[Federal Register: November 7, 2005 (Volume 70, Number 214)]
[Rules and Regulations]
[Page 67346-67348]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07no05-4]
[[Page 67346]]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 736, 738, 740, 742, 744, and 772
[Docket No. 051020273-5273-01]
RIN [0694-AD61]
Revision of License Requirements and Licensing Policy, and
Increased Availability of License Exceptions for Certain North Atlantic
Treaty Organization (NATO) Member States
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: This final rule amends certain provisions of the Export
Administration Regulations (EAR) that affect Bulgaria, Czech Republic,
Estonia, Hungary, Iceland, Latvia, Lithuania, Poland, Romania, Slovakia
and Slovenia. These amendments provide consistent treatment to all NATO
member states with respect to national security-based license
requirements, national security licensing policy, availability of
certain License Exceptions, and certain in-transit transactions.
DATES: Effective date: November 7, 2005.
ADDRESSES: Comments concerning this rule may be sent by e-mail to
rpd2@bis.doc.gov, by fax to 202 482 3355 or to the Regulatory Policy
Division, Bureau of Industry and Security, Room H2017, U.S. Department
of Commerce, Washington, DC 20230. Please refer to RIN 0694-AD47 in all
comments. Comments regarding the Paperwork Reduction Act burden
estimates or any other aspect of the collection of information affected
by this rule may be sent to David Rostker, OMB Desk Officer, by e-mail
at david_rostker@omb.eop.gov or by fax to 202 395 7285; with a copy to
the Regulatory Policy Division, Bureau of Industry and Security at one
of the addresses above.
FOR FURTHER INFORMATION CONTACT: William Arvin, Regulatory Policy
Division, Office of Exporter Services at warvin@bis.doc.gov or 202 482
2440.
SUPPLEMENTARY INFORMATION:
Background
On June 28, 2004, the Bureau of Industry and Security (BIS)
published an amendment to the EAR to remove certain regional stability
and crime control license requirements to new NATO member countries.
Seven countries acceded to NATO on March 29, 2004: Bulgaria, Estonia,
Latvia, Lithuania, Romania, Slovakia and Slovenia. This final rule
amends the EAR to provide for these newer NATO member states and for
three other NATO member states, Hungary, Iceland, and Poland, treatment
consistent with all other NATO member states respect to national
security license requirements (Sec. 742.2(a)) and Supplement No. 1 to
part 738 (Country Chart)). This final rule also removes Bulgaria,
Estonia, Latvia and Lithuania from General Prohibition Eight, which
concerns certain in-transit transactions, (Sec. 736.2(b)(8)), and
removes restrictions on License Exceptions related to crime control
from Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Poland,
Romania, Slovakia, and Slovenia (Sec. 740.2). This final rules adds
Bulgaria, Estonia, Latvia, Lithuania and Romania to Country Group B,
and removes them from Country Group D:1 (Supplement No. 1 to part 740).
Exports to these countries are now eligible for certain license
exceptions set forth in part 740, and the national security licensing
policy set forth in Sec. 742.2(b) for Country Group D:1 countries no
longer applies. The Czech Republic, Iceland, Poland, Slovakia and
Slovenia have been included in Country Group B since it was created in
1996. Finally, this final rule makes certain technical and conforming
amendments to other provisions of the EAR that refer to NATO member
states or to individual countries that are now NATO member states.
Specific amendments made by this final rule are described below.
Amendments to General Prohibition Eight
General Prohibition Eight (Sec. 736.2(b)(8) of the EAR) requires a
license for items that transit listed countries if the items would
require a license to be exported or reexported to those countries and
no license exception would authorize the export or reexport. This rule
removes NATO member states Bulgaria, Estonia, Latvia, and Lithuania
from the list of countries in General Prohibition Eight.
Amendments to National Security License Requirements
Section 742.4(a) of the EAR sets forth the license requirements for
items listed on the Commerce Control List (CCL) with ``National
Security'' indicated as a reason for control. Prior to publication of
this rule, Sec. 742.4(a) required a license for export or reexport
``to all destinations except Country Group A:1 and cooperating
countries'' of any item in an Export Control Classification Number
(ECCN) that included ``NS Column 2'' in its ``License Requirements''
section. This rule adds Bulgaria, Czech Republic, Estonia, Hungary,
Iceland, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia to
the destinations excepted from the ``NS Column 2'' license requirement
in Sec. 742.4(a). All other NATO member states other than the United
States are already exempt from this license requirement because they
are listed in Country Group A:1. Country Group A:1 is at Supp. No. 1 to
Part 740 of the EAR.
To reflect the changes made to Sec. 742.4(a), this rule also
amends Supplement No. 1 to part 738 of the EAR by removing the ``X''
from the column labeled ``NS 2'' on the Country Chart in the rows for
Bulgaria, Czech Republic, Estonia, Hungary, Iceland, Latvia, Poland,
Romania, Slovakia and Slovenia.
Amendments to Restrictions on Use of License Exceptions
Section 740.2 of the EAR imposes certain restrictions on the use of
License Exceptions. Paragraph (a)(4) of that section imposes
restrictions on the use of License Exceptions when exporting or
reexporting commodities controlled for crime control reasons. This rule
replaces the phrase ``Iceland, New Zealand or countries listed in
Country Group A:1'' in paragraph (a)(4) of Sec. 740.2, with the phrase
``Australia, Japan, New Zealand or a NATO member state.'' The effect of
this change is to eliminate the restrictions imposed by paragraph
(a)(4) on exports and reexports to Bulgaria, Czech Republic, Estonia,
Hungary, Latvia, Poland, Romania, Slovakia and Slovenia. Although
Iceland is no longer mentioned by name in paragraph (a)(4), it will
continue to be exempt from the restrictions imposed by paragraph (a)(4)
because it is a NATO member state. Although Country Group A:1 is no
longer mentioned by name, all of its members will continue be exempt,
either because they are NATO member states or because they are now
mentioned by name in paragraph (a)(4).
Amendments to Country Groups B and D:1 Affecting License Exception
Eligibility and Licensing Policy
Supplement No. 1 to Part 740 contains several tables of ``Country
Groups'' that are used to identify, among other things, License
Exception eligibility and licensing policy. This rule adds Bulgaria,
Estonia, Latvia, Lithuania, and Romania to Country Group B and removes
them from Country Group D:1.
[[Page 67347]]
Effects of the Amendments to Country Group B
License Exceptions found in Sec. 740.3, Shipments of limited value
(LVS); Sec. 740.4, Shipments to Country Group B countries (GBS); and
Sec. 740.6, Technology and software under restriction (TSR) are
available only if the destination is in Country Group B. This change
makes Bulgaria, Estonia, Latvia, Lithuania, and Romania eligible
destinations for exports and reexports that are authorized by License
Exceptions LVS, GBS and TSR. All other NATO member states other than
the United States continue to be eligible destinations for these
License Exceptions because they are already in Country Group B.
Effects of the Amendments to Country Group D:1
License Exceptions found in Sec. 740.9, Temporary imports, exports
and reexport (TMP); Sec. 740.10, Servicing and replacement of parts
and equipment (RPL); Sec. 740.12, Gift parcels and humanitarian
donations (GFT); Sec. 740.14, Baggage (BAG); and Sec. 740.15,
Aircraft and vessels (AVS) all contain limitations or restrictions on
their use for exports or reexports to destinations in Country Group
D:1. Those limitations and restrictions no longer apply to exports and
reexports authorized by License Exceptions TMP, GFT, BAG and AVS to
Bulgaria, Estonia, Latvia, Lithuania, or Romania. Other NATO member
states continue to be exempt from those limitations and restriction
because they are not in Country Group D:1.
Section 742.4(b)(1) of the EAR states the licensing policy for
export and reexport of national security controlled items to
destinations outside Country Group D:1. That licensing policy ``is to
approve * * * unless there a significant risk that the items will be
diverted to a country in Country Group D:1.'' Applications to export
national security controlled items to Bulgaria, Estonia, Latvia,
Lithuania, or Romania are now subject to this licensing policy.
Applications to export or reexport national security controlled items
to other NATO member states continue to be subject to this policy
because they are not in Country Group D:1.
Section 742.4(b)(2) of the EAR states the licensing policy for
export and reexport of national security controlled items to
destinations in Country Group D:1. That licensing policy is ``to
approve applications when BIS determines, on a case-by-case basis, that
the items are for civilian use or otherwise would not make a
significant contribution to the military potential of the country of
destination that would prove detrimental to the national security of
the United States.'' Applications to export or reexport national
security controlled items to Bulgaria, Estonia, Latvia, Lithuania, or
Romania are no longer subject to this licensing policy. Applications to
export or reexport national security controlled items to other NATO
member states continue not to be subject to this policy because they
are not in Country Group D:1.
Technical and Conforming Changes
Sections 740.15(c)(1), 740.15(c)(2), 744.7(b)(1) and 744.7(b)(2)
each contain reference to conditions that apply to most countries in
Country Group D:1. Section 740.15(c) deals with the use of License
Exception AVS to supply U.S. or Canadian vessels, airplane or airline
installations or agents. Section 744.7 requires a license for exports
and reexports to service aircraft if the item being exported or
reexported would require a license the country where the vessel or
aircraft is located, in which it is registered or by which it is
controlled, leased or chartered. Paragraph (b) provides certain
exceptions for U.S. or Canadian carriers. Prior to publication of this
rule, each of those references excluded Romania by name from the
conditions that apply to most Country Group D:1 countries. By removing
Romania from Country Group D:1, this rule eliminates the need to
exclude Romania by name. Therefore, this rule also eliminates the
references to Romania from Sec. Sec. 740.15(c)(1), 740.15(c)(2),
744.7(b)(1) and 744.7(b)(2).
Section 742.4(b)(5) lists certain Country Group D:1 countries that,
because of their efforts to adopt safeguard measures for exports and
reexports, are ``accorded enhanced favorable consideration licensing
treatment.'' Three of the countries that were listed in Sec.
742.4(b)(5) prior to publication of this rule, Bulgaria, Latvia and
Lithuania, are removed from Country Group D:1 by this rule. The removal
of those countries from Country Group D:1 eliminates the need to list
them in Sec. 742.4(b)(5). Therefore this rule removes those three
countries from Sec. 742.4(b)(5).
This rule also removes Bulgaria, Estonia, Latvia, Lithuania and
Romania from the definition of ``Controlled Country'' in Sec. 772.1 to
make that definition consistent with the removal of those countries
from Country Group D:1.
Although the Export Administration Act of 1979 (EAA), as amended,
expired on August 20, 2001, 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), continues the EAR in effect under
the International Emergency Economic Powers Act (IEEPA).
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 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 regulation contains
a collection approved by the 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. Miscellaneous and
recordkeeping activities account for 12 minutes per submission. BIS
expects that this rule will eliminate the need for approximate 56 BIS-
748 submissions per year.
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 or foreign affairs function
of the United 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 rule. Because a notice of proposed
rulemaking and an opportunity for public comment are not required to be
given for this rule by 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.
List of Subjects
15 CFR Parts 736, 738 and 772
Exports.
15 CFR Part 740
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 742
Export, Terrorism.
[[Page 67348]]
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism.
0
Accordingly the Export Administration Regulations (15 CFR parts 730-
799) are amended as follows:
PART 736--[AMENDED]
0
1. The authority citation for part 736 continues 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, May 13, 2004; 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. In Sec. 736.2, revise paragraph (b)(8)(ii) to read as follows:
Sec. 736.2 General prohibitions and determination of applicability.
* * * * *
(b) * * *
(8) * * *
(ii) Country scope. This General Prohibition Eight applies to
Albania, Armenia, Azerbaijan, Belarus, Cambodia, Cuba, Georgia,
Kazakhstan, Kyrgyzstan, Laos, Mongolia, North Korea, Russia,
Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam.
* * * * *
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).
Supplement No. 1 to Part 738--[Amended]
0
4. In Supplement No. 1 to part 738, the Country Chart, remove the ``X''
from the NS 2 column for Bulgaria, Czech Republic, Estonia, Hungary,
Iceland, Latvia, Lithuania, Poland Romania, Slovakia, and Slovenia.
PART 740--[AMENDED]
0
5. The authority citation for part 740 is revised to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
Sec. 901-911, Pub. L. 106-387; 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
6. In Sec. 740.2 revise paragraph (a)(4) to read as follows:
Sec. 740.2 Restrictions on all License Exceptions.
(a) * * *
(4) The commodity you are shipping is a specially designed crime
control and detection instrument or equipment described in Sec. 742.7
of the EAR and you are not shipping to Australia, Japan, New Zealand,
or a NATO member state (see definition of NATO in Sec. 772.1 of the
EAR), unless the shipment is authorized under License Exception BAG,
Sec. 740.14(e) of this part (shotguns and shotgun shells).
* * * * *
Sec. 740.15 [Amended]
0
7. In Sec. 740.15, remove the phrase ``and Romania'' from paragraph
(c)(1), introductory text and from paragraph (c)(2), introductory text.
Supplement No. 1 to Part 740--[Amended]
0
8. In Supplement No. 1 to Part 740:
0
Add to the table labeled ``Country Group B--Countries'' in alphabetical
order Bulgaria, Estonia, Latvia, Lithuania, and Romania; and
0
Remove Bulgaria, Estonia, Latvia, Lithuania, and Romania from the table
labeled ``Country Group D.''
PART 742--[AMENDED]
0
9. The authority citation for part 742 continues 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, May 16, 2003; 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
10. In Sec. 742.4, revise the third sentence of paragraph (a) and
revise paragraph (b)(5) to read as follows:
Sec. 742.4 National security.
(a) License requirements. * * * A license is required to all
destinations except Country Group A:1 and cooperating countries (see
Supplement No. 1 to part 740), Bulgaria, Czech Republic, Estonia,
Hungary, Iceland, Latvia, Lithuania, Poland, Romania, Slovakia, and
Slovenia for all items in ECCNs on the CCL that include NS Column 2 in
the Country Chart column of the ``License Requirements'' section. * * *
(b) * * *
(5) In recognition of efforts made to adopt safeguard measures for
exports and reexports, Kazakhstan, Mongolia, and Russia are accorded
enhanced favorable consideration licensing treatment.
* * * * *
PART 744--[AMENDED]
0
11. The authority citation for part 744 continues 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).
Sec. 744.7 [Amended]
0
12. In Sec. 744.7, remove the phrase ``and Romania'' from paragraph
(b)(1) introductory text and paragraph (b)(2) introductory text.
PART 772--[AMENDED]
0
13. The authority citation for part 772 is revised to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August
2, 2005, 70 FR 45273 (August 5, 2005).
Sec. 772.1 [Amended]
0
14. In Sec. 772.1, remove ``Bulgaria,'', ``Estonia,'', ``Latvia,'',
Lithuania,'', and ``Romania,'' from the second sentence of the
definition of ``Controlled Country.''
Dated: November 1, 2005.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 05-22079 Filed 11-4-05; 8:45 am]
BILLING CODE 3510-33-P