie (such
as for a foreign national employed at a prohibited entity). Comments
submitted in favor of a more comprehensive assessment will be
particularly helpful if they address what information should be taken
into account for such a comprehensive assessment. Comments submitted in
opposition to a more comprehensive assessment will be particularly
helpful if they suggest what parameter(s) should be used in determining
the home country for foreign nationals.
Parties submitting comments are asked to be as specific as
possible. Comments including detailed statements of support will likely
be more useful than comments that state a position without providing
any support. BIS encourages interested persons who wish to comment to
do so at the earliest possible date. The period for submission of
comments will close August 18, 2008. BIS will consider all comments
received before the close of the comment period in responding to the
DEAC recommendations. Comments received after the end of the comment
period will be considered if possible, but their consideration cannot
be assured. BIS will not accept public comments accompanied by a
request that a part or all of the material be treated confidentially
because of its business proprietary nature or for any other reason. BIS
will return such comments and materials to the persons submitting the
comments and will not consider them in the development of a response.
All public comments on this notice of inquiry must be in writing
(including fax or e-mail) and will be a matter of public record,
available for public inspection and copying. The Office of
Administration, Bureau of Industry and Security, U.S. Department of
Commerce, displays these public comments on BIS's Freedom of
Information Act (FOIA) Web site at https://www.bis.doc.gov/foia. This
office does not maintain a separate public inspection facility. If you
have technical difficulties accessing this Web site, please call BIS's
Office of Administration at (202) 482-0953 for assistance.
Dated: May 14, 2008.
Matthew S. Borman,
Acting Assistant Secretary for Export Administration.
[FR Doc. E8-11169 Filed 5-16-08; 8:45 am]
BILLING CODE 3510-33-P
