[Federal Register Volume 69, Number 99 (Friday, May 21, 2004)]
[Rules and Regulations]
[Pages 29222-29226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11415]
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DEPARTMENT OF STATE
22 CFR Parts 121 and 123
[Public Notice 4723]
Z-RIN 1400-ZA10
Amendment to the International Traffic in Arms Regulations:
United States Munitions List
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State, in consultation with the Departments
of Defense and Commerce has reviewed the International Traffic In Arms
Regulations (ITAR), Part 121--The United States Munitions List (USML),
Category IX--Military Training Equipment, Category X--Protective
Personnel Equipment, Category XII--Fire Control, Range Finder, Optical
and Guidance and Control Equipment, Category XIII--Auxiliary Military
Equipment, Category XIV--Toxicological Agents, Including Chemical
Agents, Biological Agents, and Associated Equipment, and Category
XVIII--Directed Energy Weapons. The review resulted in a change of the
title of Categories IX and X to better reflect the items controlled in
each category. Consistent with previous published changes to other
categories, Categories IX, X, and XIII have been revised to add
interpretations that explain and amplify the terms used in the
category. The categories were also reformatted in order that they might
better identify the articles controlled. While no additional items have
been added to any of the categories, some articles, previously covered
more broadly are now specifically identified in separate paragraphs.
In addition, this document incorporates an amendment to the text of
Category XIV as published in the Federal Register on November 27, 2002
to account for the existence of personal protection devices for
domestic applications such as civil defense that provide protection
against the chemical and biological agents controlled by the Category
and that integrate components and parts subject to the controls of the
International Traffic in Arms Regulations (ITAR). This revision
transfers to the jurisdiction of the Department of Commerce certain
articles previously controlled on the USML.
Finally, in complying with Presidential Determination No. 2004-02
of October 6, 2003, Presidential Determination No. 2004-16 of December
30, 2003, and Presidential Determination No. 2004-21 of January 15,
2004, the ITAR is being amended to add the Philippines, Thailand, and
Kuwait as major non-NATO allies of the United States.
DATES: Effective Date: May 21, 2004.
ADDRESSES: Interested parties are invited to submit written comments to
the Department of State, Directorate of Defense Trade Controls, Office
of Defense Trade Controls Policy, ATTN: Regulatory Change, USML Part
121, Categories IX, X, XII, XIII, XIV, and XVIII, 12th Floor, SA-1,
Washington DC 20522-0112. E-mail comments may be sent to:
[email protected] with the subject line: USML Review--Category
(specify). Comments will be accepted at any time.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen Tomchik, Office of Defense
Trade Controls Policy, Department of State, Telephone (202) 663-2799 or
FAX (202) 261-8199. ATTN: Regulatory Change, USML Part 121, Categories
IX, X, XII, XIII, XIV and XVIII.
[[Page 29223]]
SUPPLEMENTARY INFORMATION: The specific results of the Department of
State lead interagency review by category are as follows:
1. Category IX
The review of Category IX--Military Training Equipment resulted in
no change in the coverage, but the scope of coverage was clarified by
adding the word ``training'' to the title of the category. However,
added to the list of items identified as a trainer are pilot-less
aircraft and human rated centrifuge trainers. In addition, certain
trainers are consolidated (e.g., attack trainers, instrument flight
trainers, operational flight trainer and air combat training systems).
A weapons system trainer includes any trainer that provides rules of
engagement including flight, tactics, techniques and/or simulation. A
radar trainer includes any trainer that provides training for radar
operation and target systems. The absence of radar target generators
from the list of items included as training equipment is not a change
in coverage, but a determination that the radar target generator is a
component, part, or accessory of a radar system and more appropriately
controlled in Category XI.
Specific changes to the category are the identification in
paragraph (c) of tooling and equipment specifically designed or
modified for production of the items in the category. This resulted in
components, parts, accessories, attachment, and associated equipment
moving to paragraph (d) and technical data and defense services to a
new paragraph (e). In addition, a new paragraph (f) contains
interpretations that explain and amplify terms used in the category.
2. Category X
The review changed the title of the category to better reflect the
items controlled. The title now reads Category X--Protective Personnel
Equipment and Shelters. Also, it was determined that reformatting the
category would provide better identification to users of the items
controlled. To provide specified control levels for body armor an
interpretive note was added to outline the standards established by the
National Institute of Justice Classification. In addition, a threshold
parameter for pressure suits with military applications was added.
Category X now specifically identifies the controls of certain military
protective equipment (e.g., diving suits, goggles, glasses, visors).
Similarly, the control of clothing designed to protect against sensor
detection was clarified via the addition of a threshold parameter.
Underwater breathing apparatus currently controlled in Category XIII
are transferred to this category. Finally, having determined that they
are more appropriately considered to be a component of an aircraft,
liquid oxygen converters are transferred from paragraph (b) of this
category to paragraph 8(h) of Category VIII and USML control is
maintained on these commodities even though they no longer are
specifically enumerated in the text.
To accomplish these changes paragraph (a) now controls protective
personnel equipment, with subparagraphs for body armor, radar
protective clothing, G-suits, full and partial pressure suits,
submarine diving rescue suits, helmets designed to be compatible with
communications hardware or optical sights/slewing devices, protective
goggles, glasses or visors. With the movement of partial pressures
suits to paragraph (a) of this category and the movement of liquid
oxygen converters to Category VIII (h), paragraph (b) now contains
permanent or transportable shelters. With the transfer of components,
parts, accessories, attachments, and associated equipment currently in
paragraph (c) and technical data and defense services currently in
paragraph (d) to new paragraphs (d) and (e) respectively, paragraph (c)
now controls tooling and equipment specifically designed or modified
for the production of the articles controlled by the category. Finally,
a new paragraph (f) is added to the category to provide interpretations
that explain and amplify the terms used in the category.
3. Category XII
The Department of Commerce Export Commodity Control Numbers (ECCNs)
found in paragraph (c) dealing with military second and third
generation image intensification tubes and military infrared focal
plane arrays that are part of a commercial system are corrected for
accuracy.
4. Category XIII
The Military Information Security Systems in paragraph (b) are now
described as Military Information Security Assurance Systems to more
appropriately define the criteria for the evaluation of such systems.
The language describing criteria in paragraph (b)(4) is changed to
reflect current evaluation criteria. Paragraph (e) now controls armor
and reactive armor not controlled elsewhere in this subchapter, while
paragraph (f) controls certain specified structural materials. The
current paragraphs (e) and (f) and redesignated (g) and (h) without any
change in control. The chemiluminescent compounds currently in
paragraph (g) are assessed to be more properly considered as
components; those used for the detection or identification of chemical
agents are covered under Category XIV as a component of chemical agent
equipment, while solid state devices made from compounds designed or
modified for military applications, such as semiconductors, are
controlled in Category XI. The text referring to particle beam devices
in paragraph (h) is transferred to Category XVIII--Directed Energy
Weapons as an interpretive note. Paragraph (k) now controls tooling and
equipment designed to produce the articles controlled by the category.
Finally, a new paragraph (m) is added to the category to provide
interpretations that explain and amplify the terms used in the
category.
5. Category XIV
Since the publication on November 27, 2002 (67 FR 70839) of the
revision to this category, information has become available
demonstrating the existence of personal protection devices for domestic
applications such as civil defense that integrate components and parts
subject to the controls of the International Traffic in Arms
Regulations (ITAR). As in the case of Category XII of the USML, wherein
commercial systems that incorporate military second and third
generation image intensification tubes and military focal plane arrays
identified in the category are licensed by the Department of Commerce,
commercial domestic preparedness devices that integrate components and
parts subject to the controls of the ITAR will be licensed by the
Department of Commerce. To effect this change, a new interpretive note
is added to paragraph (n) of the Category, designated as (4), stating
that domestic preparedness devices for individual protection that
integrate components and parts identified in this subparagraph are
licensed by the Department of Commerce when such components are: (1)
Integral to the device; (2) inseparable from the device; and (3)
incapable of replacement without compromising the effectiveness of the
device. In addition, components and parts identified in this
subparagraph exported for integration into domestic preparedness
devices for individual protection are subject to the controls of the
ITAR. Explanatory language currently in paragraph (f)(4) of the
Category is transferred to and incorporated into the interpretive note.
Because of the insertion of the new interpretive note (4) in paragraph
(n),
[[Page 29224]]
the interpretative notes currently identified as (4), (5), and (6) are
renumbered as (5), (6) and (7). In accordance with Section 38(f) of the
Arms Export Control Act (AECA), as amended, this removal has been
notified to the Congress and the Commerce Control List (CCL) control
identified for this commodity is ECCN 1A004.
6. Category XVIII
As noted above under the discussion for Category XIII, paragraph
(h) pertaining to particle beam devices is moved to this category as a
new interpretive note designated (g)(2).
Regulatory Analysis and Notices
This amendment involves a foreign affairs function of the United
States and, therefore, is not subject to the procedures required by 5
U.S.C. 553 and 554. It is exempt from review under Executive Order
12866; but has been reviewed internally by the Department of State to
ensure consistency with the purposes thereof. This rule does not
require analysis under the Regulatory Flexibility Act or the Unfunded
Mandates Reform Act. It has been found not to be a major rule within
the meaning of the Small Business Regulatory Enforcement Act of 1996.
It will not have substantial direct effects on the States, the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, it is determined that this rule does not have
sufficient federalism implications to warrant application of
consultation provisions of Executive Orders 12372 and 13132.
List of Subjects in 22 CFR Parts 121 and 123
Arms and munitions, Exports.
0
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, Parts 121 and 123 are amended as follows:
PART 121--UNITED STATES MUNITIONS LIST
0
1. The authority citation for Part 121 continues to read as follows:
Authority; Sec. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2278, 2797); E.O. 11958, 42 FR 4311; 3 CFR 1977 Comp.
p. 79; 22 U.S.C. 2658; Pub. L. 105-261, 112 Stat. 1920.
Sec. 121.1 General. The United States Munitions List.
* * * * *
0
2. Section 121.1 is amended as follows:
0
A. Revise Category IX--Military Training Equipment, Category X--
Protective Personnel Equipment, and Category XIII--Auxiliary Military
Equipment;
0
B. In Category XII revise paragraph (c)
0
C. In Category XIV revise paragraphs (f)(4) and (n)(4), (5), and (6)
and add new paragraph (n)(7);
0
D. In Category XVIII, revise paragraphs (g)(2) and (3) and add new
paragraph (g)(4).
The revisions and additions read as follows:
Category IX--Military Training Equipment and Training
(a) Training equipment specifically designed, modified, configured
or adapted for military purposes, including but not limited to weapons
system trainers, radar trainers, gunnery training devices,
antisubmarine warfare trainers, target equipment, armament training
units, pilot-less aircraft trainers, navigation trainers and human-
rated centrifuges.
(b) Simulation devices for the items covered by this subchapter.
(c) Tooling and equipment specifically designed or modified for the
production of articles controlled by this category.
(d) Components, parts, accessories, attachments, and associated
equipment specifically designed, modified, configured, or adapted for
the articles in paragraphs (a), (b) and (c) of this category.
(e) Technical data (as defined in Sec. 120.10 of this subchapter)
and defense services (as defined in Sec. 120.9 of this subchapter)
directly related to the defense articles enumerated in paragraphs (a)
through (d) of this category.
(f) The following interpretations explain and amplify terms used in
this category and elsewhere in this subchapter:
(1) The weapons systems trainers in paragraph (a) of this category
include individual crew stations and system specific trainers;
(2) The articles in this category include any end item, components,
accessory, part, firmware, software or system that has been designed or
manufactured using technical data and defense services controlled by
this category;
(3) The defense services and related technical data in paragraph
(f) of this category include software and associated databases that can
be used to simulate trainers, battle management, test scenarios/models,
and weapons effects. In any instance when the military training
transferred to a foreign person does not use articles controlled by the
U.S. Munitions List, the training may nevertheless be a defense service
that requires authorization in accordance with this subchapter. See
e.g., Sec. 120.9 and Sec. 124.1 of this subchapter for additional
information on military training.
Category X--Protective Personnel Equipment and Shelters
(a) Protective personnel equipment specifically designed,
developed, configured, adapted, modified, or equipped for military
applications. This includes but is not limited to:
(1) Body armor;
(2) Clothing to protect against or reduce detection by radar,
infrared (IR) or other sensors at wavelengths greater than 900
nanometers, and the specially treated or formulated dyes, coatings, and
fabrics used in its design, manufacture, and production;
(3) Anti-Gravity suits (G-suits);
(4) Pressure suits capable of operating at altitudes above 55,000
feet sea level;
(5) Atmosphere diving suits designed, developed, modified,
configured, or adapted for use in rescue operations involving
submarines controlled by this subchapter;
(6) Helmets specially designed, developed, modified, configured, or
adapted to be compatible with military communication hardware or
optical sights or slewing devices;
(7) Goggles, glasses, or visors designed to protect against lasers
or thermal flashes discharged by an article subject to this subchapter.
(b) Permanent or transportable shelters specifically designed and
modified to protect against the effect of articles covered by this
subchapter as follows:
(1) Ballistic shock or impact;
(2) Nuclear, biological, or chemical contamination.
(c) Tooling and equipment specifically designed or modified for the
production of articles controlled by this category.
(d) Components, parts, accessories, attachments, and associated
equipment specifically designed, modified, configured, or adapted for
use with the articles in paragraphs (a) through (c) of this category.
(e) Technical data (as defined in Sec. 120.10 of this subchapter)
and defense services (as defined in Sec. 120.9 of this subchapter)
directly related to the defense articles enumerated in paragraphs (a)
through (d) of this category.
(f) The following interpretations explain and amplify the terms
used in this category and throughout this subchapter: (1) The body
armor covered by this category does not include Type
[[Page 29225]]
1, Type 2, Type 2a, or Type 3a as defined by the National Institute of
Justice Classification;
(2) The articles in this category include any end item, components,
accessory, attachment, part, firmware, software or system that has been
designed or manufactured using technical data and defense services
controlled by this category;
(3) Pressure suits in paragraph (a) (4) of this category include
full and partial suits used to simulate normal atmospheric pressure
conditions at high altitude.
* * * * *
Category XII--Fire Control, Range Finder, Optical and Guidance and
Control Equipment
* * * * *
* (c) Infrared focal plane array detectors specifically designed,
modified, or configured for military use; image intensification and
other night sighting equipment or systems specifically designed,
modified or configured for military use; second generation and above
military image intensification tubes (defined below) specifically
designed, developed, modified, or configured for military use, and
infrared, visible and ultraviolet devices specifically designed,
developed, modified, or configured for military application. Military
second and third generation image intensification tubes and military
infrared focal plane arrays identified in this subparagraph are
licensed by the Department of Commerce (ECCN 6A002A and 6A003A)) when
part of a commercial system (i.e., those systems originally designed
for commercial use). This does not include any military system
comprised of non-military specification components. Replacement tubes
or focal plane arrays identified in this paragraph being exported for
commercial systems are subject to the controls of the ITAR.
* * * * *
Category XIII--Auxiliary Military Equipment
(a) Cameras and specialized processing equipment therefor,
photointerpretation, stereoscopic plotting, and photogrammetry
equipment which are specifically designed, developed, modified,
adapted, or configured for military purposes, and components
specifically designed or modified therefor;
(b) Military Information Security Assurance Systems and equipment,
cryptographic devices, software, and components specifically designed,
developed, modified, adapted, or configured for military applications
(including command, control and intelligence applications). This
includes: (1) Military cryptographic (including key management)
systems, equipment assemblies, modules, integrated circuits, components
or software with the capability of maintaining secrecy or
confidentiality of information or information systems, including
equipment and software for tracking, telemetry and control (TT&C)
encryption and decryption;
(2) Military cryptographic (including key management) systems,
equipment, assemblies, modules, integrated circuits, components of
software which have the capability of generating spreading or hopping
codes for spread spectrum systems or equipment;
(3) Military cryptanalytic systems, equipment, assemblies, modules,
integrated circuits, components or software;
(4) Military systems, equipment, assemblies, modules, integrated
circuits, components or software providing certified or certifiable
multi-level security or user isolation exceeding Evaluation Assurance
Level (EAL) 5 of the Security Assurance Evaluation Criteria and
software to certify such systems, equipment or software;
(5) Ancillary equipment specifically designed, developed, modified,
adapted, or configured for the articles in paragraphs (b)(1), (2), (3),
and (4) of this category.
(c) Self-contained diving and underwater breathing apparatus as
follows:
(1) Closed and semi-closed (rebreathing) apparatus;
(2) Specially designed components and parts for use in the
conversion of open-circuit apparatus to military use; and,
(3) Articles exclusively designed for military use with self-
contained diving and underwater swimming apparatus.
(d) Carbon/carbon billets and preforms not elsewhere controlled by
this subchapter (e.g., Category IV) which are reinforced with
continuous unidirectional tows, tapes, or woven cloths in three or more
dimensional planes (e.g., 3D, 4D) specifically designed, developed,
modified, configured or adapted for defense articles.
(e) Armor (e.g., organic, ceramic, metallic), and reactive armor
and components, parts and accessories not elsewhere controlled by this
subchapter which have been specifically designed, developed, modified,
configured or adapted for a military application.
(f) Structural materials, including carbon/carbon and metal matrix
composites, plate, forgings, castings, welding consumables and rolled
and extruded shapes that have been specifically designed, developed,
configured, modified or adapted for defense articles.
(g) Concealment and deception equipment specifically designed,
developed, modified, configured or adapted for military application,
including but not limited to special paints, decoys, smoke or
obscuration equipment and simulators and components, parts and
accessories specifically designed, developed, modified, configured or
adapted therefor.
(h) Energy conversion devices for producing electrical energy from
nuclear, thermal, or solar energy, or from chemical reaction that are
specifically designed, developed, modified, configured or adapted for
military application.
(i) Metal embrittling agents.
* (j) Hardware and equipment, which has been specifically designed
or modified for military applications, that is associated with the
measurement or modification of system signatures for detection of
defense articles. This includes but is not limited to signature
measurement equipment; reduction techniques and codes; signature
materials and treatments; and signature control design methodology.
(k) Tooling and equipment specifically designed or modified for the
production of articles controlled by this category.
(l) Technical data (as defined in Sec. 120.10 of this subchapter),
and defense services (as defined in Sec. 120.9 of this subchapter)
directly related to the defense articles enumerated in paragraphs (a)
through (k) of this category. (See also, Sec. 123.20 of this
subchapter.) Technical data directly related to the manufacture or
production of any defense articles enumerated elsewhere in this
category that are designated as Significant Military Equipment (SME)
shall itself be designed SME.
(m) The following interpretations explain and amplify terms used in
this category and elsewhere in this subchapter:
(1) Paragraph (d) of this category does not control carbon/carbon
billets and preforms where reinforcement in the third dimension is
limited to interlocking of adjacent layers only, and carbon/carbon 3D,
4D, etc. end items that have not been specifically designed or modified
for military applications
[[Page 29226]]
(e.g., brakes for commercial aircraft or high speed trains);
(2) Metal embrittlement agents in paragraph (i) of this category
are non-lethal weapon substances that alter the crystal structure of
metals within a short time span. Metal embrittling agents severely
weaken metals by chemically changing their molecular structure. These
agents are compounded in various substances to include adhesives,
liquids, aerosols, foams and lubricants.
Category XIV--Toxicological Agents, Including Chemical Agents,
Biological Agents, and Associated Equipment
* * * * *
* (f) * * *
* * * * *
(4) Individual protection against the chemical and biological
agents listed in paragraphs (a) and (b) of this category.
* * * * *
(n) * * *
(4)(i) The individual protection against the chemical and
biological agents controlled by this category includes military
protective clothing and masks, but not those items designed for
domestic preparedness (e.g., civil defense). Domestic preparedness
devices for individual protection that integrate components and parts
identified in this subparagraph are licensed by the Department of
Commerce when such components are:
(A) Integral to the device;
(B) inseparable from the device; and,
(C) incapable of replacement without compromising the effectiveness
of the device.
(ii) Components and parts identified in this subparagraph exported
for integration into domestic preparedness devices for individual
protection are subject to the controls of the ITAR;
(5) Technical data and defense services in paragraph (l) include
libraries, databases and algorithms specifically designed or modified
for use with articles controlled in paragraph (f) of this category.
(6) The tooling and equipment covered by paragraph (l) of this
category includes molds used to produce protective masks, over-boots,
and gloves controlled by paragraph (f) and leak detection equipment
specifically designed to test filters controlled by paragraph (f) of
this category.
(7) The resulting product of the combination of any controlled or
non-controlled substance compounded or mixed with any item controlled
by this subchapter is also subject to the controls of this category.
* * * * *
Category XVIII--Directed Energy Weapons
* * * * *
(g) * * *
(2) The particle beam systems in paragraph (a)(3) of this category
include devices embodying particle beam and electromagnetic pulse
technology and associated components and subassemblies (e.g., ion beam
current injectors, particle accelerators for neutral or charged
particles, beam handling and projection equipment, beam steering, fire
control, and pointing equipment, test and diagnostic instruments, and
targets) which are specifically designed or modified for directed
energy weapon applications.
(3) The articles controlled in this category include any end item,
component, accessory, attachment, part, firmware, software or system
that has been designed or manufactured using technical data and defense
services controlled by this category.
(4) The articles specifically designed or modified for military
application controlled in this category include any articles
specifically developed, configured, or adapted for military
application.
* * * * *
PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES
0
3. The authority citation for part 123 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778, and 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR
4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2658; Pub. L. 105-261, 112
Stat. 1920.
0
4. Section 123.27 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 123.27 Special licensing regime for export to U.S. allies of
commercial communications satellite components, systems, parts,
accessories, attachments and associated technical data.
(a) * * *
(1) The proposed exports or re-exports concern exclusively one or
more countries of the North Atlantic Treaty Organization (Belgium,
Canada, Czech Republic, Denmark, France, Germany, Greece, Hungary,
Iceland, Italy, Luxembourg, The Netherlands, Norway, Poland, Portugal,
Spain, Turkey, United Kingdom, and the United States) and/or one or
more countries which have been designated in accordance with section
517 of the Foreign Assistance Act of 1961 as a major non-NATO ally (and
as defined further in section 644(q) of that Act) for purposes of that
Act and the Arms Export Control Act (Argentina, Australia, Bahrain,
Egypt, Israel, Japan, Jordan, Kuwait, New Zealand, the Philippines,
Thailand, and the Republic of Korea).
* * * * *
Dated: March 17, 2004.
John R. Bolton,
Under Secretary, Arms Control and International Security, Department of
State.
[FR Doc. 04-11415 Filed 5-20-04; 8:45 am]
BILLING CODE 4710-25-P