Daily Rules, Proposed Rules, and Notices of the Federal Government
The Export Administration Regulations (EAR) impose license requirements on certain items because of their potential use in crime control activities. These license requirements are maintained to support U.S. foreign policy to promote human rights. This rule revises the EAR to make certain shipments of crime control items consigned to and for the use of U.S. government agencies eligible for a license exception. It also clarifies and strengthens limits on use of License Exceptions for crime control items generally and clearly delineates between our export control policies regarding legitimate crime control items (a policy of reviewing license applications based on the human rights record in the destination country with some exceptions to the license requirements available in appropriate circumstances) and our policies regarding specially designed implements of torture (a general policy of denial of license applications and no license exceptions available). In addition to these changes, BIS is continuing to review the list of items restricted for crime control reasons to ensure that such controls keep pace with the technologies currently used by law enforcement. The specific changes made by this rule are described more fully below.
This rule replaces the word “commodities” in paragraph (a)(4) of § 740.2 with the word “items” to make clear that the restrictions of paragraph (a)(4) on the use of License Exceptions to export or reexport crime control items apply to software and technology, as well as commodities.
This rule revises paragraph (a)(4) of § 740.2 to permit the use of License Exception GOV for the export of items subject to § 742.7 of the EAR if consigned to and for the official use of any U.S. government agency, worldwide. Although this change applies to any U.S. Government agency, BIS is making it at this time because of the need to supply U.S. armed forces in locations that, prior to publication of this rule, would be subject to the geographic restriction on use of License Exceptions for crime control items. This rule does not expand the scope of eligible recipients under License Exception GOV. In particular, this rule does not make shipments consigned to contractors employed by the U.S. government eligible for License Exception GOV. This rule also reformats paragraph (a)(4) while retaining its pre-existing exemptions for shipments to NATO countries, Australia, New Zealand and Japan as well as certain shipments of shotguns for personal use.
This rule creates a new paragraph (a)(10) in § 740.2. The new paragraph (a)(10) expressly prohibits the use of License Exceptions for all commodities subject to the license requirements of § 742.11 of the EAR (specially designed implements of torture and some related commodities).
This rule revises the heading and paragraph (a) of § 742.11 of the EAR to make clear that the license requirements and licensing policy of that section apply to all commodities that are controlled by Export Control Classification Number (ECCN) 0A983. Such was BIS's interpretation prior to publication of this rule and BIS does not view this as a substantive change. However, prior to publication of this rule, ECCN 0A983 referred to “specially designed implements of torture and thumbscrews; and parts and accessories, n.e.s.,” whereas § 742.11 referred to “specially designed implements of torture controlled by ECCN 0A983.” This rule makes the wording of the headings of § 742.11 and ECCN 0A983 identical and revises the license requirements section of § 742.11 to refer to “any commodity controlled by ECCN 0A983.”
This rule removes thumbcuffs from ECCN 0A982 and adds them to ECCN 0A983. BIS's licensing policy is generally to deny applications to export or reexport thumbcuffs. Controlling them under ECCN 0A983, for which § 742.11 of the EAR provides a general policy of denial, more accurately states BIS's licensing policy than does controlling them under ECCN 0A982, for which § 742.7 provides for favorable case-by-case consideration “unless there is civil disorder in the country or region or unless there is evidence that the government of the importing country may have violated internationally recognized human rights.” In addition, this change will make thumbcuffs ineligible for any License Exception under any circumstances. This rule also adds a “related controls” note to ECCN 0A982 to guide readers to ECCN 0A983 for controls on thumbcuffs.
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 3, 2006, 71 FR 44551 (August 7, 2006), continues the EAR in effect under the International Emergency Economic Powers Act (IEEPA).
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
3. This rule does not contain policies with Federalism implications as that
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
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports, Reporting and recordkeeping requirements.
50 U.S.C. app. 2401
(a) * * *
(4) The item being exported or reexported is subject to the license requirements described in § 742.7 of the EAR and the export or reexport is not:
(i) Being made to Australia, Japan, New Zealand, or a NATO (North Atlantic Treaty Organization) member state (see NATO membership listing in § 772.1 of the EAR);
(ii) Authorized by § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. government); or
(iii) Authorized by § 740.14(e) of the EAR (certain shotguns and shotgun shells for personal use).
(10) The commodity being exported or reexported is subject to the license requirements of § 742.11 of the EAR.
50 U.S.C. app. 2401
50 U.S.C. app. 2401