[Federal Register Volume 70, Number 139 (Thursday, July 21, 2005)]
[Rules and Regulations]
[Pages 41952-41953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14412]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 774

[Docket No. 050707179-5179-01]
RIN 0694-AD28


Exports of Nuclear Grade Graphite: Change in Licensing 
Jurisdiction.

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Industry and Security is publishing this final 
rule to make nuclear grade graphite intended for non-nuclear end uses 
subject to the Export Administration Regulations' licensing 
jurisdiction, and imposes a license requirement for exports and 
reexports to destinations of concern for nuclear proliferation reasons. 
The Nuclear Regulatory Commission (NRC) is discontinuing such 
jurisdiction in a corresponding final rule published in this same issue 
of the Federal Register. This transfer of jurisdiction and the 
imposition of license requirements only to destinations of concern for 
nuclear proliferation reasons are intended to remove the licensing 
burden on exporters of nuclear grade graphite intended for non-nuclear 
end uses to most destinations.

DATES: This rule is effective: July 21, 2005.

ADDRESSES: Although there is no formal comment period, public comments 
on this regulation are welcome on a continuing basis. Comments should 
be submitted to Jeff Lynch, Office of Exporter Services, Bureau of 
Export Administration, Department of Commerce, P.O. Box 273, 
Washington, D.C. 20044.

FOR FURTHER INFORMATION CONTACT: Jeffery Lynch in the Regulatory Policy 
Division at (202) 482-2440 regarding questions of a general nature; or 
Steven Clagett in the Nuclear and Missile Technology Controls Division 
at (202) 482-1641 regarding questions of a technical nature.

SUPPLEMENTARY INFORMATION: 

Background

    To date, the Nuclear Regulatory Commission (NRC) has controlled all 
exports of nuclear grade graphite under 10 CFR part 110, pursuant to 
section 109b of the Atomic Energy Act, which governs ``items or 
substances'' that are ``especially relevant from the standpoint of 
export control because of their significance for nuclear explosive 
purposes,'' 42 U.S.C. 2139. Due to improvements in technology, most 
U.S. bulk, non-fabricated graphite is now nuclear grade--i.e., has a 
purity level of less than 5 parts per million ``boron equivalent'' as 
measured according to American Society for Testing and Materials (ASTM) 
standard C-1233-98. The NRC has determined that the majority of nuclear 
grade graphite exports are intended for non-nuclear commercial end 
uses.
    The widespread commercial uses of this graphite and the limited 
proliferation concerns except when it is destined for a nuclear 
reactor, led the supplier nations to limit their export controls on 
nuclear grade graphite only when intended ``for use in a nuclear 
reactor.'' This limitation appears in the definitions of controlled 
items used by the Nuclear Non-Proliferation Treaty (NPT) Exporters 
(Zangger) Committee and the Nuclear Suppliers Group (NSG) 
(International Atomic Energy Agency INFCIRC/209 and 254 respectively). 
The NRC has determined, in consultation with other agencies, that, 
consistent with these multilateral definitions of controlled items, 
exports of nuclear grade graphite intended for uses other than in a 
nuclear reactor are not significant from a nuclear proliferation 
perspective. This final rule is published in conjunction with a 
corresponding final rule published by NRC that revises 10 CFR part 110 
and discontinues NRClicensing jurisdiction of nuclear grade graphite 
intended for non-nuclear uses. Although the NRC's final rule removes 
the density parameter from its definition of nuclear grade graphite, 
this final rule retains the density parameter for nuclear grade 
graphite for non-nuclear end use in conformance with the NSG's 
definition of ``nuclear grade graphite'' set forth in INFCIRC/254/Rev. 
6/Part 1 of May 2003.
    Specifically, this final rule revises Export Control Classification 
Number (ECCN) 0C005 on the Commerce Control List, which describes 
graphite that is subject to NRC jurisdiction, by removing the density 
parameter for nuclear grade graphite, so that nuclear grade graphite is 
defined only on the basis of its purity, consistent with the NRC 
definition in its corresponding rule. This final rule also revises ECCN 
0C005 to reflect the NRC scope of jurisdiction for graphite intended 
for use in a nuclear reactor.
    This final rule also adds a new ECCN 1C298 to control the export of 
nuclear grade graphite with a purity level of less than 5 parts per 
million ``boron equivalent'' and a density greater than 1.5 grams per 
cubic centimeter to countries indicated under NP column 2 on the 
Commerce Country Chart.
    Finally, this final rule adds ``related controls'' notes to ECCNs 
0C005, 1C107 and 1C298 to provide cross-references among all ECCNS that 
control any type of graphite. ECCN 1C107 controls graphite that meets 
certain density parameters for missile technology and antiterrorism 
reasons.
    In light of NRC's discontinued jurisdiction over graphite exports 
not intended for nuclear end use, nuclear grade graphite that is not 
described in ECCNs 1C107 or 1C298 is classified as EAR99 when intended 
for a use other than in a nuclear reactor. However, such graphite may 
require a license for reasons specified elsewhere in the EAR, for 
example, the end-user/end-use restrictions described in Part 744 of the 
EAR or the restrictions described in Part 746 of the EAR.
    Although the Export Administration Act expired on August 20, 2001, 
Executive Order 13222 (3 CFR 2001 Comp., p. 783), as extended by 
Federal Register Notice of August 6, 2004 (69 FR 48763, August 10, 
2004) 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 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 collections of information subject to the PRA. These 
collections have been approved by the Office of Management and Budget 
(OMB) under control number 0694-0088, ``Multi-Purpose Application,'' 
which carries a burden hour estimate of 58 minutes to prepare and 
submit. This rule is anticipated to increase the number of licenses 
required but not to increase the range of total burden hours associated 
with this control number. Send

[[Page 41953]]

comments regarding these burden estimates or any other aspect of these 
collections of information, including suggestions for reducing the 
burden, to David Rostker, OMB Desk Officer, by e-mail at [email protected] or by fax to (202) 395-7285; and to the Regulatory 
Policy Division, Bureau of Industry and Security, Department of 
Commerce, P.O. Box 273, Washington, DC 20044.
    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 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. Therefore, 
this regulation is issued in final form.

List of Subjects in 15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.


0
Accordingly, part 774 of the Export Administration Regulations (15 CFR 
parts 730-799) are 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); 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 6, 2004, 69 FR 48763, August 10, 2004.


0
2. In Supplement No. 1 to part 774, Category 0, Nuclear Materials, 
Facilities and Equipment (And Misc. Items), ECCN 0C005 is revised to 
read as follows:

0C005 Graphite, having a purity level of less than 5 parts per 
million ``boron equivalent'' as measured according to ASTM standard 
C-1233-98 and intended for use in a nuclear reactor.

License Requirements

Reason for Control:
Control(s): Items described in 0C005 are subject to the export 
licensing authority of the Nuclear Regulatory Commission (see 10 CFR 
part 110).

License Exceptions

LVS: N/A
GBS: N/A
CIV: N/A

List of Items Controlled

Unit: N/A.
Related Controls: Graphite intended for a use other than in a 
nuclear reactor, and that meets certain density parameters, is 
classified under ECCN 1C107.High-purity graphite with a boron 
content of less than 5 parts per million and a density greater than 
1.5 grams per cubic centimeter, is classified under ECCN 1C298.
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN 
heading.

0
3. In Supplement No. 1 to part 774, Category 1, Materials, Chemicals, 
``Microorganisms,'' and Toxins, ECCN 1C107 is revised to read as 
follows:

IC107 Graphite and ceramic materials, other than those controlled by 
1C007, as follows (see List of Items Controlled).

License Requirements

Reason for Control: MT, AT

 
                Control(s)                          Country chart
 
MT applies to entire entry................  MT Column 1
AT applies to entire entry................  AT Column 1
 

License Exceptions

LVS: N/A
GBS: N/A
CIV: N/A

List of Items Controlled

Unit: Kilograms.
Related Controls: (1) See also 0C005, 1C004, and 1C298. (2) For 
commodities that meet the definition of defense articles under 22 
CFR 120.3 of the ITAR, see 22 CFR 121.16, Item 8-Category II of the 
International Traffic in Arms Regulations (ITAR), which describes 
similar commodities under the jurisdiction of the Department of 
State, Directorate of Defense Trade Controls.
Related Definitions: N/A.
Items: a. Fine grain recrystallized bulk graphites with a bulk 
density of 1.72 g/cm3 or greater, measured at 288 K (15[deg] C), and 
having a particle size of 100 micrometers or less, usable for rocket 
nozzles and reentry vehicle nose tips as follows:
    a.1. Cylinders having a diameter of 120 mm or greater and a 
length of 50 mm orgreater;
    a.2. Tubes having an inner diameter of 65 mm or greater and a 
wall thickness of 25 mm or greater and a length of 50 mm or greater;
    a.3. Blocks having a size of 120 mm x 120 mm x 50 mm or greater.
    b. Pyrolytic or fibrous reinforced graphites, usable for rocket 
nozzles and reentry vehicle nose tips;
    c. Ceramic composite materials (dielectric constant is less than 
6 at any frequency from 100 MHz to 100 GHz), for use in ``missile'' 
radomes; and
    d. Bulk machinable silicon-carbide reinforced unfired ceramic, 
usable for nose tips.


0
4. In Supplement No. 1 to part 774, Category 1, Materials, Chemicals, 
``Microorganisms,'' and Toxins, is amended by adding ECCN 1C298 
immediately following ECCN 1C240.

1C298 Graphite with a boron content of less than 5 parts per million 
and a density greater than 1.5 grams per cubic centimeter that is 
intended for use other than in a nuclear reactor.

License Requirements

Reason for Control: NP.

 
                Control(s)                          Country chart
 
NP applies to entire entry................  NP Column 2
 

License Requirement Note: This entry does not control graphite 
intended for use in a nuclear reactor. Such graphite is subject to 
the export licensing authority of the Nuclear Regulatory Commission 
(see ECCN 0C005 and 10 CFR part 110).

License Exceptions

    LVS: N/A
    GBS: N/A
    CIV: N/A

List of Items Controlled

    Unit: N/A.
    Related Controls: See also 1C107 and 0C005.
    Related Definitions: For the purpose of this entry, graphite 
with a purity level better than 5 parts per million boron equivalent 
is determined according to ASTM standard C1233-98. In applying ASTM 
standard C1233-98, the boron equivalence of the element carbon is 
not included in the boron equivalence calculation, since carbon is 
not considered an impurity.
    Items: The list of items controlled is contained in the ECCN 
heading.

    Dated: July 14, 2005.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 05-14412 Filed 7-20-05; 8:45 am]
BILLING CODE 3510-33-P