The Department of State's Directorate of Defense Trade Controls (DDTC) regulates the export, reexport, retransfer, and temporary import of the defense articles and defense services identified on the USML at ITAR § 121.1. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other department or agency of the U.S. Government are subject to the Export Administration Regulations (EAR, 15 CFR parts 730 through 774, which includes the Commerce Control List (CCL) in supplement no. 1 to part 774). The EAR is administered and enforced by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. This rule does not modify the list of defense articles and defense services controlled for purposes of permanent import by the Attorney General, as enumerated on the U.S. Munitions Import List (USMIL) at 27 CFR 447.21.

Section 38 of the Arms Export Control Act (AECA) (22 U.S.C. 2778), the authority from which the ITAR is derived, requires periodic review to determine what articles and services, if any, no longer warrant designation on the U.S. Munitions List at 22 CFR 121.1. In maintaining the USML, DDTC's Office of Defense Trade Controls Policy (DTCP) identifies articles and services for review through a variety of methods, including informal public and interagency comment, commodity jurisdiction reviews, advisory opinions, and technology monitoring. The Department maintains the USML such that it comprises those defense articles or defense services that provide a critical military or intelligence advantage or, in the case of firearms, have an inherently military function. The Department, informed by consultations with its interagency partners, determined that the additional defense articles this rule proposes to designate on the USML warrant ITAR control and those articles it proposes to remove from the USML no longer do. This rule also proposes to amend and clarify certain regulatory text that describes items on the USML.

Further, on December 20, 2023, Vice President Kamala Harris convened the National Space Council to discuss U.S. leadership in space. The Departments of State and Commerce were subsequently tasked to “review relevant export controls and processes to better enable a globally competitive U.S. space industrial base while protecting our national security and foreign policy interests.” In addition to clarifying existing controls, the Department identifies three primary methods to meet that objective. First, it presents several updates to the USML's structure, terminology, and concepts. Second, it proposes three new license exemptions within the ITAR and the transition of guidance from an existing USML note into a fourth new exemption within a new section, § 126.8. Third, it proposes revisions to USML Categories IV and XV.

With this rule, the Department proposes to amend specific paragraphs within the USML to address controls that were identified as potentially requiring addition, removal, revision, or clarification. The Department proposes the following general types of changes to the ITAR: (1) USML Modernization Efforts, (2) Civil Space-Related License Exemptions and Special Licensing Provisions, and (3) USML Category Revisions.

The Department invites feedback from industry and other interested parties on these proposals, which are further explained in that order below. In accordance with 5 U.S.C. 553(b)(4), a summary of this proposed rule may be found at https://www.regulations.gov.

The Department is modernizing the USML, specifically to improve its usability, clarity, and consistency in structure and regulatory text. This proposed rule contains revisions to that effect in the following areas:

The Department proposes to relocate content in notes within the USML, which has regulatory effect, into the relevant text of the USML paragraphs, or into new definitions in § 121.0. The Department also proposes to update or remove other notes within the USML for clarity and to avoid redundancy.

To create additional clarity within the text of the USML, the Department proposes to add definitions for the following new terms, many of which are currently contained in notes: amateur rocket, amateur rocket motor, bomb, excluded National Aeronautics and Space Administration (NASA) spacecraft, ground sample distance, hosted payload, human spaceflight preparations, loitering munition, mine, payload, primary payload, range, real-time, secondary payload, spacecraft, spacecraft bus, spacecraft housekeeping data and output, spacecraft payload, and spectral bandwidth.

ITAR part 120 maintains defined terms that are relevant to the ITAR, while other definitions are located in notes to USML paragraphs. Consistent with the Department's overall effort to streamline and clarify the content and organization of the ITAR, this rule proposes to consolidate defined terms used within the USML in one location at § 121.0. The Department will further consider, and requests public comment on, whether the Department should instead move any of those terms to part 120, so they apply across the ITAR instead of just the USML.

The Department further proposes to revise those paragraphs where the term specially designed either does not narrow the scope of the paragraph or can be replaced with technical criteria that provide more specific controls. The Department does so to enhance clarity within the regulatory text.

The Department proposes to start each paragraph of the USML with the specific article of interest, followed by any qualifying criteria such as characteristics, functions, or performance capability. The Department does so to improve both the USML's consistency and its ease of navigation.

The Department also proposes to relocate in-line catch-all entries ( i.e., those located in the same paragraph as the article they are specially designed for) to the end of the paragraph to which they apply, unless it applies only to a portion of the control. The Department does so to enhance clarity and consistency within the regulatory text.

The Department proposes to structure certain USML control text to more consistently follow the organizational composition described in § 120.10(b), Composition of U.S. Munitions List categories. Restructuring to group paragraphs according to § 120.40, Compositional terms, will improve the USML's ease of use and help reduce user error when performing an analysis to determine if an item is specially designed per § 120.41. Since paragraphs (a)(2) and (b)(1) through (5) only apply to USML paragraphs that use the term “specially designed” to describe items as parts, components, accessories, attachments, or software, the Department believes that clearly differentiating between the USML paragraphs that do so, and those that instead use the term “specially designed” to describe items using other § 120.40 compositional terms, will assist in the analysis. For example, in this rule, the Department proposes to move equipment and systems currently described in the parts and components paragraph of Category IV(h) to a newly created paragraph (e) of USML Category IV. A similar approach is proposed for Category XV.

The Department proposes to update internal references within the USML for consistency and greater readability. For example, the Department proposes to replace references to larger divisions of subchapter M of title 22 (such as “this section”) with more specific references such as “the USML,” when that is the intent. Similarly, the Department proposes to update references to “this category” to the specific USML Category referenced.

The Department proposes to standardize its use of terms within the USML, including “described” and “controlled.”

For consistency and ease of use, the Department also proposes to utilize metric units and minimize references to U.S. customary units.

And, finally, the Department proposes other minor changes in multiple paragraphs to promote consistency in regulatory text, grammar, and syntax without changing scope or substance.

The Department proposes to add to part 126 three new licensing exemptions intended to promote U.S. industrial base participation in civil space activity commensurate with its national security and foreign policy goals. The Department further proposes to codify a fourth licensing exemption currently provided as guidance in an existing note within the USML. As a reminder, the ITAR contains other requirements to be eligible to use an exemption, including requirements which may attach to transfers. Those include, but are not limited to, § 126.1 regarding proscribed destinations and statements required under § 123.9(b). Specific to the current proposed rulemaking, the four proposed exemptions are as follows.

This license exemption, proposed to be in a new § 126.8(a), would authorize certain transfers of defense articles and defense services when conducted entirely within the scope of an official U.S. government agency space program listed in § 126.8(a)(2). While the proposed list of articles and services subject to the exemption applies to several NASA spacecraft, the Department emphasizes this licensing exemption does not similarly apply to the space launch vehicles for these spacecraft. The Department assesses the underlying launch vehicle technology is independent of the spacecraft that potentially warrant a licensing exemption, in part due to the implicitly civil, multilateral, or scientific mission of these specific spacecraft.

This exemption, proposed to be in a new § 126.8(b), consists of four provisions. The first would authorize certain transfers of defense articles and § 120.32(a)(2) defense services supporting space launches. Certain transfers of electrical connectors would be eligible for this exemption, as the Department assesses that, while they continue to warrant regulation by this subchapter, certain transfers of these articles may be conducted under a licensing exemption without risk to U.S. national security and foreign policy interests. The Department requests public comment on additional space technologies having both military and commercial applications that should be considered for incorporation into this exemption. Comments on the benefit of such an expansion of the exemption to the regulated community and any perceived or recommended proliferation risk mitigations are also requested.

The second provision would authorize certain services related to the transmission of space launch vehicle telemetry, to improve safety of flight and support the growing space launch industry. The Department proposes to limit this authorization to space launch vehicles since similar data can be used by rockets and missiles to deliver weapons of mass destruction.

The third provision would authorize certain services to support collaboration with foreign persons when on-orbit defense articles are utilized in support of fundamental research, as defined in § 120.34(a)(8).

The fourth provision would authorize certain services associated with radiofrequency transmissions using on-orbit defense articles, including geolocating certain automated information broadcasts, emergency transmissions, and cellular transmissions.

This exemption, proposed to be in a new § 126.8(c), would authorize certain transfers of manned spacecraft for space tourism or in support of fundamental research, as defined in § 120.34(a)(8).

The Department notes the proposed research exemptions apply specifically to certain basic and applied research, and not to the engineering development phase of research and development. Similarly, they do not apply to the design and development of a defense article or to research either not intended for publication or subject to publication restrictions or non-disclosure agreements.

This exemption, proposed to be in a new § 126.8(d), would authorize certain transfers of defense articles while they are incorporated into spacecraft subject to the EAR. This is consistent with two current notes (note 2 to paragraph (e) and note 2 to paragraph (e)(17)) the Department proposes to remove from Category XV.

In addition to the proposed exemptions previously described, the Department also requests public comment on specific regulatory changes or clarifications to facilitate industry efforts to reduce the apparent magnitude, as viewed from Earth, of satellite brightness. Commenters should be cognizant of the Department's continued need to control signature reduction technologies that provide a critical military or intelligence advantage, including technologies to reduce spacecraft signatures as viewed in, or between, orbits.

The Department proposes to update the title of Category IV to better reflect the items described therein and to avoid the potential misinterpretation that the list of items in the title is exhaustive.

The Department proposes minor adjustments to USML Category IV(a)(1) and (2) for consistency in construction of the control text.

In USML Category IV, paragraph (a)(3) describes MANPADS, paragraph (b)(2) describes “[f]ixed launch sites and mobile launcher mechanisms for any system enumerated in paragraphs (a)(3) through (5) . . . ( e.g., launch tables, TOW missile, MANPADS),” and paragraph (h)(5) describes “MANPADS grip stocks and specially designed parts and components therefor.”

To provide additional clarity and consistency in structure of the USML, with no change in the scope of the controls, the Department proposes to modify these paragraphs. The Department proposes to modify paragraph (a)(3) to enumerate the missiles and rockets used in MANPADS. As described elsewhere in this rule, the Department proposes further modifications to paragraph (b)(2) to clarify it describes launch systems and equipment for MANPADS and certain other defense articles; thus, launch tubes for MANPADS missiles would remain described on the USML. The Department proposes to continue to describe parts and components specially designed for MANPADS grip stocks in paragraph (h)(5) but notes MANPADS grip stocks described in that paragraph would also be described in proposed paragraph (b)(2) as launch equipment for MANPADS. The Department requests public comment on the advantages and disadvantages of describing MANPADS grip stocks either only in paragraph (b)(2) or only in paragraph (h)(5).

USML Category IV(a)(4) describes “[a]nti-tank missiles and rockets.” The Department proposes to distinguish this entry from other USML paragraphs that describe other missiles and rockets that may be used to neutralize tanks, such as Category III(d)(4) for rocket propelled grenades (RPGs). The Department assesses that a commonly accepted distinction between the two is that anti-tank systems are typically guided, whereas RPGs are not. This demarcation, along with established precedent, precludes the need for a substantive revision of Category IV(a)(4). Instead, the Department proposes minor modifications for consistency in sentence structure and to clarify that it describes projectiles used to neutralize armored platforms of any kind, not just tanks.

USML Category IV(a)(5) describes rockets, space launch vehicles (SLVs), and missiles not described elsewhere in paragraphs (a)(1) through (4). This includes rockets on the lower end of the performance spectrum that, nonetheless, warrant designation as a defense article. USML Category IV(a) excludes certain model rockets via note 3 to paragraph (a).

The Department also proposes to replace note 3 to paragraph (a) with a specific definition of “amateur rockets” in § 121.0 and to reference that definition to exclude amateur rockets from the regulatory text of paragraph (a)(5). The proposed definition is consistent with the current National Fire Protection Association Code definition referenced in note 3 to paragraph (a).

The Department proposes to clarify the scope of USML Category IV(a)(6) through defining “bomb” in § 121.0 in a manner that more clearly excludes improvised explosive devices (IEDs) and other ground-based munitions. In doing so, the Department does not intend to narrow the scope of the USML and notes bombs dropped from ground-launched munitions are still dropped from the air ( e.g., bomblets dropped from a munition launched from a ground vehicle), while some munitions marketed as `bombs' may more appropriately be classified as rockets or missiles.

The USML currently enumerates mines in three separate paragraphs in USML Category IV. Paragraph (a)(9) describes “[a]nti-personnel, anti-vehicle, or anti-armor land mines ( e.g., area denial devices).” Paragraph (a)(10) describes “[a]nti-helicopter mines.” And paragraph (a)(11) describes “[n]aval mines.” The Department proposes to clarify, via a new parenthetical, that paragraph (a)(9) describes both Terrain Shaping Obstacles (TSOs) that are compliant with the Ottawa/Presidential Landmine Policy and non-compliant area denial devices (ADDs).

The Department also proposes to clarify that paragraph (a)(10) describes mines designed to target any type of aircraft, such as unmanned aerial vehicles (UAVs)—not just helicopters. The Department is unaware of any anti-UAV mines that are not anti-helicopter mines. Moreover, the Department assesses that any notional or future anti-aircraft mines that are not also anti-helicopter mines warrant the same level of control as anti-helicopter mines.

To facilitate additional proposed subordinate paragraphs to paragraph (a), the Department proposes to delete the conjunction “or” at the end paragraph (a)(11). The Department also proposes to move the definition of “mine” currently found in note 4 to Category IV(a) to § 121.0, refine the definition, and delete the original note.

The Department proposes to remove the reference to “high explosive” in USML Category IV(a)(12) to prevent confusing the articles described in this paragraph with law enforcement tools, such as stun grenades, that are not subject to the ITAR. Instead, the Department proposes the paragraph refer to hand grenades “designed to be lethal or destructive”, with a parenthetical list of examples, as more reflective of the types of grenades the Department intends to describe in this paragraph.

The Department proposes to add new paragraph (a)(13) to USML Category IV to enumerate loitering munitions, thereby distinguishing them from other defense articles with similar functionality, e.g., UAVs designed for repeated missions, instead of a single use. In support of this new paragraph, the Department proposes to add a regulatory definition of “loitering munition” in § 121.0.

The Department proposes to move kinetic kill vehicles currently described in USML Category IV(h)(3) to a new entry in paragraph (a), with no change in the scope of control.

The Department proposes to move post-boost vehicles currently described in USML Category IV(h)(12) to a new entry in paragraph (a), with an expanded description for clarity in the regulatory text but no change in the scope of control.

The Department notes most hypersonic vehicles (HVs) are described on the USML in either Category IV or VIII. However, the Department assesses that the functionality of hypersonic glide vehicles (HGVs) requires specific enumeration on the USML. The Department thus proposes to add a new paragraph (a)(16) in Category IV for HGVs and specially designed parts and components therefor. The Department further proposes to designate this paragraph as “MT” (see § 120.10(d)).

The Department proposes to move the control for re-entry vehicles within USML Category IV from paragraph (h)(17) to new paragraph (a)(17) with minor textual changes. The Department also proposes to incorporate the guidance currently in the note to paragraph (h)(17) into the new paragraph (a)(17) and to clarify the scope of paragraph (a)(17) to better facilitate the order of review. Thus, the Department further proposes to delete the note to paragraph (h)(17).

The Department proposes to move the definitions of “range” and “payload,” currently found in the notes to USML Category IV(a), to § 121.0.

Certain rockets described in USML Category IV(a)(5) are excluded from that paragraph by note 3 to USML Category IV(a). The Department proposes to delete note 3, while maintaining the scope of paragraph (a), by adding a definition for “amateur rocket” in § 121.0 and modifying paragraph (a)(5) to exclude amateur rockets.

Paragraphs (b)(1) and (2) of USML Category IV describe “[f]ixed launch sites and mobile launcher mechanisms” for articles described in paragraphs (a)(1) through (5). For clarity, the Department proposes to delete the parenthetical example in paragraph (b)(2) since the “TOW missile” and “MANPADS” are described in paragraph (a).

With advances in technology, such as maritime launch sites, the Department also proposes to modify paragraphs (b)(1) and (2) to describe “launch systems and equipment” to clarify they describe all launch system variants. This change also facilitates the Department's proposed intent to describe all launch systems for Category IV munitions in Category IV, changing the current practice of describing them according to the platform into which they are integrated, as currently facilitated by notes 1 and 2 to paragraph (b). Additionally, consistent with the current launch system controls for Category IV munitions, the Department proposes to add a parts and components catch-all control to paragraphs (b)(1) and (2).

The Department also proposes to delete the first two notes to paragraph (b) in the current regulation. Notes 1 and 2 direct the user to Categories VI, VII, and VIII for launcher mechanisms integrated into platforms described therein. However, the Department now proposes to describe launch systems according to the articles launched, not the platforms from which they are launched. This will result in describing articles such as the M299 and LAU-61 launchers in Category IV(b), while continuing to describe in Category VIII articles such as weapons pylons for integrating those launchers with aircraft. The Department assesses articles specially designed for the integration of a defense article described in USML Category IV with an operational platform should remain described in Category VI, VII, or VIII with their respective platforms, since they are better described as either articles for integrating launch equipment or, in the case of bomb racks, as release mechanisms for self-launched munitions. The Department also proposes to add a new note 1 to paragraph (b) to ensure practitioners are aware that accessories, attachments, and associated equipment for USML Category XX(a) articles remain described in USML Category XX following the movement of launch systems and equipment to Category IV.

This proposed change in the Department's approach is intended, in part, to address launchers that are repurposed from one platform to another, or even to fixed, land-based installations. In such cases, the Department assesses it is inappropriate for the export classification of an article to change based solely on the platform with which it is used. However, maintaining the original platform-specific classification for a launcher installed on a different platform also causes unnecessary confusion and can delay licensing, compliance, and enforcement. Further challenges arise when the control text for launchers on different platforms differs either in the relevant USML paragraph or its related catch-all entry, or in the significant military equipment (SME) status of those paragraphs. This is not a theoretical issue, as the Department has identified multiple instances where launch equipment has been repurposed from aircraft or ships to vehicles or fixed installations ( e.g., the M299 launcher and Mark 41 Vertical Launch System).

Thus, the Department proposes to modify the relevant paragraphs of Categories VI, VII, and VIII so they only describe articles used to integrate either the launch systems described in Category IV(b), or self-launched munitions described in Category IV(a) that do not require a separate launch system ( e.g., bombs that attach only via hard points), with platforms described in those categories. The Department assesses these changes will eliminate the potential conflict with the order of review in which the existing notes imply reclassification from the SME paragraph of Category IV to a non-SME paragraph in another category. The proposed change will also reduce confusion, and potential reclassification, when the same equipment is used on multiple platforms. The Department is coordinating with the Department of Commerce's Bureau of Industry and Security to ensure consistency in its related catch-all controls for any articles that move between USML categories because of this new approach.

The Department notes it will address issues related USML Category IV(c) in a separate rulemaking. However, the Department still welcomes comments related to this paragraph.

The text of USML Category IV(d) uses the term “power plants” to refer to the items described in its subordinate paragraphs. The Department proposes to replace that term with “propulsion systems.” However, the Department further proposes to exclude from Category IV(d) those propulsion systems described in USML Categories XV or XIX, to clarify those items are not described in the subordinate paragraphs of (d), while deleting note 2 to paragraph (d), as it is made redundant by these changes.

The Department proposes minor changes to USML Category IV(d)(1) for consistency in construction and uniformity. The Department also proposes simplifying the regulatory text of paragraphs (d)(2) and (3) to reflect its intent to describe all motors and engines that satisfy the performance criteria, regardless of the propellant.

The Department proposes minor changes to paragraphs (d)(5) through (7) of USML Category IV for consistency. The Department also proposes to designate paragraphs (d)(5) and (6) as “MT” based on an assessment that the described articles are also described in the Missile Technology Control Regime Equipment, Software, and Technology Annex (MTCR Annex).

Note 1 to USML Category IV(d) provides a carve-out for motors that contain five pounds or less of propellant. The Department proposes to move that regulatory text into the definition of amateur rocket motors in § 121.0 and delete the note.

The Department proposes to move the following systems and equipment in USML Category IV from current paragraph (h) to a new paragraph (e): flight control and guidance systems (currently described in paragraphs (h)(1) and (28)), kinetic kill vehicles (currently described in paragraph (h)(3)), thrust vector control systems (currently described in paragraph (h)(4)), thermal protection systems (currently described in paragraph (h)(8)), self-destruct systems (currently described in paragraph (h)(10)), separation systems (currently described in paragraph (h)(11)), post-boost vehicles (currently described in paragraph (h)(12)), hypersonic glide vehicles, and unmanned atmospheric re-entry vehicles (both of which are currently described in paragraph (h)(17)), attitude control systems (currently described in paragraph (h)(28)), and seeker systems (currently described in paragraph (h)(2)).

These changes are part of the Department's USML modernization efforts and align with the USML structure outlined in § 120.10, by describing end-items, systems, and equipment in paragraphs that precede paragraphs dedicated to parts, components, accessories, and attachments.

Flight control systems are described in paragraphs (h)(1) and (28) of USML Category IV. Those two paragraphs also describe guidance systems and attitude control equipment, respectively. Along with moving these systems to new paragraph (e), the Department also proposes to consolidate them in three subordinate paragraphs of new paragraph (e)(1), with each subordinate paragraph describing one of the three types of systems or equipment (flight control systems, guidance systems, and attitude control equipment).

Within the paragraph for guidance systems, the Department proposes to delete the parenthetical reference to “guidance sets” and the related note to paragraph (h)(1) as redundant, assessing that “guidance sets” described in paragraph (h)(1) already meet the § 120.40 definition of a “system” and are thus already described by the term “guidance systems.” The Department also believes any manufacturers who historically used the “guidance set” term of art understand the export classification of their items, further reducing the utility of the reference.

The Department proposes to simplify the regulatory text of current USML Category IV(h)(4) and move it to paragraph (e)(2). Specifically, the Department proposes to eliminate the reference to “missile or rocket” at the beginning of the paragraph, noting the text of proposed paragraph (e) renders it unnecessary. The Department further proposes to clarify this paragraph does not describe spacecraft thrust vector control systems described in USML Category XV.

USML Category IV(h)(8) describes heat shields for re-entry vehicles or warheads. The Department proposes to revise this paragraph and move it to paragraph (e)(3) to clarify the thermal protection systems described in this paragraph are not limited to traditional heat shields and to better distinguish this entry from a related paragraph in USML Category XV that describes spacecraft heat shields. The Department further proposes to designate new paragraph (e)(3) as “MT” based on an assessment that all such thermal protection systems designed for atmospheric re-entry are usable in MTCR Category I systems, and thus are described in the MTCR Annex. The Department also proposes to add a catch-all control to this paragraph. The Department also proposes to collocate this catch-all control with the thermal protection systems controls to improve the regulation's clarity and ease of use.

Regarding the similar paragraph describing spacecraft heat shields in Category XV, the Department requests public comment on any perceived benefits and drawbacks to consolidating these two heat shield paragraphs under Category XIII.

USML Category IV(h)(10) describes self-destruct systems. The Department proposes to make minor modifications to this paragraph for consistency and clarity, with no change in the scope of control, and move it to paragraph (e)(4) of USML Category IV.

USML Category IV(h)(11) describes separation systems. The Department proposes to revise this paragraph for consistency and clarity, with no change in the scope of control, and move it to paragraph (e)(5) of USML Category IV. This paragraph currently describes all separation systems, including those used to separate satellites from space launch vehicles. The Department considered removing certain separation mechanisms from the USML but declines to do so after assessing the technology differences between those for civil purposes and military purposes do not provide sufficient differentiation.

USML Category IV(h)(9) describes safing, arming, fuzing, and firing (SAFF) components for missiles and rockets. The Department proposes to move it to the newly created paragraph (e)(6) and clarify it describes all SAFF systems for rockets, missiles, loitering munitions, and bombs, as well as their specially designed parts and components.

In support of that change, the Department proposes to replace the limiting compound adjective “missile and rocket” with a criterion for articles described in paragraph (a)(1), (2), (3), (4), or (5) or (g) of USML Category IV. This will avoid an expansion of scope from the current USML by avoiding control of, for instance, SAFF systems for mines that are nominally subject to the EAR. By adding a reference to paragraph (g), the Department intends to incorporate SAFF systems for non-nuclear warheads currently described in USML Category IV(h)(18). This proposed change will consolidate all SAFF systems and components described on the USML into a single paragraph focused on the underlying technology instead of its end-use.

USML Category IV(h)(2) describes seeker systems. The Department proposes to revise this paragraph for consistency and clarity, with no change in the scope of control, and move it to paragraph (e)(7) of USML Category IV. Additionally, the Department requests public comment on whether there are any areas of potential overlap between this and other USML entries and if so, whether entries describing these systems could potentially be consolidated.

The Department proposes to add USML Category IV(f) to describe test equipment for certain rockets, missiles, SLVs, and missile seekers. The Department assesses this technology provides a critical military advantage because testing protocols are increasingly being utilized in complex missile designs. The Department notes that testing software and protocols directly related to rockets, missiles, SLVs, or missile seekers are currently described in USML Category IV(i).

The Department proposes to simplify the regulatory text of USML Category IV(g). Additionally, the Department proposes to add chemical and biological warheads to the non-exhaustive parenthetical list of examples to further clarify the scope.

The Department proposes to modify USML Category IV(h) to economize the text of its subordinate paragraphs. Currently, some subordinate paragraphs of (h) require an article be used in an end item described elsewhere in Category IV. The Department proposes to clearly stipulate in paragraph (h) that the articles in its subordinate paragraphs are for end-items described elsewhere in Category IV, thereby eliminating the need to repeat that requirement in each of its subordinate paragraphs. Consistent with its intent to move systems from paragraph (h) to paragraph (e), the Department also proposes to delete the reference to systems and subsystems in paragraph (h).

Paragraphs (h)(1) through (4) of USML Category IV describe flight control systems, guidance systems, seeker systems, kinetic kill vehicles, and thrust vector control systems. As noted elsewhere in this rule, the Department proposes to move those articles to another paragraph. Consistent with this change, the Department proposes to reserve paragraphs (h)(1) through (4) to maintain the current numbering in the remaining paragraphs.

The Department proposes to modify the wording of USML Category IV(h)(5), so the article of interest is listed first rather than the end item for which it is used.

The Department proposes to eliminate the reference to rockets and missiles in paragraphs (h)(6) and (7) of USML Category IV, based on proposed changes to paragraph (h) that more broadly reference articles described in USML Category IV.

Paragraphs (h)(8) through (12) of USML Category IV describe heat shields, SAFF components, self-destruct systems, separation mechanisms, and post-boost vehicles. As the Department proposes to move these paragraphs to other locations within USML Category IV, it further proposes to reserve paragraphs (h)(8) through (12) to maintain the numbering of the paragraphs that follow.

The Department proposes minor modifications to USML Category IV(h)(13) for clarity and consistency, with no intended change in the scope of control.

USML Category IV(h)(14) describes combustion chambers “specially designed” for articles enumerated in paragraphs (a) and (d) of USML Category IV. However, the Department is unaware of a scenario wherein combustion chambers used with articles described in paragraph (a) or (d) would be released by the “specially designed” analysis provided at § 120.41(b). As such, the Department proposes to simplify the control paragraph by removing “specially designed” as a criterion for control. Additionally, the Department proposes to eliminate the limiting criterion “for articles enumerated in paragraphs (a) and (d).” The Department assesses this criterion is redundant, as it is unaware of combustion chamber use in articles described in the remaining Category IV paragraphs. This assessment, along with the regulatory text the Department proposes for paragraph (h), means the removal of this criterion does not change the scope of the control.

Similar to combustion chambers, the Department is unaware of injectors used in articles described in USML Category IV that would be released by the “specially designed” analysis provided at § 120.41(b), and the proposed regulatory text for paragraph (h) ensures the injectors described in paragraph (h)(15) are “for articles described in USML Category IV.” As such, the Department proposes to remove the “specially designed” criterion from paragraph (h)(15), with no change to the scope of the control.

The Department proposes to revise USML Category IV(h)(16) for clarity and consistency, and with a minor change in scope. The current USML describes solid rocket motor and liquid engine igniters. However, the Department assesses igniters used in amateur rocket motors do not provide a critical military or intelligence advantage. The Department believes that simplifying the paragraph to just “igniters,” with the proposed changes to paragraph (h) to describe parts, components, accessories, and attachments for articles described in Category IV appropriately scopes the control by removing igniters for amateur rocket motors.

The Department proposes to expand the scope of the USML Category IV(h)(18) catch-all control to include two types of parts and components specially designed for systems described in paragraph (e): non-electronic radiation hardened parts and components and parts and components specially designed for underwater launch. The Department's assessment is that such articles provide a critical military advantage when used in USML Category IV systems.

The Department proposes to designate USML Category IV(h)(19) as SME per § 120.36, since the articles it describes are vital to the successful deployment of warheads described in USML Category IV(g) which are, themselves, SME.

Consistent with changes it proposes to USML Category IV(h), the Department proposes to eliminate the reference to “rocket” in USML Category IV(h)(20) based on the assessment that, in this context, the use of “rocket” is intended to describe the motor, not the platform in which the motor is used and that rocket motors can be used in more than just rockets. Since the technology remains the same, regardless of the platform, the Department intends for the control to remain independent of its end use.

The Department proposes to modify the wording of USML Category IV(h)(21) for clarity and consistency, with no change in the scope of the control.

The Department proposes minor modifications to USML Category IV(h)(22) for consistency in regulatory text construction and to update cross-references in the regulatory text. The Department further proposes to expand the scope of paragraph (h)(22) by adding “embedded antennae” to the list of items described therein, as embedded antennae are not antenna windows yet provide similar capability through alternative means.

The Department proposes minor modifications to USML Category IV(h)(23), to ensure it effectively describes all payload fairings for articles described in USML Category IV, not just those for rockets and missiles.

The Department proposes to modify USML Category IV(h)(24) to remove the reference to “rocket or missile” in describing launch canisters. The Department assesses the existing reference is redundant based on the proposed changes to paragraph (h).

The Department proposes to limit the scope of USML Category IV(h)(25) to those fuzes not already described in paragraph (e)(6) as “specially designed” parts and components of SAFF systems. The Department requests public comment on whether the retention of USML Category IV(h)(25) is necessary and if so, examples of items that could be described in this entry but are not already described in paragraph (e)(6).

The Department proposes to modify USML Category IV(h)(26) and (27) to eliminate the reference to “rocket or missile” based on proposed changes to paragraph (h).

In USML Category IV(h)(29), the Department proposes to remove the reference to “rockets or missiles,” consistent with similar proposed changes in other paragraphs, and to create three subordinate paragraphs, moving the umbilical and interstage connectors described therein to the new paragraph (h)(29)(i). The Department proposes to incorporate the guidance currently provided in the note to paragraph (h)(29) to the regulatory text in the new paragraph (h)(29)(ii) and delete the note. The Department further proposes to add electrical connectors specially designed for hostile nuclear radiation environments to the new paragraph (h)(29)(iii), assessing that these connectors, used in ballistic missile systems, provide a critical military advantage.

The Department also proposes to add a licensing exemption to § 126.8 for certain activities involving connectors installed between articles described in paragraph (a)(1) or (2) and certain payloads.

The Department proposes to add a new paragraph (h)(31) to USML Category IV describing turbo pumps specially designed for the propulsion systems described in USML Category IV(d).

The Department proposes minor modifications to USML Category IV(i) for consistency in construction of the control text.

The Department proposes to eliminate the note to USML Category IV, as it does not provide a substantive explanation of the control text. This note describes one specific circumstance wherein a system would be described in Category I of the MTCR Annex, which is not a distinction made elsewhere on the USML. For assistance identifying articles that are on the MTCR Annex, users should reference the “MT” designations provided as described in § 120.10(d).

The Department previously published an advanced notice of proposed rulemaking (RIN 1400-AE73) on March 8, 2019, to request public comment ( see 84 FR 8486). Twenty-five parties filed comments recommending changes, which were reviewed and considered by the Department, in consultation with other U.S. Government departments and agencies. A summary of the comments related to USML Category IV follows:

Four commenting parties recommended the Department add a note to USML Category IV, similar to note 3 to paragraph (f) of Category XV, to decontrol housekeeping and telemetry data associated with space launch vehicles. The Department declines to do so, as such data may be used in the furtherance of programs to deliver weapons of mass destruction. However, the Department does propose to exempt certain telemetry from licensing requirements in specific circumstances, as reflected in its proposed exemptions in part 126.

Three commenting parties recommended thermal batteries be removed from the USML in favor of existing descriptions on the CCL. Thermal batteries were originally developed as, and are still predominantly used as, single-use power sources with long shelf-lives and high reliability for munitions applications. As such, they continue to provide a critical military advantage and the Department declines to remove them from the USML. Nonetheless, the Department requests public comment on civil uses of thermal batteries in space applications to allow consideration for their inclusion in a licensing exemption supporting civil space efforts.

One commenting party recommended the USML be revised to account for unmanned aerial vehicles (UAVs) used as loitering munitions. The Department proposes both a § 121.0 definition and an enumerated paragraph (a)(13) in USML Category IV for loitering munitions, as explained in this rule.

Seven commenting parties recommended various changes to USML Category IV(b). Specifically, the commenting parties recommended the exclusion of aircraft modified to launch SLVs, the exclusion of parts and components not otherwise enumerated, consistency with how launch platforms are described in other USML categories, addressing the absence of launchers for articles described in paragraphs (a)(6) through (12) of USML Category IV, decontrolling articles described therein once integrated into an end-item subject to the EAR (similar to note 2 to paragraph (e) of USML Category XV), and revising Category VI to better describe the Mark 41 Vertical Launch System (MK 41 VLS) as SME. The Department proposes revising the regulatory text of USML Category IV(b), clarifying its scope, and deleting its corresponding notes, as previously described in this rule.

Two commenting parties recommended changes to paragraph (c) of USML Category IV. One suggested defining the terms “apparatus” and “devices.” The Department plans to address this issue in a separate rulemaking. Both parties recommended changes to note 1 to paragraph (c) to avoid controlling tanks used to store propellants not subject to the ITAR. Though the Department declines to propose this change at this time, it clarifies that certain storage tanks are not defense articles. Specifically, only those storage tanks with properties peculiarly responsible for the handling, control, activation, monitoring, detection, protection, discharge, or detonation of a commodity described in USML Category IV(a) or (b) are described. For example, this would not include general-purpose tanks designed to store flammable liquids that are subsequently used, unmodified, in launch site applications. However, it would include a similar tank with additional properties to protect against damage from launch blasts or debris from launch failures.

One commenting party recommended distinguishing between launch platforms described in Category IV and prominent subassemblies sold independently that do not, individually, satisfy the control criteria of paragraph (b) or (c). The Department declines this recommendation and notes the example provided was such a prominent subassembly of the overall launch platform that it likely satisfies the definition of a defense article as provided in § 120.31. Specifically, it has “. . . reached a stage in manufacturing where . . . [it is] clearly identifiable by mechanical properties, material composition, geometry, or function as [a] defense [article].”

Four commenting parties recommended changes to paragraph (h)(11) to more clearly delineate between separation systems for spacecraft and those for articles described in Category IV. The Department has not identified a clear delineation and assesses that implementing a carve-out to the USML based solely on end-use would harm U.S. national security and foreign policy interests. Instead, the Department requests public comment on potentially exempting certain separation systems from licensing requirements in certain situations, as reflected in the proposed changes to part 126 for connectors.

One commenting party recommended a change to paragraph (h)(14) to remove combustion chambers of reaction control system thrusters and auxiliary systems. The Department declines this recommendation. Reaction control systems are a vital subassembly of articles described in USML Category IV. Moreover, the Department is unaware of combustion chambers used in an SLV, rocket, or missile that would otherwise be released by the “specially designed” analysis provided at § 120.41(b). The only rockets not currently subject to the ITAR are those which satisfy the definitions of model or high power rockets, which do not use such combustion chambers.

Two commenting parties recommended paragraphs (h)(15) and (16) be revised to clarify they describe injector assemblies and igniter systems, respectively, with the additional suggestion that the scope of the paragraphs be expanded to include “catch-all” controls as defined in the note to paragraph (b) of § 120.41 (to describe parts and components therefor). The Department concurs regarding the inclusion of assemblies to clarify scope. However, the Department disagrees with including “catch-all” controls on the USML for these paragraphs.

One commenting party recommended mine launchers be added to paragraph (h)(24) to close a gap in jurisdictional control. The Department proposes to modify paragraph (b) to do so.

One commenting party recommended paragraph (h)(28) be revised to clarify it does not control thrusters or actuators in attitude control systems since similar thruster designs are used in articles subject to the EAR. The Department declines to do so, since such scenarios are already addressed by the inclusion of “specially designed” within the control text.

The Department proposes to modify USML Category VI(f)(6) and (7) to avoid overlap in controls between those paragraphs and the proposed revision and intent of Category IV(b). As such, the Department proposes to clarify these paragraphs only describe certain integration equipment, aircraft launch and recovery equipment, and certain shipborne defensive systems, not articles described in Category IV(b). The Department further proposes to split paragraph (f)(6) into three subordinate paragraphs for ease of parsing and adjust the “MT” designations for consistency with the MTCR Annex.

Similarly, the Department proposes to modify USML Category VII(g)(2) to avoid overlap in controls between that paragraph and the proposed revision and intent of Category IV(b), and therefore proposes to clarify paragraph (g)(2) only describes articles not already described in Category IV(b).

The Department proposes to add USML Category VII(g)(15) and modify USML Category VIII(h)(6) to ensure items designed for integrating certain defense articles are described in the same USML category as the platform they are being integrated into and to avoid ambiguity about whether they are controlled in USML Category IV(b).

Subsequent to these changes, these paragraphs will only describe articles that assist in the integration between a vehicle and either a launching system or a self-launching munition.

The Department proposes to modify USML Category XI(c)(4) to control the MMICs removed from Category XV. The proposed change will not change the scope of controls on MMICs, but will create clarity in controls on the items by consolidating regulatory text on MMICs under the more appropriate designation of military electronics.

The Department proposes to expand the scope of items described in paragraph (c)(15) of USML Category XI by adding electronic parts and components capable of operation at temperatures in excess of 125 °C and specially designed for spacecraft described in USML Category XV. The Department assesses that such items provide a critical military advantage commensurate with the electronics currently described in that paragraph. The Department proposes further revisions to paragraph (c)(15) for clarity and consistency of the regulatory text and ease of use, with no additional change in scope of the items described therein.

The Department requests comment on the potential merits of removing of USML Category XII(e)(14), with no change in the scope of control. Integrated circuits described therein are already described in USML Category XI(c)(1) and the Department asks whether the regulated community sees a benefit to retaining USML Category XII(e)(14) as a separate entry.

USML Category XIII(j) describes certain materials not elsewhere specified on the USML. The Department proposes to revise paragraph (j) for consistency in the regulatory text, with no change in scope, and to add two subordinate paragraphs to paragraph (j) to describe materials specially designed for underwater launch of missiles or hostile nuclear radiation environments. As missile designs advance, the Department assesses these specific types of materials provide a critical military or intelligence advantage.

The Department proposes to revise USML Category XV(a) in several ways. First, the Department proposes to use two § 121.0 definitions, “spacecraft” and “excluded NASA spacecraft,” to clarify the scope and to simplify its subordinate paragraphs. By excluding specific NASA spacecraft via the proposed definition, the Department both facilitates the deletion of notes 2 and 3 to paragraph (a) (which exclude these NASA spacecraft) with no change in the scope of control and establishes a straightforward mechanism to enable the exclusion of certain NASA spacecraft in the future. The Department further considered excluding commercial low Earth orbit (CLEO) habitats and assesses doing so is unnecessary, as the proposed regulatory text does not nominally describe such spacecraft. The Department welcomes public comment identifying reasons CLEO habitats may be inadvertently described in proposed paragraph (a), as it intends only to describe spacecraft that provide a critical military or intelligence advantage as set forth in § 120.3(b).

Additionally, the Department proposes to delete the qualifying phrase “. . . whether designated developmental, experimental, research, or scientific, or having a commercial, civil, or military end use . . .” from paragraph (a). Spacecraft described in the subordinate paragraphs of paragraph (a) are defense articles, regardless of intended end-use. The Department assesses this intent is sufficiently clear without inclusion of this phrase. The Department further assesses the current note 1 to paragraph (a) is already addressed through the “order of review” guidance at § 120.11 and proposes to delete it as unnecessary.

The Department considered proposing definitions for space probe, space vehicle, space capsule, and space habitat, but declines to do so at this time, and requests comment from members of the public who believe there is a need to define one or more of these terms.

The Department proposes to modify USML Category XV(a)(1) for consistency in construction of the control text.

In USML Category XV(a)(2), the Department proposes to delete the reference to “imaging, infrared, radar, or laser systems,” as the function, not the method, provides the critical military or intelligence advantage. The Department also proposes to replace the reference to “ground, airborne, missile or space” with criteria that describe the technology critical to detecting and tracking ballistic and cruise missiles, launch vehicles, and related payloads (missiles, post-boost vehicles, kill vehicles, re-entry vehicles, and penetration aids). The Department assesses that autonomously detecting and tracking ground vehicles and aircraft via satellite no longer provides a critical military or intelligence advantage, and that the proposed criterion would exclude the tracking of all ground objects and most airborne objects, thus reducing the scope of the control. With this change, the Department intends to describe the missile defense capability without describing space situational awareness, orbital debris mitigation, or cooperative docking capabilities.

USML Category XV(a)(3) describes satellites that conduct certain intelligence collection. To clarify the intent of the control and consistency in construction of the text, the Department proposes to modify this paragraph by adding a “specially designed” criterion to the control text and removing from the text the term “conduct,” with no change in the scope of the control.

The Department proposes to modify USML Category XV(a)(4) for simplicity and consistency in construction of the control text.

In USML Category XV, the Department proposes to modify paragraph (a)(5), which describes spacecraft that are anti-satellite or anti-spacecraft, and paragraph (a)(6), which describes spacecraft with space-to-ground weapon systems, for consistency in construction, simplicity, and uniformity. The Department proposes using the terms `space-to-space weapons' and `space-to-ground weapons' to differentiate between the two entries, and to remove the parenthetical example lists as unnecessary.

The Department proposes several revisions to USML Category XV(a)(7). To facilitate purely scientific telescopes, the Department considered limiting paragraph (a)(7) to Earth-pointing spacecraft. It declines to do so, as the technology for Earth-pointing and non-Earth pointing spacecraft that satisfy the technical criteria in paragraphs (a)(7)(i) through (iv) overlaps to a large degree. Instead, the Department welcomes comments on specific activities that might reasonably warrant an exemption from certain licensing requirements without harming U.S. national security or foreign policy interests.

Within the control text, the Department proposes to update the threshold for some remote sensing capabilities to better reflect the current state of technology. In paragraph (a)(7)(i), the Department proposes to eliminate the spectral band threshold and replace the aperture size threshold with a threshold on light collecting area, in recognition that not all light collecting sensors are circular or readily described in terms of a physical aperture size. The Department also proposes to reduce the ground sample distance (GSD) requirement in paragraph (a)(7)(ii) from 30 meters to 20 meters. Consistent with the proposed definition of “ground sample distance” in § 121.0, the GSD requirements apply only to a sensor as calibrated.

The proposed addition of a definition for GSD and satellite spectral bandwidth in § 121.0 facilitates the Department's proposed removal of notes 1 and 2 to paragraph (a)(7). The Department further proposes to move the guidance from note 3 to paragraph (a)(7) into the control text and delete the note.

Additionally, the Department proposes to clarify that when a spacecraft incorporates multiple sensors that perform the same function, those sensors should be assessed in the aggregate when adjudicating the applicability of this paragraph.

The Department proposes to modify USML Category XV(a)(8) to narrow its scope by increasing the bandwidth criterion to 500 MHz and to make minor changes for consistency in construction and clarity. To assist its review of this control, the Department further requests comments substantiating current industry standards for radar remote sensing bandwidths, related foreign availability of such technology, and any radar remote sensing activities the Department should consider for an additional licensing exemption, similar to the list of radiofrequency sensing activities proposed for § 126.8(b)(2)(iv).

The Department proposes to modify USML Category XV(a)(9) both for consistency in construction and to clarify the scope is limited to spacecraft that generate a position, navigation, and timing (PNT) signal, not those that augment, amplify, re-broadcast, relay the signal or provide a differential correction. Subsequent to that change, the Department proposes to delete the note.

USML Category XV(a)(10) describes spacecraft that autonomously perform collision avoidance. In an increasingly congested orbital environment, the Department assesses many spacecraft will have to perform this task, and that doing so no longer provides a critical military or intelligence advantage. Based on that assessment, spacecraft no longer warrant inclusion on the USML solely due to their ability to autonomously avoid collisions. Thus, the Department proposes to delete USML Category XV(a)(10) and place it in reserve to avoid renumbering subsequent paragraphs.

The Department proposes to modify USML Category XV(a)(11) for consistency in construction of the control text.

The Department proposes to modify USML Category XV(a)(12) to eliminate the reference to servicing other spacecraft and to narrow the scope of the control to only describe surveillance spacecraft. Specifically, the Department proposes two distinct sets of surveillance criteria. The first criterion describes spacecraft specially designed to take images of another spacecraft within a defined angular resolution that doesn't change with distance between the detector and the object. The second set of criteria describe spacecraft specially designed to monitor, follow, and record other spacecraft. With this change, the Department intends to describe the surveillance capability without describing space situational awareness, orbital debris mitigation, or cooperative docking capabilities.

With the elimination of servicing from paragraph (a)(12), the guidance provided in the note to paragraph (a)(12) is no longer relevant. It is nominally relevant to newly created paragraph (a)(14) for spacecraft that non-cooperatively dock with other spacecraft. However, in new paragraph (a)(14) the Department proposes to remove the criterion for the type of docking system used and, instead, focus on the technology required to achieve uncooperative docking or grappling. As a result of these proposed changes, the Department proposes to delete the note to paragraph (a)(12), as it is no longer relevant.

The Department proposes to modify USML Category XV(a)(13) for consistency in construction and simplicity of the control text.

The Department proposes to add paragraphs (a)(14) through (16). These paragraphs designate, respectively, spacecraft capable of non-cooperative grappling or docking, in-orbit construction of other defense articles, and deploying multiple spacecraft into different orbits.

The technology required to facilitate non-cooperative docking is likely to be used in an adversarial manner. A spacecraft capable of in-orbit construction of other defense articles represents a critical logistical advantage. And spacecraft that can rapidly deploy multiple spacecraft into multiple different orbits provide a critical military or intelligence advantage when compared to commercial systems that may be able to achieve the same result over a much longer timeframe.

The Department proposes to move USML Category XV(e)(20) to paragraph (a)(17) and then modify the control text for clarity and consistency in construction of the control text. The Department proposes to simplify it by moving the required characteristics to three subordinate paragraphs for guidance, navigation, and control (GNC) systems, attitude control systems, and propulsion systems, respectively.

The Department proposes to modify the text in USML Category XV(b) for simplicity by eliminating references to “telemetry, tracking, and control” since the Department assesses those functions effectively encompass the entirety of a ground station's purpose and are, therefore, redundant.

The Department assesses the current note to paragraph (b) is unnecessary and proposes to delete it. Paragraph (b) only describes systems and simulators, includes a specially designed criterion, and does not include a catch-all control. The Department assesses the proposed text of paragraph (b), the order of review at § 120.11, and the specially designed definition at § 120.41 would render the note superfluous.

The Department proposes to move the following systems within USML Category XV to paragraph (c): cryocoolers and cold finger systems, active vibration suppression systems, and attitude determination and control systems. These changes align with the Department's intended USML structure, as described in § 120.10, with end-item, system, and equipment controls generally listed prior to paragraphs dedicated to parts, components, accessories, and attachments.

The Department proposes to relocate USML Category XV(e)(4) to paragraph (c)(1), along with several modifications to the control text. The Department proposes to replace the requirement that the cooling system be space-qualified with a “specially designed” criterion. The Department assesses that, for certain technologies, space qualification is no longer the best discriminator, since all spacecraft and equipment, parts, and components are essentially space-qualified by default and designed, manufactured, or tested for operation in space. Elimination of this term would also minimize assertions that articles otherwise described by the USML are subject to the EAR based solely on the intentional avoidance of qualification.

Additionally, the Department proposes to explicitly state that the paragraph describes only active cooling systems. This will be accomplished by moving the qualifier “active” from the parenthetical reference to the beginning of the paragraph. The Department assesses this does not change the scope of the controls since the two types of articles listed in the parenthetical reference are both active systems.

The Department proposes to relocate USML Category XV(e)(5) to paragraph (c)(2), along with several modifications, including replacing the requirement that the articles described therein be space-qualified with a “specially designed” criterion based on the same rationale used for active cooling systems. The Department also proposes to move the examples provided in the text of paragraph (e)(5) to a parenthetical list in paragraph (c)(2) for clarity.

The Department proposes to relocate USML Category XV(e)(10) to paragraph (c)(3), along with minor modifications for consistency in construction and enhanced clarity of the control text. The Department proposes to move the reference to “specially designed parts and components” to the end of the paragraph's text, as the accuracy requirements in the control text apply to the attitude control systems overall, and not to the parts and components of those systems. Additionally, the Department proposes to clarify the existing threshold of “better than” means “less than” in the context of the control and to move that qualifying regulatory text to each of the subordinate paragraphs, alongside the values for the control criteria. Consistent with the Department's intent to regulate technologies in space consistent with how it regulates them on Earth, the Department proposes to add “or equivalent” to each orbital accuracy criterion to account for systems designed to provide the same performance while orbiting celestial bodies other than the Earth.

USML Category XV(e)(19) describes heat shields and heat sinks for spacecraft. The Department proposes to move this text to new paragraph (c)(4) and revise it to clarify the scope extends beyond traditional heat shields to more complex thermal protection systems and to better distinguish it from a related paragraph in USML Category IV. Further, the Department proposes to designate the entire entry “MT,” based on an assessment that all such articles designed for atmospheric re-entry can be deployed on MTCR Category I systems.

Regarding the similar paragraph describing spacecraft heat shields in Category IV, the Department requests public comment on any perceived benefits and drawbacks to consolidating these two heat shield paragraphs under Category XIII.

The Department proposes to relocate the spacecraft propulsion system paragraphs in USML Category XV from paragraphs (e)(11) and (12) to new paragraph (d), consistent with its intent to limit the scope of paragraph (e) to parts, components, accessories, and attachments. Doing so would make USML Category XV consistent with USML Category IV in providing a dedicated paragraph (d) for propulsion systems.

The Department proposes to relocate the nuclear and electric propulsion and power assemblies described in paragraph (e)(11)(i) through (iii) to paragraphs (d)(1) through (3) and modify the control text for simplicity and consistency with the current state of technology by replacing the reference to “space-based systems” with the more specific “propulsion systems” and “power systems.” Similar systems designed for applications other than spacecraft are excluded by the proposed text of paragraph (d).

The Department proposes to move ion propulsion systems described in paragraph (e)(11)(iv) to paragraph (d)(4), adjust upward the thrust and specific impulse criteria, and adjust upward the input power criterion, thereby removing from the USML certain systems the Department assesses no longer provide a critical military or intelligence advantage.

The Department proposes to move the non-nuclear propulsion assemblies described in paragraph (e)(12) to paragraph (d)(5) and to modify the control text for consistency in construction and clarity of the control text by replacing the term “thrusters” and the accompanying examples with to the term “non-nuclear propulsion systems,” with no change to the scope of the control.

The Department proposes two minor revisions to the text of USML Category XV(e). First, the Department proposes to remove the reference to equipment and systems, reflecting the proposed movement of those articles to a paragraph dedicated to systems and equipment. Second, the Department proposes to clarify the scope of paragraph (e) by limiting the parts, components, accessories, and attachments described therein to those that are for spacecraft.

The Department proposes to narrow the scope of USML Category XV(e)(1) by adding a minimum operational frequency, thereby removing from the USML certain antennas the Department assesses no longer provide a critical military or intelligence advantage. Additionally, the Department proposes minor modifications to paragraphs (e)(1)(i) through (iv) for clarity and consistency within the control text.

The Department proposes multiple modifications to USML Category XV(e)(2). First, the Department proposes to remove “space-qualified” because the Department assesses the underlying technology provides a critical military or intelligence advantage regardless of the environment in which the optics are used. Second, the Department proposes to modify the subordinate paragraphs to better describe optics that are not circular in nature by replacing the requirement for aperture dimension in paragraph (e)(2)(i) with an individual light collecting area threshold. Third, the Department proposes to replace paragraph (e)(2)(ii) with regulatory text that describes passive optics to complement the active optics described in paragraph (e)(2)(i). Additionally, the Department proposes to add paragraph (e)(2)(iii) to describe X-ray optics with performance capability criteria for effective collecting area and angular resolution.

USML Category XV(e)(3) describes certain space-qualified focal plane arrays. The Department proposes to remove the parts control for readout integrated circuits, as integrated circuits specially designed for defense articles are already described in USML Category XI(c). The Department also proposes to replace the “space-qualified” criterion with a specially designed criterion, for the same reasons it proposes adjusting similar criteria for other space-qualified articles described in Category XV.

The Department proposes minor modifications to USML Category XV(e)(6) for consistency in construction of the control text, with no intended change in the scope of control.

The Department proposes to remove and reserve USML Category XV(e)(7). Kinetic energy weapon systems and directed energy weapon systems are already described in Categories II and XVIII, respectively, and each includes a catch-all control. Moreover, the order of review at § 120.11 provides that those control paragraphs each supersede Category XV(e)(7) due to their SME designations. This proposed revision is also consistent with the Department's intent to regulate space systems the same way it regulates ground-based systems.

The Department proposes to remove certain gyroscopes, which no longer provide a critical military or intelligence advantage, from USML Category XV(e)(13) by adding additional performance criteria on the minimum angular momentum and torque provided by the gyroscopes.

As described elsewhere in this rule, the Department proposes to remove and reserve USML Category XV(e)(14) and to modify Category XI(c)(4) so all MMICs are described therein, with no change to the scope of controls on MMICs.

The Department proposes to modify USML Category XV(e)(15) by clarifying the scope and replacing the “space qualified” criterion with a “specially designed” criterion for the same reasons the Department proposes adjusting similar criteria for other space-qualified articles described in Category XV. The Department further proposes to clarify that paragraph (e)(15) describes oscillators specially designed for either spacecraft described in paragraph (a) or payloads described in paragraph (h)(17), with no change in the scope of the control.

The Department proposes to modify USML Category XV(e)(16) by removing the “space qualified” requirement. The Department assesses that the performance requirements currently specified provide a critical military or intelligence advantage regardless of the environment in which they are used.

The Department proposes to modify USML Category XV(e)(17) for simplicity and consistency of construction of the control text by replacing the current term “primary, secondary, or hosted payload,” which describes any payload in the complete set of all payloads, with the term “payload.”

In USML Category XV, note 1 to paragraph (e)(17) defines different types of payloads. The Department proposes to relocate these to § 121.0, thereby facilitating the deletion of the note, and to revise the definitions for clarity and consistency in construction of the control text. The first portion of note 2 to paragraph (e)(17) covers the integration of hosted payloads described in paragraph (e)(17) into spacecraft subject to the EAR by noting the export jurisdiction of the spacecraft does not change based on the hosted payload's incorporation, while the second portion of the note excludes certain payloads for the James Webb Space Telescope. The Department proposes to move the first portion of the note to the proposed exemption at § 126.8(d). The Department proposes to exclude the James Webb Space Telescope from the USML via the definition for “excluded NASA spacecraft” and the text of USML Category XV(a). Thus, the Department proposes to delete note 2 as well.

The Department proposes to modify USML Category XV(e)(18) for consistency in construction of the control text. Additionally, the Department proposes to expand the control by removing the “secondary or hosted” qualifier so all payloads funded by the Department of Defense (DoD), and specially designed parts and components therefor, are described therein.

The Department proposes to add a new paragraph at USML Category XV(e)(22) for technologies that facilitate the signature reduction of in-orbit spacecraft observations. The proposed regulatory text reflects the Department's intent to exclude technology used only to minimize light pollution, as seen from the ground.

The Department proposes to modify USML Category XV(f) by incorporating guidance currently provided in notes 1 through 3 to paragraph (f), which is not already included in the definition of technical data at § 120.33 or the proposed definition of “spacecraft housekeeping data and output at § 121.0.” The Department also proposes to delete the explanatory information regarding defense services found in the control text, as it assesses such information does not provide substantial guidance beyond the order of review provided at § 120.11 and the USML text, and similar redundancy is not provided in other USML Categories.

The Department is also considering, and requests public comment on, whether to retain the broad exclusion for future sensor outputs in its proposed definition of “spacecraft housekeeping data and output” at § 121.0. The Department assesses that such information may no longer need to be transmitted in unencrypted form due to advances in encryption technology size, weight, power consumption, performance capability, and cost and launch costs. Additionally, the Department updated § 120.54(a)(5) in a prior rulemaking to exclude the sending, taking, or storing of technical data from the definition of “export,” when secured using end-to-end encryption in certain circumstances. In considering whether and how to narrow that exclusion, the Department is also considering reasonable safe harbor provisions for systems that previously entered development, to minimize disruptions to existing projects.

As discussed earlier in this proposed rule, twenty-five parties filed comments requesting changes in response to 84 FR 8486 (RIN 1400-AE73), which were reviewed and considered by the Department, in consultation with other U.S. Government departments and agencies. A summary of the comments related to USML Category XV follows:

Seven commenting parties recommended USML Category XV be revised to clarify it does not describe either the Lunar Gateway or unmanned probes used in conjunction with the Lunar Gateway. As described in this rule, the Department proposes a licensing exemption in § 126.8 to support Lunar Gateway.

One commenting party recommended USML Category XV be revised to clarify it does not describe celestial landers. The Department's proposed spacecraft definition in § 121.0 provides related exclusions commensurate with the Department's intent to regulate articles based on technology employed, not intended location of use.

Two commenting parties recommended the itemization of NASA programs and their respective jurisdictions and classifications. The Department declines to do so, as NASA and the entities supporting NASA programs are responsible for their respective export compliance analyses. The Department further notes that programs, in and of themselves, are not subject to export controls; rather, the technologies involved in the programs are subject to export controls.

One commenting party recommended narrowing USML Category XV(a)(2) controls on spacecraft that detect certain moving objects by removing the term “space objects.” The Department declines to do so and proposes updates to clarify and reduce the scope of this control consistent with U.S. national security and foreign policy equities. Another commenting party recommended an exception for NASA programs that utilize technology described in USML Category XV(a)(2). Following coordination with NASA, the Department proposes a list of “excluded NASA spacecraft” in § 121.0 and a licensing exemption for certain NASA spacecraft at § 126.8(a). The Department intends these tools to evolve as NASA programs evolve.

One commenting party recommended the term “constellation” be deleted from USML Category XV(a)(4) to account for commercial communication satellites that might otherwise be described therein. The Department proposes modifications to clarify the scope of the control.

Seven commenting parties recommended changes to USML Category XV(a)(7), including using different measurement thresholds and excluding non-Earth-pointing optical telescopes. The Department proposes a change to the ground sample distance requirement for paragraph (a)(7)(ii) but assesses the technology described in paragraph (a)(7) is fundamentally the same regardless of a spacecraft's orientation. As the jurisdiction of technical data and services generally follow the jurisdiction of the defense article they are directly related to, the Department thus declines to exclude non-Earth-pointing telescopes. The Department proposes to facilitate certain space-related fundamental research using defense articles through licensing exemptions in § 126.8(b) and (c), and requests public comment on additional ways to consider facilitating activities related to space-based scientific telescopes while accounting for U.S. national security and foreign policy equities.

One commenting party recommended excluding space vehicles that incorporate USML Category XV(a)(8) technology and can land on celestial bodies. The Department declines to do so, consistent with its intent to regulate technology in space in the same manner as it regulates it on Earth.

One commenting party recommended an exception for commercial satellites otherwise described in USML Category XV(a)(10), asserting that collision-avoidance technology will likely be required for all spacecraft once large communication constellations are in orbit. The Department agrees, and in response proposes to delete paragraph (a)(10) in its entirety.

Three commenting parties recommended adding a note to USML Category XV(a)(11) to clarify propulsion systems for such spacecraft are described elsewhere in Category XV. The Department assesses this is unnecessary as the paragraph currently provides specific reference to propulsion systems described in Categories IV and XV.

One commenting party recommended the exclusion of crewed suborbital vehicles used for space tourism from USML Category XV(a)(11). The Department notes that doing so would also exclude the technical data and services directly related to the vehicles, and instead proposes a licensing exemption in § 126.8(c). This approach maintains the technology on the USML that provides a critical military or intelligence advantage, while exempting the licensing requirements for certain activities directly related to those technologies.

Seven commenting parties made recommendations regarding the inspection, surveillance, and servicing spacecraft described in USML Category XV(a)(12), including deletion of the control, defining the term “service,” excluding commercial spacecraft, and expanding the docking systems excluded by the related note. The Department proposes to revise the “inspection and surveillance” control in paragraph (a)(12), remove the “servicing” control, move the “docking” control into a new USML Category XV(a)(14). The Department further proposes to clarify the intended scope of paragraph (a)(14) by removing references to specific docking standards and focusing on the technology of interest, namely the ability to grapple or dock with another spacecraft using certain means.

One commenting party requested the Department resolve a perceived inconsistency between the notes to paragraphs (a) and (e)(17) of USML Category XV to make clear a spacecraft that incorporates a classified payload remains subject to the EAR unless the overall spacecraft is classified for national security purposes. Category XV(a)(13) describes spacecraft that “. . . contain classified . . . hardware.” Note 1 to paragraph (a) stipulates EAR spacecraft remain subject to the EAR “. . . even if defense articles described on the USML are incorporated therein, except when such incorporation results in a spacecraft described in this paragraph.” Thus, this text provides that incorporation of a classified payload would render any spacecraft a defense article. However, note 2 to paragraph (e)(17) provides that a hosted payload performing a function described in paragraph (a) does not alter the jurisdiction of the satellite it is incorporated into.

The Department understands the perceived discrepancy but notes that hosted payloads that are classified do not “perform a function” described in paragraph (a). Thus, the Department assesses there is no conflict between the two paragraphs. As the intent of note 2 to paragraph (e)(17) is to facilitate hosted DoD payloads on spacecraft otherwise subject to the EAR, the Department proposes to modify paragraph (a)(13) to exclude spacecraft described solely because of the inclusion of a hosted payload that is classified by DoD for national security reasons.

Three commenting parties recommended two specific changes to USML Category XV(b): the exclusion of superficial access to training simulators and that the text “space vehicles or other vehicles” be added to the note to paragraph (b). The Department declines to add the term “superficial,” as it could create ambiguity and proposes to delete the note to paragraph (b), as the guidance it contains is already addressed through the “specially designed” guidance at § 120.41 and the “order of review” guidance at § 120.11.

One commenting party requested clarification of the controls on optical and radar systems within the context of their use in either Earth-based or space-based platforms. In response, the Department proposes to move USML Category XV systems and equipment to paragraph (c) and adjust the text of paragraphs (c) and (e) to require articles to be for spacecraft. The Department further notes that certain radar and optical system controls are also located in USML Categories XI and XII, respectively.

Three commenting parties recommended either removing USML Category XV(e)(1) or updating the technical thresholds to remove antennas used for commercial applications. The Department proposes changes to the performance parameters listed in paragraph (e)(1) and notes the antennas described on the USML are critical elements for spacecraft described in Category XV and provide a critical military or intelligence advantage. However, the Department requests public comment on any civil applications it should consider for inclusion in its proposed exemption at § 126.8(b).

One commenting party recommended revising USML Category XV(e)(2) to both avoid controlling optics based solely on aperture size and to exclude non-Earth observing instruments. The Department assesses aperture size remains an important criterion and proposes changes to paragraph (e)(2) to remove references to specific geometries, as some apertures are not circular. Additionally, the Department proposes to modify paragraph (a)(7), as detailed in the preamble of this rule under the heading “Spacecraft with Remote Sensing Capabilities.” Since paragraph (e)(2) describes articles specially designed for satellites described in paragraph (a), the proposed changes to paragraph (a)(7) are directly applicable.

For USML Category XV(e)(5), one commenting party recommended providing control parameters for active vibration suppression systems, distinguishing between vibration suppression and image stabilization, and clarifying that commercial systems that subsequently become space-qualified are not subject to the ITAR. The Department declines to narrow this paragraph, or to draw a distinction between vibration suppression and image stabilization. Also, note 3 to paragraph (e) notes that commercial systems that are subsequently space-qualified are subject to the ITAR. Separately, the Department proposes to eliminate the criterion that active vibration suppression systems be space-qualified for reasons discussed elsewhere in this rule.

Six commenting parties recommended electric propulsion, as described in USML Category XV(e)(11), be either removed from the USML or revised to include a higher thrust threshold. The Department proposes to adjust upward the thrust and specific impulse criteria (from 300 to 400 milli-Newtons, and from 1,500 to 1,900 seconds, respectively), and to remove the input power criterion, thereby removing from the USML certain systems the Department assesses no longer provide a critical military or intelligence advantage.

Four commenting parties recommended removal of bi-propellant and monopropellant thrusters in USML Category XV(e)(12) or, at a minimum, a distinction between thrusters used for spacecraft and thrusters used for rockets. The Department declines to remove thrusters from the USML, as they continue to provide a critical military or intelligence advantage and proposes updates to the text of Categories IV and XV to clearly delineate between those propulsion systems for use with rockets and those for spacecraft.

Four commenting parties recommended removing star trackers from USML Category XV(e)(16) or, at a minimum, updating the control with performance parameters based on technology advancements. The Department declines to remove star trackers from the USML as they continue to provide a critical military or intelligence advantage and welcomes public comments substantiating a recommended change in performance parameters.

One commenting party recommended removing detachable equipment described in USML Category XV(e)(20), asserting such technologies are an important element of human space exploration. The Department acknowledges the significance of this technology to both human space exploration and to sectors not related to human spaceflight. The Department proposes to address this concern via the combination of definitions, revisions, exclusions, and licensing exemptions proposed in this rule.

Two commenting parties recommended adding a note to USML Category XV(f) to exclude from “defense services” the launch of a foreign payload for scientific or commercial research on a space launch vehicle, spaceplane, or spacecraft. The Department notes the national origin of an article is immaterial to the definition of defense services and that the launch provider is not best positioned to determine the scientific, commercial, or military nature of a foreign payload. However, the Department proposes two exemptions supporting fundamental research at § 126.8(b) and (c).

Four commenting parties recommended excluding from USML Category XV(f) information regarding general foreign spaceport requirements related to hangar size and building requirements, apron and runway width and length, ground support equipment, vehicle processing and fueling, nitrous oxide storage and loading, chemical handling and storage, and other basic facility-related information. The Department assesses the scope of the request is too broad for a discrete exclusion from the USML. Instead, each of these articles is best assessed through the order of review at § 120.11 and the technical data definition at § 120.33.

Two commenting parties recommended excluding foreign space flight participant activities related to scientific or commercial research or foreign payload management or observation from USML Category XV(f). The Department assesses the underlying concern is adequately addressed through the order of review at § 120.11 and the proposed exclusions for human spaceflight preparations in this rule.

Two commenting parties recommended the exclusion of certain mission analyses from USML Category XV(f), such as load analyses and three-body trajectory planning tools. The Department assesses the order of review at § 120.11 in combination with the regulatory text of the USML, addresses this comment.

One commenting party recommended USML Category XV(f) be amended to remove Defense Technology Security Administration monitoring conditions for a foreign party's integration of an EAR-controlled satellite to a launch vehicle using a standard deployer or separation mechanism, where no U.S. person is present during the integration. The Department notes no such monitoring conditions exist on the USML. The referenced monitoring conditions, required under Public Law 105-261, are outside the scope of this rulemaking.

One commenting party recommended the expansion of note 1 to USML Category XV(f) to exclude technical data directly related to articles integrated into a satellite or spacecraft instead of just satellites. The Department proposes to delete note 1 to paragraph (f) as described in this rule.

Two commenting parties recommended excluding from the ITAR both the payloads brought into the cabin of a crewed space vehicle and the monitoring and managing of those payloads. The Department assesses the order of review at § 120.41 adequately addresses most of the scenarios associated with this comment. Furthermore, the Department proposes to define “spacecraft” in § 121.0 which, in its current proposed form, excludes “any article designed to operate exclusively inside a spacecraft.” Moreover, unless the crewed spacecraft is described in paragraph (a), it also would not be a defense article described in Category XV. As a result, the Department assesses a payload transported in the cabin of a crewed space vehicle would not likely be described on the USML as a discrete spacecraft or as a payload associated with the spacecraft. However, if the payload in the cabin were otherwise described on the USML, it would remain a defense article.

One commenting party recommended expanding note 3 to paragraph (f) of USML Category XV to clarify satellite imagery is neither subject to the ITAR or EAR when the data is collected from a NOAA-licensed Earth imaging satellite. The Department declines to do so and assesses the order of review at § 120.11 and technical data definition at § 120.33, in combination with the regulatory text of the USML, address this comment.

Six commenting parties recommended detailed definitions for space launch vehicles, rockets, and missiles, as well as a distinction between space vehicles and space launch vehicles. The Department has proposed a detailed definition of spacecraft. However, the Department declines to define rockets, space launch vehicles, and missiles within the ITAR, and notes that common dictionary definitions of these terms exist.

Four commenting parties recommended a note be added to Categories IV and XV to clarify crewed space vehicles are not subject to MT control. The Department declines to do so. Any crewed spacecraft on the USML would likely be described in paragraph (a) of USML Category XV; however, none of the subordinate paragraphs of (a) are designated as MT or proposed for designation as MT by this rule. As such, the Department assesses adding an exclusionary note is unnecessary.

One commenting party recommended excluding crewed or crew-tended systems from USML Category XV. While certain crewed platforms are excluded within the regulation and the proposals in this rule, the Department assesses the presence of crew members, by itself, is not a useful criterion for determining whether a spacecraft warrants designation as a defense article as provided at § 120.3.

One commenting party recommended excluding defense articles and defense services described by USML Category XV but fabricated only for fundamental research purposes. The Department notes an exclusion for fundamental research is currently provided in § 120.34(a)(8). However, that exclusion from the technical data definition is limited to certain basic and applied research conducted at specific institutions in the United States. Extending those provisions to the design and development of a defense article would be incompatible with both the current exclusion and the definition of defense service at § 120.32. However, the Department proposes to exempt certain suborbital and on-orbit research in § 126.8, and requests public comment on the perceived risks and benefits of doing so.

One commenting party recommended an exemption allowing DDTC registered persons to ship defense articles from the United States to international waters. The Department notes this is an export under the ITAR, and a broad exemption of this nature would present a proliferation risk. The Department asks for public comment on any specific, narrowly-tailored scenarios for the Department to consider creating an exemption for, that would provide significant benefit to the U.S. space industry.

One commenting party recommended an exemption for the transfer of technical data and defense services that occur outside the atmosphere. The Department declines to do so, as a broad exemption of this nature would present a proliferation risk.

Two commenting parties recommended some or all technology and information related to commercial satellite servicing be removed from the USML. The Department declines to do so and assesses the order of review at § 120.11 and technical data definition at § 120.33, in combination with the regulatory text of the USML, address this comment.

One commenting party asserted industry did not see a cost benefit to prior export control reforms and future rulemaking efforts should minimize overlapping authorizations for a given program. The Department welcomes specific recommendations to address this perception, and notes multiple agencies have jurisdiction over separate aspects of space programs, given their mandates and delegated authorities.

Two commenting parties recommended changes to the MTCR and MT designations within the USML. Specifically, they recommended updating the MTCR annex, removing “specially designed” and other non-technical modifiers from MT descriptions and adding specific references to the MTCR annex. The Department declines to do so and notes the USML is not determinative in identifying whether a specific article is subject to the MTCR, and that a version of the MTCR Annex was previously removed from the ITAR. MT designation on the USML support the U.S. implementation of its commitments under the MTCR.

Two commenting parties recommended the definition of “export” at § 120.50 be revised to exclude encrypted data. The Department previously addressed this issue through § 120.54(a)(5), which excludes the sending, taking, or storing of technical data from the definition of “export” at § 120.50 when secured using end-to-end encryption in certain circumstances. “End-to-end encryption” is defined at § 120.54(b)(1), and further information on this topic can be found throughout § 120.54, which should be consulted to prevent unauthorized exports of technical data.

The Department proposes to exempt certain articles that continue to warrant description on the USML from ITAR licensing requirements in certain circumstances. The Department outlines these exemptions in the proposed additions to part 126. The proposed changes, while intended to be self-explanatory, were discussed in detail at the beginning of this rule. The Department requests comment on whether the provisions are clear or whether they might benefit from further explanation. The practical effect of these proposed changes will be their continued regulation as defense articles, along with directly related technical data and defense services, while allowing for increased coordination and collaboration without a license for certain pre-approved activities.

As part of the Department's USML modernization efforts, the USML classification for some defense articles is changing, which will eventually require exporters to update their records to reflect the new classification. Consistent with prior revisions of USML categories, additional guidance that address specific licensing scenarios will be provided on DDTC's website.

Consistent with its ongoing USML review process, the Department is requesting public comments on the revisions described in this rulemaking. In particular, the Department is requesting comment on ways to streamline the descriptions and criteria on the USML for these items, so that it may continue to protect U.S. national security and foreign policy interests while benefitting U.S. industry and international partners. Describing items more precisely could lower administrative burdens and regulatory compliance costs and present an opportunity for increased exports, thus bolstering the U.S. commercial sector and industrial base.

The Department encourages the public to provide comments directly related to this proposed rule and responsive to the questions presented. To facilitate timely review and assessment, comments should be provided in a concise sentence or paragraph, followed by supporting explanatory paragraphs and examples, with each distinct comment treated separately (as opposed to multiple comments in one paragraph or section). In addition to questions presented elsewhere in the preamble, the Department requests comments focused on the following questions:

1. Are there articles, services, or technical data closely related to these revisions that warrant ITAR control, but are currently either not described on the USML, or not described with sufficient clarity? If so, please provide examples and a concise explanation.

2. Is the technology required to refuel a space launch vehicle in orbit distinguishable from the technology required to refuel a spacecraft? If so, what characteristics, functions, or performance criteria may differentiate the two technologies?

3. Are there specific articles, services, or technical data described on the USML following these revisions that are also described by another existing paragraph on the USML? If so, please identify the relevant paragraph(s), and provide a concise explanation.

4. Are there specific articles, services, or technical data described on the USML following these revisions that are, or have previously been, in normal commercial use, that were previously transitioned to another agency's jurisdiction, or that were previously determined not to be subject to the ITAR via a Commodity Jurisdiction determination? If so, please include supporting documentation.

5. Are there specific articles, services, or technical data described on the USML following these revisions for which civil use is proposed, intended, or anticipated in the next five years? Please include supporting documentation and a point of contact familiar with the details.

6. Are there specific functions, performance levels, or characteristics related to these revisions that could better:

a. Distinguish between the articles that do, and do not, warrant ITAR control; or

b. Delineate the criteria for control, in lieu of using the defined term `specially designed?'

7. Are these revisions unclear in any way, or can they be more concisely stated? For example, please identify any:

a. Terms that you find ambiguous in definition or context; or

b. Constructions or regulatory text that varies from existing USML paragraphs.

8. Are there other technical issues directly related to these paragraphs which you believe the Department should address in future rulemaking?

9. What technical parameters should the Department consider for differentiating between star trackers for civil use and star trackers that provide a critical military or intelligence advantage?

10. Is there a critical technological difference between thermal protection systems designed for entry of Earth's atmosphere as opposed to entry of another planet's atmosphere?

11. What benefits, drawbacks, and other considerations should the Department take into account in considering whether and how to consolidate the two thermal protection system paragraphs in Categories IV and XV into one paragraph in USML Category XIII?

12. Are there civil spacecraft that would be described by the newly proposed Category XV(a)(16)? If so, are there technical criteria that may differentiate them from spacecraft the Department intends to describe, that rapidly deploy multiple spacecraft into multiple different orbits?

13. Are there any specific examples in which including “air-dropped” in the proposed “bomb” definition appears to release a military munition from the USML?

14. How could the proposed definition of range for USML Category IV be adjusted to apply more broadly across the USML while remaining scope neutral for Category IV?

15. What other means should the Department consider to differentiates surveillance spacecraft from space situational awareness, cooperative docking, and orbital debris mitigation spacecraft?

16. Is there potential overlap between the proposed seeker systems control in Category IV and other USML control paragraphs, such as USML Category IV(e)(1)(ii) or XII(a)(6), (c)(3) or (4), or (d).

17. Are additional performance requirements ( e.g., delta-v or propellant volume) needed in the regulatory text for Category XV(a)(16) to avoid controlling commercial satellites that don't provide a critical military or intelligence advantage?

Include the Regulatory Information Number (RIN) (1400-AE73) or agency name and docket number for all submissions related to this proposed rule. Submission of comments to www.regulations.gov is preferred. Commenters are cautioned not to include proprietary, export-controlled, or other sensitive information that they are not comfortable making public in their comments. If such information would provide useful insight to the comment, (1) assemble that information in a separate document with proprietary markings; (2) include “Proprietary supplement on file with: [provide POC]” as the first line in the body of the email submission; (3) submit the public portion of the comment via email; and (4) call DDTC at (202) 663-1282 to coordinate submission of the proprietary supplement.

This rulemaking is exempt from the rulemaking requirements of section 553 of the Administrative Procedure Act (APA) pursuant to section 553(a)(1) as a military or foreign affairs function of the United States. Nevertheless, and without prejudice to this determination, the Department has elected to seek public comment on this proposed rule.

Since this proposed rule is exempt from the notice-and-comment rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

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.

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, as amended by Executive Orders 13563 and 14094, direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department specifically welcomes public comment on the impact, including costs and benefits, of this proposed rule. After review by the Office of Management and Budget (OMB), this proposed rule has been deemed a significant regulatory action.

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.

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.

This rulemaking does not impose or revise any information collections subject to 44 U.S.C. chapter 35.

Accordingly, for the reasons set forth above and under the authority of 22 U.S.C. 2778, the Department of State proposes to amend title 22, chapter I, subchapter M, parts 120, 121, and 126 as follows:

The revisions and addition read as follows:

DoD, GSA, and NASA are proposing to revise the list of domestically nonavailable articles at FAR 25.104(a) and take other actions to limit the use of regulatory nonavailability waivers consistent with section 9 of Executive Order (E.O.) 14005, Ensuring the Future Is Made in All of America by All of America's Workers (86 FR 7475, January 28, 2021). E.O. 14005 establishes policies to maximize the Federal Government's use of goods, products, and materials produced in the United States to help American businesses compete in strategic industries and ensure America's workers thrive. A key pillar of the E.O. involves reducing the need for waivers to the Buy American statute (41 U.S.C. chapter 83), which generally requires that only domestically mined, produced, or manufactured articles be procured for public use in the United States. The Buy American statute provides an exception for articles not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.

Prior to issuance of E.O. 14005, FAR 25.103(b)(2)(i) authorized the head of the contracting activity to make an individual determination of nonavailability without having to publicly share the rationale for the determination or the nature of the market research conducted. The agency simply reported to the Federal Procurement Data System if a nonavailability waiver was used on a particular acquisition. In addition, a written determination of nonavailability was not required if the acquisition was conducted using full and open competition, synopsized, and no offer for a domestic source was received. This process made it challenging for an existing Government contractor or potential new entrant to become aware if its capabilities were being overlooked. Further, if the contracting officer considered that the nonavailability of an article was likely to affect future acquisitions over a period of time, FAR 25.103(b)(2)(ii) authorized the contracting officer to submit a copy of the determination and supporting documentation to the appropriate regulatory council identified in FAR 1.201-1 ( i.e., the Defense Acquisition Regulations Council or the Civilian Agency Acquisition Council), in accordance with agency procedures, to consider inclusion on the list of nonavailable articles at FAR 25.104(a). Inclusion of the article on the nonavailability list reduces the level of public outreach even further in light of the presumption of nonavailability.

E.O. 14005 makes a number of changes to tighten the waiver process and strengthen efforts to increase reliance on domestic sourcing. First, with respect to individual waivers (see FAR 25.103(b)(2)(i)), the E.O. updates, centralizes, and provides transparency to the process for their issuance. Section 4 of the E.O. established the Made in America Office (MIAO) in the Office of Management and Budget (OMB) to manage a centralized process for reviewing proposed agency nonavailability waivers for individual and multiple procurements. Agencies can no longer simply rely on the absence of domestic offers in a competition to justify a nonavailability waiver. OMB Memorandum M-21-26, Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws, and guidance issued jointly by MIAO and the Office of Federal Procurement Policy (OFPP), Improving the Transparency of Made in America Waivers (October 26, 2021), provided direction to agencies for the development, coordination, and posting of waivers. In particular, the guidance instructs agencies to describe steps the agency has taken to understand market capabilities and capacity to help potential interested sources and supply chain experts identify where opportunities might have been missed and could be pursued when future needs arise. The guidance provides that waivers will cover individual transactions but allows agencies to pursue multi-procurement waivers for repetitive needs where market research indicates that domestic capability may be lacking for a period of time, provided the waiver is time limited. The guidance states that agencies should continually study the market and reflect recent analysis in their proposed waivers and not assume that there is no qualifying product simply because one was not found in a prior year. The guidance further directs that proposed waivers must be posted on the MadeinAmerica.gov website so that interested sellers can have a better understanding of where agencies are having trouble finding U.S.-made products. The guidance explains that greater transparency should lead to a more responsive supplier base and help agencies build diversity by pulling new entrants into the Federal marketplace. DoD, GSA, and NASA will address regulatory changes to FAR 25.103 through a future rulemaking.

Second, section 9 of E.O. 14005 creates a new oversight mechanism to more carefully control the identification of articles eligible for inclusion at FAR 25.104(a) (“regulatory waivers”, see FAR 25.103(b)(1)(i)). Section 9 requires the Director of OMB, through the Administrator of OFPP, to consult with the Secretary of Commerce and the Director of MIAO regarding any changes proposed by DoD, GSA, and NASA to the list of nonavailable articles identified at FAR 25.104(a). Section 9 of E.O. 14005 requires paying particular attention to economic analyses of relevant markets and available market research, to determine whether there is a reasonable basis to conclude that the article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.

DoD, GSA, and NASA are issuing this proposed rule to implement section 9 and reduce reliance on regulatory waivers that can disincentivize domestic sourcing by signaling a lack of confidence in domestic manufacturers' capacity to meet the Federal Government's current demand or grow capacity to meet future demand. A general presumption of nonavailability discourages the type of ongoing, proactive engagement with industry to understand supply chains and market trends that is vital to strengthening domestic manufacturing.

DoD, GSA, and NASA, in partnership with MIAO and OFPP, have conducted a proactive review of each of the 109 articles on the existing nonavailable articles list. The current list of articles identified in FAR 25.104(a) is a wide-ranging mix of natural resources, compounds, materials, and other items of supply. Although some articles on the list have no known domestic production sources ( e.g., quartz crystals or vanilla beans), many of the articles are known to have some domestic production sources, but those sources have been determined in the past to be inadequate to meet U.S. demand. Examples of such articles range from bismuth (not more than 10 percent of U.S. Government and nongovernment demand) to spices and herbs, in bulk, (not more than 40 percent of U.S. Government and nongovernment demand). For additional discussion regarding the basis for removal of articles from the list at FAR 25.104(a), see section IV. of this proposed rule preamble.

The following summarizes the proposed changes to the FAR:

DoD, GSA, and NASA are proposing to remove numerous articles from the nonavailability list as a general reset of the list to remove a presumption of nonavailability as a means to encourage further market research and send a signal to industry. This may mean that contracting officers will do more market research on domestic availability of the removed products. It also may encourage domestic producers to take an interest in the articles removed from the nonavailability list. Proposed removals include the following articles: acetylene, black; agar, bulk; anise; asbestos, amosite, chrysotile, and crocidolite; bauxite; beef, corned, canned; beef extract; bephenium hydroxynaphthoate; cadmium, ores and flue dust; calcium cyanamide; castor beans and castor oil; chalk, English; chicle; cinchona bark; cobalt, in cathodes, rondelles, or other primary ore and metal forms; colchicine alkaloid, raw; copra; crane rail (85-pound per foot); cryolite, natural; dammar gum; diamonds, industrial, stones and abrasives; emetine, bulk; ergot, crude; erythrityl tetranitrate; goat hair canvas; goat and kidskins; graphite, natural, crystalline, crucible grade; hand file sets (Swiss pattern); handsewing needles; ipecac, root; iodine, crude; kauri gum; lac; lavender oil; leather, sheepskin, hair type; manganese; menthol, natural bulk; mica; microprocessor chips (brought onto a Government construction site as separate units for incorporation into building systems during construction or repair and alteration of real property); nickel, primary, in ingots, pigs, shots, cathodes, or similar forms; nickel oxide and nickel salts; nux vomica, crude; oiticica oil; olive oil; olives (green), pitted or unpitted, or stuffed, in bulk; opium, crude; petroleum, crude oil, unfinished oils, and finished products; pine needle oil; platinum and related group metals, refined, as sponge, powder, ingots, or cast bars; pyrethrum flowers; quebracho; quinidine; quinine; rabbit fur felt; radium salts, source and special nuclear materials; rosettes; santonin, crude; secretin; shellac; sugars, raw; talc, block, steatite; tantalum; thread, metallic (gold); thyme oil; triprolidine hydrochloride; tungsten; wax, carnauba; wire glass; woods, logs, veneer, and lumber of the following species: Alaskan yellow cedar, angelique, balsa, ekki, greenheart, lignum vitae, mahogany, and teak; yarn, 50 Denier rayon; and yeast, active dry and instant active dry.

There is no substantial evidence that there is a major increase in the availability of the articles being deleted, but there is evidence that there is capacity for many of the articles being removed. Review of several publications such as periodicals from the United States Geological Survey (USGS) shows that for many of these articles there is some degree of domestic capacity. For example, according to the USGS, the United States produces 43,000 metric tons of mica per year, and the Economic Research Service of the U.S. Department of Agriculture reports that the United States is one of the world's largest producers of raw sugar. For additional discussion regarding the basis for removal of these articles from the list, see section IV. of this proposed rule preamble.

The rule proposes adding FAR language to implement the requirements of section 9 of E.O. 14005 requiring consultation with the Secretary of Commerce and the MIAO Director prior to any changes to the list at FAR 25.104(a). The proposed rule retains the current standard for inclusion on the list, which is that domestic sources can only meet 50 percent or less of total U.S. Government and nongovernment demand. See FAR 25.103(b)(1)(i). It also retains the requirement that the procuring agency is responsible for conducting market research appropriate to the circumstances, including seeking domestic sources before acquisition of an article on the list. This applies to acquisition of an article as either an end product or a significant component (valued at more than 50 percent of the value of all the components).

Finally, the class determination for articles on the list will continue to be deemed inapplicable if the contracting officer learns at any time before the time designated for receipt of bids in sealed bidding or final offers in negotiated procurements that an article on the list is available domestically in sufficient and reasonably available commercial quantities of a satisfactory quality to meet the requirements of the solicitation. See FAR 25.103(b)(1)(iii).

This rule does not create new solicitation provisions or contract clauses or impact any existing provisions or clauses.

The proposed rule would substantially reduce the number of articles on the list at FAR 25.104(a) that are presumed by regulation to be nonavailable in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. Removal of an article from the list means that if such articles are acquired by the agency in the future, the agency may no longer presume the article is not available domestically. Instead, the agency must submit a proposed waiver to MIAO explaining the basis for concluding the article is not available domestically, including the market research conducted to find domestic sources, and post the proposed waiver on MadeinAmerica.gov. Over time, decreased reliance on regulatory waivers and greater use of individual waivers that are reviewed centrally and posted publicly should contribute to a more dynamic, diverse, and competitive domestic industrial base. As a general matter, regulatory waivers disincentivize domestic sourcing by signaling a lack of confidence in its capacity to meet the Federal Government's current demand or grow capacity to meet future demand. Use of individualized waivers in lieu of regulatory waivers that are coordinated centrally and posted for public awareness should encourage the type of ongoing, proactive engagement with industry to understand supply chains and market trends that is vital to strengthening domestic manufacturing and reducing the need for waivers over time. As explained in OMB Memorandum M-21-26 and the joint memorandum MIAO and OFPP issued on October 26, 2021, there are a number of strategic advantages to central review and posting of waivers, including: the ability for MIAO and agencies to share market research information and insight that might lead to the identification of domestic sources in future acquisitions; the ability for agencies to send a clear demand signal to industry of the Federal Government's desire to reduce reliance on foreign-made items; the ability for potential sources to see opportunities for new domestic providers, and for existing domestic providers that may have been overlooked to see if agencies may have missed market capabilities in their market research; and the opportunity for MIAO to bring greater consistency in use of waivers across the Government through its feedback to agencies. The heightened transparency provided on individual waivers can be especially beneficial in furthering both contractor resilience by reducing transaction costs for potential sellers and diversity by lowering a barrier to entry for small businesses and new entrants to the Federal market that may struggle to find work opportunities.

There are 109 articles currently subject to regulatory waiver. In the past, DoD, GSA, and NASA have largely relied on public comment to identify articles that should be removed from the list. For example, an advance notice of proposed rulemaking was issued at 85 FR 28596 on May 13, 2020, seeking information that would assist in identifying domestic capabilities and for evaluating whether some articles on the list at FAR 25.104(a) should be removed because they are now mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. While public input and insight remains an important part of the review process, DoD, GSA, and NASA conducted a proactive review of each article, in consultation with MIAO and OFPP, to determine if the presumption of nonavailability remains appropriate. This review will help to ensure the list more accurately reflects market conditions and to avoid overlooking domestic capabilities.

Articles were identified as suitable for removal from the list if one or more of the following criteria were met: (i) there is a demonstrated domestic capacity to source the article; (ii) more limited duration waivers with centralized management would provide important insight into Government supply chains, including critical supply chains with national or economic security implications; (iii) there is limited Government demand for the article; or (iv) the articles are believed to be obsolete.

Articles proposed for removal from the list based on an expectation of sufficient and reasonably available commercial quantities include petroleum, crude oil, unfinished oils, and finished products, as the domestic crude oil capacity of the United States makes it the world's largest producer of crude oil according to the U.S. Energy Information Administration. Similarly, according to the USGS' Mineral Commodity Summary for Cadmium in January 2024, the United States has demonstrated a domestic capacity of cadmium that has allowed it to become a net exporter of this metal. Talc, block, steatite is an additional article for which, according to Mineral Commodities Summaries for 2024, the United States domestic capacity was capable of meeting domestic demand. The report indicated that the United States' net import reliance for talc as a percentage of apparent consumption was six percent in 2023. Other articles expected to meet this criterion include: beef, corned, canned; beef extract; leather, sheepskin, hair type; sugars, raw; and yeast, active dry and instant active dry.

Articles proposed for removal from the list based on the conclusion that more limited duration waivers with centralized management would provide important insight into Government supply chains include: bauxite; cobalt, in cathodes, rondelles, or other primary ore and metal forms; diamonds, industrial, stones and abrasives; goat hair canvas; goat and kidskins; graphite, natural, crystalline, crucible grade; iodine, crude; manganese; mica; microprocessor chips (brought onto a Government construction site as separate units for incorporation into building systems during construction or repair and alteration of real property); nickel, primary, in ingots, pigs, shots, cathodes, or similar forms, nickel oxide and nickel salts; olive oil; olives (green), pitted or unpitted, or stuffed, in bulk; platinum and related group metals, refined, as sponge, powder, ingots, or cast bars; tantalum; and tungsten. Many of these articles fall within critical supply chains that were prioritized for strengthening under E.O. 14017, America's Supply Chains, for reasons of national or economic security.

Articles proposed for removal from the list because there is limited Government demand for the article include: acetylene, black; agar, bulk; chalk, English; anise; bephenium hydroxynaphthoate; calcium cyanamide; castor beans and castor oil; chicle; cinchona bark; colchicine alkaloid, raw; copra; crane rail (85-pound per foot); cryolite, natural; dammar gum; emetine, bulk; ergot, crude; erythrityl tetranitrate; hand file sets (Swiss pattern); handsewing needles; lac; lavender oil; menthol, natural bulk; nux vomica, crude; oiticica oil; opium, crude; pine needle oil; pyrethrum flowers; quebracho; quinidine; quinine; rabbit fur felt; radium salts, source and special nuclear materials; rosettes; secretin; shellac; thread, metallic (gold); thyme oil; triprolidine hydrochloride; wax, carnauba; wire glass; woods, logs, veneer, and lumber of the following species: Alaskan yellow cedar, angelique, balsa, ekki, greenheart, lignum vitae, mahogany, and teak; and yarn, 50 Denier rayon.

Articles proposed for removal from the list because they are believed to be obsolete include asbestos, amosite, chrysotile, and crocidolite; ipecac, root; kauri gum; and santonin, crude. The removal of asbestos from the list meets the obsolescence criteria because of the Environmental Protection Agency's ban on ongoing uses of asbestos.

In total, DoD, GSA, and NASA are proposing to remove 70 articles from the list at FAR 25.104(a). This would reduce the existing list by more than half.

The proposed rule provides these benefits at minimal cost to Federal contractors or the Government. There should be no cost to Federal contractors from the proposed reduction of articles on the regulatory waiver list, as the transition to individual waivers should increase transparency and reduce transaction costs associated with finding domestic opportunities.

The proposed rule is expected to create only minimal additional procurement costs to the Government due to the low amount of spend and the low number of contract actions for the articles removed from the list. In fiscal year (FY) 2023, the Federal contract spend for the articles removed from the list was estimated to be under $150 million, which represents less than 0.02 percent of the total Federal contract spend for the same year. In FY 2023, the number of Federal contract actions for the articles removed from the list was estimated to be under 10,000 Federal contract actions, which represents less than 0.02 percent of the total number of Federal contract actions for the same year. This data set excludes petroleum, crude oil, unfinished oils, and finished products. For the under 10,000 Federal contract actions estimated to be potentially impacted by the articles' removal from the list, agencies will still be able to use preexisting procedures to seek an individual waiver from MIAO. Additionally, for articles for which market research shows domestic capability may not be sufficient for a period of time and the agency has a need for repetitive purchases under an indefinite-delivery contract, the agency may pursue a time-bound multi-procurement waiver.

The potential procurement costs to the Government are reduced further when considering the nature of some of the articles to be removed. The articles removed include many items that are no longer procured in significant amounts or are obsolete. It is estimated that approximately half of the articles on the list have not been procured in significant quantities in FY 2021 through FY 2023, are obsolete or greatly reduced in their use ( e.g., santonin), or are subject to regulatory changes since they were added to the nonavailable articles list ( e.g., asbestos).

Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563 direct agencies to assess the 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, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

DoD, GSA, and NASA do not expect this proposed rule, if finalized, to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, because the rule is not implementing any requirements with which small entities must comply. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows:

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2020-009), in correspondence.

This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Therefore, DoD, GSA, and NASA propose amending 48 CFR part 25 as set forth below:

On July 25, 2024, we published a proposed rule to list 5 species of giant clams as endangered and 5 species of giant clams as threatened under the ESA and to issue protective regulations for the five proposed threatened species under section 4(d) of the ESA (89 FR 60498). In that notification, we also announced the availability of a draft EA and IRFA associated with the proposed ESA section 4(d) regulation for Tridacna crocea, T. maxima, T. noae, and T. squamosa. We solicited comments on the proposed rule, draft EA, and IRFA during a 90-day period, which is scheduled to end on October 23, 2024.

On August 30, 2024, we received a formal request from the Territorial governments of American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands to extend the public comment period by 120 days in order to provide additional time to thoroughly review and analyze the proposed rule, associated reports, and supporting datasets and to engage with key stakeholders. We received additional requests from the Western Pacific Regional Fishery Management Council on September 27, 2024 and from U.S. Rep. James Moylan on October 4, 2023 similarly asking for a 120-day extension to allow more time for community members to provide informed comments in response to the proposed rule.

In our evaluation of these requests, we considered several factors that may justify such a lengthy extension to the public comment period. We considered that the proposed rule includes extinction risk analyses and associated listing determinations for seven different species of giant clams. We also considered that the proposed rule includes the proposed listing of four species of giant clams on the basis of similarity of appearance. Importantly, three of these four species had been included in the initial petition for listing, but we concluded that the petition did not present substantial scientific or commercial information indicating that listing these species under the ESA may be warranted (82 FR 28946, June 26, 2017). Thus, the subsequent proposal to list these species on the basis of their similarity of appearance may reasonably warrant additional time for public review and comment. Lastly, we considered that the proposed rule includes two separate 4(d) regulations, one associated with the species proposed to be listed as threatened based on extinction risk ( Hippopus hippopus ) and the other associated with the four species proposed to be listed as threatened based on similarity of appearance ( T. crocea, T. maxima, T. noae, and T. squamosa ).

Given the aforementioned factors contributing to the complexity of the proposed rule, we conclude that there is good cause, consistent with 50 CFR 424.16(c)(2), to extend the public comment period by an additional 120 days, which will allow sufficient time for responders to submit comments without significantly delaying finalization of the proposed rule. We are, therefore, extending the close of the public comment period from October 23, 2024, to February 19, 2025.

The Pacific Coast groundfish fishery in the U.S. exclusive economic zone (EEZ) seaward of Washington, Oregon, and California is managed under the Groundfish FMP. The Council developed the Groundfish FMP pursuant to the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. The Secretary of Commerce approved the Groundfish FMP and implemented the provisions of the plan at 50 CFR part 660, subparts C through G. Species managed under the Groundfish FMP include more than 90 species of groundfish, flatfish, rockfish, sharks, and skates.

This proposed rule (also referred to interchangeably as “this proposed action”) would implement regulations for amendment 34 to the Groundfish FMP. Consistent with Magnuson-Stevens Act section 303(c)(1), the Council deemed the proposed regulations consistent with and necessary to implement amendment 34 in an October 1, 2024 letter from Council Chairman, Merrick Burden, to Regional Administrator, Jennifer Quan. The Notice of Availability for amendment 34 that published on October 9, 2024 (89 FR 81878) describes the details of the Groundfish FMP changes established through this proposed action. NMFS is concurrently seeking comment on the Council's proposed measures in amendment 34.

The Council met over 2023 and 2024 to consider developing fisheries closures for deep-sea coral restoration and research in response to a request from the ONMS. ONMS conducts scientific research in National Marine Sanctuaries, including within MBNMS, under the NMSA and the Magnuson-Stevens Act.

In September 2023, ONMS presented a scoping paper that posed 5 locations with 10 sites within Greater Farallones National Marine Sanctuary and MBNMS, for deep seas coral restoration and research (section 1.2 of the Analysis). At that meeting, the Council chose to continue to scope closures in MBNMS only, at the locations of Año Nuevo and Ascension Canyons (two sites) and Sur Ridge (one site), for areas to conduct coral research and restoration. The Council proposed that these areas could be closed to bottom contact gears as GEAs. GEAs were established by amendment 32 to the Groundfish FMP (88 FR 83830, December 1, 2023) and are a management tool intended to mitigate the impacts to sensitive environments from certain groundfish fishing activity.

At the March 2024 meeting, the Council adopted a range of alternatives for this proposed action that included modified versions of the Año Nuevo and Ascension Canyon sites to address concerns raised by the public regarding closing off key fishing grounds shallower than 400 fathoms (fm) and enforcement concerns (section 1.2 of the Analysis). The Council also confirmed that the potential sites would only be proposed to be closed to commercial groundfish bottom contact gears and that no other gear types or fisheries would be proposed in the closures.

At the June 2024 meeting, the Council adopted its final preferred alternative to develop a GEA for commercial groundfish bottom contact gear at Sur Ridge in MBNMS. If the GEA is established, it is expected that ONMS would begin deep-sea coral outplanting at Sur Ridge in 2025.

The proposed GEA at Sur Ridge would apply to commercial groundfish vessels using bottom contact gear. Currently, the GEA area is within a bottom trawl essential fish habitat conservation area (EFHCA), and therefore no bottom trawling is permitted. If the EFHCA were to be removed in the future, the GEA would continue to prohibit bottom trawl. The GEA would create new restrictions for non-trawl commercial groundfish vessels using bottom contact gears in the limited entry fixed gear, directed open access, and shore-based individual fishing quota sectors. Vessels using non-bottom contact gear would still be permitted to operate in the area. The proposed GEA would close 36.64 square nautical miles of area, with depths ranging from 2,690 to 5,118 feet (448 to 853 fm). Overall, this proposed GEA would allow ONMS to perform deep-sea coral research and restoration while having limited impact on the groundfish fisheries.

NMFS is proposing amendment 34 to the Groundfish FMP in alignment with the Council's recommendation in June 2024. Amendment 34 would revise the description of GEAs in the FMP to remove references to specific GEAs, consistent with how other closed area types are included in the FMP. Active GEAs would instead be noted in the Federal groundfish regulations at proposed § 660.70, and the history of a specific GEA would likely be provided in the groundfish Stock Assessment Fishery Evaluation document.

In addition to revising the description of GEAs under amendment 34, in alignment with the Council's recommendation, NMFS proposes regulations to modify the use of GEAs as a management tool in the following ways. This proposed rule would:

• Add GEAs to the general groundfish prohibitions found at § 660.12;

• Revise the descriptions of GEAs found in §§ 660.230, 660.330, and 660.360 to remove the specific references to the Southern California Bight; and,

• Establish a new GEA at Sur Ridge in MBNMS.

To add GEAs to the general groundfish prohibitions found in the regulations, this proposed rule would add proposed § 660.12(a)(22) to the list of prohibitions in § 660.12(a) to clarify that it is unlawful for fishermen to violate any regulations that apply to activity in GEAs. To revise the descriptions of GEAs in regulations, this proposed rule would update §§ 660.230, 660.330, and 660.360 to remove specific references to the Southern California Bight and generalize the GEA descriptions to allow for GEAs to be located more broadly. This proposed rule would also update the GEA description at § 660.70(t) to note that there would be a total of nine GEAs and to remove the specific reference to GEAs being areas south of Point Conception, California. And, finally, this proposed rule would add § 660.70(t)(9) to the list of GEAs found in that section and would include the latitude and longitude coordinates and other information relevant to establishing the proposed Sur Ridge GEA.

Pursuant to sections 303(C) and 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Groundfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.

An RIR was prepared to assess all costs and benefits of available regulatory alternatives. A copy of this Analysis is available from NMFS (see ADDRESSES section). NMFS is recommending amendment 34 and the regulatory revisions in this proposed rule based on its assessment of the net benefits to the Nation of these measures.

NMFS has recommended that the Chief Counsel for Regulation of the Department of Commerce certify to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant adverse economic impact on a substantial number of small entities.

For purposes of the RFA (5 U.S.C. 601 et seq. ) only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. This standard applies to all businesses classified under North American Industry Classification System (NAICS) code 11411 for commercial fishing, including all businesses classified as commercial finfish fishing (NAICS 114111), commercial shellfish fishing (NAICS 114112), and other commercial marine fishing (NAICS 114119) businesses (50 CFR 200.2; 13 CFR 121.201).

All commercial groundfish participants that use bottom contact gear for fisheries in the EEZ off Washington, Oregon, and California, which are managed under the Groundfish FMP, may be affected by this proposed rule. Bottom contact gear is defined at 50 CFR 660.11: “fishing gear designed or modified to make contact with the bottom. This includes, but is not limited to, beam trawl, bottom trawl, dredge, fixed gear, set net, demersal seine, dinglebar gear, and other gear (including experimental gear) designed or modified to make contact with the bottom. Gear used to harvest bottom dwelling organisms ( e.g. by hand, rakes, and knives) are also considered bottom contact gear for purposes of this subpart.”

This list is non-exhaustive. The proposed coral research and restoration area is within existing bottom trawl EFHCAs, which prohibit all bottom trawl gears from operating within those EFHCA boundaries. Given that these areas are currently closed to bottom trawl vessels, this action would establish no new impact to those vessels. Therefore, the proposed action would impact only fishing with non-trawl bottom contact gear types within the proposed GEA at Sur Ridge. The commercial gears that would be permitted to operate within the newly closed area, as currently proposed, are midwater trawl and select non-trawl gear types (troll gear and commercial vertical hook-and-line gear not anchored to the bottom, such as vertical jig gear or rod-and-reel gear with weights suspended off the bottom).

From 2019 to 2023, there were 429 distinct vessels that utilized non-trawl bottom contact gears  1 in the 3 commercial groundfish sectors (directed open access (OA), limited entry fixed gear (LEFG), and individual fishing quota (IFQ) gear switching) with an annual average of 175 vessels operating annually (table 1) between the latitudes of 40° 30′ N and 36° N. As described in section 3.5.2 of the Analysis, this is the catch area that encompassed the three coral restoration and research areas proposed within MBNMS in late 2023. The Council ultimately only recommended one offshore area to move forward as a GEA. Therefore, the estimated values here are expected to reflect the maximum number of vessels that could potentially be affected by this proposed action. The actual number is likely lower. The majority of affected vessels would participate in the directed OA fishery. To protect the confidentiality of vessel data, IFQ gear switching vessels were combined with LEFG vessels in table 1.

For purposes of this analysis, directed OA vessels are assumed to be small entities, with ex-vessel revenues for all landings (groundfish and non-groundfish) averaging $71,959. In 2023, 26 of the 29 LEFG permits associated with vessels that would likely be subject to this action ( i.e., required to fish in the primary or LE trip limit fisheries) were owned by small entities (self-reported). For gear switching vessels likely to be affected by this action, all were reported as small entities in 2023.

Note that there is not a strict one-to-one correlation between vessels and entities, nor between permits and entities; therefore, some persons or firms likely have ownership interests in more than one vessel or permit. Therefore, the actual number of entities regulated by this proposed action may be lower than the estimates presented here.

If the proposed area to be closed is key to the affected parties' fishing, and if there are limited replacement fishing opportunities available, the economic impact of the proposed action may disproportionately affect small entities compared to large entities and may result in some profit loss. Given other likely current and future fishing restrictions impacting the relevant catch area ( e.g., nearshore restrictions north of the area and limited or non-existent salmon seasons), offshore opportunities are likely to be of greater importance in the portfolios of California fishing vessels. However, given the limited documented historical fishing activity at Sur Ridge and the depth of the proposed closure, it is likely that a limited subset of vessels might be impacted. Additionally, these vessels could potentially move to other fishing areas to maintain similar harvest opportunities.

Therefore, although this action would apply to the entirety of all entities fishing with bottom contact gear within the proposed GEA and the majority of those entities are considered small entities, because there has been limited documented fishing activity in the Sur Ridge area and because bottom trawl gear is currently prohibited within the proposed GEA under the EFHCA, this proposed rule is expected to have a limited impact on a modest number of small entities. For these reasons, NMFS believes that this proposed rule would not have a significant adverse economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule contains no new information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 660 as follows:

NMFS manages the groundfish fisheries of the BSAI under the BSAI FMP. The North Pacific Fishery Management Council (Council) prepared, and the Secretary of Commerce (Secretary) approved, the BSAI FMP under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq. ). Regulations governing U.S. fisheries and implementing the BSAI FMP appear at 50 CFR parts 600 and 679. The Council and NMFS manage Greenland turbot ( Reinhardtius hippoglossoides ) as a groundfish species under the BSAI FMP. Section 3.4 of BSAI FMP identifies authorized gear types for groundfish fisheries as trawls, hook-and-line, pots, jigs, and other gear as defined in regulations. This section also states that further restrictions on gear which are necessary for conservation and management of fishery resources and which are consistent with the goals and objectives of the FMP are found at 50 CFR part 679.

The following background sections describe (1) the Greenland turbot directed fishery; (2) authorized gear; (3) whale depredation; and (4) groundfish maximum retainable amounts (MRAs).

The directed fishery for Greenland turbot is managed under the BSAI FMP and is divided into two fishing subareas: (1) the BS; and (2) the Aleutian Islands (AI). Under the BSAI FMP, the acceptable biological catch (ABC) of Greenland turbot is allocated between the BS and AI subareas based on the proportion of biomass in each area. Annually, in the BSAI groundfish harvest specifications, NMFS establishes a total allowable catch (TAC) for Greenland turbot that is apportioned between the BS and AI subareas based on the TAC recommended by the Council (89 FR 17287, March 11, 2024). Under § 679.23(e)(1), directed fishing for Greenland turbot is authorized from May 1 through December 31 and NMFS closes the fishery if the TAC is reached prior to the season end date. The Greenland turbot directed fishery is a relatively small fishery with low TACs and the area where the fishery occurs in the BS and AI subareas (as described in section 3.3.2 of the Analysis (see ADDRESSES section)) is very remote, making it difficult to prosecute the fishery.

Under the Western Alaska Community Development Quota (CDQ) Program, § 679.20(b)(1)(ii)(D) requires that NMFS allocate 10.7 percent of the BS subarea Greenland turbot TAC to the CDQ reserve. CDQ allocations of BS subarea Greenland turbot may be fished by either trawl or nontrawl vessels. CDQ groups may arrange for the CDQ reserve to be fished by companies or on vessels in which they have an ownership stake, or they might make the CDQ reserve available to be fished by any permitted vessel and receive a royalty permit in return as described in section 3.3.1 of the Analysis (see ADDRESSES section). CDQ fishing for Greenland turbot is authorized from January 1 through December 31 (§ 679.23(e)(4)(iii)).

Vessels participating in the directed fishery for Greenland turbot in the BS subarea are required to have a groundfish license limitation program (LLP) license with the necessary gear ( i.e., nontrawl, trawl, or both gear types) and BS subarea endorsements (see § 679.4(k)(1)(i)). The directed fishery for Greenland turbot is prosecuted by the trawl and nontrawl sectors and is mainly concentrated in the BS subarea, which is the focus of this proposed rule. The Greenland turbot fishery in the AI subarea has been closed to directed fishing in all years from 2013 through 2024 due to relatively low TACs. Additionally, several factors have contributed to low interest in developing this fishery such as lower local abundance, poorer fish quality resulting in lower value products, and higher operating costs.

Participants in the Greenland turbot trawl fishery consist exclusively of Amendment 80 vessels. The Amendment 80 Program allocated several BSAI non-pollock trawl groundfish species among trawl fishery sectors, facilitated the formation of harvesting cooperatives in the non-American Fisheries Act (non-AFA) trawl C/P sector, and established a limited access privilege program for the non-AFA trawl C/P sector (72 FR 52668, September 14, 2007). This proposed rule does not change regulations applicable to the Amendment 80 Program.

The majority of participants in the nontrawl Greenland turbot fishery are hook-and-line C/P vessels. Hook-and-line C/P vessels, as defined in the regulations at § 679.2, are vessels named on LLP licenses that are noninterim and transferable, or that are interim and subsequently become noninterim and transferable, and that are endorsed for BS subarea or AI subarea C/P fishing activity, C/P Pacific cod ( Gadus macrocephalus ), and hook-and-line gear. As a broad category of vessels, hook-and-line C/Ps primarily target Pacific cod in the CDQ and non-CDQ fisheries in the BSAI, and may also participate in the Greenland turbot and sablefish fisheries, as well as groundfish fisheries in the Gulf of Alaska (GOA). Catcher vessels (CVs), on the other hand, have rarely targeted Greenland turbot in the BS subarea. This is due to the remoteness of the area where the fishery occurs and characteristics of Greenland turbot flesh that would degrade and lose value in the time required to make a shoreside landing, as CVs are vessels used for catching fish and do not process fish on board. Vessel LLP licenses have endorsements for operation type and are either CV or C/P. A C/V endorsement allows a vessel to harvest, but not process fish on board, while a C/P endorsement allows a vessel to harvest and on board processing.

Most hook-and-line C/P vessels are members of the Freezer Longline Conservation Cooperative (FLCC). The FLCC is a voluntary cooperative represented by the Freezer Longline Coalition that comprises 36 LLP license holders endorsed for BS or AI subarea hook-and-line C/P fishing for Pacific cod. Cooperatives allow fishery participants to coordinate their collective fishing operations, and benefit from the resulting efficiencies. Since the formation of the FLCC in 2010, the sector has operated what could be considered a “year-round” Pacific cod fishery. Historically, only a small portion of these LLP licenses endorsed for BS or AI subarea hook-and-line C/P fishing for Pacific cod have targeted Greenland turbot in the BS subarea, and, since 2010, the number has not surpassed nine vessels.

The Amendment 80 cooperatives and FLCC coordinate to harvest the BS subarea Greenland turbot non-CDQ TAC using a voluntary, non-regulatory agreement to divide the available TAC between the trawl and nontrawl sectors. The specific terms of the agreement are not publicly disclosed or shared with NMFS; however, NMFS understands that the TAC is apportioned between the trawl and nontrawl sectors to maximize utilization and account for incidental catch in other fisheries. NMFS understands that the agreement was developed in response to competition between the sectors and the need for NMFS to manage the fishery conservatively, due to bycatch of Greenland turbot in trawl fisheries targeting arrowtooth ( Atheresthes stomias ) and Kamchatka flounder ( A. evermanni ) that resulted in shorter seasons and early closures of the Greenland turbot directed fishery.

Gear endorsements for BSAI groundfish LLP licenses are either for trawl, nontrawl, or both gear types (see § 679.4(k)(3)(iv)). Nontrawl gear is any legal gear type, other than trawl gear, used to harvest groundfish under the LLP (see § 679.4(k)(3)(iv)(F)). The use of nontrawl gear is limited to longline and pot gear, with longline gear encompassing hook-and-line gear, and pot gear including both longline pot and pot-and-line gear ( e.g., single pot). Longline pot gear is pot gear with two or more pots attached to a stationary, buoyed, and anchored line while pot-and-line gear is pot gear with a stationary, buoyed line with a single pot attached. Although pot-and-line gear is currently authorized for the directed fishery for Greenland turbot in the BS subarea, pot-and-line gear has not been utilized due to the inefficiency of setting a single pot at the depths and locations where the fishery occurs. Pot gear, which includes longline pot and pot-and-line gear, is required to have a biodegradable panel that measures at least 18 inches in length, parallel to, and within 6 inches of, the bottom of the pot, and that is sewn with untreated cotton thread no larger than No. 30. This requirement ensures the release of caught fish if pot gear is lost or becomes unretrievable. Collapsible pots, also called slinky pots, are used as longline pot gear in the IFQ and CDQ halibut ( Hippoglossus stenolepis ) and sablefish ( Anoplopoma fimbria ) fisheries. Collapsible pots have an exception to the placement of the biodegradable panel when used in these fisheries, whereby the panel may be placed anywhere on the mesh of the pot, which is at least 18 inches (45.72 cm) in length and is made from untreated cotton thread of no larger size than No. 30, or wrapped on the pot door, provided the pot door has a minimum diameter of 18 inches and is sewn with untreated cotton thread no larger than No. 30. Gear limitations at § 679.24(b) require any person using longline pot gear to treat any catch of groundfish species as prohibited species unless there is an explicit exception that allows the use of this gear type by area and fishery. The exceptions to the longline pot gear limitation set forth in § 679.24(b)(1) include fishing in the AI subarea, fishing for sablefish in the BS subarea, fishing for sablefish individual fishing quota (IFQ) in the GOA, and while fishing for IFQ or CDQ halibut in the BSAI (§ 679.24(b)). For additional information on authorized fishing gear including trawl, nontrawl, longline, hook-and-line, pot-and-line, and longline pot gear see the definition of “Authorized fishing gear” at § 679.2.

Regulations at § 679.24(a) require any vessel fishing with hook-and-line, longline pot, and pot-and-line gear to mark all buoys carried on board or used with the vessel's federal fisheries permit (FFP) number or Alaska Department of Fish and Game (ADF&G) vessel registration number. Buoy markings have minimum text width and height specifications and must be of contrasting coloring so markings are clearly visible above the water line. Vessel operators deploying longline pot gear to fish IFQ sablefish in the GOA are required to have an additional hard buoy ball in the buoy cluster attached and marked with the initials “LP” for “Longline Pot” to distinguish buoys for hook-and-line and pot-and-line gear from buoys for longline pot gear (§ 679.24(a)).

A pot used to fish for groundfish is required to have tunnel openings no wider and no higher than 9 inches as defined in paragraph (15)(ii) of the definition of “Authorized fishing gear” at § 679.2. In 2020, the Council recommended and NMFS implemented an exception to the 9-inch tunnel opening restriction for halibut, which is also a large flatfish species, under amendment 118 to the BSAI FMP (85 FR 840, January 8, 2020). This action was intended to improve capture efficiency in legal sized halibut using pot gear when fishing for IFQ and CDQ halibut and IFQ and CDQ sablefish in the BSAI or sablefish IFQ in the GOA when halibut retention is required, decrease the potential for discards, and whale depredation. For additional information on longline pot gear restrictions, see “Gear Limitations” at § 679.24(b).

Depredation by killer whales ( Orcinus orca ) has been increasing, preventing hook-and-line C/P vessels from participating in the directed fishery for Greenland turbot in the BS subarea. Whale depredation occurs when whales remove or damage fish during hauling or feed on fish being caught or discarded. Whale depredation negatively impacts fishing fleets by reducing catch rates and increasing operational costs. Additionally, depredation has negative consequences for whales through increased risk of vessels strikes, gear entanglements, and altered foraging strategies. Depredation by sperm and killer whales on hook-and-line gear is a common occurrence for the sablefish IFQ fishery in the GOA and BSAI where whales can completely remove or damage sablefish captured on hooks before the gear is retrieved. Killer whale depredation resulted in the decline in participation by hook-and-line C/P vessels in the directed fishery for Greenland turbot in the BS subarea beginning in 2018, and the complete absence of participation in 2021, 2022, and 2023, due to operational challenges posed by whale depredation that made fishing uneconomical as described in section 4 of the Analysis (see ADDRESSES section). The Council recommended and NMFS allowed the use of longline pot gear in the GOA sablefish IFQ fishery to improve efficiency and improve economic benefits for the sablefish IFQ fleet impacted by whale depredation (amendment 101 to the GOA FMP; 81 FR 95435, December 28, 2016). For more information about killer whale depredation on hook-and-line C/Ps in the BS subarea, refer to section 3.4 of the Analysis (see ADDRESSES section).

An MRA limits the retention of incidental catch species that are caught while targeting other species or species groups—known as basis species—open to directed fishing (§ 679.20(e)). Under § 679.2, the definition of “directed fishing” means any fishing activity that results in the retention of an amount of a species or species group on board a vessel that is greater than the MRA for that species or species group as calculated under § 679.20(e). MRAs establish retainable percentages to allow for the retention of incidental catch, preventing regulatory discards and increasing the utilization of incidental catch of a species when the fishery is closed to directed fishing. MRAs help manage the harvest of a groundfish species within its annual TAC. Once the TAC for a species is reached, retention of that species is prohibited, and any further catch must be discarded. To ensure sufficient amounts of the TAC are available for incidental catch in other fisheries, NMFS closes a species to directed fishing before the entire TAC is harvested.

Gear limitations require any person using longline pot gear to treat any catch of groundfish species as a prohibited species unless there is an explicit exception that allows the use of this gear type by area and fishery (§ 679.24(b)(1)). Under current regulations, longline pot gear is allowed in the BSAI for directed fishing for sablefish in the BS subarea, which means retaining sablefish on board a vessel in an amount greater than the MRA. The MRA for sablefish is currently set at 15 percent when the basis species is Greenland turbot in the BSAI (Table 11 to part 679). If a vessel is directed fishing for Greenland turbot, retention of sablefish would be allowed only if the vessel held enough sablefish IFQ to possess more than the 15 percent MRA limit, otherwise sablefish may not be retained as described in section 6.3 of the Analysis (see ADDRESSES section). A vessel may retain Greenland turbot up to the MRA in other groundfish fisheries where longline pot gear is authorized unless retention of Greenland turbot is prohibited because a TAC has been met.

This proposed rule would allow hook-and-line C/P vessels to use longline pot gear to directed fish for Greenland turbot in the BS subarea. This proposed rule is needed to mitigate impacts of killer whale depredation and increase operational flexibility and efficiency for hook-and-line C/P vessels who have historically participated in the directed fishery for Greenland turbot using hook-and-line gear in the BS subarea. Since 2020, killer whale depredation has increased, reducing or preventing participation in the directed fishery for Greenland turbot in the BS subarea by hook-and-line C/P vessels. Using longline pot gear could effectively mitigate killer whale depredation in the directed fishery for Greenland turbot in the BS subarea and improve efficiency and economic benefits for hook-and-line C/P vessels, as it would be more difficult for whales to remove or damage fish enclosed in pots. Greenland turbot is a large flatfish species and this proposed rule would also add an exception to the 9-inch tunnel opening restriction for longline pot gear to remove a potential impediment for selecting larger fish, and improve fishing efficiency, when participating in the directed fishery for Greenland turbot in the BS subarea.

In April 2021, the Council tasked staff with preparing a discussion paper on authorizing longline pot gear as a legal gear type for the directed fishery for Greenland turbot in the BS subarea. This request responded to the Council Advisory Panel recommendation that longline pot gear could effectively mitigate killer whale depredation of Greenland turbot on hook-and-line gear. The Council reviewed the discussion paper at its February 2022 meeting, developing an initial purpose and need statement and a single action alternative that would authorize longline pot gear for any LLP license holder with BS nontrawl endorsements. At that time, the Council also introduced an option to exempt the 9-inch maximum pot tunnel opening limitation when fishing for Greenland turbot in the BS subarea.

In October 2022, the Council considered the initial review of this action and heard public testimony, modifying the purpose and need statement to evaluate the potential disruption to historic participants in the nontrawl Greenland turbot fishery if new entrants with no previous activity in the fishery were to participate. The Council added an alternative that would narrow the action to authorize longline pot gear in the directed fishery for Greenland turbot in the BS subarea only for hook-and-line C/P vessels as defined in regulation (§ 679.2). In April 2023, the Council recommended that NMFS authorize the use of longline pot gear and remove the 9-inch pot tunnel opening restriction for hook-and-line C/P vessels participating in the directed fishery for Greenland turbot in the BS subarea. The other revisions included in this action were presented in the Analysis (see ADDRESSES section) as necessary to implement the preferred alternative.

This action applies exclusively to vessels whose LLP licenses qualify them as participants in the hook-and-line C/P sector who have historically participated in and comprise the nontrawl sector directed fishery for Greenland turbot in the BS subarea. This action is intended to increase operational flexibility for hook-and-line C/P vessels in the BS subarea, mitigate the impacts of whale depredation, and allow the fishery to resume. The directed fishery for Greenland turbot in the BS subarea is a small, remote fishery with low TACs, making it viable primarily for hook-and-line C/Ps. Due to the remoteness of the fishing grounds and the nature of Greenland turbot flesh, which can degrade and lose value during the time needed for shoreside landings, participation by CVs is unlikely. This action is not intended to create opportunities for new entrants without previous history in the fishery, as their participation could disrupt the established hook-and-line C/P and Amendment 80 sectors. New entrants might also pose challenges to maintaining a fishing pace that allows NMFS to effectively manage the fishery, especially in environments with moderate to low TACs. However, this action does not preclude CVs from participating in the Greenland turbot fishery in the BS subarea, as they can still participate in the fishery with hook-and-line or pot-and-line gear.

This proposed rule would revise regulations at 50 CFR part 679 to: (1) allow hook-and-line C/P vessels to use longline pot gear for the directed fishery for Greenland turbot in the BS subarea; (2) add the directed fishery for Greenland turbot in the BS subarea to the collapsible pot exception; (3) add an exception to the 9-inch maximum pot tunnel opening limitation for longline pot gear when participating in the directed fishery for Greenland turbot in the BS subarea; and (4) clarify MRA retention requirements for longline pot gear with the authorization of this gear type for the directed fishery for Greenland turbot in the BS subarea. The following sections describe the proposed changes to the regulations.

This proposed rule would amend regulations at § 679.24(b)(1) to allow hook-and-line C/P vessels to use longline pot gear to retain groundfish species while directed fishing for Greenland turbot in the BS subarea. This proposed rule would also amend longline pot gear for gear marking requirements at § 679.24(a)(3) and recordkeeping and reporting requirements at § 679.5(c)(3)(v)(G)( 2 ). These modifications would expand the use of longline pot gear to include directed fishing for Greenland turbot in the BS subarea, alongside the areas and fisheries where this gear type is already authorized and add associated gear marking, recordkeeping, and reporting requirements consistent with those already applicable when using longline pot gear in the GOA.

Gear marking requirements would be added for vessels using longline pot gear to directed fish for Greenland turbot in the BS subarea at § 679.24(a)(3). These changes would require that each end of longline pot gear set deployed must have one hard buoy ball attached and marked with the capital letters “LP” to differentiate between whether a set is hook-and-line or longline pot gear in accordance with marking requirements specified at § 679.24(a)(2). Regulations at § 679.5(c)(3)(v)(G)( 2 ) governing the logbook requirements for longline pot gear would be modified to require that the length of the longline pot set, size of pots used, the spacing between pots on a set, and the quantity of pots deployed and lost be recorded on a logbook by vessels while directed fishing for Greenland turbot in the BS subarea. The use of longline pot gear continues to expand, and these changes are intended to improve regulatory consistency, monitoring, and enforcement with the addition of longline pot gear being authorized for hook-and-line C/Ps participating in the directed fishery for Greenland turbot in the BS subarea.

This proposed rule would add the directed fishery for Greenland turbot in the BS subarea to the current list of fisheries authorized to place a biodegradable panel anywhere on the mesh of a collapsible pot, also called a slinky pot, as specified in paragraph (15)(i)(A) of the definition of “Authorized fishing gear” at § 679.2. Collapsible pot gear must have a biodegradable panel placed anywhere on the mesh using untreated cotton thread no longer than No. 30, which is at least 18 inches in length, or may be wrapped on the door of a pot that is at least 18 inches in diameter. Including Greenland turbot in the BS subarea in the collapsible pot exception is necessary to allow vessels to use this type of pot under the proposed rule authorizing longline pot gear. This change will facilitate the effective escapement of fish if a pot is lost and will standardize gear requirements for pot gear.

This proposed rule would add an exception to the longline pot tunnel opening restriction specified in paragraph (15)(ii) of the definition of “Authorized fishing gear” at § 679.2 to allow the use of pots with tunnel openings larger than 9 inches when directed fishing Greenland turbot in the BS subarea. This is necessary to ensure that the pot gear used in this fishery is not size-selective for smaller Greenland turbot and allow for larger fish to enter the pots. Additionally, this proposed rule would move the current regulatory paragraph that specifies the existing halibut retention exception from paragraph (15)(iii) to paragraph (15)(ii) under the definition of “Authorized fishing gear” at § 679.2 to improve regulatory clarity and organization for fisheries that have exceptions to the pot tunnel opening restriction.

Removal of the gear restriction that prevents retention of groundfish species by vessels using longline pot gear in the BS subarea when directed fishing for Greenland turbot would also allow these vessels to retain up to the MRA of other groundfish species unless retention is prohibited or required by other applicable law. This proposed rule would add a paragraph at § 679.20(e)(3)(vii) to clarify that vessels using longline pot gear can retain groundfish up to the MRA.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the BSAI FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

NMFS prepared an Environmental Assessment for this regulatory amendment that discusses the impact on the environment as a result of this rule. The proposed rule is considered to have minimal impact due to its narrow scope and alignment with the existing fishery management frame-work and is unlikely to significantly affect the environment or species beyond the status quo. A copy of the Environmental Assessment is available from the NMFS (see ADDRESSES section).

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

A Regulatory Impact Review was prepared to assess the costs and benefits of available regulatory alternatives. A copy of this Analysis is available from NMFS (see ADDRESSES section). The Council recommended and NMFS proposes these regulations based on those measures that maximize net benefits to the Nation.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NMFS requests comments on this certification for this proposed rule. The factual basis for this determination is as follows:

This proposed rule would allow owners and operators of hook-and-line C/P vessels to use longline pot gear to directed fish for Greenland turbot in the BS subarea. A discussion of the potential impacts of the proposed action is further discussed in section 4 of the Analysis (see ADDRESSES section).

For Regulatory Flexibility Act (RFA) purposes only, NMFS established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (North American Industry Classification System (NAICS) code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts less than $11 million for all its affiliated operations worldwide. The RFA also requires consideration of affiliations between entities for the purpose of assessing whether an entity is classified as small. If business entities are affiliated, then the threshold for identifying small entities is applied to the group of affiliated entities rather than on an individual entity basis. NMFS has determined that vessels that are members of a fishing cooperative are affiliated when classifying them for purposes of the RFA. During the 2012 through 2022 period, there were 23 active vessels that had participated in the BSAI groundfish fishery as a C/P using hook-and-line or pot gear. None of those vessels are considered small entities due to cooperative affiliation. For the purpose of this RFA analysis, NMFS believes that all of the entities directly regulated under the Council's preferred alternative are large entities.

This action increases flexibility and operational efficiency. It is anticipated that this action would improve cost-efficiencies for directly regulated entities to a marginal degree. This action allows a different gear type that could make the nontrawl fishery more successful to the extent they choose to use that gear. Use of the gear is voluntary and not mandatory. As a voluntary efficiency, entities would participate, and thus be directly regulated, but only if there is a net benefit to doing so.

For these reasons, this action is not expected to have an adverse economic impact on a substantial number of small entities, and, as a result, an initial regulatory flexibility analysis is not required, and none has been prepared.

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This proposed rule would revise the existing collection-of-information requirements for OMB Control Number 0648-0515 (Alaska Interagency Electronic Reporting System) and revise and extend by 3 years the existing requirements for OMB Control Number 0648-0353 (Alaska Region Gear Identification Requirements). The proposed changes to the collections are described below. The public reporting burden estimates provided below include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

NMFS proposes to revise and extend for 3 years the existing requirements for OMB Control Number 0648-0353, which contains the gear identification requirements for the groundfish fisheries in the Exclusive Economic Zone off Alaska. The information collection for 0648-0353 would be revised because this proposed rule would require that each end of a set of longline pot gear deployed to directed fish for Greenland turbot in the BS subarea have one hard buoy ball attached marked with “LP” to distinguish this gear type from others authorized for this fishery. This revision adds an estimated nine respondents for marking longline pot gear. Public reporting burden is estimated to average 30 minutes or less per individual response to collect the information and paint it on a buoy. The cost to mark buoys is estimated at $100 per respondent, which covers materials such as paint, paintbrushes, permanent ink applicator, and stencils. Subject to public comment, no changes are made to the estimated burden or cost because the estimates allow for differences in the time and cost to mark the buoys.

The information collection for 0648-0515 would be revised because this proposed rule would add the directed fishery for Greenland turbot in the BS subarea to the recordkeeping and reporting requirements specific to longline pot gear. Vessel operators would be required to enter in the logbook the length of a longline pot set, pot size and spacing, number of pots deployed, and the number of pots lost when the set is retrieved. The hook-and-line C/Ps currently use the C/P electronic logbook. This revision does not change the respondents, responses, burden hours, or costs for the C/P electronic logbook. Public reporting burden is estimated to average 15 minutes per individual response for the C/P electronic logbook. The current burden estimate for this logbook allows for differences in the time and cost needed to complete and submit the logbook.

NMFS seeks public comment regarding, but not limited to, the following: (1) whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (2) the accuracy of the burden estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Submit comments on these or any other aspects of the collections of information at https://www.reginfo.gov/public/do/PRAMain.

Notwithstanding any other provision of law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows: