Revisions to EAR Parts 742, 744, 772, & 774

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries back in October 2016.

Changes:

§ 742.5 (Missile technology)

  • In § 742.5 (Missile technology), this final rule revises the first sentence of paragraph (a)(2), which describes the definition of ‘‘missiles.’’ The term ‘‘missiles’’ is a defined term in § 772.1, but for ease of reference the first sentence of this paragraph (a)(2) restates the definition.

Conforming Change to § 742.5(a)(2)

  • This final rule makes conforming changes in paragraph (a)(2) of § 742.5, by replacing the term ‘‘ballistic missile systems’’ with the term ‘‘ballistic missiles’’ (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM), and by replacing the term ‘‘cruise missile systems’’ with the term ‘‘cruise missiles.’’ (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM).
  • This final rule also makes a conforming change by replacing the term ‘‘unmanned air vehicles’’ with the term ‘‘unmanned aerial vehicles.’’ (Conforming Change to MTCR Annex). Substantively, there is no difference between the old and revised terms, but this final rule makes these conforming changes to ensure consistent use of the terminology throughout the EAR. These conforming changes are described in more detail in the next three paragraphs, describing the changes that this final rule makes to the EAR definitions of ‘‘missiles’’ and ‘‘unmanned aerial vehicles.’’

Conforming Change to § 744.3

  • This final rule makes conforming changes in § 744.3 by changing the term ‘‘ballistic missile systems’’ to ‘‘ballistic missiles’’ (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM), and changing the term ‘‘cruise missile systems’’ to ‘‘cruise missiles.’’ (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM). These conforming changes are described in more detail in the next two paragraphs describing the changes that this final rule makes to the EAR definitions of ‘‘missiles’’ and ‘‘unmanned aerial vehicles.’’
  •  In addition, this final rule makes conforming changes in § 744.3 by replacing the term ‘‘unmanned air vehicles’’ with ‘‘unmanned aerial vehicles’’ wherever this term appears in this section. (Conforming Change to MTCR Annex). Substantively, there is no difference between the old and revised terms, but this final rule makes these conforming changes to ensure consistent use of the terminology throughout the EAR.
  • Lastly, this final rule removes the first reference to ‘‘and’’ in the section heading for the parenthetical phrase providing an illustrative list of examples of rocket systems. This ‘‘and’’ is removed because it is not needed to convey the meaning of the list of examples of rocket systems. These conforming changes are clarifications and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

Changes and Conforming Amendments in § 772.1 (Definitions of Terms as Used in the Export Administration Regulations (EAR))

  • In § 772.1, this final rule amends the definition of the term ‘‘missiles.’’ (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM). Under the definition of ‘‘missiles,’’ this final rule revises the term ‘‘ballistic missile systems’’ by removing the word ‘‘systems’’ and adding an ‘‘s’’ to ‘‘missile.’’
  • This final rule revises the definition of ‘‘missiles’’ to reflect changes in the description of complete rocket systems in the MTCR Annex. The final rule revises the term ‘‘ballistic missile systems’’ by removing the word ‘‘systems,’’ thus referring only to the flight vehicle.
  • This final rule makes this change to conform to the other items in the illustrative list of ‘‘missiles,’’ and to clarify that a missile is covered under these entries that use this control text, regardless of whether it is part of a larger system (e.g., a system including the flight vehicle and ground support equipment such as launch, recovery, and flight control equipment). This final rule also makes conforming changes to the same terms used in ECCNs 2B018 and 5A101, as described below.
  • This final rule also makes a conforming change in the ECCNs for the use of the term ‘‘unmanned air vehicles,’’ which this final rule replaces with ‘‘unmanned aerial vehicles.’’ (Conforming Change to MTCR Annex). Substantively, there is no difference between the two formulations of the term, but this final rule makes these conforming changes to ensure consistent use of the terminology throughout the EAR.
  •  Lastly, this final rule removes the last sentence of the definition and adds it as a note to the definition. This clarifying change is made because the sentence is more appropriately included as a note to the definition. These changes correspond with the U.S. interpretation of the controls, and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

Revised Term for Unmanned Aerial Vehicle

  • In addition, in § 772.1, this final rule amends the definition of the revised term, ‘‘unmanned aerial vehicle.’’ (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM). Under the definition of ‘‘unmanned aerial vehicle,’’ this final rule revises the term ‘‘cruise missile systems’’ by removing the word ‘‘systems’’ and adding an ‘‘s’’ to ‘‘missile.’’
  • The definition of ‘‘unmanned aerial vehicles’’ has been updated to reflect changes in the description of unmanned aerial vehicles in the MTCR Annex. The term ‘‘Cruise missile systems’’ has been changed by removing the word ‘‘systems,’’ thus referring only to the flight vehicle. This change both conforms to the other items in the illustrative list of unmanned aerial vehicles, and clarifies that an unmanned aerial vehicle is covered under these entries that use this control text, regardless of whether or not it is part of a larger system (e.g., a system including the flight vehicle and ground support equipment such as launch, recovery, and flight control equipment).
  • This final rule also makes conforming changes to similar text used in ECCNs 2B018 and 5A101 described below. These changes correspond with the U.S. interpretation of the controls, and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.updated to reflect changes in the description of unmanned aerial vehicles in the MTCR Annex. The term ‘‘Cruise missile systems’’ has been changed by removing the word ‘‘systems,’’ thus referring only to the flight vehicle. This change both conforms to the other items in the illustrative list of unmanned aerial vehicles, and clarifies that an unmanned aerial vehicle is covered under these entries that use this control text, regardless of whether or not it is part of a larger system (e.g., a system including the flight vehicle and ground support equipment such as launch, recovery, and flight control equipment).
  • This final rule also makes conforming changes to similar text used in ECCNs 2B018 and 5A101 described below. These changes correspond with the U.S. interpretation of the controls, and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

Amendments to the Commerce Control List (CCL)

ECCN 1C107

  • This final rule amends ECCN 1C107 by revising the introductory text of paragraph d. and adding a paragraph d.3 in the List of Items Controlled section.
  • This final rule also adds a Note and a Technical Note to ECCN 1C107.d.3 to clarify the scope of paragraph d.3. (MTCR Annex Change, Category II: Item 6.C.6., Busan 2016 Plenary). Specifically, in the introductory text of ECCN 1C107.d, this final rule removes the phrase ‘‘silicon carbide materials’’ and adds in its place the phrase ‘‘high-temperature materials.’’ This change is made because of the addition of certain bulk machinable ceramic composite materials that this final rule adds to ECCN 1C107 under new ‘‘items’’ paragraph d.3. Ultra High Temperature Ceramic Composites (UHTCC) are materials that combine Ultra High Temperature Ceramics (UHTC) with fiber reinforcement. The UHTCs can be used in environments that exhibit extremes in temperature, chemical reactivity, and erosive attack. The combination of the UHTC and fiber reinforcement can mitigate some of the traditional drawbacks associated with ceramics, including a tendency to fracture. Typical end uses for these composites are leading edges for hypersonic vehicles, nose tips for re- entry vehicles, rocket motor throat inserts, jet vanes, and control surfaces, which this final rule adds as examples in the new control text.
  • This final rule also adds a note to 1C107.d.3 to make clear that the UHTC materials that do not have fiber reinforcement are not caught under this control. Additionally, this final rule adds a technical note to 1C107.d to provide examples of UHTCs which are included. This change is expected to result in an increase of 1– 3 applications received annually by BIS. This very small increase is because this material is not widely used or exported, but specific to the end uses described in the control text.

ECCN 1C111

  • This final rule amends ECCN 1C111 by revising paragraphs b.2 in the List of Items Controlled section to add a CAS (Chemical Abstract Service) Number. CAS Numbers are numerical identifiers assigned by the Chemical Abstracts Service (CAS) to every chemical substance described in open scientific literature, including organic and inorganic compounds, minerals, isotopes and alloys. The inclusion of CAS Numbers will make it easier to identify the materials controlled under this ‘‘items’’ paragraph of 1C111.
  • This final rule revises paragraph b.2 to add the CAS Number (CAS 69102–90–5) after the material ‘‘Hydroxy-terminated polybutadiene (including hydroxyl- terminated polybutadiene) (HTPB).’’ (MTCR Annex Change, Category II: Item 4.C.5.b., Busan 2016 Plenary). This change is not expected to have any impact on the number of license applications received by BIS.

ECCN 2B018

  • This final rule amends ECCN 2B018 by revising the ‘‘MT’’ paragraph in the table in the License Requirements section by revising the term ‘‘ballistic missile systems’’ to remove the term ‘‘systems’’ and add an ‘‘s’’ to the term ‘‘missile.’’ (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM).
  • In addition, in the same ‘‘MT’’ paragraph, this final rule revises the term ‘‘cruise missile systems’’ to remove the term ‘‘systems’’ and add an ‘‘s’’ to the term ‘‘missile.’’ (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM).
  • Lastly, this final rule makes conforming changes in the same ‘‘MT’’ paragraph by replacing the term ‘‘unmanned air vehicles’’ with ‘‘unmanned aerial vehicles’’ wherever this term appears in this section. (Conforming Change to MTCR Annex). Substantively, there is no difference between the old and revised terms, but this final rule makes these conforming changes to ensure consistent use of the terminology throughout the EAR. These are conforming changes for the changes described above to the definitions of ‘‘missiles’’ and ‘‘unmanned aerial vehicles.’’ This is a clarification and will not change any scope of control. This change is not expected to have any impact on the number of license applications received by BIS.

ECCN 2B109

  • This final rule amends ECCN 2B109 by revising the list of examples included in the second technical note. This final rule expands the list of examples to include interstages, because interstages can also be manufactured using the flow forming machines described in ECCN 2B109. (MTCR Annex Change, Category II: Item 3.B.3., Busan 2016 Plenary). This change is not expected to have any impact on the number of license applications received by BIS, because this is only a change to the list of examples of products that can be made by this type of machine, and it does not change the scope of control.

ECCN 5A101

  • This final rule amends the heading of ECCN 5A101 by revising the term ‘‘ballistic missile systems’’ to remove the word ‘‘systems’’ and add an ‘‘s’’ to ‘‘missile.’’ (MTCR Annex Change, Category I: Item 1.A.1., Luxembourg 2016 TEM).
  • The final rule revises the heading by revising the term ‘‘cruise missile systems’’ to remove the word ‘‘systems’’ and add an ‘‘s’’ after ‘‘missile.’’ (MTCR Annex Change, Category I: Item 1.A.2., Luxembourg 2016 TEM). These are conforming changes for the changes described above to the definitions of ‘‘missiles’’ and ‘‘unmanned aerial vehicles.’’
  • In addition, this final rule revises the heading of ECCN 5A101 to create a separate parenthetical phrase for the illustrative list of examples that are unmanned aerial vehicles. This final rule does this by removing the examples of ‘‘cruise missiles, target drones, and reconnaissance drones’’ from the list of examples that followed the terms ‘‘unmanned aerial vehicle or rocket systems’’ in the heading and adding those examples immediately after the term unmanned aerial vehicle. This final rule retains the rest of the examples from the parenthetical that follows the term ‘‘rocket systems,’’ which will make it clearer that this parenthetical list is an illustrative list of ‘‘rocket systems.’’ (Conforming Change to MTCR Annex). These are clarifications and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

ECCN 7A103

  • This final rule amends ECCN 7A103 by adding a definition for ‘‘inertial measurement equipment and systems’’ for purposes of ECCN 7A103. In addition, this final rule revises ‘‘items’’ paragraph a and adds Note 3 in the List of Items Controlled section. (MTCR Annex Change, Category II: Item 9.A.6., Luxembourg 2016 TEM).
  • This final rule makes these changes to remove the ambiguous term ‘‘other equipment.’’ Instead, the locally defined term ‘‘inertial measurement equipment or systems’’ that the final rule adds to ECCN 7A103, along with an illustrative list of such equipment and systems, clarifies which types of equipment containing the specified accelerometers or gyros are caught by this entry.
  • This final rule also removes the phrase ‘‘and systems incorporating such equipment’’ because this phrase has been removed from the MTCR Annex. The changes this final rule makes to ECCN 7A103 to increase the clarity of the control should make the control more precise and rule out items not strictly used for navigation purposes. This change is expected to result in a decrease of 3 to 5 license applications received annually by BIS.
  • Lastly, this final rule updates and amends ECCN 7A103 by removing Related Controls paragraph (2), which is no longer accurate after changes were made to the EAR to correspond with changes made to USML Category XII (especially for unmanned aerial vehicles (UAVs) ) that became effective December 31, 2016 (See October 12, 2016, (81 FR 70320) final rule). In addition, this paragraph (2) can be removed because the USML Order of Review and CCL Order of Review will provide sufficient guidance on where items that are subject to the ITAR are classified under the USML and where items that are subject to the EAR are classified in either the ‘‘600 series’’ or in other ECCNs in Category 7 of the CCL.
  • Lastly, as a conforming change to the removal of paragraph (2), this final rule redesignates Related Controls paragraph (3) as new Related Controls paragraph (2).

ECCNs 9A101, 9E101, and 9E102

  • This final rule amends ECCN 9E101 by revising the Related Controls paragraph in the List of Items Controlled section to make a conforming change for the use of the term ‘‘unmanned air vehicles,’’ which this final rule changes to ‘‘unmanned aerial vehicles.’’
  • In addition, this final rule amends ECCN 9E101 and 9E102 by revising the headings of these two ECCNs to make conforming changes for the use of the term ‘‘unmanned air vehicles,’’ which this final rule changes to ‘‘unmanned aerial vehicles.’’ Substantively, there is not a difference in the two formulations of the term, but for consistency with how the term is used in other parts of the EAR, this final rule makes these conforming changes. (Conforming Change to MTCR Annex). This is a clarification and will not change any scope of control. These changes are not expected to have any impact on the number of license applications received by BIS.

New ECCN 9B104 and Related Conforming Amendments to 9D101, 9E001, and 9E002

  • This final rule adds new ECCN 9B104 to control certain aerothermodynamic test facilities. The facilities controlled under this new ECCN 9B104 are those that are usable for rockets, missiles, or unmanned aerial vehicles capable of achieving a ‘‘range’’ equal to or greater than 300 km and their subsystems, and having an electrical power supply equal to or greater than 5 MW or a gas supply total pressure equal to or greater than 3 MPa.
  • This final rule adds this new ECCN 9B104 to complement the controls that already exist for aerodynamic test facilities in order to fully cover the types of ground test facilities necessary to reproduce the flight environments that occur during the reentry phase. Plasma arc jet and plasma wind tunnel facilities simulate the atmospheric reentry thermal effects due to high velocity around the vehicles and are key to the qualification of vehicle thermal protection subsystems. This final rule includes values for electrical power supply and gas supply total pressure in new ECCN 9B104 to exclude commercial systems of a similar nature from this new ECCN.

Related Definition as part of new ECCN 9B104 to define the term ‘‘aerothermodynamic test facilities’’

  • This definition specifies that these facilities include plasma arc jet facilities and plasma wind tunnels for the study of thermal and mechanical effects of airflow on objects. (MTCR Annex Change, Category II: Item 15.B.6., Luxembourg 2016 TEM). As a conforming change to the addition of ECCN 9B104, this final rule adds 9B104 to the heading of ECCN 9D101 and revises the ‘‘MT’’ paragraph in the table in the License Requirements section of ECCNs 9E001 and 9E002 to add 9B104. The headings of ECCNs 9E001 and 9E002 do not need to be revised to add technology for 9B104, because those two technology ECCNs apply to 9B ECCNs, except for those specifically excluded in the ECCN headings. These changes are expected to result in an increase of no more than 1 application received annually by BIS, because such systems and their software and technology are exported infrequently.

ECCN 9D104

  • This final rule amends ECCN 9D104 by adding a note to the List of Items Controlled section. This note clarifies that ECCN 9D104 also includes specific software for the conversion of manned aircraft to an unmanned aerial vehicle. (MTCR Annex Change, Category II: Item 1.D.2., Luxembourg 2016 TEM). This change is expected to result in an increase of 1 to 2 applications received annually by BIS, because, although this software was already controlled here, the note will clarify the scope of ECCN 9D104.

Savings Clause : Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or enroute aboard a carrier to a port of export or reexport, on July 7, 2017, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before August 7, 2017. Any such items not actually exported or reexported before midnight, on August 7, 2017, require a license in accordance with this rule.

Federal Register: https://www.gpo.gov/fdsys/pkg/FR-2017-07-07/pdf/2017-14312.pdf

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