Interim Final Rule, Export Control Reform Act by the Bureau of Industry and Security (BIS)

Expansion of Certain End-Use and End-User Controls and Controls on Specific Activities of U.S. Persons

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Interim final rule.

SUMMARY:

The Bureau of Industry and Security (BIS), Department of Commerce, is issuing this interim final rule to implement the provisions of the Export Control Reform Act of 2018 by: imposing additional license requirements under the Export Administration Regulations (EAR) for exports, reexports, and transfers (in-country), as well as specific activities of U.S. persons, in connection with certain military-intelligence end uses and end users; clarifying that license requirements under the EAR for specific activities of U.S. persons apply even when the items at issue are not subject to the EAR; establishing restrictions on transactions intended to circumvent license requirements for listed entities; and expanding the scope of activities subject to chemical and biological weapons and rocket systems and unmanned aerial vehicles end-use controls.

DATES:

Effective date: This rule is effective March 16, 2021. Comment date: Comments must be received by BIS no later than March 1, 2021.

ADDRESSES:

Comments on this rule may be submitted to the Federal rulemaking portal ([www.regulations.gov]\(http://www.regulations.gov)). The regulations.gov ID for this rule is: BIS-2020-0044 or RIN 0694-AI38. All relevant comments (including any personally identifying information) will be made available for public inspection and copying. Follow the instructions for submitting comments.

All filers using the portal should use the name of the person or entity submitting the comments as the name of their files, in accordance with the instructions below. Anyone submitting business confidential information should clearly identify the business confidential portion at the time of submission, file a statement justifying nondisclosure and referring to the specific legal authority claimed, and also provide a non-confidential version of the submission.

For comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC.” Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page. The corresponding non-confidential version of those comments must be clearly marked “PUBLIC.” The file name of the non-confidential version should begin with the character “P.” The “BC” and “P” should be followed by the name of the person or entity submitting the comments or rebuttal comments. Any submissions with file names that do not begin with either a “BC” or a “P” will be assumed to be public and will be made publicly available through .

FOR FURTHER INFORMATION CONTACT:

Philip Johnson, Senior Advisor, Export Enforcement, Bureau of Industry and Security, Phone: (202) 482-3685, \Philip.Johnson@bis.doc.gov.

SUPPLEMENTARY INFORMATION:

Background

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 directs the President to control exports, reexports, and transfers (in-country); as well as the activities of U.S. persons in connection with nuclear, chemical, and biological weapons; whole plants for chemical weapons precursors; missiles; foreign maritime nuclear projects; and foreign military intelligence services. Accordingly, BIS is amending parts 730, 734, 736, and 744 of the Export Administration Regulations (EAR) (15 CFR parts 730 through 774) to implement such controls. BIS is also making certain revisions to enhance existing end-use and end-user controls under the EAR, including their enforceability.

Restrictions on Specific Activities of U.S. Persons

Section 1753(a)(2) of ECRA (50 U.S.C. 4812(a)(2)) directs the President to impose controls on the activities of U.S. persons, wherever located, relating to specific nuclear explosive devices, missiles, chemical or biological weapons, whole plants for chemical weapons precursors, foreign maritime nuclear projects, and foreign military intelligence services. Additionally, section 1754(d) of ECRA (50 U.S.C. 4813(d)) directs the Secretary of Commerce to require U.S. persons to apply for and receive a license to engage in specific activities in connection with nuclear explosive devices, missiles, chemical or biological weapons, whole plants for chemical weapons precursors, and foreign maritime nuclear projects, regardless of whether such activities occur in connection with an export, reexport, or transfer (in-country) of items subject to the EAR. Although section 1754(d)(2) of ECRA (50 U.S.C. 4813(d)(2)) does not specifically direct the Secretary of Commerce to impose a license requirement on the activities of U.S. persons in connection with foreign military intelligence services, section 1754(a)(16) of ECRA (50 U.S.C. 4813(a)(16)) authorizes the Secretary to undertake any other action not otherwise prohibited by law to carry out the authorities granted to the President

The EAR already restrict specific activities of U.S. persons in connection with nuclear explosive devices, missiles, chemical and biological weapons, and whole plants for chemical weapons precursors. In accordance with ECRA, BIS is expanding these existing restrictions to encompass activities of U.S. persons in connection with certain military-intelligence end uses and end users. Specifically, BIS is revising §§ 730.5 and 734.5(a) of the EAR to reflect the expanded scope of U.S. person activities subject to the EAR, as described below, which include activities supporting certain military-intelligence end uses and end users.

The general categories of exports, reexports, and transfers (in-country), as well as activities of U.S. persons, which are prohibited absent a license from BIS are summarized in the “General Prohibitions” found in § 736.2 of the EAR. Specifically, § 736.2(b)(7) of the EAR describes the types of U.S. person WMD proliferation activity subject to a license requirement under the EAR. In this rule, BIS is revising § 736.2(b)(7) by harmonizing the definition of “U.S. person” in that section with the definition of that term as set forth in § 772.1 of the EAR. Furthermore, BIS is revising § 736.2(b)(7) to broaden the prohibition, absent a license from BIS, to include specific activities of U.S. persons in support of certain military-intelligence end uses and end users pursuant to sections 1753(a)(2)(F) and 1754(a)(16) of ECRA (50 U.S.C. 4812(a)(2)(F) and 4813(a)(16)).

The license requirements that apply to specific activities of U.S. persons are described in § 744.6 of the EAR. Section 744.6 currently contains restrictions on exports, reexports, and transfers (in-country), as well as activities unrelated to exports (e.g., contracts, services, and employment), when connected with certain nuclear explosive, missile, or chemical or biological weapons-related activities, or whole plants for chemical weapons precursors. Section 1754(d)(1)(A) of ECRA (50 U.S.C. 4813(d)(1)(A)) specifies that controls on the activities of U.S. persons apply even when the items at issue “are not subject to control under this subchapter,” (i.e., are not “subject to the EAR”). Therefore, BIS is revising § 744.6 to replace the terms “export” and “reexport” with the acts of shipping or transmitting to ensure that the controls set forth in that section apply to foreign-origin items not subject to the EAR, as set forth in ECRA.

Furthermore, BIS is revising § 744.6 to provide an illustrative list of the types of activities unrelated to the shipment, transmission, or transfer (in-country) of items that are subject to a license requirement when undertaken by U.S. persons in connection with the end uses or end users enumerated in that section. This list is derived from the list of “Specific Unlawful Acts” set forth in section 1760(a)(2)(E) of ECRA (50 U.S.C. 4819(a)(2)(E)). BIS is also revising § 744.6 to impose a license requirement on such activities when a U.S. person knows the activity(ies) “will support,” as opposed to “will directly assist,” any of the end uses or end users listed in that section of the EAR. BIS is making this change in accordance with section 1754(d)(1)(B) of ECRA (50 U.S.C. 4813(d)(1)(B)), which authorizes the Secretary to implement controls on “activities that may support” the end uses described in section 1754(d)(2) of ECRA (50 U.S.C. 4813(d)(2)); and in accordance with section 1754(a)(16) of ECRA (50 U.S.C. 4813(a)(16)), which authorizes the Secretary to “undertake any other action as necessary to carry out this subchapter that is not otherwise prohibited by law,” which includes implementing controls on the end uses and end users described in section 1753(a)(2) of ECRA (50 U.S.C. 4812(a)(2)).

In accordance with section s 1753(a)(2)(F) and 1754(a)(16) of ECRA (50 U.S.C. 4812(a)(2)(F) and 4813(a)(16)), BIS is also adding to § 744.6 of the EAR a new restriction on the activities of U.S. persons in support of certain military-intelligence end uses and end users. The scope of military-intelligence end uses and end users subject to control is defined in § 744.22, as explained below. In addition, BIS is expanding the destinations with respect to which the activities of U.S. persons are restricted in connection with nuclear explosive devices to include any country not listed in supplement no. 3 to part 744, for consistency with the restrictions on exports, reexports, and transfers (in-country) of items for use in nuclear explosive activities, as set forth in § 744.2(a)(1) of the EAR. Likewise, BIS is expanding the destinations with respect to which the activities of U.S. persons are restricted in connection with certain “missile” end uses pursuant to § 744.6 to include Cuba, a unilaterally-embargoed country listed in Country Group E:2 (see supplement no. 1 to part 740 of the EAR), but not also listed in Country Group D:4.

ECRA directs the Secretary of Commerce to impose a license requirement on specific activities of U.S. persons, “except to the extent authorized by a statute or regulation administered by a Federal department or agency other than the Department of Commerce” (50 U.S.C. 4813(d)(1)). To avoid overlapping license requirements across U.S. government agencies, BIS is adding to § 744.6 of the EAR a provision defining the scope of U.S. person activities requiring a license from BIS pursuant to that section to exclude any activity subject to a license requirement or general prohibition administered by another federal department or agency, to include the Departments of Energy, State, or the Treasury.

The Department of Energy administers controls on the transfer of unclassified nuclear technology and assistance to foreign atomic energy activities within the United States or abroad. Pursuant to Department of Energy regulations at 10 CFR part 810, implementing section 57.b(2) of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2077(b)), persons may engage, directly or indirectly, in the production or development of special nuclear material outside the United States upon authorization by the Secretary of Energy.

The Department of State administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130) pursuant to the Arms Export Control Act (AECA) (22 U.S.C. 2778). The ITAR include controls on defense articles (22 CFR 120.6), which are described on the U.S. Munitions List (USML) (22 CFR 121.1). In addition, the ITAR control the performance of defense services (22 CFR 120.9), which may include the furnishing of military training to foreign units and forces, as well as the furnishing of assistance pertaining to defense articles to foreign persons, or the furnishing to foreign persons of any controlled technical data (22 CFR 120.10). The ITAR also regulate brokering activities (see 22 CFR part 129), which include any action undertaken on behalf of another to facilitate the manufacture, export, permanent import, transfer, reexport, or retransfer of a U.S. or foreign defense article or defense service enumerated on the USML and those items designated in the U.S. Munitions Import List (USMIL) (27 CFR 447.21). The USML includes, inter alia, nuclear weapons-related articles (Category XVI), missiles (Category IV), unmanned aerial vehicles (Category VIII), and toxicological agents and associated equipment (Category XIV). The USMIL includes, inter alia, nuclear weapons design and test

The Department of the Treasury, through the Office of Foreign Assets Control (OFAC), administers economic sanctions programs governing transactions involving U.S. persons in connection with certain sanctioned countries or entities pursuant to a number of statutes and executive orders (see, inter alia, 31 CFR parts 500 through 599).

Section 744.6 of the EAR does not, and is not intended to, control the activities of U.S. persons subject to the regulatory controls administered by other federal departments and agencies, to include the Department of Energy, the Department of State, and the Department of the Treasury. The purpose of § 744.6 is to control those activities of U.S. persons in connection with the end uses and end users enumerated in that section, only if those activities are not already subject to other federal regulatory controls.

Finally, other U.S. laws, including criminal statutes, may prohibit the performance of certain activities by a person subject to the jurisdiction of the United States in connection with the end uses and end users described in § 744.6 even if that person has obtained a BIS license. The issuance of a BIS license does not authorize “U.S. persons” to engage in any conduct that is otherwise prohibited by U.S. law, including any criminal statute.

While § 744.6 of the EAR imposes license requirements on certain transactions of items not subject to the EAR, and certain support activities, where a U.S. person is involved, BIS also notes that controls on exports, reexports, and transfers (in-country) of items subject to the EAR to nuclear-, missile-, chemical and biological weapons-, and military-intelligence-related end uses and end users are set forth in other sections of part 744, to include §§ 744.2, 744.3, 744.4, and 744.22. Certain activities of U.S. or foreign persons that facilitate exports, reexports, and transfers (in-country) that require a license pursuant to those sections, where no such license has been issued, are prohibited pursuant to § 764.2 of the EAR.

Restrictions on Military-Intelligence End Uses and End Users

This rule adds a new § 744.22 to the EAR, which imposes supplemental license requirements on the export, reexport, or transfer (in-country) of all items subject to the EAR to military-intelligence end uses and end users in China, Russia, or Venezuela; and countries listed in Country Groups E:1 and E:2 (see supplement no. 1 to part 740 of the EAR). As previously discussed, section 1753(a)(2)(F) of ECRA (50 U.S.C. 4812(a)(2)(F)) directs the President to establish controls on the activities of U.S. persons with respect to foreign military intelligence services. This rule implements such controls by revising § 744.6 of the EAR as described above. Consistent with these restrictions on the activities of U.S. persons, and in accordance with the authority granted to the President in section 1753(a)(1) of ECRA (50 U.S.C. 4812(a)(1)) and exercised by the Secretary of Commerce pursuant to section 1754(a)(2) and (a)(16) of ECRA (50 U.S.C. 4813(a)(2) and (a)(16)), BIS believes it is appropriate to impose a license requirement on exports, reexports, and transfers (in-country) of all items subject to the EAR to the same military-intelligence end uses and end users. Specifically, BIS believes controls on U.S. person activities related to military-intelligence end uses and end users described in § 744.6 of the EAR would be of limited effect if not implemented in tandem with a corresponding license requirement for exports, reexports, and transfers (in-country). Although § 744.21 of the EAR already imposes a license requirement on certain exports, reexports, and transfers (in-country) to military end uses and military end users, to include government intelligence and reconnaissance organizations, in China, Russia, or Venezuela, the restrictions in § 744.21(a) of the EAR apply only to items identified in supplement no. 2 to part 744 of the EAR, not to all items subject to the EAR. Accordingly, the addition of § 744.22 is warranted.

Paragraphs (a) and (b) of § 744.22 set forth license requirements applicable to certain military-intelligence end uses and end users, paragraph (c) of that section provides for the use of License Exception GOV (§ 740.11(b)(2)(ii) of the EAR), and paragraphs (d) and (e) outline the application procedures and review policy that apply to license applications submitted pursuant to that section. Section 744.22(f)(1) defines a “military-intelligence end use” and § 744.22(f)(2) defines a “military-intelligence end user” and sets forth an illustrative list of military-intelligence end users subject to the license requirements outlined in § 744.22. The imposition of a license requirement on exports, reexports, and transfers (in-country) for a military-intelligence end use or end user in the specified countries enhances U.S. national security by allowing prior U.S. government review of transactions involving military intelligence or reconnaissance organizations in countries subject to existing military end-use and end-user controls, sanctions, or embargoes.

Corresponding Change to Existing \Military End Use' and \\Military End User' Controls

\Military-intelligence end users,' as defined in new § 744.22(f)(2) of the EAR are a subset of the “government intelligence and reconnaissance organizations” already included in the definition of \\military end user' in § 744.21(g) of the EAR. However, the license requirement in § 744.21(a) only applies with respect to items listed in supplement no. 2 to part 744 of the EAR, as opposed to all items subject to the EAR, as set forth in § 744.22(a). Accordingly, § 744.22 establishes a broader license requirement for this subset of \military end users' already subject to license requirements under § 744.21. To avoid duplicate license requirements and facilitate compliance, BIS is amending the definition of \\military end user' in § 744.21(g) to exclude intelligence or reconnaissance organizations of the armed forces or national guard. Such intelligence or reconnaissance organizations will be subject to the broader license requirements of § 744.22; however, other government intelligence or reconnaissance organizations, which are not part of the armed services or national guard, will remain subject to the license requirements of § 744.21 of the EAR.

Restrictions on Certain Chemical and Biological Weapons End Uses

Section 744.4 of the EAR sets forth restrictions on exports, reexports, and transfers (in-country) to chemical and biological weapons end uses anywhere in the world. BIS is revising § 744.4 of the EAR, consistent with sections 1753(a)(2)(D) and 1754(d)(2)(D) of ECRA (50 U.S.C. 4812(a)(2)(D) and 4813(d)(2)(D)), to include restrictions on exports, reexports, and transfers (in-country) of any item subject to the EAR for use in the design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of a whole plant for chemical weapons precursors specified in export control classification number (ECCN) 1C350, which controls certain precursor chemicals listed in Schedules 2 and 3 of the Chemical Weapons Convention and/or subject to control by the Australia Group. The terms “development” and “production” are defined in § 772.1 of the EAR. This

Activities Associated With Use

The term “use” is defined in § 772.1 of the EAR as “operation, installation (including on-site installation, maintenance (checking), repair, overhaul, and refurbishing.” Sections 744.3 and 744.4 of the EAR, respectively, impose license requirements on all items subject to the EAR when an exporter, reexporter, or transferor (in-country) knows such items will be used in the “design, \development,' \\production,' or use” of certain rocket systems or unmanned aerial vehicles; or in the “design, \development,' \\production,' stockpiling, or use” of chemical or biological weapons. Likewise, § 744.6 imposes a license requirement on specific activities of U.S. persons in support of the “design, \development,' \\production,' or use” of nuclear explosive devices and rocket systems or unmanned aerial vehicles; or the “design, \development,' \\production,' stockpiling, or use” of chemical or biological weapons. The definition of “use” in § 772.1 of the EAR, which appears in general technology notes on the Commerce Control List (CCL) (supplement no. 1 to part 774 of the EAR), resulted in a requirement for a WMD end use to involve all of the activities listed in that definition in order to trigger a “use”-based license requirement under §§ 744.3, 744.4, or 744.6 of the EAR. This is inconsistent with section 1754(d)(1)(B) of ECRA (50 U.S.C. 4813(d)(1)(B)), which lists the component activities of the EAR definition of “use” as separate and individually-sufficient activities for end-use control purposes. Accordingly, BIS is revising each of those sections of the EAR to replace the word “use” with a list of its component activities, i.e., “operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing,” to ensure that any one of those activities individually triggers a license requirement under the relevant sections of the EAR, when connected with certain WMD end uses.

Additional Prohibition on Persons Informed by BIS of Transactions Intended To Circumvent Entity List License Requirements

The Entity List (supplement no. 4 to part 744 of the EAR) imposes a supplemental license requirement, to the extent specified in each entry on the Entity List, for exports, reexports, or transfers (in-country) in which a listed entity is a party to the transaction as described in § 748.5(c) through (f) of the EAR. Entities may be added to the Entity List in accordance with the procedures set forth in supplement no. 5 to part 744 of the EAR if there is reasonable cause to believe the entity has been involved, is involved, or poses a significant risk of being or becoming involved in activities contrary to U.S. national security or foreign policy interests.

Although Entity List license requirements generally only apply to listed entities, BIS has posted guidance on its website in the form of frequently asked questions (FAQs) advising increased due diligence when proceeding with transactions involving parties co-located with, or which are subsidiaries, parent companies, or sister companies of, listed entities. In such cases, exporters, reexporters, and transferors should assess whether such entities are acting as an agent, front, or a shell company for a listed entity in order to facilitate transactions that would otherwise not be permissible, and whether the items intended for export, reexport, or transfer (in-country) may ultimately be destined to a listed entity.

In certain cases, BIS may have information indicating that a specific transaction, although not directly involving a listed entity, nevertheless poses an unacceptable risk of diversion to a listed entity. Likewise, BIS may have information that a specific entity, although not itself listed on the Entity List, is acting on behalf of a listed entity, or otherwise assisting a listed entity, in circumventing Entity List license requirements. In such cases, BIS may wish to inform an exporter, reexporter, or transferor that a license is required based on an unacceptable risk that the items in question will ultimately be used by, or diverted to, a listed entity. This is consistent with other provisions of part 744 of the EAR (i.e., §§ 744.2(b), 744.3(b), 744.4(b), 744.9(b), 744.17(b), 744.21(b), and 744.22(b)), which authorize BIS to inform exporters, reexporters, or transferors of a license requirement based on an unacceptable risk of use in, or diversion to, specified end uses or end users.

Furthermore, section 1754(a)(2) and (a)(15) of ECRA (50 U.S.C. 4813(a)(2) and (a)(15)) specifically authorize the Secretary of Commerce to not only establish and maintain lists of foreign persons determined to be a threat to the national security and foreign policy of the United States, but also to inform persons, either individually by specific notice, or through amendment to the EAR, that a license is required for specific transactions. Accordingly, BIS is adding a new paragraph (c) to § 744.11 of the EAR, which authorizes BIS to inform persons that a license is required for specified transactions, or for transactions with specific parties, based on an unacceptable risk that the items in question will be ultimately used by, or diverted to, a listed entity.

Conforming Changes

BIS is also making conforming changes to § 744.1(a)(1) of the EAR to reflect the expanded scope of U.S. person controls in § 744.6, as well as new military-intelligence end-use and end-user controls in § 744.22, as implemented in this rule. In addition, BIS is adding to § 744.1(a)(1) a description of existing end-use and end-user controls in §§ 744.9, 744.17, and 744.18 of the EAR. Finally, BIS is revising § 744.1(b)(2) of the EAR to reference all provisions of part 744 that set forth “additional prohibitions on persons informed by BIS,” to include new §§ 744.6(c), 744.11(c), and 744.22(b), as well as existing §§ 744.9(b), 744.17(b), and 744.21(b), which were not previously listed in that section.

Request for Comments

BIS welcomes comments on the impact of this interim final rule. Instructions for the submission of comments, including comments that contain business confidential information, are found in the \`Addresses' section of this interim final rule.

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. 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 interim final rule has been designated a “significant regulatory action,” although not economically significant under section 3(f) of Executive Order 12866. Although this rule is a significant regulatory action, it is a regulation where the analysis demonstrates that the primary, direct benefit is national security and is, thus, exempt from the provisions of Executive Order 13771. This interim final rule will support the national security and foreign policy objectives of the United States by implementing controls on exports, reexports, and transfers (in-country) related to whole plants for chemical weapons precursors and certain military-intelligence end uses and end users, as well as the activities of U.S. persons, with respect to such military-intelligence end uses and end users. These controls are consistent with ECRA and allow the U.S. government prior review of such transactions and activities to determine whether they would be contrary to U.S. national security and foreign policy interests. Furthermore, this rule advances U.S. national security and foreign policy by expanding existing controls on U.S. person activities in support of certain nuclear explosive devices, missiles, and chemical and biological weapons to apply to items not subject to the EAR, as directed in ECRA. This rule also supports U.S. national security and foreign policy by allowing prior U.S. government review of a broader range of transactions that may be destined to various activities related to the use of rocket systems or unmanned aerial vehicles, or chemical or biological weapons. Finally, this rule allows the U.S. government to review transactions that post an unacceptable risk of use by, or diversion to, entities acting contrary to U.S. national security and foreign policy interests.

2. Notwithstanding any other provision of law, no person may be 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 a collection of information previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 42.5 minutes for a manual or electronic submission. BIS expects this rule will increase the number of license applications required to be submitted to BIS each year by imposing licensing requirements on certain exports, reexports, and transfers (in-country), as well as activities of U.S. persons not previously subject to a licensing requirement. BIS estimates the total number of additional license applications will not exceed 40 per year, for a total increase in public burden under OMB control number 0694-0088 of no more than 29 hours per year.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

Administrative Procedure Act and Regulatory Flexibility Act Requirements

Pursuant to section 4821 of ECRA (50 U.S.C. 4821), 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.

Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this interim 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. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.