[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Proposed Rules]
[Pages 35317-35321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14443]
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DEPARTMENT OF STATE
22 CFR Part 121
RIN 1400-AD15
[Public Notice 7920]
Amendment to the International Traffic in Arms Regulations:
Revision of U.S. Munitions List Category IX
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 IX (military training equipment)
of the U.S. Munitions List (USML) to describe more precisely the
materials warranting control on the USML. The revisions to this rule
are part of the Department of State's retrospective plan under E.O.
13563 completed on August 17, 2011.
[[Page 35318]]
The Department of State's full plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.
DATES: The Department of State will accept comments on this proposed
rule until July 30, 2012.
ADDRESSES: Interested parties may submit comments within 45 days of the
date of publication by one of the following methods:
Email: [email protected] with the subject line,
``ITAR Amendment--Category IX.''
Internet: At www.regulations.gov, search for this notice
by using this rule's RIN (1400-AD15).
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 [email protected]. ATTN: Regulatory
Change, USML Category IX.
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 IX
This proposed rule would revise USML Category IX, covering military
training equipment, to further 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.
The title of the category is changed to indicate that it covers
training equipment only. Training on a defense article would be a
defense service covered under the category in which the defense article
is enumerated.
Paragraph (a) is to list all the types of training equipment
covered in the category.
Paragraph (b) is also revised to more specifically describe the
items (simulators) controlled therein. Radar target generators are to
be controlled in Category XI(a). Infrared scene generators are to be
controlled in Category XII(c).
Tooling and production equipment, currently controlled in paragraph
(c), are to be covered on the CCL in proposed ECCN 0B614.
The most significant aspect of this more positive, but not yet
tiered, proposed USML category is that it does not contain controls on
all generic parts, components, accessories, and attachments (currently
captured in paragraph (d)) 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 are
to be subject to the new 600 series controls in Category 0 of the CCL,
to be published separately by the Department of Commerce. Parts,
components, accessories, or attachments of a simulator that are common
to the simulated system or end-item are to be controlled under the same
USML Category or CCL ECCN as the parts, components, accessories, and
attachments of the simulated system or end-item.
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 controls in the proposed revision nonetheless use the term
``specially designed.'' It is, therefore, necessary for the Department
to define the term. Two
[[Page 35319]]
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 14 (WA-ML14). To that
end, the public is asked to identify any potential lack of coverage
brought about by the proposed rules for Category IX contained in this
notice and the new Category 0 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 articles.
The public is asked to provide specific examples of 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 Orders 12866 and 13563
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributed impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget (OMB).
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
Notwithstanding any other provision of law, no person is required
to respond to, nor is subject to a penalty for failure to comply with,
a collection of information, subject to the requirements of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless
that collection of information displays a currently valid OMB control
number. This proposed rule would affect the
[[Page 35320]]
following approved collections: (1) Statement of Registration, DS-2032,
OMB No. 1405-0002; (2) Application/License for Permanent Export of
Unclassified Defense Articles and Related Unclassified Technical Data,
DSP-5, OMB No. 1405-0003; (3) Application/License for Temporary Import
of Unclassified Defense Articles, DSP-61, OMB No. 1405-0013; (4)
Nontransfer and Use Certificate, DSP-83, OMB No. 1405-0021; (5)
Application/License for Permanent/Temporary Export or Temporary Import
of Classified Defense Articles and Classified Technical Data, DSP-85,
OMB No. 1405-0022; (6) Application/License for Temporary Export of
Unclassified Defense Articles, DSP-73, OMB No. 1405-0023; (7) Statement
of Political Contributions, Fees, or Commissions in Connection with the
Sale of Defense Articles or Services, OMB No. 1405-0025; (8) Authority
to Export Defense Articles and Services Sold Under the Foreign Military
Sales (FMS) Program, DSP-94, OMB No. 1405-0051; (9) Application for
Amendment to License for Export or Import of Classified or Unclassified
Defense Articles and Related Technical Data, DSP-6, -62, -74, -119, OMB
No. 1405-0092; (10) Request for Approval of Manufacturing License
Agreements, Technical Assistance Agreements, and Other Agreements, DSP-
5, OMB No. 1405-0093; (11) Maintenance of Records by Registrants, OMB
No. 1405-0111; (12) Annual Brokering Report, DS-4142, OMB No. 1405-
0141; (13) Brokering Prior Approval (License), DS-4143, OMB No. 1405-
0142; (14) Projected Sale of Major Weapons in Support of Section
25(a)(1) of the Arms Export Control Act, DS-4048, OMB No. 1405-0156;
(15) Export Declaration of Defense Technical Data or Services, DS-4071,
OMB No. 1405-0157; (16) Request for Commodity Jurisdiction
Determination, DS-4076, OMB No. 1405-0163; (17) Request to Change End-
User, End-Use, and/or Destination of Hardware, DS-6004, OMB No. 1405-
0173; (18) Request for Advisory Opinion, DS-6001, OMB No. 1405-0174;
(19) Voluntary Disclosure, OMB No. 1405-0179; and (20) Technology
Security/Clearance Plans, Screening Records, and Non-Disclosure
Agreements Pursuant to 22 CFR 126.18, OMB No. 1405-0195. The Department
of State believes there will be minimal changes to these collections.
The Department of State believes the combined effect of all rules to be
published moving commodities from the USML to the EAR as part of the
Administration's Export Control Reform would decrease the number of
license applications by approximately 30,000 annually. The Department
of State is looking for comments on the potential reduction in burden.
List of Subjects in 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 IX to read as follows:
Sec. 121.1 General. The United States Munitions List.
* * * * *
Category IX--Military Training Equipment
(a) Training equipment, as follows:
(1) Ground, surface, submersible, space, or towed airborne targets
that:
(i) Have an infrared, radar, acoustic, magnetic, or thermal
signature that mimic a specific defense article, other item, or person;
or
(ii) Are instrumented to provide hit/miss performance information;
Note to paragraph (a)(1): Target drones are controlled in
Category VIII(a).
(2) Devices that are mockups of articles enumerated in this
subchapter used for maintenance training or disposal training for
ordnance enumerated in this subchapter;
(3) Air combat maneuvering instrumentation and ground stations
therefor;
(4) Physiological flight trainers for fighter aircraft or attack
helicopters;
(5) Radar trainers ``specially designed'' for training on radars
controlled by Category XI;
(6) Training devices ``specially designed'' to be attached to a
crew station, mission system, or weapon of an article controlled in
this subchapter;
Note to paragraph (a)(6): This paragraph includes stimulators
that are built-in or add-on devices that cause the actual equipment
to act as a trainer.
(7) Anti-submarine warfare trainers;
(8) Missile launch trainers;
(9) Any training device 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.
Note to paragraph (a): Training equipment does not include
combat games without item signatures or tactics, techniques, and
procedures covered by this subchapter.
(b) Simulators, as follows:
(1) System specific simulators that replicate the operation of an
individual crew station, a mission system, or a weapon of an end-item
that is controlled in this subchapter;
(2) [Reserved]
(3) [Reserved]
(4) Software and associated databases not elsewhere enumerated in
this subchapter that can be used to simulate the following:
(i) Trainers specified by this category;
(ii) Battle management;
(iii) Military test scenarios/models; or
(iv) Effects of weapons enumerated in this subchapter;
(5) Simulators that:
(i) Are classified;
(ii) Contain classified software;
(iii) Are manufactured using classified production data; or
(iv) Are 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.
(c) [Reserved]
(d) [Reserved]
(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 (b) of this category.
(f) [Reserved]
Note: Parts, components, accessories, or attachments of a
simulator that are common to the simulated system or end-item are
controlled under the same USML Category or CCL ECCN as the parts,
components, accessories, and attachments of the simulated system or
end-item.
* * * * *
[[Page 35321]]
Dated. June 7, 2012.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2012-14443 Filed 6-12-12; 8:45 am]
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