[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Proposed Rules]
[Pages 33698-33701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13744]


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DEPARTMENT OF STATE

22 CFR Part 121

[Public Notice 7915]
RIN 1400-AD16


Amendment to the International Traffic in Arms Regulations: 
Revision of U.S. Munitions List Category X

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: As part of the President's Export Control Reform effort, the 
Department of State proposes to amend the International Traffic in Arms 
Regulations (ITAR) to revise Category X

[[Page 33699]]

(personal protective equipment and shelters) of the U.S. Munitions List 
(USML) to describe more precisely the materials warranting control on 
the USML.

DATES: The Department of State will accept comments on this proposed 
rule until July 23, 2012.

ADDRESSES: Interested parties may submit comments within 45 days of the 
date of publication by one of the following methods:
     Email: DDTCResponseTeam@state.gov with the subject line, 
``ITAR Amendment--Category X.''
     Internet: At www.regulations.gov, search for this notice 
by using this rule's RIN (1400-AD16).
    Comments received after that date will be considered if feasible, 
but consideration cannot be assured. Those submitting comments should 
not include any personally identifying information they do not desire 
to be made public or information for which a claim of confidentiality 
is asserted because those comments and/or transmittal emails will be 
made available for public inspection and copying after the close of the 
comment period via the Directorate of Defense Trade Controls Web site 
at www.pmddtc.state.gov. Parties who wish to comment anonymously may do 
so by submitting their comments via www.regulations.gov, leaving the 
fields that would identify the commenter blank and including no 
identifying information in the comment itself. Comments submitted via 
www.regulations.gov are immediately available for public inspection.

FOR FURTHER INFORMATION CONTACT: Ms. Candace M. J. Goforth, Director, 
Office of Defense Trade Controls Policy, Department of State, telephone 
(202) 663-2792; email DDTCResponseTeam@state.gov. ATTN: Regulatory 
Change, USML Category X.

SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls 
(DDTC), U.S. Department of State, administers the International Traffic 
in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to 
the jurisdiction of the ITAR, i.e., ``defense articles,'' are 
identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1). 
With few exceptions, items not subject to the export control 
jurisdiction of the ITAR are subject to the jurisdiction of the Export 
Administration Regulations (``EAR,'' 15 CFR parts 730-774, which 
includes the Commerce Control List (CCL) in Supplement No. 1 to Part 
774), administered by the Bureau of Industry and Security (BIS), U.S. 
Department of Commerce. Both the ITAR and the EAR impose license 
requirements on exports and reexports. Items not subject to the ITAR or 
to the exclusive licensing jurisdiction of any other set of regulations 
are subject to the EAR.

Export Control Reform Update

    The Departments of State and Commerce described in their respective 
Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the 
Administration's plan to make the USML and the CCL positive, tiered, 
and aligned so that eventually they can be combined into a single 
control list (see ``Commerce Control List: Revising Descriptions of 
Items and Foreign Availability,'' 75 FR 76664 (December 9, 2010) and 
``Revisions to the United States Munitions List,'' 75 FR 76935 
(December 10, 2010)). The notices also called for the establishment of 
a ``bright line'' between the USML and the CCL to reduce government and 
industry uncertainty regarding export jurisdiction by clarifying 
whether particular items are subject to the jurisdiction of the ITAR or 
the EAR. While these remain the Administration's ultimate Export 
Control Reform objectives, their concurrent implementation would be 
problematic in the near term. In order to more quickly reach the 
national security objectives of greater interoperability with U.S. 
allies, enhancing the defense industrial base, and permitting the U.S. 
Government to focus its resources on controlling and monitoring the 
export and reexport of more significant items to destinations, end-
uses, and end-users of greater concern than NATO allies and other 
multi-regime partners, the Administration has decided, as an interim 
step, to propose and implement revisions to both the USML and the CCL 
that are more positive, but not yet tiered.
    Specifically, based in part on a review of the comments received in 
response to the December 2010 notices, the Administration has 
determined that fundamentally altering the structure of the USML by 
tiering and aligning it on a category-by-category basis would 
significantly disrupt the export control compliance systems and 
procedures of exporters and reexporters. For example, until the entire 
USML was revised and became final, some USML categories would follow 
the legacy numbering and control structures while the newly revised 
categories would follow a completely different numbering structure. In 
order to allow for the national security benefits to flow from re-
aligning the jurisdictional status of defense articles that no longer 
warrant control on the USML on a category-by-category basis while 
minimizing the impact on exporters' internal control and jurisdictional 
and classification marking systems, the Administration plans to proceed 
with building positive lists now and afterward return to structural 
changes.

Revision of Category X

    This proposed rule revises USML Category X, covering personal 
protective equipment and shelters, to advance the national security 
objectives set forth above and to more accurately describe the articles 
within the category, in order to establish a ``bright line'' between 
the USML and the CCL for the control of these articles.
    Body armor enumerated in paragraph (a)(1) would be that which meets 
or exceeds NIJ Standard-0101.06 Type IV. Type III body armor would be 
controlled on the CCL in proposed ECCN 1A613.
    Anti-gravity suits, pressure suits, and atmosphere diving suits, 
currently controlled in paragraphs (a)(3), (a)(4), and (a)(5), 
respectively, would become subject to the EAR.
    Paragraph (a)(7) would control certain protective goggles, 
spectacles, and visors with an optical density of 3 or greater.
    Permanent and transportable shelters, currently controlled in 
paragraph (b), as well as equipment for the production of articles 
covered in this category (current paragraph (c)), would be controlled 
on the CCL in ECCNs 1A613 and 1B613, respectively.
    Paragraph (d), which controls parts and components, is limited in 
scope to include only ceramic or composite body armor plates, laser 
protective lenses for the articles enumerated in (a)(7), and classified 
hardware. As with the revision of other categories, the USML will not 
control all generic, non-specific parts, components, accessories, and 
attachments that are in any way specifically designed or modified for a 
defense article, regardless of their significance to maintaining a 
military advantage for the United States. These items would become 
subject to the new 600 series controls in Category 1 of the CCL, to be 
published separately by the Department of Commerce.
    Finally, paragraph (f), which currently provides interpretations of 
Category X, is removed and placed in reserve.

Definition for Specially Designed

    Although one of the goals of the export control reform initiative 
is to describe USML controls without using design intent criteria, a 
few of the

[[Page 33700]]

controls in the proposed revision nonetheless use the term ``specially 
designed.'' It is, therefore, necessary for the Department to define 
the term. Two proposed definitions have been published to date.
    The Department first provided a draft definition for ``specially 
designed'' in the December 2010 ANPRM (75 FR 76935) and noted the term 
would be used minimally in the USML, and then only to remain consistent 
with the Wassenaar Arrangement or other multilateral regime obligation 
or when no other reasonable option exists to describe the control 
without using the term. The draft definition provided at that time is 
as follows: ``For the purposes of this Subchapter, the term `specially 
designed' means that the end-item, equipment, accessory, attachment, 
system, component, or part (see ITAR Sec.  121.8) has properties that 
(i) distinguish it for certain predetermined purposes, (ii) are 
directly related to the functioning of a defense article, and (iii) are 
used exclusively or predominantly in or with a defense article 
identified on the USML.''
    The Department of Commerce subsequently published on July 15, 2011, 
for public comment, the Administration's proposed definition of 
``specially designed'' that would be common to the CCL and the USML. 
The public provided more than 40 comments on that proposed definition 
on or before the September 13 deadline for comments. The Departments of 
State, Commerce, and Defense are now reviewing those comments and 
related issues, and the Departments of State and Commerce plan to 
publish for public comment another proposed rule on a definition of 
``specially designed'' that would be common to the USML and the CCL. In 
the interim, and for the purpose of evaluation of this proposed rule, 
reviewers should use the definition provided in the December ANPRM.

Request for Comments

    As the U.S. Government works through the proposed revisions to the 
USML, some solutions have been adopted that were determined to be the 
best of available options. With the thought that multiple perspectives 
would be beneficial to the USML revision process, the Department 
welcomes the assistance of users of the lists and requests input on the 
following:
    (1) A key goal of this rulemaking is to ensure the USML and the CCL 
together control all the items that meet Wassenaar Arrangement 
commitments embodied in Munitions List Category 13 (WA-ML13). To that 
end, the public is asked to identify any potential lack of coverage 
brought about by the proposed rules for Category X contained in this 
notice and the new Category 1 ECCNs published separately by the 
Department of Commerce when reviewed together.
    (2) The key goal of this rulemaking is to establish a ``bright 
line'' between the USML and the CCL for the control of these materials. 
The public is asked to provide specific examples of materials and 
miscellaneous articles whose jurisdiction would be in doubt based on 
this revision.

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department of State is of the opinion that controlling the 
import and export of defense articles and services is a foreign affairs 
function of the United States Government and that rules implementing 
this function are exempt from Sec.  553 (Rulemaking) and Sec.  554 
(Adjudications) of the Administrative Procedure Act (APA). Although the 
Department is of the opinion that this rule is exempt from the 
rulemaking provisions of the APA, the Department is publishing this 
rule with a 45-day provision for public comment and without prejudice 
to its determination that controlling the import and export of defense 
services is a foreign affairs function. As noted above, and also 
without prejudice to the Department position that this rulemaking is 
not subject to the APA, the Department previously published a related 
Advance Notice of Proposed Rulemaking (RIN 1400-AC78), and accepted 
comments for 60 days.

Regulatory Flexibility Act

    Since the Department is of the opinion that this rule is exempt 
from the rulemaking provisions of 5 U.S.C. 553, it does not require 
analysis under the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This proposed amendment does not involve a mandate that will result 
in the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any 
year and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed amendment has been found not to be a major rule 
within the meaning of the Small Business Regulatory Enforcement 
Fairness Act of 1996.

Executive Orders 12372 and 13132

    This proposed amendment will not have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this proposed amendment does not 
have sufficient federalism implications to require consultations or 
warrant the preparation of a federalism summary impact statement. The 
regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this proposed amendment.

Executive Order 12866

    The Department is of the opinion that controlling the import and 
export of defense articles and services is a foreign affairs function 
of the United States Government and that rules governing the conduct of 
this function are exempt from the requirements of Executive Order 
12866. However, the Department has reviewed the proposed rule to ensure 
its consistency with the regulatory philosophy and principles set forth 
in the Executive Order.

Executive Order 13563

    The Department of State has considered this rule in light of 
Executive Order 13563, dated January 18, 2011, and affirms that this 
regulation is consistent with the guidance therein.

Executive Order 12988

    The Department of State has reviewed the proposed amendment in 
light of sections 3(a) and 3(b)(2) of Executive Order 12988 to 
eliminate ambiguity, minimize litigation, establish clear legal 
standards, and reduce burden.

Executive Order 13175

    The Department of State has determined that this rulemaking will 
not have tribal implications, will not impose substantial direct 
compliance costs on Indian tribal governments, and will not preempt 
tribal law. Accordingly, Executive Order 13175 does not apply to this 
rulemaking.

Paperwork Reduction Act

    This proposed amendment does not impose any new reporting or 
recordkeeping requirements subject to the Paperwork Reduction Act, 44 
U.S.C. Chapter 35.

[[Page 33701]]

List of Subjects in 22 CFR Part 121

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, part 121 is proposed to be amended as follows:

PART 121--THE UNITED STATES MUNITIONS LIST

    1. The authority citation for part 121 continues to read as 
follows:

    Authority:  Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 
(22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 
Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920.

    2. Section 121.1 is amended by revising U.S. Munitions List 
Category X to read as follows:


Sec.  121.1  General. The United States Munitions List.

* * * * *

Category X--Personal Protective Equipment and Shelters

    (a) Personal protective equipment, as follows:
    (1) Body armor providing a protection level equal to or greater 
than NIJ Type IV.

    Note 1 to (a)(1):  See National Institute of Justice 
Classification, NIJ Standard-0101.06.


    Note 2 to (a)(1):  For body armor providing a level of 
protection of Type I, Type II, Type IIA, Type IIIA, or Type III, see 
ECCNs 1A005 and 1A613.

    (2) Personal protective clothing, equipment, or face paints 
``specially designed'' to protect against or reduce detection by radar, 
IR, or other sensors at wavelengths greater than 900 nanometers.

    Note to (a)(2):  See Category XIII(j) for controls on related 
materials.

    (3) [Reserved]
    (4) [Reserved]
    (5) Integrated helmets, not specified in Category VIII (h)(15) or 
Category XII, incorporating optical sights or slewing devices, which 
include the ability to aim, launch, track, or manage munitions.
    (6) Helmets and helmet shells providing a protection level equal to 
or greater than NIJ Type IV.
    (7) Goggles, spectacles, or visors, employing other than common 
broadband absorptive dyes and UV inhibitors as a means of protection 
(e.g., narrow band filters/dyes or broadband limiters/coatings with 
high visible transparency), with optical density greater than 3 that 
protect against:
    (i) Visible (in-band) wavelengths;
    (ii) Thermal flashes associated with nuclear detonations; or
    (iii) Near infrared or ultraviolet (out-of-band) wavelengths.

    Note 1 to (a)(7):  See Category XIII(j) for controls on related 
materials.


    Note 2 to (a)(7):  See Category XII for sensor protection 
equipment.

    (8) Developmental personal protective equipment and shelters and 
``specially designed'' parts, components, accessories, and attachments 
therefor, developed under a contract with the U.S. Department of 
Defense.

    Note to (a)(8):  Developmental personal protective equipment and 
shelters, and ``specially designed'' parts, components, accessories, 
and attachments therefor, determined to be subject to the EAR via a 
commodity jurisdiction determination (see Sec.  120.4 of this 
subchapter) are not controlled by this paragraph.

    (b) [Reserved]
    (c) [Reserved]
    (d) Parts, components, assemblies, and associated equipment for the 
personal protective equipment controlled in this category as follows:
    (1) Ceramic or composite plates that provide protection equal to or 
greater than NIJ Type IV.
    (2) Lenses for the goggles, spectacles, and visors controlled in 
paragraph (a)(7) of this category.
    (3) Any component, part, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software;
    (iii) Is manufactured using classified production data; or
    (iv) Is being developed using classified information.
    ``Classified'' means classified pursuant to Executive Order 13526, 
or predecessor order, and a security classification guide developed 
pursuant thereto or equivalent, or to the corresponding classification 
rules of another government.
    (e) Technical data (as defined in Sec.  120.10 of this subchapter) 
and defense services (as defined in Sec.  120.9 of this subchapter) 
directly related to the defense articles enumerated in paragraphs (a) 
through (d) of this category.
    (f) [Reserved]
* * * * *

    Dated: May 31, 2012.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security, 
Department of State.
[FR Doc. 2012-13744 Filed 6-6-12; 8:45 am]
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