Industry and Security Bureau 2008 – Federal Register Recent Federal Regulation Documents

This rule revises the authority citation paragraphs for 14 parts of the Export Administration Regulations to include citations to the most recent presidential notices that extend authority for those parts or to remove an outdated citation or both. This rule also updates addresses, telephone numbers, procedures and a definition, removes some potentially confusing language, makes a necessary conforming change to one Export Control Classification Number (ECCN) and restores some language that was dropped during a Code of Federal Regulations compilation. BIS is making these changes to clarify the regulations and to provide accurate authority citations for the Code of Federal Regulations edition that is to be compiled as of January 1, 2009.

The Bureau of Industry and Security (BIS) published a final rule in the Federal Register on Tuesday, November 18, 2008 (73 FR 68321) that amended the Export Administration Regulations (EAR) to, among other things, clarify that the terms ``transferred'' and ``transfer'', in the context of two sections of the EAR, meant ``assigned to'' and ``assignment'', respectively. That final rule contained one inadvertent error in the amendatory instruction used for revising one of those two sections. This error in the amendatory instruction led to one sentence of the revised regulatory text to not be revised as was intended in the regulatory text of that final rule. This document corrects that amendatory instruction error by revising that one sentence from that section.

This final rule amends the Export Administration Regulations (EAR) to clarify how Section 17(c) of the Export Administration Act of 1979 (EAA) is implemented in the EAR in accordance with the Department of Commerce's authority under the EAA. On August 14, 2008, the Department of State published a final rule amending Part 121 of the International Traffic in Arms Regulations (ITAR) to clarify how Section 17(c) of the EAA is implemented in relation to the ITAR (73 FR 47523). This final rule provides guidance to assist the regulated public in determining what civil aircraft equipment (including parts, accessories, attachments, and components) is subject to the EAR based upon the statutory criteria of the EAA.

This final rule implements the provisions of the Protocol Additional to the Agreement Between the United States of America and the International Atomic Energy Agency (IAEA) for the Application of Safeguards in the United States of America (the ``Additional Protocol''). The Additional Protocol is an agreement between the United States and the IAEA to allow monitoring and reporting of certain civil nuclear fuel cycle-related activities. The Department of Commerce's Bureau of Industry and Security (BIS) is establishing these Additional Protocol Regulations (APR) to implement the provisions of the Additional Protocol affecting U.S. industry and other U.S. persons engaged in certain civil nuclear fuel cycle-related activities, which are not regulated by the U.S. Nuclear Regulatory Commission (NRC) or its domestic Agreement States, and are not located on certain U.S. government locations. The APR describe the requirement to report such activities to BIS, the scope and conduct of IAEA complementary access to locations at which such civil nuclear fuel cycle-related activities take place, and the role of BIS in implementing the Additional Protocol in the United States. The impact of the APR on U.S. industry and other U.S. persons involves the submission of initial reports, annual update reports, and other reporting requirements, as well as on-site activities in conjunction with complementary access. Other U.S. Government agencies issuing regulations to implement other provisions of the Additional Protocol include the Nuclear Regulatory Commission, the Department of Energy, and the Department of Defense. On July 25, 2008, BIS published a proposed rule that requested comments on the proposed establishment of the APR. BIS received comments from one respondent and has reviewed these comments and considered them in its preparation of this final rule.

The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

The Bureau of Industry and Security (BIS) will hold a public meeting on October 27, 2008 for those companies, organizations, and individuals that have an interest in learning about the new license exception entitled ``Intra-Company Transfer (ICT)'' that would be established under the Export Administration Regulations (EAR) as presented in the proposed rule published in the Federal Register on October 3, 2008. U.S. Government officials will explain the amendments to the EAR proposed in the rule and answer questions from the public.

5 CFR 430.310 requires agencies to publish notice of Performance Review Board appointees in the Federal Register before their service begins. This notice announces the names of new and existing members of the Bureau of Industry and Security's Performance Review Board.

The Bureau of Industry and Security (BIS) maintains the Commerce Control List (CCL), which identifies items subject to Department of Commerce export controls. This final rule revises the Export Administration Regulations (EAR) to implement changes made to the Wassenaar Arrangement's List of Dual Use Goods and Technologies (Wassenaar List) maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies (Wassenaar Arrangement, or WA). The Wassenaar Arrangement advocates implementation of effective export controls on strategic items with the objective of improving regional and international security and stability. To harmonize with the changes to the Wassenaar List, this rule revises the EAR by amending certain entries that are controlled for national security reasons in Categories 1, 2, 3, 5 Part I (telecommunications), 5 Part II (information security), 6, 7, and 9; adding new entries to the Commerce Control List (CCL), and amending EAR Definitions, as well as adding definitions. The purpose of this final rule is to revise the CCL and definitions of terms used in the EAR to implement Wassenaar List revisions that were agreed upon in the December 2007 Wassenaar Arrangement Plenary Meeting and the Wassenaar List provisions regarding solar cells agreed upon in the December 2006 plenary meeting. This rule also adds or expands unilateral U.S. export controls and national security export controls on certain items to make them consistent with the amendments made to implement the Wassenaar Arrangement's decisions.

This rule amends the Export Administration Regulations (EAR) to make revisions to the EAR as a result of a systematic review of the Commerce Control List (CCL) that was conducted by the Bureau of Industry and Security (BIS). This rule is the second phase of the regulatory implementation of the results of a review of the CCL that was conducted by BIS starting in 2007. The BIS CCL review benefited from input received from BIS's Technical Advisory Committees (TACs) and comments that were received from the interested public in response to the publication of a BIS notice of inquiry on July 17, 2007. The revisions in this rule include clarifications to existing controls, eliminating redundant or outdated controls, establishing more focused and rationalized controls, and adding additional controls for clarity or for consistency with international regimes.

This interim final rule amends the Export Administration Regulations (EAR) to make the treatment of encryption items more consistent with the treatment of other items subject to the EAR, as well as to simplify and clarify regulations pertaining to encryption items. The restrictions pertaining to technical assistance by U.S. persons with respect to encryption items are removed, because the current export and reexport restrictions set forth in the EAR for technology already include technical assistance. This rule also removes License Exception KMI as it has become obsolete because of developments in uses of encryption. In addition, this rule removes notification requirements for items classified as 5A992, 5D992, and 5E992. This rule also increases certain parameters under License Exception ENC, which is intended to reflect advances in technology. This rule adds two new review and reporting requirement exclusion paragraphs under License Exception ENC for wireless ``personal area network'' items and for ``ancillary cryptography'' items. This rule also adds Bulgaria, Canada, Iceland, Romania, and Turkey to the list of countries that receive favorable treatment under License Exception ENC. Commodities and software pending mass market review may no longer be exported under ECCNs 5A992 and 5D992 using No License Required (NLR). However, once the mass market review has been received by BIS, then such commodities and software may be exported using License Exception ENC under ECCNs 5A002 and 5D002. This rule will reduce the paperwork burden on the public by 9% (annual dollar amount savings of approximately $14,000 to the public and $5,000 to the U.S. Government), because of the removal of certain notification requirements, addition of countries to the list of those receiving favorable treatment under License Exception ENC, and the increase of reporting and review requirement exclusions. The Departments of Commerce, State and Defense will continue to review export control, license review policies, and license exceptions for encryption items in the EAR.

On June 14, 2002, the Bureau of Industry and Security (``BIS'') published a notice in the Federal Register that set forth a list of persons in foreign countries who were parties to past export transactions where pre-license checks (``PLC'') or post-shipment verifications (``PSV'') could not be conducted for reasons outside the control of the U.S. Government (``Unverified List''). Additionally, on July 16, 2004, BIS published a notice in the Federal Register that advised exporters that the Unverified List would also include persons in foreign countries in transactions where BIS is not able to verify the existence or authenticity of the end-user, intermediate consignee, ultimate consignee, or other party to the transaction. These notices advised exporters that the involvement of a listed person as a party to a proposed transaction constitutes a ``red flag'' as described in the guidance set forth in Supplement No. 3 to 15 CFR Part 732, requiring heightened scrutiny by the exporter before proceeding with such a transaction. The notices also stated that, when warranted, BIS would remove persons from the Unverified List. This notice removes one entity from the Unverified List based upon recently conducted PSVs or scheduled PSVs. The entity is: Fuchs Oil Middle East Ltd., P.O. Box 7955, Sharjah Airport Intl. Free Zone, Sharjah, United Arab Emirates.

This rule amends the Export Administration Regulations (EAR) by adding additional persons to the Entity List (Supplement No. 4 to Part 744) on the basis of section 744.11 of the EAR. These additional persons being added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. Two types of persons are being added to the Entity List by this rule. The first type is persons that were listed on General Order No. 3 prior to publication of this rule, that are now moved to the Entity List with publication of this rule. There were 33 persons listed on the general order and all of those persons are now listed on the Entity List with the publication of this rule. These were persons concerning whom the U.S. Government possessed information regarding the acquisition or attempted acquisition of electronic components and devices (``commodities'') capable of being used in the construction of Improvised Explosive Devices (``IEDs''). These commodities have been, and may continue to be, employed in IEDs or other explosive devices used against Coalition Forces in Iraq and Afghanistan. The second type of persons being added to the Entity List with this rule are certain additional persons that were not previously listed on the general order, but are of concern to the U.S. Government for the same reasons as those other persons that were previously listed on the general order. This rule adds these additional persons to the Entity List also on the basis of section 744.11. This rule removes and reserves the general order because all of the persons from the general order are now listed on the Entity List with the publication of this rule. The Entity List provides notice to the public that certain exports and reexports to parties identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of License Exceptions in such transactions is limited.

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to clarify that crew protection kits used as protective cabs on construction equipment are on the Wassenaar Arrangement Munitions List and are correctly classified on the Commerce Control List in the entry that applies to construction equipment built to military specifications.

This notice is to announce that the Bureau of Industry and Security (BIS) is initiating a foreign availability assessment pursuant to sections 5(f) and 5(h) of the Export Administration Act of 1979, as amended (EAA). The Office of Technology Evaluation (OTE) will oversee the assessment of the foreign availability in China of uncooled thermal imaging cameras incorporating microbolometer focal plane arrays. BIS is also seeking public comments on the foreign availability of these cameras in China.

This notice reopens the comment period on the notice of inquiry (73 FR 28795) that sought comments regarding two specific recommendations made by the Deemed Export Advisory Committee (DEAC) with respect to the Bureau of Industry and Security's (BIS's) deemed export licensing policy. The new comment period deadline is September 22, 2008.

The Entity List (Supplement No. 4 to Part 744 of the Export Administration Regulations (EAR)) provides notice to the public that certain exports and reexports to parties identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of License Exceptions in such transactions is limited. This rule expands the scope of reasons for adding parties to the Entity List. This rule also amends the EAR to state explicitly that a party listed on the Entity List has a right to request that its listing be removed or modified and sets procedures for addressing such requests.