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Rule

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

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AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

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.

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FOR FURTHER INFORMATION CONTACT:

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

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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 Start Printed Page 54656information 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.

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List of Subjects

and 774

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Accordingly, parts 772 and 774 of the Export Administration Regulations (

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PART 772—[AMENDED]

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1. The authority citations for

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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.

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

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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.

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PART 774—[AMENDED]

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3. The authority citation for

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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.

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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:

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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 × 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 (N2 O4/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).

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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:

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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.

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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:

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

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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.

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

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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.

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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:

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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: * * *

* * * * *
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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:

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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.

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Dated: September 12, 2003.

Matthew Borman,

Acting Assistant Secretary for Export Administration.

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[FR Doc. 03-23888 Filed 9-17-03; 8:45 am]

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