29 September 1997
Source: http://www.access.gpo.gov/su_docs/aces/aces140.html

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[Federal Register: September 29, 1997 (Volume 62, Number 188)]
[Rules and Regulations]
[Page 50865-50866]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29se97-5]

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DEPARTMENT OF COMMERCE

Bureau of Export Administration

15 CFR Part 774

[Docket No. 960918265-7203-04]
RIN 0694-AB09


Satellite Fuel, Ground Support Equipment, Test Equipment, Payload
Adapter/Interface Hardware, and Replacement Parts for the Preceding
Items, When Included With a Specific Commercial Communications
Satellite Launch

AGENCY: Bureau of Export Administration, Commerce.

ACTION: Final rule.

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SUMMARY: This final rule amends the Commerce Control List of the Export
Administration Regulations by revising the List of Items Controlled, of
Export Control Classification Number (ECCN) 9A004, to provide that
satellite fuel, ground support equipment, test equipment, payload
adapter/interface hardware and replacement parts for the preceding
items are subject to Commerce jurisdiction when they are included with
a specific commercial communications satellite. This rule amends the
interim final rule of October 21, 1996 that transferred jurisdiction of
all commercial communications satellites from the Department of State
to the Department of Commerce.

EFFECTIVE DATE: September 29, 1997.

FOR FURTHER INFORMATION CONTACT: Gene Christiansen, Office of Strategic
Trade, Telephone: (202) 482-2984.

SUPPLEMENTARY INFORMATION:

Background

    On October 21, 1996, the Department of Commerce published an
interim final rule in the Federal Register (61 FR 54540) that amended
the Export Administration Regulations (EAR) by revising Export Control
Classification Number (ECCN) 9A004 to control all commercial
communications satellites. The interim final rule also imposed enhanced
national security and foreign policy controls (``SI'' controls for
significant items) on all commercial communications satellites
controlled under ECCN 9A004.a.
    This final rule amends the Commerce Control List of the Export
Administration Regulations by revising the List of Items Controlled, of
Export Control Classification Number (ECCN) 9A004, to provide that
satellite fuel, ground support equipment, test equipment, payload
adapter/interface hardware and replacement parts for the preceding
items are subject to Commerce jurisdiction when they are included with
a specific commercial communications satellite.
    Although the Export Administration Act (EAA) expired on August 20,
1994, the President invoked the International Emergency Economic Powers
Act and continued in effect, to the extent permitted by law, the
provisions of the EAA and the EAR in Executive Order 12924 of August
19, 1994, notice of August 15, 1995 (60 FR 42767), and August 14, 1996
(61 FR 42527); and August 13, 1997 (62 FR 43629).

Rulemaking Requirements

    1. This final rule has been determined to be significant for
purposes of E.O. 12866.
    2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the Paperwork Reduction Act, unless that collection of
information displays a currently valid OMB Control Number. This rule
involves a collection of information subject to the Paperwork Reduction
Act of 1980 (44 U.S.C. 3501 et seq.). This collection has been approved
by the Office of Management and Budget under control number 0694-0088.
    3. This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under
Executive Order 12612.
    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 (Sec. 5 U.S.C. 553(a)(1)). Further, no
other law requires that a notice of proposed rulemaking and an
opportunity for public comment be given for this final rule. Because a
notice of proposed rulemaking and an opportunity for public comment are
not required to be given for this rule under 5 U.S.C. or by any other
law, the analytical requirements of the Regulatory Flexibility Act (5
U.S.C. 601 et seq. ) are not applicable.

List of Subjects in 15 CFR Part 774

    Exports, Foreign trade, Reporting and recordkeeping requirements.

    Accordingly, part 774 of the Export Administration Regulations (15
CFR Parts 730-799) is amended as follows:

PART 774--[AMENDED]

    1. The authority citation for 15 CFR part 774 continues to read as
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C.
287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; Sec. 201, Pub. L. 104-
58, 109 Stat. 557 (30 U.S.C. 185(s)); 30 U.S.C. 185(u); 42 U.S.C.
2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50
U.S.C. app. 5; E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917;
Notice of August 15, 1995, 3 CFR 1995 Comp. 501 (1996); Notice of
August 14, 1996 (61 FR 42527, August 15, 1996); Notice of August 13,
1997 (62 FR 43629, August 15, 1997).

[[Page 50866]]

Supplement No. 1 to Part 774   [Amended]

    2. In Supplement No. 1 to part 774, the Commerce Control List,
Category 9 (Propulsion Systems, Space Vehicles, and Related Equipment),
Export Control Classification Number (ECCN) 9A004 is amended by
revising the List of Items Controlled to read as follows:

9A004   ``Spacecraft'', (not including their payloads) and specially
designed components therefor that are not subject to the authority of
the Department of State. (See notes.)

* * * * *

List of Items Controlled

    Unit: Equipment in number; systems, components, parts and
accessories in $ value.
    Related Controls: (1) The corresponding EU list number controls
space launch vehicles (not including their payloads) and other
``spacecraft'' (not identified in this CCL entry). These items are
subject to the export licensing authority of the U.S. Department of
State, Office of Defense Trade Controls (See 22 CFR part 121, Category
XV). For the control status of products contained in ``spacecraft''
payloads, see the appropriate categories of the U.S. Munitions List
(USML). (2) For the control status of items contained in ``spacecraft''
payloads subject to the EAR, see the appropriate entries on the CCL.
    Related Definition: Transferring registration or operational
control to any foreign person of any commercial communications
satellite controlled by this entry must be authorized on a license
issued by the Bureau of Export Administration. This requirement applies
whether the commercial communications satellite is physically located
in the United States or abroad.

Items

    a. Commercial communications Satellites;

    Technical Note: Commercial communications satellites are subject
to Commerce licensing jurisdiction even if they include the
individual munitions list systems, components, or parts identified
in Category XV(f) of the United States Munitions List (USML). In all
other cases, these Category XV(f) systems, components, or parts
remain on the USML, except that satellite fuel, ground support
equipment, test equipment, payload adapter/interface hardware,
replacement parts for the preceding items, and non-embedded, solid
propellant orbit transfer engines (``kick motors'') are subject to
Commerce licensing jurisdiction (and not controlled on the USML)
when they are to be utilized for the specific commercial
communications satellite launch, provided the solid propellant
``kick motor'' being utilized is not specifically designed or
modified for military use or capable of being restarted after
achievement of mission orbit (such orbit transfer engines are always
controlled under Category IV of the USML). Technical data (as
defined in Sec. 120.10 of the International Traffic in Arms
Regulations (ITAR)) and defense services (as defined in Sec. 120.9
of the ITAR) related to the systems, components, or parts referred
to in Category XV(f) of the USML are always controlled under the
USML, even when the satellite itself is licensed by the Department
of Commerce.

    Notes: 1. Military communication satellites or multi-mission
satellites, including commercial communications satellites having
additional non-communication mission(s) or payload(s) are under the
jurisdiction of the Department of State.
    2. As indicated in the Technical Note, under some circumstances
a license application under 9A004 includes other items, which are
necessary for the commercial communications satellite launch, but
are normally subject to State Department jurisdiction. Certain of
these items (e.g., kickmotors, satellite fuel, etc.) are controlled
by the Missile Technology Control Regime (MTCR) Equipment and
Technology Annex.

    b. [Reserved]
    c. Other ``spacecraft'' not subject to the export licensing
authority of the U.S. Department of State, Office of Defense Trade
Controls under 22 CFR part 121, Category XV.

    Notes: 1. ECCN 9A004.c includes the international space station
being developed, launched and operated under the supervision of the
U.S. National Aeronautics and Space Administration. Exporters
requesting a license from the Department of Commerce for spacecraft
other than the international space station or a commercial
communications satellite specified in 9A004 must provide a statement
from the Department of State, Office of Defense Trade Controls,
verifying that the item intended for export is under the licensing
jurisdiction of the Department of Commerce.
    2. All other spacecraft, including all other satellites not
controlled under 9A004 and components, parts, accessories,
attachments, associated equipment, and ground support equipment
therefor are subject to the export licensing authority of the
Department of State.
    3. Items on Category XV(f) of the USML and certain other USML
items designated in the technical note, above, that are included in
a commercial communications satellite to be exported under a
Commerce license must be specifically listed on the Commerce license
application. Such USML items when not included in a specific
commercial communications satellite are under the jurisdiction of
the Department of State.
    4. Technical data provided to the launch provider (form, fit,
function, mass, electrical, mechanical, dynamic/environmental,
telemetry, safety, facility, launch pad access, and launch
parameters) for commercial communications satellites that describe
the interfaces for mating of the satellite to the launch vehicle and
parameters for launch (e.g., orbit, timing) of the satellite, are
under Commerce jurisdiction. Other technical data and all defense
services and technical assistance for satellite and/or launch
vehicles, including compatibility, integration, or processing data
are controlled and subject to licensing by the Department of State,
in accordance with 22 CFR parts 120 through 130. Approval for such
technical assistance will require a Technical Assistance Agreement
(TAA) and may require U.S. Government oversight.
    5. Once a satellite is launched, items remaining unlaunched are
required to be returned immediately to the United States. If the
satellite launch is canceled or unduly delayed, the satellite and
all support equipment must be returned immediately to the United
States.
    6. Detailed design, development, production, or manufacturing
data for all spacecraft, including satellites, regardless of which
agency has jurisdiction over the export, and all systems components,
parts, accessories, attachments, and associated equipment (including
ground support equipment) specifically designed or modified for
articles under Category XV on the United States Munitions List
(including software source code and operating algorithms) are
subject to licensing by the Department of State. This does not
include that level of technical data (including marketing data)
necessary and reasonable for a purchaser to have assurance that a
U.S.-built item intended to operate in space has been designed,
manufactured and tested in conformance with specified contract
requirements (e.g., operational performance, reliability, lifetime,
product quality, or delivery expectations) as well as data necessary
for normal in-orbit satellite operations, to evaluate in-orbit
anomalies, and to operate and maintain associated ground station
equipment (except encryption hardware).

    Dated: September 17, 1997.
William V. Skidmore,
Acting Assistant Secretary for Export Administration.
[FR Doc. 97-25765 Filed 9-26-97; 8:45 am]
BILLING CODE 3510-33-P
