Revisions to the Export Administration Regulations Based on the 2015 Missile Technology Control Regime Plenary Agreements, 19026-19032 [2016-07601]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 742, 750 and 774
[Docket No. 160204079–6079–01]
RIN 0694–AG77
Revisions to the Export Administration
Regulations Based on the 2015 Missile
Technology Control Regime Plenary
Agreements
Bureau of Industry and
Security, Commerce.
ACTION: Final rule.
AGENCY:
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 2015
Plenary in Rotterdam, Netherlands, and
the April 2015 Technical Experts
Meeting (TEM) in Bern, Switzerland.
This final rule makes conforming
changes to correlate the Commerce
Control List (CCL) (Supplement No. 1 to
Part 774 of the EAR) and other EAR
provisions with the current MTCR
Annex. This final rule revises six Export
Control Classification Numbers (ECCNs)
to implement the changes that were
agreed to at the meetings and to better
align the MT controls on the CCL with
the MTCR Annex. In addition, this final
rule makes a change to MT licensing
policy to be consistent with the MTCR
Annex General Minimum Software Note
and the MTCR Annex General
Technology Note that specify that a
license for MT controlled items should
also authorize certain minimum
‘‘software’’ and ‘‘technology.’’ This final
rule also adds a new paragraph to the
section of the EAR that specifies which
changes to a license are considered
‘‘non-material.’’ This amendment will
facilitate this rule’s revised MT
licensing policy, which will apply to all
licenses for MT controlled items, except
when excluded by a license condition.
DATES: This rule is effective April 4,
2016.
SUMMARY:
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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
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arrangement among 34 nations,
including most of the world’s suppliers
of advanced 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 1993, the MTCR’s original focus on
missiles for nuclear weapons delivery
was expanded to include 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 address 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
restrict the export of items contained in
the Regime’s Annex. The Regime’s
Guidelines are implemented through the
national export control laws, regulations
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 2015 Plenary in
Rotterdam, Netherlands, and changes
resulting from the April 2015 Technical
Experts Meeting (TEM) in Bern,
Switzerland.
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) and other EAR provisions with the
current MTCR Annex. These
conforming changes are made to better
align the MT controls on the CCL and
other parts of the EAR with the MTCR
Annex. In the explanation below for the
revisions made in this rule, BIS
identifies these changes as follows:
‘‘Rotterdam 2015 Plenary,’’ ‘‘Bern 2015
TEM,’’ and ‘‘Conforming Change to
MTCR Annex’’ to assist the public in
understanding the origin of each change
included in this final rule.
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In § 742.5 (Missile technology), this
final rule adds a new paragraph (b)(3),
and redesignates paragraphs (b)(3) and
(b)(4), as paragraphs (b)(4) and (b)(5).
This paragraph specifies that BIS
licenses for MT controlled items also
authorize the minimum ‘‘software’’ and
‘‘technology’’ for MT controlled items
authorized under the same license,
unless such minimum ‘‘software’’ and
‘‘technology’’ are specifically excluded
by BIS on the license. This final rule
also amends § 750.7(c)(1), which
identifies ‘‘non-material changes [to a
license that] do not require submission
of a ‘Replacement’ license or any other
notification to BIS.’’ BIS has determined
that a license applicant who does not
seek a license for minimum ‘‘software’’
or ‘‘technology’’ for an MT controlled
item need not seek a ‘‘Replacement’’
license if the applicant subsequently
wishes to export such software or
technology under the authority of the
previously issued license. Such a use of
the license would amount to a nonmaterial change because the basic
purpose of the license would be
substantially undermined if the exporter
could not promptly provide minimum
necessary software or technology for the
previously licensed MT item, an
outcome that would be especially
problematic in view of the 2015 regime
changes referred to above. Moreover, in
many instances, such exports of
minimum necessary software and
technology may already be made
pursuant to License Exception TSU, set
forth at § 740.13(a) and (c) (referring to
minimum necessary operation software
and technology), and notwithstanding
the general prohibition against the use
of License Exceptions for MT controlled
items in § 740.2(a)(5)(i), which excludes
a substantial number of MT items from
the general prohibition under specified
circumstances. Because BIS has
previously determined that many such
exports can be made pursuant to a
License Exception, it stands to reason
that the substantially similar MT
‘‘minimum necessary’’ software and
technology exports at issue in this rule
should be eligible for ‘‘non-material’’
treatment under § 750.7(c)(1).
Accordingly, in this rule BIS establishes
a new paragraph (c)(1)(x) to § 750.7 that
applies to all MT licenses, except when
a condition is placed on the license that
excludes such minimum ‘‘software’’ and
‘‘technology.’’ These changes are also
consistent with the boilerplate text on
BIS licenses, because the § 750.7(c)(1)(x)
revision identifies the export, reexport
or transfer (in-country) of minimum
necessary MT controlled software and
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technology as a non-material change to
a license.
BIS makes this change to MT
licensing policy to be consistent with
the MTCR Annex General Minimum
Software Note and the MTCR Annex
General Technology Note that specify
that a license for MT controlled items
should also authorize certain minimum
‘‘software’’ and ‘‘technology,’’ which is
being implemented by adding paragraph
(c)(1)(x) to § 750.7 (which allows
licensees to make such exports,
reexports and transfers (in-country)
pursuant to licenses for MT items) and
paragraph (b)(3) to § 742.5 (which
specifies this MT licensing policy) of
the EAR. (MTCR Annex Change,
General Minimum Software Note,
Rotterdam 2015 Plenary; and MTCR
Annex, General Technology Note,
Conforming Change to MTCR Annex).
The MTCR General Minimum Software
Note, MTCR Annex General Technology
Note, and the provisions this final rule
adds to § 742.5 are consistent with the
General Software Note and General
Technology Note in Supplement No. 2
to part 774 and License Exception TSU
under § 740.13, paragraphs (a) and (c).
Note, however, that the implementation
of these provisions is being done
through the MT licensing policy, and
the addition of paragraph (c)(1)(x) to
§ 750.7 described below, instead of
through the use of a license exception.
BIS is presumptively including such
minimum ‘‘software’’ and ‘‘technology’’
as part of the authorized scope for each
license that includes MT controlled
items. Therefore, applicants are not
required to identify or provide any
support documentation for such
minimum ‘‘software’’ and ‘‘technology’’
on a license application for MT
controlled items because such minimum
‘‘software’’ and ‘‘technology’’ is
authorized within the scope of the
license, pursuant to § 750.7(c)(1)(x),
absent a license condition to the
contrary. Applicants will be informed
when such minimum ‘‘software’’ and/or
‘‘technology’’ in § 750.7(c)(1)(x) is
excluded from the license by a BIS
condition on the license, which will
state the following: ‘‘This license does
not authorize the export, reexport or
transfer (in-country) of the minimum
‘‘software’’ and/or ‘‘technology’’
specified in paragraph (b)(3) of § 742.5.’’
Absent this condition on the license for
MT controlled items, the licensee may
assume, consistent with § 750.7(c)(1)(x)
and the licensing policy in § 742.5, that
the approved license also authorizes the
export (or reexport, or transfer (incountry) as applicable) to the same
ultimate consignee(s) and end user(s)
specified on the license of the minimum
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‘‘software,’’ excluding source code,
controlled for MT reasons that is
required for the installation, operation,
maintenance or repair of the item and
the ‘‘technology’’ required for the
installation, operation, maintenance, or
repair of the item in order to ensure the
item’s safe operation as originally
intended. It is important to note that
this licensing policy in paragraph (b)(3)
of § 742.5 is only available for licensed
exports (or reexports, or transfers (incountry)). For example, if an exporter
wishes to export such minimum
‘‘software’’ and ‘‘technology’’ for a
machine tool controlled for MT reasons,
but there is not a license in place
authorizing the export of the machine
tool, then the export of such minimum
‘‘software’’ and ‘‘technology’’ would
require a separate authorization under
the EAR. This final rule adds a new
Note to paragraph (b)(3), as described
below, to make this clear.
This final rule also specifies in
§ 742.5, paragraph (b)(3) that a license
for MT controlled items authorizes
pursuant to § 750.7(c)(1)(x) the later
export (or reexport, or transfer (incountry) as applicable) of ‘‘software’’
controlled for MT reasons intended to
correct defects (bug fixes) in a
previously legally exported item under
a BIS license to the same ultimate
consignee(s) and end user(s) specified
on the license, provided that the
capability and/or performance of the
item are not otherwise enhanced and
such ‘‘software’’ is not excluded from
the license by a BIS condition on the
license.
Lastly, for the changes to § 742.5, this
final rule adds a Note to paragraph (b)(3)
to clarify that for the limited number of
ECCNs that are identified in § 740.2,
paragraph (a)(5), License Exception TSU
is available, and therefore exporters do
not need to apply for a license from BIS
for such minimum ‘‘software’’ or
‘‘technology.’’ License Exception TSU is
available provided such minimum
‘‘software’’ or ‘‘technology’’ is for an end
use specified in that paragraph and
meets the requirements of License
Exception TSU and is not otherwise
restricted under § 740.2 of the EAR. This
Note to paragraph (b)(3) also clarifies
that the licensing policy in paragraph
(b)(3) is only available for licensed
exports (or reexports, or transfers (incountry)), as noted above in the example
for what minimum ‘‘software’’ and
‘‘technology’’ would require a separate
authorization under the EAR. BIS took
into account that certain minimum
‘‘software’’ and ‘‘technology’’ was
already eligible for License Exception
TSU when deciding to add paragraph
(b)(3) to § 742.5 for the MT licensing
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policy and paragraph (c)(1)(x) to § 750.7
to allow for such changes to a license for
MT items.
In § 750.7(c) (Changes to the license),
this rule adds a new paragraph (c)(1)(x),
as referenced above in the description of
the changes this final rule makes to
§ 742.5. This paragraph (c)(1)(x)
specifies that the export, reexport or
transfer (in-country) of missile
technology (MT) controlled minimum
‘‘software’’ and/or ‘‘technology’’
permitted pursuant to the missile
technology licensing policy in
§ 742.5(b)(3) does not require a new
license. This final rule also includes a
parenthetical phrase in § 750.7(c)(1)(x)
to cross reference § 742.5(b)(3)(i) to
define the scope of eligible minimum
‘‘software’’ and ‘‘technology’’ and other
limitations for licenses for MT
controlled items.
Also in § 750.7, this final rule adds
two notes to paragraph (c)(1)(x). The
new Note 1 provides context for why
BIS is implementing the MT licensing
policy pursuant to § 750.7(c)(1)(x). Note
1 explains that the MT licensing policy
is being implemented pursuant to
paragraph (c)(1)(x) because it applies to
all MT licenses. This new Note 1 also
explains that this MT licensing policy
does not apply when BIS places a
condition on the specific license(s)
which excludes the use of paragraph
(c)(1)(x). This final rule also adds a Note
2 to paragraph (c)(1)(x) to provide
guidance on the relationship between
License Exception TSU and
§ 750.7(c)(1)(x), as well as § 742.5(b)(3).
Note 2 is the same as the Note to
paragraph (b)(3) to § 742.5, described
above in this final rule, except for minor
changes to reflect that the note is in
§ 750.7.
In addition, this final rule amends the
Commerce Control List (CCL) to reflect
changes to the MTCR Annex.
Specifically, the following six ECCNs
are affected by the changes set forth in
this final rule:
ECCN 1B101. This final rule amends
ECCN 1B101 by revising paragraph a
and the introductory text of paragraph b
in the List of Items Controlled section.
(MTCR Annex Change, Category II: Item
6.B.1.a. and b., Bern 2015 TEM).
Specifically, this final rule amends
paragraph a to revise the term ‘fiberplacement machines’ to add the term
‘‘/tow’’ after the term ‘‘fiber’’ to clarify
that the scope of the control parameter
extends to placement machines
regardless of whether they are named
fiber-placement machines or towplacement machines. This final rule
revises the term ‘‘fiber-placement
machines’’ to ‘‘fiber/tow-placement
machines’’ in order to clarify that both
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these similar machines (two types of
placement machines) are classified
under this control parameter, regardless
of the naming convention. This final
rule revises paragraph b to add single
quotation marks around the term ‘tapelaying machines’ to indicate that this
term is defined for purposes of ECCN
1B101. This final rule also revises
paragraph b to remove the phrase ‘‘and
sheets,’’ because it is no longer needed
as part of the control parameter because
the definition of tape now encompasses
sheets. Lastly, this final rule adds four
new Technical Notes to paragraphs a
and b. The addition of these four
Technical Notes provides a clear
technical definition for ‘fiber/towplacement machines’ and ‘tape-laying
machines’ under new Technical Note 1,
which is based on the minimum width
of material that these machines are
capable of laying (as specified further in
the new Technical Notes 3 and 4 this
final rule adds to ECCN 1B101). This
final rule also adds a Technical Note 2
to provide an ECCN-specific definition
of ‘filament band,’ which is also used as
part of the definition of ‘fiber/towplacement machines’ and ‘tape-laying
machines.’ The purpose of this change
to ECCN 1B101 is to more clearly define
and differentiate between fiber/towplacement machines and tape-laying
machines. The only increase in license
applications will be due to the
clarification that tow-placement
machines are definitively controlled by
the MTCR.
ECCN 1C111. This final rule amends
ECCN 1C111 by revising paragraphs b.4,
b.9, d.9, and d.12 in the List of Items
Controlled section to add CAS
(Chemical Abstract Service) Numbers.
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
these ‘‘items’’ paragraphs of 1C111.
This final rule revises paragraph b.4
to add the CAS Number (CAS 25265–
19–4/CAS 68891–50–9) after the
material ‘‘polybutadiene acrylic acid
acrylonitrile (PBAN).’’ (MTCR Annex
Change, Category II: Item 4.C.5.e.,
Rotterdam 2015 Plenary). This change is
not expected to have any impact on the
number of license applications received
by BIS. This final rule revises paragraph
d.9 to add the CAS Number (CAS 6068–
98–0) after the material ‘‘ethylene
dihydrazine.’’ (MTCR Annex Change,
Category II: Item 4.C.2.b.8., Rotterdam
2015 Plenary). This change is not
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expected to have any impact on the
number of license applications received
by BIS.
This final rule revises paragraph d.12
to add the material ‘‘1,1Dimethylhydrazinium azide (CAS
227955–52–4),’’ which is an alternative
structure of the same chemical
(Dimethylhydrazinium azide) classified
under d.12. This final rule also revises
paragraph d.12 to add ‘‘1,2-’’ before the
material ‘‘Dimethylhydrazinium azide’’
and adds the CAS Number (CAS
299177–50–7) after the material ‘‘1,2Dimethylhydrazinium azide.’’ These
changes will aid exporters and licensing
officers by making it clear that both
structures of the chemical are caught
under paragraph d.12. (MTCR Annex
Change, Category II: Item 4.C.2.b.12.,
Rotterdam 2015 Plenary). These changes
are not expected to have any impact on
the number of license applications
received by BIS.
Lastly, for the changes to ECCN
1C111, this final rule revises paragraph
d.19, to add the material ‘‘1,1Diethylhydrazine nitrate (DEHN),’’
which is an alternative structure of the
same chemical (Diethylhydrazine nitrate
(DEHN)) classified under d.19. This
final rule also revises paragraph d.19 to
add ‘‘1,2-’’ before the material
‘‘Diethylhydrazine nitrate (DEHN)’’ and
adds the CAS Number (CAS 363453–
17–2) after the material ‘‘1,2Dimethylhydrazinium nitrate.’’ These
changes will aid exporters and licensing
officers and make clear that both
structures of the chemical are caught
under paragraph d.19. (MTCR Annex
Change, Category II: Item 4.C.2.b.19.,
Rotterdam 2015 Plenary). These changes
are not expected to have any impact on
the number of license applications
received by BIS.
ECCN 7A116. This final rule amends
ECCN 7A116 to revise the heading to
add the term ‘‘pneumatic’’ to the
beginning of the control parameter to
specify that pneumatic flight control
systems are also controlled under ECCN
7A116. In addition, this final rule adds
the phrase ‘‘and fly-by-light’’ to the
parenthetical phrase ‘‘(including fly-bywire systems)’’ to specify that the flight
control systems classified under this
ECCN include fly-by-wire and fly-bylight systems. (MTCR Annex Change,
Category II: Item 10.A.1., Rotterdam
2015 Plenary). These changes are not
expected to have any impact on the
number of license applications received
by BIS, because the commodities
described in ECCN 7A116 are ‘‘subject
to the ITAR.’’
ECCN 9A012. This final rule amends
ECCN 9A012 by adding paragraph b.5 in
the List of Items Controlled section to
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control pneumatic, hydraulic,
mechanical, electro-optical, or
electromechanical flight control systems
(including fly-by-wire and fly-by-light
systems) and attitude control equipment
designed or modified for UAVs or
drones controlled by ECCN 9A012, and
capable of delivering at least 500
kilograms payload to a range of at least
300 km. (MTCR Annex Change,
Category II: Item 10.A.1., Rotterdam
2015 Plenary). New paragraph b.5 is not
intended to control UAVs or drones
controlled by either USML paragraph
VIII(a) or ECCN 9A610.a. This change is
made to conform to the MTCR Annex
and to address that certain MTCR
Category I UAVs are on the CCL as a
result of Export Control Reform.
This final rule also makes two
conforming changes to ECCN 9A012 for
the addition of paragraph 9A012.b.5.
Specifically, this final rule is revising
the ‘‘MT’’ paragraph in the License
Requirements section to add an MT
control for the new paragraph
9A012.b.5. This final rule is revising the
Related Control Paragraph to include a
reference to also see ECCN 9A610,
because as noted above, similar types of
systems and equipment are controlled
under ECCN 9A610.w. This change is
expected to result in an increase of 1–
3 applications received annually by BIS.
ECCN 9A610. This final rule amends
ECCN 9A610 by revising paragraph w in
the List of Items Controlled section to
add the term ‘‘pneumatic’’ to the
beginning of the control parameter to
specify that pneumatic flight control
systems are also classified under this
paragraph w. In addition, this final rule
adds the phrase ‘‘and fly-by-light’’ to the
parenthetical phrase ‘‘(including fly-bywire systems)’’ to specify that the flight
control systems classified under this
paragraph w include fly-by-wire and flyby-light systems. (MTCR Annex Change,
Category II: Item 10.A.1., Rotterdam
2015 Plenary). These changes are a
slight expansion of the control
parameter by extending the control to
include pneumatic flight control
systems that are designed or modified
for ‘‘missiles.’’ This expansion of the
control parameter is needed because
state-of-the-art flight control systems
may use optical fibers to provide digital
communication between the flight
control components. This change is
expected to result in an increase of 1–
3 applications received annually by BIS.
ECCN 9B106. This final rule amends
ECCN 9B106 by revising paragraphs a.1
and the introductory text of paragraph
a.2 in the List of Items Controlled
section. The introductory text of
paragraph a previously referred to both
paragraphs a.1 and a.2 as flight
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conditions, which was not entirely
accurate. Therefore, this final rule
revises the introductory text of
paragraph a by removing the phrase
‘‘simulating all of the following flight
conditions’’ and adding in its place the
phrase ‘‘having all of the following
characteristics.’’ (MTCR Annex Change,
Category II: Item 15.B.4.a., Bern 2015
TEM). The altitude and temperature
requirements specified in paragraphs
a.1.a and a.2.a are flight conditions, but
the incorporation or ability to
incorporate a shaker unit or other
vibration test equipment specified in
paragraph a.2 is not strictly a flight
condition, but a means of simulating a
flight condition, so the introductory text
of paragraph a needed to be updated for
clarity. This clarification to the
introductory text of paragraph a reflects
the way this control has previously been
interpreted by BIS. This final rule
revises the control parameter in
paragraph a.1.b to clarify the
temperature range goes from below
¥50° C to above 125° C. The revision
to paragraph a.1.b does not change the
scope of control of 9B610 and this
revision will better reflect the control
text of the MTCR Annex. (MTCR Annex
Change, Category II: Item 15.B.4.a.1.b.,
Conforming Change to MTCR Annex).
Lastly, as a non-substantive
formatting change, this final rule revises
paragraph a.2 to move the comma inside
of the single quotation marks for the
term ‘bare table.’ These changes are not
expected to have any 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 enroute aboard a
carrier to a port of export or reexport, on
April 4, 2016, 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 May 4, 2016. Any
such items not actually exported or
reexported before midnight, on May 4,
2016, require a license in accordance
with this rule.
Export Administration Act
Although the Export Administration
Act expired on August 20, 2001, the
President, through Executive Order
13222 of August 17, 2001, 3 CFR, 2001
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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 7,
2015, 80 FR 48233 (August 11, 2015),
has continued the Export
Administration Regulations in effect
under the International Emergency
Economic Powers Act. BIS continues to
carry out the provisions of the Export
Administration Act, as appropriate and
to the extent permitted by law, pursuant
to Executive Order 13222, as amended
by Executive Order 13637.
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 final rule has been
designated a ‘‘significant regulatory
action,’’ although not economically
significant, under section 3(f) of
Executive Order 12866.
2. Notwithstanding any other
provision of law, no person may be
required to respond to or be subject to
a penalty for failure to comply with a
collection of information, subject to the
requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.) (PRA), unless that collection of
information displays a currently valid
Office of Management and Budget
(OMB) Control Number. This regulation
involves collections previously
approved by OMB under control
number 0694–0088, Simplified Network
Application Processing System, which
includes, among other things, license
applications and carries a burden
estimate of 43.8 minutes for a manual or
electronic submission. Total burden
hours associated with the PRA and
OMB control number 0694–0088 are
expected to increase slightly as a result
of this rule. The expected increase in
total burden hours is expected to be
minimal and to not exceed the existing
estimates for burden hours associated
with the PRA and OMB control number
0694–0088. You may send comments
regarding the collection of information
associated with this rule, including
suggestions for reducing the burden, to
Jasmeet K. Seehra, Office of
Management and Budget (OMB), by
email to Jasmeet_K._Seehra@
PO 00000
Frm 00009
Fmt 4700
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19029
omb.eop.gov, or by fax to (202) 395–
7285.
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
commitments to the MTCR. The MTCR
contributes to international peace and
security by promoting greater
responsibility in transfers of missile
technology items that could make a
contribution to delivery systems (other
than manned aircraft) for weapons of
mass destruction. 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 2015 Plenary in Rotterdam,
Netherlands and pursuant to the April
2015 Technical Experts Meeting in
Bern, Switzerland. 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 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. 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 internationalsecurity-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
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not applicable. Therefore, this
regulation is issued in final form.
List of Subjects
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 750
Administrative practice and
procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 774
Exports, Reporting and recordkeeping
requirements.
Accordingly, parts 742, 750 and 774
of the Export Administration
Regulations (15 CFR parts 730–774) are
amended as follows:
PART 742—[AMENDED]
1. The authority citation for 15 CFR
part 742 continues to read as follows:
■
Authority: 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.;
42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22
U.S.C. 7210; Sec. 1503, Pub. L. 108–11, 117
Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR,
1978 Comp., p. 179; E.O. 12851, 58 FR 33181,
3 CFR, 1993 Comp., p. 608; E.O. 12938, 59
FR 59099, 3 CFR, 1994 Comp., p. 950; E.O.
13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
Comp., p. 783; Presidential Determination
2003–23, 68 FR 26459, 3 CFR, 2004 Comp.,
p. 320; Notice of August 7, 2015, 80 FR 48233
(August 11, 2015); Notice of November 12,
2015, 80 FR 70667 (November 13, 2015).
2. Section 742.5 is amended:
a. By redesignating paragraphs (b)(3)
and (4) as paragraphs (b)(4) and (5),
respectively; and
■ b. By adding a new paragraph (b)(3) to
read as follows:
■
■
§ 742.5
Missile technology.
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*
*
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*
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(b) * * *
(3)(i) Consistent with the MTCR
Annex General Minimum Software
Note, MTCR Annex General Technology
Note and § 750.7(c)(1)(x) of the EAR, the
approval of any item controlled for MT
reasons on a BIS license also authorizes
the export, reexport, or transfer (incountry) to the same ultimate
consignee(s) and end user(s) specified
on the license of the minimum
‘‘software,’’ excluding source code,
controlled for MT reasons that is
required for the installation, operation,
maintenance or repair of the item and
the ‘‘technology’’ required for the
installation, operation, maintenance, or
repair of the item in order to ensure the
item’s safe operation as originally
intended. The approval of any item
controlled for MT reasons on a BIS
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license also authorizes the later export,
reexport, or transfer (in-country) of
‘‘software’’ controlled for MT reasons
intended to correct defects (bug fixes) in
a previously legally exported item under
a BIS license to the same ultimate
consignee(s) and end user(s) specified
on the license, provided that the
capability and/or performance of the
item are not otherwise enhanced. This
MT licensing policy is implemented
concurrent with § 750.7(c)(1)(x) because
it applies to all MT licenses, except
when a condition is placed on the
license which excludes the use of
§ 750.7(c)(1)(x), as described in
paragraph (b)(3)(ii) of this section.
(ii) Applicants are not required to
identify or provide any support
documentation for such minimum
‘‘software’’ or ‘‘technology’’ on a license
application for MT controlled items
because such minimum ‘‘software’’ or
‘‘technology’’ is authorized within the
scope of the license, consistent with
§ 750.7(c)(1)(x). Applicants will be
informed when such minimum
‘‘software’’ and/or ‘‘technology’’ in
§ 750.7(c)(1)(x) is excluded from the
license by a BIS condition on the
license, which will state the following:
‘‘This license does not authorize the
export, reexport or transfer (in-country)
of the minimum ‘‘software’’ and/or
‘‘technology’’ specified in paragraph
(c)(1)(x) of § 750.7 (See paragraph (b)(3)
of § 742.5).’’
§ 750.7
Note to paragraph (b)(3): License
Exception TSU under § 740.13 of the EAR is
available for the ECCNs controlled for MT
reasons specified in paragraph (a)(5) in
§ 740.2, provided the software or technology
is for an end use specified in that paragraph
and meets the requirements of License
Exception TSU. (See §§ 740.2(a)(5) and
740.13). The licensing policy in paragraph
(b)(3) is only available for licensed exports
(or reexports, or transfers (in-country)).
■
*
*
*
*
*
PART 750—[AMENDED]
Issuance of licenses.
*
*
*
*
*
(c) * * *
(1) * * *
(x) Export, reexport or transfer (incountry) of missile technology (MT)
controlled minimum necessary
‘‘software’’ and/or ‘‘technology’’
permitted pursuant to the missile
technology licensing policy in
§ 742.5(b)(3) of the EAR. (See
§ 742.5(b)(3)(i) for the scope of eligible
minimum ‘‘software’’ and/or
‘‘technology’’ and other limitations for
licenses for MT controlled items).
Note 1 to paragraph (c)(1)(x): This MT
licensing policy is implemented pursuant to
paragraph (c)(1)(x) of this section because it
applies to all MT licenses, except when a
condition is placed on the license which
excludes the use of paragraph (c)(1)(x) of this
section, as described in § 742.5(b)(3)(ii).
Note 2 to paragraph (c)(1)(x): License
Exception TSU under § 740.13 of the EAR is
available for the ECCNs controlled for MT
reasons specified in paragraph (a)(5) in
§ 740.2, provided the software or technology
is for an end use specified in that paragraph
and meets the requirements of License
Exception TSU. (See §§ 740.2(a)(5) and
740.13). The licensing policy in § 742.5(b)(3)
is only available for licensed exports (or
reexports, or transfers (in-country)).
*
*
*
*
*
PART 774—[AMENDED]
5. The authority citation for 15 CFR
part 774 continues to read as follows:
Authority: 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C.
7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u);
42 U.S.C. 2139a; 43 U.S.C. 1354; 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 7, 2015, 80 FR 48233 (August 11,
2015).
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)
1B101 is amended:
■ a. By revising ‘‘items’’ paragraphs a
and b in the List of Items Controlled
section; and
■ b. By adding Technical Notes for
paragraphs a and b at the end of the
‘‘items’’ paragraph b in the List of Items
Controlled section to read as follows:
■
3. The authority citation for 15 CFR
part 750 continues to read as follows:
■
Authority: 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; Sec 1503, Pub. L. 108–
11, 117 Stat. 559; E.O. 13026, 61 FR 58767,
3 CFR, 1996 Comp., p. 228; E.O. 13222, 66
FR 44025, 3 CFR, 2001 Comp., p. 783; E.O.
13637, 78 FR 16129, 3 CFR, 2013 Comp., p.
223; Presidential Determination 2003–23, 68
FR 26459, 3 CFR, 2004 Comp., p. 320; Notice
of August 7, 2015, 80 FR 48233 (August 11,
2015).
4. Section 750.7 is amended:
a. By removing the period at the end
of paragraph (c)(1)(ix) and adding in its
place ‘‘; or’’; and
■ b. By adding paragraph (c)(1)(x) to
read as follows:
■
■
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1B101 Equipment, other than that
controlled by 1B001, for the
‘‘production’’ of structural composites,
fibers, prepregs or preforms, usable for
rockets, missiles, or unmanned aerial
vehicles capable of achieving a ‘‘range’’
equal to or greater than 300 km and
their subsystems, as follows (see List of
Items Controlled); and ‘‘specially
designed’’ ‘‘parts,’’ ‘‘components’’ and
‘‘accessories’’ therefor.
*
*
*
*
a. By revising ‘‘items’’ paragraph b.4
in the List of Items Controlled section;
and
■ b. By revising ‘‘items’’ paragraphs d.9,
d.12 and d.19 in the List of Items
Controlled section to read as follows:
■
1C111 Propellants and constituent
chemicals for propellants, other than
those specified in 1C011, as follows (see
List of Items Controlled).
*
*
*
*
*
License Requirements
*
Reason for Control:
*
*
*
*
List of Items Controlled
*
Country Chart
(see sup No.
1 to part 738)
Control(s)
*
List of Items Controlled
*
*
*
*
*
Items:
a. Filament winding machines or
‘fiber/tow-placement machines,’ of
which the motions for positioning,
wrapping and winding fibers can be
coordinated and programmed in three or
more axes, designed to fabricate
composite structures or laminates from
fibrous or filamentary materials, and
coordinating and programming controls;
b. ‘Tape-laying machines’ of which
the motions for positioning and laying
tape can be coordinated and
programmed in two or more axes,
designed for the manufacture of
composite airframe and missile
structures;
Technical Notes for paragraphs a and b:
For the purposes of 1B101.a. and 1B101.b.,
the following definitions apply:
1. ‘Fiber/tow-placement machines’ and
‘tape-laying machines’ are machines that
perform similar processes that use computerguided heads to lay one or several ‘filament
bands’ onto a mold to create a part or a
structure. These machines have the ability to
cut and restart individual ‘filament band’
courses during the laying process.
2. A ‘filament band’ is a single continuous
width of fully or partially resin-impregnated
tape, tow, or fiber. Fully or partially resinimpregnated ‘filament bands’ include those
coated with dry powder that tacks upon
heating.
3. ‘Fiber/tow-placement machines’ have
the ability to place one or more ‘filament
bands’ having widths less than or equal to
25.4 mm. This refers to the minimum width
of material the machine can place, regardless
of the upper capability of the machine.
4. ‘Tape-laying machines’ have the ability
to place one or more ‘filament bands’ having
widths less than or equal to 304.8 mm, but
cannot place ‘filament bands’ with a width
equal to or less than 25.4 mm. This refers to
the minimum width of material the machine
can place, regardless of the upper capability
of the machine.
mstockstill on DSK4VPTVN1PROD with RULES
9A012 Non-military ‘‘Unmanned
Aerial Vehicles,’’ (‘‘UAVs’’), unmanned
‘‘airships’’, related equipment and
‘‘components’’, as follows (see List of
Items Controlled).
*
*
*
*
*
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:
■
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Items:
*
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b. * * *
*
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*
b.4. Polybutadiene acrylic acid
acrylonitrile (PBAN) (CAS 25265–19–4/
CAS 68891–50–9);
*
*
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*
d. * * *
*
*
*
*
*
d.9. Ethylene dihydrazine (CAS 6068–
98–0);
*
*
*
*
*
d.12. 1,1-Dimethylhydrazinium azide
(CAS 227955–52–4)/1,2Dimethylhydrazinium azide (CAS
299177–50–7);
*
*
*
*
*
d.19. 1,1-Diethylhydrazine nitrate
(DEHN)/1,2-Diethylhydrazine nitrate
(DEHN) (CAS 363453–17–2);
*
*
*
*
*
■ 8. In Supplement No. 1 to part 774
(the Commerce Control List), Category
7— Navigation and Avionics, Export
Control Classification Number (ECCN)
7A116 is amended by revising the
heading to read as follows:
7A116 Flight control systems
(pneumatic, hydraulic, mechanical,
electro-optical, or electro-mechanical
flight control systems (including fly-bywire and fly-by-light systems) and
attitude control equipment) designed or
modified for ‘‘missiles’’. (These items
are ‘‘subject to the ITAR’’. See 22 CFR
parts 120 through 130.)
9. In Supplement No. 1 to part 774
(the Commerce Control List), Category
9—Aerospace and Propulsion, Export
Control Classification Number (ECCN)
9A012 is amended:
■ a. By revising the ‘‘MT’’ paragraph in
the table in the License Requirements
section;
■ b. By revising the Related Controls
paragraph in the List of Items Controlled
section; and
■ c. By adding ‘‘items’’ paragraph b.5 in
the List of Items Controlled section to
read as follows:
■
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*
*
*
MT applies to non-military
Unmanned Air Vehicle
(UAVs) and Remotely Piloted Vehicles (RPVs) that
are capable of a maximum
range of at least 300 kilometers (km), regardless of
payload, and 9A012.b.5.
*
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*
*
*
*
*
*
*
MT Column 1.
*
*
*
List of Items Controlled
*
*
*
*
*
Related Controls: See the U.S.
Munitions List Category VIII (22 CFR
part 121). Also see ECCN 9A610 and
§ 744.3 of the EAR.
*
*
*
*
*
Items:
*
*
*
*
*
b. * * *
*
*
*
*
*
b.5. Pneumatic, hydraulic,
mechanical, electro-optical, or
electromechanical flight control systems
(including fly-by-wire and fly-by-light
systems) and attitude control equipment
designed or modified for UAVs or
drones controlled by ECCN 9A012., and
capable of delivering at least 500
kilograms payload to a range of at least
300 km.
*
*
*
*
*
■ 10. In Supplement No. 1 to part 774
(the Commerce Control List), Category
9—Aerospace and Propulsion, Export
Control Classification Number (ECCN)
9A610 is amended by revising ‘‘items’’
paragraph w in the List of Items
Controlled section to read as follows:
9A610 Military aircraft and related
commodities, other than those
enumerated in 9A991.a (see List of
Items Controlled).
*
*
*
*
*
List of Items Controlled
*
*
Items:
*
*
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w. Pneumatic, hydraulic, mechanical,
electro-optical, or electromechanical
flight control systems (including fly-bywire and fly-by-light systems) and
attitude control equipment designed or
modified for UAVs or drones controlled
by either USML paragraph VIII(a) or
ECCN 9A610.a., and capable of
delivering at least 500 kilograms
payload to a range of at least 300 km.
*
*
*
*
*
SOCIAL SECURITY ADMINISTRATION
11. In Supplement No. 1 to part 774
(the Commerce Control List), Category
9—Aerospace and Propulsion, Export
Control Classification Number (ECCN)
9B106 is amended:
■ a. By revising the introductory text of
‘‘items’’ paragraph a in the List of Items
Controlled section;
■ b. By revising ‘‘items’’ paragraph a.1
in the List of Items Controlled section;
and
■ c. By revising the introductory text of
items paragraph a.2 to read as follows:
ACTION:
■
9B106 Environmental chambers
usable for rockets, missiles, or
unmanned aerial vehicles capable of
achieving a ‘‘range’’ equal to or greater
than 300 km and their subsystems, as
follows (see List of Items Controlled).
*
*
*
*
*
List of Items Controlled
*
*
*
*
Items:
*
*
*
*
*
a. Environmental chambers having all
of the following characteristics:
a.1. Capable of simulating any of the
following flight conditions:
a.1.a. Altitude equal to or greater than
15,000 m; or
a.1.b. Temperature range from below
¥50 °C to above 125 °C; and
a.2. Incorporating, or designed or
modified to incorporate, a shaker unit or
other vibration test equipment to
produce vibration environments equal
to or greater than 10 g rms, measured
‘bare table,’ between 20 Hz and 2 kHz
while imparting forces equal to or
greater than 5 kN;
*
*
*
*
*
mstockstill on DSK4VPTVN1PROD with RULES
*
Dated: March 29, 2016.
Kevin J. Wolf,
Assistant Secretary for Export
Administration.
[FR Doc. 2016–07601 Filed 4–1–16; 8:45 am]
20 CFR Part 404
[Docket No. SSA–2015–0018]
RIN 0960–AH85
Extension of the Workers’
Compensation Offset From Age 65 to
Full Retirement Age—Achieving a
Better Life Experience (ABLE) Act
Social Security Administration.
Final rule.
AGENCY:
This final rule adopts, with
one additional change, the notice of
proposed rulemaking (NPRM) that we
published in the Federal Register on
January 4, 2016. This final rule revises
our rules by incorporating changes
made by the ABLE Act to section 224(a)
of the Social Security Act (Act). Under
this final rule, the age at which
disability insurance benefits (DIB) are
no longer subject to reduction (offset)
based on receipt of workers’
compensation or public disability
benefits (WC/PDB) changes from age 65
to the day the individual attains full
retirement age.
DATES: This final rule is effective April
4, 2016.
FOR FURTHER INFORMATION CONTACT:
Dean Dwight, Office of Income Security
Programs, Social Security
Administration, 6401 Security
Boulevard, Baltimore, MD 21235–6401,
(410) 966–7161. For information on
eligibility or filing for benefits, call our
national toll-free number, 1–800–772–
1213 or TTY 1–800–325–0778, or visit
our Internet site, Social Security Online,
at https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION: This final
rule adopts, with one additional change
discussed below, the NPRM that we
published in the Federal Register on
January 4, 2016.1
SUMMARY:
Background
We explained our reasons for
proposing the rule that we are now
adopting as a final rule in the preamble
to the NPRM (81 FR at 41), and we
incorporate that discussion here.
In addition to the changes we
proposed in the NPRM, we are making
one additional change to our rules. The
fourth sentence of current section
404.317 states, ‘‘Your monthly benefit
amount may be reduced if you receive
workers’ compensation or public
disability payments before you become
65 years old as described in § 404.408.’’
For consistency with the other changes
BILLING CODE 3510–33–P
1 81 FR 41 (2016) (https://www.gpo.gov/fdsys/
pkg/FR-2016-01-04/pdf/2015-33036.pdf).
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we are making to our rules, we are also
revising the reference to ‘‘before you
become 65 years old’’ in section 404.317
to ‘‘before you attain full retirement
age.’’
Public Comments
In the NPRM, we provided a 30-day
comment period, which ended on
February 3, 2016. We received one
comment. The comment came from a
member of the public. After carefully
considering the comment, we are
adopting our proposed rule (81 FR 41–
42) as a final rule.
Comment: The one comment we
received stated, ‘‘Not fair there are
plenty who have worked very hard to
retire perhaps when a certain group
progresses then reconsider changing the
policy.’’
Response: We did not adopt the
comment. The changes we are making
are mandated by statute. We have no
discretion to reconsider the policy in
the absence of a statutory change.
Regulatory Procedures
Good Cause for Effective Date
We find good cause for dispensing
with the 30-day delay in the effective
date of this final rule. 5 U.S.C. 553(d)(3).
For the reasons discussed above and in
the preamble to the NPRM (81 FR at 41),
we are making minor changes to our
current rules to incorporate changes
made by section 201 of the ABLE Act 2
to section 224(a) of the Act. The
provision in the ABLE Act applies to
any individual whose DIB payment is
offset for WC/PDB and who attains age
65 on or after December 19, 2015.3
Because the changes we are making in
this final rule only reflect a statutory
change that is already in effect, we find
that it is unnecessary to delay the
effective date of our final rule.
Executive Order 12866 as
Supplemented by Executive Order
13563
We consulted with the Office of
Management and Budget (OMB) and
determined that this final rule does not
meet the criteria for a significant
regulatory action under Executive Order
12866 as supplemented by Executive
Order 13563. Thus, OMB did not review
the final rule.
2 Public Law 113–295, Division B, § 201, 128 Stat.
4010, 4064.
3 Id., § 201(b). Section 201(b) specifies that the
amendment to section 224(a) of the Act ‘‘shall apply
with respect to any individual who attains 65 years
of age on or after the date that is 12 months after
the date of the enactment of this Act.’’ Congress
enacted the ABLE on December 19, 2014. Id.
Consequently, the statutory amendment applies to
an individual who attains age 65 on or after
December 19, 2015. Id.
E:\FR\FM\04APR1.SGM
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Agencies
[Federal Register Volume 81, Number 64 (Monday, April 4, 2016)]
[Rules and Regulations]
[Pages 19026-19032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07601]
[[Page 19026]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 742, 750 and 774
[Docket No. 160204079-6079-01]
RIN 0694-AG77
Revisions to the Export Administration Regulations Based on the
2015 Missile Technology Control Regime Plenary Agreements
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
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 2015 Plenary in Rotterdam,
Netherlands, and the April 2015 Technical Experts Meeting (TEM) in
Bern, Switzerland. This final rule makes conforming changes to
correlate the Commerce Control List (CCL) (Supplement No. 1 to Part 774
of the EAR) and other EAR provisions with the current MTCR Annex. This
final rule revises six Export Control Classification Numbers (ECCNs) to
implement the changes that were agreed to at the meetings and to better
align the MT controls on the CCL with the MTCR Annex. In addition, this
final rule makes a change to MT licensing policy to be consistent with
the MTCR Annex General Minimum Software Note and the MTCR Annex General
Technology Note that specify that a license for MT controlled items
should also authorize certain minimum ``software'' and ``technology.''
This final rule also adds a new paragraph to the section of the EAR
that specifies which changes to a license are considered ``non-
material.'' This amendment will facilitate this rule's revised MT
licensing policy, which will apply to all licenses for MT controlled
items, except when excluded by a license condition.
DATES: This rule is effective April 4, 2016.
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 suppliers
of advanced 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 1993, the MTCR's original focus on missiles for nuclear weapons
delivery was expanded to include 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
address 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 restrict the export of
items contained in the Regime's Annex. The Regime's Guidelines are
implemented through the national export control laws, regulations 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 2015
Plenary in Rotterdam, Netherlands, and changes resulting from the April
2015 Technical Experts Meeting (TEM) in Bern, Switzerland.
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) and other EAR provisions with
the current MTCR Annex. These conforming changes are made to better
align the MT controls on the CCL and other parts of the EAR with the
MTCR Annex. In the explanation below for the revisions made in this
rule, BIS identifies these changes as follows: ``Rotterdam 2015
Plenary,'' ``Bern 2015 TEM,'' and ``Conforming Change to MTCR Annex''
to assist the public in understanding the origin of each change
included in this final rule.
In Sec. 742.5 (Missile technology), this final rule adds a new
paragraph (b)(3), and redesignates paragraphs (b)(3) and (b)(4), as
paragraphs (b)(4) and (b)(5). This paragraph specifies that BIS
licenses for MT controlled items also authorize the minimum
``software'' and ``technology'' for MT controlled items authorized
under the same license, unless such minimum ``software'' and
``technology'' are specifically excluded by BIS on the license. This
final rule also amends Sec. 750.7(c)(1), which identifies ``non-
material changes [to a license that] do not require submission of a
`Replacement' license or any other notification to BIS.'' BIS has
determined that a license applicant who does not seek a license for
minimum ``software'' or ``technology'' for an MT controlled item need
not seek a ``Replacement'' license if the applicant subsequently wishes
to export such software or technology under the authority of the
previously issued license. Such a use of the license would amount to a
non-material change because the basic purpose of the license would be
substantially undermined if the exporter could not promptly provide
minimum necessary software or technology for the previously licensed MT
item, an outcome that would be especially problematic in view of the
2015 regime changes referred to above. Moreover, in many instances,
such exports of minimum necessary software and technology may already
be made pursuant to License Exception TSU, set forth at Sec. 740.13(a)
and (c) (referring to minimum necessary operation software and
technology), and notwithstanding the general prohibition against the
use of License Exceptions for MT controlled items in Sec.
740.2(a)(5)(i), which excludes a substantial number of MT items from
the general prohibition under specified circumstances. Because BIS has
previously determined that many such exports can be made pursuant to a
License Exception, it stands to reason that the substantially similar
MT ``minimum necessary'' software and technology exports at issue in
this rule should be eligible for ``non-material'' treatment under Sec.
750.7(c)(1). Accordingly, in this rule BIS establishes a new paragraph
(c)(1)(x) to Sec. 750.7 that applies to all MT licenses, except when a
condition is placed on the license that excludes such minimum
``software'' and ``technology.'' These changes are also consistent with
the boilerplate text on BIS licenses, because the Sec. 750.7(c)(1)(x)
revision identifies the export, reexport or transfer (in-country) of
minimum necessary MT controlled software and
[[Page 19027]]
technology as a non-material change to a license.
BIS makes this change to MT licensing policy to be consistent with
the MTCR Annex General Minimum Software Note and the MTCR Annex General
Technology Note that specify that a license for MT controlled items
should also authorize certain minimum ``software'' and ``technology,''
which is being implemented by adding paragraph (c)(1)(x) to Sec. 750.7
(which allows licensees to make such exports, reexports and transfers
(in-country) pursuant to licenses for MT items) and paragraph (b)(3) to
Sec. 742.5 (which specifies this MT licensing policy) of the EAR.
(MTCR Annex Change, General Minimum Software Note, Rotterdam 2015
Plenary; and MTCR Annex, General Technology Note, Conforming Change to
MTCR Annex). The MTCR General Minimum Software Note, MTCR Annex General
Technology Note, and the provisions this final rule adds to Sec. 742.5
are consistent with the General Software Note and General Technology
Note in Supplement No. 2 to part 774 and License Exception TSU under
Sec. 740.13, paragraphs (a) and (c). Note, however, that the
implementation of these provisions is being done through the MT
licensing policy, and the addition of paragraph (c)(1)(x) to Sec.
750.7 described below, instead of through the use of a license
exception.
BIS is presumptively including such minimum ``software'' and
``technology'' as part of the authorized scope for each license that
includes MT controlled items. Therefore, applicants are not required to
identify or provide any support documentation for such minimum
``software'' and ``technology'' on a license application for MT
controlled items because such minimum ``software'' and ``technology''
is authorized within the scope of the license, pursuant to Sec.
750.7(c)(1)(x), absent a license condition to the contrary. Applicants
will be informed when such minimum ``software'' and/or ``technology''
in Sec. 750.7(c)(1)(x) is excluded from the license by a BIS condition
on the license, which will state the following: ``This license does not
authorize the export, reexport or transfer (in-country) of the minimum
``software'' and/or ``technology'' specified in paragraph (b)(3) of
Sec. 742.5.'' Absent this condition on the license for MT controlled
items, the licensee may assume, consistent with Sec. 750.7(c)(1)(x)
and the licensing policy in Sec. 742.5, that the approved license also
authorizes the export (or reexport, or transfer (in-country) as
applicable) to the same ultimate consignee(s) and end user(s) specified
on the license of the minimum ``software,'' excluding source code,
controlled for MT reasons that is required for the installation,
operation, maintenance or repair of the item and the ``technology''
required for the installation, operation, maintenance, or repair of the
item in order to ensure the item's safe operation as originally
intended. It is important to note that this licensing policy in
paragraph (b)(3) of Sec. 742.5 is only available for licensed exports
(or reexports, or transfers (in-country)). For example, if an exporter
wishes to export such minimum ``software'' and ``technology'' for a
machine tool controlled for MT reasons, but there is not a license in
place authorizing the export of the machine tool, then the export of
such minimum ``software'' and ``technology'' would require a separate
authorization under the EAR. This final rule adds a new Note to
paragraph (b)(3), as described below, to make this clear.
This final rule also specifies in Sec. 742.5, paragraph (b)(3)
that a license for MT controlled items authorizes pursuant to Sec.
750.7(c)(1)(x) the later export (or reexport, or transfer (in-country)
as applicable) of ``software'' controlled for MT reasons intended to
correct defects (bug fixes) in a previously legally exported item under
a BIS license to the same ultimate consignee(s) and end user(s)
specified on the license, provided that the capability and/or
performance of the item are not otherwise enhanced and such
``software'' is not excluded from the license by a BIS condition on the
license.
Lastly, for the changes to Sec. 742.5, this final rule adds a Note
to paragraph (b)(3) to clarify that for the limited number of ECCNs
that are identified in Sec. 740.2, paragraph (a)(5), License Exception
TSU is available, and therefore exporters do not need to apply for a
license from BIS for such minimum ``software'' or ``technology.''
License Exception TSU is available provided such minimum ``software''
or ``technology'' is for an end use specified in that paragraph and
meets the requirements of License Exception TSU and is not otherwise
restricted under Sec. 740.2 of the EAR. This Note to paragraph (b)(3)
also clarifies that the licensing policy in paragraph (b)(3) is only
available for licensed exports (or reexports, or transfers (in-
country)), as noted above in the example for what minimum ``software''
and ``technology'' would require a separate authorization under the
EAR. BIS took into account that certain minimum ``software'' and
``technology'' was already eligible for License Exception TSU when
deciding to add paragraph (b)(3) to Sec. 742.5 for the MT licensing
policy and paragraph (c)(1)(x) to Sec. 750.7 to allow for such changes
to a license for MT items.
In Sec. 750.7(c) (Changes to the license), this rule adds a new
paragraph (c)(1)(x), as referenced above in the description of the
changes this final rule makes to Sec. 742.5. This paragraph (c)(1)(x)
specifies that the export, reexport or transfer (in-country) of missile
technology (MT) controlled minimum ``software'' and/or ``technology''
permitted pursuant to the missile technology licensing policy in Sec.
742.5(b)(3) does not require a new license. This final rule also
includes a parenthetical phrase in Sec. 750.7(c)(1)(x) to cross
reference Sec. 742.5(b)(3)(i) to define the scope of eligible minimum
``software'' and ``technology'' and other limitations for licenses for
MT controlled items.
Also in Sec. 750.7, this final rule adds two notes to paragraph
(c)(1)(x). The new Note 1 provides context for why BIS is implementing
the MT licensing policy pursuant to Sec. 750.7(c)(1)(x). Note 1
explains that the MT licensing policy is being implemented pursuant to
paragraph (c)(1)(x) because it applies to all MT licenses. This new
Note 1 also explains that this MT licensing policy does not apply when
BIS places a condition on the specific license(s) which excludes the
use of paragraph (c)(1)(x). This final rule also adds a Note 2 to
paragraph (c)(1)(x) to provide guidance on the relationship between
License Exception TSU and Sec. 750.7(c)(1)(x), as well as Sec.
742.5(b)(3). Note 2 is the same as the Note to paragraph (b)(3) to
Sec. 742.5, described above in this final rule, except for minor
changes to reflect that the note is in Sec. 750.7.
In addition, this final rule amends the Commerce Control List (CCL)
to reflect changes to the MTCR Annex. Specifically, the following six
ECCNs are affected by the changes set forth in this final rule:
ECCN 1B101. This final rule amends ECCN 1B101 by revising paragraph
a and the introductory text of paragraph b in the List of Items
Controlled section. (MTCR Annex Change, Category II: Item 6.B.1.a. and
b., Bern 2015 TEM). Specifically, this final rule amends paragraph a to
revise the term `fiber-placement machines' to add the term ``/tow''
after the term ``fiber'' to clarify that the scope of the control
parameter extends to placement machines regardless of whether they are
named fiber-placement machines or tow-placement machines. This final
rule revises the term ``fiber-placement machines'' to ``fiber/tow-
placement machines'' in order to clarify that both
[[Page 19028]]
these similar machines (two types of placement machines) are classified
under this control parameter, regardless of the naming convention. This
final rule revises paragraph b to add single quotation marks around the
term `tape-laying machines' to indicate that this term is defined for
purposes of ECCN 1B101. This final rule also revises paragraph b to
remove the phrase ``and sheets,'' because it is no longer needed as
part of the control parameter because the definition of tape now
encompasses sheets. Lastly, this final rule adds four new Technical
Notes to paragraphs a and b. The addition of these four Technical Notes
provides a clear technical definition for `fiber/tow-placement
machines' and `tape-laying machines' under new Technical Note 1, which
is based on the minimum width of material that these machines are
capable of laying (as specified further in the new Technical Notes 3
and 4 this final rule adds to ECCN 1B101). This final rule also adds a
Technical Note 2 to provide an ECCN-specific definition of `filament
band,' which is also used as part of the definition of `fiber/tow-
placement machines' and `tape-laying machines.' The purpose of this
change to ECCN 1B101 is to more clearly define and differentiate
between fiber/tow-placement machines and tape-laying machines. The only
increase in license applications will be due to the clarification that
tow-placement machines are definitively controlled by the MTCR.
ECCN 1C111. This final rule amends ECCN 1C111 by revising
paragraphs b.4, b.9, d.9, and d.12 in the List of Items Controlled
section to add CAS (Chemical Abstract Service) Numbers. 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 these ``items'' paragraphs of 1C111.
This final rule revises paragraph b.4 to add the CAS Number (CAS
25265-19-4/CAS 68891-50-9) after the material ``polybutadiene acrylic
acid acrylonitrile (PBAN).'' (MTCR Annex Change, Category II: Item
4.C.5.e., Rotterdam 2015 Plenary). This change is not expected to have
any impact on the number of license applications received by BIS. This
final rule revises paragraph d.9 to add the CAS Number (CAS 6068-98-0)
after the material ``ethylene dihydrazine.'' (MTCR Annex Change,
Category II: Item 4.C.2.b.8., Rotterdam 2015 Plenary). This change is
not expected to have any impact on the number of license applications
received by BIS.
This final rule revises paragraph d.12 to add the material ``1,1-
Dimethylhydrazinium azide (CAS 227955-52-4),'' which is an alternative
structure of the same chemical (Dimethylhydrazinium azide) classified
under d.12. This final rule also revises paragraph d.12 to add ``1,2-''
before the material ``Dimethylhydrazinium azide'' and adds the CAS
Number (CAS 299177-50-7) after the material ``1,2-Dimethylhydrazinium
azide.'' These changes will aid exporters and licensing officers by
making it clear that both structures of the chemical are caught under
paragraph d.12. (MTCR Annex Change, Category II: Item 4.C.2.b.12.,
Rotterdam 2015 Plenary). These changes are not expected to have any
impact on the number of license applications received by BIS.
Lastly, for the changes to ECCN 1C111, this final rule revises
paragraph d.19, to add the material ``1,1-Diethylhydrazine nitrate
(DEHN),'' which is an alternative structure of the same chemical
(Diethylhydrazine nitrate (DEHN)) classified under d.19. This final
rule also revises paragraph d.19 to add ``1,2-'' before the material
``Diethylhydrazine nitrate (DEHN)'' and adds the CAS Number (CAS
363453-17-2) after the material ``1,2-Dimethylhydrazinium nitrate.''
These changes will aid exporters and licensing officers and make clear
that both structures of the chemical are caught under paragraph d.19.
(MTCR Annex Change, Category II: Item 4.C.2.b.19., Rotterdam 2015
Plenary). These changes are not expected to have any impact on the
number of license applications received by BIS.
ECCN 7A116. This final rule amends ECCN 7A116 to revise the heading
to add the term ``pneumatic'' to the beginning of the control parameter
to specify that pneumatic flight control systems are also controlled
under ECCN 7A116. In addition, this final rule adds the phrase ``and
fly-by-light'' to the parenthetical phrase ``(including fly-by-wire
systems)'' to specify that the flight control systems classified under
this ECCN include fly-by-wire and fly-by-light systems. (MTCR Annex
Change, Category II: Item 10.A.1., Rotterdam 2015 Plenary). These
changes are not expected to have any impact on the number of license
applications received by BIS, because the commodities described in ECCN
7A116 are ``subject to the ITAR.''
ECCN 9A012. This final rule amends ECCN 9A012 by adding paragraph
b.5 in the List of Items Controlled section to control pneumatic,
hydraulic, mechanical, electro-optical, or electromechanical flight
control systems (including fly-by-wire and fly-by-light systems) and
attitude control equipment designed or modified for UAVs or drones
controlled by ECCN 9A012, and capable of delivering at least 500
kilograms payload to a range of at least 300 km. (MTCR Annex Change,
Category II: Item 10.A.1., Rotterdam 2015 Plenary). New paragraph b.5
is not intended to control UAVs or drones controlled by either USML
paragraph VIII(a) or ECCN 9A610.a. This change is made to conform to
the MTCR Annex and to address that certain MTCR Category I UAVs are on
the CCL as a result of Export Control Reform.
This final rule also makes two conforming changes to ECCN 9A012 for
the addition of paragraph 9A012.b.5. Specifically, this final rule is
revising the ``MT'' paragraph in the License Requirements section to
add an MT control for the new paragraph 9A012.b.5. This final rule is
revising the Related Control Paragraph to include a reference to also
see ECCN 9A610, because as noted above, similar types of systems and
equipment are controlled under ECCN 9A610.w. This change is expected to
result in an increase of 1-3 applications received annually by BIS.
ECCN 9A610. This final rule amends ECCN 9A610 by revising paragraph
w in the List of Items Controlled section to add the term ``pneumatic''
to the beginning of the control parameter to specify that pneumatic
flight control systems are also classified under this paragraph w. In
addition, this final rule adds the phrase ``and fly-by-light'' to the
parenthetical phrase ``(including fly-by-wire systems)'' to specify
that the flight control systems classified under this paragraph w
include fly-by-wire and fly-by-light systems. (MTCR Annex Change,
Category II: Item 10.A.1., Rotterdam 2015 Plenary). These changes are a
slight expansion of the control parameter by extending the control to
include pneumatic flight control systems that are designed or modified
for ``missiles.'' This expansion of the control parameter is needed
because state-of-the-art flight control systems may use optical fibers
to provide digital communication between the flight control components.
This change is expected to result in an increase of 1-3 applications
received annually by BIS.
ECCN 9B106. This final rule amends ECCN 9B106 by revising
paragraphs a.1 and the introductory text of paragraph a.2 in the List
of Items Controlled section. The introductory text of paragraph a
previously referred to both paragraphs a.1 and a.2 as flight
[[Page 19029]]
conditions, which was not entirely accurate. Therefore, this final rule
revises the introductory text of paragraph a by removing the phrase
``simulating all of the following flight conditions'' and adding in its
place the phrase ``having all of the following characteristics.'' (MTCR
Annex Change, Category II: Item 15.B.4.a., Bern 2015 TEM). The altitude
and temperature requirements specified in paragraphs a.1.a and a.2.a
are flight conditions, but the incorporation or ability to incorporate
a shaker unit or other vibration test equipment specified in paragraph
a.2 is not strictly a flight condition, but a means of simulating a
flight condition, so the introductory text of paragraph a needed to be
updated for clarity. This clarification to the introductory text of
paragraph a reflects the way this control has previously been
interpreted by BIS. This final rule revises the control parameter in
paragraph a.1.b to clarify the temperature range goes from below -
50[deg] C to above 125[deg] C. The revision to paragraph a.1.b does not
change the scope of control of 9B610 and this revision will better
reflect the control text of the MTCR Annex. (MTCR Annex Change,
Category II: Item 15.B.4.a.1.b., Conforming Change to MTCR Annex).
Lastly, as a non-substantive formatting change, this final rule
revises paragraph a.2 to move the comma inside of the single quotation
marks for the term `bare table.' These changes are not expected to have
any 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 enroute aboard a carrier
to a port of export or reexport, on April 4, 2016, 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 May 4, 2016. Any such items not actually
exported or reexported before midnight, on May 4, 2016, require a
license in accordance with this rule.
Export Administration Act
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 7, 2015, 80 FR 48233 (August 11, 2015), has continued the Export
Administration Regulations in effect under the International Emergency
Economic Powers Act. BIS continues to carry out the provisions of the
Export Administration Act, as appropriate and to the extent permitted
by law, pursuant to Executive Order 13222, as amended by Executive
Order 13637.
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 final rule has been designated a ``significant
regulatory action,'' although not economically significant, under
section 3(f) of Executive Order 12866.
2. Notwithstanding any other provision of law, no person may be
required to respond to or be subject to a penalty for failure to comply
with a collection of information, subject to the requirements of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless
that collection of information displays a currently valid Office of
Management and Budget (OMB) Control Number. This regulation involves
collections previously approved by OMB under control number 0694-0088,
Simplified Network Application Processing System, which includes, among
other things, license applications and carries a burden estimate of
43.8 minutes for a manual or electronic submission. Total burden hours
associated with the PRA and OMB control number 0694-0088 are expected
to increase slightly as a result of this rule. The expected increase in
total burden hours is expected to be minimal and to not exceed the
existing estimates for burden hours associated with the PRA and OMB
control number 0694-0088. You may send comments regarding the
collection of information associated with this rule, including
suggestions for reducing the burden, to Jasmeet K. Seehra, Office of
Management and Budget (OMB), by email to Jasmeet_K._Seehra@omb.eop.gov,
or by fax to (202) 395-7285.
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 commitments to the MTCR. The MTCR contributes to
international peace and security by promoting greater responsibility in
transfers of missile technology items that could make a contribution to
delivery systems (other than manned aircraft) for weapons of mass
destruction. 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 2015 Plenary
in Rotterdam, Netherlands and pursuant to the April 2015 Technical
Experts Meeting in Bern, Switzerland. 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 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. 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
[[Page 19030]]
not applicable. Therefore, this regulation is issued in final form.
List of Subjects
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 750
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 742, 750 and 774 of the Export Administration
Regulations (15 CFR parts 730-774) are amended as follows:
PART 742--[AMENDED]
0
1. The authority citation for 15 CFR part 742 continues to read as
follows:
Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22
U.S.C. 7210; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058,
43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3
CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp.,
p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential
Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320;
Notice of August 7, 2015, 80 FR 48233 (August 11, 2015); Notice of
November 12, 2015, 80 FR 70667 (November 13, 2015).
0
2. Section 742.5 is amended:
0
a. By redesignating paragraphs (b)(3) and (4) as paragraphs (b)(4) and
(5), respectively; and
0
b. By adding a new paragraph (b)(3) to read as follows:
Sec. 742.5 Missile technology.
* * * * *
(b) * * *
(3)(i) Consistent with the MTCR Annex General Minimum Software
Note, MTCR Annex General Technology Note and Sec. 750.7(c)(1)(x) of
the EAR, the approval of any item controlled for MT reasons on a BIS
license also authorizes the export, reexport, or transfer (in-country)
to the same ultimate consignee(s) and end user(s) specified on the
license of the minimum ``software,'' excluding source code, controlled
for MT reasons that is required for the installation, operation,
maintenance or repair of the item and the ``technology'' required for
the installation, operation, maintenance, or repair of the item in
order to ensure the item's safe operation as originally intended. The
approval of any item controlled for MT reasons on a BIS license also
authorizes the later export, reexport, or transfer (in-country) of
``software'' controlled for MT reasons intended to correct defects (bug
fixes) in a previously legally exported item under a BIS license to the
same ultimate consignee(s) and end user(s) specified on the license,
provided that the capability and/or performance of the item are not
otherwise enhanced. This MT licensing policy is implemented concurrent
with Sec. 750.7(c)(1)(x) because it applies to all MT licenses, except
when a condition is placed on the license which excludes the use of
Sec. 750.7(c)(1)(x), as described in paragraph (b)(3)(ii) of this
section.
(ii) Applicants are not required to identify or provide any support
documentation for such minimum ``software'' or ``technology'' on a
license application for MT controlled items because such minimum
``software'' or ``technology'' is authorized within the scope of the
license, consistent with Sec. 750.7(c)(1)(x). Applicants will be
informed when such minimum ``software'' and/or ``technology'' in Sec.
750.7(c)(1)(x) is excluded from the license by a BIS condition on the
license, which will state the following: ``This license does not
authorize the export, reexport or transfer (in-country) of the minimum
``software'' and/or ``technology'' specified in paragraph (c)(1)(x) of
Sec. 750.7 (See paragraph (b)(3) of Sec. 742.5).''
Note to paragraph (b)(3): License Exception TSU under Sec.
740.13 of the EAR is available for the ECCNs controlled for MT
reasons specified in paragraph (a)(5) in Sec. 740.2, provided the
software or technology is for an end use specified in that paragraph
and meets the requirements of License Exception TSU. (See Sec. Sec.
740.2(a)(5) and 740.13). The licensing policy in paragraph (b)(3) is
only available for licensed exports (or reexports, or transfers (in-
country)).
* * * * *
PART 750--[AMENDED]
0
3. The authority citation for 15 CFR part 750 continues to read as
follows:
Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; Sec
1503, Pub. L. 108-11, 117 Stat. 559; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp., p. 223;
Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp.,
p. 320; Notice of August 7, 2015, 80 FR 48233 (August 11, 2015).
0
4. Section 750.7 is amended:
0
a. By removing the period at the end of paragraph (c)(1)(ix) and adding
in its place ``; or''; and
0
b. By adding paragraph (c)(1)(x) to read as follows:
Sec. 750.7 Issuance of licenses.
* * * * *
(c) * * *
(1) * * *
(x) Export, reexport or transfer (in-country) of missile technology
(MT) controlled minimum necessary ``software'' and/or ``technology''
permitted pursuant to the missile technology licensing policy in Sec.
742.5(b)(3) of the EAR. (See Sec. 742.5(b)(3)(i) for the scope of
eligible minimum ``software'' and/or ``technology'' and other
limitations for licenses for MT controlled items).
Note 1 to paragraph (c)(1)(x): This MT licensing policy is
implemented pursuant to paragraph (c)(1)(x) of this section because
it applies to all MT licenses, except when a condition is placed on
the license which excludes the use of paragraph (c)(1)(x) of this
section, as described in Sec. 742.5(b)(3)(ii).
Note 2 to paragraph (c)(1)(x): License Exception TSU under Sec.
740.13 of the EAR is available for the ECCNs controlled for MT
reasons specified in paragraph (a)(5) in Sec. 740.2, provided the
software or technology is for an end use specified in that paragraph
and meets the requirements of License Exception TSU. (See Sec. Sec.
740.2(a)(5) and 740.13). The licensing policy in Sec. 742.5(b)(3)
is only available for licensed exports (or reexports, or transfers
(in-country)).
* * * * *
PART 774--[AMENDED]
0
5. The authority citation for 15 CFR part 774 continues to read as
follows:
Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10
U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 43
U.S.C. 1354; 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 7, 2015, 80 FR 48233 (August 11, 2015).
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) 1B101 is amended:
0
a. By revising ``items'' paragraphs a and b in the List of Items
Controlled section; and
0
b. By adding Technical Notes for paragraphs a and b at the end of the
``items'' paragraph b in the List of Items Controlled section to read
as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
[[Page 19031]]
1B101 Equipment, other than that controlled by 1B001, for the
``production'' of structural composites, fibers, prepregs or preforms,
usable for rockets, missiles, or unmanned aerial vehicles capable of
achieving a ``range'' equal to or greater than 300 km and their
subsystems, as follows (see List of Items Controlled); and ``specially
designed'' ``parts,'' ``components'' and ``accessories'' therefor.
* * * * *
List of Items Controlled
* * * * *
Items:
a. Filament winding machines or `fiber/tow-placement machines,' of
which the motions for positioning, wrapping and winding fibers can be
coordinated and programmed in three or more axes, designed to fabricate
composite structures or laminates from fibrous or filamentary
materials, and coordinating and programming controls;
b. `Tape-laying machines' of which the motions for positioning and
laying tape can be coordinated and programmed in two or more axes,
designed for the manufacture of composite airframe and missile
structures;
Technical Notes for paragraphs a and b: For the purposes of
1B101.a. and 1B101.b., the following definitions apply:
1. `Fiber/tow-placement machines' and `tape-laying machines' are
machines that perform similar processes that use computer-guided
heads to lay one or several `filament bands' onto a mold to create a
part or a structure. These machines have the ability to cut and
restart individual `filament band' courses during the laying
process.
2. A `filament band' is a single continuous width of fully or
partially resin-impregnated tape, tow, or fiber. Fully or partially
resin-impregnated `filament bands' include those coated with dry
powder that tacks upon heating.
3. `Fiber/tow-placement machines' have the ability to place one
or more `filament bands' having widths less than or equal to 25.4
mm. This refers to the minimum width of material the machine can
place, regardless of the upper capability of the machine.
4. `Tape-laying machines' have the ability to place one or more
`filament bands' having widths less than or equal to 304.8 mm, but
cannot place `filament bands' with a width equal to or less than
25.4 mm. This refers to the minimum width of material the machine
can place, regardless of the upper capability of the machine.
* * * * *
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'' paragraph b.4 in the List of Items Controlled
section; and
0
b. By revising ``items'' paragraphs d.9, d.12 and d.19 in the List of
Items Controlled section 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:
* * * * *
b. * * *
* * * * *
b.4. Polybutadiene acrylic acid acrylonitrile (PBAN) (CAS 25265-19-
4/CAS 68891-50-9);
* * * * *
d. * * *
* * * * *
d.9. Ethylene dihydrazine (CAS 6068-98-0);
* * * * *
d.12. 1,1-Dimethylhydrazinium azide (CAS 227955-52-4)/1,2-
Dimethylhydrazinium azide (CAS 299177-50-7);
* * * * *
d.19. 1,1-Diethylhydrazine nitrate (DEHN)/1,2-Diethylhydrazine
nitrate (DEHN) (CAS 363453-17-2);
* * * * *
0
8. In Supplement No. 1 to part 774 (the Commerce Control List),
Category 7-- Navigation and Avionics, Export Control Classification
Number (ECCN) 7A116 is amended by revising the heading to read as
follows:
7A116 Flight control systems (pneumatic, hydraulic, mechanical,
electro-optical, or electro-mechanical flight control systems
(including fly-by-wire and fly-by-light systems) and attitude control
equipment) designed or modified for ``missiles''. (These items are
``subject to the ITAR''. See 22 CFR parts 120 through 130.)
0
9. In Supplement No. 1 to part 774 (the Commerce Control List),
Category 9--Aerospace and Propulsion, Export Control Classification
Number (ECCN) 9A012 is amended:
0
a. By revising the ``MT'' paragraph in the table in the License
Requirements section;
0
b. By revising the Related Controls paragraph in the List of Items
Controlled section; and
0
c. By adding ``items'' paragraph b.5 in the List of Items Controlled
section to read as follows:
9A012 Non-military ``Unmanned Aerial Vehicles,'' (``UAVs''), unmanned
``airships'', related equipment and ``components'', as follows (see
List of Items Controlled).
License Requirements
Reason for Control:
* * * * *
------------------------------------------------------------------------
Country Chart (see sup No. 1
Control(s) to part 738)
------------------------------------------------------------------------
* * * * *
MT applies to non-military Unmanned Air MT Column 1.
Vehicle (UAVs) and Remotely Piloted
Vehicles (RPVs) that are capable of a
maximum range of at least 300 kilometers
(km), regardless of payload, and
9A012.b.5.
* * * * *
------------------------------------------------------------------------
* * * * *
List of Items Controlled
* * * * *
Related Controls: See the U.S. Munitions List Category VIII (22 CFR
part 121). Also see ECCN 9A610 and Sec. 744.3 of the EAR.
* * * * *
Items:
* * * * *
b. * * *
* * * * *
b.5. Pneumatic, hydraulic, mechanical, electro-optical, or
electromechanical flight control systems (including fly-by-wire and
fly-by-light systems) and attitude control equipment designed or
modified for UAVs or drones controlled by ECCN 9A012., and capable of
delivering at least 500 kilograms payload to a range of at least 300
km.
* * * * *
0
10. In Supplement No. 1 to part 774 (the Commerce Control List),
Category 9--Aerospace and Propulsion, Export Control Classification
Number (ECCN) 9A610 is amended by revising ``items'' paragraph w in the
List of Items Controlled section to read as follows:
9A610 Military aircraft and related commodities, other than those
enumerated in 9A991.a (see List of Items Controlled).
* * * * *
List of Items Controlled
* * * * *
Items:
* * * * *
[[Page 19032]]
w. Pneumatic, hydraulic, mechanical, electro-optical, or
electromechanical flight control systems (including fly-by-wire and
fly-by-light systems) and attitude control equipment designed or
modified for UAVs or drones controlled by either USML paragraph VIII(a)
or ECCN 9A610.a., and capable of delivering at least 500 kilograms
payload to a range of at least 300 km.
* * * * *
0
11. In Supplement No. 1 to part 774 (the Commerce Control List),
Category 9--Aerospace and Propulsion, Export Control Classification
Number (ECCN) 9B106 is amended:
0
a. By revising the introductory text of ``items'' paragraph a in the
List of Items Controlled section;
0
b. By revising ``items'' paragraph a.1 in the List of Items Controlled
section; and
0
c. By revising the introductory text of items paragraph a.2 to read as
follows:
9B106 Environmental chambers usable for rockets, missiles, or unmanned
aerial vehicles capable of achieving a ``range'' equal to or greater
than 300 km and their subsystems, as follows (see List of Items
Controlled).
* * * * *
List of Items Controlled
* * * * *
Items:
* * * * *
a. Environmental chambers having all of the following
characteristics:
a.1. Capable of simulating any of the following flight conditions:
a.1.a. Altitude equal to or greater than 15,000 m; or
a.1.b. Temperature range from below -50 [deg]C to above 125 [deg]C;
and
a.2. Incorporating, or designed or modified to incorporate, a
shaker unit or other vibration test equipment to produce vibration
environments equal to or greater than 10 g rms, measured `bare table,'
between 20 Hz and 2 kHz while imparting forces equal to or greater than
5 kN;
* * * * *
Dated: March 29, 2016.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2016-07601 Filed 4-1-16; 8:45 am]
BILLING CODE 3510-33-P