
[Federal Register Volume 80, Number 232 (Thursday, December 3, 2015)]
[Rules and Regulations]
[Pages 75633-75636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30253]



[[Page 75633]]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 738, 740, 743, 772 and 774

[Docket No. 150304217-5727-02]
RIN 0694-AG44


Wassenaar Arrangement 2014 Plenary Agreements Implementation and 
Country Policy Amendments; Correction

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Correcting amendments.

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SUMMARY: The Bureau of Industry and Security (BIS) maintains, as part 
of its Export Administration Regulations (EAR), the Commerce Control 
List (CCL), which identifies certain of the items subject to Department 
of Commerce jurisdiction. This correction rule revises the Commerce 
Country Chart by implementing revisions that BIS inadvertently omitted 
from the ``Wassenaar Arrangement 2014 Plenary Agreements Implementation 
and Country Policy Amendments'' rule published on May 21, 2015 (80 FR 
29442) (``May 21 rule''), for Argentina and South Africa. This rule 
also implements the Wassenaar Arrangement (WA) agreement to make a 
clarification to the control text for rebreathing equipment that BIS 
inadvertently did not make in the May 21 rule. A license requirement 
note indicating jurisdiction is corrected and a related control note is 
clarified in an entry on the CCL controlling space launch vehicles and 
``spacecraft,'' ``space buses,'' ``spacecraft payloads,'' etc., as the 
range of the reference was incorrectly stated in the May 21 rule. The 
reference concerning jurisdiction for ``specially designed'' parts, 
components, systems and structures, for launch vehicles, launch vehicle 
propulsion systems or ``spacecraft'' is corrected in the CCL entry 
controlling such items in this rule.
    In addition, this rule makes one minor correction to remove Fiji 
from Column D:5 ``U.S. Arms Embargoed Countries,'' as well as from 
Country Group D, because Fiji is not listed under any other column 
within Country Group D and because the Department of State published a 
final rule that revised the International Traffic in Arms Regulations 
(ITAR) to rescind the previous policy of denying the export of defense 
articles and defense services to Fiji.
    Lastly, this rule removes an outdated reference in the Definitions 
part of the EAR.

DATES: This rule is effective December 3, 2015.

FOR FURTHER INFORMATION CONTACT: For general questions contact Sharron 
Cook, Office of Exporter Services, Bureau of Industry and Security, 
U.S. Department of Commerce at 202-482 2440 or by email: 
Sharron.Cook@bis.doc.gov.
    For technical questions contact:
    Categories 7 & 9: Daniel Squire 202-482-3710 or Reynaldo Garcia 
202-482-3462
    Category 8: Michael Tu 202-482-6462

SUPPLEMENTARY INFORMATION:

Background

Supplement No. 1 to Part 738--Commerce Country Chart

    In the May 21 rule, Argentina and South Africa were added to 
Country Group A:1. The intent of that rule was also to harmonize 
Country Group A:1 with national security column 2 and regional 
stability column 2 of the Commerce Country Chart. However, BIS 
inadvertently did not remove the corresponding Xs for South Africa and 
Argentina. Therefore, the Commerce Country Chart is corrected by 
revising the second columns for national security (NS:2), and regional 
stability (RS:2) in order to harmonize these columns with the newly 
revised Country Group A:1, making the license requirement consistent 
with the risk of diversion to unauthorized end users, end uses and 
destinations. Specifically, this rule would remove the X, i.e., license 
requirement, in the NS:2 Column for South Africa, as well as remove the 
X in the RS:2 Column for Argentina and South Africa, because the risk 
of diversion to unauthorized destinations, parties or uses is low for 
these countries. Both Argentina and South Africa are WA Participating 
States, but are not NATO member countries.

Part 740--Country Groups

    This rule removes Fiji from Country Group D:5 ``U.S. Arms Embargoed 
Countries,'' and from Country Group D in Supplement No. 1 to part 740 
of the EAR. This minor correction is not the result of a Wassenaar 
Arrangement agreement, but rather of a final rule published by the 
Department of State on May 29, 2015, 80 FR 30614 titled ``Amendment to 
the International Traffic in Arms Regulations: Policy on Exports to the 
Republic of Fiji.'' The State Department's rule revised ITAR Sec.  
126.1 to remove Fiji from paragraph (p), establishing that it is the 
policy of the United States to no longer deny licenses or other 
approval for exports or imports of defense articles and defense 
services destined for or originating in Fiji. The reasoning behind the 
change stated in the State Department rule was, ``On September 17, 
2014, Fiji's acting government followed through on its longstanding 
commitment to hold democratic elections.'' There are specific license 
exception restrictions that pertain to Country Group D:5 that will no 
longer apply to Fiji. See Part 740 of the EAR. This revision also 
affects the national security (Sec.  742.4) and regional stability 
(Sec.  742.6) license review policy for 9x515 or ``600 series'' ECCNs 
when destined to Fiji, as well as the application of the de minimis 
rules (Sec.  734.4) for foreign products incorporating controlled U.S. 
content destined to Fiji.

Section 743.3 Thermal Imaging Camera Reporting

    BIS inadvertently removed a thermal imaging camera reporting 
requirement exemption for Canada in the May 21 rule. The reporting 
requirements for thermal imaging cameras are corrected by exempting 
Canada from the reporting requirements, as was the policy prior to the 
publication of the May 21, 2015, Wassenaar rule. The exception is added 
to paragraph (b) of Sec.  743.3 of the EAR.

Part 772--Definitions

    This rule removes a reference for ``signal analyzer (dynamic) . . 
.'' that was inadvertently not removed when the definition for 
``dynamic signal analyzer'' was removed from this part.

Supplement No. 1 to Part 774--Commerce Control List

ECCN 8A620--Submersible Vessels, Oceanographic and Associated 
Commodities

    The May 21 rule inadvertently did not make a regulatory amendment 
that should have been made to implement a 2014 Wassenaar Arrangement 
agreement pertaining to diving and underwater swimming apparatus 
specially designed and modified for military use. The EAR amendment, 
which this rule makes, replaces paragraph .f with a new paragraph 
containing two subparagraphs: Subparagraph f.1 for self-contained 
diving rebreathers, closed or semi-closed circuit; and subparagraph f.2 
for underwater swimming apparatus ``specially designed'' for use with 
equipment specified in paragraph f.1. Paragraph f.1 narrows the scope 
by adding the ``self-contained'' parameter, while f.2 is an expansion 
of controls.

[[Page 75634]]

ECCN 9A004 Space Launch Vehicles and ``Spacecraft''

    The May 21 rule added paragraphs a. through f. to ECCN 9A004 in 
order to harmonize that ECCN with the Wassenaar dual-use list entry 
9.A.4., even though the controls for these goods would be under ECCN 
9A515. Because the EAR is used globally for export compliance, BIS 
decided that it would be easier for people to find these goods on the 
list where they would expect to find them on the European Union List or 
on the CCL prior to Export Control Reform (ECR) (in ECCN 9A004) and 
then follow the references in ECCN 9A004 to USML Category IV or ECCN 
9A515. However, the range of reference for the paragraphs impacted by 
ECCN 9A515 in the License Requirement Note for 9A004.a was incorrect. 
The range of reference in the License Requirement Note is corrected to 
read ``9A004.b through .f.'' Also, Note 3 in the Related Controls is 
revised for clarity.

9A010 ``Specially Designed'' ``Parts,'' ``Components,'' Systems and 
Structures, for Launch Vehicles, Launch Vehicle Propulsion Systems or 
``Spacecraft''

    The Heading to ECCN 9A010 is corrected by removing the reference to 
the ITAR for jurisdiction over these items and instead referring to the 
newly added Related Controls paragraph. The added Related Controls 
paragraph refers to USML Category IV of the ITAR and ECCN 9A604 for 
paragraphs 9A010.a, .b and .d, as well as USML Category XV of the ITAR 
and ECCN 9A515 for paragraph 9A010.c. The Related Controls paragraph 
also refers to Supplement No. 4 to part 774, Order of Review, because 
one is supposed to review the referenced ITAR category first and if the 
item is not found there, then the referenced CCL ECCN should be 
reviewed to determine classification of items specified in ECCN 9A010.

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.

Saving Clause

    Shipments of items removed from license exception eligibility or 
eligibility for export, reexport, or transfer (in-country) without a 
license as a result of this regulatory action that were on dock for 
loading, on lighter, laden aboard a carrier, or en route aboard a 
carrier to a port, on December 3, 2015, pursuant to actual orders to a 
destination, may proceed to that destination under the previous license 
exception eligibility or without a license so long as they have been 
exported, reexported, or transferred (in-country) before February 1, 
2016. Any such items not actually exported, reexported, or transferred 
(in-country) before midnight, on February 1, 2016, require a license in 
accordance with this regulation.

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 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 
involves two collections of information subject to the PRA. One of the 
collections has been approved by OMB under control number 0694-0088, 
``Multi-Purpose Application,'' and carries a burden hour estimate of 58 
minutes for a manual or electronic submission. The other of the 
collections has been approved by OMB under control number 0694-0106, 
``Reporting and Recordkeeping Requirements under the Wassenaar 
Arrangement,'' and carries a burden hour estimate of 21 minutes for a 
manual or electronic submission. Send comments regarding these burden 
estimates or any other aspect of these collections of information, 
including suggestions for reducing the burden, to OMB Desk Officer, New 
Executive Office Building, Washington, DC 20503; and to Jasmeet Seehra, 
OMB Desk Officer, by email at Jasmeet_K._Seehra@omb.eop.gov or by fax 
to (202) 395-7285; and to the Office of Administration, Bureau of 
Industry and Security, Department of Commerce, 1401 Constitution Ave. 
NW., Room 6622, Washington, DC 20230.
    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, the opportunity for 
public participation, and a 30-day delay in effective date, are 
inapplicable because this regulation involves a military and foreign 
affairs function of the United States (5 U.S.C. 553(a)(1)). Immediate 
implementation of these amendments fulfills the United States' 
international obligation to the Wassenaar Arrangement on Export 
Controls for Conventional Arms and Dual-Use Goods and Technologies. The 
Wassenaar Arrangement contributes to international security and 
regional stability by promoting greater responsibility in transfers of 
conventional arms and dual use goods and technologies, thus preventing 
destabilizing accumulations of such items. The Wassenaar Arrangement 
consists of 41 member countries that act on a consensus basis. The 
corrections set forth in this rule ensure the correct implementation of 
agreements reached at the December 2014 plenary session of the WA. 
Because the United States is a significant exporter of the items 
covered by this rule, implementation of this rule is necessary for the 
WA to achieve its purpose. Any delay in implementation will create a 
disruption in the movement of affected items globally because of 
disharmony between export control measures implemented by WA members. 
Export controls work best when all countries implement the same export 
controls in a timely manner. If this rulemaking were delayed to allow 
for notice and comment and a 30-day delay in effectiveness, it would 
prevent the United States from fulfilling its commitment to the WA in a 
timely manner and would injure the credibility of the United States in 
this and other multilateral regimes.
    The removal of Fiji from Country Group D:5 also involves a military 
and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). 
Country Group D:5 identifies countries that are

[[Page 75635]]

subject to a United States arms embargo for purposes of some license 
requirements and license exception availability. Designating a country 
as subject to a United States arms embargo is a function of the 
Department of State. The Department of State has determined that is in 
the best interests of U.S. foreign policy, national security, and human 
rights concerns to rescind the previous policy of denying the export of 
defense articles and defense services to Fiji. In this rule, BIS is 
merely recording the removal of the arms embargo in Fiji in its 
regulations to be consistent with the overall U.S. government policy 
regarding sales of military items that is set by the State Department. 
Even if BIS received public comments recommending that the arms embargo 
on Fiji be restored, BIS has no authority to take that action. 
Incurring the expense and delay of the notice and comment process in a 
situation where BIS has no authority to take action in response to 
those comments would be contrary to the public interest.
    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 the 
Administrative Procedure Act 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. Comments should be 
submitted to Sharron Cook, Office of Exporter Services, Bureau of 
Industry and Security, Department of Commerce, 14th and Pennsylvania 
Ave. NW., Room 2099, Washington, DC 20230.

List of Subjects

15 CFR Parts 738 and 772

    Exports.

15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Part 743

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

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

PART 738 [AMENDED]

0
1. The authority citation for 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; 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).

Supplement No. 1 to Part 738 [AMENDED]

0
2. Supplement No. 1 is amended by:
0
a. Removing the X from the RS:2 column for Argentina; and
0
b. Removing the X from the NS:2 column and the RS:2 column for South 
Africa.

PART 740 [AMENDED]

0
3. The authority citation for 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 7, 2015, 80 FR 48233 (August 11, 2015).


0
4. Supplement No. 1 to part 740, Country Group D is amended by removing 
the entry for Fiji from the table.

PART 743 [AMENDED]

0
5. The authority citation for part 743 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; E.O. 13637 of 
March 8, 2013, 78 FR 16129 (March 13, 2013); 78 FR 16129; Notice of 
August 7, 2015, 80 FR 48233 (August 11, 2015).


0
6. Section 743.3 is amended by revising paragraph (b) to read as 
follows:


Sec.  743.3  Thermal imaging camera reporting.

* * * * *
    (b) Transactions to be reported. Exports that are not authorized by 
an individually validated license of thermal imaging cameras controlled 
by ECCN 6A003.b.4.b to a destination in Country Group A:1 (see 
Supplement No. 1 to part 740 of the EAR), except Canada, must be 
reported to BIS.
* * * * *

PART 772 [AMENDED]

0
7. The authority citation for 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 
7, 2015, 80 FR 48233 (August 11, 2015).


Sec.  772.1  [Amended]

0
8. In Sec.  772.1, remove the entry ``Signal analyzers. (dynamic) (Cat 
3)--(See ``Dynamic signal analyzers''.)''

PART 774 [AMENDED]

0
9. 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
10. In Supplement No. 1 to part 774, Category 8, ECCN 8A620 is amended 
by revising Items paragraph f., to read as follows:

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *

8A620 Submersible vessels, oceanographic and associated commodities 
(see List of Items Controlled).

* * * * *

List of Items Controlled

* * * * *
    Items:
* * * * *
    f. Diving and underwater swimming apparatus specially designed 
or modified for military use, as follows:
    f.1. Self-contained diving rebreathers, closed or semi-closed 
circuit;
    f.2. Underwater swimming apparatus specially designed for use 
with the diving apparatus specified in subparagraph f.1;
    N.B.: See also 8A002.q.
* * * * *

0
11. In Supplement No. 1 to part 774, Category 9, ECCN 9A004 is amended 
by:
0
a. Revising the License Requirement Note in the License Requirements 
section; and
0
b. Revising Note 3 in the Related Controls paragraph of the List of 
Items Controlled section, to read as follows:

[[Page 75636]]

9A004 Space Launch Vehicles and ``Spacecraft,'' ``Spacecraft Buses,'' 
``Spacecraft Payloads,'' ``Spacecraft'' On-board Systems or Equipment, 
and Terrestrial Equipment, as Follows (see List of Items Controlled).

License Requirements

* * * * *
    License Requirements Note: 9A004.b through .f are controlled 
under ECCN 9A515.
* * * * *

List of Items Controlled

    Related Controls*** (3) See USML Categories IV for the space 
launch vehicles and XV for other spacecraft that are ``subject to 
the ITAR'' (see 22 CFR parts 120 through 130).
* * * * *

0
12. In Supplement No. 1 to part 774, Category 9, ECCN 9A010 is amended 
by:
0
a. Revising the Heading; and
0
b. Adding a Related Controls Note to the List of Items Controlled 
Section, to read as follows:

9A010 ``Specially Designed'' ``Parts,'' ``Components,'' Systems and 
Structures, for Launch Vehicles, Launch Vehicle Propulsion Systems or 
``Spacecraft''. (See Related Controls paragraph.)

List of Items Controlled

    Related Controls: (1) See USML Category IV of the International 
Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130) 
and ECCN 9A604 for paragraphs 9A010.a, .b and .d. (2) See USML 
Category XV of the ITAR and ECCN 9A515 for paragraph 9A010.c. (3) 
See Supplement No. 4 to part 774, Order of Review for guidance on 
the process for determining classification of items.
* * * * *

    Dated: November 23, 2015.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2015-30253 Filed 12-2-15; 8:45 am]
 BILLING CODE 3510-33-P


