[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Proposed Rules]
[Pages 59166-59167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23372]



Bureau of Industry and Security

15 CFR Part 762

[Docket No. 140905755-4755-01]
RIN 0694-AG30

Request for Public Comment on the Recordkeeping Requirements of 
the Export Administration Regulations

AGENCY: Bureau of Industry and Security, Department of Commerce.

ACTION: Advance notice of proposed rulemaking.


SUMMARY: The Bureau of Industry and Security (BIS) is seeking public 
comment on the recordkeeping requirements of the Export Administration 
Regulations (EAR). BIS is reviewing its requirements on record 
retention and record creation and is considering proposing revisions to 
such requirements. BIS seeks public comment on ways to improve the 
recordkeeping requirements of the EAR to reduce unnecessary burden, 
increase clarity, address changes in technology and data management, 
and maintain the tools necessary for compliance with and enforcement of 
the EAR. This advance notice of proposed rulemaking is part of BIS's 
retrospective regulatory review being undertaken pursuant to Executive 
Order 13563.

DATES: Comments must be received by December 1, 2014.

ADDRESSES: Comments may be submitted to the Federal rulemaking portal 
(http://www.regulations.gov). The regulations.gov ID for this notice of 
inquiry is: BIS-2014-0035. Comments may also be submitted via email to 
[email protected] or on paper to Regulatory Policy Division, 
Bureau of Industry and Security, Room 2099B, U.S. Department of 
Commerce, Washington, DC 20230. Please refer to RIN 0694-AG30 in all 
comments and in the subject line of email comments. All comments 
(including any personally identifying information) will be made 
available for public inspection and copying.

FOR FURTHER INFORMATION CONTACT: Steven Emme, Office of the Assistant 
Secretary for Export Administration, 202-482-5491, 
[email protected].



    On August 5, 2011, the Bureau of Industry and Security (BIS) 
published a notice of inquiry in the Federal Register (76 FR 47527) 
seeking comments pertaining to a retrospective regulatory review being 
conducted by BIS pursuant to Executive Order 13563, which President 
Barack Obama issued to improve regulation and regulatory review. Among 
other things, the President stressed the need for the regulatory system 
to allow for public participation and an open exchange of ideas, as 
well as promote predictability and reduce uncertainty. The President 
also emphasized that regulations must be accessible, consistent, 
written in plain language, and easy to understand. Through its notice 
of inquiry on this retrospective regulatory review, BIS sought comments 
on aspects of the Export Administration Regulations (EAR) that are not 
immediately affected by the Export Control Reform (ECR) initiative and 
that could improve clarity in the EAR or streamline requirements to 
improve efficiency and reduce burden.
    Consistent with that notice of inquiry, this advance notice of 
proposed rulemaking seeks public comment on BIS's recordkeeping 
requirements. The recordkeeping requirements are primarily in part 762 
of the EAR and apply to both the export control provisions and 
antiboycott provisions of the EAR. Part 762 describes, inter alia, 
those transactions and persons subject to recordkeeping requirements in 
Sec.  762.1, as well as those records required to be maintained in 
Sec.  762.2 for the duration described in Sec.  762.6. While most 
recordkeeping requirements pertain to documents that are created for 
purposes other than retention (e.g., to obtain an export license or to 
file Electronic Export Information), some provisions of the EAR require 
the creation of a document solely for record retention purposes. 
Section 762.2 refers to those sections of the EAR that either require 
the creation of a record or otherwise reference recordkeeping 
requirements. Additionally, part 762 describes requirements on 
maintaining original records or reproductions, as well as producing 
records for inspection.
    The recordkeeping provisions have not been comprehensively reviewed 
since part 762 became effective in 1996. While BIS previously updated 
part 762 to take into account electronic submissions of license 
applications and other requests under the SNAP-R system, BIS has not 
reviewed the recordkeeping requirements to take into account changes in 
data management systems and record retention practices since that time. 
In addition, BIS has not comprehensively analyzed part 762 and compared 
it to the recordkeeping requirements of similar regulations, such as 
the International Traffic in Arms Regulations (ITAR) administered by 
the Department of State. Under ECR, BIS has been working with the 
Department of State to harmonize key terms where possible. The 
structure and form of the EAR recordkeeping requirements vary greatly 
from the structure and form of the ITAR recordkeeping requirements, as 
only one section in the ITAR (22 CFR 122.5) describes the required 
retention of records. While this advance notice of proposed rulemaking 
is not part of ECR, BIS will take into account the provisions of the 
ITAR if beneficial to the EAR.

Request for Public Comments

    BIS is considering proposing revisions to the recordkeeping 
requirements of the EAR to more effectively describe those records and 
persons subject to the

[[Page 59167]]

requirements while attempting to reduce burden, improve clarity, take 
into account current data management processes, and maintain the 
necessary tools for effective compliance and enforcement. In order to 
propose such revisions, BIS seeks public comment on all aspects of its 
recordkeeping requirements. BIS would like to receive public comments 
that are as specific and well-supported as possible. Helpful comments 
will include a description of a problem or concern, available data on 
cost or economic impact, and a proposed solution. BIS also welcomes 
comments on aspects of the current recordkeeping provisions that are 
considered effective or well designed. In particular, BIS invites the 
public to submit comments on the following issues:
    (1) How have the current recordkeeping requirements of the EAR 
positively or negatively affected organizations? Quantitative analyses 
on this topic would be beneficial.
    (2) Are there any recordkeeping provisions or references to 
documents that are out of date? Are there provisions in the 
recordkeeping requirements that should be updated to take into account 
technological changes in how business is conducted and records are 
    (3) Should the recordkeeping provisions make transactional 
distinctions on when records should be created or maintained? For 
instance, should intangible transfers of technology or software be 
treated differently than tangible exports or reexports for record 
creation and record retention purposes? Or would it be preferable to 
avoid making distinctions in order to have more clear and concise 
    (4) Would be efficient to make a distinction in Part 762 between 
provisions that require the maintenance of records created in the 
ordinary course of business as opposed to those that require the 
creation of records for export control purposes that would not 
otherwise be created in the ordinary course of business?
    (5) Are there any record creation requirements in the EAR that 
should be reviewed or revised?
    (6) Are there any recordkeeping requirements under U.S. or other 
law that would serve as good examples for the EAR?
    Comments should be submitted to BIS as described in the Addresses 
section of this notice of inquiry by December 1, 2014. BIS will 
consider all comments submitted in response to this advance notice of 
proposed rulemaking that are received before the close of the comment 
period. 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. All public comments in response to this advance 
notice of proposed rulemaking must be in writing and will be a matter 
of public record, and will be available for public inspection and 
copying on the BIS Freedom of Information Act (FOIA) Reading Room at 

    Dated: September 25, 2014.
Kevin J. Wolf,
Assistant Secretary of Commerce for Export Administration.
[FR Doc. 2014-23372 Filed 9-30-14; 8:45 am]