Amendment to Licensing Policy for Items Controlled for Crime Control Reasons
| Published date | 06 October 2020 |
| Citation | 85 FR 63007 |
| Record Number | 2020-21815 |
| Section | Rules and Regulations |
| Court | Industry And Security Bureau |
Federal Register, Volume 85 Issue 194 (Tuesday, October 6, 2020)
[Federal Register Volume 85, Number 194 (Tuesday, October 6, 2020)]
[Rules and Regulations]
[Pages 63007-63009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21815]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 742
[Docket No. 200624-0168]
RIN 0694-AH70
Amendment to Licensing Policy for Items Controlled for Crime
Control Reasons
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: The Bureau of Industry and Security (BIS) is amending the
Export Administration Regulations (EAR) by revising, in part, the
licensing policy for items controlled for crime control (CC) reasons,
which is designed to promote respect for human rights throughout the
world. BIS also is amending the EAR to provide that, except for items
controlled for short supply reasons, it will consider human rights
concerns when reviewing license applications for items controlled for
reasons other than CC. This revision is necessary to clarify to the
exporting community that licensing decisions are based in part upon
U.S. Government
[[Page 63008]]
assessments of whether items may be used to engage in, or enable
violations or abuses of, human rights including those involving
censorship, surveillance, detention, or excessive use of force.
DATES: This rule is effective October 6, 2020.
FOR FURTHER INFORMATION CONTACT: Sheila Quarterman, Regulatory Policy
Division, Office of Exporter Services, at email [email protected] or by
phone at (202) 482-2440; and refer to RIN-0694-AH70.
SUPPLEMENTARY INFORMATION:
Background
Items on the Commerce Control List (CCL), Supplement No. 1 to part
774 of the Export Administration Regulations (EAR), are listed for
multilateral and unilateral control reasons to serve U.S. national
security and foreign policy interests. Under the EAR, multiple criteria
related to those multilateral and unilateral reasons for control may be
considered in reviewing license applications for the export or reexport
of items. Under the EAR, multilateral reasons for control include
chemical and biological (CB), nuclear nonproliferation (NP), national
security (NS), and missile technology (MT) reasons. Unilateral reasons
for control include regional stability (RS), crime control (CC) and
anti-terrorism (AT) reasons, as well as reasons related to exports of
firearms to Organization of American States member countries (FC) and
United Nations embargoes (UN). Controls for United Nations Security
Council purposes are identified by the abbreviation ``UN'' in the
applicable CCL entries. The ``UN'' reason for control is described in
Sec. 746.2(b) of the EAR.
To date, Sec. 742.7 of the EAR has addressed the licensing of CC
equipment and related technology and software (CC-controlled items).
The licensing requirement set forth in paragraph (a) and the licensing
policy set forth in paragraph (b) of Sec. 742.7 were created to
promote the observance of human rights throughout the world. The impact
of an export or reexport based on human rights concerns has been a
consideration for CC-controlled items. Under the licensing policy set
forth in paragraph (b) of Sec. 742.7, BIS will generally consider
license applications favorably on a case-by-case basis unless there is
civil disorder in the country or region of destination or unless there
is evidence that the government of the importing country may have
violated internationally recognized human rights.
In this final rule, the Bureau of Industry and Security (BIS) is
amending the EAR by revising the licensing policy of paragraph (b) of
Sec. 742.7. With these amendments, BIS will both expand its licensing
policy as it applies to CC-controlled items and expand its
consideration of human rights beyond CC-controlled items to include
those items controlled for any other reason, with the exception of
items controlled for short supply. Therefore, this final rule amends
Sec. 742.7 by revising paragraph (b), in part, to specify in new
subparagraph (b)(1) that BIS generally will consider favorably, on a
case-by-case basis, license applications for a CC-controlled item
unless there is civil disorder in the country or region of destination
or if BIS assesses that there is a risk that the items will be used in
a violation or abuse of human rights. This revision is necessary to
clarify to the exporting community that licensing decisions are based
in part upon U.S. Government assessments about whether CC-controlled
items may be used to engage in or enable violations or abuses of human
rights including through violations and abuses involving censorship,
surveillance, detention, or excessive use of force.
This final rule also amends Sec. 742.7 by adding a new
subparagraph (b)(2) to make clear that BIS will consider the licensing
policy set forth in new subparagraph (b)(1) when reviewing items
controlled for reasons other than CC with the exception of items
controlled for short supply. This revision furthers the foreign policy
interests of the United States pertaining to the prevention of human
rights violations and abuses by helping to ensure that items controlled
for reasons other than CC are not exported or reexported in support of
human rights violations or abuses. This revision is necessary to
prevent items currently controlled for reasons other than CC, including
reasons related to certain telecommunications and information security
and sensors, from being used to engage in or enable the violation or
abuse of human rights. As revised, this licensing policy will enable
BIS and other reviewing agencies to consider (1) violations or abuses
of human rights by individuals or entities other than the government of
the importing country and (2) abuses of human rights by the government
in addition to violations of internationally recognized human rights.
Export Control Reform Act of 2018
On August 13, 2018, the President signed into law the John S.
McCain National Defense Authorization Act for Fiscal Year 2019, which
included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C.
Sections 4801-4852. ECRA provides the legal basis for BIS's principal
authorities and serves as the authority under which BIS issues this
rule.
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 final rule has been designated to be not significant
for purposes of Executive Order 12866. The requirements of Executive
Order 13771 do not apply because the rule is not significant.
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 an approved collection, the
Simplified Network Application Processing (control number 0694-0088),
which carries a burden hour estimate of 43 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. The amendment to the licensing review policy
for items controlled for crime control reasons, which typically are
licensable, is not expected to significantly increase the number of
submissions under these collections.
3. This rule does not contain policies associated with Federalism
as that term is defined under Executive Order 13132.
4. Pursuant to section 1762 of ECRA (see 50 U.S.C. 4821), this
action is exempt from the Administrative Procedure Act requirements
(under 5 U.S.C. 553) for notice of proposed rulemaking, opportunity for
public participation, and delay in effective date.
5. 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
[[Page 63009]]
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.
List of Subjects in 15 CFR Part 742
Exports, Terrorism.
Accordingly, 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 part 742 continues to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 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, 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 November 12, 2019, 84 FR 61817 (November
13, 2019).
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2. Amend Sec. 742.7 by revising paragraph (b) to read as follows:
Sec. 742.7 Crime control and detection.
* * * * *
(b) Licensing policy. (1) Applications for items controlled under
this section will generally be considered favorably on a case-by-case
basis, unless there is civil disorder in the country or region or
unless there is a risk that the items will be used to violate or abuse
human rights. The judicious use of export controls is intended to deter
human rights violations and abuses, distance the United States from
such violations and abuses, and avoid contributing to civil disorder in
a country or region.
(2) BIS will review license applications in accordance with the
licensing policy in paragraph (b)(1) of this section for items that are
not controlled under this section but that require a license pursuant
to another section for any reason other than short supply and could be
used by the recipient Government or other end user specifically to
violate or abuse human rights.
* * * * *
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2020-21815 Filed 10-5-20; 8:45 am]
BILLING CODE 3510-33-P
