Amendments to the Export Administration Regulations (EAR) Based Upon the Accession of Albania and Croatia to Formal Membership in the North Atlantic Treaty Organization (NATO)

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

The Bureau of Industry and Security (BIS) is publishing this final rule to amend certain requirements in the Export Administration Regulations (EAR) that apply to Albania and Croatia. These changes are based upon the accession of Albania and Croatia to formal membership in the North Atlantic Treaty Organization (NATO) on April 1, 2009. Consistent with the EAR license requirements and licensing policies that apply to members of NATO, this final rule amends the EAR to remove certain crime control (CC), national security (NS), and regional stability (RS) license requirements for these two countries. A license continues to be required for exports and reexports to Albania or Croatia of items on the Commerce Control List (CCL) controlled for national security or regional stability reasons that are identified as requiring a license to destinations indicated under NS Column 1 (also NS Column 2, for Albania) or RS Column 1, respectively, on the Commerce Country Chart. Certain restraint devices, discharge type arms, and related technology described on the CCL continue to require a license for crime control reasons to Albania or Croatia. A license also continues to be required for specially designed implements of torture described on the CCL. Furthermore, this rule does not affect any license requirements that apply to these countries based on other reasons for control identified in the EAR. This final rule also removes the EAR prohibition that applied to certain in transit shipments through Albania, removes Albania from Country Group D, and adds Albania to Country Group B. Croatia has already been designated in the EAR as a Country Group B country. In addition, this rule amends the provisions of License Exception APR (Additional Permissive Reexports) that apply to reexports of certain thermal imaging cameras to include Albania and Croatia among the list of eligible destinations. Finally, this rule amends the definition of “NATO (North Atlantic Treaty Organization)” in the EAR to include Albania and Croatia.

DATES:

This rule is effective December 23, 2009. 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-AE62, by any of the following methods:

• E-mail: publiccomments@bis.doc.gov. Include “RIN 0694-AE62” 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 Street & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, Attn: RIN 0694-AE62.

Send comments regarding this collection of information, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th Street & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230. Comments on this collection of information should be submitted separately from comments on the final rule (i.e., RIN 0694-AE62)—all comments on the latter should be submitted by one of the four methods outlined above.

FOR FURTHER INFORMATION CONTACT:

John Varesi, Sensors and Aviation Division, Office of National Security and Technology Transfer Controls, Bureau of Industry and Security, Telephone: (202) 482-1114.

SUPPLEMENTARY INFORMATION:

Background

This final rule amends certain requirements in the Export Administration Regulations (EAR) that apply to Albania and Croatia. These changes are based upon the accession of Albania and Croatia to formal membership in the North Atlantic Treaty Organization (NATO) on April 1, 2009.

This rule amends the Commerce Country Chart (Supplement No. 1 to Part 738 of the EAR) by revising certain license requirements that apply to Albania and Croatia to be consistent with those that apply to other members of NATO. Specifically, this rule removes certain crime control (CC), national security (NS) and regional stability (RS) license requirements for Albania and Croatia. As a result of the changes made by this rule, Albania and Croatia are no longer designated as RS Column 2 destinations on the Commerce Country Chart and Croatia is no longer designated as an NS Column 2 destination. However, a license continues to be required for exports and reexports to Albania or Croatia of items on the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) that are controlled for national security or regional stability reasons and are identified as requiring a license to destinations indicated under NS Column 1 (also NS Column 2, for Albania) or RS Column 1, respectively, on the Commerce Country Chart. A license also continues to be required for exports and reexports to Albania or Croatia of restraint devices, discharge type arms, and related technology that are controlled for crime control reasons under Export Control Classification Numbers (ECCNs) 0A982, 0A985, and 0E982, respectively, on the CCL. Specially designed implements of torture that are controlled under ECCN 0A983 also continue to require a license for export and reexport to Albania or Croatia. In addition, this rule does not affect license requirements that apply to Albania or Croatia based on other reasons for control identified in the EAR, such as chemical/biological (CB), missile technology (MT), nuclear proliferation (NP), and encryption items (EI).

Consistent with the changes described above, this rule amends the national security (NS) license requirement provisions in Section 742.4(a) of the EAR by adding Croatia to the list of countries that are not subject to the NS Column 2 license requirements indicated in various Export Control Classification Numbers (ECCNs) on the CCL. In addition, this rule adds Albania and Croatia to the list of countries identified in Section 742.4(a) of the EAR that are not subject to the NS Column 2 license requirements that apply to certain ECCN 6A003.b.4.b cameras described therein. Although this rule does not remove all of the NS Column 2 license requirements for Albania, as it does for Croatia, the rule does make Albania eligible for the exemption that applies to certain ECCN 6A003.b.4.b cameras described in Section 742.4(a) of the EAR—this policy is consistent with the treatment that is provided for exports of such cameras to Cyprus, Malta, and South Africa, which also are subject to most NS Column 2 license requirements.

Consistent with the changes in the regional stability (RS) license requirements for Albania and Croatia described above, this rule adds both countries to the list of countries identified in Section 742.6(a)(4)(ii) of the EAR as not subject to the RS Column 2 license requirements that apply to certain ECCN 6A003.b.4.b cameras described therein. This rule also amends the RS Column 1 license requirements described in Section 742.6(a) of the EAR by adding Albania and Croatia to the list of countries to which certain exports or reexports of cameras controlled under ECCN 6A003.b.4.b, as described in Section 742.6(a)(2)(ii) or (a)(2)(iv) of the EAR, may be authorized in accordance with the requirements of Section 742.6(a)(2)(iii) or (a)(2)(v), respectively. In addition, this rule adds Albania and Croatia to the list of countries in Section 742.6(a)(3) of the EAR whose governments are authorized to reexport without a license “military commodities” controlled under ECCN 0A919 as part of a military deployment.

This rule also amends Section 743.3(b) of the EAR by adding Albania and Croatia to the list of countries that are subject to the reporting requirements described in this section, which apply to exports of ECCN 6A003.b.4.b thermal imaging cameras that have been authorized under the EAR without a validated license.

Most of the amendments to Sections 740.16(b)(3), 742.4(a), 742.6(a), and 743.3(b) of the EAR that are described above involve provisions of the EAR that were affected by a final rule published by BIS on May 22, 2009 (74 FR 23941), which revised certain license requirements and license exception eligibility requirements for thermal imaging cameras controlled by ECCN 6A003.b.4.b on the CCL. This final rule does not affect the scope of these requirements, except insofar as they apply to exports of such cameras to Albania and Croatia. For additional information on the application of these requirements to Albania and Croatia, please refer to the BIS point of contact identified in the May 22, 2009, final rule.

In addition to the national security and regional stability changes described above, this rule amends Section 736.2(b)(8)(ii) of the EAR (i.e., General Prohibition Eight) to remove “Albania” from the list of countries that are subject to the prohibition against certain in transit shipments. This prohibition applies to intransit shipments through specified countries of items that generally would require a license for export or reexport to such countries and that are not authorized under either a license or a license exception.

This rule also amends Supplement No. 1 to Part 740 of the EAR (titled “Country Groups”) by removing “Albania” from “Country Group D” and adding “Albania” to “Country Group B—Countries,” consistent with the treatment provided to other members of NATO. “Croatia” has already been designated in the EAR as a Country Group B country (see the interim rule titled, “Simplification of Export Administration Regulations,” published at 61 FR 12714, March 25, 1996; Country Group B, p. 12782). Whether or not a country has been designated by the EAR as a Country Group B country can affect its eligibility status with respect to certain license exceptions described in Part 740 of the EAR (e.g., License Exceptions LVS, GBS, and TSR).

Consistent with the status of Albania and Croatia as members of NATO, this rule also amends the License Exception APR (Additional Permissive Reexports) provisions in Section 740.16(b)(3) of the EAR to add Albania and Croatia to the list of eligible destinations for certain thermal imaging cameras controlled under ECCN 6A003.b.4.b on the CCL.

Finally, this rule amends Section 772.1 of the EAR to update the definition of “NATO (North Atlantic Treaty Organization)” by adding “Albania” and “Croatia.”

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 13, 2009, 74 FR 41325 (August 14, 2009), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

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 collections of information subject to the requirements of the PRA. These collections have 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 BIS-748, and Control Number 0694-0133, which carries a burden hour estimate of 60 hours annually for all reports submitted in accordance with Section 743.3 of the EAR. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to Jasmeet Seehra, 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 736

• Exports

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 742

• Exports
• Foreign trade

15 CFR Part 743

• Administrative practice and procedure
• Reporting and recordkeeping requirements

15 CFR Part 772

• Exports

Accordingly, parts 736, 738, 740, 742, 743, and 772 of the Export Administration Regulations (15 CFR Parts 730-774) are amended as follows:

PART 736—[AMENDED]

1. The authority citation for 15 CFR part 736 is revised to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 2151 note; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp. p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, May 13, 2004; Notice of August 13, 2009, 74 FR 41325 (August 14, 2009); Notice of November 6, 2009, 74 FR 58187 (November 10, 2009).

2. In Section 736.2(b)(8)(ii), remove the country, “Albania,”.

PART 738—[AMENDED]

3. The authority citation for 15 CFR part 738 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; 46 U.S.C. app. 466c; 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 13, 2009, 74 FR 41325 (August 14, 2009).

4. Supplement No. 1 to part 738 is amended in the entries for “Albania” and “Croatia,” by adding a reference to footnote number 2 in the entry for “Albania,” and by adding a reference to footnote number 3 in the entries for “Albania” and “Croatia” to read as follows:

PART 740—[AMENDED]

5. The authority citation for 15 CFR part 740 continues to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; 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 13, 2009, 74 FR 41325 (August 14, 2009).

6. Section 740.16(b)(3) introductory text is amended by removing the phrase “Australia, Austria, Belgium, Bulgaria, Canada,” and adding in its place the phrase, ``Albania, Australia, Austria, Belgium, Bulgaria, Canada, Croatia,''.

Supplement No. 1 to Part 740 [Amended]

7. In Supplement No. 1 to part 740, Country Groups, the table titled “Country Group B—Countries” is amended by adding, in alphabetical order, the country ``Albania''.

8. In Supplement No. 1 to part 740, Country Groups, the table titled ``Country Group D'' is amended by removing the entry for “Albania”.

PART 742—[AMENDED]

9. The authority citation for 15 CFR part 742 is revised to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; Sec 1503, Public Law 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 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 13, 2009, 74 FR 41325 (August 14, 2009); Notice of November 6, 2009, 74 FR 58187 (November 10, 2009).

10. Section 742.4(a) is amended:

a. By removing the word “Bulgaria,” immediately following the parenthetical phrase in the third sentence and adding in its place the phrase, “Bulgaria, Croatia,”; and

b. By removing the phrase “except Australia, Austria, Belgium, Bulgaria, Canada,” in the fourth sentence and adding in its place the phrase, “except Albania, Australia, Austria, Belgium, Bulgaria, Canada, Croatia,”.

11. Section 742.6 is amended:

a. By revising the first sentence in paragraph (a)(2)(iii);

b. By revising the first sentence in paragraph (a)(2)(v);

c. By revising paragraph (a)(3); and

d. By revising paragraph (a)(4)(ii).

The revisions read as follows:

PART 743—[AMENDED]

12. The authority citation for 15 CFR part 743 continues to read as follows:

Authority: 50 U.S.C. app. 2401 et seq; Public Law 106-508; 50 U.S.C. 1701 et seq; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 13, 2009, 74 FR 41325 (August 14, 2009).

13. Section 743.3(b) is amended by removing the phrase “to Australia, Austria, Belgium, Bulgaria,” and adding in its place the phrase “to Albania, Australia, Austria, Belgium, Bulgaria, Croatia,”.

PART 772—[AMENDED]

14. The authority citation for 15 CFR part 772 continues 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 13, 2009, 74 FR 41325 (August 14, 2009).

15. In Section 772.1, the definition of “NATO (North Atlantic Treaty Organization)” is revised to read as follows: