[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)]
[Rules and Regulations]
[Pages 70676-70679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28978]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 774
[Docket No.150825777-5777-01]
RIN 0694-AG70
Amendment to the Export Administration Regulations to Add XBS
Epoxy System to the List of 0Y521 Series; Technical Amendment to Update
Other 0Y521 Items
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Interim final rule with request for comments.
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SUMMARY: In this interim final rule, the Bureau of Industry and
Security (BIS) amends the Export Administration Regulations (EAR) to
make certain items subject to the EAR and to impose on those items a
license requirement for export and reexport to all destinations, except
Canada. Specifically, this rule classifies the specified XBS Epoxy
System under Export Control Classification Number (ECCN) 0C521 on the
Commerce Control List (CCL). As described in the final rule that
established the 0Y521 series and that
[[Page 70677]]
was published in the Federal Register on April 13, 2012, items are
added to the 0Y521 series upon a determination by the Department of
Commerce, with the concurrence of the Departments of Defense and State,
that the items should be controlled for export because the items
provide at least a significant military or intelligence advantage to
the United States or foreign policy reasons justify control. The items
identified in this rule are controlled for regional stability (RS)
Column 1 reasons. The only license exception available for these items
is for exports, reexports, and transfers (in-country) made by or
consigned to a department or agency of the U.S. Government. In this
rule, BIS also removes technology and software related to aircraft wing
folding systems.
DATES: This rule is effective November 16, 2015. Comments must be
received by January 15, 2016. Comments requested on the addition of the
0C521 item only.
ADDRESSES: You may submit comments by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. The identification number for this rulemaking is
BIS-2015-0043.
By email directly to: [email protected]. Include
RIN 0694-AG70 in the subject line.
By mail or delivery to Regulatory Policy Division, Bureau
of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th
Street and Pennsylvania Avenue NW., Washington, DC 20230. Refer to RIN
0694-AG70.
FOR FURTHER INFORMATION CONTACT: Michael Rithmire, Electronics and
Materials Division, Office of National Security and Technology Transfer
Controls by phone at (202) 482-6105 or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
Background
BIS established the ECCN 0Y521 series to identify items that
warrant control on the CCL but are not yet identified in an existing
ECCN (77 FR 22191, April 13, 2012). Items are added to the ECCN 0Y521
series by the Department of Commerce, with the concurrence of the
Departments of Defense and State, upon a determination that an item
should be controlled because it provides at least a significant
military or intelligence advantage to the United States or because
foreign policy reasons justify such control. The ECCN 0Y521 series is a
temporary holding classification with a limitation that while an item
is temporarily classified under ECCN 0Y521, the U.S. Government works
to adopt a control through the relevant multilateral regime(s), to
determine an appropriate longer-term control over the item, or that the
item does not warrant control on the CCL.
Items classified under ECCN 0Y521, including the item identified in
this interim final rule as an 0C521 item, remain so-classified for one
year from the date a final rule identifying the item is published in
the Federal Register amending the EAR, unless the item is re-classified
under a different ECCN, under an EAR99 designation, or the 0Y521
classification is extended. During this time, the U.S. Government
determines whether it is appropriate to submit a proposed control to
the applicable export control regime (e.g., the Wassenaar Arrangement)
for potential multilateral control, with the understanding that
multilateral controls are preferable when practical. An item's ECCN
0Y521 classification may be extended for two one-year periods to
provide time for the U.S. Government and multilateral regime(s) to
reach agreement on controls for the item, and provided that the U.S.
Government has submitted a proposal to obtain multilateral controls
over the item. Further extension beyond three years may occur only if
the Under Secretary for Industry and Security makes a determination
that such extension is in the national security or foreign policy
interests of the United States. An extension or re-extension, including
a determination by the Under Secretary for Industry and Security, will
be published in the Federal Register.
License Requirements, Policies and Exceptions
The license requirements and policies for the ECCN 0Y521 series
appear in Sec. 742.6(a)(7) of the EAR. ECCN 0Y521 items are subject to
a nearly worldwide license requirement (i.e., for every country except
Canada) with a case-by-case license review policy, through regional
stability (RS Column 1) controls. The description and status of ECCN
0Y521 items appear in Supplement No. 5 to part 774 of the EAR, along
with any item-specific license exceptions, where applicable. Unless
otherwise indicated, License Exception GOV is the only license
exception available and is applicable to all ECCN 0Y521 series items,
including those items identified in this document, if the item is
within the scope of Sec. 740.11(b)(2)(ii) (Exports, reexports, and
transfers (in-country) made by or consigned to a department or agency
of the U.S. Government), as provided in Sec. 740.2(a)(14).
Addition of ECCN 0C521 Item: XBS Epoxy System
In this rule, BIS amends the EAR to make the specified XBS Epoxy
System subject to the EAR and impose a license requirement on the item.
This item is being added to the 0Y521 series pursuant to a
determination by the Department of Commerce, with the concurrence of
the Departments of State and Defense, that the item should be
controlled because it provides a significant military or intelligence
advantage to the United States or because foreign policy reasons
justify such controls. The specified XBS Epoxy System is classified
under ECCN 0C521 No. 1. The control, which appears in the table found
in Supplement No. 5 to part 774 of the EAR, covers an Epoxy system
designed to obfuscate critical technology components against X-ray and
terahertz microscopy imaging attempts.
License Applications for the New ECCN 0C521 Item
License applications for this item may be submitted through SNAP-R
in accordance with Sec. 748.6 of the EAR. Exporters are directed to
include detailed descriptions and technical specifications with the
license application, and identify the item as 0C521.
Technical Amendment: Removal of No. 3 0D521 and No. 2 0E521 Items,
Aircraft Wing Folding Systems, From Supplement No. 5 to Part 774
In this rule, BIS also removes references to aircraft wing folding
systems ``software'' and related ``technology'' listed, prior to this
rule, as entries No. 3 0D521 and No. 2 0E521, respectively, in
Supplement No. 5 to part 774. The references to these items are
obsolete because, in accordance with procedure established in the April
13, 2012, final rule, the U.S. Government adopted a control through the
relevant multilateral regime(s), which determined an appropriate
longer-term control over the item. The wing fold system ``software'' is
now controlled by ECCN 9D001, and the ``technology'' is controlled by
ECCN 9E003.j on the CCL. A final rule published in the Federal Register
May 21, 2015 (80 FR 29431), and which went into effect the same day,
implemented the 2014 Wassenaar Plenary Agreements by establishing new
controls on the items, rendering their 0Y521 status obsolete. BIS is
not soliciting public comments on the removal provisions.
The rule is being issued in interim final form because while the
[[Page 70678]]
government believes that it is in the national security interests of
the United States to immediately implement these controls, it also
wants to provide the interested public with an opportunity to comment
on the new controls of the XBS Epoxy System. Comments may be submitted
in accordance with the DATES and ADDRESSES sections of this rule.
Export Administration Act
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 amended by Executive Order 13637 of March
8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of
August 7, 2015, 80 FR 48233 (August 11, 2015), has continued the Export
Administration Regulations in effect under the International Emergency
Economic Powers Act. BIS continues to carry out the provisions of the
Export Administration Act, as appropriate and to the extent permitted
by law, pursuant to Executive Order 13222 as amended by Executive Order
13637.
Rulemaking Requirements
1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. 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 is 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 OMB
control number. This rule affects two approved collections: (1) The
Simplified Network Application Processing + System (control number
0694-0088), which carries a burden hour estimate of 43.8 minutes,
including the time necessary to submit license applications, among
other things, as well as miscellaneous and other recordkeeping
activities that account for 12 minutes per submission; and (2) License
Exceptions and Exclusions (0694-0137). With these initial 0Y521 series
items, BIS does not believe that this rule will materially increase the
number of submissions under these collections.
3. This rule does not contain policies with Federalism implications
as that term is defined under E.O. 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring prior notice, the opportunity for public comment 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)). BIS, with the concurrence of the U.S.
Departments of Defense and State, is implementing this rule because the
item identified for the ECCN 0Y521 series in this rule provide a
significant military or intelligence advantage to the United States.
Immediate imposition of a license requirement is necessary to effect
the national security and foreign policy goals of this rule. Immediate
implementation will allow BIS to prevent exports of these items to
users and for uses that pose a national security threat to the United
States or its allies. If BIS delayed this rule to allow for prior
notice and opportunity for public comment, the resulting delay in
implementation would afford an opportunity for the export of these
items to users and uses that pose such a national security threat,
thereby undermining the purpose of the rule. In addition, if parties
receive notice of the U.S. Government's intention to control these
items under 0Y521 once a final rule was published, they might have an
incentive to either accelerate orders of these items or attempt to have
the items exported prior to the imposition of the control. In addition,
prior notice and opportunity for public comment is unnecessary for the
amendment to remove references to wing folding technology and software.
The removal of the references updates Supplement No. 5 to part 774 and
ensures that it accurately reflects the legal status of those items now
classified under other ECCNs under the EAR. This amendment also serves
to avoid confusing readers about the items' current status.
Further, BIS finds good cause to waive the 30-day delay in
effectiveness under 5 U.S.C. 553(d)(3). Immediate implementation of
these changes will allow BIS to prevent exports of these items to users
and for uses that pose a national security threat to the United States
or its allies. If BIS delayed this rule to allow for a 30-day delay in
effectiveness, the resulting delay in implementation would afford an
opportunity for the export of these items to users and uses that pose
such a national security threat, thereby undermining the purpose of the
rule. BIS also finds good cause to waive the 30-delay in effectiveness
for the implementation of the amendment to remove items because the
amendment will assist in clarifying the current status of the wing
folding technology and software, eliminating any possible confusion.
Furthermore, the amendment is not a substantive change. 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. Accordingly, no regulatory
flexibility analysis is required and none has been prepared. Although
notice and opportunity for comment are not required, BIS is issuing
this rule as an interim final rule with a request for comments. All
comments must be in writing and submitted via one or more of the
methods listed under the ADDRESSES caption to this document. All
comments (including any personal identifiable information) will be
available for public inspection and copying. Those wishing to comment
anonymously may do so by submitting their comment via regulations.gov
and leaving the fields for identifying information blank.
List of Subjects in 15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
Accordingly, part 774 of the Export Administration Regulations (15
CFR parts 730-774) is amended as follows:
PART 774--[AMENDED]
0
1. The authority citation for part 774 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); 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; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; 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 7, 2015, 80 FR 48233 (August 11, 2015).
0
2. Supplement No. 5 to part 774 is revised to read as follows:
SUPPLEMENT NO. 5 TO PART 774--ITEMS CLASSIFIED UNDER ECCNS 0A521,
0B521, 0C521, 0D521 AND 0E521
The following table lists items subject to the EAR that are not
listed elsewhere in the CCL, but which the Department of Commerce,
with the concurrence of the Departments of Defense and State, has
[[Page 70679]]
identified warrant control for export or reexport because the items
provide at least a significant military or intelligence advantage to
the United States or for foreign policy reasons.
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Date when the item will
Item descriptor. Note: The Date of initial or be designated EAR99,
description must match by model subsequent BIS unless reclassified in Item-specific license
number or a broader descriptor that classification (ID = another ECCN or the exception eligibility
does not necessarily need to be initial date; SD = 0Y521 classification is
company specific subsequent date) reissued
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0A521. Systems, Equipment and Components
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[RESERVED]
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0B521. Test, Inspection and Production Equipment
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[RESERVED]
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0C521. Materials
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No. 1 XBS Epoxy system designed to November 16, 2015 (ID). November 16, 2016...... License Exception GOV
obfuscate critical technology under Sec.
components against x-ray and 740.11(b)(2)(ii) only
terahertz microscopy imaging
attempts.
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No. 2 [RESERVED]..................... [RESERVED]............. [RESERVED]............. [RESERVED]
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0D521. Software
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[RESERVED]
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0E521. Technology
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[RESERVED]
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Dated: November 9, 2015.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2015-28978 Filed 11-13-15; 8:45 am]
BILLING CODE 3510-33-P