Revisions of Temporary Denial Order Provisions To Allow for Extended Renewals in Certain Circumstances
| Court | Industry And Security Bureau |
| Citation | 88 FR 59791 |
| Published date | 30 August 2023 |
| Record Number | 2023-18772 |
| Section | Rules and Regulations |
59791
Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Rules and Regulations
interest. Neither the errors nor the
corrections in this document affect the
substance of the March 2021 final rule
or any of the conclusions reached in
support of the final rule. Providing prior
notice and an opportunity for public
comment on correcting objective,
typographical errors that do not change
the substance of the test procedure
serves no useful purpose.
Further, this rule correcting a
regulatory text error makes non-
substantive changes to the test
procedure. As such, this rule is not
subject to the 30-day delay in effective
date requirement of 5 U.S.C. 553(d)
otherwise applicable to rules that make
substantive changes.
List of Subjects in 10 CFR Part 430
Administrative practice and
procedure, Confidential business
information, Energy conservation,
Household appliances, Imports,
Intergovernmental relations, Small
businesses.
Signing Authority
This document of the Department of
Energy was signed on August 23, 2023,
by Francisco Alejandro Moreno, Acting
Assistant Secretary for Energy Efficiency
and Renewable Energy, pursuant to
delegated authority from the Secretary
of Energy. That document with the
original signature and date is
maintained by DOE. For administrative
purposes only, and in compliance with
requirements of the Office of the Federal
Register, the undersigned DOE Federal
Register Liaison Officer has been
authorized to sign and submit the
document in electronic format for
publication, as an official document of
the Department of Energy. This
administrative process in no way alters
the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on August 23,
2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
For the reasons stated in the
preamble, DOE corrects part 430 of
chapter II, subchapter D, of title 10 of
the Code of Federal Regulations by
making the following correcting
amendments:
PART 430—ENERGY CONSERVATION
PROGRAM FOR CONSUMER
PRODUCTS
■1. The authority citation for part 430
continues to read as follows:
Authority: 42 U.S.C. 6291–6309; 28 U.S.C.
2461 note.
■2. Amend Appendix F to subpart B of
part 430 by:
■a. Revising section 4.2.1;
■b. In section 5.2.2, revising the
definitions of ‘‘AEC
ia/om
’’;
■c. In section 5.3.6, revising the
definitions of ‘‘AEC
ia/om
’’; and
■d. In section 5.3.7, revising the
definitions of ‘‘AEC
ia/om
’’.
The revisions read as follows:
Appendix F to Subpart B of Part 430—
Uniform Test Method for Measuring the
Energy Consumption of Room Air
Conditioners
* * * * *
4. * * *
4.2 * * *
4.2.1 If the unit has an inactive mode, as
defined in section 2.14 of this appendix,
measure and record the average inactive
mode power, Pia, in watts.
* * * * *
5. * * *
5.2 * * *
5.2.2 * * *
AEC
ia/om
= annual energy consumption in
inactive mode and off mode, in kWh/year,
determined in section 5.1 of this appendix.
* * * * *
5.3 * * *
* * * * *
5.3.6 * * *
AEC
ia/om
= annual energy consumption in
inactive mode and off mode, in kWh/year,
determined in section 5.1 of this appendix.
* * * * *
5.3.7 * * *
AEC
ia/om
= annual energy consumption in
inactive mode and off mode, in kWh/year,
determined in section 5.1 of this appendix.
* * * * *
[FR Doc. 2023–18529 Filed 8–29–23; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 766
[Docket No. 230824–0204]
RIN 0694–AJ36
Revisions of Temporary Denial Order
Provisions To Allow for Extended
Renewals in Certain Circumstances
AGENCY
: Bureau of Industry and
Security, Department of Commerce.
ACTION
: Final rule.
SUMMARY
: In this final rule, the Bureau
of Industry and Security (BIS) amends
the Export Administration Regulations
(EAR) to create an additional option for
the renewal of temporary denial orders
(TDOs) by allowing BIS, under certain
circumstances, to request that the
Assistant Secretary for Export
Enforcement renew an existing TDO for
a period of no more than one year,
rather than the current renewal period
of no more than 180 days. This final
rule also makes some conforming
changes to remove references to the
‘‘EAA,’’ the Export Administration Act
(EAA), and add in their place references
to ‘‘ECRA,’’ the Export Control Reform
Act (ECRA), to reflect the EAR’s current
statutory authority.
DATES
: This rule is effective on August
29, 2023.
FOR FURTHER INFORMATION CONTACT
: John
Sonderman, Director, Office of Export
Enforcement, Bureau of Industry and
Security, Phone: (202) 482–5079, Email:
EEinquiry@bis.doc.gov.
SUPPLEMENTARY INFORMATION
:
Background
A. Amendment of Temporary Denial
Order Provisions To Allow for Extended
Renewals in Certain Circumstances
This final rule amends § 766.24 of the
EAR (15 CFR parts 730 through 774) by
adding an additional sentence after the
first sentence of paragraph (d)(1).
Specifically, this final rule creates an
additional option for the renewal of
temporary denial orders (TDOs) by
allowing BIS, under certain
circumstances, to request that the
Assistant Secretary for Export
Enforcement renew an existing TDO for
a period of no more than one year,
rather than the current renewal period
of no more than 180 days.
This final rule does not change the
current language set forth in the first
sentence of paragraph (d)(1), which
allows BIS to request the renewal of a
TDO for a period of 180 days by
demonstrating that such a renewal is
necessary in the public interest to
prevent an imminent violation of the
EAR. Rather, this final rule allows BIS
to request the renewal of a TDO for an
extended period by demonstrating that
a party that is subject to an existing TDO
has engaged in a pattern of repeated,
ongoing and/or continuous apparent
violations of the EAR.
Under the current standard set forth
in § 766.24(d)(1), a ‘‘violation may be
‘imminent’ either in time or degree of
likelihood’’ (15 CFR 766.24(b)(3)), and
BIS may show ‘‘either that a violation is
about to occur, or that the general
circumstances of the matter under
investigation or case under criminal or
administrative charges demonstrate a
likelihood of future violations.’’ Id. As
to the likelihood of future violations,
BIS may show that the violation under
investigation or charge ‘‘is significant,
deliberate, covert and/or likely to occur
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Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Rules and Regulations
again, rather than technical or
negligent[.]’’ Id. A ‘‘lack of information
establishing the precise time a violation
may occur does not preclude a finding
that a violation is imminent, so long as
there is sufficient reason to believe the
likelihood of a violation.’’ Id.
By contrast, this new standard
requires BIS to show that since the
issuance of a TDO, the respondent has
engaged in a pattern of repeated,
ongoing and/or continuous apparent
violations of the EAR, including the
terms of the TDO, and that renewal of
the TDO for an extended period is
appropriate to address such continued
apparent violations. Such a showing
should demonstrate not just the
likelihood of future imminent violations
of the EAR but should include specific
facts demonstrating past apparent
violations of the EAR.
An extended renewal is appropriate,
for instance, in cases where a
respondent has acted in apparent
blatant disregard of the EAR, where a
respondent has attempted to circumvent
or has otherwise appeared to violate the
restrictions of a TDO or the EAR, or has
otherwise acted in a manner
demonstrating a pattern of apparent
noncompliance with the requirements
of the EAR.
This final rule also makes conforming
changes to paragraphs (a), (b)(1) and
(e)(5) of § 766.24 to remove references to
the ‘EAA’ and add in their place
references to ‘ECRA’ to reflect the EAR’s
current statutory authority.
B. Importance of TDOs To Address
Entities That Have Engaged in a Pattern
of Repeated, Ongoing, and/or
Continuous Apparent Violations of the
Russia- or Iran-Related Restrictions
Since the imposition of sanctions on
Russia in response to its further
invasion of Ukraine in February 2022,
and the imposition of similar sanctions
on Belarus for its substantial
enablement of Russia’s invasion, BIS
has imposed a number of TDOs on
entities that have engaged in a pattern
of repeated, ongoing, and/or continuous
apparent violations of these Russia-
related restrictions, most notably on a
number of Russian and Belarusian
airlines. Beginning with the issuance of
a TDO against PJSC Aeroflot
(‘‘Aeroflot’’) on April 7, 2022 (87 FR
21611, Apr. 12, 2022), which was
subsequently renewed on October 3,
2022 (87 FR 60985, Oct. 7, 2022) and on
March 29, 2023 (88 FR 19609, Apr. 3,
2023), BIS has issued a number of TDOs
targeting Russian and Belarusian
airlines that have repeatedly and
deliberately continued to operate
international and/or domestic flights
involving aircraft subject to the EAR in
apparent violation of the EAR and the
applicable TDOs.
Similarly, on March 17, 2008, BIS
imposed a TDO (73 FR 15130) which
has been repeatedly renewed, most
recently on May 5, 2023 (88 FR 30078,
May 10, 2023), against Mahan Airways
in connection with its numerous
ongoing apparent violations of the EAR.
The most recent renewal of this TDO
stated that according to publicly
available information, Aeroflot has
begun sending its aircraft to Mahan
Airways for repairs and/or maintenance.
Id. at 30085.
Cases such as these, which involve an
existing TDO combined with a pattern
of repeated, ongoing, and/or continuous
conduct that appears to violate a TDO
or the EAR, leading to the need to
repeatedly renew the applicable TDOs,
are emblematic of the type of conduct
which this extended renewal option is
intended to address.
Such extended renewals will serve as
an enhanced deterrent for such actors
who are engaging in such apparent
violative conduct and others who may
be inclined to engage in behavior to
facilitate such activities. Moreover, such
extended renewals will provide
enhanced notice to companies and
individuals in the United States and
abroad that they should avoid dealing
with such actors of concern in
connection with export, reexport, and
transfer (in-country) transactions
involving items subject to the EAR and
in connection with any other activity
subject to the EAR, e.g., the provision of
services in connection with an aircraft
subject to the EAR that is operated by
a denied person, or with respect to an
aircraft that has been exported in
violation of the EAR (see 15 CFR
736.2(b)(10)). BIS maintains a non-
exhaustive list of aircraft that have
potentially been exported to Russia or
Belarus in violation of the EAR,
including aircraft operated by certain
denied persons, which can be found on
the BIS website: https://
www.bis.doc.gov/index.php/policy-
guidance/country-guidance/russia-
belarus.
In the event that the Assistant
Secretary determines that a request for
renewal of a TDO does not satisfy this
new standard for an extended renewal
as described above under section A, it
may nonetheless be extended for a
period not exceeding 180 days,
provided that BIS has demonstrated that
such renewal is necessary in the public
interest to prevent an imminent
violation.
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. 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. 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 or 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 regulation
involves an information collection
approved by OMB under control
number 0694–0088, Simplified Network
Application Processing System. BIS
does not anticipate a change to the
burden hours associated with this
collection as a result of this rule.
Information regarding the collection,
including all supporting materials, can
be accessed at https://www.reginfo.gov/
public/do/PRAMain.
3. This rule does not contain policies
with federalism implications as that
term is defined in Executive Order
13132.
4. Pursuant to section 1762 of the
Export Control Reform Act of 2018, this
action is exempt from the
Administrative Procedure Act (5 U.S.C.
553) requirements 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
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 766
Administrative practice and
procedure, Confidential business
information, Exports, Law enforcement,
Penalties.
Accordingly, part 766 of the Export
Administration Regulations (15 CFR
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59793
Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Rules and Regulations
parts 730 through 774) is amended as
follows:
PART 766—ADMINISTRATIVE
ENFORCEMENT PROCEEDINGS
■1. The authority citation for 15 CFR
part 766 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.; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
■2. Section 766.24 is amended by
revising the third sentence of paragraph
(a), paragraphs (b)(1), (d)(1), and the last
sentence of paragraph (e)(5), to read as
follows:
§ 766.24 Temporary denials.
(a) * * * Without limiting any other
action BIS may take under the EAR with
respect to any application, order, license
or authorization issued under ECRA,
BIS may ask the Assistant Secretary to
issue a temporary denial order on an ex
parte basis to prevent an imminent
violation, as defined in this section, of
the ECRA, the EAR, or any order,
license or authorization issued
thereunder. * * *
(b) * * * (1) The Assistant Secretary
may issue an order temporarily denying
to a person any or all of the export
privileges described in part 764 of the
EAR upon a showing by BIS that the
order is necessary in the public interest
to prevent an imminent violation of
ECRA, the EAR, or any order, license or
authorization issued thereunder.
* * * * *
(d) * * * (1) If, no later than 20 days
before the expiration date of a
temporary denial order, BIS believes
that renewal of the denial order is
necessary in the public interest to
prevent an imminent violation, BIS may
file a written request setting forth the
basis for its belief, including any
additional or changed circumstances,
asking that the Assistant Secretary
renew the temporary denial order, with
modifications, if any are appropriate, for
an additional period not exceeding 180
days. In cases demonstrating a pattern of
repeated, ongoing and/or continuous
apparent violations, BIS may request the
renewal of a temporary denial order for
an additional period not exceeding one
year. BIS’s request shall be delivered to
the respondent, or any agent designated
for this purpose, in accordance with
§ 766.5(b) of this part unless exceptional
circumstances exist, which will
constitute notice of the renewal
application.
* * * * *
(e) * * *
(5) * * * The issuance or renewal of
the temporary denial order shall be
affirmed only if there is reason to
believe that the temporary denial order
is required in the public interest to
prevent an imminent violation of ECRA,
the EAR, or any order, license or other
authorization issued under ECRA.
* * * * *
Thea D. Rozman Kendler,
Assistant Secretary for Export
Administration.
[FR Doc. 2023–18772 Filed 8–29–23; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1952
Oregon State Plan; Extension of Final
Approval of a State Plan To Cover the
Separable Portion of Temporary Labor
Camps
AGENCY
: Occupational Safety and Health
Administration (OSHA), Labor.
ACTION
: Notification of extending final
approval of a State Plan over a separable
portion.
SUMMARY
: This document gives notice of
final approval of the Oregon State
occupational safety and health plan
(State Plan) over temporary labor camps
under section 18(e) of the Occupational
Safety and Health Act of 1970 (OSH
Act). As a result of this affirmative 18(e)
determination, the Federal standard and
enforcement authority as derived from
the OSH Act will no longer apply to
temporary labor camps in Oregon. This
notification does not affect or disturb
any other provisions or standards
enforced by the U.S. Department of
Labor’s Wage and Hour Division at
temporary labor camps in Oregon
pursuant to an authority other than the
OSH Act. This notification also does not
affect or disturb the previous grant of
final approval in 2005 as to all other
issues covered by the Oregon State Plan.
DATES
: The notification of extension of
final approval is effective August 30,
2023.
FOR FURTHER INFORMATION CONTACT
:
For press inquiries: Contact Frank
Meilinger, OSHA Office of
Communications, U.S. Department of
Labor; telephone (202) 693–1999; email
meilinger.francis2@dol.gov.
For general and technical
information: Contact Douglas J.
Kalinowski, Director, OSHA Directorate
of Cooperative and State Programs, U.S.
Department of Labor; telephone (202)
693–2200; email: kalinowski.doug@
dol.gov.
SUPPLEMENTARY INFORMATION
:
I. Background
Section 18 of the Occupational Safety
and Health Act of 1970 (OSH Act), 29
U.S.C. 667, provides that states which
wish to assume responsibility for
developing and enforcing their own
occupational safety and health
standards may do so by submitting, and
obtaining Federal approval of, a state
plan (State Plan or Plan). State Plan
approval occurs in stages, beginning
with initial approval under section 18(c)
of the Act. If, after a period of no less
than three years following initial
approval, the Assistant Secretary
determines that the State Plan has
satisfied and continues to meet all
criteria in section 18(e) of the OSH Act,
the Assistant Secretary may make an
affirmative determination under section
18(e) of the Act (referred to as ‘‘final
approval’’ of the State Plan), which
results in the relinquishment of
concurrent Federal authority in the state
with respect to occupational safety and
health issues covered by the Plan (29
U.S.C. 667(e)). Procedures for section
18(e) determinations are found in 29
CFR part 1902, subpart D. In general, to
be granted final approval, actual
operation of the occupational safety and
health Plan by the state must be at least
as effective as the Federal OSHA
program in all areas covered under the
State Plan.
II. State Plan History
A. Final Approval of the Oregon State
Plan Except as to Temporary Labor
Camps
The Oregon State Plan, administered
by the Oregon Department of Consumer
and Business Services, received initial
approval on December 28, 1972 (37 FR
28628). On January 23, 1975, OSHA and
the State of Oregon entered into an
Operational Status Agreement (OSA),
which suspended the exercise of
concurrent Federal authority in Oregon
in all except specifically identified areas
(40 FR 18427). On December 16, 2004,
OSHA published a notification (69 FR
75436) that the Oregon State Plan was
eligible for a determination as to
whether final approval of the Plan
should be granted under section 18(e) of
the Act for all issues covered by the
Plan, with the exception of temporary
labor camps in agriculture, general
industry, construction, and logging. The
notification stated that the issue of
temporary labor camps was being
excluded from final approval at that
time pending resolution of OSHA’s
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