[Federal Register Volume 83, Number 244 (Thursday, December 20, 2018)]
[Rules and Regulations]
[Pages 65292-65294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27542]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 774
[Docket No. 180918851-8851-01]
RIN 0694-AH64
Control of Military Electronic Equipment and Other Items the
President Determines No Longer Warrant Control Under the United States
Munitions List (USML); Correction
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule; correcting amendments.
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SUMMARY: The Bureau of Industry and Security (BIS) is amending the
Export Administration Regulations (EAR) by correcting two entries on
the Commerce Control List (CCL) that control Global Navigation
Satellite Systems (GNSS) receiving equipment. It was brought to BIS'
attention that it did not implement controls over items that no longer
warrant control under the United States Munitions List (USML) in a
previous published rule. This rule corrects that error. BIS estimates
that there will be 12 license applications submitted to BIS annually as
a result of this rule.
DATES: Effective date: This rule is effective: December 20, 2018.
FOR FURTHER INFORMATION CONTACT: Dennis Krepp, Office of National
Security and Technology Transfer Controls, (202) 482-1309,
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On October 12, 2016, the Bureau of Industry and Security (BIS)
published a rule in the Federal Register entitled ``Revisions to the
Export Administration Regulations (EAR): Control of Fire Control,
Laser, Imaging, and Guidance Equipment the President Determines No
Longer Warrant Control Under the United States Munitions List (USML)''
(81 FR 70320). This rule added to the Commerce Control List military
electronics and related items the President determined no longer
warrant control under the United States Munitions List (USML) of the
International Traffic in Arms Regulations (ITAR) (22 CFR 120-130). BIS
published the rule simultaneously with a Department of State rule that
amended the list of articles controlled by USML Category XII (22 CFR
121.1) to control only those articles the President had determined
warrant control in that category of the USML (81 FR 70340). The BIS
rule was supposed to change the License Requirement section of Export
Control Classification Number (ECCN) 7A005 to modify the CCL to cover
7A005.b, Global Navigation Satellite Systems (GNSS) receiving equipment
employing `adaptive antenna systems'. This equipment was removed from
the USML. However, BIS inadvertently did not update the CCL as
intended. The revisions described below provide that this equipment is
covered by 7A005.b, and that items otherwise subject to 7A005.a are
subject to the ITAR. In order to more clearly distinguish the national
security controlled items from the missile technology controlled items
in ECCN 7A005, BIS is fully listing the MTCR item 11.A.3 in the CCL
under ECCN 7A105. Some of the items that this rule lists in ECCN 7A105
would be fully or partially subject to the ITAR were they not listed on
the CCL. Therefore, it is very important for the public to employ the
order of review principles found in Supplement No. 4 to part 774 of the
EAR to classify their item correctly.
Revision to ECCN 7A005
This correction rule amends the License Requirements section of
ECCN 7A005. The first amendment removes the text ``These items are
``subject to the ITAR'' (see 22 CFR parts 120 through 130).'' and adds
in its place ``Reason for Control: NS, MT and AT''. The second
amendment adds a License Requirements table to indicate a license
requirement for national security (NS) reasons for the export or
reexport of items listed in ECCN 7A005.b to all countries that have an
``X'' in NS Column 1 on the Commerce Country Chart (see Supplement No.
1 to part 738 of the EAR), i.e., all countries, except Canada. The
table also includes a license requirement for anti-terrorism (AT)
reasons for the export or reexport of such items to countries that have
an ``X'' in AT Column 1 of the Commerce Country Chart and for countries
for which the EAR indicates a license requirement in a referenced
section of the EAR on the Commerce Country Chart. Missile Technology
(MT) controls are also added to the License Requirements table for ECCN
7A005.b items that meet or exceed the parameters of ECCN 7A105 when
exported or reexported to countries that have an ``X'' in MT Column 1
of the Commerce Country Chart.
This rule also adds a License Exception section; however, no list
based license exceptions will be available for this item. Transaction-
based license exceptions or License Exception STA may be available if
the transaction meets the criteria for any of those license exceptions
in part 740 of the EAR.
The Related Control paragraph in ECCN 7A005 is also amended. This
rule adds a reference to ECCN 7A611 in paragraph (1) and revises the
sentence in paragraph (1) to improve readability. It also replaces the
current text of paragraph (2) (``(2) See USML Category XII(d) for GNSS
receiving equipment subject to the ITAR.'') with the following text:
``See USML Category XII(d) for GNSS receiving equipment subject to the
ITAR and USML Category XI(c)(10) for antennae that are subject to the
ITAR.'' Lastly, it adds paragraph (3) to read as follows, ``(3) 7A005.a
is
[[Page 65293]]
``subject to the ITAR'' (see 22 CFR parts 120 through 130).''
Revisions to ECCN 7A105
This rule revises the Heading of ECCN 7A105 by moving the parameter
to the Items paragraph in the List of Items Controlled section, and
adding a reference to the List of Items Controlled section for the
parameters. This rule replaces Related Control Note 2 with three more
specific Related Control Notes. The MTCR Annex item 11.A.3 parameters
are added to the Items paragraph of the List of Items Controlled
section of ECCN 7A105. See the background section of the preamble for
BIS's rationale.
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) (Title XVII,
Subtitle B of Pub. L. 115-232) that provides the legal basis for BIS's
principal authorities and serves as the authority under which BIS
issues this rule. As set forth in Section 1768 of ECRA, all
delegations, rules, regulations, orders, determinations, licenses, or
other forms of administrative action that have been made, issued,
conducted, or allowed to become effective under the Export
Administration Act of 1979 (50 U.S.C. 4601 et seq.) (as in effect prior
to August 13, 2018 and as continued in effect pursuant to the
International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)
and 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 8,
2018, 83 FR 39871 (August 13, 2018)), or the Export Administration
Regulations, and are in effect as of August 13, 2018, shall continue in
effect according to their terms until modified, superseded, set aside,
or revoked under the authority of ECRA.
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, distributive 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 not been designated a ``significant
regulatory action,'' under section 3(f) 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. Pursuant to Section 1762 of the Export Control Reform Act of
2018 (Title XVII, Subtitle B of Pub. L. 115-232), which was included in
the John S. McCain National Defense Authorization Act for Fiscal Year
2019, 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. The analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.)
are not applicable because no general notice of proposed rulemaking was
required for this action. Accordingly, no regulatory flexibility
analysis is required, and none has been prepared.
3. Notwithstanding any other provision of law, no person is
required to respond to, nor is 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
collections previously approved by OMB under the following control
numbers: 0694-0088, 0694-0122, 0694-0134, and 0694-0137.
4. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
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 through 774) is amended as follows:
PART 774--[AMENDED]
0
1. The authority citation for part 774 continues to read as follows:
Authority: Pub. L. 115-232, Title XVII, Subtitle B; 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 8, 2018, 83 FR 39871 (August 13, 2018).
0
2. In Supplement No. 1, Category 7, ECCN 7A005 is revised to read as
follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
7A005 Global Navigation Satellite Systems (GNSS) receiving equipment
having any of the following (see List of Items Controlled) and
``specially designed'' ``components'' therefor.
License Requirements
Reason for Control: NS, MT and AT
Country chart (See Supp. No.
Control(s) 1 to part 738)
NS applies to 7A005.b..................... NS Column 1
MT applies to commodities in 7A005.b that MT Column 1
meet or exceed the parameters of 7A105.
AT applies to 7A005.b..................... 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: (1) See also ECCNs 7A105, 7A611 and 7A994.
Commercially available GNSS receivers do not typically employ
decryption or adaptive antennae and are classified as 7A994. (2) See
USML Category XII(d) for GNSS receiving equipment subject to the
ITAR and USML Category XI(c)(10) for antennae that are subject to
the ITAR. (3) Items that otherwise would be covered by ECCN 7A005.a
are ``subject to the ITAR'' (see 22 CFR parts 120 through 130).
Related Definitions: N/A
Items:
a. Employing a decryption algorithm ``specially designed'' or
modified for government use to access the ranging code for position
and time; or
b. Employing `adaptive antenna systems'.
Note: 7A005.b does not apply to GNSS receiving equipment that
only uses ``components'' designed to filter, switch, or combine
signals from multiple omni-directional antennas that do not
implement adaptive antenna techniques.
Technical Note: For the purposes of 7A005.b `adaptive antenna
systems' dynamically generate one or more spatial nulls in an
antenna array pattern by signal processing in the time domain or
frequency domain.
0
3. In Supplement No. 1, Category 7, ECCN 7A105 is revised to read as
follows:
7A105 Receiving equipment for `navigation satellite systems', having
any of the following characteristics (see List of
[[Page 65294]]
Items Controlled), and ``specially designed'' ``parts'' and
``components'' therefor.
License Requirements
Reason for Control: MT, AT
Country chart (See Supp. No.
Control(s) 1 to part 738)
MT applies to entire entry................ MT 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: (1) See also 7A005, 7A611 and 7A994. (2) See USML
Category XII(d) for GNSS receiving equipment subject to the ITAR and
USML Category XI(c)(10) for antennae that are subject to the ITAR.
(3) Items that otherwise would be covered by ECCN 7A105.b.2 are
``subject to the ITAR'' (see 22 CFR parts 120 through 130). (4) See
USML Category XII(d) for GPS receiving equipment in 7A105.a, b.1 and
b.3 that are subject to the ITAR.
Related Definitions: `Navigation satellite systems' include Global
Navigation Satellite Systems (GNSS; e.g. GPS, GLONASS, Galileo or
BeiDou) and Regional Navigation Satellite Systems (RNSS; e.g. NavIC,
QZSS).
Items:
a. Designed or modified for use in ``missiles''; or
b. Designed or modified for airborne applications and having any
of the following:
b.1. Capable of providing navigation information at speeds in
excess of 600 m/s;
b.2. Employing decryption, designed or modified for military or
governmental services, to gain access to a `navigation satellite
system' secure signal/data; or
b.3. 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: 7A105.b.2 and 7A105.b.3 do not control equipment designed
for commercial, civil or Safety of Life (e.g., data integrity,
flight safety) `navigation satellite system' services.
* * * * *
Dated: December 17, 2018.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2018-27542 Filed 12-19-18; 8:45 am]
BILLING CODE 3510-33-P