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[Federal Register: February 22, 2010 (Volume 75, Number 34)]
[Rules and Regulations]               
[Page 7548-7550]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22fe10-3]                         

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 774

[Docket No. 0907241163-91434-01]
RIN 0694-AE67

 
Amendments to the Select Agents Controls in Export Control 
Classification Number (ECCN) 1C360 on the Commerce Control List (CCL); 
Correction to ECCN 1E998

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: The Bureau of Industry and Security (BIS) is publishing this 
final

[[Page 7549]]

rule to amend the Export Administration Regulations (EAR) by revising 
the controls on certain select agents identified in Export Control 
Classification Number (ECCN) 1C360 on the Commerce Control List (CCL) 
to reflect changes that the Animal Plant and Health Inspection Service 
(APHIS), U.S. Department of Agriculture, recently made to the Plant 
Protection and Quarantine Programs (PPQ) list of select agents and 
toxins. The changes made by APHIS were part of a biennial review and 
republication of the select agents and toxins lists separately 
maintained by APHIS and the Centers for Disease Control and Prevention 
(CDC), U.S. Department of Health and Human Services (HHS). Both 
agencies maintain controls on the ``possession, use, and transfer 
within the United States'' of certain select agents and toxins, 
including human and zoonotic pathogens, animal pathogens, and plant 
pathogens. BIS maintains controls on ``exports'' of the select agents 
and toxins regulated by CDC and APHIS. CDC and APHIS simultaneously 
published the revisions to their lists of select agents and toxins on 
October 16, 2008. These changes became effective on November 17, 2008. 
BIS determined that the only changes that required amendments to the 
EAR were the changes to the PPQ list of select agents and toxins 
maintained by APHIS.
    This rule also amends ECCN 1E998 on the CCL to remove controls on 
technology for the ``development'' or ``production'' of materials 
controlled by ECCN 1C995. This technology was inadvertently included in 
ECCN 1E998 by a final rule published by BIS in September 2006 and was 
made subject to the anti-terrorism (AT) license requirements described 
therein. Effective with the publication of this final rule, this 
technology is once again classified as EAR99.

DATES: This rule is effective February 22, 2010. 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-AE67, by any 
of the following methods:
     E-mail: publiccomments@bis.doc.gov. Include ``RIN 0694-
AE67'' 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-AE67.
    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-AE67)--all comments on the latter should be submitted by one of 
the three methods outlined above.

FOR FURTHER INFORMATION CONTACT: Kimberly Orr, Export Policy Analyst, 
Chemical and Biological Controls Division, Office of Nonproliferation 
and Treaty Compliance, Bureau of Industry and Security, Telephone: 
(202) 482-4201.

SUPPLEMENTARY INFORMATION:

Background

    The Bureau of Industry and Security (BIS) is amending the Export 
Administration Regulations (EAR) to update the controls on certain 
select agents identified in Export Control Classification Number (ECCN) 
1C360 on the Commerce Control List (CCL) (Supplement No. 1 to Part 774 
of the EAR) to reflect changes that the Animal Plant and Health 
Inspection Service (APHIS), U.S. Department of Agriculture, recently 
made to the Plant Protection and Quarantine Programs (PPQ) list of 
select agents and toxins in 7 CFR 331.3(b). The changes published by 
APHIS were part of a biennial review and republication of select agents 
and toxins lists that are separately maintained by APHIS and the 
Centers for Disease Control and Prevention (CDC), U.S. Department of 
Health and Human Services (HHS). Both of these U.S. Government agencies 
maintain controls on the ``possession, use, and transfer within the 
United States'' of certain select agents and toxins (including human 
and zoonotic pathogens, animal pathogens, and plant pathogens),\1\ 
while BIS controls ``exports'' of these select agents and toxins.
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    \1\ For select agents and toxins regulated by APHIS, see 7 CFR 
331.3(b), 9 CFR 121.3(b), and 9 CFR 121.4(b). For select agents and 
toxins regulated by CDC, see 42 CFR 73.3(b) and 42 CFR 73.4(b).
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    The revisions to the lists of select agents and toxins maintained 
by CDC and APHIS were published, simultaneously, on October 16, 2008 
(at 73 FR 61363 and 73 FR 61325, respectively), and became effective on 
November 17, 2008. Certain changes involving the PPQ list of select 
agents and toxins maintained by APHIS at 7 CFR 331.3(b) were determined 
by BIS to require amendments to ECCN 1C360, which controls select 
agents regulated by CDC and APHIS that are not controlled under ECCN 
1C351, 1C352, or 1C354 on the CCL. Therefore, BIS is publishing this 
final rule to amend ECCN 1C360 to make the following changes consistent 
with the PPQ list: (1) Remove ``Candidatus Liberobacter africanus'' and 
``Candidatus Liberobacter asiaticus,'' (2) add ``Phoma glyciniocola 
(formerly Pyrenochaeta glycines)'' and ``Rathayibacter toxicus,'' and 
(3) clarify that ``Peronosclerospora philippinensis'' is also known as 
``Peronosclerospora sacchari.''
    This rule also makes a correction to ECCN 1E998 that is unrelated 
to the select agent changes described above. Specifically, this rule 
amends ECCN 1E998 to remove controls on technology for the 
``development'' or ``production'' of materials controlled by ECCN 
1C995. This technology was inadvertently included in ECCN 1E998 by a 
final rule published by BIS on September 7, 2006 (71 FR 52956), and was 
made subject to the anti-terrorism (AT) license requirements described 
therein. The September 2006 rule's stated purpose for adding this 
technology to ECCN 1E998 was to maintain AT controls on certain 
``development'' and ``production'' technology previously controlled 
under ECCN 1E001. However, ``development'' and ``production'' 
technology for materials controlled by ECCN 1C995 was not controlled 
under ECCN 1E001 at the time the September 2006 rule was published or, 
in fact, at any other time. Instead, this technology was classified as 
EAR99 and should have remained so. Therefore, effective with the 
publication of this final rule, this technology is once again 
classified as EAR99.
    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.

Saving Clause

    Shipments of items removed from eligibility for export or reexport 
under a

[[Page 7550]]

license exception or without a license (i.e., under the designator 
``NLR'') as a result of this regulatory action that were on dock for 
loading, on lighter, laden aboard an exporting carrier, or en route 
aboard a carrier to a port of export, on March 24, 2010, pursuant to 
actual orders for export or reexport to a foreign destination, may 
proceed to that destination under the previously applicable license 
exception or without a license (NLR) so long as they are exported or 
reexported before April 8, 2010. Any such items not actually exported 
or reexported before midnight, on April 8, 2010, require a license in 
accordance with this regulation.
    ``Deemed'' exports of ``technology'' and ``source code'' removed 
from eligibility for export under a license exception or without a 
license (under the designator ``NLR'') as a result of this regulatory 
action may continue to be made under the previously available license 
exception or without a license (NLR) before April 8, 2010. Beginning at 
midnight on April 8, 2010, such ``technology'' and ``source code'' may 
no longer be released, without a license, to a foreign national subject 
to the ``deemed'' export controls in the EAR when a license would be 
required to the home country of the foreign national in accordance with 
this regulation.

Rulemaking Requirements

    1. This rule has been determined to be 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 a collection of information subject to the requirements of the 
PRA. This collection has 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. Send 
comments regarding this burden estimate or any other aspect of this 
collection 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 in 15 CFR Part 774

    Exports, Foreign trade, Reporting and recordkeeping requirements.

0
Accordingly, Part 774 of the Export Administration Regulations (15 CFR 
Parts 730-774) is amended as follows:

PART 774--[AMENDED]

0
1. The authority citation for 15 CFR 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 August 13, 2009, 74 FR 41325 (August 14, 2009).


0
2. In Supplement No. 1 to Part 774 (the Commerce Control List), 
Category 1--Materials, Chemicals, ``Microorganisms'' & ``Toxins,'' ECCN 
1C360 is amended by revising paragraph (c) under ``Items'' in the List 
of Items Controlled to read as follows:

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *
    1C360 Select agents not controlled under ECCN 1C351, 1C352, or 
1C354.
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: * * *
    Items:
* * * * *
    c. Plant pathogens, as follows:
    c.1. Bacteria, as follows:
    c.1.a. Rathayibacter toxicus;
    c.1.b. Xylella fastidiosa pv. citrus variegated chlorosis (CVC);
    c.2. Fungi, as follows:
    c.2.a. Peronosclerospora philippinensis (a.k.a. Peronosclerospora 
sacchari);
    c.2.b. Sclerophthora rayssiae var. zeae;
    c.2.c. Synchytrium endobioticum;
    c.2.d. Phoma glycinicola (formerly Pyrenochaeta glycines).
* * * * *

0
3. In Supplement No. 1 to Part 774 (the Commerce Control List), 
Category 1--Materials, Chemicals, ``Microorganisms'' & ``Toxins,'' ECCN 
1E998 is amended by revising the ECCN heading to read as follows:
    1E998 ``Technology'' for the ``development'' or ``production'' of 
processing equipment controlled by 1B999, and materials controlled by 
1C996, 1C997, 1C998, or 1C999.
* * * * *

    Dated: February 16, 2010.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2010-3389 Filed 2-19-10; 8:45 am]
BILLING CODE 3510-33-P
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