01-17549. Harmonization of Definitions of Terms

AGENCY:

Bureau of Export Administration, Commerce.

ACTION:

Final rule.

SUMMARY:

This regulation harmonizes the list of definitions of terms found in the Export Administration Regulations (EAR) with the terms found in the Wassenaar Arrangement list of dual-use items and terms found in the European Union List, as of 1999. Additional changes regarding definitions will be incorporated into other regulations of the EAR as necessary.

DATES:

This rule is effective July 16, 2001.

ADDRESSES:

Comments should be submitted in writing to: U.S. Department of Commerce, Bureau of Export Administration, Office of Exporter Services, 14th and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230, Attention: Sharron Cook.

FOR FURTHER INFORMATION CONTACT:

Sharron Cook, Regulatory Policy Division, Office of Exporter Services, Bureau of Export Administration, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

This rule adds definitions to part 772 of the EAR and in some cases revises or removes definitions to harmonize with definitions found in the list of terms that accompanied the Wassenaar Arrangement list of dual-use items and the European Union List. In addition, revisions are made to the Related Definitions paragraph in the List of Items Controlled Section of certain Export Control Classification Numbers (ECCNs) to harmonize with the revisions being made to part 772. Also, language is added to the introduction to part 772 to clarify that terms that only appear in a single ECCN will be defined in the Related Definitions paragraph in the List of Items Controlled Section of that ECCN, instead of in part 772.

Rule Making Requirements

1. This final rule has been determined to be not 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, unless that collection of information displays a current 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. There are neither additions nor subtractions to this collection due to this rule.

3. This rule does not contain policies with Federalism impacts 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 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 interim 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. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Sharron Cook, Office of Exporter Services, Bureau of Export Administration, Department of Commerce, P.O. Box 273, Washington, DC 20044.

List of Subjects in 15 CFR Parts 772 and 774

• Exports
• Foreign trade

Accordingly, parts 772 and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended, as follows:

1. The authority citation for 15 CFR part 772 continues to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; Pub. L. 106-508; 50 U.S.C. 1701 et seq.; E.O. 13206, 66 FR 18397, April 9, 2001.

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

Authority: 50 U.S.C. app. 2401 et seq.; Pub. L. 106-508; 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; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13206, 66 FR 18397, April 9, 2001.

PART 772—[AMENDED]

3. Section 772.1 is amended by revising the introductory text to § 772.1 and:

a. Revising the phrase “A maximum” to read “A minimum” in the definition for “active pixel”;

b. Revising the phrase “Cat 7 and 9” to read “Cat 1, 7, and 9” in the definition for “Aircraft”;

c. Revising the phrase “(ATM)” to read “(“ATM”)” and removing the parenthetical phrase “(CCITT Recommendation L.113)” in the definition for “Asynchronous transfer mode”;

d. Revising the phrase “Cat 7 and 9” to read “Cat 1, 7, and 9” in the definition for “Civil aircraft”;

e. Revising the phrase “Cat 1, 6, 8, and 9” to read “Cat 1, 2, 6, 8 and 9” in the definition for “Composite”;

f. Revising the phrase “Cat 4” to read “Cat 3 and 4” in the definition for “Composite theoretical performance”;

g. Amending the phrase “numerically controlled” by adding quotation marks around it in the definition for “Contouring control”;

h. Revising the phrase “variables:” to read “variables, perform all of the following:” in the definition for “Digital computer”;

i. Adding the parenthetical phrase “(See also “total digital transfer rate”)” to the end of the definition for “Digital transfer rate”;

j. Revising the phrase “Cat 6” to read “Cat 5 and 6” in the definition for “Electronically steerable phased array antenna”;

k. Revising the phrase “Cat 4” to read “Cat 4 and 7” in the definition for “Expert systems”;

l. Revising the phrase “Cat 3” to read “Cat 3 and 5” in the definition for “Instantaneous bandwidth”;

m. Revising the phrase “(Ref.: VDI/VDE 2617)” to read “(Ref.: ISO 10360-2 or VDI/VDE 2617)” in the definition for “Measurement uncertainty”;

n. Revising the phrase “Cat. 1 and 7” to read “All Categories” in the definition for “Production”;

o. Revising the phrase “Cat 2 and 4” to read “Cat 2, 4, 6, and 7” in the definition for “Real time processing”;

q. Revising the phrase “As applied” to read “(General Technology Note)(Cat 4, 5, 6, and 9)—As applied” in the definition for “Required”;

r. Revising the phrase “Cat 3, 4 and 5” to read “Cat 3, 4, 5, and 6” in the definition for “Signal processing”;

s. Revising the phrase “Cat 4” to read “Cat 4, 5, 6, 7, and 9” in the definition for “Source Code”;

t. Revising the phrase “Cat 4” to read “Cat 9” in the definition for “Object Code”;

u. Revising the phrase “Cat 2, 4, and 5” to read “Cat 2, 4, 5, and 6” in the definition for “Program”;

v. Revising the phrase “General Technology Note” to read “All categories and General Technology Note” in the definition for “Use”;

w. Revising the definition title “Superalloys” to read “Superalloy”.

x. Revising the definitions for “Asymmetric algorithm”, “Basic gate propagation delay time”, “Data signalling rate”, “Personalized smart card”; and “Program”.

y. Removing the definitions for “Bandwidth of one voice channel”, “Communications channel controller”, “Computer using facility”, “Cryptanalysis”, “Datagram”, “Family”, “Fast select”, “Generic software”, “Most immediate storage”, “PABX”, “Private Automatic Branch Exchange”, “Production facility”, “Simple educational devices”, “Swept frequency network analyzers”, “Switch fabric”, “Telecommunication transmission equipment”, “Two dimensional Vector Rate”, “SDH”, “SONET”, “Synchronous digital hierarchy”, “Synchronous optical network”; and

z. Adding the following definitions in alphabetical order, to read as follows:

§ 772.1

Definitions of Terms as Used in the Export Administration Regulations (EAR).

The following are definitions of terms as used in the Export Administration Regulations (EAR). In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. Those terms in quotation marks refer to terms used on the Commerce Control List (CCL) (Supplement No. 1 to part 774 of the EAR). Parenthetical references following the terms in quotation marks (i.e., (Cat 5)) refer to the CCL category in which that term is found. If a term is used in only one Export Control Classification Number (ECCN) on the CCL, then that term will not appear in this part, but will be defined in the Related Definitions paragraph in the List of Items Controlled Section of that ECCN.

* * * * *

“All compensations available.” (Cat 2) means after all feasible measures available to the manufacturer to minimize all systematic positioning errors for the particular machine-tool model are considered.

* * * * *

“Asymmetric algorithm.” (Cat 5) means a cryptographic algorithm using different, mathematically-related keys for encryption and decryption.

Technical Note: A common use of “asymmetric algorithms” is key management.

* * * * *

“Basic gate propagation delay time.” (Cat 3) The propagation delay time value corresponding to the basic gate used in a “monolithic integrated circuit.” For a ‘family’ of “monolithic integrated circuits”, this may be specified either as the propagation delay time per typical gate within the given ‘family' or as the typical propagation delay time per gate within the given ‘family'.

Technical Notes: 1. “Basic gate propagation delay time” is not to be confused with the input/output delay time of a complex “monolithic integrated circuit.”

2. ‘Family’ consists of all integrated circuits to which all of the following are applied as their manufacturing methodology and specifications except their respective functions:

a. The common hardware and software architecture;

b. The common design and process technology; and

c. The common basic characteristics.

* * * * *

“Carbon fiber preforms.” (Cat 1) means an ordered arrangement of uncoated or coated fibers intended to constitute a framework of a part before the “matrix” is introduced to form a “composite.”

* * * * *

“Data signalling rate.” (Cat 5) means the rate, as defined in ITU Recommendation 53-36, taking into account that, for non-binary modulation, baud and bit per second are not equal. Bits for coding, checking and synchronization functions are to be included.

Note:

When determining the “data signalling rate”, servicing and administrative channels shall be excluded.

Technical Note: It is the maximum one-way rate, i.e., the maximum rate in either transmission or reception.

* * * * *

“Deformable mirrors.” (Cat 6) (also known as adaptive optic mirrors) means mirrors having:

a. A single continuous optical reflecting surface which is dynamically deformed by the application of individual torques or forces to compensate for distortions in the optical waveform incident upon the mirror; or

b. Multiple optical reflecting elements that can be individually and dynamically repositioned by the application of torques or forces to compensate for distortions in the optical waveform incident upon the mirror.

* * * * *

“Depleted uranium.” (Cat 0) means uranium depleted in the isotope 235 below that occurring in nature.

* * * * *

“Effective Gram.” (of “special fissile material”) (Cat 0 and 1) means:

a. For plutonium isotopes and uranium-233, the isotope weight in grams;

b. For uranium enriched 1 percent or greater in the isotope uranium-235, the element weight in grams multiplied by the square of its enrichment expressed as a decimal weight fraction;

c. For uranium enriched below 1 percent in the isotope uranium-235, the element weight in grams multiplied by 0.0001.

* * * * *

“Electronic assembly.” (Cat 3, 4, and 5) means a number of electronic components (i.e., ‘circuit elements’, ‘discrete components’, integrated circuits, etc.) connected together to perform (a) specific function(s), replaceable as an entity and normally capable of being disassembled.

Technical Notes: 1. ‘Circuit element’: a single active or passive functional part of an electronic circuit, such as one diode, one transistor, one resistor, one capacitor, etc.

2. ‘Discrete component’: a separately packaged ‘circuit element’ with its own external connections.

* * * * *

“FADEC.” See “full authority digital engine control.”

* * * * *

“Flight control optical sensor array.” (Cat 7) is a network of distributed optical sensors, using “laser” beams, to provide real-time flight control data for on-board processing.

“Flight path optimization.” (Cat 7) is a procedure that minimizes deviations from a four-dimensional (space and time) desired trajectory based on maximizing performance or effectiveness for mission tasks.

* * * * *

“Full Authority Digital Engine Control.” (“FADEC”) (Cat 7 and 9) means an electronic control system for gas turbine or combined cycle engines utilizing a digital computer to control the variables required to regulate engine thrust or shaft power output throughout the engine operating range from the beginning of fuel metering to fuel shutoff.

* * * * *

“Microcomputer microcircuit.” (Cat 3) means a “monolithic integrated circuit” or “multichip integrated circuit” containing an arithmetic logic unit (ALU) capable of executing a series of general purpose instructions from an internal storage, on data contained in the internal storage.

Technical Note: The “microprocessor microcircuit” normally does not contain integral user-accessible storage, although storage present on-the-chip may be used in performing its logic function.

Note:

This definition includes chip sets which are designed to operate together to provide the function of a “microprocessor microcircuit.”

* * * * *

“Microorganisms.” (Cat 1 and 2) means bacteria, viruses, mycoplasms, rickettsiae, chlamydiae or fungi, whether natural, enhanced or modified, either in the form of isolated live cultures or as material including living material which has been deliberately inoculated or contaminated with such cultures.

* * * * *

“Monospectral imaging sensors.” (Cat 6) are capable of acquisition of imaging data from one discrete spectral band.

* * * * *

“Natural uranium.” (Cat 0) means uranium containing the mixtures of isotopes occurring in nature.

* * * * *

“Nuclear reactor.” (Cat 0 and 2) includes the items within or attached directly to the reactor vessel, the equipment which controls the level of power in the core, and the components which normally contain, come into direct contact with or control the primary coolant of the reactor core.

* * * * *

“Personalized smart card.” (Cat 5) A smart card containing a microcircuit which has been programmed for a specific application and cannot be reprogrammed for any other application by the user.

* * * * *

“Previously separated.” (Cat 1) The application of any process intended to increase the concentration of the controlled isotope.

“Primary flight control.” (Cat 7) “Aircraft” stability or maneuvering control using force/moment generators, i.e., aerodynamic control surfaces or propulsive thrust vectoring.

* * * * *

“Program.” (Cat 2, 4, 5, and 6)—A sequence of instructions to carry out a process in, or convertible into, a form executable by an electronic computer.

* * * * *

“SHPL.” (Cat 6) is equivalent to “Super High Power Laser”, see definition for “super high power laser.”

* * * * *

“Special fissile material.” (Cat 0) means plutonium-239, uranium-233, “uranium enriched in the isotopes 235 or 233”, and any material containing the foregoing.

Note:

As defined by 10 CFR 110.2 of the Nuclear Regulatory Commission Regulations, “Special fissile material” means: plutonium, uranium-233 or uranium enriched above 0.711 percent by weight in the isotope uranium-235.

* * * * *

“Total control of flight.” (Cat 7) means an automated control of “aircraft” state variables and flight path to meet mission objectives responding to real time changes in data regarding objectives, hazards or other “aircraft.”

* * * * *

“Toxins.” (Cat 1 and 2) means toxins in the form of deliberately isolated preparations or mixtures, no matter how produced, other than toxins present as contaminants of other materials such as pathological specimens, crops, foodstuffs or seed stocks of “microorganisms.”

* * * * *

PART 774—[AMENDED]

4. 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) 0B001 is amended by revising the Related Definitions paragraph in the List of Items Controlled Section, to read as follows:

0B001 Plant for the Separation of Isotopes of “Natural Uranium” and “Depleted Uranium”, “Special Fissile Materials” and “Other Fissile Materials”, and Specially Designed or Prepared Equipment and Components Therefor, as Follows (see List of Items Controlled)

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: * * *

Related Definitions: “Materials resistant to corrosion by UF₆” may be copper, stainless steel, aluminum, aluminum oxide, aluminum alloys, nickel or alloy containing 60 weight percent or more nickel and UF₆-resistant fluorinated hydrocarbon polymers, as appropriate for the type of separation process.

Items:

* * * * *

5. In Supplement No. 1 to part 774, the Commerce Control List, Category 1 (Materials, Chemicals, “Microorganisms,” and Toxins), Export Control Classification Number (ECCN) 1C012 is amended by revising the List of Items Controlled section, to read as follows:

1C012 Materials, as Follows (see List of Items Controlled)

* * * * *

List of Items Controlled

Unit: N/A.

Related Controls: N/A.

Related Definitions: These materials are typically used for nuclear heat sources.

Items:

a. Plutonium in any form with a plutonium isotopic assay of plutonium-238 of more than 50% by weight;

Note:

1C012.a does not control:

1. Shipments with a plutonium content of 1 g or less;

2. Shipments of 3 “effective grams” or less when contained in a sensing component in instruments.

b. Previously separated neptunium-237 in any form.

Note:

1C012.b does not control shipments with a neptunium-237 content of 1 g or less.

6. In Supplement No. 1 to part 774, the Commerce Control List, Category 4 (Computers), Export Control Classification Number (ECCN) 4A994 is amended by revising the Related Definitions paragraph in the List of Items Controlled section, to read as follows:

4A994 Computers, “Electronic Assemblies”, and Related Equipment not Controlled by 4A001, 4A002, or 4A003, and Specially Designed Components Therefor

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: * * *

Related Definitions: “Two dimensional vector rate” is the number vectors generated per second that have 10 pixel poly line vectors, clip tested, randomly oriented, with either integer or floating point X-Y coordinate values (whichever produces the maximum rate) (see paragraph (g) of this ECCN).

Items:

* * * * *

7. In Supplement No. 1 to part 774, the Commerce Control List, Category 5 (Telecommunications and “Information Security”, Part I. Telecommunications), Export Control Classification Number (ECCN) 5A991 is amended by revising the Related Definitions paragraph in the List of Items Controlled section, to read as follows:

5A991 Telecommunication Equipment, not Controlled by 5A001

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: * * *

Related Definitions: “Bandwidth of one voice channel” is data communication equipment designed to operate in one voice channel of 3,100 Hz, as defined in CCITT Recommendation G.151. “Communications channel controller” is the physical interface that controls the flow of synchronous or asynchronous digital information. It is an assembly that can be integrated into computer or telecommunications equipment to provide communications access. “Datagram” is a self-contained, independent entity of data carrying sufficient information to be routed from the source to the destination data terminal equipment without reliance on earlier exchanges between this source and destination data terminal equipment and the transporting network. “Fast select” is a facility applicable to virtual calls that allows data terminal equipment to expand the possibility to transmit data in call set-up and clearing “packets” beyond the basic capabilities of a virtual call, where a “packet” is a group of binary digits including data and call control signals that is switched as a composite whole. The data, call control signals, and possible error control information are arranged in a specified format.

Items:

* * * * *

8. In Supplement No. 1 to part 774, the Commerce Control List, Category 7 (Navigation and Avionics), Export Control Classification Number (ECCN) 7A003 is amended by revising the List of Items Controlled section, to read as follows:

7A003 Inertial Navigation Systems (Gimballed or Strapdown) and Inertial Equipment Designed for “Aircraft”, Land Vehicle or “Spacecraft” for Attitude, Guidance or Control, Having any of the Following Characteristics (see List of Items Controlled), and Specially Designed Components Therefor

* * * * *

List of Items Controlled

Unit: $ value.

Related Controls: See also 7A103 and 7A994. Inertial navigation systems and inertial equipment, and specially designed components therefor specifically designed, modified or configured for military use are subject to the export licensing authority of the U.S. Department of State, Office of Defense Trade Controls. (See 22 CFR part 121.)

Related Definitions: N/A.

Items:

a. Navigation error (free inertial) subsequent to normal alignment of 0.8 nautical mile per hour (50% Circular Error Probable (CEP)) or less (better); or

b. Specified to function at linear acceleration levels exceeding 10 g.

Note:

The parameters of 7A003.a are applicable with any of the following environmental conditions:

1. Input random vibration with an overall magnitude of 7.7 g rms in the first half hour and a total test duration of one and one half hour per axis in each of the three perpendicular axes, when the random vibration meets the following:

a. A constant power spectral density (PSD) value of 0.04 g²/Hz over a frequency interval of 15 to 1,000 Hz; and

b. The PSD attenuates with frequency from 0.04 g²/Hz to 0.01 g²/Hz over a frequency interval from 1,000 to 2,000 Hz; or

2. A roll and yaw rate of equal to or more than +2.62 radian/s (150 deg/s); or

3. According to national standards equivalent to 1. or 2. of this note.

Note:

7A003 does not control inertial navigation systems that are certified for use on “civil aircraft” by civil authorities of a country in Country Group A:1.

9. In Supplement No. 1 to part 774, the Commerce Control List, Category 7 (Navigation and Avionics), Export Control Classification Number (ECCN) 7E004 is amended by revising the Related Controls paragraph in the List of Items Controlled section, to read as follows:

7E004 Other “Technology”, as Follows (see List of Items Controlled)

* * * * *

List of Items Controlled

Unit: * * *

Related Controls: * * *

Related Definitions: “Primary flight control” means an “aircraft” stability or maneuvering control using force/moment generators, i.e., aerodynamic control surfaces or propulsive thrust vectoring.

Items:

* * * * *

Dated: July 5, 2001.

James J. Jochum,

Assistant Secretary for Export Administration.