[Federal Register: July 21, 2005 (Volume 70, Number 139)]
[Rules and Regulations]
[Page 41952-41953]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy05-9]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 774
[Docket No. 050707179-5179-01]
RIN 0694-AD28
Exports of Nuclear Grade Graphite: Change in Licensing
Jurisdiction.
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: The Bureau of Industry and Security is publishing this final
rule to make nuclear grade graphite intended for non-nuclear end uses
subject to the Export Administration Regulations' licensing
jurisdiction, and imposes a license requirement for exports and
reexports to destinations of concern for nuclear proliferation reasons.
The Nuclear Regulatory Commission (NRC) is discontinuing such
jurisdiction in a corresponding final rule published in this same issue
of the Federal Register. This transfer of jurisdiction and the
imposition of license requirements only to destinations of concern for
nuclear proliferation reasons are intended to remove the licensing
burden on exporters of nuclear grade graphite intended for non-nuclear
end uses to most destinations.
DATES: This rule is effective: July 21, 2005.
ADDRESSES: Although there is no formal comment period, public comments
on this regulation are welcome on a continuing basis. Comments should
be submitted to Jeff Lynch, Office of Exporter Services, Bureau of
Export Administration, Department of Commerce, P.O. Box 273,
Washington, D.C. 20044.
FOR FURTHER INFORMATION CONTACT: Jeffery Lynch in the Regulatory Policy
Division at (202) 482-2440 regarding questions of a general nature; or
Steven Clagett in the Nuclear and Missile Technology Controls Division
at (202) 482-1641 regarding questions of a technical nature.
SUPPLEMENTARY INFORMATION:
Background
To date, the Nuclear Regulatory Commission (NRC) has controlled all
exports of nuclear grade graphite under 10 CFR part 110, pursuant to
section 109b of the Atomic Energy Act, which governs ``items or
substances'' that are ``especially relevant from the standpoint of
export control because of their significance for nuclear explosive
purposes,'' 42 U.S.C. 2139. Due to improvements in technology, most
U.S. bulk, non-fabricated graphite is now nuclear grade--i.e., has a
purity level of less than 5 parts per million ``boron equivalent'' as
measured according to American Society for Testing and Materials (ASTM)
standard C-1233-98. The NRC has determined that the majority of nuclear
grade graphite exports are intended for non-nuclear commercial end
uses.
The widespread commercial uses of this graphite and the limited
proliferation concerns except when it is destined for a nuclear
reactor, led the supplier nations to limit their export controls on
nuclear grade graphite only when intended ``for use in a nuclear
reactor.'' This limitation appears in the definitions of controlled
items used by the Nuclear Non-Proliferation Treaty (NPT) Exporters
(Zangger) Committee and the Nuclear Suppliers Group (NSG)
(International Atomic Energy Agency INFCIRC/209 and 254 respectively).
The NRC has determined, in consultation with other agencies, that,
consistent with these multilateral definitions of controlled items,
exports of nuclear grade graphite intended for uses other than in a
nuclear reactor are not significant from a nuclear proliferation
perspective. This final rule is published in conjunction with a
corresponding final rule published by NRC that revises 10 CFR part 110
and discontinues NRClicensing jurisdiction of nuclear grade graphite
intended for non-nuclear uses. Although the NRC's final rule removes
the density parameter from its definition of nuclear grade graphite,
this final rule retains the density parameter for nuclear grade
graphite for non-nuclear end use in conformance with the NSG's
definition of ``nuclear grade graphite'' set forth in INFCIRC/254/Rev.
6/Part 1 of May 2003.
Specifically, this final rule revises Export Control Classification
Number (ECCN) 0C005 on the Commerce Control List, which describes
graphite that is subject to NRC jurisdiction, by removing the density
parameter for nuclear grade graphite, so that nuclear grade graphite is
defined only on the basis of its purity, consistent with the NRC
definition in its corresponding rule. This final rule also revises ECCN
0C005 to reflect the NRC scope of jurisdiction for graphite intended
for use in a nuclear reactor.
This final rule also adds a new ECCN 1C298 to control the export of
nuclear grade graphite with a purity level of less than 5 parts per
million ``boron equivalent'' and a density greater than 1.5 grams per
cubic centimeter to countries indicated under NP column 2 on the
Commerce Country Chart.
Finally, this final rule adds ``related controls'' notes to ECCNs
0C005, 1C107 and 1C298 to provide cross-references among all ECCNS that
control any type of graphite. ECCN 1C107 controls graphite that meets
certain density parameters for missile technology and antiterrorism
reasons.
In light of NRC's discontinued jurisdiction over graphite exports
not intended for nuclear end use, nuclear grade graphite that is not
described in ECCNs 1C107 or 1C298 is classified as EAR99 when intended
for a use other than in a nuclear reactor. However, such graphite may
require a license for reasons specified elsewhere in the EAR, for
example, the end-user/end-use restrictions described in Part 744 of the
EAR or the restrictions described in Part 746 of the EAR.
Although the Export Administration Act expired on August 20, 2001,
Executive Order 13222 (3 CFR 2001 Comp., p. 783), as extended by
Federal Register Notice of August 6, 2004 (69 FR 48763, August 10,
2004) continues the Regulations in effect under the International
Emergency Economic Powers Act.
Rulemaking Requirements
1. This final rule has been determined to be not 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 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 collections of information subject to the PRA. These
collections have been approved by the Office of Management and Budget
(OMB) under control number 0694-0088, ``Multi-Purpose Application,''
which carries a burden hour estimate of 58 minutes to prepare and
submit. This rule is anticipated to increase the number of licenses
required but not to increase the range of total burden hours associated
with this control number. Send
[[Page 41953]]
comments regarding these burden estimates or any other aspect of these
collections of information, including suggestions for reducing the
burden, to David Rostker, OMB Desk Officer, by e-mail at
david_rostker@omb.eop.gov or by fax to (202) 395-7285; and to the Regulatory
Policy Division, Bureau of Industry and Security, Department of
Commerce, P.O. Box 273, Washington, DC 20044.
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)). Further, no other
law requires that a notice of proposed rulemaking and an opportunity
for public comment be given for this final rule. Because a notice of
proposed rulemaking and an opportunity for public comment are not
required to be given for this rule under the Administrative Procedure
Act or by any other law, the analytical requirements of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore,
this regulation is issued in final form.
List of Subjects in 15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
0
Accordingly, part 774 of the Export Administration Regulations (15 CFR
parts 730-799) are amended as follows:
PART 774--[AMENDED]
0
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; 30 U.S.C. 185(s),
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; Sec. 901-911, Pub. L. 106-387; Sec.
221, Pub. L. 107-56; 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 6, 2004, 69 FR 48763, August 10, 2004.
0
2. In Supplement No. 1 to part 774, Category 0, Nuclear Materials,
Facilities and Equipment (And Misc. Items), ECCN 0C005 is revised to
read as follows:
0C005 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.
License Requirements
Reason for Control:
Control(s): Items described in 0C005 are subject to the export
licensing authority of the Nuclear Regulatory Commission (see 10 CFR
part 110).
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: N/A.
Related Controls: Graphite intended for a use other than in a
nuclear reactor, and that meets certain density parameters, is
classified under ECCN 1C107.High-purity graphite with a boron
content of less than 5 parts per million and a density greater than
1.5 grams per cubic centimeter, is classified under ECCN 1C298.
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0
3. In Supplement No. 1 to part 774, Category 1, Materials, Chemicals,
``Microorganisms,'' and Toxins, ECCN 1C107 is revised to read as
follows:
IC107 Graphite and ceramic materials, other than those controlled by
1C007, as follows (see List of Items Controlled).
License Requirements
Reason for Control: MT, AT
Control(s) Country chart
MT applies to entire entry................ MT Column 1
AT applies to entire entry................ AT Column 1
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms.
Related Controls: (1) See also 0C005, 1C004, and 1C298. (2) For
commodities that meet the definition of defense articles under 22
CFR 120.3 of the ITAR, see 22 CFR 121.16, Item 8-Category II of the
International Traffic in Arms Regulations (ITAR), which describes
similar commodities under the jurisdiction of the Department of
State, Directorate of Defense Trade Controls.
Related Definitions: N/A.
Items: a. Fine grain recrystallized bulk graphites with a bulk
density of 1.72 g/cm3 or greater, measured at 288 K (15[deg] C), and
having a particle size of 100 micrometers or less, usable for rocket
nozzles and reentry vehicle nose tips as follows:
a.1. Cylinders having a diameter of 120 mm or greater and a
length of 50 mm orgreater;
a.2. Tubes having an inner diameter of 65 mm or greater and a
wall thickness of 25 mm or greater and a length of 50 mm or greater;
a.3. Blocks having a size of 120 mm x 120 mm x 50 mm or greater.
b. Pyrolytic or fibrous reinforced graphites, usable for rocket
nozzles and reentry vehicle nose tips;
c. Ceramic composite materials (dielectric constant is less than
6 at any frequency from 100 MHz to 100 GHz), for use in ``missile''
radomes; and
d. Bulk machinable silicon-carbide reinforced unfired ceramic,
usable for nose tips.
0
4. In Supplement No. 1 to part 774, Category 1, Materials, Chemicals,
``Microorganisms,'' and Toxins, is amended by adding ECCN 1C298
immediately following ECCN 1C240.
1C298 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.
License Requirements
Reason for Control: NP.
Control(s) Country chart
NP applies to entire entry................ NP Column 2
License Requirement Note: This entry does not control graphite
intended for use in a nuclear reactor. Such graphite is subject to
the export licensing authority of the Nuclear Regulatory Commission
(see ECCN 0C005 and 10 CFR part 110).
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: N/A.
Related Controls: See also 1C107 and 0C005.
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.
Items: The list of items controlled is contained in the ECCN
heading.
Dated: July 14, 2005.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 05-14412 Filed 7-20-05; 8:45 am]
BILLING CODE 3510-33-P