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

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