[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
[Rules and Regulations]
[Pages 4781-4783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00836]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 742
[Docket No. 160901810-6810-01]
RIN 0694-AH10
Revisions to Sudan Licensing Policy
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: This rule revises the policy of review for applications for
licenses to export or reexport to Sudan certain items that are intended
to ensure the safety of civil aviation or the safe operation of fixed-
wing, commercial passenger aircraft. Such applications will now be
reviewed under a general policy of approval rather than a general
policy of denial.
This rule also revises the review policy from a general policy of
denial to a general policy of approval for applications for licenses to
export or reexport to Sudan certain items for use to inspect, design,
construct, operate, improve, maintain, repair, overhaul or refurbish
railroads in Sudan. This rule does not create any new license
requirements or remove any existing license requirements for exports or
reexports to Sudan. BIS is making these licensing policy changes in
connection with ongoing U.S.-Sudan bilateral engagement, and with the
aim of enhancing the safety of Sudan's civil aviation and improving the
country's railroads. This action takes into account the United States'
goals to improve regional peace and security.
This rule also removes two instances of ``contract sanctity dates''
pertaining to the export and reexport of certain items to Sudan from
the EAR that currently serve no practical purpose.
BIS is taking these actions in coordination with the Department of
the Treasury's Office of Foreign Assets Control (OFAC), which is
amending the Sudanese Sanctions Regulations.
DATES: Effective Date: January 17, 2017.
FOR FURTHER INFORMATION CONTACT: Foreign Policy Division, Bureau of
Industry and Security, Phone: (202) 482-4252.
SUPPLEMENTARY INFORMATION:
Background
Pursuant to Sec. 742.10 of the Export Administration Regulations
(EAR), in keeping with Sudan's designation as a state sponsor of
terrorism, persons must obtain a license to export or reexport to Sudan
all aircraft controlled on the Commerce Control List (Supp. No. 1 to
part 774 of the EAR) (CCL) and to export related parts and components
that are controlled on the CCL. Prior to the publication of this rule,
the EAR imposed a general policy of denial on license applications for
such exports or reexports to all end-users and for all end uses in
Sudan. This rule revises the licensing policy to a general policy of
approval for parts, components, materials, equipment, and technology
that are controlled on the CCL only for anti-terrorism reasons and that
are intended to ensure the safety of civil aviation or the safe
operation of fixed-wing, commercial passenger aircraft.
Applications to export or reexport to Sudan complete aircraft and
applications to export or reexport to Sudan aircraft-related items that
are controlled for anti-terrorism reasons and one or more additional
reasons (for example, missile technology reasons) will continue to be
reviewed under a general policy of denial to all end users.
This rule also revises the general policy of denial to a general
policy of approval for license applications to export or reexport to
Sudan items controlled on the CCL only for anti-terrorism reasons that
will be used to inspect, design, construct, operate, improve, maintain,
repair, overhaul or refurbish railroads in Sudan.
With respect to both aircraft related-items and railroad-related
items, the general policies of approval set forth in this rule apply
only to exports and reexports to Sudan for civil uses by non-sensitive
end-users within Sudan. Sensitive end users, who are not eligible for
these policies, include Sudan's military, police, and/or intelligence
services and persons that are owned by or are part of or are operated
or controlled by those services. Additionally, license applications for
the export or reexport of items that would substantially benefit such
sensitive end users will generally be denied. To implement these
policies, this rule revises Sec. 742.10(b)(3) of the EAR, which sets
forth exceptions to the general policies of denial that apply to most
license applications to export or reexport to Sudan.
In conjunction with this rule, the Department of the Treasury's
Office of Foreign Assets Control (OFAC) is
[[Page 4782]]
amending the Sudanese Sanctions Regulations, 31 CFR part 538, to add a
new general license that authorizes all transactions prohibited by
those regulations and by Executive Orders 13067 and 13412. Under OFAC's
new general license, newly-authorized transactions include the
processing of transactions involving persons in Sudan; the importation
of goods and services from Sudan; the exportation of goods, technology,
and services to Sudan; and transactions involving property in which the
Government of Sudan has an interest. Persons interested in exporting or
reexporting to Sudan goods and technology that are subject to the EAR,
including items related to railroads or the safety of civil aviation or
safe operation of fixed-wing commercial passenger aircraft, pursuant to
OFAC's new general license should consult BIS regarding any licensing
obligations they may have under the EAR.
BIS will continue to evaluate license applications in light of
section 6(j) of the Export Administration Act of 1979 (EAA), as
continued in effect under the International Emergency Economic Powers
Act, and any other relevant legal requirements.
This rule also removes and reserves paragraphs (c)(6)(iii) and
(c)(10)(iii) of Supplement No. 2 to part 742, which state licensing
policy and contract sanctity dates for aircraft, and cryptographic and
cryptologic equipment, respectively. The licensing policies for these
commodities are stated in paragraphs (b)(1)(iv) and (b)(1)(v) of Sec.
742.10 and need not be repeated in Supplement No. 2. Moreover, as a
consequence of this rule, which revises licensing policy for certain
aircraft-related items and railroad-related items, the latter category
potentially including cryptographic and cryptologic equipment,
paragraphs (c)(6)(iii) and (c)(10)(iii)'s statements of a general
policy of denial for all end-users in Sudan is no longer accurate.
Additionally, the recitation of contract sanctity dates in Supplement
No. 2 does not serve a practical purpose. The term ``contract sanctity
date'' draws on section 6(p) of the EAA. That section constrains BIS's
ability to limit exports and reexports in performance of contracts
entered into prior to the date of imposition of export controls. The
references to the contract sanctity dates in the supplement do not
limit or otherwise affect the right of any license applicant to assert
that the provisions of section 6(p) of the EAA apply to the license
application that it is submitting. The identified dates are also long
outdated, with March 21, 2003, the most recent contract sanctity date
that this rule removes from Supplement No. 2 to part 742.
Export Administration Act of 1979
Although the Export Administration Act of 1979 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 4, 2016, 81 FR 52587 (August 8, 2016), 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, distributive 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 not to be 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
involves a collection of information approved under OMB control number
0694-0088--Simplified Network Application Processing+ System (SNAP+)
and the Multipurpose Export License Application, which carries an
annual estimated burden of 31,833 hours. BIS believes that this rule
will have no material impact on that burden. To the extent that it has
any impact, BIS believes that the benefits of this rule justify any
additional burden it creates. This rule does not impose any new license
requirements; in fact, it creates more favorable license application
review policies for exports and reexports to Sudan. These more
favorable policies might increase the number of license applications
submitted to BIS because applicants might be more optimistic about
obtaining approval. However, the benefit to license applicants in the
form of greater likelihood of approval justifies any additional burden.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing the
burden, to Jasmeet K. Seehra, Office of Management and Budget, by email
at [email protected] or by fax to (202) 395-7285 and to Sheila
Quarterman at [email protected].
3. This rule does not contain policies with Federalism implications
as that term is defined under Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking and 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)). BIS is making these
licensing policy changes in connection with ongoing U.S.-Sudan
bilateral engagement, and with the aim of enhancing the safety of
Sudan's civil aviation and improving its railroads. This decision takes
into account our goals to improve regional peace and security. A delay
in effective date would undermine progress in that bilateral engagement
adversely impacting the U.S. Government's foreign policy goals of
improving regional peace and security.
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 under 5 U.S.C. 553, or by any
other law, the requirements of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.) are not applicable.
List of Subjects in 15 CFR Part 742
Exports, Terrorism.
For the reasons set forth in the preamble, part 742 of the Export
Administration Regulations (15 CFR parts 730-774) is amended as
follows:
PART 742--[AMENDED]
0
1. The authority citation for 15 CFR part 742 continues to read as
follows:
Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22
U.S.C. 3201 et seq.;
[[Page 4783]]
42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; 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, 68 FR 26459,
3 CFR, 2004 Comp., p. 320; Notice of August 4, 2016, 81 FR 52587
(August 8, 2016); Notice of November 8, 2016, 81 FR 79379 (November
10, 2016).
0
2. Section 742.10 is amended by:
0
a. Adding a paragraph heading to paragraph (b)(1) introductory text;
0
b. Revising the first sentence of paragraph (b)(1)(iv);
0
c. Adding a paragraph heading to paragraph (b)(2); and
0
d. Revising paragraph (b)(3).
The additions and revisions read as follows:
Sec. 742.10 Anti-terrorism: Sudan.
* * * * *
(b) * * *
(1) General policy of denial. * * *
* * * * *
(iv) Except as provided in paragraph (b)(3)(ii) of this section,
all aircraft (powered and unpowered), helicopters, engines and related
spare parts and components. * * *
* * * * *
(2) Military end-user and end-use policy. * * *
(3) Other licensing policies. The licensing policies set forth in
this paragraph apply notwithstanding the provisions of paragraphs
(b)(1) and (b)(2) of this section.
(i) Case-by-case review policy. Applications to export or reexport
to Sudan will be considered on a case-by-case basis in the four
situations described in paragraphs (b)(3)(i)(A) through (D) of this
section.
(A) The transaction involves the reexport to Sudan of items where
Sudan was not the intended ultimate destination at the time of original
export from the United States, provided that the export from the United
States occurred prior to the applicable contract sanctity date.
(B) The U.S. content of foreign-produced commodities is 20% or less
by value.
(C) The commodities are medical items.
(D) The items are telecommunications equipment and associated
computers, software and technology for civil end use, including items
useful for the development of civil telecommunications network
infrastructure.
Note to paragraph (b)(3)(i). Applicants seeking approval of their
license applications pursuant to this paragraph must include with their
applications documentation demonstrating how their proposed transaction
is consistent with one or more of the four situations described in this
paragraph.
(ii) General policy of approval. Applications to export or reexport
to Sudan the following for civil uses by non-sensitive end-users within
Sudan will be reviewed with a general policy of approval.
(A) Parts, components, materials, equipment, and technology that
are controlled on the Commerce Control List (Supp. No. 1 to part 774 of
the EAR) only for anti-terrorism reasons that are intended to ensure
the safety of civil aviation or the safe operation of fixed-wing
commercial passenger aircraft.
(B) Items controlled on the Commerce Control List (Supp. No. 1 to
part 774 of the EAR) only for anti-terrorism reasons that will be used
to inspect, design, construct, operate, improve, maintain, repair,
overhaul or refurbish railroads in Sudan.
Note to paragraph (b)(3)(ii). Applications will generally be denied
for exports or reexports that would substantially benefit a sensitive
end user. Sensitive end users include Sudan's military, police, and
intelligence services and persons that are owned by or are part of or
operated or controlled by those services.
* * * * *
Supplement No. 2 to Part 742 [Amended]
0
3. In Supplement No. 2 to part 742, remove and reserve paragraphs
(c)(6)(iii) and (c)(10)(iii).
Dated: January 4, 2017.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2017-00836 Filed 1-13-17; 8:45 am]
BILLING CODE 3510-33-P