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[Federal Register: February 9, 2010 (Volume 75, Number 26)]
[Rules and Regulations]               
[Page 6301-6305]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe10-2]                         

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 740

[Docket No. 0812241645-91422-01]
RIN 0694-AE52

 
Revisions to License Exception GOV To Provide Authorization for 
Exports and Reexports of Commodities for Use on the International Space 
Station (ISS)

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: This rule amends the Export Administration Regulations (EAR or 
Regulations) by revising an existing license exception to provide a new 
authorization for exports and reexports of certain commodities subject 
to the EAR when those commodities are intended for use on the 
International Space Station (ISS). This rule establishes specific terms 
and conditions with which exports or reexports must comply in order to 
take advantage of the new authorization. For example, an export or 
reexport undertaken in accordance with the new authorization must be 
consigned to an eligible recipient involved in the launch of the 
commodity to the ISS. This new authorization is limited to commodities 
that are subject to the EAR that are needed at a launch destination 
outside the United States on short notice. This rule defines `short 
notice' as a requirement to have a commodity manifested and at the 
scheduled launch site for hatch-closure (final stowage) no more than 
forty-five (45) days from the time the exporter or reexporter received 
complete documentation. `Complete documentation' means the exporter or 
reexporter received the technical description of the commodity and 
purpose for use of the commodity on the ISS. This rule defines `hatch-
closure (final stowage)' as the final date specified by a launch 
provider by which items must be at a specified location in a launch 
country in order to be included on a mission to the ISS. BIS has 
determined there is a low risk of diversion and a high benefit for 
authorizing these types of transactions to proceed under a license 
exception.

DATES: Effective Date: This rule is effective February 9, 2010. 
Although there is no formal comment period, public comments on this 
regulation are welcome on a continuing basis.

ADDRESSES: You may submit comments, identified by RIN 0694-AE52, by any 
of the following methods:
    E-mail: publiccomments@bis.doc.gov. Include ``RIN 0694-AE52'' in 
the subject line of the message.
    Fax: (202) 482-3355. Please alert the Regulatory Policy Division, 
by calling (202) 482-2440, if you are faxing comments.
    Mail or Hand Delivery/Courier: Timothy Mooney, U.S. Department of 
Commerce, Bureau of Industry and Security, Regulatory Policy Division, 
14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, 
Attn: RIN 0694-AE52.
    Send comments regarding the collection of information associated 
with this rule, including suggestions for reducing the burden, to 
Jasmeet K. Seehra, Office of Management and Budget (OMB), by e-mail to 
Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285; and to 
the Regulatory Policy Division, Bureau of Industry and Security, 
Department of Commerce, 14th St. & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230. Comments on this collection of information should 
be submitted separately from comments on the final rule (i.e., RIN 
0694-AE52)--all comments on the latter should be submitted by one of 
the three methods outlined above.

FOR FURTHER INFORMATION CONTACT: Gene Christiansen, Senior Engineer/
Licensing Officer, Office of National Security and Technology Transfer 
Controls, telephone: (202) 482-2984.

SUPPLEMENTARY INFORMATION:

Background

    This rule adds a new paragraph (d) to License Exception GOV in 15 
CFR 740.11 (Governments, international organizations, and international 
inspections under the Chemical Weapons Convention (GOV)) to provide 
authorization for the export or reexport of certain commodities subject 
to the

[[Page 6302]]

EAR for use on the International Space Station (ISS). BIS has 
determined there is a low risk of diversion and a high benefit for 
authorizing these types of transactions to proceed under a license 
exception. This rule also updates the heading and introductory text of 
the section to reflect this new authorization.

What is the ISS?

    The ISS is a research facility currently being assembled in outer 
space, the on-orbit construction of which began in 1998. The ISS is in 
a low-Earth orbit approximately 190 miles (350 km) above the surface of 
the Earth. It is a joint project among the space agencies of the United 
States, Russia, Japan, Canada, Europe and Italy. (The Italian Space 
Agency has separate contracts for various activities not done under the 
framework of the European Space Agency's (ESA) works.) The ISS is 
nearing completion of assembly, and is planned to remain in operation 
until at least 2016.

What has been the U.S. Government's involvement with the ISS?

    The U.S. Government participation in this joint project includes 
developing and supplying many items that are used on the ISS, including 
many items that are subject to the jurisdiction of the EAR. For 
example, commodities subject to the EAR that are classified under 
Export Control Classification Number (ECCN) 9A004 (Space launch 
vehicles and ``spacecraft'') are used on the ISS, as are many other 
items subject to the Regulations. The U.S. Government, via the National 
Aeronautics and Space Administration (NASA), has international 
obligations pertaining to the ISS, including providing the overall 
program management and coordination for the design and development of 
the ISS and serving as the prime integrator for the ISS.

Why is this new authorization needed under License Exception GOV?

    The ISS is serviced primarily by the U.S. Space Shuttle and the 
Russian manned Soyuz spacecraft and unmanned Progress spacecraft. 
However, NASA has announced its intention to discontinue the U.S. Space 
Shuttle program in the near future, so the ISS will have to rely 
increasingly on the Russian Soyuz and Progress spacecraft and other 
non-U.S. spacecraft, such as ESA's Automated Transfer Vehicle (ATV) and 
Japan's H-II Transfer Vehicle (HTV), until additional U.S. delivery 
vehicles become available. On March 9, 2008, ESA launched its first 
Automated Transfer Vehicle (ATV) to the ISS via its Ariane 5 launch 
system, with other ATVs to follow. On September 10, 2009 (EDT), Japan 
launched its first of several HTVs to the ISS via its H-IIB launch 
vehicle. Because certain items used on the ISS are subject to the EAR, 
the Commerce Department and other agencies of the U.S. Government 
involved in reviewing BIS export license applications have worked with 
NASA when export licenses have been required for items eventually 
destined to the ISS, but launched from a foreign country. For example, 
commodities subject to the EAR classified under ECCN 9A004 are 
controlled for NS1 reasons, meaning they are subject to a license 
requirement when exported or reexported to Russia. However, even when 
BIS license applications are given expedited review, there are certain 
processing time constraints that cannot be overcome (i.e., even with 
expedited review, the minimum time necessary for BIS to process and 
approve the license application may not be fast enough to accommodate 
certain launch opportunities).
    Given the unique environment in which the ISS exists, and the 
potential threat to its residents posed by even the most basic part 
wearing out or breaking, it is essential that NASA and other official 
suppliers of items used on the ISS be able to export or reexport those 
items when they are needed to supply or repair the ISS. The U.S. 
Government is committed to safety of flight and has various provisions 
under the EAR to help ensure safety of flight for civil aircraft. The 
ISS is unique in that it is constantly in operation and, therefore, the 
safety of flight concerns are significantly increased when any issues 
arise with parts or components used on the ISS. This engenders a need 
for a more expedited process to authorize these specific transactions 
for commodities that need to be delivered to the ISS as soon as 
possible.

What types of changes are made to the EAR?

    In Sec.  740.11 (Governments, international organizations, and 
international inspections under the Chemical Weapons Convention (GOV)), 
this rule adds a paragraph (d) to provide a new authorization for the 
export or reexport of commodities subject to the EAR that are 
classified under ECCN 9A004 for use on the ISS. Specifically, this rule 
provides a new authorization for commodities classified under ECCN 
9A004 that are subject to the EAR that are needed at a launch 
destination outside of the U.S. on short notice. This rule defines 
`short notice' as a requirement to have a commodity manifested and at 
the scheduled launch site for hatch-closure (final stowage) no more 
than forty-five (45) days from the time the exporter or reexporter 
received complete documentation. `Complete documentation' means the 
exporter or reexporter received the technical description of the 
commodity and purpose for use of the commodity on the ISS. `Hatch-
closure (final stowage)' means the final date specified by a launch 
provider by which items must be at a specified location in a launch 
country in order to be included on a mission to the ISS. As noted 
above, in many cases, the commodities being exported or reexported 
under these provisions will be needed for a launch destined to the ISS 
within days, not months. To provide for unexpected delays in a launch 
schedule, such as for mechanical failures in a launch vehicle or 
weather related delays, this rule authorizes the retention of the 
commodities at or near the launch site for a period of six (6) months 
from the time of initial export or reexport before the commodities must 
be destroyed, returned, or a license application be submitted to BIS 
for further disposition of the commodity(ies). This rule also provides 
for a one-time six (6) month extension of this time limit provided the 
exporter or the person that has control of the items submits written 
notification to BIS requesting a six (6) month extension and noting the 
reason for the delay.

What commodities may be exported or reexported under this new 
authorization?

    Only commodities classified under ECCN 9A004 that are subject to 
the EAR are eligible to be exported or reexported under this new 
paragraph of License Exception GOV.
    The following commodities are among those that may not be exported 
or reexported under this new authorization:
    Parts and components used by overseas manufacturers in the 
construction, assembly, fabrication, etc. of items used on the ISS. The 
export or reexport of parts and components to overseas manufacturers 
must be duly authorized by other provisions of the EAR; and
    Any commodity restricted by the provisions of Sec.  740.2 
(Restrictions on All License Exceptions) of the EAR.

Who may export or reexport under this new authorization?

    In the vast majority of cases, the commodities exported for 
missions to the ISS will be exported by NASA to the launch countries. 
However, to account

[[Page 6303]]

for certain times when a NASA supplier may need to export or reexport a 
commodity to a launch destination outside of the U.S., this exception 
is not limited to NASA as the exporter or reexporter.

What destinations are eligible to receive commodities under this new 
authorization?

    Eligible destinations are France, Japan, Kazakhstan, and Russia. To 
be eligible, a destination needs to have a launch for a supply mission 
to the ISS scheduled by a country participating in the ISS.

When may this authorization be used?

    There must also be a requirement to have a commodity at the 
scheduled launch site for hatch-closure (final stowage) no more than 45 
days from the time the exporter or reexporter received complete 
documentation. `Complete documentation' means the exporter or 
reexporter received the technical description of the commodity and 
purpose for use of the commodity on the ISS. The exporter or reexporter 
must receive the notification to supply the commodity for use on the 
ISS in writing. Acceptable forms of written notification include, but 
are not limited to: Email, fax, or letter. Exporters and reexporters 
must retain a record as per the Recordkeeping requirements in part 762 
of the EAR of this written notification requesting that specific 
commodities be supplied on short notice for a supply mission to the 
ISS, including the date the exporter or reexporter received complete 
documentation (i.e., the day on which the 45-day clock begins under 
paragraph (d) of this section).

What space launch vehicles (SLVs) are eligible?

    This new authorization is limited to commodities that will be 
delivered to the ISS using United States, Russian, French (ESA), or 
Japanese space launch vehicles (SLVs). SLVs from any other countries 
are specifically excluded from this new authorization, even if one of 
those countries were to appear on NASA's list as an eligible 
destination.

Who may receive commodities under this new authorization?

    The persons who may receive or have access to commodities 
authorized under this new paragraph (d) are limited to eligible 
recipients involved in the launch of the commodities to the ISS. An 
eligible recipient may be the space agency of one of the member 
countries of the ISS project, but may also be other persons who are 
acting on behalf of one of those member countries in support of the 
ISS. For example, the Russian company S.P. Korolev Rocket and Space 
Corporation Energia coordinates the launch of items to the ISS from 
Russia, so it is an eligible recipient even though it is not a space 
agency. This rule specifically excludes from the list of eligible 
recipients any national of a country listed in Country Group E:1 in 
Supplement No. 1 to part 740. In addition, no person may receive 
commodities authorized under paragraph (d) if that person is subject to 
any end-user or end-use control described in part 744 of the EAR, 
including the Entity List in Supplement No. 4 to part 744.
    Finally, this rule adds recordkeeping requirements with which 
persons using paragraph (d) of License Exception GOV must comply in 
order to use this new authorization.
    Although the Export Administration Act expired on August 20, 2001, 
the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 
2001 Comp., p. 783 (2002), as extended by the Notice of August 13, 
2009, 74 FR 41325 (August 14, 2009), has continued the Export 
Administration Regulations in effect under the International Emergency 
Economic Powers Act.

Rulemaking Requirements

    1. This rule has been determined to be significant for purposes of 
Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to nor 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 (PRA), 44 U.S.C. 3501, et seq., 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This regulation involves 
collections previously approved by the OMB under control number 0694-
0088, ``Multi-Purpose Application,'' form BIS-748. This collection 
carries a burden hour estimate of 58 minutes to prepare and submit. 
Miscellaneous and recordkeeping activities account for 12 minutes per 
submission. Total burden hours associated with the PRA and OMB control 
number 0694-0088 are expected to increase slightly as a result of this 
rule.
    3. This rule does not contain policies with Federalism implications 
as that term is defined in Executive Order 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 or foreign affairs function 
of the United States. See 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 rule. Because a notice of proposed 
rulemaking and an opportunity for 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.

List of Subjects in 15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.


0
Accordingly, part 740 of the Export Administration Regulations (15 CFR 
parts 730-774) is amended as follows:

PART 740--[AMENDED]

0
1. The authority citation for 15 CFR part 740 continues to read as 
follows:

    Authority:  50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
22 U.S.C. 7201 et seq.; 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 13, 2009, 74 FR 41325 (August 14, 2009).

0
2. Section 740.11 is amended:
0
a. By revising the heading of the section;
0
b. By revising the introductory text of the section; and
0
c. By adding paragraph (d), to read as follows:


Sec.  740.11  Governments, international organizations, international 
inspections under the Chemical Weapons Convention, and the 
International Space Station (GOV).

    This License Exception authorizes exports and reexports for 
international nuclear safeguards; U.S. government agencies or 
personnel, and agencies of cooperating governments; international 
inspections under the Chemical Weapons Convention; and the 
International Space Station.
* * * * *
    (d) International Space Station (ISS)--(1) Scope. This paragraph 
(d) authorizes exports and reexports required on short notice of 
certain commodities subject to the EAR that are classified under ECCN 
9A004 to launch sites for supply missions to the International Space 
Station (ISS). The ISS is a research facility in a low-Earth orbit 
approximately 190 miles (350 km) above the surface of the Earth. The 
ISS is a joint project among the space

[[Page 6304]]

agencies of the United States, Russia, Japan, Canada, Europe and Italy.
    (2) Eligible commodities. Any commodity subject to the EAR that is 
classified under ECCN 9A004 and that is required for use on the ISS on 
short notice.

    Note 1 to paragraph (d)(2):  This license exception is not 
available for the export or reexport of parts and components to 
overseas manufacturers for the purpose of incorporation into other 
items destined for the ISS.


    Note 2 to paragraph (d)(2):  For purposes of this paragraph (d), 
`short notice' means the exporter is required to have a commodity 
manifested and at the scheduled launch site for hatch-closure (final 
stowage) no more than forty-five (45) days from the time the 
exporter or reexporter received complete documentation. `Complete 
documentation' means the exporter or reexporter received the 
technical description of the commodity and purpose for use of the 
commodity on the ISS. For purposes of this paragraph (d), `hatch-
closure (final stowage)' means the final date specified by a launch 
provider by which items must be at a specified location in a launch 
country in order to be included on a mission to the ISS. The 
exporter or reexporter must receive the notification to supply the 
commodity for use on the ISS in writing. That notification must be 
kept in accordance with paragraph (d)(6) of this section and the 
Recordkeeping requirements in part 762 of the EAR.


    (3) Eligible destinations. Eligible destinations are France, Japan, 
Kazakhstan, and Russia. To be eligible, a destination needs to have a 
launch for a supply mission to the ISS scheduled by a country 
participating in the ISS.
    (i) Authorization to retain commodity at or near launch site for up 
to six months. If there are unexpected delays in a launch schedule for 
reasons such as mechanical failures in a launch vehicle or weather, 
commodities exported or reexported under the provisions of this 
paragraph (d) are authorized to be retained at or near the launch site 
for a period of six (6) months from the time of initial export or 
reexport before the commodities must be destroyed, returned to the 
exporter or reexporter, or be the subject of an individually validated 
license request submitted to BIS to authorize further disposition of 
the commodities.
    (ii) Authorization to retain commodity abroad at launch country 
beyond six months. If, after the commodity is exported or reexported 
under this authorization, a delay occurs in the launch schedule that 
would exceed the 6-month deadline in paragraph (d)(3)(i) of this 
section, the exporter or reexporter or the person in control of the 
commodities in the launch country may request a one-time 6-month 
extension by submitting written notification to BIS requesting a 6-
month extension and noting the reason for the delay. If the requestor 
is not contacted by BIS within 30 days from the date of the postmark of 
the written notification and if the notification meets the requirements 
of this subparagraph, the request is deemed granted. The request must 
be sent to BIS at the address listed in part 748 of the EAR and should 
include the name and address of the exporter or reexporter, the name 
and address of the person who has control of the commodity, the date 
the commodities were exported or reexported, a brief product 
description, and the justification for the extension. To retain a 
commodity abroad beyond the time authorized by paragraph (d)(3)(i) of 
this section, the exporter, reexporter or person in control of the 
commodity must request authorization by submitting a license 
application in accordance with Sec. Sec.  748.1, 748.4 and 748.6 of the 
EAR to BIS 90 days prior to the expiration of the 6-month extension 
period.
    (C) Items not delivered to the ISS because of a failed launch. If 
the commodities exported or reexported under this paragraph (d) of this 
section are not delivered to the ISS because a failed launch causes the 
destruction of the commodity prior to its being delivered, exporters 
and reexporters must make note of the destruction of the commodities in 
accordance with the recordkeeping requirements under paragraph 
(d)(6)(ii) of this section and part 762 of the EAR.
    (4) Requirement for commodities to be launched on an eligible space 
launch vehicle (SLV). Only commodities that will be delivered to the 
ISS using United States, Russian, ESA (French), or Japanese space 
launch vehicles (SLVs) are eligible under this authorization. 
Commodities to be delivered to the ISS using SLVs from any other 
countries are excluded from this authorization.
    (5) Eligible recipients. Only persons involved in the launch of 
commodities to the ISS may receive and have access to commodities 
exported or reexported pursuant to this paragraph (d), except that:
    (i) No commodities authorized under paragraph (d) of this section 
may be exported, reexported or transferred (in-country) to any national 
of an E:1 country listed in Supplement No. 1 to part 740 of the EAR, 
and
    (ii) No person may receive commodities authorized under paragraph 
(d) of this section if they are subject to an end-user or end-use 
control described in part 744 of the EAR, including the entity list in 
Supplement No. 4 to part 744.
    (6) Recordkeeping requirements. Exporters and reexporters must 
maintain records regarding exports or reexports made using the 
authorization in paragraph (d) of this section as well as any other 
applicable recordkeeping requirements under part 762 of the EAR.
    (i) Exporters and reexporters must retain a record of the initial 
written notification they received requesting these commodities be 
supplied on short notice for a supply mission to the ISS, including the 
date the exporter or reexporter received complete documentation (i.e., 
the day on which the 45-day clock begins under paragraph (d) of this 
section). `Complete documentation' means the exporter or reexporter 
received the technical description of the commodity and purpose for use 
of the commodity on the ISS.
    (ii) Exporters and reexporters must maintain records of the date of 
any exports or reexports made using the authorization in paragraph (d) 
of this section and the date on which the commodities were launched 
into space for delivery to the ISS. If the commodities exported or 
reexported under paragraph (d) of this section are not delivered to the 
ISS because of a failed launch whereby the item is destroyed prior to 
being delivered to the ISS, this must be noted for recordkeeping 
purposes.
    (iii) The return or destruction of defective or worn out parts or 
components exported pursuant to paragraph (d) of License Exception GOV 
is not required under this authorization. However, if defective or worn 
out parts or components originally exported or reexported pursuant to 
this paragraph (d) are returned from the ISS, then those parts and 
components may be either: returned to the original country of export or 
reexport; destroyed; or reexported or transferred (in-country) to a 
destination that has been designated by NASA for conducting a review 
and analysis of the defective or worn part or component. Documentation 
for this activity must be kept for recordkeeping purposes. No 
commodities that are subject to the EAR may be returned to a country 
listed in Country Group E:1 in Supplement No. 1 to part 740 or to any 
person if that person is subject to an end-user or end-use control 
described in part 744 of the EAR under the provisions of this paragraph 
(d)(6)(iii) of this section or any other provision of this paragraph 
(d) of this section. For purposes of paragraph (d) of this section, a 
`defective or worn out' part or component is a part or component that

[[Page 6305]]

no longer performs its intended function.
    (7) Reexports to an alternate launch country. If a mechanical or 
weather related issue causes a change from the scheduled launch country 
to another foreign country after a commodity was exported or reexported 
under this paragraph (d), then that commodity may be subsequently 
reexported to the new scheduled launch country, provided all of the 
terms and conditions of paragraph (d) of this section are met, along 
with any other applicable EAR provisions. In such instances, the 6-
month time limitation described in paragraph (d)(3)(i) of this section 
would start over again at the time of the subsequent reexport 
transaction. Note that if the subsequent reexport may be made under the 
designation No License Required (NLR) or some other authorization under 
the EAR, a reexporter does not need to rely on the provisions contained 
in this paragraph (d).

    Dated: February 1, 2010.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2010-2579 Filed 2-8-10; 8:45 am]
BILLING CODE 3510-33-P
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