[Federal Register Volume 79, Number 126 (Tuesday, July 1, 2014)]
[Rules and Regulations]
[Pages 37536-37545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14681]
[[Page 37535]]
Vol. 79
Tuesday,
No. 126
July 1, 2014
Part VI
Department of State
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22 CFR Part 121
Amendment to the International Traffic in Arms Regulations: United
States Munitions List Category XI (Military Electronics), and Other
Changes; Final Rule
Federal Register / Vol. 79 , No. 126 / Tuesday, July 1, 2014 / Rules
and Regulations
[[Page 37536]]
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DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice 8775]
RIN 1400-AD25
Amendment to the International Traffic in Arms Regulations:
United States Munitions List Category XI (Military Electronics), and
Other Changes
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: As part of the President's Export Control Reform (ECR) effort,
the Department of State is amending the International Traffic in Arms
Regulations (ITAR) to revise U.S. Munitions List (USML) Category XI
(Military Electronics). The Department is also amending Category VIII
(Aircraft and Related Articles) with respect to wing folding systems
and both Categories VIII and XIX to remove three paragraphs superseded
by the revision of Category XI. The revisions contained in this rule
are part of the Department of State's retrospective plan under E.O.
13563.
DATES: This rule is effective on December 30, 2014, except for to the
revision to Sec. 121.1, Category VIII(h)(4), which is effective August
15, 2014.
FOR FURTHER INFORMATION CONTACT: Mr. C. Edward Peartree, Director,
Office of Defense Trade Controls Policy, Department of State, telephone
(202) 663-2792; email [email protected]. ATTN: Regulatory
Change, USML Category XI Final Rule. 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 the export, reexport, and retransfer of commodities,
software, technology, and services to various destinations, end users,
and end uses. 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, upon the effective date of this rule, will have
revised fifteen USML categories--to create a more positive control list
and eliminate, where possible, ``catch all'' controls in the USML. 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. A discussion of
the comments relevant to the USML categories that are part of this rule
is included later on in this notice.
Discussions of the public comments relevant to the other USML
categories that have been published as final rules are in ``Amendment
to the International Traffic in Arms Regulations: Initial
Implementation of Export Control Reform,'' published April 16, 2013 (78
FR 22740); ``Amendment to the International Traffic in Arms
Regulations: Continued Implementation of Export Control Reform,''
published July 8, 2013 (78 FR 40922); ``Amendment to the International
Traffic in Arms Regulations: Third Rule Implementing Export Control
Reform,'' published January 2, 2014 (79 FR 34); and ``Amendment to the
International Traffic in Arms Regulations: Revision of U.S. Munitions
List Category XV,'' published May 13, 2014 (79 FR 27180). These notices
also contain 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, responses
to public comments, and changes to other sections of the ITAR that
affect the categories discussed in this rule. The Department continues
to review the remaining USML categories and will publish them as
proposed rules in the coming months.
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. The
Department of Commerce's companion to this rule is ``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).'' It is
published elsewhere in this edition of the Federal Register.
Changes in This Rule
The following changes are made to the ITAR with this final rule:
(i) Revision of U.S. Munitions List (USML) Categories XI (Military
Electronics); (ii) revision to USML Category VIII (Aircraft and Related
Articles), paragraph (h)(4); (iii) continued implementation of a new
licensing procedure for the export of items subject to the EAR that are
to be exported with defense articles; and (iv) removal of USML Category
VIII, paragraphs (h)(21) and (h)(22) and USML Category XIX (Gas Turbine
Engines and Associated Equipment), paragraph (f)(7), as they are
superseded by USML Category XI, paragraphs (c)(2), (c)(3), and (c)(11).
Revision of USML Category XI
This final rule revises USML Category XI, covering military
electronics, to describe more precisely the articles warranting control
on the USML.
Paragraph (a) is revised by adding various subparagraphs to
specifically enumerate the articles controlled. Subparagraph (a)(6) is
removed and placed in reserve, with the computers intended for control
enumerated in new paragraph (c)(16). Paragraphs (a)(9)-(12) are added
to cover (i) electronic sensor systems or equipment for non-acoustic
antisubmarine warfare (ASW) or mine warfare, (ii) electronic sensor
systems or
[[Page 37537]]
equipment for detection of concealed weapons, (iii) test sets specially
designed for testing defense articles controlled in paragraphs (a)(3),
(a)(4), (a)(5), or (b), and (iv) direction finding equipment specially
designed for articles in select paragraphs of USML Categories IV and
VIII.
Paragraph (c) is amended by adding subparagraphs (1)-(18) to
specifically enumerate the parts, components, accessories, attachments,
and associated equipment controlled. Additionally, subparagraph (19) is
added to enumerate control of classified technology.
Finally, paragraph (x) is added to allow for ITAR licensing of
commodities, software, and technology subject to the EAR provided those
commodities, software, and technology 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. As first
described in the Department's April 16, 2013 notice (78 FR 22740), one
of the objectives of this provision is to motivate exporters to make
complete jurisdictional and classification determinations of the
articles they are exporting.
The Department published proposed revisions to USML Category XI on
November 28, 2012 (see 77 FR 70958, RIN 1400-AD25) and July 25, 2013
(see 78 FR 45018, RIN 1400-AD25). Both proposed rules requested public
comment on the proposed changes. The public comments were reviewed and
considered by the Department and other agencies. The Department's
evaluation of the written comments and recommendations for the first
proposed rule are in the second proposed rule. The Department's
evaluation of the written comments and recommendations for the second
proposed rule follows.
The Department received proposals for modifications to the phrasing
of regulatory text in USML Category XI. When the recommended changes
added to the clarity of the regulation and were consistent with ECR
objectives, the Department accepted them.
One commenting party suggested that a separate sub-paragraph should
be added for software and software source code for the development,
operation, test, and repair of articles enumerated in Category XI. The
Department believes that these articles are already captured in
paragraph XI(d), and therefore did not accept this recommendation.
One commenting party suggested that phrases such as ``having all of
the following'' should be avoided. The Department did not accept this
suggestion because the phrase is necessary to create, where possible,
positive control lists, which is one of the objectives of Export
Control Reform effort.
One commenting party highlighted a circular reference between
paragraphs (a)(1) and (c). Paragraph (a)(5)(i) refers to items ``that
are specially designed to integrate, incorporate, network, or employ
defense articles that are controlled in this subchapter.'' Paragraph
(c) lists components that are specially designed for defense articles.
The commenter asserts that this dual reference to ``specially
designed'' in both places creates a logical paradox. For example, a
system could possibly fall under paragraph (a)(5) because it is
specially designed to integrate, incorporate, network, or employ
defense articles controlled under paragraph (c)(1), (2), and (3).
However, for paragraph (c)(1), (2), and (3) parts to be ITAR-
controlled, they must be ``designed for defense articles in this
subchapter,'' which logically loops back to paragraph (a)(5). The
commenter suggests that paragraph (c) be treated independently of other
USML Category XI sub-paragraphs in line with the concept of creating a
positive list, and that the circular reference to ``specially
designed'' in both paragraphs (a)(5) and (c) be resolved. The
Department agrees in part and adds the phrase, ``that are controlled in
sub-paragraphs that do not use the term specially designed,'' at the
end of paragraph (a)(5)(i) to resolve the circular reference issue.
One commenting party suggested that USML Category XI should be
reviewed periodically to ensure the most critical articles are
controlled and that a committee of industry representatives should be
created to provide input. The Department agrees that the USML,
including Category XI, should be reviewed periodically to ensure that
articles critical to national security and foreign policy are captured
and that articles no longer warranting ITAR controls are reevaluated
for possible control by the Department of Commerce. The exact details
of such a reevaluation process have yet to be articulated. However, the
Departments of State, Commerce, and Defense have committed to ensuring
such efforts are a priority.
One commenting party suggested that the Department should factor in
foreign commercial availability when determining the appropriate level
of control for an article. The Department did take foreign availability
of like military systems into account when revising this category, but
not in a manner that would be inconsistent with U.S. national security
or foreign policy considerations. To the extent an item is commercially
available and in normal commercial use, either domestically or outside
the United States, the Department requested evidence of such
applications, because it was not the Department's intention to describe
in the revised USML Category XI items that are in normal commercial use
unless such items provided to the United States a critical military or
intelligence advantage. This final rule responds to all such evidence
provided by public commenters.
One commenting party suggested that paragraph (a)(1)(i) be revised
to ensure that all multi-element sensing systems, especially Ultra
Short Baseline systems, are not inadvertently captured because this
would preclude commercial development of collision avoidance for
unmanned surface and subsurface vehicles. The party also suggested
revising this paragraph to remove the terms ``survey,'' ``detect,''
``classify,'' and ``identify.'' The Department did not accept these
suggestions because the Department's objective is to specifically
describe and control such articles on the USML.
Regarding paragraph (a)(1)(i), one commenting party noted that
passive towed array systems exist for tracking and classifying marine
mammals in real time that operate under 20 kHz with greater than 10 kHz
bandwidth. These systems are ``capable'' of tracking vessels (and do).
The commenter recommended that the phrase ``capable of real-time'' be
replaced by ``intended for real-time.'' The Department acknowledges
this assertion as accurate; however, the control capability described
in the revised paragraph is critical to U.S. national security and
continues to warrant ITAR controls.
One commenting party noted that paragraph (a)(1)(ii) appears to
include commodities currently controlled on the CCL, namely
6A001.a.2.a-c (hydrophones, hydrophone arrays, and related processing
equipment), related software in 6D003, and the commodities currently
described in ECCN 6A991. The Department amended paragraph (a)(1)(ii) by
adding the qualifier phrase ``non-biologic'' before ``tonals.''
One commenting party asserts that paragraph (a)(1)(ii) identifies
``underwater single acoustic sensor systems that distinguish tonals and
locates the origin of the sound'' without providing technical
parameters to establish a reasonable threshold to warrant their
inclusion on the USML, and recommends that if there are no clear
technical parameters or performance thresholds that
[[Page 37538]]
differentiate between systems, perhaps the unique characteristics of
military ``tonals'' should be subject to control rather than the
sensing technology. The Department acknowledges the potential for
confusion in this regard and added Note 1 to paragraph (a)(1)(ii) to
read as follows: ``The term tonals implies discrete frequencies in the
broadband and narrowband spectra, emanating from man-made objects.''
One commenting party opined that use of the term ``origin'' in
(a)(1)(ii) is confusing because it can be interpreted to mean either
``classify'' or ``localize.'' The Department believes that the
qualifying term ``locates'' makes clear that ``origin'' refers to a
spatial origin rather than the classification status of an item.
One commenting party recommend removing ``adaptive modulation''
from paragraph (a)(1)(iv) since it is a major source of academic
research and development for research universities worldwide and the
United States is not a leader in the field. The Department did not
accept this recommendation because no examples of such commercial uses
were provided for evaluation.
One commenting party suggested that the note to paragraph
(a)(1)(iii) leaves open the possibility that EAR99 items would become
controlled by the ITAR. The Department agrees that the note as written
suggested this possibility, and removed the note to paragraph
(a)(1)(iii).
With respect to paragraph (a)(1)(vii), one commenting party
suggested that the capabilities regarding ``1m\2\ +RCS at range and
altitude'' already exist in the legacy National Airspace System and
recommended that these criteria be removed. The Department did not
accept this suggestion because radar with this capability are still
highly capable for defense purposes and warrant ITAR control.
One commenting party opined that the articles listed in paragraph
(a)(2) fall into a highly competitive foreign market, and should be
more appropriately controlled in the 600-series, even though their
primary use is military. The Department did not accept this
recommendation because underwater acoustic countermeasures and counter-
countermeasures systems are a critical U.S. military capability.
Moreover, no examples of commercial end-uses for such items were
provided.
With respect to paragraph (a)(2), one commenting party noted that
the majority of torpedo countermeasure systems are unclassified
mechanical and electrical equipment to deploy and retrieve a towed
body, are not uniquely military, and that the only classified software
and hardware should be controlled. The Department did not accept this
suggestion because the text of this paragraph controls underwater
acoustic countermeasures or counter-countermeasures systems, not their
individual components.
Several commenting parties opined that radar systems that have
historically been controlled on the CCL are now being controlled by the
USML in paragraph (a)(3) as a result of this final rule. The Department
does not agree with this assertion and notes that the very broad text
of Category XI is being replaced with a more positive list. While it
may appear that various radar technologies are being newly controlled
on the USML, they have in fact always been controlled by the ITAR. The
Department notes that any previously issued Commodity Jurisdiction
determinations that a particular radar system or component is subject
to the EAR remain valid.
One commenting party recommended the addition of a note to
paragraph (a)(3) indicating that the identified technical parameters
are intended to apply only to the designed capability of a system,
rather than its potentially increased capability in altered
environmental conditions. The Department did not accept this
recommendation. The established thresholds in each paragraph are
intended to apply to the optimal capability of a system in any given
condition, not to that system's intended design capability.
One commenting party noted that there exist radars supporting en-
route air traffic control that are capable of detecting a one square
meter radar cross-section at ranges exceeding 85 nautical miles and
recommended changing the threshold to one-half square meter or to a
range of 150 nautical miles. The commenting party based this
recommendation on a Commodity Classification Automated Tracking System
(CCATS) determination issued by the Department of Commerce. The
Department did not accept this recommendation and notes that the CCATS
in questions applied to the frequency agility capability of the
particular radar in question and not to the radar itself.
Two commenting parties asserted that paragraph (a)(3)(i) could be
interpreted to cover weather radar because they too ``maintain the
positional state of an object of interest in a received radar signal
through time.'' The commenting parties suggested the addition of the
phrase ``and which is `specially designed' to have a range greater than
14 nautical miles for a 0dBsm target.'' The Department did not accept
this suggestion because weather radars do not track discrete objects of
interest.
One commenting party noted that paragraphs (a)(3)(vi)-(viii)
identify specific detection ranges and radar cross section values that
are consistent with the capabilities of aircraft tracking radars in use
worldwide for commercial aviation. The Department has revised paragraph
(a)(3)(vi) to preclude the inadvertent capture of commercial systems
and was unable to identify commercial systems that would be captured by
paragraph (a)(3)(viii). With respect to paragraph (a)(3)(vii), the
Department acknowledges this observation and notes that, due to
critical national security concerns, its intent is specifically to
controls systems with this capability as defense articles.
Two commenting parties asserted that bi-static radar is being
developed for ground-based radar applications and suggest limiting the
scope of paragraph (a)(3)(ix) to non-commercial products that have
performance beyond the civil air traffic collision avoidance systems.
The Department did not accept this suggestion because Note 3 to
paragraph (a)(3) already addresses this issue.
With respect to paragraph (a)(3)(ix), one commenting party noted
that there exist radar systems that support terminal air traffic
control modified to mitigate the effects of wind turbines, and to help
support Ground Based Sense and Avoid Unmanned Aerial Systems in
National Airspace Operations. The commenting party suggested adding a
revisit rate of greater than or equal to 1/3 Hz to address this
concern. The Department did not accept this recommendation and notes
that the Federal Aviation Administration has not yet defined
requirements for UAS sense and avoid capabilities. The commenting party
referred to a Commodity Jurisdiction determination that such technology
is subject to the EAR. The commenter did not provide a copy of this
determination or any other reference to it and has been unable to
identify such a determination. The Department notes that Commodity
Jurisdiction determinations finding that a particular article is
subject to the EAR remain valid.
Two commenting parties asserted that paragraph (a)(3)(xii) over-
controls weather radar by including commercial, electronically
steerable weather radar that lack military functionality and provided
recommended revisions to it. The Department acknowledges the parties'
concerns and adds a note to paragraph (a)(3)(xii).
Three commenting parties noted that the criteria listed in
paragraph (a)(3)(xii) would capture all multi-phased array
[[Page 37539]]
radar regardless of end-use. The Department acknowledges that the
intent of this paragraph is to control all such radar because they are
critical to U.S. national security. The Department also notes that this
paragraph does not capture defense articles and technical data that
were not previously controlled by USML Category XI; rather, it merely
enumerates such defense articles and technical data as controlled.
Four commenting parties noted that references to clutter filtering
in paragraph (a)(3)(xvii) would control commercial weather radars. One
of these parties suggested that increasing the control threshold from
50dB to 60dB would alleviate this concern. The Department concurs and
accepts the recommended threshold increase.
In response to one commenting party's request for clarification on
use of the phrase ``specific platform type'' in paragraph (a)(3)(xxi),
the Department notes that the meaning of the word ``type'' in the
paragraph controlling radar employing non-cooperative target
recognition is that provided in 14 CFR Sec. 1.1, and adds Note 1 to
paragraph (a)(3)(xxi) accordingly.
One commenting party suggested that the reference to ``electronic
combat equipment'' in paragraph (a)(4) is too broad because it would
control items now subject to the EAR. The Department notes that the
criteria in the following subparagraph already mitigate this concern.
One commenting party stated that paragraph (a)(4)(i) appears to
control detection and interception systems and equipment that have
historically been controlled on the CCL. The Department notes that ECCN
5A001.i only pertains to mobile telecommunication monitoring and that
the control language in paragraph (a)(4)(i) does not encompass the
intercept and processing of air interface of mobile telecommunications.
One commenting party noted that paragraph (a)(4)(iii) appears to
include commodities currently controlled on the CCL, specifically ECCN
5A001.f. The Department notes that the use of ``specially designed'' in
this entry specifically excludes this possibility.
One commenting party recommended adding the phrase ``or modified''
after specially designed throughout paragraph (a)(5) in order to
address cases where capability, not design, is at issue. The Department
did not accept this recommendation because capability is already
covered in the definition of specially designed.
One commenting party suggested that paragraph (a)(7) appears to
contradict one of the key purposes of export control reform, which is
to provide a bright line regarding the export control jurisdiction of
articles and services. The commenting party further indicated that the
proposed revision does not define the criteria that will be used to
determine a developmental electronic device or system to be a defense
article. Similarly, three commenting parties posited that a system
could be incorrectly determined to be ITAR-controlled solely because of
its funding source. The Department did not accept these comments; notes
1 through 3 to paragraph (a)(7) clearly indicate the criteria to be
applied in this regard, thus obviating concerns of ambiguity. In
situations where funding does control a particular article, the
Department notes that this was precisely the intent of this entry. The
Department notes that paragraph (a)(7) does not apply to electronic
systems or equipment where the Department of Defense acts solely as a
servicing agency for a contract on behalf of another agency of the U.S.
Government, but does not itself contribute funding.
One commenting party opined that paragraph (a)(8) would control
unattended ground systems currently controlled on the CCL, or widely-
available commercial products that contain the capabilities enumerated,
and suggested narrowing the scope of this entry by use of ``specially
designed.'' The Department did not accept this suggestion because no
examples were provided to substantiate this claim.
One commenting party noted that paragraph (a)(10) identifies
electronic sensor systems and equipment for detection of concealed
weapons having a standoff detection range of greater than 45m, which
conflicts with ECCN 2A984 for concealed object detection equipment
which includes a standoff distance of 100m. The Department acknowledges
this conflict and provides additional exclusionary criteria for
frequency range and spatial resolution to address it.
One commenting party noted that paragraph (a)(11) identifies test
sets for counter remote-controlled improvised explosive devices and
counter radio electronic warfare systems that are already controlled in
paragraph (a)(4)(iii). The Department amended paragraph (a)(11) to
remove these references.
One commenting party stated that the note to paragraph (b) lacks
clarity regarding what constitutes ``intelligence services.'' Based on
the interagency review of the comments to the proposed note to Category
XI(b), the Department concluded that the proposed note created more
confusion regarding the scope of the Category XI(b) than it resolved.
The Department has removed the note and has left the scope of the
control the same. To the extent there are questions as to whether an
item is within the scope of USML Category XI(b), ITAR Sec. 120.4
allows for the submission of a request for a commodity jurisdiction
determination for such items.
Several commenting parties expressed concern with respect to
control of spectrum analyzers in paragraph (b), particularly for those
that are widely available on the foreign market and used for multiple
commercial purposes, including Technical Surveillance Countermeasure
(TSCM) services. The Department notes that the proposed revision to
Category XI(b) did not propose new controls on spectrum analyzers. If a
spectrum analyzer, or any other piece of electronic equipment, is
specially designed for intelligence purposes and collects, surveys,
monitors, or exploits the electromagnetic spectrum (regardless of
transmission medium), or for counteracting such activities, then it is
within the scope of USML Category XI(b). To the extent there are
questions as to whether a particular item falls within the scope of
this description, the exporter may submit a request for a commodity
jurisdiction determination under ITAR Sec. 120.4.
One commenting party recommended adding a note to paragraph (b)(1)
to indicate that it does not apply to direction finding equipment or
systems specially designed for navigation applications. The Department
did not accept this recommendation and believes that the parameters
define the control for direction finding equipment sufficiently to
differentiate from CCL control.
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
specific item for which it is designed, as opposed to the jurisdiction
of the overall system into which the article one layer up from the
printed circuit board is ultimately incorporated.
One commenting party recommended adding a new, non-SME entry under
paragraph (c) to enumerate control of chaff and flare rounds specially
designed for the systems and equipment described in paragraph
(a)(4)(iii), and parts and components therefor
[[Page 37540]]
containing materials controlled in USML Category V. The Department
accepted this recommendation, and added paragraph (c)(17) accordingly.
One commenting party recommended that the Department adopt the
definition of ``Application Specific Integrated Circuit'' (ASIC)
developed by the Joint Electron Device Engineering Council (JEDEC)
Solid State Technology Association: ``An integrated circuit developed
and produced for a specific application or function and for a single
customer.'' The Department agreed in part, and added note to paragraph
(c)(1) to define an ASIC. The Department does not agree that the term
ASIC be limited to items produced for a single customer. Such language
could lead to unintended drops in controls based on an order by a
second customer. The Commerce Department has adopted the same
definition in its rule being published in connection with this rule.
One commenting party noted that the proposed paragraph (c)(4) would
inadvertently control transmit/receive modules or transmit modules of a
certain size that contain either an electric or a mechanical phase
shifter or phaser. The Department agreed with this comment and amended
paragraph (c)(4) accordingly.
One commenting party suggested that paragraph (c)(5) controls
capacitors in commercial use and recommended that they should be made
subject to the EAR. The Department did not accept this recommendation
on the basis that the discharge rate and energy life stipulated in the
paragraph (c)(5) adequately differentiates those capacitors that
warrant ITAR controls from those that are used commercially.
Two commenting parties suggested that paragraph (c)(8) lacks the
critical parameter of latency time for digital radio-frequency memory
(DRFM) systems. The Department agreed with these comments and amended
paragraph (c)(8) to control those systems whose output signal is a
translation of the input signal (e.g. changes in magnitude, time,
frequency).
Three commenting parties indicated that paragraph (c)(10) as
written would control items already controlled by ECCN 5A991.f, such as
metamaterial surface scattering antennas designed for transmitting or
receiving radio communications via a commercial operated fixed or
mobile satellite service system. The Department agreed with these
comments and revised paragraph (c)(10)(i) to control those antennas
that employ four or more elements, electronically steer angular beams,
independently steer angular nulls, create angular nulls with a null
depth greater than 20 dB, and achieve a beam switching speed faster
than 50 milliseconds. The Department notes that a suggestion to amend
the beam switching speed to control only those faster than 1
millisecond was not accepted as the modification of the remainder of
the entry addresses the expressed concerns.
One commenting party opined that use of the term ``radar bands'' in
paragraph (c)(11)(ii) is too generic because any radio frequency can
theoretically be used for radar application. The commenter recommended
replacing ``radar bands'' with the phrase ``frequency bands for radar
applications.'' The Department accepted this recommendation and revised
the paragraph accordingly.
One commenting party recommended adding the phrase ``for active
sonar systems'' to the end of paragraph (c)(12)(i) to avoid situations
where underwater projectors are used to observe responses of marine
animals to underwater sound. The Department accepted the addition of
this phrase, with the exception of the word ``active,'' because passive
systems are also intended for control.
Four commenting parties noted that paragraph (c)(14) is overly
broad and would control tuners covered by ECCN 3A002.c.4. One party
recommended constraining this paragraph to tuners specially designed
for systems and equipment in paragraphs (a)(4) and (b). One party
recommended that paragraph (c)(14) be deleted in its entirety. Two
commenting parties recommended the addition of parameters for operating
frequency range and tuning time based on frequency step size to clarify
the type of tuner component intended to be controlled. The Department
revised paragraph (c)(14) to control tuners specially designed for
systems and equipment in paragraphs (a)(4) and (b).
One commenting party suggested that paragraph (c)(15) conflicts
with certain changes made to USML Category VIII, specifically with
respect to unmanned aerial vehicles (UAVs), in that it would seem to
include all unmanned aerial vehicles, military or civil, if they have a
range equal to or greater than 300 km. The Department amended paragraph
(c)(15) to indicate that it applies only to UAVs controlled by USML
Category VIII.
One commenting party suggested that paragraph (c)(19)(ii) could be
interpreted as controlling commercial computers simply because they
contain classified information. The Department does not agree, and
believes the note to paragraph (c)(19)(ii) makes clear that it controls
only those items that ``store, process, or transmit classified
software.'' To further clarify this point, the Department amended the
note to paragraph (c)(1)(ii) by adding a parenthetical reference to
ITAR Sec. 121.8(f).
Change to Control of Wing Folding Systems in USML Category VIII and
Other Changes in Category VIII and USML Category XIX
The Department revised paragraph (h)(4) of USML Category VIII to
ensure that wing folding systems for commercial aircraft are not
controlled as defense articles, while retaining those systems that
warrant ITAR controls for foreign policy and national security. This
change is made based on a public comment received on the revisions
proposed to USML Category VIII (see, RINs 1400-AC96 and 1400-AD37).
The Department also removed paragraphs (h)(21) and (h)(22) in USML
Category VIII and paragraph (f)(7) in USML Category XIX (Gas Turbine
Engines and Associated Equipment), as they are superseded by paragraphs
(c)(2), (c)(3), and (c)(11) in USML Category XI.
Adoption of Proposed Rules and Other Changes
Having reviewed and evaluated the comments and recommended changes
for the USML Category XI proposed rule, the Department has determined
that it will, and hereby does, adopt them, with changes and omission
noted and other edits, and promulgates them in final form under this
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 has published parts of
this rule in separate rulemaking actions as follows: an NPRM and final
rule on Category VIII, 1400-AC96 and 1400-AD37, respectively; an NPRM
and final rule on Category XIX, 1400-AC98 and 1400-AD37, respectively;
and an NPRM and Supplemental NPRM on Category XI, 1400-AD25. The
rulemakings had a 45- or 60-day provision for public comment, without
prejudice to the determination that controlling the import and export
of
[[Page 37541]]
defense services is a foreign affairs function.
Regulatory Flexibility Act
Since the Department is of the opinion that this 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 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, 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 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 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 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.
This rulemaking has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, this rule has been reviewed by the
Office of Management and Budget (OMB).
Executive Order 12988
The Department of State has reviewed this 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 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 requirements of Executive Order 13175 do
not apply to this rulemaking.
Paperwork Reduction Act
Following is a listing of approved collections that will be
affected by revision of the U.S. Munitions List (USML) and the Commerce
Control List pursuant to the President's Export Control Reform (ECR)
initiative. This final rule continues the implementation of ECR. 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 categories published in this rule. In accordance with the
Paperwork Reduction Act, the Department of State will request comment
on these collections from all interested persons. In particular, the
Department will seek comment on changes to licensing burden based on
implementation of regulatory changes pursuant to ECR, and on projected
changes based on continued implementation of regulatory changes
pursuant to ECR. The affected information collections are as follows:
(1) Statement of Registration, DS-2032, OMB No. 1405-0002. The
Department estimates that between 3,000 and 5,000 of 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.
(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.
(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.
(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
[[Page 37542]]
in a burden reduction of 1,000 hours annually.
(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.
(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 up to 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 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 in 22 CFR Part 121
Arms and munitions, Classified, Exports.
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 is amended:
0
a. In Category VIII by revising paragraph (h)(4) and removing and
reserving paragraphs (h)(21) and (22);
0
b. By revising Category XI ; and
0
c. In Category XIX by removing and reserving paragraph (f)(7).
The revisions read as follows:
Sec. 121.1 General. The United States Munitions List.
* * * * *
Category VIII--Aircraft and Related Articles
* * * * *
(h) * * *
(4) Wing folding systems, and specially designed parts and
components therefor, for:
(i) Aircraft powered by power plants controlled under USML Category
IV(d); or,
(ii) Aircraft powered by gas turbine engines with any of the
following characteristics:
(A) The portion of the wing outboard of the wing fold is required
for sustained flight;
(B) Fuel can be stored outboard of the wing fold;
(C) Control surfaces are outboard of the wing fold;
(D) Hard points are outboard of the wing fold;
(E) Hard points inboard of the wing fold are capable of in-flight
ejection; or
(F) The aircraft is designed to withstand maximum vertical
maneuvering accelerations greater than +3.5g/-1.5g.
* * * * *
(21) [Reserved]
(22) [Reserved]
* * * * *
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
non-biologic tonals and locates the origin of the sound;
Note to paragraph(a)(1)(ii): The term tonals implies discrete
frequencies in the broadband and narrowband spectra, emanating from
man-made objects.
(iii) Non-acoustic systems 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;
(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 or
objects of interest, other than weather phenomena, 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 Surveillance Radar with an average-power-aperture
product of greater than 50 Wm\2\;
(vi) Any ocean surveillance radar that transmits a waveform with an
instantaneous bandwidth greater than 100 MHz and has an antenna
rotation rate greater than 60 Revolutions-per-Minute (RPM);
(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
[[Page 37543]]
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;
Note to paragraph (a)(3)(xii): This paragraph does not control
radars not otherwise controlled in this subchapter, operating with a
peak transmit power less than or equal to 250 watts, and employing a
design determined to be subject to the EAR via a commodity jurisdiction
determination (see Sec. 120.4 of this subchapter).
(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 60dB;
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);
Note to Paragraph (a)(3)(xxi): The definition of ``type'' in
this paragraph is that provided in 14 CFR Sec. 1.1.
(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;
(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, 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): For definition of ``range'' as
it pertains to rocket systems, see note 1 to paragraph (a) of USML
Category IV. ``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 paragraph does not control: (a)
Systems or equipment that require aircraft transponders in order to
meet control parameters; (b) precision approach radar (PAR)
equipment conforming to ICAO standards and employing electronically
steerable linear (1- dimensional) arrays or mechanically positioned
passive antennas; and (c) radio altimeter equipment conforming to
FAA TSO C87.
*(4) Electronic Combat (i.e., Electronic Warfare) systems and
equipment, as follows:
(i) Electronic Support (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);
*(5) Command, control, and communications (C3); command, control,
communications, and computers (C4); command, control, communications,
computers, intelligence, surveillance, and reconnaissance (C4ISR); and
identification systems or equipment, that:
(i) Are specially designed to integrate, incorporate, network, or
employ defense articles that are controlled in paragraphs or
subparagraphs of the categories of Sec. 121.1 of this part that do not
use the term specially designed;
(ii) Incorporate U.S. government identification friend or foe (IFF)
Modes 4 or 5;
[[Page 37544]]
(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
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 July 1,
2015, or later.
(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
antisubmarine warfare (ASW) or mine warfare (e.g., magnetic anomaly
detectors (MAD), electric-field, 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, 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;
(11) Test sets specially designed for testing defense articles
controlled in paragraphs (a)(3), (a)(4), (a)(5), or (b); 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 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, not elsewhere enumerated in
this sub-chapter, specially designed for intelligence purposes that
collect, survey, monitor, or exploit the electromagnetic spectrum
(regardless of transmission medium), or for counteracting such
activities.
(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): An ASIC is an integrated circuit
developed and produced for a specific application or function
regardless of number of customers.
Note 2 to paragraph (c)(1): ASICs and PLDs programmed for 600
series items are controlled in ECCN 3A611.f.
Note 3 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],
with an electronically variable phase shifter or phasers that are a
Monolithic Microwave Integrated Circuit (MMIC), or incorporate a MMIC
or discrete RF power transistor;
(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
whose output signal is a translation of the input signal (e.g. changes
in magnitude, time, frequency) 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) Employ four or more elements, electronically steer angular
beams, independently steer angular nulls, create angular nulls with a
null depth greater than 20 dB, and achieve a beam switching speed
faster than 50 milliseconds;
[[Page 37545]]
(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 frequency bands for radar
applications;
(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 for sonar systems;
(ii) Sound pressure level exceeding 224 dB (reference 1 mPa 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 mPa 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
(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)(12) of this category;
(14) Tuners specially designed for systems and equipment in
paragraphs (a)(4) and (b) of this category;
(15) Electronic assemblies and components, capable of operation at
temperatures in excess of 125[deg] C and specially designed for UAVs or
drones controlled by USML Category VIII, rockets, space launch vehicles
(SLV), or missiles controlled by USML Category IV capable of achieving
a range greater than or equal to 300 km (MT) (see Note 2 to paragraph
(a)(3)(xxix) of this category);
(16) Hybrid (combined analogue/digital) computers specially
designed 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) Chaff and flare rounds specially designed for the systems and
equipment described in paragraph (a)(4)(iii) of this category, and
parts and components therefor containing materials controlled in USML
Category V;
(18) Parts, components, or accessories specially designed for an
information assurance/information security system or radio controlled
in this subchapter that modify its published properties (e.g.,
frequency range, algorithms, waveforms, CODECs, or modulation/
demodulation schemes); or
* (19) 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).
Note to paragraph (c)(19): ``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)(19)(ii): Parts and components controlled
by this paragraph are limited to those that store, process, or
transmit classified software (see Sec. 121.8(f) of this
subchapter).
(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 technology 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 technology subject to the EAR (see Sec. 123.1(b) of
this subchapter).
* * * * *
Category XIX--Gas Turbine Engines and Associated Equipment
* * * * *
(f) * * *
(7) [Reserved]
* * * * *
Rose E. Gottemoeller,
Under Secretary, Arms Control and International Security, Department of
State.
[FR Doc. 2014-14681 Filed 6-30-14; 8:45 am]
BILLING CODE 4710-25-P