[Federal Register Volume 83, Number 66 (Thursday, April 5, 2018)]
[Rules and Regulations]
[Pages 14580-14583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06985]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 774

[Docket No. 160303184-8255-01]
RIN 0694-AG90


Reclassification of Targets for the Production of Tritium and 
Related Development and Production Technology Initially Classified 
Under the 0Y521 Series

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: In this rule, the Bureau of Industry and Security (BIS) amends 
the Export Administration Regulations (EAR) to impose a license 
requirement on exports and reexports of specified target assemblies and 
components for the production of tritium under new Export Control 
Classification Number (ECCN) 1A231, and for the related ``production'' 
technology for 1A231 commodities covered under ECCNs 1E001 and 1E201. 
The items identified in this rule are controlled for nuclear 
nonproliferation (NP) Column 1 and anti-terrorism (AT) Column 1 
reasons. These new classifications are the result of a U.S. Government 
proposal submitted and agreed to by members of the relevant 
multilateral regime, the Nuclear Suppliers Group (NSG), in June 2017. 
This final rule, as required under the 0Y521 procedure and in 
fulfillment of multilateral commitments, implements the multilateral 
control for the items adopted by the NSG.

DATES: This rule is effective April 5, 2018.

FOR FURTHER INFORMATION CONTACT: Steven Clagett, Director, Nuclear and 
Missile Technology Controls Division, Office of Nonproliferation and 
Treaty Compliance, by phone at (202) 482-1641, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    In 2012, BIS established the temporary classification ECCN 0Y521 
series (encompassing ECCNs 0A521, 0B521, 0C521, 0D521, and 0E521) to 
identify items that warrant control on the Commerce Control List (CCL) 
because the items provide at least a significant military or 
intelligence advantage to the United States or for foreign policy 
reasons, but are not yet identified in an existing ECCN (77 FR 22191; 
April 13, 2012).
    The license requirements and policies for the ECCN 0Y521 series 
appear in Sec.  742.6(a)(7) of the EAR, and items classified under the 
series appear in supplement No. 5 to part 774. Consistent with the 
procedure established in the April 13, 2012, rule, the Department of 
Commerce, with the concurrence of the Departments of Defense and State 
and in consultation with the Department of Energy, determined that 
targets made of or containing lithium ``specially designed'' for the 
production of tritium by insertion in the core of a nuclear reactor 
(``targets'') and the related ``development'' and ``production'' 
technology met the criteria for inclusion in the series. Controls on 
the targets and related technologies under 0Y521 series ECCNs 0A521 and 
0E521, respectively, were published in an interim final rule, with 
request for comments, on August 8, 2016 (81 FR 52326). The items were 
controlled for regional stability (RS) Column 1 reasons to all 
destinations except Canada, and a case-by-case review policy applied to 
license applications. The only license exception available for these 
items was License Exception GOV (Governments, international 
organizations, international inspections under the Chemical Weapons 
Convention, and the International Space Station (GOV)), which applies 
to all ECCN 0Y521 items if within the scope of Sec.  
[thinsp]740.11(b)(2)(ii) (Exports, reexports, and transfers (in-
country) made by or consigned to a department or agency of the U.S. 
Government), as provided in Sec.  [thinsp]740.2(a)(14). See also 
supplement No. 5 to part 774. BIS did not receive any comments in 
response to the August 8, 2016 rule.
    Subsequent to the 0Y521 classification, and, as required by Sec.  
[thinsp]742.6(a)(7)(iii), within one calendar year of the August 8, 
2016 rule providing for the temporary 0Y521

[[Page 14581]]

series classification, the U.S Government submitted a proposal to the 
NSG seeking a longer-term, multilateral classification for the targets 
and related technologies. The NSG adopted the United States' proposal. 
Therefore, as required under the 0Y521 ECCN series procedure and to 
fulfill the multilateral commitment made at the NSG, this final rule 
formally implements the adoption of a nuclear nonproliferation (NP) 
control for the items mentioned. This rule also implements an anti-
terrorism (AT) control on the items.

Targets for the Production of Tritium and Related ``Development'' and 
``Production'' Technology Initially Classified Under the 0Y521 Series 
Reclassified to a Nuclear Nonproliferation Multilateral Control Under 
the EAR

License Requirements
    In this rule, BIS amends the EAR to add a new ECCN, 1A231, for 
specified target assemblies and components for the production of 
tritium, and to impose a license requirement on exports and reexports 
of items classified thereunder. ECCN 1A231 will be inserted between 
ECCNs 1A227 and 1A290 on the CCL. Specifically, this rule imposes a 
license requirement on exports and reexports of such items if they are 
either (a.) target assemblies made of or containing lithium enriched in 
the lithium-6 isotope ``specially designed'' for the production of 
tritium through irradiation, including insertion in a nuclear reactor; 
or (b.) components ``specially designed'' for the target assemblies 
specified in Item paragraph a. of new ECCN 1A231. A Technical Note to 
paragraph b. provides that components ``specially designed'' for target 
assemblies for the production of tritium may include lithium pellets, 
tritium getters, and specially-coated cladding.
    In addition, pursuant to this rule, the related ``production'' 
technology for the items controlled under the new ECCN 1A231 entry is 
classified under existing ECCNs 1E001 and 1E201. Consequently, a 
reference to ECCN 1A231 has been added to the headings of ECCN 1E001 
and ECCN 1E201 and to the License Requirements section of ECCN 1E001. 
The items classified under new ECCN 1A231 and under existing ECCNs 
1E001 and 1E201 in this rule are controlled for nuclear 
nonproliferation (NP) Column 1 and anti-terrorism (AT) Column 1 
reasons.
License Exceptions
    License Exception availability for items specified under new ECCN 
1A231, and the related technology specified under existing ECCNs 1E001 
and 1E201, is consistent with Category 1 NP controlled end items and 
related technology and provisions, as described in Sec.  742.3 of the 
EAR.
Licensing Policy
    Applications for licenses to export and reexport the target 
assemblies and components covered under ECCN 1A231 and the related 
technology controlled under ECCNs 1E001 and 1E201 will be reviewed 
using the factors described in paragraph (b)--Licensing policy--of 
Sec.  742.3 of the EAR, which include: The appropriateness of the 
stated end-use, including specifically for the stated end-user; the 
items' significance for nuclear purposes; whether the items are to be 
used in certain specified types of research; the types of assurances or 
guarantees given against use for nuclear explosive purposes or 
proliferation; whether any party to the transaction has been engaged in 
clandestine or illegal procurement activities; whether an application 
for a license to export or reexport to the end-user has previously been 
denied or whether the end-user has previously diverted items to 
unauthorized activities which were received under a license, a license 
exception, or shipped with no license required; whether the transaction 
would present an unacceptable risk of diversion to a nuclear explosive 
activity or unsafeguarded nuclear fuel-cycle activity, as described in 
Sec.  744.2(a) of the EAR; and consideration of factors related to the 
nonproliferation credentials of the importing country.
Conforming Amendment
    Finally, in this rule, BIS amends the EAR to make a conforming 
change. Specifically, BIS amends supplement No. 5 to part 774--Items 
Classified Under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521--to remove 
the existing references to the targets under ``0A521. Systems, 
Equipment and Components.'', and the related technology under ``0E521. 
Technology.''

Export Administration Act

    Although the Export Administration Act of 1979 expired on August 
20, 2001, the President, through Executive Order 13222 of August 17, 
2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 
13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by 
the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017), has 
continued the Export Administration Regulations in effect under the 
International Emergency Economic Powers Act. BIS continues to carry out 
the provisions of the Export Administration Act of 1979, as appropriate 
and to the extent permitted by law, pursuant to Executive Order 13222, 
as amended by Executive Order 13637.

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 rule has been determined to be not significant for 
purposes of Executive Order 12866. This rule is not an Executive Order 
13771 regulatory action because this rule is not significant under 
Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall a 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 OMB control number. This rule affects two approved collections: 
(1) The Simplified Network Application Processing + System (control 
number 0694-0088), which carries a burden hour estimate of 43.8 minutes 
manual or electronic and includes, among other things, license 
applications; and (2) License Exceptions and Exclusions (control number 
0694-0137). BIS does not believe that this rule will materially 
increase the number of submissions under these collections. Send 
comments regarding this burden estimate or any other aspect of these 
collections of information, including suggestions for reducing the 
burden, to Jasmeet K. Seehra, Office of Management and Budget, by email 
at [email protected] or by fax to (202) 395-7285 and to Steven 
Clagett, BIS, at [email protected].
    3. This rule does not contain policies with Federalism implications 
as that term is defined under Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C. 
553) requiring prior notice, the opportunity for public comment and a 
delay in effective date are inapplicable

[[Page 14582]]

because this regulation involves a military or foreign affairs function 
of the United States (See 5 U.S.C. 553(a)(1)). BIS, with the 
concurrence of the U.S. Departments of Defense and State, and after 
consultation with the Department of Energy, is implementing this rule 
which identifies items to be controlled for nuclear nonproliferation 
and anti-terrorism reasons. This action fulfills the United States' 
commitment to implement controls agreed to and adopted by members 
(including the United States) of the relevant multilateral regime (the 
Nuclear Suppliers Group). These items were previously and temporarily 
classified for regional stability reasons under the ECCN 0Y521 series, 
indicating that the above-referenced agencies determined that the items 
should be controlled for export because the items provide at least a 
significant military or intelligence advantage to the United States or 
for foreign policy reasons. This rule is necessary to effect the 
nuclear nonproliferation and anti-terrorism foreign policy goals of the 
United States, and therefore to ensure the security interests of the 
United States. Implementation upon publication will allow BIS to 
continue to prevent exports of these items to users and for uses that 
pose a threat to the United States or its allies. If BIS delayed this 
rule to allow for prior notice and opportunity for public comment, the 
resulting delay in implementation, instead of immediate implementation 
simultaneous with formal removal of the temporary 0Y521 ECCN from 
supplement No. 5 to part 774, increases the opportunity for the export 
of these items to users and uses that pose a proliferation threat, 
thereby undermining the purpose of the initial rule and this subsequent 
rule. This rule serves, appropriately, as notice to the public of the 
longer-term control of the items mentioned.
    Further, BIS finds good cause to waive the 30-day delay in 
effectiveness under 5 U.S.C. 553(d)(3). Immediate implementation of 
these changes, based upon a description agreed to by the U.S. and its 
multilateral export control regime allies, will allow BIS to continue 
to prevent exports of these items to users and for uses that pose 
threats to the security interests to the United States or its allies 
particularly in relation to nuclear nonproliferation and anti-
terrorism. If BIS delayed this rule to allow for a 30-day delay in 
effectiveness, the resulting delay in implementation would afford an 
opportunity for the export of these items to users and uses that pose 
such threats, thereby undermining the purpose of the rule. In addition, 
no comments were submitted in response to the preceding interim final 
rule of August 8, 2016 (81 FR 52326). 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. Accordingly, no regulatory flexibility 
analysis is required and none has been prepared.

List of Subjects in 15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

    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. 4601 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; 42 U.S.C. 2139a; 15 U.S.C. 1824a; 50 U.S.C. 
4305; 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 15, 2017, 82 FR 39005 (August 
16, 2017).


0
2. In supplement No. 1 to part 774, Category 1, add Export Control 
Classification Number (ECCN) 1A231 between ECCNs 1A227 and 1A290 to 
read as follows:

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *
1A231 Target assemblies and components for the production of tritium 
as follows (See List of Items Controlled):

License Requirements

Reason for Control: NP, AT

 
                                                 Country chart (see
                Control(s)                    supplement No. 1 to part
                                                        738)
 
NP applies to entire entry................  NP Column 1
AT applies to entire entry................  AT Column 1
 

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

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

List of Items Controlled

Related Controls: See ECCNs 1E001 (``production'') and 1E201 
(``use'') for technology for items controlled by this entry.
Related Definitions: N/A
Items:
    a. Target assemblies made of or containing lithium enriched in 
the lithium-6 isotope ``specially designed'' for the ``production'' 
of tritium through irradiation, including insertion in a nuclear 
reactor;
    b. Components ``specially designed'' for the target assemblies 
specified in item a.

    Technical Note to ECCN 1A231.b.: Components ``specially 
designed'' for target assemblies for the ``production'' of tritium 
may include lithium pellets, tritium getters, and specially-coated 
cladding.


0
3. In supplement No. 1 to part 774, Category 1, Export Control 
Classification Number (ECCN) 1E001 is revised to read as follows:

1E001 ``Technology'' according to the General Technology Note for 
the ``development'' or ``production'' of items controlled by 1A002, 
1A003, 1A004, 1A005, 1A006.b, 1A007, 1A008, 1A101, 1A231, 1B (except 
1B608, 1B613 or 1B999), or 1C (except 1C355, 1C608, 1C980 to 1C984, 
1C988, 1C990, 1C991, 1C995 to 1C999).

License Requirements

Reason for Control: NS, MT, NP, CB, RS, AT

 
                                            Country chart (see supp. No.
                Control(s)                         1 to part 738)
 
NS applies to ``technology'' for items      NS Column 1
 controlled by 1A002, 1A003, 1A005,
 1A006.b, 1A007, 1B001 to 1B003, 1B018,
 1C001 to 1C011, or 1C018.
NS applies to ``technology'' for items      NS Column 2
 controlled by 1A004.
MT applies to ``technology'' for items      MT Column 1
 controlled by 1A101, 1B001, 1B101, 1B102,
 1B115 to 1B119, 1C001, 1C007, 1C011,
 1C101, 1C102, 1C107, 1C111, 1C116, 1C117,
 or 1C118 for MT reasons.
NP applies to ``technology'' for items      NP Column 1
 controlled by 1A002, 1A007, 1A231, 1B001,
 1B101, 1B201, 1B225, 1B226, 1B228 to
 1B234, 1C002, 1C010, 1C111, 1C116, 1C202,
 1C210, 1C216, 1C225 to 1C237, or 1C239 to
 1C241 for NP reasons.

[[Page 14583]]

 
CB applies to ``technology'' for items      CB Column 1
 controlled by 1C351, 1C353, or 1C354.
CB applies to ``technology'' for materials  CB Column 2
 controlled by 1C350 and for chemical
 detection systems and dedicated detectors
 therefor, in 1A004.c, that also have the
 technical characteristics described in
 2B351.a.
RS applies to technology for equipment      RS Column 2
 controlled in 1A004.d.
AT applies to entire entry................  AT Column 1
 

Reporting Requirements

    See Sec.  743.1 of the EAR for reporting requirements for 
exports under License Exceptions, and Validated End-User 
authorizations.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

CIV: N/A
TSR: Yes, except for the following:

    (1) Items controlled for MT reasons; or
    (2) Exports and reexports to destinations outside of those 
countries listed in Country Group A:5 (See Supplement No. 1 to part 
740 of the EAR) of ``technology'' for the ``development'' or 
production'' of the following:
    (a) Items controlled by 1C001; or
    (b) Items controlled by 1A002.a which are composite structures 
or laminates having an organic ``matrix'' and being made from 
materials listed under 1C010.c or 1C010.d.

Special Conditions for STA

STA: License Exception STA may not be used to ship or transmit 
``technology'' according to the General Technology Note for the 
``development'' or ``production'' of equipment and materials 
specified by ECCNs 1A002, 1C001, 1C007.c or d, 1C010.c or d or 1C012 
to any of the destinations listed in Country Group A:6 (See 
Supplement No.1 to part 740 of the EAR).

List of Items Controlled

    Related Controls (1) Also see ECCNs 1E101, 1E201, and 1E202. (2) 
See ECCN 1E608 for ``technology'' for items classified under ECCN 
1B608 or 1C608 that, immediately prior to July 1, 2014, were 
classified under ECCN 1B018.a or 1C018.b through .m (note that ECCN 
1E001 controls ``development'' and ``production'' ``technology'' for 
chlorine trifluoride controlled by ECCN 1C111.a.3.f--see ECCN 1E101 
for controls on ``use'' ``technology'' for chlorine trifluoride). 
(3) See ECCN 1E002.g for control libraries (parametric technical 
databases) ``specially designed'' or modified to enable equipment to 
perform the functions of equipment controlled under ECCN 1A004.c 
(Nuclear, biological and chemical (NBC) detection systems) or ECCN 
1A004.d (Equipment for detecting or identifying explosives 
residues). (4) ``Technology'' for lithium isotope separation (see 
related ECCN 1B233) and ``technology'' for items described in ECCN 
1C012 are subject to the export licensing authority of the 
Department of Energy (see 10 CFR part 810). (5) ``Technology'' for 
items described in ECCN 1A102 is ``subject to the ITAR'' (see 22 CFR 
parts 120 through 130).
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN 
heading.


0
4. In supplement No. 1 to part 774, Category 1, Export Control 
Classification Number (ECCN) 1E201 is revised to read as follows:

1E201 ``Technology'' according to the General Technology Note for 
the ``use'' of items controlled by 1A002, 1A007, 1A202, 1A225 to 
1A227, 1A231, 1B201, 1B225, 1B226, 1B228 to 1B232, 1B233.b, 1B234, 
1C002.b.3 and b.4, 1C010.a, 1C010.b, 1C010.e.1, 1C202, 1C210, 1C216, 
1C225 to 1C237, 1C239 to 1C241 or 1D201.

License Requirements

Reason for Control: NP, AT

 
                                              Country chart  (see supp.
                Control(s)                       No. 1 to part 738)
 
NP applies to entire entry, for items       NP Column 1
 controlled for NP reasons.
AT applies to entire entry................  AT Column 1
 

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

CIV: N/A
TSR: N/A

List of Items Controlled

Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN 
heading.

Supplement No. 5 to Part 774 [Amended]

0
5. Amend supplement No. 5 to part 774 by removing and reserving entries 
for item ``No. 1'' under the subheading ``0A521. Systems, Equipment and 
Components.'', and for item ``No. 1'' under the subheading ``0E521. 
Technology.''

    Dated: March 30, 2018.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2018-06985 Filed 4-4-18; 8:45 am]
 BILLING CODE 3510-33-P