Exports and Reexports of Commercial Charges and Devices Containing Energetic Materials

DEPARTMENT OF COMMERCE

Bureau of Export Administration

15 CFR Parts 742 and 774

[Docket No. 990811214-9214-01]

RIN 0694-AB79

Exports and Reexports of Commercial Charges and Devices

Containing Energetic Materials

AGENCY: Bureau of Export Administration, Commerce.

ACTION: Interim rule with request for comments.

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SUMMARY: The Bureau of Export Administration (BXA) maintains the

Commerce Control List (CCL), which identifies those items subject to

the Department of Commerce export controls. This interim rule amends

the CCL by revising and clarifying controls on certain commercial

charges and devices containing energetic materials commonly used in

mining and oil well development as well as in air bags and fire

extinguishers and also certain pyrotechnic/explosive devices, of the

type commonly used by the U.S. motion picture and television industry.

Specifically, this rule revises Export Control Classification Numbers

(ECCNs) 1C018 and 1C992 to better distinguish the types of charges and

explosive devices controlled by these entries and to provide clear

thresholds of control. Military explosive devices or charges that

utilize United States Munitions List (USML) controlled energetic

materials are subject to the export licensing authority of the

Department of State. In addition, individual USML controlled energetic

materials, even when compounded with other materials, are subject to

the export licensing authority of the Department of State, when not

incorporated into explosive devices or charges controlled by ECCNs

1C018 or 1C992. Commercial charges and devices containing energetic

materials that are not subject to the export licensing authority of the

Department of State or are not controlled by ECCN 1C018 are controlled

by ECCN 1C992 for anti-terrorism reasons.

This rule removes ECCN 1C998. Items previously controlled by ECCN

1C998 have been moved to ECCN 1C992.

In addition, this rule corrects an inadvertent error to License

Exception LVS for ECCN 0A018 that was published on July 14, 1998 (63 FR

37767).

DATES: Effective Date: This rule is effective September 1, 1999.

COMMENT DATES: Comments on this rule must be received on or before

October 18, 1999.

ADDRESSES: Written comments on this rule should be sent to Hillary

Hess, Regulatory Policy Division, Bureau of Export Administration,

Department of Commerce, P.O. Box 273, Washington, DC 20044.

FOR FURTHER INFORMATION CONTACT: Tanya Mottley, Director, Strategic

Trade Division, Bureau of Export Administration, Telephone: (202) 482-

1837.

SUPPLEMENTARY INFORMATION:

Background

Although the Export Administration Act (EAA) expired on August 20,

1994, the President invoked the International Emergency Economic Powers

Act and continued in effect, the Export Administration Regulations and,

to the extent permitted by law, the provisions of the EAA in Executive

Order 12924 of August 19, 1994, as extended by the President's notices

of August 15, 1995 (60 FR 42767), August 14, 1996 (61 FR 42527), August

13, 1997 (62 FR 43629), August 13, 1998 (63 FR 44121), and August 10,

1999 (64 FR 44101, August 13, 1999.

Rulemaking Requirements

1. This interim 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, nor shall any person be subject to a penalty for failure

to comply with a collection of information, subject to the Paperwork

Reduction Act (PRA), unless that collection of information displays a

currently valid OMB Control Number. This rule involves a collection of

information approved by the Office of Management and Budget under

control number 0694-0088, ``Multi-Purpose Application,'' which carries

a burden hour estimate of 45 minutes manually per submission and 40

minutes electronically, per submission. These estimates include the

time for reviewing instructions, searching existing data sources,

gathering and maintaining the data needed, and completing and reviewing

the collections of information. Send comments regarding these burden

estimates or any other aspect of these collections of information,

including suggestions for reducing the burden, to OMB Desk Officer, New

Executive Office Building, Washington, DC 20503; and to the Regulatory

Policy Division, Bureau of Export Administration, Department of

[[Page 47667]]

Commerce, P.O. Box 273, Washington, DC 20044 .

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 interim 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. 553 or by any

other law, the analytical requirements of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) are not applicable.

However, because of the importance of the issues raised by these

regulations, this rule is being issued in interim form and BXA will

consider comments in the development of the final regulations.

Accordingly, the Department encourages interested persons who wish

to comment to do it at the earliest possible time to permit the fullest

consideration of their views.

The period for submission of comments will close October 18, 1999.

The Department will consider all comments received before the close of

the comment period in developing final regulations. Comments received

after the end of the comment period will be considered if possible, but

their consideration cannot be assured. The Department will not accept

public comments accompanied by a request that a part or all of the

material be treated confidentially because of its business proprietary

nature or for any other reason. The Department will return such

comments and materials to the persons submitting the comments and will

not consider them in the development of final regulations. All public

comments on these regulations will be a matter of public record and

will be available for public inspection and copying. In the interest of

accuracy and completeness, the Department requires comments in written

form.

Oral comments must be followed by written memoranda, which will

also be a matter of public record and will be available for public

review and copying. Communications from agencies of the United States

Government or foreign governments will not be available for public

inspection.

The public record concerning these regulations will be maintained

in the Bureau of Export Administration Freedom of Information Records

Inspection Facility, Room 6883, Department of Commerce, 14th Street and

Pennsylvania Avenue, NW, Washington, DC 20230. Records in this

facility, including written public comments and memoranda summarizing

the substance of oral communications, may be inspected and copied in

accordance with regulations published in part 4 of Title 15 of the Code

of Federal Regulations. Information about the inspection and copying of

records at the facility may be obtained from Henry Gaston, Bureau of

Export Administration Freedom of Information Officer, at the above

address or by calling (202) 482-0500.

List of Subjects

15 CFR Part 742

Exports, Foreign trade.

15 CFR Part 774

Exports, Foreign trade, Reporting and recordkeeping requirements.

Accordingly, parts 742 and 774 of the Export Administration

Regulations (15 CFR parts 730-799) are amended as follows:

1. The authority citation for part 742 is revised to read as

follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;

18 U.S.C. 2510 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a;

E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 3

CFR, 1993 Comp., p. 608; E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp.,

p. 917; E.O. 12938, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 3 CFR,

1996 Comp. p. 219; E.O. 13026, 3 CFR, 1996 Comp., p. 228; Notice of

August 13, 1997 (62 FR 43629, August 15, 1997); Notice of August 13,

1998 (63 FR 44121, August 13, 1998); and Notice of August 10, 1999

(64 FR 44101, August 13, 1999).

2. The authority citation for 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. 720; 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; E.O. 12924, 59 FR 43437, 3 CFR, 1994

Comp., p. 917; Notice of August 15, 1995, 60 FR 42767, 3 CFR, 1995

Comp., p. 501; Notice of August 14, 1996, 61 FR 42527, 3 CFR, 1996

Comp., p. 298; Notice of August 13, 1997, 62 FR 43629, 3 CFR, 1997

Comp. p. 306; Notice of August 13, 1998, 63 FR 44121, 3 CFR, 1998

Comp. p. 294; and Notice of August 10, 1999 (64 FR 44101, August 13,

1999).

PART 742--[AMENDED]

3. Section 742.9 is amended by adding a new paragraph (b)(1)(vii),

to read as follows:

Sec. 742.9 Anti-terrorism: Syria

* * * * *

(b) * * *

(1) * * *

(vii) Commercial charges and devices controlled under ECCN 1C992.

* * * * *

4. Section 742.10 is amended by adding a new paragraph (b)(1)(vii),

to read as follows:

Sec. 742.10 Anti-terrorism: Sudan

* * * * *

(b) * * *

(1) * * *

(vii) Commercial charges and devices controlled under ECCN 1C992.

* * * * *

PART 774--[AMENDED]

5. In Supplement No. 1 to part 774, the Commerce Control List,

Category 0 (Nuclear Materials, Facilities, and Equipment [and

Miscellaneous Items]), Export Control Classification Number (ECCN)

0A018 is amended by revising the License Exceptions section to read as

follows:

0A018 Items on the International Munitions List.

* * * * *

LICENSE EXCEPTIONS

LVS:

$5000 for 0A018.a and .b

$3000 for 0A018.c

$1500 for 0A018.d through .f

$0 for Rwanda and the Federal Republic of Yugoslavia (Serbia and

Montenegro)

GBS: N/A

CIV: N/A

* * * * *

6. In Supplement No. 1 to part 774, the Commerce Control List,

Category 1 (Materials, Chemicals, Microorganisms, and Toxins), the

following Export Control Classification Numbers (ECCNs) are amended:

a. By revising the entry heading and the List of Items Controlled

section ECCN 1C018;

b. By revising ECCN 1C992; and

c. By removing ECCN 1C998, to read as follows:

1C018 Commercial charges and devices containing energetic materials on

the International Munitions List.

* * * * *

List of Items Controlled

Unit: Number.

[[Page 47668]]

Related Controls: (1) Explosive devices or charges that utilize

USML controlled energetic materials (See 22 CFR 121.1, Category V) are

subject to the licensing authority of the U.S. Department of State,

Office of Defense Trade Controls if they have been specifically

designed, developed, configured, adapted, or modified for a military

application. (2) With the exception of slurries, cutters and severing

tools, if the USML controlled materials utilized in devices and charges

controlled by this entry can be easily extracted without destroying the

device or charge, then they are subject to the export licensing

authority of the U.S. Department of State, Office of Defense Trade

Controls. (3) Commercial prefabricated slurries and emulsions

containing greater than 35% of USML controlled energetic materials are

subject to the export licensing authority of the U.S. Department of

State, Office of Defense Trade Control. (4) The individual USML

controlled energetic materials, even when compounded with other

materials, remain subject to the export licensing authority of the

Department of State when not incorporated into explosive devices or

charges controlled by this entry or 1C992. (5) See also ECCNs 1C011,

1C111, and 1C239 for additional controlled energetic materials.

Related Definitions: (1) For purposes of this entry, the term

``controlled materials'' means controlled energetic materials (see

ECCNs 1C011, 1C111, 1C239 and 22 CFR 121.1, Category V). (2) For

purposes of this entry, the mass of aluminum powder, potassium

perchlorate, and any of the substances listed in the note to the USML

(see 22 CFR Part 121.12) (such as ammonium pictrate, black powder,

etc.) contained in commercial explosive devices and in the charges are

omitted when determining the total mass of controlled material.

Items:

a. Shaped charges specially designed for oil well operations,

utilizing one charge functioning along a single axis, that upon

detonation produce a hole; and

a.1. Contain any controlled materials;

a.2. Have a uniform shaped conical liner with an included angle of 90

degrees or less;

a.3. Have more than 0.090 kg but not more that 2.0 kg of controlled

materials; and

a.4. Have a diameter not exceeding 4.5 inches.

b. Detonating cord or shock tubes containing greater than 0.064 kg

per meter (300 grains per foot), but not more than 0.1 kg per meter

(470 grains per foot) of controlled materials;

c. Cartridge power devices containing greater than 0.70 kg, but not

more than 1.0 kg of controlled materials;

d. Detonators (electric or nonelectric) and assemblies thereof

containing greater than 0.01 kg, but not more than 0.1 kg of controlled

materials;

e. Igniters containing greater than 0.01 kg, but not more than 0.1

kg of controlled materials;

f. Oil well cartridges containing greater than 0.015 kg, but not

more than 0.1 kg of controlled materials;

g. Commercial cast or pressed boosters containing greater than 1.0

kg, but not more than 5.0 kg of controlled materials;

h. Commercial prefabricated slurries and emulsions containing

greater than 10 kg and less than or equal to thirty-five percent by

weight of USML controlled materials;

i. Cutters and severing tools containing greater than 3.5 kg, but

not more than 10 kg of controlled materials;

j. Pyrotechnic devices when designed exclusively for commercial

purposes (e.g., theatrical stages, motion picture special effects, and

fireworks displays), and containing greater than 3.0 kg, but not more

than 5.0 kg of controlled materials; or

k. Other commercial explosive devices and charges, not controlled

by 1C018.a through g above, when used for commercial applications and

containing greater than 1.0 kg but not more than 5.0 kg of controlled

materials.

1C992 Commercial charges and devices containing energetic materials,

n.e.s.

License Requirements

Reason for Control: AT, UN.

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Control(s) Country chart

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AT applies to entire entry............. AT Column 1

UN applies to 1C992. b through k....... Federal Republic of Yugoslavia

(Serbia and Montenegro)

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License Exceptions

LVS: N/A

GBS: N/A

CIV: N/A

List of Items Controlled

Unit: $ value.

Related Controls: Commercial charges and devices containing USML

controlled energetic materials that exceed the quantities noted or that

are not covered by this entry are controlled under 1C018.

Related Definitions: (1) Items controlled by this entry 1C992 are

those materials not subject to the licensing authority of the U.S.

Department of State, Office of Defense Trade Controls (see 22 CFR part

121) or controlled by ECCN 1C018. (2) For purposes of this entry, the

term ``controlled materials'' means controlled energetic materials (see

ECCNs 1C011, 1C111, 1C239 and 22 CFR 121.1, Category V). (3) The

individual USML controlled energetic materials, even when compounded

with other materials, remain subject to the export licensing authority

of the Department of State when not incorporated into explosive devices

or charges controlled by this entry. (4) Commercial prefabricated

slurries and emulsions containing greater than 35% of USML controlled

energetic materials are subject to the export licensing authority of

the U.S. Department of State, Office of Defense Trade Control. (5) For

purposes of this entry, the mass of aluminum powder, potassium

perchlorate, and any of the substances listed in the note to the USML

(see 22 CFR 121.12) (such as ammonium pictrate, black powder, etc.)

contained in commercial explosive devices and in the charges are

omitted when determining the total mass of controlled material.

Items:

a. Shaped charges specially designed for oil well operations,

utilizing one charge functioning along a single axis, that upon

detonation produce a hole, and

a.1. Contain any formulation of controlled materials;

a.2. Have only a uniform shaped conical liner with an included angle of

90 degrees or less;

a.3. Contain more than 0.010 kg but less than or equal to 0.090 kg of

controlled materials; and

a.4. Have a diameter not exceeding 4.5 inches;

b. Shaped charges specially designed for oil well operations

containing less than or equal to 0.010 kg of controlled materials;

c. Detonation cord or shock tubes containing less than or equal to

0.064 kg per meter (300 grains per foot) of controlled materials;

d. Cartridge power devices, that contain less than or equal to 0.70

kg of controlled materials in the deflagration material;

e. Detonators (electric or nonelectric) and assemblies thereof,

that contain less than or equal to 0.01 kg of controlled materials;

f. Igniters, that contain less than or equal to 0.01 kg of

controlled materials;

g. Oil well cartridges, that contain less than or equal to 0.015 kg

of controlled energetic materials;

[[Page 47669]]

h. Commercial cast or pressed boosters containing less than or

equal to 1.0 kg of controlled materials;

i. Commercial prefabricated slurries and emulsions containing less

than or equal to 10.0 kg and less than or equal to thirty-five percent

by weight of USML controlled materials;

j. Cutters and severing tools containing less than or equal to 3.5

kg of controlled materials;

k. Pyrotechnic devices when designed exclusively for commercial

purposes (e.g., theatrical stages, motion picture special effects, and

fireworks displays) and containing less than or equal to 3.0 kg of

controlled materials; or

l. Other commercial explosive devices and charges not controlled by

1C992.a through .k containing less than or equal to 1.0 kg of

controlled materials.

Note: 1C992.l includes automotive safety devices; extinguishing

systems; cartridges for riveting guns; explosive charges for

agricultural, oil and gas operations, sporting goods, commercial

mining, or public works purposes; and delay tubes used in the

assembly of commercial explosive devices.

Dated: August 27, 1999.

Iain S. Baird,

Deputy Assistant Secretary for Export Administration.

[FR Doc. 99-22768 Filed 8-31-99; 8:45 am]

BILLING CODE 3510-33-P