[Federal Register Volume 72, Number 176 (Wednesday, September 12, 2007)]
[Rules and Regulations]
[Pages 52000-52003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18018]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 738, 740, 745, 772, and 774

[Docket No. 070705267-7492-01]
RIN 0694-AE08


Implementation of the Understandings Reached at the June 2007 
Australia Group (AG) Plenary Meeting; Addition to the List of States 
Parties to the Chemical Weapons Convention (CWC)

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: The Bureau of Industry and Security (BIS) is publishing this 
final rule to amend the Export Administration Regulations (EAR) to 
implement the understandings reached at the June 2007 plenary meeting 
of the Australia Group (AG). This final rule amends the EAR to reflect 
changes to the AG ``Control List of Biological Agents'' that the 
countries participating in the AG adopted at the plenary meeting. 
Specifically, this rule revises the Commerce Control List (CCL) entry 
that controls animal pathogens on the AG ``Control List of Biological 
Agents'' by revising the listing for mycoplasma mycoides to include 
only the specific subspecies and strains of mycoplasma mycoides that 
are of most concern as the causative agents of disease in animals, 
i.e., Mycoplasma mycoides subspecies mycoides SC (small colony) and 
Mycoplasma capricolum subspecies capripneumoniae (``strain F38''). In 
addition, this rule makes conforming changes to the CCL entry that 
controls certain select agents not included on any of the AG Common 
Control Lists.
    This rule also amends the EAR to reflect the admission of Croatia 
to the Australia Group and updates the definition of ``Australia 
Group'' in the EAR by adding Croatia to the list of participating 
countries.
    In addition to the AG plenary meeting changes described above, this 
rule amends the EAR by revising the CCL entry that controls certain 
equipment capable of being used in handling biological materials. This 
rule revises a Technical Note in the CCL entry by updating the edition 
of the World Health Organization (WHO) ``Laboratory Biosafety Manual'' 
referenced therein to to identify the current edition of the manual. 
This WHO manual contains safety requirements for P3 or P4 (BL3, BL4, 
L3, L4) complete containment facilities.
    Finally, this rule amends the list of countries that currently are 
States Parties to the Chemical Weapons Convention (CWC) by adding 
``Barbados,'' which recently became a State Party. As a result of this 
change, the CW (Chemical Weapons) license requirements and policies in 
the EAR that apply to Barbados now conform with those applicable to 
other CWC States Parties. This rule also clarifies the scope of the 
entry for ``China'' on the list of CWC States Parties by revising the 
footnote to this entry to indicate that, for CWC purposes only, China 
includes ``Macau,'' as well as ``Hong Kong.''

DATES: This rule is effective September 12, 2007. Although there is no 
formal comment period, public comments on this regulation are welcome 
on a continuing basis.

ADDRESSES: You may submit comments, identified by RIN 0694-AE08, by any 
of the following methods:
     E-mail: [email protected]. Include ``RIN 0694-
AE08'' in the subject line of the message.
     Fax: (202) 482-3355. Please alert the Regulatory Policy 
Division, by calling (202) 482-2440, if you are faxing comments.
     Mail or Hand Delivery/Courier: Willard Fisher, U.S. 
Department of Commerce, Bureau of Industry and Security, Regulatory 
Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230, ATTN: RIN 0694-AE08.
    Send comments regarding this collection of information, including 
suggestions for reducing the burden, to David Rostker, Office of 
Management and Budget (OMB), by e-mail to [email protected], 
or by fax to (202) 395-7285; and to the Regulatory Policy Division, 
Bureau of Industry and Security, Department of Commerce, P.O. Box 273, 
Washington, DC 20044. Comments on this collection of information should 
be submitted separately from comments on the final rule (i.e., RIN 
0694-AE08)--all comments on the latter should be submitted by one of 
the three methods outlined above.

FOR FURTHER INFORMATION CONTACT: Elizabeth Scott, Director, Chemical 
and Biological Controls Division, Office of Nonproliferation and Treaty 
Compliance, Bureau of Industry and Security, Telephone: (202) 482-3343.

SUPPLEMENTARY INFORMATION: 

Background

    The Bureau of Industry and Security (BIS) is amending the Export 
Administration Regulations (EAR) to implement the understandings 
reached at the annual plenary meeting of the Australia Group (AG) that 
was held in Paris on June 4-7, 2007. The Australia Group is a 
multilateral forum, consisting of 40 participating countries, that 
maintains export controls on a list of chemicals, biological agents, 
and related equipment and technology that could be used in a chemical 
or biological weapons program. The AG periodically

[[Page 52001]]

reviews items on its control list to enhance the effectiveness of 
participating governments' national controls and to achieve greater 
harmonization among these controls.
    The understandings reached at the June 2007 annual plenary meeting 
included a decision to revise the AG ``Control List of Biological 
Agents'' by narrowing the scope of the listing for mycoplasma mycoides 
to include only the specific subspecies and strains of mycoplasma 
mycoides that are of most concern as the causative agents of disease in 
animals. This rule amends the EAR to reflect that decision by revising 
Export Control Classification Number (ECCN) 1C352, which controls 
certain animal pathogens, to narrow the scope of the listing for 
mycoplasma mycoides in this ECCN to include only the following 
subspecies and strains: Mycoplasma mycoides subspecies mycoides SC 
(small colony) and Mycoplasma capricolum subspecies capripneumoniae 
(``strain F38''). Mycoplasma mycoides subspecies mycoides SC (small 
colony) causes severe respiratory disease primarily in cattle (i.e., 
contagious bovine pleuropneumonia (CBPP)), while Mycoplasma capricolum 
subspecies capripneumoniae (``strain F38'') causes severe respiratory 
disease primarily in goats (i.e., contagious caprine pleuropneumonia 
(CCPP)).
    Prior to the publication of this rule, ECCN 1C352 controlled all 
subspecies and strains of mycoplasma mycoides. Mycoplasma capricolum 
and F38-type caprine mycoplasma (i.e., mycoplasma F38), however, were 
listed separately under ECCN 1C360, which contains unilaterally 
controlled select agents not included on any of the AG Common Control 
Lists. The Centers for Disease Control and Prevention (CDC), U.S. 
Department of Health and Human Services, and the Animal and Plant 
Health Inspection Service (APHIS), U.S. Department of Agriculture, 
maintain controls on the possession, use, and transfer within the 
United States of the unilaterally controlled select agents listed in 
ECCN 1C360, as well as certain AG agents and toxins listed in ECCN 
1C352. Since mycoplasma F38 (i.e., Mycoplasma capricolum subspecies 
capripneumoniae (``strain F38'')) is now specifically identified and 
controlled under ECCN 1C352 and the select agent mycoplasma mycoides 
capri is no longer controlled under this ECCN, this rule makes 
conforming changes to the list of unilaterally controlled select agents 
in ECCN 1C360 by removing mycoplasma F38 from the listing of mycoplasma 
controlled under this ECCN and adding mycoplasma mycoides capri. All 
Mycoplasma capricolum, except subspecies capripneumoniae, continues to 
be controlled under ECCN 1C360.
    The EAR license requirements that apply to the specific items 
affected by the amendments to ECCN 1C352 and 1C360 (described above) 
remain unchanged. The affected items in these ECCNs continue to require 
a license for export or reexport to all countries or destinations 
indicated under CB Column 1 or AT Column 1 on the Commerce Country 
Chart (Supplement No. 1 to Part 738 of the EAR).
    This rule also amends the EAR to reflect the addition of Croatia as 
the newest participating country in the Australia Group (which now 
includes a total of 40 countries). Supplement No. 1 to Part 738 
(Commerce Country Chart) is revised by removing the license 
requirements indicated for Croatia, under CB Column 2, to conform with 
the country scope of the CB license requirements that apply to other AG 
participating countries (see Section 742.2 of the EAR). Supplement No. 
1 to Part 740 (Country Groups) is revised to add Croatia to Country 
Group A:3 (Australia Group). The definition of ``Australia Group'' in 
Section 772.1 of the EAR is updated by adding Croatia to the list of 
participating countries.
    In addition to the AG plenary meeting changes described above, this 
rule amends the EAR by revising the Technical Note to ECCN 2B352.a to 
update a reference therein to the World Health Organization (WHO) 
``Laboratory Biosafety Manual'' to identify the current edition of the 
manual (i.e., 3rd edition, Geneva, 2004). This WHO manual contains 
safety requirements for P3 or P4 (BL3, BL4, L3, L4) complete 
containment facilities.
    Finally, this rule amends Supplement No. 2 to Part 745 of the EAR 
(titled ``States Parties to the Convention on the Prohibition of the 
Development, Production, Stockpiling, and Use of Chemical Weapons and 
on Their Destruction'') by adding ``Barbados,'' which became a State 
Party to the CWC on April 6, 2007. As a result of this change, the CW 
(Chemical Weapons) license requirements and policies that apply to 
Barbados now conform with those applicable to other CWC States Parties, 
as described in Section 742.18 of the EAR. This rule also clarifies the 
scope of the entry for ``China'' in the list of CWC States Parties by 
revising the footnote to this entry to indicate that, for CWC purposes 
only, China includes ``Macau,'' as well as ``Hong Kong.''
    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 15, 
2007, 72 FR 46137 (August 16, 2007), has continued the Export 
Administration Regulations in effect under the International Emergency 
Economic Powers Act.

Saving Clause

    Shipments of items removed from eligibility for export or reexport 
under a license exception or without a license (i.e., under the 
designator ``NLR'') as a result of this regulatory action that were on 
dock for loading, on lighter, laden aboard an exporting carrier, or en 
route aboard a carrier to a port of export, on October 12, 2007, 
pursuant to actual orders for export or reexport to a foreign 
destination, may proceed to that destination under the previously 
applicable license exception or without a license (NLR) so long as they 
are exported or reexported before October 29, 2007. Any such items not 
actually exported or reexported before midnight, on October 29, 2007, 
require a license in accordance with this regulation.
    ``Deemed'' exports of ``technology'' and ``source code'' removed 
from eligibility for export under a license exception or without a 
license (under the designator ``NLR'') as a result of this regulatory 
action may continue to be made under the previously available license 
exception or without a license (NLR) before October 29, 2007. Beginning 
at midnight on October 29, 2007, such ``technology'' and ``source 
code'' may no longer be released, without a license, to a foreign 
national subject to the ``deemed'' export controls in the EAR when a 
license would be required to the home country of the foreign national 
in accordance with this regulation.

Rulemaking Requirements

    1. This rule has been determined to be not significant for purposes 
of Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) (PRA), unless that collection of information displays a currently 
valid Office of Management and Budget (OMB) Control Number. This rule 
contains a collection of information subject to the requirements of the 
PRA. This collection has been approved by OMB under Control Number 
0694-0088 (Multi-Purpose Application), which carries a burden hour 
estimate of 58 minutes to prepare and submit form

[[Page 52002]]

BIS-748. Send comments regarding this burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to David Rostker, Office of Management and Budget 
(OMB), and to the Regulatory Policy Division, Bureau of Industry and 
Security, Department of Commerce, as indicated in the ADDRESSES section 
of this rule.
    3. This rule does not contain policies with Federalism implications 
as that term is defined in Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C. 
553) requiring notice of proposed rulemaking, the opportunity for 
public participation, and a delay in effective date, are inapplicable 
because this regulation involves a military and foreign affairs 
function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no 
other law requires that a notice of proposed rulemaking and an 
opportunity for public comment be given for this final rule. Because a 
notice of proposed rulemaking and an opportunity for public comment are 
not required to be given for this rule under 5 U.S.C. 553 or by any 
other law, the analytical requirements of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) are not applicable.
    Therefore, this regulation is issued in final form. Although there 
is no formal comment period, public comments on this regulation are 
welcome on a continuing basis.

List of Subjects

15 CFR Part 738

    Administrative practice and procedure, Exports, Foreign trade.

15 CFR Part 740

    Administrative practice and procedure, Exports, Foreign trade, 
Reporting and recordkeeping requirements.

15 CFR Part 745

    Administrative practice and procedure, Chemicals, Exports, Foreign 
trade, Reporting and recordkeeping requirements.

15 CFR Part 772

    Exports.

15 CFR Part 774

    Exports, Foreign trade, Reporting and recordkeeping requirements.

0
Accordingly, parts 738, 740, 745, 772, and 774 of the Export 
Administration Regulations (15 CFR parts 730-799) are amended as 
follows:

PART 738--[AMENDED]

0
1. The authority citation for 15 CFR part 738 is revised to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et 
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 
U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; 
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 15, 2007, 72 FR 46137 
(August 16, 2007).


0
2. Supplement No. 1 to part 738 is amended by revising the entry for 
``Croatia'' to read as follows:

                                                                      Supplement No. 1 to Part 738--Commerce Country Chart
                                                                                      [Reason for control]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                  Chemical & biological           Nuclear        National security   Missile  Regional stability    Firearms            Crime control           Anti-terrorism
                                         weapons             nonproliferation  --------------------   tech                         convention  -------------------------------------------------
          Countries          --------------------------------------------------                    --------------------------------------------
                                CB  1     CB  2     CB  3     NP  1     NP  2     NS  1     NS  2     MT  1     RS  1     RS  2       FC  1       CC  1     CC  2     CC  3     AT  1     AT  2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                                          * * * * * * *
Croatia.....................        X   ........  ........        X   ........        X         X         X         X         X   ............        X   ........        X   ........  ........
 
                                                                                          * * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

PART 740--[AMENDED]

0
3. The authority citation for 15 CFR 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 15, 2007, 72 FR 46137 (August 16, 2007).


0
4. In Supplement No. 1 to part 740, Country Groups, Country Group A is 
amended by adding, in alphabetical order, a new entry for ``Croatia'' 
to read as follows:

Supplement No. 1 to Part 740--Country Groups

                                                 Country Group A
----------------------------------------------------------------------------------------------------------------
                                                                   Missile      Australia group      Nuclear
                                             -----------------    technology                     suppliers group
                   Country                                      control regime ---------------------------------
                                                   [A:1]      -----------------
                                                                    [A:2]            [A:3]            [A:4]
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Croatia.....................................  ...............  ...............               X
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 745--[AMENDED]

0
5. The authority citation for 15 CFR part 745 is revised to read as 
follows:

    Authority: 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 
CFR, 1994 Comp., p. 950; Notice of October 27, 2006, 71 FR 64109 
(October 31, 2006).

 Supplement No. 2 to Part 745 [Amended]

0
6. Supplement No. 2 to part 745 is amended:

[[Page 52003]]

0
a. By revising the undesignated center heading ``List of States Parties 
as of November 1, 2006'' to read ``List of States Parties as of August 
1, 2007'';
0
b. By adding, in alphabetical order, the country ``Barbados''; and
0
c. By revising the footnote for China to read ``* For CWC purposes 
only, China includes Hong Kong and Macau.''

PART 772--[AMENDED]

0
7. The authority citation for 15 CFR 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 
15, 2007, 72 FR 46137 (August 16, 2007).


0
8. In Sec.  772.1, the definition of ``Australia Group'' is revised to 
read as follows:


Sec.  772.1  Definitions of terms as used in the Export Administration 
Regulations (EAR).

* * * * *
    Australia Group. The countries participating in the Australia Group 
have agreed to adopt harmonized controls on certain dual-use chemicals 
(i.e., precursor chemicals), biological agents, related manufacturing 
facilities and equipment, and related technology in order to ensure 
that exports of these items do not contribute to the proliferation of 
chemical or biological weapons. Countries participating in the 
Australia Group as of July 1, 2007, include: Argentina, Australia, 
Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, 
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, 
Ireland, Italy, Japan, Korea (South), Latvia, Lithuania, Luxembourg, 
Malta, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, 
Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, 
the United Kingdom, and the United States. See also Sec.  742.2 of the 
EAR.
* * * * *

PART 774--[AMENDED]

0
9. The authority citation for 15 CFR part 774 is revised to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et 
seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 
U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; 
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 15, 2007, 72 FR 46137 
(August 16, 2007).

Supplement No. 1 to Part 774--[Amended]

0
10. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 1--Materials, Chemicals, ``Microorganisms'' & ``Toxins,'' ECCN 
1C352 is amended by revising paragraph (b) under ``Items'' in the List 
of Items Controlled to read as follows:

    1C352 Animal pathogens, as follows (see List of Items 
Controlled).
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: * * *
    Items:
* * * * *
    b. Bacteria, as follows:
    b.1. Mycoplasma mycoides, as follows:
    b.1.a. Mycoplasma mycoides subspecies mycoides SC (small colony) 
(a.k.a. contagious bovine pleuropneumonia);
    b.1.b. Mycoplasma capricolum subspecies capripneumoniae 
(``strain F38'').
    b.2. [RESERVED.]

Supplement No. 1 to Part 774--[Amended]

0
11. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 1--Materials, Chemicals, ``Microorganisms'' & ``Toxins,'' ECCN 
1C360 is amended by revising paragraph (b)(2) under ``Items'' in the 
List of Items Controlled to read as follows:

    1C360 Select agents not controlled under ECCN 1C351, 1C352, or 
1C354.
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: * * *
    Items:
* * * * *
    b. * * *
    b.2. Mycoplasma, as follows:
    b.2.a. Mycoplasma capricolum, except subspecies capripneumoniae 
(see ECCN 1C352.b.1.b);
    b.2.b. Mycoplasma mycoides capri;
* * * * *

Supplement No. 1 to Part 774--[Amended]

0
12. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 2--Materials Processing, ECCN 2B352 is amended by revising 
parenthetical phrase ``(Geneva, 1983)'' to read ``(3rd edition, Geneva, 
2004)'' in the Technical Note immediately following paragraph (a) in 
the List of Items Controlled.

    Dated: September 6, 2007.
Christopher A. Padilla,
Assistant Secretary for Export Administration.
 [FR Doc. E7-18018 Filed 9-11-07; 8:45 am]
BILLING CODE 3510-33-P