Control of Deuterium That Is Intended for Use Other Than in a Nuclear Reactor Under the Export Administration Regulations (EAR), 55492-55494 [2021-21509]
Download as PDF
<![CDATA[
55492
Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations
description of the deviation and the
reasons for it.
(e) Expiration. This SFAR will remain
in effect until October 27, 2023. The
FAA may amend, rescind, or extend this
SFAR as necessary.
Issued in Washington, DC, under the
authority of 49 U.S.C. 106(f) and (g),
40101(d)(1), 40105(b)(1)(A), and 44701(a)(5),
on or about September 30, 2021.
Steve Dickson,
Administrator.
[FR Doc. 2021–21797 Filed 10–5–21; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 774
[Docket No. 210923–0195]
RIN 0694–AI44
Control of Deuterium That Is Intended
for Use Other Than in a Nuclear
Reactor Under the Export
Administration Regulations (EAR)
Bureau of Industry and
Security, Department of Commerce.
ACTION: Final rule.
AGENCY:
The Department of Commerce
is publishing this final rule in
conjunction with a U.S. Nuclear
Regulatory Commission (NRC) final rule
to revise its regulations to remove the
NRC’s licensing authority for exports of
deuterium for non-nuclear end use. The
responsibility for the licensing of
exports of deuterium for non-nuclear
end use is being transferred to the
Department of Commerce’s Bureau of
Industry and Security (BIS). BIS is
publishing this final rule to include
deuterium under its export licensing
jurisdiction under the Export
Administration Regulations (EAR). This
Commerce final rule describes the
changes made to the EAR to control the
deuterium moved from the export
control authority of the NRC to the
export control authority of BIS under
the EAR. Exports of deuterium for
nuclear end use will remain under the
NRC’s export licensing jurisdiction.
DATES: This rule is effective December 6,
2021.
FOR FURTHER INFORMATION CONTACT:
Steven Clagett, Office of
Nonproliferation Controls and Treaty
Compliance, Nuclear and Missile
Technology Controls Division, tel. (202)
482–1641 or email steven.clagett@
bis.doc.gov.
jspears on DSK121TN23PROD with RULES1
SUMMARY:
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
16:21 Oct 05, 2021
Jkt 256001
Background
The Department of Commerce is
publishing this final rule in conjunction
with a U.S. Nuclear Regulatory
Commission (NRC) final rule being
published in this issue of the Federal
Register to revise its regulations to
remove the NRC’s licensing authority
for exports of deuterium for non-nuclear
end use. The responsibility for the
licensing of exports of deuterium for
non-nuclear end use is being transferred
to the Department of Commerce’s
Bureau of Industry and Security (BIS).
BIS is publishing this final rule to
include deuterium under its export
licensing jurisdiction under the Export
Administration Regulations (EAR). This
Commerce final rule describes the
changes made to the EAR to control the
deuterium moved from the export
control authority of the NRC to the
export control authority of BIS under
the EAR. Exports of deuterium for
nuclear end use will remain under the
NRC’s export licensing jurisdiction.
Deuterium Under NRC and Its
Evolution Into Broader Commercial Use
Section 109 of the Atomic Energy Act
of 1954 (AEA), as amended by the
Nuclear Non-Proliferation Act of 1978
(NNPA), authorizes and directs the
NRC, after consultation with the
Secretaries of State, Energy, and
Commerce, to exercise its export
licensing authority over ‘‘items or
substances’’ determined by the
Commission to be ‘‘especially relevant
from the standpoint of export control
because of their significance for nuclear
explosive purposes’’ (42 U.S.C. 2139(b)).
Since 1978, under this authority, the
NRC has exercised jurisdiction over all
exports of deuterium, including heavy
water, as well as deuterium gas and
other deuterated compounds for both
nuclear and non-nuclear end uses. In
the early years of the nuclear energy
industry, deuterium oxide (heavy water)
was largely produced for use in nuclear
reactors. High-purity reactor grade
heavy water, which has a deuterium
concentration of 99.75 percent or
greater, has been used to operate
reactors with natural uranium.
In the last decade, the market for
deuterium has significantly expanded
and evolved beyond nuclear reactor use.
Non-nuclear use of deuterium includes
but is not limited to production of:
Advanced electronics, deuterated
solvents, deuterated pharmaceuticals,
hydrogen arc-lamps, neutron generators,
and tracers in hydrological, biological,
and medical studies.
Despite this market change, the NRC
has continued to control all exports of
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
deuterium under the general or specific
export licensing provisions in 10 CFR
part 110. The NRC has determined, in
consultation with the Executive Branch,
that it is appropriate to revise its
regulations and transfer the export
licensing control of non-nuclear end
uses of deuterium to the Department of
Commerce, as was done for the nonnuclear end uses of nuclear graphite in
2005 (70 FR 41937; July 21, 2005).
Over the past 10 years, the quantity of
deuterium exported for non-nuclear end
use has steadily increased. A growing
number of companies have been
required to obtain specific licenses to
export deuterium for non-nuclear use
because the quantity exceeded the
general license quantity thresholds. As
stated in the NRC final rule published
in this edition of the Federal Register in
conjunction with this Commerce final
rule, the NRC’s recent licensing
experience has shown that deuterium
has been exported almost exclusively
for non-nuclear industrial and research
end uses, prompting the reevaluation of
NRC licensing requirements concerning
these non-nuclear end use exports.
Other supplier nations have export
controls over deuterium but have
limited them to cover exports ‘‘for use
in a nuclear reactor.’’ This limitation
appears in both the Nuclear NonProliferation Treaty Exporters
Committee (Zangger Committee) and the
Nuclear Suppliers Group (NSG)
clarifications of items on the Trigger
List. The United States is a member of
the Zangger Committee and a
Participating Government of the NSG.
As stated in the NRC final rule
published in conjunction with this
Commerce final rule, the history of the
use of deuterium exported under the
NRC’s authority indicates that
deuterium has not been diverted for
known illicit purposes to produce
weapons-grade material or for use in
unsafeguarded nuclear activities. To the
extent that any risk of diversion may
exist, exports of deuterium for nonnuclear end use will continue to be
controlled by the Department of
Commerce under the EAR, and
appropriate control mechanisms exist
within national regulatory authorities
and the international community to
detect efforts to divert deuterium for
known illicit purposes. Exports and
reexports of deuterium for non-nuclear
end use will be controlled for Nuclear
Proliferation (NP) Column 2 under the
EAR. A license will be required for all
destinations controlled for NP 2 reasons,
which means an authorization (a BIS
license or license exception) will be
required under the EAR for exports and
reexports to these destinations. In
E:\FR\FM\06OCR1.SGM
06OCR1
Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations
jspears on DSK121TN23PROD with RULES1
addition, the end-use and end-user
controls under part 744 of the EAR will
impose restrictive license requirements
for exports, reexports, and transfers (incountry) involving end uses and end
users that would be contrary to U.S.
export control interests, e.g., under
§ 744.2 (Restrictions on certain nuclear
end uses), § 744.6 (Restrictions on
certain activities of U.S. persons), and to
entities of concern (e.g., Entity List and
Denied Persons List). The U.S. NRC took
this robust control structure under the
EAR into account when determining
that appropriate destination, end-user,
and end-use based controls will be in
place to appropriately control the
deuterium for non-nuclear end use. The
following section describes the changes
made to the EAR to control the
deuterium moved from the export
control authority of the NRC to the
export control authority of BIS under
the EAR.
Amendments to the Export
Administration Regulations (EAR)
This final rule revises the heading, the
License Requirement Note, and the
Related Controls paragraph, Related
Definitions paragraph and the Items
paragraph in the List of Items Controlled
section to control deuterium under
ECCN 1C298 as described below. The
deuterium added to ECCN 1C298 will be
controlled for the same reason and have
the same license exception eligibility as
the graphite controlled under 1C298, so
no changes are made to the Reasons for
Control paragraph in the License
Requirements section and License
Exceptions section. The deuterium, as
referenced above, will be controlled for
NP Column 2, and License Exceptions
LVS, and GBS will not be available.
This final rule revises the heading of
ECCN 1C298 by adding the term
deuterium in addition to the graphite
that is already controlled under 1C298.
Both graphite and deuterium will be
controlled under ECCN 1C298 when the
graphite or deuterium is intended for
use other than in a nuclear reactor and
meets the additional control parameters
under Items paragraphs .a or .b of
1C298. Because this final rule is adding
Items paragraphs .a and .b in the List of
Items Controlled section to further
describe the graphite and deuterium
controlled under ECCN 1C298, this final
rule removes the control text from the
heading that described what graphite
was controlled under the ECCN prior to
this final rule being published. This
removed control text from the heading
is being added as new items paragraph
.a under 1C298.
This final rule revises License
Requirement Note to ECCN 1C298 to
VerDate Sep<11>2014
16:21 Oct 05, 2021
Jkt 256001
make one conforming change. This final
rule adds the term ‘deuterium’ to
specify that all graphite and deuterium,
as defined in ECCN 1C298, intended for
use in a nuclear reactor is subject to the
export licensing authority of the NRC.
This final rule adds a Related Controls
paragraph (3) in the List of Items
Controlled section of ECCN 1C298 to
provide greater detail on the deuterium,
including any deuterium compound,
that, when intended for use in a nuclear
reactor, is subject to the export licensing
authority of the NRC.
This final rule adds a new Related
Definition for Deuterium in the List of
Items Controlled section of ECCN
1C298. This ECCN-specific definition
specifies ‘Deuterium’ means deuterium
and any deuterium compound,
including heavy water, in which the
ratio of deuterium atoms to hydrogen
atoms exceeds 1:5000.
Lastly, this final rule revises the Items
paragraph in the List of Items Controlled
section to add Items paragraphs .a and
.b. This final rule adds Items paragraph
.a to identify the graphite controlled
under ECCN 1C298. As referenced
above, this is the same control
parameter text that was previously in
the heading, but is now being moved to
items paragraph .a under ECCN 1C298.
This final rule adds Items paragraph .b
to identify the ‘deuterium,’ including
any deuterium compound, including
heavy water that when it meets the
control parameter text of this paragraph
.b will be controlled under ECCN
1C298. Specifically, ‘deuterium’ not for
use in a nuclear reactor will be
controlled under ECCN 1C298.
Export Control Reform Act of 2018
On August 13, 2018, the President
signed into law the John S. McCain
National Defense Authorization Act for
Fiscal Year 2019, which included the
Export Control Reform Act of 2018
(ECRA) (codified, as amended, at 50
U.S.C. Sections 4801–4852). ECRA
provides the legal basis for BIS’s
principal authorities and serves as the
authority under which BIS issues this
rule.
Rulemaking Requirements
1. Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
55493
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.
Commerce estimates that this rule will
result in a minimal increase to the
number of license requests submitted to
BIS annually.
2. Notwithstanding any other
provision of law, no person is required
to respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the Paperwork
Reduction Act 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 rule involves the following
OMB-approved collections of
information subject to the PRA: 0694–
0088, ‘‘Multi-Purpose Application,’’
which carries a burden hour estimate of
29.6 minutes for a manual or electronic
submission; 0694–0096 ‘‘Five Year
Records Retention Period,’’ which
carries a burden hour estimate of less
than 1 minute; and 0607–0152
‘‘Automated Export System (AES)
Program,’’ which carries a burden hour
estimate of 3 minutes per electronic
submission. This rule changes the
respondent burden by increasing the
estimated number of submissions by 20.
Specifically, BIS estimates that this
control of deuterium under the EAR will
result in an increase of twenty license
applications submitted annually to BIS.
The additional burden falls within the
estimated burden approved by OMB for
the following information collections:
0694–0088, 0694–0096, and 0607–0152.
Any comments regarding these
collections of information, including
suggestions for reducing the burden,
may be submitted online at https://
www.reginfo.gov/public/do/PRAMain.
The particular information collection
may be found by using the search
function and entering either the title of
the collection or the OMB Control
Number.
3. This rule does not contain policies
with Federalism implications as that
term is defined in Executive Order
13132.
4. Pursuant to section 1762 of the
Export Control Reform Act of 2018 (50
U.S.C. 4801–4852), this action is exempt
from the Administrative Procedure Act
(5 U.S.C. 553) requirements for notice of
proposed rulemaking, opportunity for
public participation, and delay in
effective date.
5. Because a notice of proposed
rulemaking and an opportunity for
E:\FR\FM\06OCR1.SGM
06OCR1
55494
Federal Register / Vol. 86, No. 191 / Wednesday, October 6, 2021 / Rules and Regulations
public comment are not required to be
given for this rule by 5 U.S.C. 553, or
by any other law, the analytical
requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., are
not applicable. Accordingly, no
regulatory flexibility analysis is required
and none has been prepared.
List of Subjects in 15 CFR Part 774
Exports, Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, part 774 of the Export
Administration Regulations (15 CFR
parts 730–774) is amended as follows:
PART 774—THE COMMERCE
CONTROL LIST
1. The authority citation for 15 CFR
part 774 continues to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C.
8720; 10 U.S.C. 8730(e); 22 U.S.C. 287c, 22
U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C.
2139a; 15 U.S.C. 1824; 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.
2. In Supplement No. 1 to part 774,
Category 1, revise Export Control
Classification Number (ECCN) 1C298 to
read as follows:
■
*
*
*
*
*
1C298 Graphite and deuterium that is
intended for use other than in a nuclear
reactor, as follows (see List of Items
Controlled).
NP applies to entire
entry.
Country chart (see
Supp. No. 1 to
part 738)
NP Column 2.
*
*
*
Matthew S. Borman,
Deputy Assistant Secretary for Export
Administration.
[FR Doc. 2021–21509 Filed 10–5–21; 8:45 am]
The
Department of Commerce published a
final rule on September 15, 2021 (86 FR
51456), establishing a Concrete Masonry
Products Research, Education, and
Promotion Order, as authorized by the
Concrete Masonry Products Research,
Education, and Promotion Act of 2018.
The final rule incorrectly reported the
email address found in the For Further
Information Contact section of the rule.
Please see the corrected email address
in the FOR FURTHER INFORMATION
CONTACT section of this correction.
SUPPLEMENTARY INFORMATION:
Dated: September 30, 2021.
Kenneth White,
Senior Policy Analyst, Under Secretary for
Economic Affairs.
[FR Doc. 2021–21788 Filed 10–5–21; 8:45 am]
BILLING CODE 3510–20–P
BILLING CODE 3510–33–P
DEPARTMENT OF COMMERCE
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Office of the Under-Secretary for
Economic Affairs
Food and Drug Administration
21 CFR Part 73
[Docket No. FDA–2018–C–0617]
List of Items Controlled
Related Controls: (1) See also 1C107. (2)
Graphite having a purity level of less than
5 parts per million ‘‘boron equivalent’’ as
measured according to ASTM standard C–
1233–98 and intended for use in a nuclear
reactor is subject to the export licensing
authority of the Nuclear Regulatory
Commission (see 10 CFR part 110). (3)
Deuterium and any deuterium compound,
16:21 Oct 05, 2021
Jkt 256001
RIN: 0605–AA53
Listing of Color Additives Exempt
From Certification; Silver Nitrate
Concrete Masonry Products Research,
Education, and Promotion Order
AGENCY:
Under-Secretary for Economic
Affairs, United States Department of
Commerce.
ACTION: Final rule; correction.
ACTION:
AGENCY:
List Based License Exceptions (See Part 740
for a description of all license exceptions)
LVS: N/A
GBS: N/A
jspears on DSK121TN23PROD with RULES1
*
information found in the previously
published rule.
DATES: October 6, 2021.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael Thompson, Communications
for the Commerce Checkoff
Implementation Program, Office of the
Under Secretary for Economic Affairs,
telephone: (202) 482–0671 or via
electronic mail: michael.thompson@
trade.gov.
[Docket No.: 210820–0165]
License Requirement Note: The graphite and
deuterium, as defined in this entry, when
intended for use in a nuclear reactor, is
subject to the export licensing authority of
the Nuclear Regulatory Commission (see 10
CFR part 110).
VerDate Sep<11>2014
*
15 CFR Part 1500
License Requirements
Reason for Control: NP
Control(s)
including heavy water, in which the ratio
of deuterium atoms to hydrogen atoms
exceeds 1:5000; and intended for use in a
nuclear reactor is subject to the export
licensing authority of the Nuclear
Regulatory Commission (see 10 CFR part
110).
Related Definitions: For the purpose of this
entry, graphite with a purity level better
than 5 parts per million boron equivalent
is determined according to ASTM standard
C1233–98. In applying ASTM standard
C1233–98, the boron equivalence of the
element carbon is not included in the
boron equivalence calculation, since
carbon is not considered an impurity. For
the purpose of this entry, ‘Deuterium’
means deuterium and any deuterium
compound, including heavy water, in
which the ratio of deuterium atoms to
hydrogen atoms exceeds 1:5000.
Items:
a. Graphite with a boron content of less
than 5 parts per million and a density greater
than 1.5 grams per cubic centimeter that is
intended for use other than in a nuclear
reactor;
b. ‘Deuterium’ not for use in a nuclear
reactor.
This action contains a
correction to the final rule published on
September 15, 2021, setting forth the
Concrete Masonry Products Research,
Education, and Promotion Order, as
authorized by the Concrete Masonry
Products Research, Education, and
Promotion Act of 2018, which
establishes a Concrete Masonry
Products Board (Board) composed of
industry members appointed by the
Secretary of Commerce (Secretary) to
develop and implement programs of
research, education, and promotion in
the concrete masonry products industry.
This action corrects email contact
SUMMARY:
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
Food and Drug Administration,
HHS.
Final rule.
The Food and Drug
Administration (FDA or we) is
amending the color additive regulations
to provide for the safe use of silver
nitrate as a color additive in
professional-use only cosmetics to color
eyebrows and eyelashes. This action is
in response to a color additive petition
(CAP) filed by GW Cosmetics GmbH.
DATES: This rule is effective November
8, 2021. See section VIII for further
information on the filing of objections.
Submit either electronic or written
objections and requests for a hearing on
the final rule by November 5, 2021.
ADDRESSES: You may submit objections
and requests for a hearing as follows.
Please note that late, untimely filed
objections will not be considered.
SUMMARY:
E:\FR\FM\06OCR1.SGM
06OCR1
]]>Agencies
[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Rules and Regulations]
[Pages 55492-55494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21509]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 774
[Docket No. 210923-0195]
RIN 0694-AI44
Control of Deuterium That Is Intended for Use Other Than in a
Nuclear Reactor Under the Export Administration Regulations (EAR)
AGENCY: Bureau of Industry and Security, Department of Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Commerce is publishing this final rule in
conjunction with a U.S. Nuclear Regulatory Commission (NRC) final rule
to revise its regulations to remove the NRC's licensing authority for
exports of deuterium for non-nuclear end use. The responsibility for
the licensing of exports of deuterium for non-nuclear end use is being
transferred to the Department of Commerce's Bureau of Industry and
Security (BIS). BIS is publishing this final rule to include deuterium
under its export licensing jurisdiction under the Export Administration
Regulations (EAR). This Commerce final rule describes the changes made
to the EAR to control the deuterium moved from the export control
authority of the NRC to the export control authority of BIS under the
EAR. Exports of deuterium for nuclear end use will remain under the
NRC's export licensing jurisdiction.
DATES: This rule is effective December 6, 2021.
FOR FURTHER INFORMATION CONTACT: Steven Clagett, Office of
Nonproliferation Controls and Treaty Compliance, Nuclear and Missile
Technology Controls Division, tel. (202) 482-1641 or email
[email protected].
SUPPLEMENTARY INFORMATION:
Background
The Department of Commerce is publishing this final rule in
conjunction with a U.S. Nuclear Regulatory Commission (NRC) final rule
being published in this issue of the Federal Register to revise its
regulations to remove the NRC's licensing authority for exports of
deuterium for non-nuclear end use. The responsibility for the licensing
of exports of deuterium for non-nuclear end use is being transferred to
the Department of Commerce's Bureau of Industry and Security (BIS). BIS
is publishing this final rule to include deuterium under its export
licensing jurisdiction under the Export Administration Regulations
(EAR). This Commerce final rule describes the changes made to the EAR
to control the deuterium moved from the export control authority of the
NRC to the export control authority of BIS under the EAR. Exports of
deuterium for nuclear end use will remain under the NRC's export
licensing jurisdiction.
Deuterium Under NRC and Its Evolution Into Broader Commercial Use
Section 109 of the Atomic Energy Act of 1954 (AEA), as amended by
the Nuclear Non-Proliferation Act of 1978 (NNPA), authorizes and
directs the NRC, after consultation with the Secretaries of State,
Energy, and Commerce, to exercise its export licensing authority over
``items or substances'' determined by the Commission to be ``especially
relevant from the standpoint of export control because of their
significance for nuclear explosive purposes'' (42 U.S.C. 2139(b)).
Since 1978, under this authority, the NRC has exercised jurisdiction
over all exports of deuterium, including heavy water, as well as
deuterium gas and other deuterated compounds for both nuclear and non-
nuclear end uses. In the early years of the nuclear energy industry,
deuterium oxide (heavy water) was largely produced for use in nuclear
reactors. High-purity reactor grade heavy water, which has a deuterium
concentration of 99.75 percent or greater, has been used to operate
reactors with natural uranium.
In the last decade, the market for deuterium has significantly
expanded and evolved beyond nuclear reactor use. Non-nuclear use of
deuterium includes but is not limited to production of: Advanced
electronics, deuterated solvents, deuterated pharmaceuticals, hydrogen
arc-lamps, neutron generators, and tracers in hydrological, biological,
and medical studies.
Despite this market change, the NRC has continued to control all
exports of deuterium under the general or specific export licensing
provisions in 10 CFR part 110. The NRC has determined, in consultation
with the Executive Branch, that it is appropriate to revise its
regulations and transfer the export licensing control of non-nuclear
end uses of deuterium to the Department of Commerce, as was done for
the non-nuclear end uses of nuclear graphite in 2005 (70 FR 41937; July
21, 2005).
Over the past 10 years, the quantity of deuterium exported for non-
nuclear end use has steadily increased. A growing number of companies
have been required to obtain specific licenses to export deuterium for
non-nuclear use because the quantity exceeded the general license
quantity thresholds. As stated in the NRC final rule published in this
edition of the Federal Register in conjunction with this Commerce final
rule, the NRC's recent licensing experience has shown that deuterium
has been exported almost exclusively for non-nuclear industrial and
research end uses, prompting the reevaluation of NRC licensing
requirements concerning these non-nuclear end use exports. Other
supplier nations have export controls over deuterium but have limited
them to cover exports ``for use in a nuclear reactor.'' This limitation
appears in both the Nuclear Non-Proliferation Treaty Exporters
Committee (Zangger Committee) and the Nuclear Suppliers Group (NSG)
clarifications of items on the Trigger List. The United States is a
member of the Zangger Committee and a Participating Government of the
NSG.
As stated in the NRC final rule published in conjunction with this
Commerce final rule, the history of the use of deuterium exported under
the NRC's authority indicates that deuterium has not been diverted for
known illicit purposes to produce weapons-grade material or for use in
unsafeguarded nuclear activities. To the extent that any risk of
diversion may exist, exports of deuterium for non-nuclear end use will
continue to be controlled by the Department of Commerce under the EAR,
and appropriate control mechanisms exist within national regulatory
authorities and the international community to detect efforts to divert
deuterium for known illicit purposes. Exports and reexports of
deuterium for non-nuclear end use will be controlled for Nuclear
Proliferation (NP) Column 2 under the EAR. A license will be required
for all destinations controlled for NP 2 reasons, which means an
authorization (a BIS license or license exception) will be required
under the EAR for exports and reexports to these destinations. In
[[Page 55493]]
addition, the end-use and end-user controls under part 744 of the EAR
will impose restrictive license requirements for exports, reexports,
and transfers (in-country) involving end uses and end users that would
be contrary to U.S. export control interests, e.g., under Sec. 744.2
(Restrictions on certain nuclear end uses), Sec. 744.6 (Restrictions
on certain activities of U.S. persons), and to entities of concern
(e.g., Entity List and Denied Persons List). The U.S. NRC took this
robust control structure under the EAR into account when determining
that appropriate destination, end-user, and end-use based controls will
be in place to appropriately control the deuterium for non-nuclear end
use. The following section describes the changes made to the EAR to
control the deuterium moved from the export control authority of the
NRC to the export control authority of BIS under the EAR.
Amendments to the Export Administration Regulations (EAR)
This final rule revises the heading, the License Requirement Note,
and the Related Controls paragraph, Related Definitions paragraph and
the Items paragraph in the List of Items Controlled section to control
deuterium under ECCN 1C298 as described below. The deuterium added to
ECCN 1C298 will be controlled for the same reason and have the same
license exception eligibility as the graphite controlled under 1C298,
so no changes are made to the Reasons for Control paragraph in the
License Requirements section and License Exceptions section. The
deuterium, as referenced above, will be controlled for NP Column 2, and
License Exceptions LVS, and GBS will not be available.
This final rule revises the heading of ECCN 1C298 by adding the
term deuterium in addition to the graphite that is already controlled
under 1C298. Both graphite and deuterium will be controlled under ECCN
1C298 when the graphite or deuterium is intended for use other than in
a nuclear reactor and meets the additional control parameters under
Items paragraphs .a or .b of 1C298. Because this final rule is adding
Items paragraphs .a and .b in the List of Items Controlled section to
further describe the graphite and deuterium controlled under ECCN
1C298, this final rule removes the control text from the heading that
described what graphite was controlled under the ECCN prior to this
final rule being published. This removed control text from the heading
is being added as new items paragraph .a under 1C298.
This final rule revises License Requirement Note to ECCN 1C298 to
make one conforming change. This final rule adds the term `deuterium'
to specify that all graphite and deuterium, as defined in ECCN 1C298,
intended for use in a nuclear reactor is subject to the export
licensing authority of the NRC.
This final rule adds a Related Controls paragraph (3) in the List
of Items Controlled section of ECCN 1C298 to provide greater detail on
the deuterium, including any deuterium compound, that, when intended
for use in a nuclear reactor, is subject to the export licensing
authority of the NRC.
This final rule adds a new Related Definition for Deuterium in the
List of Items Controlled section of ECCN 1C298. This ECCN-specific
definition specifies `Deuterium' means deuterium and any deuterium
compound, including heavy water, in which the ratio of deuterium atoms
to hydrogen atoms exceeds 1:5000.
Lastly, this final rule revises the Items paragraph in the List of
Items Controlled section to add Items paragraphs .a and .b. This final
rule adds Items paragraph .a to identify the graphite controlled under
ECCN 1C298. As referenced above, this is the same control parameter
text that was previously in the heading, but is now being moved to
items paragraph .a under ECCN 1C298. This final rule adds Items
paragraph .b to identify the `deuterium,' including any deuterium
compound, including heavy water that when it meets the control
parameter text of this paragraph .b will be controlled under ECCN
1C298. Specifically, `deuterium' not for use in a nuclear reactor will
be controlled under ECCN 1C298.
Export Control Reform Act of 2018
On August 13, 2018, the President signed into law the John S.
McCain National Defense Authorization Act for Fiscal Year 2019, which
included the Export Control Reform Act of 2018 (ECRA) (codified, as
amended, at 50 U.S.C. Sections 4801-4852). ECRA provides the legal
basis for BIS's principal authorities and serves as the authority under
which BIS issues this rule.
Rulemaking Requirements
1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This final rule has been designated a ``significant
regulatory action,'' although not economically significant, under
section 3(f) of Executive Order 12866. Commerce estimates that this
rule will result in a minimal increase to the number of license
requests submitted to BIS annually.
2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act 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 rule involves the following OMB-approved collections of
information subject to the PRA: 0694-0088, ``Multi-Purpose
Application,'' which carries a burden hour estimate of 29.6 minutes for
a manual or electronic submission; 0694-0096 ``Five Year Records
Retention Period,'' which carries a burden hour estimate of less than 1
minute; and 0607-0152 ``Automated Export System (AES) Program,'' which
carries a burden hour estimate of 3 minutes per electronic submission.
This rule changes the respondent burden by increasing the estimated
number of submissions by 20. Specifically, BIS estimates that this
control of deuterium under the EAR will result in an increase of twenty
license applications submitted annually to BIS. The additional burden
falls within the estimated burden approved by OMB for the following
information collections: 0694-0088, 0694-0096, and 0607-0152.
Any comments regarding these collections of information, including
suggestions for reducing the burden, may be submitted online at https://www.reginfo.gov/public/do/PRAMain. The particular information
collection may be found by using the search function and entering
either the title of the collection or the OMB Control Number.
3. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
4. Pursuant to section 1762 of the Export Control Reform Act of
2018 (50 U.S.C. 4801-4852), this action is exempt from the
Administrative Procedure Act (5 U.S.C. 553) requirements for notice of
proposed rulemaking, opportunity for public participation, and delay in
effective date.
5. Because a notice of proposed rulemaking and an opportunity for
[[Page 55494]]
public comment are not required to be given for this rule by 5 U.S.C.
553, or by any other law, the analytical requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., are not applicable.
Accordingly, no regulatory flexibility analysis is required and none
has been prepared.
List of Subjects in 15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, part 774 of the Export
Administration Regulations (15 CFR parts 730-774) is amended as
follows:
PART 774--THE COMMERCE CONTROL LIST
0
1. The authority citation for 15 CFR part 774 continues to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C.
287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15
U.S.C. 1824; 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.
0
2. In Supplement No. 1 to part 774, Category 1, revise Export Control
Classification Number (ECCN) 1C298 to read as follows:
* * * * *
1C298 Graphite and deuterium that is intended for use other than in
a nuclear reactor, as follows (see List of Items Controlled).
License Requirements
Reason for Control: NP
Country chart (see Supp. No.
Control(s) 1 to part 738)
NP applies to entire entry................ NP Column 2.
License Requirement Note: The graphite and deuterium, as defined in
this entry, when intended for use in a nuclear reactor, is subject
to the export licensing authority of the Nuclear Regulatory
Commission (see 10 CFR part 110).
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
LVS: N/A
GBS: N/A
List of Items Controlled
Related Controls: (1) See also 1C107. (2) Graphite having a purity
level of less than 5 parts per million ``boron equivalent'' as
measured according to ASTM standard C-1233-98 and intended for use
in a nuclear reactor is subject to the export licensing authority of
the Nuclear Regulatory Commission (see 10 CFR part 110). (3)
Deuterium and any deuterium compound, including heavy water, in
which the ratio of deuterium atoms to hydrogen atoms exceeds 1:5000;
and intended for use in a nuclear reactor is subject to the export
licensing authority of the Nuclear Regulatory Commission (see 10 CFR
part 110).
Related Definitions: For the purpose of this entry, graphite with a
purity level better than 5 parts per million boron equivalent is
determined according to ASTM standard C1233-98. In applying ASTM
standard C1233-98, the boron equivalence of the element carbon is
not included in the boron equivalence calculation, since carbon is
not considered an impurity. For the purpose of this entry,
`Deuterium' means deuterium and any deuterium compound, including
heavy water, in which the ratio of deuterium atoms to hydrogen atoms
exceeds 1:5000.
Items:
a. Graphite with a boron content of less than 5 parts per
million and a density greater than 1.5 grams per cubic centimeter
that is intended for use other than in a nuclear reactor;
b. `Deuterium' not for use in a nuclear reactor.
* * * * *
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2021-21509 Filed 10-5-21; 8:45 am]
BILLING CODE 3510-33-P
