[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