[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12123]
DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice 7883]
Amendment to the International Traffic in Arms Regulations:
Revision of U.S. Munitions List Category XIII
AGENCY: Department of State.
ACTION: Proposed rule.
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 XIII (materials and miscellaneous
articles) of the U.S. Munitions List (USML) to describe more precisely
the materials warranting control on the USML.
DATES: The Department of State will accept comments on this proposed
rule until July 2, 2012.
ADDRESSES: Interested parties may submit comments within 45 days of the
date of publication by one of the following methods:
Email: DDTCResponseTeam@state.gov with the
subject line, ``ITAR Amendment--Category XIII.''
Internet: At www.regulations.gov, search for this notice
by using this rule's RIN (1400-AD13).
Comments received after that date will be considered if feasible, but
consideration cannot be assured. Those submitting comments should not
include any personally identifying information they do not desire to be
made public or information for which a claim of confidentiality is
asserted because those comments and/or transmittal emails will be made
available for public inspection and copying after the close of the
comment period via the Directorate of Defense Trade Controls Web site
at www.pmddtc.state.gov. Parties who wish to comment anonymously may do
so by submitting their comments via www.regulations.gov, leaving the
fields that would identify the commenter blank and including no
identifying information in the comment itself. Comments submitted via
www.regulations.gov are immediately available for public inspection.
FOR FURTHER INFORMATION CONTACT: Ms. Candace M. J. Goforth, Acting
Director, Office of Defense Trade Controls Policy, Department of State,
telephone (202) 663-2792; email DDTCResponseTeam@state.gov. ATTN:
Regulatory Change, USML Category XIII.
SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls
(DDTC), U.S. Department of State, administers the International Traffic
in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to
the jurisdiction of the ITAR, i.e., ``defense articles,'' are
identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1).
With few exceptions, items not subject to the export control
jurisdiction of the ITAR are subject to the jurisdiction of the Export
Administration Regulations (``EAR,'' 15 CFR parts 730-774, which
includes the Commerce Control List (CCL) in Supplement No. 1 to Part
774), administered by the Bureau of Industry and Security (BIS), U.S.
Department of Commerce. Both the ITAR and the EAR impose license
requirements on exports and reexports. Items not subject to the ITAR or
to the exclusive licensing jurisdiction of any other set of regulations
are subject to the EAR.
Export Control Reform Update
The Departments of State and Commerce described in their respective
Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the
Administration's plan to make the USML and the CCL positive, tiered,
and aligned so that eventually they can be combined into a single
control list (see ``Commerce Control List: Revising Descriptions of
Items and Foreign Availability,'' 75 FR 76664 (December 9, 2010) and
``Revision to the United States Munitions List,'' 75 FR 76935 (December
10, 2010)). The notices also called for the establishment of a ``bright
line'' between the USML and the CCL to reduce government and industry
uncertainty regarding export jurisdiction by clarifying whether
particular items are subject to the jurisdiction of the ITAR or the
EAR. While these remain the Administration's ultimate Export Control
Reform objectives, their concurrent implementation would be problematic
in the near term. In order to more quickly reach the national security
objectives of greater interoperability with U.S. allies, enhancing the
defense industrial base, and permitting the U.S. Government to focus
its resources on controlling and monitoring the export and reexport of
more significant items to destinations, end-uses, and end-users of
greater concern than NATO allies and other multi-regime partners, the
Administration has decided, as an interim step, to propose and
implement revisions to both the USML and the CCL that are more
positive, but not yet tiered.
Specifically, based in part on a review of the comments received in
response to the December 2010 notices, the Administration has
determined that fundamentally altering the structure of the USML by
tiering and aligning it on a category-by-category basis would
significantly disrupt the export control compliance systems and
procedures of exporters and reexporters. For example, until the entire
USML was revised and became final, some USML categories would follow
the legacy numbering and control structures while the newly revised
categories would follow a completely different numbering structure. In
order to allow for the national security benefits to flow from re-
aligning the jurisdictional status of defense articles that no longer
warrant control on the USML on a category-by-category basis while
minimizing the impact on exporters' internal control and jurisdictional
and classification marking systems, the Administration plans to proceed
with building positive lists now and afterward return to structural
Revision of Category XIII
This proposed rule revises USML Category XIII, re-titled
``Materials and Miscellaneous Articles,'' to advance the national
security objectives set forth above and to more accurately describe the
articles within the category, in order to establish a ``bright line''
between the USML and the CCL for the control of such articles.
Paragraph (a) is removed and placed in reserve; the articles
currently controlled there (i.e., cameras and specialized processing
equipment) are to be controlled in revised Category XII or the CCL,
which will be the subject of a separate notice. Photointerpretation,
stereoscopic plotting, and photogrammetry equipment ``specially
designed'' for military use will be controlled under ECCN 0A617.e.
Paragraph (c) is removed and placed in reserve; the articles currently
controlled there (i.e., self-contained diving and underwater breathing
apparatus) are to be controlled in ECCN 8A620.f. Paragraphs (d), (e),
(g), and (h) are reorganized and expanded to better describe the
articles controlled therein. Paragraph (f) is re-designated to cover
articles that are classified. The articles in the current paragraph (f)
(i.e., structural materials) are to be controlled in proposed CCL ECCN
0C617 and in revised USML Categories VII, VIII, and XIII. Paragraph (i)
is re-designated to control signature reduction software, with
embrittling agents (currently controlled in paragraph (i)) moving to
the CCL under ECCN 0A617.f. Paragraph (m) is amended to reflect the
revisions made throughout this category.
Finally, articles common to the Missile Technology Control Regime
(MTCR) Annex and the USML are to be identified on the USML with the
parenthetical ``(MT)'' at the end of each section containing such
articles. A future proposed rule will address the sections in the ITAR
that include MTCR definitions.
Definition for Specially Designed
Although one of the goals of the export control reform initiative
is to describe USML controls without using design intent criteria, a
few of the controls in the proposed revision nonetheless use the term
``specially designed.'' It is, therefore, necessary for the Department
to define the term. Two proposed definitions have been published to
The Department first provided a draft definition for ``specially
designed'' in the December 2010 ANPRM (75 FR 76935) and noted the term
would be used minimally in the USML, and then only to remain consistent
with the Wassenaar Arrangement or other multilateral regime obligation
or when no other reasonable option exists to
describe the control without using the term. The draft definition
provided at that time is as follows: ``For the purposes of this
Subchapter, the term `specially designed' means that the end-item,
equipment, accessory, attachment, system, component, or part (see ITAR
Sec. 121.8) has properties that (i) distinguish it for certain
predetermined purposes, (ii) are directly related to the functioning of
a defense article, and (iii) are used exclusively or predominantly in
or with a defense article identified on the USML.''
The Department of Commerce subsequently published on July 15, 2011,
for public comment, the Administration's proposed definition of
``specially designed'' that would be common to the CCL and the USML.
The public provided more than 40 comments on that proposed definition
on or before the September 13 deadline for comments. The Departments of
State, Commerce, and Defense are now reviewing those comments and
related issues, and the Departments of State and Commerce plan to
publish for public comment another proposed rule on a definition of
``specially designed'' that would be common to the USML and the CCL. In
the interim, and for the purpose of evaluation of this proposed rule,
reviewers should use the definition provided in the December ANPRM.
Request for Comments
As the U.S. Government works through the proposed revisions to the
USML, some solutions have been adopted that were determined to be the
best of available options. With the thought that multiple perspectives
would be beneficial to the USML revision process, the Department
welcomes the assistance of users of the lists and requests input on the
(1) A key goal of this rulemaking is to ensure the USML and the CCL
together control all the items that meet Wassenaar Arrangement
commitments embodied in Munitions List Category 1 (WA-ML17). To that
end, the public is asked to identify any potential lack of coverage
brought about by the proposed rules for Category XIII contained in this
notice and the new Category 0 ECCNs published separately by the
Department of Commerce when reviewed together.
(2) The key goal of this rulemaking is to establish a ``bright
line'' between the USML and the CCL for the control of these materials.
The public is asked to provide specific examples of materials and
miscellaneous articles whose jurisdiction would be in doubt based on
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the opinion that controlling the
import and export of defense articles and services is a foreign affairs
function of the United States Government and that rules implementing
this function are exempt from Sec. 553 (Rulemaking) and Sec. 554
(Adjudications) of the Administrative Procedure Act (APA). Although the
Department is of the opinion that this rule is exempt from the
rulemaking provisions of the APA, the Department is publishing this
rule with a 45-day provision for public comment and without prejudice
to its determination that controlling the import and export of defense
services is a foreign affairs function. As noted above, and also
without prejudice to the Department position that this rulemaking is
not subject to the APA, the Department previously published a related
Advance Notice of Proposed Rulemaking (RIN 1400-AC78), and accepted
comments for 60 days.
Regulatory Flexibility Act
Since the Department is of the opinion that this rule is exempt
from the rulemaking provisions of 5 U.S.C. 553, it does not require
analysis under the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This proposed amendment does not involve a mandate that will result
in the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any
year and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed amendment has been found not to be a major rule
within the meaning of the Small Business Regulatory Enforcement
Fairness Act of 1996.
Executive Orders 12372 and 13132
This proposed amendment will not have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this proposed amendment does not
have sufficient federalism implications to require consultations or
warrant the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this proposed amendment.
Executive Order 12866
The Department is of the opinion that controlling the import and
export of defense articles and services is a foreign affairs function
of the United States Government and that rules governing the conduct of
this function are exempt from the requirements of Executive Order
12866. However, the Department has reviewed the proposed rule to ensure
its consistency with the regulatory philosophy and principles set forth
in the Executive Order.
Executive Order 13563
The Department of State has considered this rule in light of
Executive Order 13563, dated January 18, 2011, and affirms that this
regulation is consistent with the guidance therein.
Executive Order 12988
The Department of State has reviewed the proposed amendment in
light of sections 3(a) and 3(b)(2) of Executive Order 12988 to
eliminate ambiguity, minimize litigation, establish clear legal
standards, and reduce burden.
Executive Order 13175
The Department of State has determined that this rulemaking will
not have tribal implications, will not impose substantial direct
compliance costs on Indian tribal governments, and will not preempt
tribal law. Accordingly, Executive Order 13175 does not apply to this
Paperwork Reduction Act
This proposed amendment does not impose any new reporting or
recordkeeping requirements subject to the Paperwork Reduction Act, 44
U.S.C. Chapter 35.
List of Subjects in Part 121
Arms and munitions, Exports.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, part 121 is proposed to be amended as follows:
PART 121--THE UNITED STATES MUNITIONS LIST
1. The authority citation for part 121 continues to read as
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778,
2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C.
2651a; Pub. L. 105-261, 112 Stat. 1920.
2. Section 121.1 is amended by revising U.S. Munitions List
Category XIII to read as follows:
Sec. 121.1 General. The United States Munitions List.
* * * * *
Category XIII--Materials and Miscellaneous Articles
(b) Information security/information assurance systems and
equipment, cryptographic devices, software, and components ``specially
designed'' for military applications (e.g., command, control and,
communications (C\3\), and government intelligence applications), as
(1) Military cryptographic (including key management) systems,
equipment assemblies, modules, integrated circuits, components, and
software (e.g., cryptographic interfaces) capable of maintaining
secrecy or confidentiality of information or information systems,
including equipment and software for tracking, telemetry, and control
(TT&C) encryption and decryption;
(2) Military cryptographic (including key management) systems,
equipment, assemblies, modules, integrated circuits, components, and
software (e.g., cryptographic interfaces) capable of generating
spreading or hopping codes for spread spectrum systems or equipment;
(3) Military cryptanalytic systems, equipment, assemblies, modules,
integrated circuits, components and software;
(4) Military systems, equipment, assemblies, modules, integrated
circuits, components, and software that provide certified or
certifiable multi-level security, user isolation, or control of the
exchange of or access to information between or among systems operating
at different classification levels, and software to certify such
systems, equipment, or software; or
(5) Ancillary equipment ``specially designed'' for the articles in
paragraphs (b)(1)-(b)(4) of this category.
(d) Ablative materials, as follows (MT):
*(1) Ablative materials fabricated or semi-fabricated from advanced
composites (e.g., silica, graphite, carbon, carbon/carbon, and boron
filaments) ``specially designed'' for the articles in Category IV; or
(2) Carbon/carbon billets and preforms which are reinforced with
continuous unidirectional fibers, tows, tapes, or woven cloths in three
or more dimensional planes.
Note to paragraph (d)(2): This does not control carbon/carbon
billets and preforms where reinforcement in the third dimension is
limited to interlocking of adjacent layers only.
(e) Armor (e.g., organic, ceramic, metallic), active armor or
reactive armor, and armor materials, as follows:
(1) Developmental armor developed under a contract with the U.S.
Department of Defense;
(2) Spaced armor with Em greater than 1.4 and meeting
NIJ Level III or better;
(3) Transparent armor having Em greater than or equal to
1.3 or having Em less than 1.3 and meeting NIJ Level III
standards with areal density less than or equal to 40 pounds per square
(4) Transparent ceramic plate greater than \1/4\ inch-thick and
larger than 8 inches x 8 inches, excluding glass, for transparent
(5) Non-transparent ceramic plate or blanks, greater than \1/4\
inches thick and larger than 8 inches x 8 inches for transparent armor.
This includes spinel and aluminum oxynitride (ALON);
(6) Composite armor with Em greater than 1.4 and meeting
NIJ Level III or better; or
(7) Metal Laminate Armor with Em greater than 1.4 and
meeting NIJ Level III or better.
(f) Any material that:
(1) Is classified;
(2) Is manufactured using classified production data; or
(3) Is being developed using classified information.
``Classified'' means classified pursuant to Executive Order 13526,
or predecessor order, and a security classification guide developed
pursuant thereto or equivalent, or to the corresponding classification
rules of another government.
(g) Concealment and deception equipment, as follows (MT):
*(1) Polymers loaded with carbonyl iron powder, ferrites, iron
whiskers, fibers, flakes, or other magnetic additives having a surface
resistivity of less than 5000 ohms/square and isotropy of less than 5%;
(2) Multi-layer camouflage systems ``specially designed'' to reduce
detection of platforms or equipment in the infrared or ultraviolet
*(3) High temperature (greater than 300 deg F operation) ceramic or
magnetic radar absorbing material (RAM) ``specially designed'' for use
on defense articles or military items subject to the EAR; or
*(4) Broadband (greater than 30% bandwidth) lightweight (less than
2 lbs/sq ft) magnetic radar absorbing material (RAM) ``specially
designed'' for use on defense articles or military items subject to the
(h) Energy conversion devices, as follows:
(1) Fuel cells ``specially designed'' for platforms or soldier
systems specified in this subchapter;
(2) Thermal engines ``specially designed'' for platforms or soldier
systems specified in this subchapter;
(3) Thermal batteries (MT); or
(4) Thermionic generators.
(i) Signature reduction software, technical data, and services, as
*(1) Software associated with the measurement or modification of
*(2) Software for design of low-observable platforms;
*(3) Software for design, analysis, prediction, or optimization of
signature management solutions;
*(4) Radar cross section or infrared signature measurement or
*(5) Signature management techniques, codes, and algorithms;
*(6) Signature control design methodology;
*(7) Processes that use micro-encapsulation or micro-spheres to
reduce infrared, radar, or visual detection of platforms or equipment;
*(8) Multi-layer camouflage system techniques to reduce detection
of platforms or equipment;
*(9) Multi-spectral surface treatment techniques to modify
infrared, visual or radio frequency signatures of platforms or
*(10) Shaping, active, or passive techniques to modify platform or
equipment visual, electro-optical, radiofrequency, electric, magnetic,
electromagnetic, or wake signatures (e.g., low probability of intercept
(LPI) techniques, methods or applications); or
*(11) Shaping, active, or passive techniques to modify defense
articles' acoustic signatures.
*(j) Equipment, materials, coatings, and treatments not elsewhere
specified, as follows:
(1) Laser eye-safe media including narrow band dyes/coatings and
wide band non-linear optical material ``specially designed'' for
goggles, spectacles, or visors that provide narrow band filtering or
broad band limiting with optical density greater than 3 that protect
(i) Visible (in-band) wavelengths;
(ii) Thermal flashes associated with nuclear detonations; or
(iii) Near Infrared or Ultra Violet (out-of-band) wavelengths.
Note: See Category X(a)(7).
(2) Specially treated or formulated dyes, coatings, and fabrics
used in the design, manufacture, or production of personnel protective
clothing, equipment, or face paints designed to protect against or
reduce detection by radar, infrared, or other sensors at wavelengths
greater than 900 nanometers.
Note: See Category X(a)(2).
(3) Equipment, materials, coatings, and treatments that are
``specially designed'' to modify the electro-optical, radiofrequency,
infrared, electric, laser, magnetic, electromagnetic, acoustic,
electro-static, or wake signatures of defense articles or military
items subject to the EAR through control of absorption, reflection, or
(k) Tooling and equipment, as follows:
(1) Tooling and equipment ``specially designed'' for production of
low observable (LO) components; or
(2) Portable platform signature field repair validation equipment
(e.g., portable optical interrogator that validates integrity of a
repair to a signature reduction structure).
(l) Technical data (as defined in Sec. 120.10 of this subchapter),
and defense services (as defined in Sec. 120.9 of this subchapter)
directly related to the defense articles enumerated in paragraphs (a)
through (h), (j), and (k) of this category. (See also Sec. 123.20 of
this subchapter.) (MT for technical data and defense services related
to articles designated as such.)
(m) The following interpretations explain and amplify terms used in
this category and elsewhere in this subchapter:
(1) Composite armor is defined as having more than one layer of
different materials or a matrix.
(2) Spaced armors are metallic or non-metallic armors that
incorporate an air space or obliquity or discontinuous material path
effects as part of the defeat mechanism.
(3) Reactive armor employs explosives, propellants, or other
materials between plates for the purpose of enhancing plate motion
during a ballistic event or otherwise defeating the penetrator.
(4) Electromagnetic armor (EMA) employs electricity to defeat
threats such as shaped charges.
(5) Materials used in composite armor could include layers of
metals, plastics, elastomers, fibers, glass, ceramics, ceramic-glass
reinforced plastic laminates, encapsulated ceramics in a metallic or
non-metallic matrix, functionally gradient ceramic-metal materials, or
ceramic balls in a cast metal matrix.
(6) For this Category, a material is considered transparent if it
allows 75% or greater transmission of light in the visible spectrum
through a 1 mm thick nominal sample.
(7) The material controlled in paragraph (e)(3) of this category
has not been treated to reach the 75% transmission level referenced in
(m)(6) of this category.
(8) Metal laminate armors are two or more layers of metallic
materials which are mechanically or adhesively bonded together to form
an armor system.
(9) Em is the line-of-sight target mass effectiveness
ratio and provides a measure of the tested armor's performance to that
of rolled homogenous armor, where Em is defined as follows:
[GRAPHIC] [TIFF OMITTED] TP18MY12.044
[rho]RHA = density of RHA, (7.85 g/cm\3\)
Po = Baseline Penetration of RHA, (mm)
Pr = Residual Line of Sight Penetration, either positive or negative
(mm RHA equivalent)
ADTARGET = Line-of-Sight Areal Density of Target (kg/
(10) NIJ is the National Institute of Justice and Level III refers
to the requirements specified in NIJ standard 0108.01 Ballistic
Resistant Protective Materials.
* * * * *
Dated: May 10, 2012.
Rose E. Gottemoeller,
Acting Under Secretary, Acting Under Secretary, Arms Control and
International Security, Department of State.
[FR Doc. 2012-12123 Filed 5-17-12; 8:45 am]
BILLING CODE 4710-25-P