[Federal Register Volume 78, Number 143 (Thursday, July 25, 2013)]
[Proposed Rules]
[Pages 45017-45025]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17556]



[[Page 45017]]

Vol. 78

Thursday,

No. 143

July 25, 2013

Part II





Department of State





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22 CFR Part 121





Department of Commerce





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Bureau of Industry and Security





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15 CFR Part 774





Amendment to the International Traffic in Arms Regulations: Revision of 
U.S. Munitions List Category XI. and Revisions to the Export 
Administration Regulations (EAR): Control of Military Electronic 
Equipment and Related Items the President Determines No Longer Warrant 
Control Under the United States Munitions List (USML); Proposed Rules

Federal Register / Vol. 78 , No. 143 / Thursday, July 25, 2013 / 
Proposed Rules

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DEPARTMENT OF STATE

22 CFR Part 121

RIN 1400-AD25
[Public Notice 8388]


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

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 XI (Military Electronics) of the 
U.S. Munitions List (USML) to describe more precisely the articles 
warranting control on the USML. The proposed revision of USML Category 
XI was first published as a proposed rule on November 28, 2012, for 
public comment. The Administration has decided to publish this 
regulation again in proposed form to allow for public feedback on 
changes made to the rule and for the Department of State to request 
further input from the public on specific matters of concern. The 
revisions contained in this rule are part of the Department of State's 
retrospective plan under E.O. 13563.

DATES: The Department of State will accept comments on this proposed 
rule until September 9, 2013.

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 XI.''
     Internet: At www.regulations.gov, search for this notice 
by using this rule's RIN (1400-AD25).
    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. Sarah J. Heidema, Acting Director, 
Office of Defense Trade Controls Policy, Department of State, telephone 
(202) 663-2809; email DDTCResponseTeam@state.gov. ATTN: Regulatory 
Change, USML Category XI. The Department of State's full retrospective 
plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.

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'' and ``defense 
services,'' 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.
    All references to the USML in this rule are to the list of defense 
articles controlled for the purpose of export or temporary import 
pursuant to the ITAR, and not to the defense articles on the USML that 
are controlled by the Bureau of Alcohol, Tobacco, Firearms and 
Explosives (ATF) for the purpose of permanent import under its 
regulations. See 27 CFR part 447. Pursuant to section 38(a)(1) of the 
Arms Export Control Act (AECA), all defense articles controlled for 
export or import are part of the USML under the AECA. For the sake of 
clarity, the list of defense articles controlled by ATF for the purpose 
of permanent import is the U.S. Munitions Import List (USMIL). The 
transfer of defense articles from the ITAR's USML to the EAR's CCL for 
the purpose of export control does not affect the list of defense 
articles controlled on the USMIL under the AECA for the purpose of 
permanent import.

Export Control Reform Update

    Pursuant to the President's Export Control Reform (ECR) initiative, 
the Department has published proposed revisions to thirteen USML 
categories and has revised four USML categories to create a more 
positive control list and eliminate, where possible, ``catch all'' 
controls. The Department, along with the Departments of Commerce and 
Defense, reviewed the public comments the Department received on the 
proposed rules and has, where appropriate, revised the rules. The 
Department continues to review the remaining USML categories and will 
publish them as proposed rules in the coming months.
    For discussion of public comments relevant to the two USML 
categories that have been published as final rules, please see 
``Amendment to the International Traffic in Arms Regulations: Initial 
Implementation of Export Control Reform,'' published April 16, 2013 (78 
FR 22740). The aforementioned notice also contained policies and 
procedures regarding the licensing of items moving from the export 
jurisdiction of the Department of State to the Department of Commerce, 
a definition for specially designed, and responses to public comments 
and changes to other sections of the ITAR that affect the categories 
discussed in this rule.
    Pursuant to ECR, the Department of Commerce has been publishing 
revisions to the EAR, including various revisions to the CCL. Revision 
of the USML and CCL are coordinated so there is uninterrupted 
regulatory coverage for items moving from the jurisdiction of the 
Department of State to that of the Department of Commerce. For the 
Department of Commerce's companion to this rule, please see, 
``Revisions to the Export Administration Regulations (EAR): Control of 
Military Electronic Equipment and Related Items the President 
Determines No Longer Warrant Control Under the United States Munitions 
List (USML),'' elsewhere in this edition of the Federal Register.

Proposed Changes in This Rule

    The Department proposes the following changes to the ITAR with this 
rule: (i) Revision of USML Category XI (Military Electronics); and (ii) 
inclusion in USML Category XI of the new licensing procedure for the 
export of items subject to the EAR that are to be exported with defense 
articles enumerated in this category.

Revision of USML Category XI

    The revision of USML Category XI was first published as a proposed 
rule (RIN 1400-AD25) on November 28, 2012, for public comment (see 77 
FR

[[Page 45019]]

70958). The comment period ended January 28, 2013. Thirty-six parties 
filed comments recommending changes within the established comment 
period, which were reviewed and considered by the Department and other 
agencies. Pursuant to this review, which included assessment of the 
public comments received for the Department of Commerce's companion 
rule published on the same day (see 77 FR 70945), the Administration 
has decided to publish these regulations again in proposed form, to 
allow for public feedback on additional proposed changes to the rules 
and for the Departments of State and Commerce to request further input 
from the public on specific matters of concern. In addition, because of 
the frequency the term ``specially designed'' is used in the 
regulation, and because at the time of the public comment period there 
was not a final version of the term available for application, certain 
commenting parties expressed concern regarding the ability to fully 
assess the changes to this category. With the publication of the 
specially designed definition (see 78 FR 22740), these concerned 
parties may now apply the definition in their analysis of the proposed 
revision to the military electronics controls.
    The Department received proposals for alternative phrasing and 
formatting of the regulatory text in USML Category XI. When the 
recommended changes added to the clarity of the regulation, did not 
alter the intended scope of the control, and were congruent with ECR 
objectives, the Department accepted them. In addition, the Department's 
assessment of many of the public comments has resulted in modifications 
throughout the regulation for more accurate description of the articles 
intended to be controlled.
    One commenting party recommended that USML Category XI should 
explicitly exclude communications systems and equipment that have been 
configured for operational compatibility within military systems but 
that are comprised of commercial equipment and perform essentially 
civilian functions. Otherwise, the regulation would put U.S. companies 
at a disadvantage with foreign companies that are able to export such 
products without restriction. Similarly, other commenting parties 
expressed concerns that the revised regulation--in what was enumerated, 
as well as the parameters provided--would capture commercial articles. 
All such concerns were considered, and in certain cases, the regulation 
was revised. In light of the revised regulation, the Department 
requests that those who still believe it captures commercial articles 
to provide specific examples of such articles that would be covered by 
model or nomenclature, rather than the general comment that the 
regulation would capture commercial articles.
    One commenting party was concerned that companies seeking to export 
systems comprised of both ITAR-controlled equipment and the new CCL 600 
series items would need to obtain export authorizations from both the 
Departments of State and Commerce. The Department notes that ``dual 
licensing'' is not a matter arising from export control reform, as it 
has always been the case that systems may contain items with different 
export control jurisdictions. A feature of ECR, though, does address 
this issue. As described in ``Amendment to the International Traffic in 
Arms Regulations: Initial Implementation of Export Control Reform'' (78 
FR 22740), USML categories will have a new (x) paragraph, the purpose 
of which is to allow for ITAR licensing for commodities, software, and 
technical data subject to the EAR, provided those commodities, 
software, and technical data are to be used in or with defense articles 
controlled on the USML that are identified on the same license 
application and are described in the purchase documentation submitted 
with the license application.
    Three commenting parties recommended including separate paragraphs 
within USML Category XI for the control of software for the 
development, operation, test, and repair of articles enumerated in the 
category. The Department did not accept this recommendation, as 
paragraph (d) controls related technical data, and technical data 
includes software (see ITAR Sec.  120.10).
    One commenting party expressed concern that the Department relies 
heavily on use of the word ``military'' in the title of the category to 
describe the articles to be controlled therein, rather than adequately 
provide definitions, technical characteristics, or performance 
parameters to clearly define what makes the article ``military.'' The 
Department has, pursuant to a central tenet of the USML revision, 
endeavored to make USML Category XI into a ``positive'' listing of 
controlled articles. In instances where the reader does not agree, the 
Department welcomes specific recommendations for clarifying the 
controls.
    One commenting party expressed concern that the proposed transfer 
of articles from the ITAR to the EAR may lead to jurisdictional 
uncertainty of the servicing of these articles. Generally, a defense 
service entails the furnishing of assistance regarding a defense 
article. Items that have traversed the USML-CCL divide are no longer 
``defense articles,'' but are part of the ``600 series'' on the CCL. 
Servicing these items will not require an authorization from the 
Department. As part of ECR, the Department has published a proposed 
revision of the defense services definition in April 2011 (see 76 FR 
20590), and again in May 2013 (see 78 FR 31444).
    One commenting party recommended that articles not be covered by 
USML Category XI if the specified control parameters are achieved by 
international providers, for there will not be any critical military or 
intelligence advantage to the United States to provide ITAR control for 
these articles. While the determination whether an article provides a 
critical military or intelligence advantage and is exclusively 
available from the United States are important criteria for determining 
USML control, they are not the only ones. For example, although certain 
bombs are available from many countries, the Department believes these 
articles still warrant control on the USML.
    One commenting party recommended the Department control ``store 
management systems not capable of firing weapons'' in USML Category 
XI(a). The Department requests that the commenting party clarify the 
article recommended for enumeration in USML Category XI, and provide 
the rationale for its control.
    The Department did not accept the recommendation of one commenting 
party to revise paragraph (a)(1)(i)(D) to cover faster than real-time 
processing, as it was not the intention to control post-processing 
systems.
    Several commenting parties recommended changes to the criteria 
listed in paragraphs (a)(1)(i)(A) through (D), on the basis that 
commercial articles would otherwise be covered. The Department notes 
that the criteria in (A) through (D) are modified by the criteria of 
paragraph (a)(1)(i). However, the Department has made clarifying edits 
to this paragraph.
    The Department accepted the recommendation of two commenting 
parties to add the term ``systems'' to the header introductions of 
paragraphs that enumerated systems for control. The Department agrees 
that doing so would better describe the articles controlled in those 
paragraphs.
    The Department received recommendations from two commenting parties 
to define the term ``target,'' as it is used frequently in paragraph 
(a)(3) of

[[Page 45020]]

the regulation. The Department believes a definition for this term is 
unnecessary, as the focus of the controls is the capabilities of the 
described articles rather than the character of targets against which 
the capabilities are applied.
    In response to one commenting party's recommendation, the 
Department clarifies that the meaning of the word ``type'' in the 
paragraph controlling radar employing non-cooperative target 
recognition is that provided in 14 CFR 1.1.
    One commenting party recommended equipment not designed to meet 
TEMPEST standards, but subsequently tested and certified to meet the 
standard, not be controlled on the USML. The Department does not 
believe that an entity can design, rate, certify, or otherwise specify 
or describe equipment to be in compliance with U.S. Government TEMPEST 
requirements without the help of the designer or manufacturer.
    In response to recommendations and concerns of commenting parties, 
the Department has revised paragraph (a)(7) so that it does not apply 
to equipment or systems in production, to remove the word ``devices,'' 
to allow for other funding authorizations besides ``contract,'' and to 
provide a future effective date. The Department notes that the 
paragraph is meant to control articles not yet in existence, but 
provides limitations to the scope of the control. While it appreciates 
that such a control is not ``positive'' in aspect, the Department 
believes it is good regulatory practice to control as a defense article 
the fruits of a Department of Defense-private industry arrangement the 
stated purpose of which is to create a defense article.
    In response to recommendations and concerns of commenting parties, 
the Department has revised paragraph (b) to remove ``security 
purposes'' as a reason for control, remove as an example systems or 
equipment that use burst techniques because these articles are covered 
in paragraph (a)(5)(v), and more clearly identify the enumerated 
articles as examples of articles controlled therein.
    Two commenting parties requested clarification of how the articles 
controlled in paragraph (c) relate to articles enumerated in paragraph 
(a). The intent of paragraph (c) is to control the enumerated parts, 
components, accessories, attachments, and associated equipment 
regardless of whether they relate to articles enumerated in paragraph 
(a) or any other paragraph in USML Category XI, or to items on the CCL.
    One commenting party recommended the inclusion of the phrase, 
``except for such items as are in normal commercial use,'' in paragraph 
(c). The Department's intent is to not list any articles in that 
paragraph that have commercial application, and requests specific 
identification of such articles that would be captured, but does not 
believe use of the phrase would be helpful.
    In response to recommendations and concerns of commenting parties, 
the Department has revised the controls for printed circuit boards and 
patterned multichip modules, providing each with a separate 
subparagraph, and notes that jurisdiction of a printed circuit board or 
patterned multichip module should follow the jurisdiction of the 
article for which it is designed, as opposed to the jurisdiction of the 
overall system into which it is incorporated.
    As it has proposed for other USML categories, and for the first 
proposed revision of USML Category XI, the Department is to add a new 
``(x) paragraph'' to this category, allowing ITAR licensing for 
commodities, software, and technical data subject to the EAR provided 
those commodities, software, and technical data are to be used in or 
with defense articles controlled in USML Category XI and are described 
in the purchase documentation submitted with the application.

Additional Changes

    A proposed definition for the term ``equipment'' was included in 
the first USML Category XI proposed rule. That definition will be 
included in a future final rule.

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 sections 553 (rulemaking) and 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-AD25) and accepted 
comments for 60 days.

Regulatory Flexibility Act

    Since the Department is of the opinion that this proposed rule is 
exempt from the provisions of 5 U.S.C. 553, there is no requirement for 
an analysis under the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This proposed rulemaking 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

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (the ``Act''), a ``major'' rule is a rule that the 
Administrator of the OMB Office of Information and Regulatory Affairs 
finds has resulted or is likely to result in (1) an annual effect on 
the economy of $100,000,000 or more; (2) a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and foreign markets.
    The Department does not believe this rulemaking will have an annual 
effect on the economy of $100,000,000 or more. Articles that are being 
removed from coverage in the U.S. Munitions List categories contained 
in this rule will still require licensing for export, but from the 
Department of Commerce. While the licensing regime of the Department of 
Commerce is more flexible than that of the Department of State, it is 
not expected that the change in jurisdiction of these articles will 
result in an export difference of $100,000,000 or more.
    The Department also does not believe that this rulemaking will 
result in a major increase in costs or prices for consumers, individual 
industries, federal, state, or local government agencies, or geographic 
regions, or have significant adverse effects on competition, 
employment, investment,

[[Page 45021]]

productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
foreign markets.

Executive Orders 12372 and 13132

    This proposed rulemaking 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 rulemaking 
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 rulemaking.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess 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). These executive orders 
stress the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
These rules have been designated ``significant regulatory actions,'' 
although not economically significant, under section 3(f) of Executive 
Order 12866. Accordingly, this proposed rule has been reviewed by the 
Office of Management and Budget (OMB).

Executive Order 12988

    The Department of State has reviewed this proposed rulemaking 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 proposed 
rulemaking will not have tribal implications, will not impose 
substantial direct compliance costs on Indian tribal governments, and 
will not preempt tribal law. Accordingly, the provisions of Executive 
Order 13175 do not apply to this proposed rulemaking.

Paperwork Reduction Act

    Following is a listing of approved collections that will be 
affected by revision, pursuant to the President's Export Control Reform 
(ECR) initiative, of the U.S. Munitions List (USML) and the Commerce 
Control List. The list of collections and the description of the manner 
in which they will be affected pertains to revision of the USML in its 
entirety, not only to the category published in this rule:
    (1) Statement of Registration, DS-2032, OMB No. 1405-0002. The 
Department estimates that between 3,000 and 5,000 of the currently-
registered persons will not need to maintain registration following 
full revision of the USML. This would result in a burden reduction of 
between 6,000 and 10,000 hours annually, based on a revised time burden 
of two hours to complete a Statement of Registration.
    (2) Application/License for Permanent Export of Unclassified 
Defense Articles and Related Unclassified Technical Data, DSP-5, OMB 
No. 1405-0003. The Department estimates that there will be 35,000 fewer 
DSP-5 submissions annually following full revision of the USML. This 
would result in a burden reduction of 35,000 hours annually. In 
addition, the DSP-5 will allow respondents to select USML Category XIX, 
a newly-established category, as a description of articles to be 
exported.
    (3) Application/License for Temporary Import of Unclassified 
Defense Articles, DSP-61, OMB No. 1405-0013. The Department estimates 
that there will be 200 fewer DSP-61 submissions annually following full 
revision of the USML. This would result in a burden reduction of 100 
hours annually. In addition, the DSP-61 will allow respondents to 
select USML Category XIX, a newly-established category, as a 
description of articles to be temporarily imported.
    (4) Application/License for Temporary Export of Unclassified 
Defense Articles, DSP-73, OMB No. 1405-0023. The Department estimates 
that there will be 800 fewer DSP-73 submissions annually following full 
revision of the USML. This would result in a burden reduction of 800 
hours annually. In addition, the DSP-73 will allow respondents to 
select USML Category XIX, a newly-established category, as a 
description of articles to be temporarily exported.
    (5) 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. The Department estimates that 
there will be 2,000 fewer amendment submissions annually following full 
revision of the USML. This would result in a burden reduction of 1,000 
hours annually. In addition, the amendment forms will allow respondents 
to select USML Category XIX, a newly-established category, as a 
description of the articles that are the subject of the amendment 
request.
    (6) Request for Approval of Manufacturing License Agreements, 
Technical Assistance Agreements, and Other Agreements, DSP-5, OMB No. 
1405-0093. The Department estimates that there will be 1,000 fewer 
agreement submissions annually following full revision of the USML. 
This would result in a burden reduction of 2,000 hours annually. In 
addition, the DSP-5, the form used for the purposes of electronically 
submitting agreements, will allow respondents to select USML Category 
XIX, a newly-established category, as a description of articles to be 
exported.
    (7) Maintenance of Records by Registrants, OMB No. 1405-0111. The 
requirement to actively maintain records pursuant to provisions of the 
International Traffic in Arms Regulations (ITAR) will decline 
commensurate with the drop in the number of persons who will be 
required to register with the Department pursuant to the ITAR. As 
stated above, the Department estimates that between 3,000 and 5,000 of 
the currently-registered persons will not need to maintain registration 
following full revision of the USML. This would result in a burden 
reduction of between 60,000 and 100,000 hours annually. However, the 
ITAR does provide for the maintenance of records for a period of five 
years. Therefore, persons newly relieved of the requirement to register 
with the Department may still be required to maintain records.
    (8) Export Declaration of Defense Technical Data or Services, DS-
4071, OMB No. 1405-0157. The Department estimates that there will be 
2,000 fewer declaration submissions annually following full revision of 
the USML. This would result in a burden reduction of 1,000 hours 
annually.

List of Subjects

22 CFR 121

    Arms and munitions, Classified information, Exports.

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

[[Page 45022]]

PART 121--THE UNITED STATES MUNITIONS LIST

0
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); 22 U.S.C. 2651a; Pub. L. 105-261, 112 
Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

0
2. Section 121.1 is amended by revising U.S. Munitions List Category XI 
to read as follows:


Sec.  121.1  General. The United States Munitions List.

* * * * *

Category XI--Military Electronics

    (a) Electronic equipment and systems not included in Category XII 
of the U.S. Munitions List, as follows:
    * (1) Underwater hardware, equipment, or systems, as follows:
    (i) Active or passive acoustic array sensing systems or acoustic 
array equipment capable of real-time processing that survey or detect, 
and also track, localize (i.e., determine range and bearing), classify, 
or identify surface vessels, submarines, other undersea vehicles, 
torpedoes, or mines, having any of the following:
    (A) Multi-static capability;
    (B) Operating frequency less than 20 kHz; or
    (C) Operating bandwidth greater than 10 kHz;
    (ii) Underwater single acoustic sensor system that distinguishes 
tonals and locates the origin of the sound;
    (iii) Non-acoustic systems that survey or detect, and also track, 
localize, classify, or identify surface vessels, submarines, other 
undersea vehicles, torpedoes, or mines;

    Note to paragraph (a)(1)(iii):  Equipment controlled in ECCN 
5A001.b.1 is not included.

    (iv) Acoustic modems, networks, and communications equipment with 
real-time adaptive compensation or employing Low Probability of 
Intercept (LPI);

    Note to paragraph (a)(1)(iv):  Adaptive compensation is the 
capability of an underwater modem to assess the water conditions to 
select the best algorithm to receive and transmit data.

    (v) Low Frequency/Very Low Frequency (LF/VLF) electronic modems, 
routers, interfaces, and communications equipment specially designed 
for submarine communications; or
    (vi) Autonomous systems and equipment that enable cooperative 
sensing and engagement by fixed (bottom mounted/seabed) or mobile 
Autonomous Underwater Vehicles (AUVs);
    * (2) Underwater acoustic countermeasures or counter-
countermeasures systems or equipment;
    * (3) Radar systems and equipment, as follows:
    (i) Airborne radar that maintains positional state of an object of 
interest in a received radar signal through time;
    (ii) Synthetic Aperture Radar (SAR) incorporating image resolution 
less than (better than) 0.3 m, or incorporating Coherent Change 
Detection (CCD) with geo-registration accuracy less than (better than) 
0.3 m, not including concealed object detection equipment operating in 
the frequency range from 30 GHz to 3,000 GHz and having a spatial 
resolution of 0.5 milliradians up to and including 1 milliradians at a 
standoff distance of 100 m;
    (iii) Inverse Synthetic Aperture Radar (ISAR);
    (iv) Radar that geodetically-locates (i.e., geodetic latitude, 
geodetic longitude, and geodetic height) with a target location error 
50 (TLE50) less than or equal to 10 m at ranges greater than 1 km;
    (v) Any ocean surface surveillance radar with either a product of 
transmit peak power times antenna gain divided by minimum detectable 
signal of >165 dB for a receiver bandwidth greater than 10 MHz or 
>195dB for a receiver bandwidth less than 10 MHz, or a capability to 
distinguish a target of <10 dBsm from sea clutter with a false alarm 
rate of 10-6 or better in sea state 3 or higher, or both;
    (vi) Sea surveillance/navigation radar with free space detection of 
1 square meter radar cross section (RCS) target at 20 nautical miles 
(nmi) or greater range;
    (vii) Air surveillance radar with free space detection of 1 square 
meter RCS target at 85 nmi or greater range, scaled to RCS values as 
RCS to the \1/4\ power;
    (viii) Air surveillance radar with free space detection of 1 square 
meter RCS target at an altitude of 65,000 feet and an elevation angle 
greater than 20 degrees (i.e., counter-battery);
    (ix) Air surveillance radar with multiple elevation beams, phase or 
amplitude monopulse estimation, or 3D height-finding;
    (x) Air surveillance radar with a beam solid angle less than or 
equal to 16 degrees\2\ that performs free space tracking of 1 square 
meter RCS target at a range greater or equal to 25 nmi with revisit 
rate greater or equal to \1/3\ Hz;
    (xi) Instrumentation radar for anechoic test facility or outdoor 
range that maintains positional state of an object of interest in a 
received radar signal through time or provides measurement of RCS of a 
static target less than or equal to -minus 10dBsm, or RCS of a dynamic 
target;
    (xii) Radar incorporating pulsed operation with electronics 
steering of transmit beam in elevation and azimuth;
    (xiii) Radar with mode(s) for ballistic tracking or ballistic 
extrapolation to source of launch or impact point of articles 
controlled in USML Categories III or IV;
    (xiv) Active protection radar and missile warning radar with 
mode(s) implemented for detection of incoming munitions;
    (xv) Over the horizon high frequency sky-wave (ionosphere) radar;
    (xvi) Radar that detects a moving object through a physical 
obstruction at distance greater than 0.2 m from the obstruction;
    (xvii) Radar having moving target indicator (MTI) or pulse-Doppler 
processing where any single Doppler filter provides a normalized 
clutter attenuation of greater than 50dB;

    Note to paragraph (a)(3)(xvii): ``Normalized clutter 
attenuation'' is defined as the reduction in the power level of 
received distributed clutter when normalized to the thermal noise 
level.

    (xviii) Radar having electronic protection (EP) or electronic 
counter-countermeasures (ECCM) other than manual gain control, 
automatic gain control, radio frequency selection, constant false alarm 
rate, and pulse repetition interval jitter;
    (xix) Radar employing electronic attack (EA) mode(s) using the 
radar transmitter and antenna;
    (xx) Radar employing electronic support (ES) mode(s) (i.e., the 
ability to use a radar system for ES purposes in one or more of the 
following: as a high-gain receiver, as a wide-bandwidth receiver, as a 
multi-beam receiver, or as part of a multi-point system);
    (xxi) Radar employing non-cooperative target recognition (NCTR) 
(i.e., the ability to recognize a specific platform type without 
cooperative action of the target platform);
    (xxii) Radar employing automatic target recognition (ATR) (i.e., 
recognition of target using structural features (e.g., tank versus car) 
of the target with system resolution better than (less than) 0.3 m;
    (xxiii) Radar that sends interceptor guidance commands or provides 
illumination keyed to an interceptor seeker;
    (xxiv) Radar employing waveform generation for LPI other than 
frequency modulated continuous wave (FMCW) with linear ramp modulation;
    (xxv) Radar that sends and receives communications;

[[Page 45023]]

    (xxvi) Radar that tracks or discriminates ballistic missile warhead 
from debris or countermeasures;
    (xxvii) Bi-static/multi-static radar that exploits greater than 125 
kHz bandwidth and is lower than 2 GHz center frequency to passively 
detect or track using radio frequency (RF) transmissions (e.g., 
commercial radio or television stations);
    (xxviii) Radar target generators, projectors, or simulators 
specially designed for radars controlled by this category; or
    (xxix) Radar and laser radar systems specially designed for defense 
articles in paragraph (a)(1) of USML Category IV or paragraphs (a)(5), 
(a)(6), or (a)(13) of USML Category VIII (MT if specially designed for 
rockets, space launch vehicles, missiles, drones, or unmanned aerial 
vehicles capable of delivering a payload of at least 500 kg to a range 
of at least 300 km);

    Note 1 to paragraph (a)(3)(xxix):  Laser radar systems embody 
specialized transmission, scanning, receiving, and signal processing 
techniques for utilization of lasers for echo ranging, direction 
finding, and discrimination of targets by location, radial speed, 
and body reflection characteristics.


    Note 2 to paragraph (a)(3)(xxix): ``Range'' is the maximum 
distance that the specified rocket system is capable of traveling in 
the mode of stable flight as measured by the projection of its 
trajectory over the surface of the Earth. The maximum capability 
based on the design characteristics of the system, when fully loaded 
with fuel or propellant, will be taken into consideration in 
determining range. The range for rocket systems will be determined 
independently of any external factors such as operational 
restrictions, limitations imposed by telemetry, data links, or other 
external constraints. For rocket systems, the range will be 
determined using the trajectory that maximizes range, assuming 
International Civil Aviation Organization (ICAO) standard atmosphere 
with zero wind. ``Payload'' is the total mass that can be carried or 
delivered by the specified rocket, SLV, or missile that is not used 
to maintain flight.


    Note to paragraph (a)(3): This category does not control: (1) 
Systems or equipment that require aircraft transponders in order to 
meet control parameters; (2) precision approach radar (PAR) 
equipment conforming to ICAO standards and employing electronically 
steerable linear (1-dimensional) arrays or mechanically positioned 
passive antennae; and (3) Radio Altimeter equipment conforming to 
FAA TSO C87.
    * (4) Electronic Combat (i.e., Electronic Warfare) systems and 
equipment, as follows:

    (i) ES systems and equipment that search for, intercept and 
identify, or locate sources of intentional or unintentional 
electromagnetic energy specially designed to provide immediate 
threat detection, recognition, targeting, planning, or conduct of 
future operations;

    Note to paragraph (a)(4)(i): ES provides tactical situational 
awareness, automatic cueing, targeting, electronic order of battle 
planning, electronic intelligence (ELINT), communication 
intelligence (COMINT), or signals intelligence (SIGINT).
    (ii) Systems and equipment that detect and automatically 
discriminate acoustic energy emanating from weapons fire (e.g., 
gunfire, artillery, rocket propelled grenades, or other 
projectiles), determining location or direction of weapons fire in 
less than two seconds from receipt of event signal, and able to 
operate on-the-move (e.g., operating on personnel, land vehicles, 
sea vessels, or aircraft while in motion); or
    (iii) Systems and equipment specially designed to introduce 
extraneous or erroneous signals into radar, infrared based seekers, 
electro-optic based seekers, radio communication receivers, 
navigation receivers, or that otherwise hinder the reception, 
operation, or effectiveness of adversary electronics (e.g., active 
or passive electronic attack, electronic countermeasure, electronic 
counter-countermeasure equipment, jamming, and counter jamming 
equipment);


    Note to paragraph (a)(4)(iii):  This paragraph does not control 
mobile telecommunications jamming equipment determined to be subject 
to the EAR via a commodity jurisdiction determination (see Sec.  
120.4 of this subchapter).
    * (5) Command, control, and communications (C\3\); command, 
control, communications, and computers (C\4\); command, control, 
communications, computers, intelligence, surveillance, and 
reconnaissance (C\4\ISR); and identification systems or equipment, 
that:
    (i) Are specially designed to integrate, incorporate, network, 
or employ defense articles controlled in this subchapter;
    (ii) Incorporate U.S. Government identification friend or foe 
(IFF) Modes 4 or 5;
    (iii) Implement active or passive ECCM used to counter acts of 
communication disruption (e.g., radios that incorporate HAVE QUICK 
I/II, SINCGARS, SATURN);
    (iv) Specially designed, rated, certified, or otherwise 
specified or described to be in compliance with U.S. Government 
NSTISSAM TEMPEST 1-92 standards or CNSSAM TEMPEST 01-02, to 
implement techniques to suppress compromising emanations of 
information bearing signals; or
    (v) Transmit voice or data signals specially designed to elude 
electromagnetic detection;
    (6) [Reserved]
    (7) Developmental electronic equipment or systems funded by the 
Department of Defense via contract or other funding authorization;


    Note 1 to paragraph (a)(7):  This paragraph does not control 
developmental electronic systems or equipment (a) in production, (b) 
determined to be subject to the EAR via a commodity jurisdiction 
determination (see Sec.  120.4 of this subchapter), or (c) 
identified in the relevant Department of Defense contract or other 
funding authorization as being developed for both civil and military 
applications.


    Note 2 to paragraph (a)(7): Note 1 does not apply to defense 
articles enumerated on the USML, whether in production or 
development.


    Note 3 to paragraph (a)(7): This paragraph is applicable only to 
those contracts and funding authorizations that are dated one year 
or later following the publication of [insert name of final rule 
incorporating revision of USML Category XI].

    (8) Unattended ground sensor (UGS) systems or equipment having all 
of the following:
    (i) Automatic target detection;
    (ii) Automatic target tracking, classification, recognition, or 
identification;
    (iii) Self-forming or self-healing networks; and
    (iv) Self-localization for geo-locating targets;
    (9) Electronic sensor systems or equipment for non-acoustic anti-
submarine warfare (ASW) or mine warfare (e.g., magnetic anomaly 
detectors (MAD), electric-field, and electromagnetic induction);
    (10) Electronic sensor systems or equipment for detection of 
concealed weapons, having a standoff detection range of greater than 45 
m for personnel or detection of vehicle-carried weapons;
    (11) Test sets specially designed for testing counter radio 
controlled improvised explosive device (C-RCIED) electronic warfare 
(CREW) systems; or
    (12) Direction finding equipment for determining bearings to 
specific electromagnetic sources or terrain characteristics specially 
designed for defense articles in paragraph (a)(1) of USML Category IV 
or paragraphs (a)(5), (a)(6), or (a)(13) of USML Category VIII (MT if 
specially designed for rockets, SLVs, missiles, drones, or UAVs capable 
of delivering a payload of at least 500 kg to a range of at least 300 
km. See note 2 to paragraph (a)(3)(xxix) of this category).

    Note 1 to paragraph (a): The term ``Low Probability of 
Intercept'' used in this paragraph and elsewhere in this category is 
defined as a class of measures that disguise, delay, or prevent the 
interception of acoustic or electromagnetic signals. LPI techniques 
can involve permutations of power management, energy management, 
frequency variability, out-of-receiver-frequency band, low-side lobe 
antenna, complex waveforms, and complex scanning. LPI is also 
referred to as Low Probability of Intercept, Low Probability of 
Detection, and Low Probability of Identification.


    Note 2 to paragraph (a): Paragraphs (a)(3)(xxix) and (a)(12) 
include terrain

[[Page 45024]]

contour mapping equipment, scene mapping and correlation (both 
digital and analogue) equipment, Doppler navigation radar equipment, 
passive interferometer equipment, and imaging sensor equipment (both 
active and passive).
    * (b) Electronic systems or equipment specially designed for 
intelligence purposes that collects, surveys, monitors, or exploits 
the electromagnetic spectrum (regardless of transmission medium), or 
for counteracting such activities.


    Note to paragraph (b): Examples of articles within the scope of 
this paragraph include:

    (1) Direction finding systems for non-cooperative objects that have 
an angle of arrival (AOA) accuracy better than (less than) two degrees 
root mean square (RMS) and ``specially designed'' for applications 
other than navigation;
    (2) systems and equipment specially designed for measurement and 
signature intelligence (MASINT); and
    (3) technical surveillance counter-measure (TSCM) or electronic 
surveillance equipment and counter electronic surveillance equipment 
(including spectrum analyzers) for the RF/microwave spectrum having all 
of the following:
    (i) A sweep or scan speed exceeding 250 MHz per second;
    (ii) a built-in signal analysis capability;
    (iii) a volume of less than 1 cubic foot;
    (iv) record time-domain or frequency-domain digital signals other 
than single trace spectral snapshots; and
    (v) display time-vs-frequency domain (e.g., waterfall or rising 
raster).
    (c) Parts, components, accessories, attachments, and associated 
equipment, as follows:
    (1) Application Specific Integrated Circuits (ASICs) and 
Programmable Logic Devices (PLD) programmed for defense articles in 
this subchapter;

    Note 1 to paragraph (c)(1):  ASICs and PLDs programmed for 600 
series items are controlled in ECCN 3A611.f.


    Note 2 to paragraph (c)(1):  Unprogrammed PLDs are not 
controlled by this paragraph.

    (2) Printed Circuit Boards (PCBs) and populated circuit card 
assemblies for which the layout is specially designed for defense 
articles in this subchapter;

    Note to paragraph (c)(2):  PCBs and populated circuit card 
assemblies for which the layout is specially designed for 600 series 
items are controlled in ECCN 3A611.g.

    (3) Multichip modules for which the pattern or layout is specially 
designed for defense articles in this subchapter;

    Note to paragraph (c)(3):  Multichip modules for which the 
pattern or layout is specially designed for 600 series items are 
controlled in ECCN 3A611.h.

    (4) Transmit/receive modules or transmit modules that have any two 
perpendicular sides, with either length d (in cm) equal to or less than 
15 divided by the lowest operating frequency in GHz [d<=15cm*GHz/
fGHz], that incorporate a Monolithic Microwave Integrated 
Circuit (MMIC) or discrete RF power transistor and a phase shifter or 
phasers;
    (5) High-energy storage capacitors with a repetition rate of 6 
discharges or more per minute and full energy life greater than or 
equal to 10,000 discharges, at greater than 0.2 Amps per Joule peak 
current, that have any of the following:
    (i) Volumetric energy density greater than or equal to 1.5 J/cc; or
    (ii) Mass energy density greater than or equal to 1.3 kJ/kg;
    (6) Radio frequency circulators of any dimension equal to or less 
than one quarter (\1/4\) wavelength of the highest operating frequency 
and isolation greater than 30dB;
    (7) Polarimeter that detects and measures polarization of radio 
frequency signals within a single pulse;
    (8) Digital radio frequency memory (DRFM) with RF instantaneous 
input bandwidth greater than 400 MHz, and 4 bit or higher resolution 
and specially designed parts and components therefor;
    (9) Vacuum electronic devices, as follows:
    (i) Multiple electron beam or sheet electron beam devices rated for 
operation at frequencies of 16 GHz or above, and with a saturated power 
output greater than 10,000 W (70 dBm) or a maximum average power output 
greater than 3,000 W (65 dBm); or
    (ii) Cross-field amplifiers with a gain of 15 dB to 17 dB or a duty 
factor greater than 5%;
    (10) Antenna, and specially designed parts and components therefor, 
that:
    (i) Electronically steers both angular beams and nulls with four or 
more elements with faster than 50 milliseconds beam switching;
    (ii) Form adaptive null attenuation greater than 35 dB with 
convergence time less than 1 second;
    (iii) Detect signals across multiple RF bands with matched left 
hand and right hand spiral antenna elements for determination of signal 
polarization; or
    (iv) Determine signal angle of arrival less than two degrees (e.g., 
interferometer antenna);

    Note to paragraph (c)(10): This category does not control 
Traffic Collision Avoidance Systems (TCAS) equipment conforming to 
FAA TSO C-119c.

    (11) Radomes or electromagnetic antenna windows that:
    (i) Incorporate radio frequency selective surfaces;
    (ii) Operate in multiple non-adjacent radar bands;
    (iii) Incorporate a structure that is specially designed to provide 
ballistic protection from bullets, shrapnel, or blast;
    (iv) Have a melting point greater than 1,300 [deg]C and maintain a 
dielectric constant less than 6 at temperatures greater than 500 [deg] 
C;
    (v) Are manufactured from ceramic materials with a dielectric 
constant less than 6 at any frequency from 100 MHz to 100 GHz (MT if 
usable in rockets, SLVs, or missiles capable of achieving a range 
greater than or equal to 300 km; or if usable in drones or UAVs capable 
of delivering a payload of at least 500 kg to a range of at least 300 
km. See note 2 to paragraph (a)(3)(xxix) of this category);
    (vi) Maintain structural integrity at stagnation pressures greater 
than 6,000 pounds per square foot; or
    (vii) Withstand combined thermal shock greater than 4.184 x 10\6\ 
J/m\2\ accompanied by a peak overpressure of greater than 50 kPa (MT if 
usable in rockets, SLVs, missiles, drones, or UAVs capable of 
delivering a payload of at least 500 kg to a range of at least 300 km 
and usable in protecting against nuclear effects (e.g., Electromagnetic 
Pulse (EMP), X-rays, combined blast and thermal effects). See note 2 to 
paragraph (a)(3)(xxix) of this category);
    (12) Underwater sensors (acoustic vector sensors, hydrophones, or 
transducers) or projectors specially designed for systems controlled by 
paragraphs (a)(1) and (a)(2) of this category, having any of the 
following:
    (i) a transmitting frequency below 10 kHz;
    (ii) Sound pressure level exceeding 224 dB (reference 1 [micro]Pa 
at 1 m) for equipment with an operating frequency in the band from 10 
kHz to 24 kHz inclusive;
    (iii) Sound pressure level exceeding 235 dB (reference 1 [micro]Pa 
at 1 m) for equipment with an operating frequency in the band between 
24 kHz and 30 kHz;
    (iv) Forming beams of less than 1[deg] on any axis and having an 
operating frequency of less than 100 kHz;
    (v) Designed to operate with an unambiguous display range exceeding 
5,120 m; or
    (vi) Designed to withstand pressure during normal operation at 
depths exceeding 1,000 m and having transducers with any of the 
following:
    (A) Dynamic compensation for pressure; or

[[Page 45025]]

    (B) Incorporating other than lead zirconate titanate as the 
transduction element;
    (13) Parts or components containing piezoelectric materials which 
are specially designed for underwater hardware, equipment, or systems 
controlled by paragraph (c)(11) of this category;
    (14) Tuners having all of the following:
    (i) An instantaneous bandwidth of 30 MHz or greater; and
    (ii) A tuning speed of 300 microseconds or less to within 10 KHz of 
desired frequency;
    (15) Electronic assemblies and components specially designed for 
rockets, SLVs, missiles, drones, or UAVs capable of achieving a range 
greater than or equal to 300 km and capable of operation at 
temperatures in excess of 125 [deg]C (MT) (See note 2 to paragraph 
(a)(3)(xxix) of this category);
    (16) Specially designed hybrid (combined analogue/digital) 
computers for modeling, simulation, or design integration of systems 
enumerated in paragraphs (a)(1), (d)(1), (d)(2), (h)(1), (h)(2), 
(h)(4), (h)(8), and (h)(9) of USML Category IV or paragraphs (a)(5), 
(a)(6) or (a)(13) of USML Category VIII (MT if for rockets, SLVs, 
missiles, drones, or UAVs capable of delivering a payload of at least 
500 kg to a range of at least 300 km or their subsystems. See note 2 to 
paragraph (a)(3)(xxix) of this category);
    (17) Parts, components, or accessories specially designed for an 
information assurance/information security system or a radio controlled 
in this subchapter that modify its published properties (e.g., 
frequency range, algorithms, waveforms, CODECs, or modulation/
demodulation schemes); or
    *(18) Any part, component, accessory, attachment, equipment, or 
system that (MT for those articles designated as such):
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information (see Sec.  
120.10(a)(2) of this subchapter).
    ``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 or international organization.

    Note to paragraph (c)(18)(ii): Parts and components captured by 
paragraph (c)(17)(ii) are limited to those that store, process, or 
transmit classified software.

    (d) Technical data (see Sec.  120.10 of this subchapter) and 
defense services (see Sec.  120.9 of this subchapter) directly related 
to the defense articles enumerated in paragraphs (a) through (c) of 
this category and classified technical data directly related to items 
controlled in CCL ECCNs 3A611, 3B611, 3C611, and 3D611 and defense 
services using the classified technical data. (See Sec.  125.4 of this 
subchapter for exemptions.) (MT for technical data and defense services 
related to articles designated as such.)
    (e)-(w) [Reserved]
    (x) Commodities, software, and technical data subject to the EAR 
(see Sec.  120.42 of this subchapter) used in or with defense articles 
controlled in this category.

    Note to paragraph (x): Use of this paragraph is limited to 
license applications for defense articles controlled in this 
category where the purchase documentation includes commodities, 
software, or technical data subject to the EAR (see Sec.  123.1(b) 
of this subchapter).

* * * * *

Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security, 
Department of State.
[FR Doc. 2013-17556 Filed 7-24-13; 8:45 am]
BILLING CODE 4710-25-P