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11 August 2009
[Federal Register: August 11, 2009 (Volume 74, Number 153)]
[Proposed Rules]
[Page 40117-40121]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au09-30]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 40117]]
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 742 and 774
[Docket No. 080721866-8871-01]
RIN 0694-AE42
Revisions to the Commerce Control List To Update and Clarify
Crime Control License Requirements
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would update and clarify export and
reexport license requirements on striking weapons, restraint devices,
shotguns and parts, optical sighting devices, and electric shock
devices. It would also add equipment designed for executions to the
Commerce Control List. This proposed rule would make no changes to the
longstanding policy of denial of applications to export or reexport
specially designed implements of torture. The proposed rule would
provide additional illustrative examples of such items and would adopt
a definition of torture used in a U.S. statute that implements the
United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. BIS is publishing this rule as part
of an ongoing review of crime control license requirements and policy.
DATES: Comments concerning this rule must be received by BIS no later
than September 25, 2009.
ADDRESSES: Comments on this rule may be submitted to the Federal
eRulemaking Portal at http://www.regulations.gov (follow the
instructions for submitting comments), by e-mail directly to BIS at
publiccomments@bis.doc.gov (refer to regulatory identification number
0694-AE42 in the subject line), or on paper to Regulatory Policy
Division, Office of Exporter Services, Bureau of Industry and Security,
Room H2705, U.S. Department of Commerce, 14th Street and Pennsylvania
Avenue, NW., Washington, DC 20230. Refer to Regulatory Identification
Number (RIN) 0694-AE42 in all comments.
FOR FURTHER INFORMATION CONTACT: Chantal Lakatos, Office of Non-
proliferation and Treaty Compliance, Bureau of Industry and Security,
telephone: 202-482-1739; fax: 202-482-4145; e-mail:
clakatos@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
The Export Administration Regulations (15 CFR parts 730-774) impose
license requirements for certain exports from the United States and
reexports from other countries for, among other reasons, ``crime
control.'' The crime control license requirements are intended for the
``support of U.S. foreign policy to promote human rights throughout the
world'' (15 CFR 742.7(a)). This rule is part of an effort by BIS to
review and, where appropriate, revise the crime control license
requirements in the Export Administration Regulations. In connection
with this effort, BIS published a notice of inquiry seeking public
comments on whether the scope of items and destinations that are
subject to crime control license requirements should be changed (73 FR
14769, March 19, 2008). After reviewing the public comments on that
notice and conducting its own policy deliberations, BIS plans to
proceed with this review in stages.
In the first stage, BIS is publishing this proposed rule, which
addresses relatively simple extensions, modifications or removals of
items currently on the Commerce Control List or additions to that list
of items that have a clearly identified crime control or law
enforcement nexus.
In one or more subsequent stages, BIS intends to address more
complex Commerce Control List matters such as whether, and, if so, the
extent to which biometric measuring devices, integrated data systems,
simulators, and communications equipment should be listed on the
Commerce Control List; the degree to which software and technology
related to commodities on the Commerce Control List should be listed
and how such software and technology should be described; and general
policy issues such as whether the range of destinations to which crime
control license requirements apply should be modified.
Summary of the Changes Proposed
Revisions to Sec. 742.7--Crime control. This proposed rule would
change the section heading to read ``Crime control and detection'' to
reflect the contents of the section. It also would revise paragraph (a)
to set forth a license requirement to all destinations for a proposed
new ECCN 0A981 that would apply to equipment designed for the execution
of human beings. Finally, this rule would revise paragraph (d) to state
that in maintaining these controls, the United States considers
international norms and the practices of other countries that control
exports to promote the observance of human rights; however, the
controls are not based on the decisions of any multilateral export
control regime and may differ from controls imposed by other countries.
This proposed rule would remove language from paragraph (d) that could
be read as erroneously implying that the United States is the only
country that imposes export controls on crime control and detection
items.
Revisions to Sec. 742.11--Specially designed implements of
torture. This proposed rule would revise the heading to match the
revised language that this rule applies to ECCN 0A983, i.e. ``Specially
designed implements of torture, including thumbscrews, thumbcuffs,
fingercuffs, spiked batons, shock sleeves and parts and accessories,
n.e.s.'' This proposed rule also would revise paragraph (d) to state
that in maintaining these controls, the United States considers
international norms and the practices of other countries that control
exports to promote the observance of human rights; however, the
controls are not based on the decisions of any multilateral export
control regime and may differ from controls imposed by other countries.
This proposed rule would remove language from paragraph (d) that could
be read as erroneously implying that the United States is the only
country that imposes export controls on specially designed implements
of torture. This proposed rule would make no changes to the policy of
denial of applications to export items subject to Sec. 742.11 or to
the prohibition (stated in Sec. 740.2(a)(10) of
[[Page 40118]]
the EAR) on use of license exceptions to export commodities subject to
Sec. 742.11 of the EAR.
Revisions to ECCN 0A978--Saps. The items covered by this ECCN would
be expanded from ``saps'' to ``law enforcement striking weapons.''
Saps, police batons, side handle batons, tonfas, sjamboks and whips
would be listed as examples of law enforcement striking weapons. BIS
believes that this change would provide consistent license requirements
for several items that have substantially similar crime control
functions.
Creation of ECCN 0A981--Equipment for the Execution of Human
Beings. This rule would create a new ECCN 0A981 that would apply to
equipment designed for the execution of human beings. Such equipment
would require a license to all destinations. BIS is proposing adding
this ECCN because equipment designed for the execution of human beings
has a clear nexus to crime control and an obvious potential use in
repressing human rights.
Revisions to ECCN 0A982--Restraint Devices. Several changes would
be made to this ECCN to (a) make clear that it applies to law
enforcement restraint devices, rather than safety or medical equipment,
(b) update the illustrative list of commodities to which this ECCN
applies, and (c) cross reference other ECCNs that apply to similar
devices. These changes are intended to focus the ECCN on items of crime
control significance and to reduce the possibility of
misinterpretations.
The rule would add the phrase ``Law enforcement'' to the
heading.
The rule would add ``multipoint restraint devices
including restraint chairs'' to the illustrative list of restraint
devices because use of these devices has increased in recent years and
because they have potential for use in human rights abuse.
The rule would also revise the related controls paragraph
of this ECCN to note (a) that finger cuffs and shock sleeves are
classified under ECCN 0A983--Specially designed implements of torture,
(b) that law enforcement restraint devices that administer an electric
shock are controlled under ECCN 0A985, and (c) that electronic devices
that monitor and report a person's location to enforce restrictions on
movement for law enforcement or penal reasons are controlled under ECCN
3A981.
This rule would add a note stating that this ECCN does not
apply to medical devices that are equipped to restrain patient movement
during medical procedures, devices that confine memory-impaired
patients to appropriate medical facilities, or safety equipment such as
safety belts or child automobile safety seats.
BIS believes that the proposed revised language would clarify the
scope of ECCN 0A982 and is not a substantive change.
Revisions to ECCN 0A983--Specially Designed Implements of Torture.
This rule would make no changes to the Export Administration
Regulations' stated policies of denial of license applications for the
export or reexport of specially designed implements of torture and
prohibition of use of any license exception to export or reexport
specially designed implements of torture.
The heading of ECCN 0A983 would be revised to add the word
``including'' immediately following the phrase ``specially designed
implements of torture'' to make clear that the items listed are
examples of specially designed implements of torture rather than an
exclusive list of such implements. The heading would also be revised to
add fingercuffs, spiked batons and shock sleeves to the ECCN as
additional examples of specially designed implements of torture. A new
note would state that ``torture'' in this ECCN has the same meaning as
set forth in 18 U.S.C. 2340(1), which is the definition employed by the
United States criminal statute that implements the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. BIS believes that these changes would more
clearly distinguish specially designed implements of torture from crime
control and detection items.
Revisions to ECCN 0A984--Shotguns. This rule would remove the
phrase ``parts n.e.s.'' and add the following specific parts for the
shotguns controlled by this ECCN: barrels of 18 inches (45.72 cm) or
longer but not longer than 24 inches (60.96 cm), receivers, breech
mechanisms, complete trigger mechanisms, and magazines or magazine
extension tubes. The parts are subject to CC column 1 license
requirements. BIS believes that the purposes of the control can be met
by retaining the license requirement on the shotguns themselves and on
the critical parts set forth in this rule. BIS believes that continuing
to require licenses for other parts would pose a burden on legitimate
trade in shotgun repair parts that is not needed to achieve the purpose
of these controls or of the controls related to the Inter-American
Convention Against the Illicit Manufacturing of and Trafficking in
Firearms, Ammunition, Explosives and Other Related Materials.
Revisions to ECCN 0A985--Discharge Type Arms. ECCN 0A985 applies to
discharge type arms and to some electroshock devices that are not
discharge type arms. To provide greater clarity and to include a
representative description of devices currently available, this
proposed rule would add the phrase ``devices to administer electric
shock'' to the heading and would add stun cuffs and shock shields to
the illustrative list of items classified under this ECCN. This rule
would also add references to the ``Related Controls'' paragraph
informing readers that shock sleeves are controlled by ECCN 0A983 and
that electronic devices that monitor and report a person's location to
enforce restrictions on movement for law enforcement or penal reasons
are controlled under ECCN 3A981.
Revisions to ECCN 0A987--Optical Sighting Devices for Firearms.
This rule would replace the general description in the heading of ECCN
0A987 with a list of items controlled. With this change, the ECCN would
clearly state that it applies to specific sighting devices, their
associated optical elements, and adjustment mechanisms.
Revisions to ECCN 0E984--Technology for shotguns. This rule would
modify ECCN 0E984 to apply CC Column 1 as a reason for control of
technology for the development and production of all shotguns and
shotgun shells controlled by ECCN 0A984. Currently, ECCN 0E984 applies
reasons for control that are parallel to the reasons for control in
ECCN 0A984, i.e., CC Column 1, 2, or 3 is applied depending on whether
the barrel length exceeds 24 inches and whether the end-user is a law
enforcement agency. BIS is proposing the change described in this
paragraph because it believes that the technology for the development
and production of shotguns is substantially the same for all shotguns
with barrel length exceeding 18 inches and does not vary based on the
end user of the shotgun.
Revisions to ECCN 3A981--Polygraphs and other electronic devices.
This proposed rule would add a cross reference to the restraint devices
controlled by ECCN 0A982. This proposed rule would also add a note
expressly stating that the electronic monitoring restraint devices in
ECCN 3A981 are devices that monitor or report the location of confined
persons for law enforcement or penal reasons. The note would exclude
devices used to confine memory impaired patients to appropriate medical
facilities. BIS views these proposed changes in wording as
clarifications rather than substantive changes.
[[Page 40119]]
Request for Comments
BIS is seeking public comments on this rule and will consider all
comments received on or before September 25, 2009 in developing any
final rule. Comments received after that date will be considered if
feasible, but their consideration cannot be assured. All public
comments on this rule must be in writing (including electronic postings
on regulations.gov or e-mail) and will be a matter of public record,
available for public inspection and copying.
Rulemaking Requirements
1. This rule is a significant rule 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 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This rule involves a
collection of information that has been approved by OMB under control
number 0694-0088, which carries a burden hour estimate of 58 minutes to
prepare and submit form BIS-748P. Miscellaneous and recordkeeping
activities account for 12 minutes per submission. BIS believes that the
changes proposed will increase the number of submissions subject to
this collection by approximately 1,200 annually. 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), by e-
mail to jseehra@omb.eop.gov, or by fax to (202) 395-7285; and to the
Regulatory Policy Division, Bureau of Industry and Security, Department
of Commerce, Room 2705, 14th Street and Pennsylvania Ave., NW.,
Washington, DC 20230.
3. This rule does not contain policies with Federalism implications
as this 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 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
et. seq.) are not applicable. However, to obtain the benefit of a
variety of viewpoints, BIS is issuing this rule as a proposed rule with
a request for comments.
List of Subjects
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
Accordingly, BIS proposes to amend the Export Administration
Regulations (15 CFR parts 730-774) as follows:
PART 742--[AMENDED]
1. The authority citation for part 742 is revised to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq; Pub. L. 106-508; 50
U.S.C. 1701 et seq; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of July 23, 2008, 73 FR 43603 (July 25, 2008).
2. In Sec. 742.7, revise the heading, redesignate existing
paragraph (a)(5) as paragraph (a)(6), add a new paragraph (a)(5) and
revise paragraph (d) to read as follows:
Sec. 742.7 Crime control and detection.
(a) * * *
(5) Items designed for the execution of human beings as identified
in ECCN 0A981 require a license to all destinations including Canada.
* * * * *
(d) U.S. controls. In maintaining its controls on crime control and
detection items, the United States considers international norms
regarding human rights and the practices of other countries that
control exports to promote the observance of human rights. However,
these controls are not based on the decisions of any multinational
export control regime and may differ from controls imposed by other
countries.
3. In Sec. 742.11, revise the heading and paragraph (d) to read as
follows:
Sec. 742.11 Specially designed implements of torture, including
thumbscrews, thumbcuffs, fingercuffs, spiked batons, shock sleeves, and
parts and accessories, n.e.s.
* * * * *
(d) U.S. controls. In maintaining its controls on specially
designed instruments of torture the United States considers
international norms regarding human rights and the practices of other
countries that control exports to promote the observance of human
rights. However, these controls are not based on the decisions of any
multinational export control regime and may differ from controls
imposed by other countries.
PART 774--[AMENDED]
4. 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; 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 July 23, 2008, 73 FR 43603 (July 25, 2008).
5. In Supplement No. 1 to part 774, Category 0, revise the heading
of Export Control Classification (ECCN) 0A978 to read as follows:
0A978 Law enforcement striking weapons, including saps, police batons,
side handle batons, tonfas, sjamboks, and whips.
* * * * *
6. In Supplement No. 1 to part 774, Category 0, add a new ECCN
0A981 immediately following ECCN 0A980 and immediately preceding ECCN
0A982 to read as follows:
0A981 Equipment designed for the execution of human beings (See list of
items controlled).
License Requirements
Reason for Control: CC.
Control(s): CC applies to entire entry. A license is required
for all destinations regardless of end-use. Accordingly, a column
specific to this control does not appear on the Commerce Country
Chart. (See Sec. 742.7 of the EAR for additional information.)
License Exceptions
LVS: N/A.
GBS: N/A.
CIV: N/A.
List of Items Controlled
Unit: $ value.
Related Controls: N/A.
Related Definitions: N/A.
Items: a. Gallows and guillotines.
b. Electric chairs for the purpose of executing human beings.
c. Air tight vaults designed for the execution of human beings
by the administration of a lethal gas or substance.
d. Automatic drug injection systems designed for the execution
of human beings by administration of a lethal substance.
7. In Supplement No. 1 to part 774, Category 0, ECCN 0A982, revise
the
[[Page 40120]]
heading, revise the ``Related Controls'' paragraph in the ``List of
Items Controlled'' section and add a note at the end of ECCN 0A982 to
read as follows:
0A982 Law enforcement restraint devices, including leg irons, shackles,
and handcuffs; straight jackets; multipoint restraint devices such as
restraint chairs; and parts and accessories, n.e.s.
License Requirements
* * * * *
List of Items Controlled
Unit: $ * * *
Related Controls: Thumbcuffs, fingercuffs and shock sleeves are
classified under ECCN 0A983, specially designed implements of
torture. Other law enforcement restraint devices that administer an
electric shock are controlled under ECCN 0A985. Restraint devices
that electronically monitor or report the location of confined
persons for law enforcement or penal reasons are controlled under
ECCN 3A981.
* * * * *
Note to ECCN 0A982. This ECCN applies to restraint devices used
in law enforcement activities. It does not apply to medical devices
that are equipped to restrain patient movement during medical
procedures. It does not apply to devices that confine memory
impaired patients to appropriate medical facilities. It does not
apply to safety equipment such as safety belts or child automobile
safety seats.
8. In Supplement No. 1 to part 774, Category 0, ECCN 0A983, revise
the heading, and add a note at the end of ECCN 0A983 to read as
follows:
0A983 Specially designed implements of torture, including thumbscrews,
thumbcuffs, fingercuffs, spiked batons, shock sleeves, and parts and
accessories, n.e.s.
* * * * *
Note to ECCN 0A983. In this ECCN, ``torture'' has the meaning
set forth in Section 2340(1) of Title 18, United States Code.
9. In Supplement No. 1 to part 774, Category 0, ECCN 0A984, revise
the heading and the license requirements section of ECCN 0A984 to read
as follows:
0A984 Shotguns with barrel length 18 inches (45.72 cm) or over;
receivers; barrels of 18 inches (45.72 cm) or longer but not longer
than 24 inches (60.96 cm); complete trigger mechanisms; magazines and
magazine extension tubes; complete breech mechanisms; buckshot shotgun
shells; except equipment used exclusively to treat or tranquilize
animals, and except arms designed solely for signal, flare, or saluting
use.
License Requirements
Reason for Control: CC, FC, UN.
Control(s) Country Chart
FC applies to entire entry............. FC Column 1.
CC applies to shotguns with a barrel CC Column 1.
length greater than or equal to 18 in.
(45.72 cm), but less than 24 in.
(60.96 cm), shotgun parts controlled
by this entry, and buckshot shotgun
shells controlled by this entry,
regardless of end-user.
CC applies to shotguns with a barrel CC Column 2.
length greater than or equal to 24 in.
(60.96 cm), regardless of end-user.
CC applies to shotguns with a barrel CC Column 3.
length greater than or equal to 24 in.
(60.96 cm) if for sale or resale to
police or law enforcement.
UN applies to entire entry............. Iraq, North Korea, and Rwanda.
* * * * *
10. In Supplement No. 1 to part 774, Category 0, ECCN 0A985, revise
the heading and the ``Related Controls'' paragraph of the ``List of
Items Controlled'' section to read as follows:
0A985 Discharge type arms and devices to administer electric shock, for
example, stun guns, shock batons, stun cuffs, shock shields, electric
cattle prods, immobilization guns and projectiles; except equipment
used exclusively to treat or tranquilize animals, and except arms
designed solely for signal, flare, or saluting use; and parts, n.e.s.
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: Shock sleeves are controlled by ECCN 0A983.
Electronic devices that monitor and report a person's location to
enforce restrictions on movement for law enforcement or penal
reasons are controlled under ECCN 3A981.
* * * * *
11. In Supplement No. 1 to part 774, Category 0, ECCN 0A987, revise
the heading and the ``Items'' paragraph of the ``List of Items
Controlled'' section to read as follows:
0A987 Optical sighting devices for firearms (including shotguns
controlled by 0A984); and parts (See list of items controlled).
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: * * *
Related Definitions: * * *
Items: a. Telescopic sights.
b. Holographic sights.
c. Reflex or ``red dot'' sights.
d. Reticle sights.
e. Other sighting devices that contain optical elements.
f. Laser pointing devices designed for use on firearms.
g. Lenses, other optical elements and adjustment mechanisms for
articles in paragraphs a, b, c, d or e.
12. In Supplement No. 1 to part 774, Category 0, ECCN 0E984, revise
the license requirements section of ECCN 0E984 to read as follows:
0E984 ``Technology'' for the ``development'' or ``production'' of
shotguns controlled by 0A984 and buckshot shotgun shells.
License Requirements
Reason for Control: CC, UN.
Control(s) Country Chart
CC applies to ``technology'' for CC Column 1.
shotguns with a barrel length over 18
in. (45.72 cm), and for shotgun shells
controlled by ECCN 0A984.
[[Page 40121]]
13. In Supplement No. 1 to part 774, Category 3 add a note to the
end of ECCN 3A981 to read as follows:
3A981 Polygraphs (except biomedical recorders designed for use in
medical facilities for monitoring biological and neurophysical
responses); fingerprint analyzers, cameras and equipment, n.e.s.;
automated fingerprint and identification retrieval systems, n.e.s.;
psychological stress analysis equipment; electronic monitoring
restraint devices; and specially designed parts and accessories, n.e.s.
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: See ECCN 0A982 for other types of restraint
devices.
Related Definitions: * * *
Items: * * *
Note to ECCN 3A981. In this ECCN, electronic monitoring
restraint devices are devices used to record or report the location
of confined persons for law enforcement or penal reasons. The term
does not include devices that confine memory impaired patients to
appropriate medical facilities.
Dated: August 5, 2009.
Matthew S. Borman,
Acting Assistant Secretary for Export Administration.
[FR Doc. E9-19099 Filed 8-10-09; 8:45 am]
BILLING CODE 3510-33-P