Revisions to the Export Administration Regulations Based on the 2012 Missile Technology Control Regime Plenary Agreements, 42430-42436 [2013-16954]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[Federal Register Volume 78, Number 136 (Tuesday, July 16, 2013)]
[Rules and Regulations]
[Pages 42430-42436]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16954]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740, 772 and 774

[Docket No. 130104008-3008-01]
RIN 0694-AF81


Revisions to the Export Administration Regulations Based on the 
2012 Missile Technology Control Regime Plenary Agreements

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: 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 at the October 2012 Plenary in Berlin, Germany, 
and at the MTCR Reinforced Point of Contact (RPOC) meeting in Paris, 
France, in December 2011. This final rule revises six Export Control 
Classification Numbers (ECCNs) (1C011, 1C111, 1C116, 9A101, 9B105 and 
9E101) and one defined term (the definition of ``payload'') to 
implement the changes that were agreed to at the meetings. This final 
rule also revises ECCNs 7E004 and 9D004 to better align the Commerce 
Control List (CCL) with the MTCR Annex and past MTCR agreements.

DATES: This rule is effective: July 16, 2013.

FOR FURTHER INFORMATION CONTACT: Sharon Bragonje, Nuclear and Missile 
Technology Controls Division, Bureau of Industry and Security, Phone: 
(202) 482-0434; Email: sharon.bragonje@bis.doc.gov

SUPPLEMENTARY INFORMATION: 

Background

    The Missile Technology Control Regime (MTCR) is an export control 
arrangement among 34 nations, including most of the world's advanced 
suppliers of missiles and missile-related equipment, materials, 
software and technology. The regime establishes a common list of 
controlled items (the Annex) and a common export control policy (the 
Guidelines) that member countries implement in accordance with their 
national export controls. The MTCR seeks to limit the risk of 
proliferation of weapons of mass destruction by controlling exports of 
goods and technologies that could make a contribution to delivery 
systems (other than manned aircraft) for such weapons.
    In 1992, the MTCR's original focus on missiles for nuclear weapons 
delivery was extended to a focus on the proliferation of missiles for 
the delivery of all types of weapons of mass destruction (WMD), i.e., 
nuclear, chemical and biological weapons. Such proliferation has been 
identified as a threat to international peace and security. One way to 
counter this threat is to maintain vigilance over the transfer of 
missile equipment, material, and related technologies usable for 
systems capable of delivering WMD. MTCR members voluntarily pledge to 
adopt the regime's export Guidelines and to

[[Page 42431]]

restrict the export of items contained in the regime's Annex. The 
implementation of the regime's Guidelines is effectuated through the 
national export control laws and policies of the regime members.

Amendments to the Export Administration Regulations

    This final rule revises the Export Administration Regulations (EAR) 
to reflect changes to the MTCR Annex agreed to at the October 2012 
Plenary in Berlin, Germany, and the MTCR December 2011 Reinforced Point 
of Contact meeting (RPOC) in Paris, France. Corresponding MTCR Annex 
references are provided below for the MTCR Annex changes agreed to at 
the meetings. This rule also makes two conforming changes to correlate 
the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the 
EAR) with the current MTCR Annex. These conforming changes are made to 
better align the MT controls on the CCL with the MTCR Annex and past 
MTCR agreements. In the explanation below for the revisions made in 
this rule, BIS identifies these changes as follows: ``Berlin 2012 
Plenary,'' ``Paris 2011 RPOC'' and ``CCL Conforming Change to MTCR 
Annex'' to assist the public in understanding the origin of each change 
included in this final rule.
    In Section 740.20 (License Exception Strategic Trade Authorization 
(STA)), as a conforming change for the revision of the MT control on 
ECCN 7E004 described below, this rule amends paragraph (b)(2) 
(Limitations on Use of License Exception STA) by redesignating 
paragraph (b)(2)(vii) as paragraph (b)(2)(viii). Under new paragraph 
(b)(2)(vii), this rule continues the existing limitation on the use of 
License Exception STA. Paragraph (b)(2)(vii) will specify that License 
Exception STA may not be used for 7E004 ``technology,'' except for 
``technology'' controlled under 7E004.a.7. Prior to publication of this 
final rule, this ``technology'' was not eligible for License Exception 
STA because the ``technology'' was MT controlled. This change is being 
made for consistency with the MTCR Annex. BIS decided it was still 
warranted to exclude the technology under 7E004 that had previously 
been excluded under License Exception STA. This change to License 
Exception STA continues the existing limitation on the use of License 
Exception STA for 7E004 ``technology,'' so this change preserves the 
status quo in terms of License Exception STA ineligibility under the 
EAR for 7E004.
    Additionally, this rule revises the EAR in Section 772.1 
(Definitions of Terms as Used in the Export Administration Regulations) 
by amending the definition of the term ``payload'' (MTCR Annex Change, 
Definitions: ``Payload,'' Berlin 2012 Plenary). The definition of 
``payload'' is revised by changing the description for space launch 
vehicles in Technical Note b.1 from ``satellites'' to ``spacecraft, 
including satellites,'' and by changing the description for space 
launch vehicles in Technical Note b.2 from ``satellite-to-launch 
vehicle adapters,'' to ``spacecraft-to-launch vehicle adapters.'' The 
term satellite could be more limiting than intended, while the term 
spacecraft is broader and includes any type of spacecraft payload that 
could be carried on a space launch vehicle. For these reasons, the MTCR 
members decided to revise the definition of ``payload'' to clarify the 
scope of the types of payload for space launch vehicles that are 
included in the ``payload'' definition under Technical Notes b.1 and 
b.2. This clarification will have little impact on items subject to the 
EAR, and therefore not cause an increase in license applications 
received by BIS.
    In addition, this rule amends the CCL to reflect changes to the 
MTCR Annex. This final rule also revises Export Control Classification 
Numbers (ECCNs) 7E004 and 9D004 to better align the CCL with the MTCR 
Annex and past MTCR agreements. Specifically, the following eight ECCNs 
are affected:
    ECCN 1C011 is amended by revising the MT control(s) paragraph in 
the License Requirements section to indicate the MT control applies to 
1C011.a and .b for materials that meet or exceed the parameters in 
1C111. This change clarifies that the MT control applicable to 1C011.b 
only applies when the boron or boron alloys also meet the size 
requirement specific to the MTCR Annex (i.e., where at least 90% of the 
total particles by particle volume % or weight % are made up of 
particles of less than 60 [micro]m). (MTCR Annex Change, Category II: 
Item 4.C.2.e., Berlin 2012 Plenary). Boron and boron alloys with the 
purities specified were previously controlled, but the interpretation 
of the size requirement was not clear between MTCR Partners. While the 
text could be read as meaning that all of the material had to be less 
than 60 [micro]m to be controlled, many Partners were controlling 
material that had a median particle size of 60 [micro]m. The new 
measurement criteria clarifies that at least 90% of the material must 
be less than 60 [micro]m to be controlled, and the criteria encompass 
several techniques used for measuring particle size by including 
multiple standard reporting practices within the control text and 
providing examples of test methods. Because the MTCR partners decided 
to make the size control more specific, additional detail was needed to 
qualify how the size is to be ascertained and reported for purposes of 
determining whether such material is MT controlled. The new measurement 
criteria being added in this final rule will ensure the different 
testing methods currently in use, such as laser diffraction and sieves, 
will be applied in a consistent manner in determining whether such 
material is MT controlled under ECCN 1C011 or controlled under ECCN 
1C111.
    Additionally, because boron of this purity is controlled by both 
the MTCR, and for NS reasons, by the Wassenaar Arrangement (WA), and 
the WA has not adopted these changes, this final rule is implementing 
the MTCR-agreed change to 1C011.b by qualifying the scope of the MT 
control(s) paragraph. As this type of boron material typically meets 
the specifications of both the prior and updated text, this change is 
not expected to have any impact on the number of license applications 
received by BIS.
    ECCN 1C111 is amended by revising the ``items'' paragraph (a.1) in 
the List of Items Controlled section by including the term 
``spheroidal'' and removing the phrase ``particles of uniform 
diameter'' from paragraph (a.1). (MTCR Annex Change, Category II: Item 
4.C.2.c., Berlin 2012 Plenary). This change will address a concern of 
the MTCR members that particles that are not exactly spherical might be 
interpreted as being outside the scope of this control. The changes are 
being made because aluminum powder particles are not exactly spherical. 
This is a clarification of the control and is consistent with how BIS 
has interpreted the scope of ECCN 1C111. Therefore, this clarification 
will have no impact on the number of license applications received by 
BIS. This rule is also removing under paragraph (a.1) the phrase 
``other than those controlled by the U.S. Munitions List,'' because 
this concept (that items that are enumerated or described on the U.S. 
Munitions List (USML) are subject to the ITAR and therefore not 
``subject to the EAR'') is already stated in other places in the EAR, 
in particular part 734 (Scope of the Export Administration 
Regulations).
    ECCN 1C111 is also amended by revising the ``items'' paragraph 
(a.2) in the List of Items Controlled section to modify the controls 
for certain powders. (MTCR Annex Change, Category II: Items 4.C.2.d. 
and 4.C.2.e., Berlin 2012

[[Page 42432]]

Plenary). The same interpretation that applies to the size criteria of 
boron powders as described above in ECCN 1C011 applies to zirconium, 
beryllium, and magnesium powders. Hence, the same new measurement 
criteria in modified ECCN 1C011 are being applied to ECCN 1C111 to 
clarify that at least 90% of the material must be less than 60 [micro]m 
to be controlled. The criteria also encompass several techniques used 
for measuring particle size by including multiple standard reporting 
practices within the control text and providing examples of test 
methods, as described in detail in the discussion of changes to ECCN 
1C011 above.
    In addition, this rule removes the phrase ``metal fuels and their 
alloys'' in paragraph (a.2) and replaces it with the more precise and 
accurate term ``metal powders'' to conform to the MTCR Annex and the 
intent of this CCL control. This final rule adds the phrase ``and 
alloys'' after ``metal powders'' to clarify that although the term 
metal fuels is being replaced with the term metal powders, the scope of 
paragraph (a.2) still extends to alloys of those metal powders. This 
rule also removes under paragraph (a.2) the phrase ``other than those 
controlled by the U.S. Munitions List,'' because this concept (that 
items that are enumerated or described on the USML are subject to the 
ITAR and therefore not ``subject to the EAR'') is already stated in 
other places in the EAR, in particular part 734. The criteria in 1C111 
are also being updated in this final rule to clarify that alloys of 
these metals are only controlled when they are 97% or more, by weight, 
of zirconium, beryllium, or magnesium, which is consistent with how BIS 
has interpreted the scope of ECCN 1C111.
    This rule also adds the control on boron powders, previously only 
controlled in 1C011, to a new ``items'' paragraph (a.2.b) to 
differentiate between the NS controlled and MT controlled material. The 
new measurement criteria and other criteria added in 1C111.a.2 in this 
final rule clarify exactly what is controlled by including multiple 
standard reporting practices within the control text and providing 
examples of test methods. Because the MTCR partners decided to make the 
size control more specific, additional detail was needed to qualify how 
the size is to be ascertained and reported for purposes of determining 
whether such material is MT controlled. The new measurement criteria 
being added in this final rule will ensure the different testing 
methods currently in use, such as laser diffraction and sieves, will be 
applied in a consistent manner in determining whether such material is 
MT controlled under ECCN 1C111 or controlled under 1C011. As with the 
boron control, the type of metal powders typically exported currently 
meet the specifications of both the previous and the updated control 
text, and this change is not expected to have any impact on the number 
of license applications received by BIS.
    Paragraph (a.2.a.4) of ECCN 1C111 is being removed to clearly 
reflect the interpretation that alloys controlled would fall within the 
97% weight requirement of paragraph (a.2.a). As a conforming change to 
the removal of paragraph (a.2.a.4), this rule revises paragraph 
(a.2.a.2) to add the word ``or'' and revises paragraph (a.2.a.3) to 
remove the word ``or'' and the semicolon, and replace that text and 
punctuation with a period.
    Finally, in ECCN 1C111 this rule also adds a new note at the end of 
the ``items'' paragraph in the List of Items Controlled section to 
indicate that in a multimodal particle distribution (e.g., mixtures of 
different grain sizes) in which one or more modes are controlled, the 
entire powder mixture is controlled.
    ECCN 1C116 is amended by revising the heading and the ``items'' 
paragraph in the List of Items Controlled section regarding maraging 
steel classified under 1C116. (MTCR Annex Change Category II: Item 
6.C.8., Paris 2011 RPOC). First, the rule expands the scope of the 
control criteria to ensure that maraging steel that has missile 
applications is adequately enumerated within the scope of this ECCN. 
Specifically, this rule revises the heading and adds an ``items'' 
paragraph (a) and (b) in the List of Items controlled section to expand 
the scope of the control.
    In addition to expanding the control criteria, this final rule 
revises the ``items'' paragraph to add new notes (a) and (b) to 
identify that maraging steels are iron alloys generally characterized 
by the criteria included in these notes. The MTCR members agreed to 
this change because maraging steel is often exported in the solution 
annealed stage and then further worked (i.e., processed) at the 
destination before being precipitation hardened. Therefore, maraging 
steel that has missile applications could have potentially avoided 
control, under ECCN 1C116, by being exported or reexported before being 
hardened into its final stage. This final rule addresses this missile 
proliferation concern by expanding the scope of 1C116 to define the 
ultimate tensile strength of maraging steel usable in missile 
applications in both the solution annealed stage and the precipitation 
hardened stage, and controlling both under 1C116. This expansion will 
result in an increase of one or two license applications per year, so 
the overall impact on the number of license applications received by 
BIS will be minimal.
    ECCN 7E004 is amended by revising the MT control(s) paragraph in 
the License Requirements section to indicate that where ``technology'' 
for equipment or systems controlled for MT reasons is not controlled 
under ECCNs 7E001,7E002, 7E101, 7E104, and 9E101, it is controlled 
under ECCN 7E004 for MT reasons. (MTCR Annex Category II: Item 10.E.3)
    ECCN 7E004 is also amended by revising the ``related controls'' 
paragraph to add ECCNs 7E001, 7E002, 7E101 and 9E101 as additional 
related controls under two new ``related controls'' paragraphs. 
Specifically, this rule revises the ``related controls'' under 7E004 to 
include ECCNs 7E001, 7E002, 7E101 and 7E994 as a new ``Related 
Controls'' paragraph (2). This rule also revises the ``related 
controls'' to include ECCNs 7E104 and 9E101 as a new ``Related 
Controls'' paragraph (3), and adds details for when 7E104 and 9E101 
should also be reviewed for MT controlled technology. The remaining 
``related controls'' text in 7E004 becomes new ``Related Controls'' 
paragraph (1). (MTCR Annex Category II: Item 9.E.1., 10.E.1., 10.E.2., 
and 10.E.3.; CCL Conforming Change to MTCR Annex). This conforming 
change will result in the revision of the MT control on 7E004 
technology. However, because certain portions of the MT control are 
being retained in 7E004 to conform to the MTCR Annex, and the remaining 
technology is controlled for NS reasons, the impact on the number of 
license applications received per year will be minimal and likely will 
result in a decrease of one or two license applications per year. Also 
as described above under the changes being made to License Exception 
STA, 7E004 will continue to be ineligible for License Exception STA, 
except for ``technology'' controlled under 7E004.a.7. Lastly, in 7E004, 
BIS adds an STA paragraph to the License Exception section to make it 
explicit that License Exception STA may not be used for 7E004, except 
for 7E004.a.7. This new STA paragraph conforms to the exclusion being 
added to License Exception STA under paragraph (b)(2)(vii) for 7E004 
``technology,'' except for ``technology'' controlled under 7E004.a.7.
    ECCN 9A101 is amended by revising the ``related definitions'' 
paragraph in the List of Items Controlled section to

[[Page 42433]]

add an ECCN-specific definition for `maximum thrust value.' (MTCR Annex 
Change, Category II: Item 3.A.1.a.1., Technical Note, Berlin 2012 
Plenary). There is a possible discrepancy between the actual thrust 
value of an engine and what it is certified to, which could lead to 
certain engines used on small aircraft being unintentionally caught by 
this control. This definition coincides with the way BIS currently 
interprets this control. However, this interpretation was not true of 
all MTCR Partners and the addition of the note makes the control more 
uniform. This clarification will have no impact on the number of 
license applications received by BIS.
    ECCN 9B105 is amended by replacing the term wind tunnels in the 
heading with the term `aerodynamic test facilities' (which, as noted in 
the new technical note described below, includes wind tunnels and shock 
tunnels), adding a note, and adding one technical note to the ``items'' 
paragraph in the List of Items Controlled section. (MTCR Annex Change, 
Category II: Item 15.B.2., Berlin 2012 Plenary). The new note is an 
exclusion note specifying that ECCN 9B105 does not control wind tunnels 
for speeds of Mach 3 or less with the dimension of the test cross 
section size equal to or less than 250 mm. This specific decontrol 
helps to clarify what is usable for rockets, missiles, or unmanned 
aerial vehicles capable of achieving a range equal to or greater than 
300 km and the subsystems of these items. This final rule also adds two 
new technical notes to assist the public in understanding and applying 
the revised ECCN 9B105. The first technical note clarifies that 
`aerodynamic test facilities' includes wind tunnels and shock tunnels 
for the study of airflow over objects. This final rule adds the second 
technical note to assist the public in understanding and applying the 
new exclusion note for 9B105 by clarifying that `test cross section 
size' means the diameter of the circle, or the side of the square, or 
the longest side of the rectangle, or the major axis of the ellipse at 
the largest test cross section location. In addition, this second new 
technical note clarifies that the `test cross section' is the section 
perpendicular to the flow direction.
    ECCN 9D004 is amended by revising the MT control(s) paragraph in 
the License Requirements section to indicate the MT control does not 
apply to this entry. This change is made to more closely align the 
scope of this MT control with the MTCR Annex. (No MTCR Annex reference 
is applicable to all of the software described in 9D004; CCL Conforming 
Change to MTCR Annex). This change will result in the removal of the MT 
control on 9D004 software, as the corresponding MTCR Annex entry 
related to this control is already controlled in ECCN 9D104. However, 
because the 9D004 software remains controlled for NS reasons, the 
impact on the number of license applications received per year will be 
minimal, resulting in a decrease of one or two per year. Lastly, to 
alert people regarding other related software controls, 9D004 is 
amended by revising the ``related controls'' paragraph in the List of 
Items Controlled section to add a reference to 9D104.
    ECCN 9E101 is amended by revising the heading and the ``related 
controls'' paragraph in the List of Items Controlled section to add a 
reference to ECCN 9A103. (MTCR Annex Change, Category II: Item 3.E.1., 
Paris 2011 RPOC). This final rule makes this change because the MTCR 
Annex was updated to include technology for liquid propellant tanks 
specially designed for propellants specified by 4.C. in the Annex or 
used in Category I rocket systems. These commodities and the related 
technology are ``subject to the ITAR,'' and the commodities are 
referenced on the CCL under 9A103. This change will have no impact on 
the number of license applications received by BIS because ECCNs 9E101 
and 9A103 are both ``subject to the ITAR,'' so the change is limited to 
updating the scope of an ECCN cross reference between two ECCNs that 
are ``subject to the ITAR.'' The heading has also been changed to 
reflect that the MT control only applies to 9A012 commodities that are 
themselves controlled for MT reasons. This change is made to more 
closely align the scope of this MT control with the MTCR Annex. 
(Category II: Item 19.A.2., CCL Conforming Change to MTCR Annex). This 
clarification will have no impact on the number of license applications 
received by BIS.

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 en route aboard a 
carrier to a port of export or reexport, on July 16, 2013, 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 15, 2013. Any such 
items not actually exported or reexported before midnight, on August 
15, 2013, require a license in accordance with this rule.
    Although the Export Administration Act 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, 2012, 77 FR 49699 (August 16, 2012), has continued the EAR 
in effect under the International Emergency Economic Powers Act. BIS 
continues to carry out the provisions of the Export Administration Act, 
as appropriate and to the extent permitted by law, pursuant to 
Executive Order 13222.

Regulatory 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.
    2. 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 OMB 
control number. This rule affects the following approved collection: 
Simplified Network Application Processing System (control number 0694-
0088), which includes, among other things, license applications and 
carries a burden estimate of 58 minutes for a manual or electronic 
submission. Send comments regarding these burden estimates or any other 
aspect of these collections of information, including suggestions for 
reducing the burden, to OMB Desk Officer, New Executive Office 
Building, Washington, DC 20503; and to Jasmeet Seehra, OMB Desk 
Officer, by email at Jasmeet_K._Seehra@omb.eop.gov or by fax to (202) 
395-7285; and to the Office of Administration, Bureau of Industry and 
Security, Department of Commerce, 14th and Pennsylvania Avenue NW., 
Room 6622, Washington, DC 20230.

[[Page 42434]]

    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)). Immediate 
implementation of these amendments fulfills the United States' 
international obligations to the MTCR. The MTCR contributes to 
international security and regional stability by promoting greater 
responsibility in transfers of missile technology items, thus 
preventing destabilizing accumulations of such items. The MTCR consists 
of 34 member countries that act on a consensus basis and the changes 
set forth in this rule implement agreements reached by MTCR member 
countries at the October 2012 Plenary in Berlin, Germany and at the 
MTCR Reinforced Point of Contact (RPOC) meeting in Paris, France in 
December 2011. Since the United States is a significant exporter of the 
items in this rule, implementation of this provision is necessary for 
the MTCR to achieve its purpose. Moreover, it is in the public's 
interest to waive the notice and comment requirements, as any delay in 
implementing this rule will disrupt the movement of affected items 
globally because of disharmony between export control measures 
implemented by MTCR members, resulting in tension between member 
countries. Export controls work best when all countries implement the 
same export controls in a timely manner. If this rulemaking were 
delayed to allow for notice and comment and a 30 day delay in 
effectiveness, it would prevent the United States from fulfilling its 
commitment to the MTCR in a timely manner, would injure the credibility 
of the United States in this and other multilateral regimes, and may 
impair the international communities' ability to effectively control 
the export of certain potentially national- and international-security-
threatening materials.
    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

15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Part 772

    Exports.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.
    Accordingly, parts 740, 772 and 774 of the Export Administration 
Regulations (15 CFR parts 730-774) are amended as follows:

PART 740--[AMENDED]

0
1. The authority citation for 15 CFR part 740 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
22 U.S.C. 7201 et seq.; 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, 2012, 77 FR 49699 (August 16, 2012).

0
2. Section 740.20 is amended:
0
a. By redesignating paragraphs (b)(2)(vii) through (b)(2)(ix) as 
paragraphs (b)(2)(viii) through (b)(2)(x); and
0
b. By adding paragraph (b)(2)(vii) to read as follows:


Sec.  740.20  License Exception Strategic Trade Authorization (STA).

* * * * *
    (b) * * *
    (2) * * *
    (vii) Commerce Control List Category 7 limitation on use of License 
Exception STA. License Exception STA may not be used for 7E004 
``technology,'' except for ``technology'' controlled under 7E004.a.7.
* * * * *

PART 772--[AMENDED]

0
3. The authority citation for 15 CFR part 772 continues to read as 
follows:

    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 
15, 2012, 77 FR 49699 (August 16, 2012).

0
4. Section 772.1 is amended by revising Technical Notes b of the 
``payload'' definition as set forth below:


Sec.  772.1  Definitions of terms as used in the Export Administration 
Regulations (EAR).

* * * * *

Payload. * * *


TECHNICAL NOTES:
    a. * * *
    b. Space Launch Vehicles--``Payload'' includes:
    1. Spacecraft (single or multiple), including satellites;
    2. Spacecraft-to-launch vehicle adapters including, if applicable, 
apogee/perigee kick motors or similar maneuvering systems;
* * * * *

PART 774--[AMENDED]

0
5. 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); 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; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 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, 2012, 77 FR 49699 (August 16, 2012).

0
6. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 1--Special Materials and Related Equipment, Chemicals, 
``Microorganisms'' and ``Toxins,'' Export Control Classification Number 
(ECCN) 1C011 is amended:
0
a. By revising the heading; and
0
b. By revising the ``MT'' paragraph in the License Requirements section 
to read as follows:

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

* * * * *
1C011 Metals and compounds, other than those specified in 1C111, as 
follows (see List of Items Controlled).

License Requirements

Reason for Control: * * *

 
                Control(s)                          Country chart
 
 
                                * * * * *
MT applies to 1C011.a and .b for items      MT Column 1.
 that meet or exceed the parameters in
 1C111.
 
                                * * * * *
 

* * * * *

0
7. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 1--Special Materials and Related Equipment, Chemicals, 
``Microorganisms'' and ``Toxins,'' Export Control Classification Number 
(ECCN) 1C111 is amended:
0
a. By revising ``items'' paragraphs a.1, introductory text of paragraph 
a.2, paragraph a.2.a.2 and paragraph a.2.a.3 in the List of Items 
Controlled section;

[[Page 42435]]

0
b. By removing ``items'' paragraph a.2.a.4 in the List of Items 
Controlled section;
0
c. By adding ``items'' paragraph a.2.b in the List of Items Controlled 
section; and
0
d. By adding a note to at the end of the ``items'' paragraph in the 
List of Items Controlled section after ``items'' paragraph c.5 to read 
as follows:

1C111 Propellants and constituent chemicals for propellants, other 
than those specified in 1C011, as follows (see List of Items 
Controlled).
* * * * *

List of Items Controlled

* * * * *
Items:
* * * * *
    a.1. Spherical or spheroidal aluminum powder in particle of size 
of less than 200 x 10-\6\ m (200 [mu]m) and with an 
aluminum content of 97% by weight or more, if at least 10% of the 
total weight is made up of particles of less than 63 [mu]m, 
according to ISO 2591:1988 or national equivalents.

    Technical Note: * * *

    a.2. Metal powders and alloys where at least 90% of the total 
particles by particle volume or weight are made up of particles of 
less than 60 [micro]m (determined by measurement techniques such as 
using a sieve, laser diffraction or optical scanning), whether 
spherical, atomized, spheroidal, flaked or ground, as follows:
* * * * *
    a.2.a.2. Beryllium; or
    a.2.a.3. Magnesium.
    a.2.b Boron or boron alloys with a boron content of 85% or more 
by weight.

    Technical Note: * * *
* * * * *

    Note:  In a multimodal particle distribution (e.g., mixtures of 
different grain sizes) in which one or more modes are controlled, 
the entire powder mixture is controlled.

0
8. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 1--Special Materials and Related Equipment, Chemicals, 
``Microorganisms'' and ``Toxins,'' Export Control Classification Number 
(ECCN) 1C116 is amended:
0
a. By revising the heading;
0
b. By revising the ``items'' paragraph in the List of Items Controlled 
section; and
0
c. By adding a new ``technical note'' to the `items'' paragraph in the 
List of Items Controlled section to read as follows:

1C116 Maraging steels having both of the following (see List of 
Items Controlled).
* * * * *

List of Items Controlled

* * * * *
Items:
    a. Having an ultimate tensile strength, measured at 20[deg]C, 
equal to or greater than:
    a.1. 0.9 GPa in the solution annealed stage; or
    a.2. 1.5 GPa in the precipitation hardened stage; and
    b. Any of the following forms:
    b.1 Sheet, plate or tubing with a wall or plate thickness equal 
to or less than 5.0 mm;

or

    b.2 Tubular forms with a wall thickness equal to or less than 50 
mm and having an inner diameter equal to or greater than 270 mm.

    Technical Note:

    Maraging steels are iron alloys that are generally:
    a. Characterized by high nickel, very low carbon content and use 
substitutional elements or precipitates to produce strengthening and 
age-hardening of the alloy; and
    b. Subjected to heat treatment cycles to facilitate the 
martensitic transformation process (solution annealed stage) and 
subsequently age hardened (precipitation hardened stage).

0
9. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 7--Navigation and Avionics, Export Control Classification 
Number (ECCN) 7E004 is amended:
0
a. By revising the ``MT'' paragraph in the License Requirements 
section;
0
b. By adding a License Exception STA paragraph at the end of the 
License Exceptions section; and
0
c. By revising the ``related controls'' paragraph in the List of Items 
Controlled section, to ready as follows.

7E004 Other ``technology'' as follows (see List of Items 
Controlled).

License Requirements

Reason for Control: * * *

 
                Control(s)                          Country chart
 
 
                                * * * * *
MT applies to ``technology'' for equipment  MT Column 1.
 or systems controlled for MT reasons.
 
                                * * * * *
 

License Exceptions

* * * * *
STA: (1) Paragraph (c)(1) of License Exception STA (Sec.  
740.20(c)(1) of the EAR) may not be used for 7E004, except for 
7E004.a.7. (2) Paragraph (c)(2) of License Exception STA (Sec.  
740.20(c)(2) of the EAR) may not be used for 7E004, except for 
7E004.a.7.

List of Items Controlled

* * * * *
Related Controls: (1) See 0D521 No. 2 (``source code'' for the 
``development'' of fly-by-wire control systems), 0E521 No. 6 (for 
``technology'' for the ``development'' of ``software'' controlled by 
0D521 No. 2). (2) See also 7E001, 7E002, 7E101, and 7E994. (3) In 
addition to the Related Controls in 7E001, 7E002, and 7E101 that 
include MT controls, also see the MT controls in 7E104 for design 
``technology'' for the integration of the flight control, guidance, 
and propulsion data into a flight management system, designed or 
modified for rockets or missiles capable of achieving a ``range'' 
equal to or greater than 300 km, for optimization of rocket system 
trajectory; and also see 9E101 for design ``technology'' for 
integration of air vehicle fuselage, propulsion system and lifting 
control surfaces, designed or modified for unmanned aerial vehicles 
capable of achieving a ``range'' equal to or greater than 300 km, to 
optimize aerodynamic performance throughout the flight regime of an 
unmanned aerial vehicle.
* * * * *


0
10. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 9--Aerospace and Propulsion, Export Control Classification 
Number (ECCN) 9A101 is amended:
0
a. By revising the ``related definitions'' paragraph in the List of 
Items Controlled section; and
0
b. By adding single quotes around the phrase `maximum thrust value' in 
``items'' paragraph a.1 in the List of Items Controlled section to read 
as follows:

9A101 Turbojet and turbofan engines, other than those controlled by 
9A001, as follows (see List of Items Controlled).
* * * * *

List of Items Controlled

* * * * *
Related Definitions: `Maximum thrust value' in 9A101.a.1 is the 
manufacturer's demonstrated maximum thrust for the engine type un-
installed. The civil type certified thrust value will be equal to or 
less than the manufacturer's demonstrated maximum thrust for the 
engine type.
* * * * *


0
11. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 9--Aerospace and Propulsion, Export Control Classification 
Number (ECCN) 9B105 is amended:
0
a. By revising the heading; and
0
b. By adding a new ``note'' and two new ``technical notes'' to the end 
of the `items'' paragraph in the List of Items Controlled section to 
read as follows:

9B105 `Aerodynamic test facilities' for speeds of Mach 0.9 or more, 
usable for rockets, missiles, or unmanned aerial vehicles capable of 
achieving a ``range'' equal to or greater than 300 km and their 
subsystems.
* * * * *

List of Items Controlled

* * * * *

[[Page 42436]]

Items: * * *

    Note: 9B105 does not control wind tunnels for speeds of Mach 3 
or less with the dimension of the `test cross section size' equal to 
or less than 250 mm.

    Technical Notes:

    1. `Aerodynamic test facilities' includes wind tunnels and shock 
tunnels for the study of airflow over objects.
    2. `Test cross section size' means the diameter of the circle, 
or the side of the square, or the longest side of the rectangle, or 
the major axis of the ellipse at the largest `test cross section' 
location. `Test cross section' is the section perpendicular to the 
flow direction.


0
12. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 9--Aerospace and Propulsion, Export Control Classification 
Number (ECCN) 9D004 is amended:
0
a. By removing the ``MT'' paragraph in the License Requirements 
section; and
0
b. By revising the ``related controls'' paragraph in the List of Items 
Controlled section to read as follows:

9D004 Other ``software'' as follows (see List of Items Controlled).
* * * * *

List of Items Controlled

* * * * *
Related Controls: See also 9D104.
* * * * *


0
13. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 9--Aerospace and Propulsion, Export Control Classification 
Number (ECCN) 9E101 is amended:
0
a. By revising the heading; and
0
b. By revising the ``related controls'' paragraph in the List of Items 
Controlled section to read as follows:

9E101 ``Technology'' according to the General Technology Note for 
the ``development,'' ``production,'' or ``use'' of commodities or 
software controlled by 9A012 (for MT controlled commodities only), 
9A101, 9A103 to 9A111, 9A115 to 9A119, 9C110, 9D101, 9D103, 9D104 or 
9D105.
* * * * *

List of Items Controlled

* * * * *
Related Controls: ``Technology'' controlled by 9E101 for items in 
9A101.b, 9A103 to 9A111, 9A115 to 9A119, 9D103, and 9D105 is 
``subject to the ITAR'' (see 22 CFR parts 120 through 130).
* * * * *

Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2013-16954 Filed 7-15-13; 8:45 am]
BILLING CODE 3510-33-P