[Federal Register Volume 68, Number 181 (Thursday, September 18, 2003)]
[Rules and Regulations]
[Pages 54655-54658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23888]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 772 and 774

[Docket No. 030825213-3213-01]
RIN 0694-AC76


Revisions to the Export Administration Regulations Based on the 
2002 Missile Technology Control Regime Plenary Agreements

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: The Bureau of Industry and Security (BIS) is amending the 
Commerce Control List (CCL) to reflect changes to the Missile 
Technology Control Regime (MTCR) Annex that were agreed to by MTCR 
member countries at the September 2002 Plenary in Warsaw, Poland. BIS 
is also amending certain entries on the CCL to clarify the scope of and 
jurisdiction for controls on global navigation satellite receiving 
equipment.

EFFECTIVE DATE: This rule is effective: September 18, 2003.

FOR FURTHER INFORMATION CONTACT: Steven B. Clagett, Director, Nuclear 
and Missile Technology Controls Division, Bureau of Industry and 
Security, Telephone: (202) 482-1641.

SUPPLEMENTARY INFORMATION:

Background

    The Missile Technology Control Regime (MTCR) is an export control 
arrangement among 33 nations including the world's most advanced 
suppliers of ballistic missiles and missile-related materials and 
equipment. The regime is designed to stem the spread of rockets and 
unmanned air vehicles systems capable of delivering weapons of mass 
destruction by establishing a common export control policy (the 
Guidelines) and a shared list of controlled items (the Annex) that each 
country implements with its own national legislation.
    While the MTCR was originally meant to prevent the spread of 
missiles capable of carrying a nuclear warhead, it was expanded in 
January 1993 to also cover delivery systems for chemical and biological 
weapons. The only absolute prohibition in the regime's Guidelines is on 
the transfer of complete ``production facilities'' specially designed 
for items in the MTCR Annex.
    This rule amends part 772 of the Export Administration Regulations 
to add the definitions for ``Range (MTCR)'' and ``Payload (MTCR)'' to 
the list of terms and revises the Commerce Control List (CCL) to 
reflect changes to the MTCR Annex that were agreed to by MTCR members 
at the September 2002 Plenary in Warsaw, Poland. In addition, this rule 
amends certain entries on the CCL to clarify the scope of and 
jurisdiction for controls on global navigation satellite receiving 
equipment (Export Control Classification Numbers (ECCNs) 7A005, 7A105 
and 7A994).
    The following ECCNs are amended as described:
    1C111: Mixed Oxides of Nitrogen added (MTCR Annex change).
    7A005: Cross-reference to 7A105 and 7A994 added (clarification).
    7A103: Integrated Navigation Systems added (MTCR Annex change).
    7A105: Entry reformatted to clarify description of items covered 
(MTCR Annex change). Cross-reference to 7A005 and 7A994 added 
(clarification).
    7A994: Related controls paragraph deleted (clarification).
    9A106: Flight Control Servo valves added (MTCR Annex change).

Saving Clause

    Shipments of items removed from eligibility for a License Exception 
or export without a license (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 September 
18, 2003, pursuant to actual orders for export to a foreign 
destination, may proceed to that destination under the previous 
eligibility for a License Exception or export without a license (NLR) 
so long as they have been exported from the United States before 
October 20, 2003. Any such items not actually exported before midnight, 
on October 20, 2003, require a license in accordance with this 
regulation.
    Although the Export Administration Act expired on August 20, 2001, 
Executive Order 13222 of August 17, 2001 (66 FR 44025, August 22, 
2001), as extended by the Notice of August 7, 2003 (68 FR 47833, August 
11, 2003), continues the Regulations in effect under the International 
Emergency Economic Powers Act.

Rulemaking Requirements

    1. This final rule has been determined to be not significant for 
purposes of E.O. 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, unless that collection of

[[Page 54656]]

information displays a currently valid Office of Management and Budget 
Control Number. This rule involves a collection of information subject 
to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). This 
collection has been approved by the Office of Management and Budget 
under control number 0694-0088, ``Multi-Purpose Application,'' which 
carries a burden hour estimate of 45 minutes for a manual submission 
and 40 minutes for an electronic submission.
    3. This rule does not contain policies with Federalism implications 
as that term is defined under E.O. 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 (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 interim 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. 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. Comments should be submitted to Matthew Blaskovich, 
Office of Exporter Services, Bureau of Industry and Security, 
Department of Commerce, PO Box 273, Washington, DC 20044.

List of Subjects

15 CFR Parts 772 and 774

    Exports, Foreign trade.

0
Accordingly, parts 772 and 774 of the Export Administration Regulations 
(15 CFR parts 730-799) are amended as follows:

PART 772--[AMENDED]

0
1. The authority citations for 15 CFR part 772 is revised to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 
7, 2003, 68 FR 47833, August 11, 2003.


0
2. Section 772.1 is amended by adding definitions for ``Payload'' and 
``Range'' (MTCR) in alphabetical order as follows:


Sec.  772.1  Definitions of terms as used in the Export Administration 
Regulations (EAR).

* * * * *
    ``Payload'' (MTCR). The total mass that can be carried or delivered 
by the specified rocket system or unmanned aerial vehicle (UAV) system 
that is not used to maintain flight.

    Note: The particular equipment, subsystems, or components to be 
included in the payload depends on the type and configuration of the 
vehicle under consideration.


Technical Notes:

    a. Ballistic Missiles
    1. ``Payload'' for systems with separating re-entry vehicles 
(RVs) includes:
    i. The RVs, including:
    A. Dedicated guidance, navigation, and control equipment;
    B. Dedicated countermeasures equipment;
    ii. Munitions of any type (e.g., explosive or non-explosive);
    iii. Supporting structures and deployment mechanisms for the 
munitions (e.g. hardware used to attach to, or separate the RV from, 
the bus/post-boost vehicle) that can be removed without violating 
the structural integrity of the vehicle;
    iv. Mechanisms and devices for safing, arming, fuzing, or 
firing;
    v. Any other countermeasures equipment (e.g., decoys, jammers, 
or chaff dispensers) that separate from the RV bus/post-boost 
vehicle;
    vi. The bus/post-boost vehicle or attitude control/velocity trim 
module not including systems/subsystems essential to the operation 
of other stages.
    2. ``Payload'' for systems with non-separating re-entry vehicles 
includes:
    i. Munitions of any type (e.g., explosive or non-explosive);
    ii. Supporting structures and deployment mechanisms for the 
munitions that can be removed without violating the structural 
integrity of the vehicle;
    iii. Mechanisms and devices for safing, arming, fuzing or 
firing;
    iv. Any countermeasures equipment (e.g., decoys, jammers, or 
chaff dispensers) that can be removed without violating the 
structural integrity of the vehicle.
    b. Space Launch Vehicles--``Payload'' includes:
    1. Satellites (single or multiple);
    2. Satellite-to-launch vehicle adapters including, if 
applicable, apogee/perigee kick motors or similar maneuvering 
systems;
    c. Sounding Rockets--``Payload'' includes:
    1. Equipment required for a mission, such as data gathering, 
recording or transmitting devices for mission-specific data;
    2. Recovery equipment (e.g., parachutes) that can be removed 
without violating the structural integrity of the vehicle.
    d. Cruise Missiles--``Payload'' includes:
    1. Munitions of any type (e.g., explosive or non-explosive);
    2. Supporting structures and mechanisms for the munitions that 
can be removed without violating the structural integrity of the 
vehicle;
    3. Mechanisms and devices for safing, arming, fuzing or firing;
    4. Countermeasures equipment (e.g., decoys, jammers or chaff 
dispensers) that can be removed without violating the structural 
integrity of the vehicle;
    5. Signature alteration equipment that can be removed without 
violating the structural integrity of the vehicle;
    e. Other UAVs--``Payload'' includes:
    1. Munitions of any type (e.g., explosive or non-explosive);
    2. Mechanisms and devices for safing, arming, fuzing or firing;
    3. Countermeasures equipment (e.g., decoys, jammers or chaff 
dispensers) that can be removed without violating the structural 
integrity of the vehicle;
    4. Signature alteration equipment that can be removed without 
violating the structural integrity of the vehicle;
    5. Equipment required for a mission such as data gathering, 
recording or transmitting devices for mission-specific data;
    6. Recovery equipment (e.g., parachutes) that can be removed 
without violating the structural integrity of the vehicle.
* * * * *
    ``Range'' (MTCR). The maximum distance that the specified rocket 
system or unmanned aerial vehicle (UAV) system is capable of 
traveling in the mode of stable flight as measured by the projection 
of its trajectory over the surface of the Earth.

Technical Notes:

    a. The maximum capability based on the design characteristics of 
the system, when fully loaded with fuel or propellant, will be taken 
into consideration in determining range.
    b. The range for both rocket systems and UAV systems will be 
determined independently of any external factors such as operational 
restrictions, limitations imposed by telemetry, data links or other 
external constraints.
    c. For rocket systems, the range will be determined using the 
trajectory that maximizes range, assuming ICAO standard atmosphere 
with zero wind.
    d. For UAV systems, the range will be determined for a one-way 
distance using the most fuel-efficient flight profile (e.g., cruise 
speed and altitude), assuming ICAO standard atmosphere with zero 
wind.

* * * * *

PART 774--[AMENDED]

0
3. The authority citation for 15 CFR part 774 is revised 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); 18 U.S.C. 2510 et seq.; 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; Sec. 901-911, Pub. L. 106-387; Sec. 
221, Pub. L. 107-56; 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 7, 2003, 68 FR 47833, August 11, 2003.


[[Page 54657]]



0
4. Supplement No. 1 to part 774 (the Commerce Control List), Category 
1--Materials, Chemicals, ``Microorganisms'' & ``Toxins'', Export 
Control Classification Number (ECCN) 1C111, List of Items Controlled 
Section is amended by revising the ``Related Controls'' and ``Items'' 
paragraphs to read as follows:

1C111 Propellants and constituent chemicals for propellants, other than 
those specified in 1C011, as follows (see List of Items Controlled).

* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: Butacene as defined by 1C111.c.1 is subject to 
the export licensing authority of the U.S. Department of State, Office 
of Defense Trade Controls (See 22 CFR 121.12.b(6), other ferrocene 
derivatives)
    Related Definitions: * * *
    Items
     a. Propulsive substances:
    a.1. Spherical aluminum powder, other than that specified on the 
U.S. Munitions List, with particles of uniform diameter of less than 
200 micrometer and an aluminum content of 97% by weight or more, if at 
least 10 percent of the total weight is made up of particles of less 
than 63 micrometer, according to ISO 2591:1988 or national equivalents 
such as JIS Z8820.
    Technical Note: A particle size of 63 micrometer (ISO R-565) 
corresponds to 250 mesh (Tyler) or 230 mesh (ASTM standard E-11).
    a.2. Metal fuels, other than that controlled by the U.S. Munitions 
List, in particle sizes of less than z60 x 10-6 m (60 
micrometers), whether spherical, atomized, spheroidal, flaked or 
ground, consisting 97% by weight or more of any of the following:
    a.2.a Zirconium;
    a.2.b Beryllium;
    a.2.c Magnesium; or
    a.2.d Alloys of the metals specified by a.2.a to a.2.c above.
    Technical Note: The natural content of hafnium in the zirconium 
(typically 2% to 7%) is counted with the zirconium.
    a.3. Liquid oxidizers, as follows:
    a.3.a. Dinitrogen trioxide;
    a.3.b. Nitrogen dioxide/dinitrogen tetroxide;
    a.3.c. Dinitrogen pentoxide;
    a.3.d.. Mixed Oxides of Nitrogen (MON)
    Technical Note: Mixed Oxides of Nitrogen (MON) are solutions of 
Nitric Oxide (NO) in Dinitrogen Tetroxide/Nitrogen Dioxide 
(N2O4/NO2) that can be used in missile 
systems. There are a range of compositions that can be denoted as MONi 
or MONij, where i and j are integers representing the percentage of 
Nitric Oxide in the mixture (e.g., MON3 contains 3% Nitric Oxide, MON25 
25% Nitric Oxide. An upper limit is MON40, 40% by weight).
    b. Polymeric substances:
    b.1. Carboxy-terminated polybutadiene (CTPB);
    b.2. Hydroxy-terminated polybutadiene (HTPB), other than that 
controlled by the U.S. Munitions List;
    b.3. Polybutadiene-acrylic acid (PBAA);
    b.4. Polybutadiene-acrylic acid-acrylonitrile (PBAN);
    c. Other propellant additives and agents:
    c.1. Butacene ;
    c.2. Triethylene glycol dinitrate (TEGDN);
    c.3. 2-Nitrodiphenylamine;
    c.4. Trimethylolethane trinitrate (TMETN);
    c.5. Diethylene glycol dinitrate (DEGDN).

0
5. Supplement No. 1 to Part 774 (the Commerce Control List), Category 
7--Navigation and Avionics, ECCN 7A005 is amended by adding a Note to 
read as follows:

7A005 Global navigation satellite systems (i.e. GPS or GLONASS) 
receiving equipment, and specially designed components therefor. (These 
items are subject to the export licensing authority of the U.S. 
Department of State, Office of Defense Trade Controls. See 22 CFR part 
121.)

    Note to 7A005:
    See also 7A105 and 7A994.


0
6. Supplement No. 1 to Part 774 (the Commerce Control List), Category 
7--Navigation and Avionics, ECCN 7A103, List of Items Controlled 
Section, is amended by revising the ``Items'' paragraph to read as 
follows:

7A103 Instrumentation, navigation equipment and systems, other than 
those controlled by 7A003, and specially designed components therefor.

* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: * * *
    Items:
    a. Inertial or other equipment using accelerometers or gyros 
controlled by 7A001, 7A002, 7A101 or 7A102 and systems incorporating 
such equipment;

    Note:  7A103.a does not control equipment containing 
accelerometers specially designed and developed as MWD (Measurement 
While Drilling) sensors for use in down-hole well services 
operations.

    b. Integrated flight instrument systems, which include 
gyrostabilizers or automatic pilots, designed or modified for use in 
``missiles''.
    c. Integrated Navigation Systems, designed or modified for use in 
``missiles'' and capable of providing a navigational accuracy of 200m 
Circular Error Probable (CEP) or less.
    Technical Note: An `integrated navigation system' typically 
incorporates the following components:
    1. An inertial measurement device (e.g., an attitude and heading 
reference system, inertial reference unit, or inertial navigation 
system);
    2. One or more external sensors used to update the position and/or 
velocity, either periodically or continuously throughout the flight 
(e.g., satellite navigation receiver, radar altimeter, and/or Doppler 
radar); and
    3. Integration hardware and software.

0
7. Supplement No. 1 to Part 774 (the Commerce Control List), Category 
7--Navigation and Avionics, ECCN 7A105 is revised to read as follows:

7A105 Receiving equipment for Global Navigation Satellite Systems 
(GNSS) (e.g. GPS, GLONASS, or Galileo) having any of the following 
characteristics, and specially designed components therefor. (These 
items are subject to the export licensing authority of the U.S. 
Department of State, Office of Defense Trade Controls. See 22 CFR part 
121.)

    1. Designed or modified for use in ``missiles''; or
    2. Designed or modified for airborne applications and having any of 
the following:
    a. Capable of providing navigation information at speeds in excess 
of 600 m/s (1,165 nautical mph).
    b. Employing decryption, designed or modified for military or 
governmental services, to gain access to GNSS secured signal/data; or
    c. Being specially designed to employ anti-jam features (e.g. null 
steering antenna or electronically steerable antenna) to function in an 
environment of active or passive countermeasures.

    Note to 7A105: See also 7A005 and 7A994.


0
8. Supplement No. 1 to Part 774 (the Commerce Control List), Category 
7--Navigation and Avionics, ECCN 7A994, List of Items Controlled 
Section is amended by revising the ``Related Controls'' paragraph to 
read as follows:

[[Page 54658]]

7A994 Other navigation direction finding equipment, airborne 
communication equipment, all aircraft inertial navigation systems not 
controlled under 7A003 or 7A103, and other avionic equipment, including 
parts and components, n.e.s.

* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: N/A.
    Related Definitions: * * *
    Items: * * *
* * * * *

0
9. Supplement No. 1 to Part 774 (the Commerce Control List), Category 
9--Propulsion Systems, Space Vehicles, and Related Equipment, ECCN 
9A106, List of Items Controlled Section is amended by revising the 
``Items'' paragraph to read as follows:

9A106 Systems or components, other than those controlled by 9A006, 
usable in ``missiles'', as follows (see List of Items Controlled), and 
specially designed for liquid rocket propulsion systems.

* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: * * *
    Items:
    a. Ablative liners for thrust or combustion chambers;
    b. Rocket nozzles;
    c. Thrust vector control sub-systems;
    Technical Note: Examples of methods of achieving thrust vector 
control controlled by 9A106.c includes:
    1. Flexible nozzle;
    2. Fluid or secondary gas injection;
    3. Movable engine or nozzle;
    4. Deflection of exhaust gas steam (jet vanes or probes); or
    5. Thrust tabs.
    d. Liquid and slurry propellant (including oxidizers) control 
systems, and specially designed components therefor, designed or 
modified to operate in vibration environments of more than 10 g rms 
between 20 Hz and 2000 Hz.

    Note:
    The only servo valves and pumps controlled by 9A106.d, are the 
following:

    a. Servo valves designed for flow rates of 24 liters per minute or 
greater, at an absolute pressure of 7 Mpa or greater, that have an 
actuator response time of less than 100 ms;
    b. Pumps, for liquid propellants, with shaft speeds equal to or 
greater than 8,000 rpm or with discharge pressures equal to or greater 
than 7 Mpa.
    e. Flight control servo valves designed or modified for use in 
``missiles'' and designed or modified to operate in a vibration 
environment of more than 10g RMS over the entire range between 20Hz and 
2KHz.

    Dated: September 12, 2003.
Matthew Borman,
Acting Assistant Secretary for Export Administration.
[FR Doc. 03-23888 Filed 9-17-03; 8:45 am]
BILLING CODE 3510-33-P