[Federal Register Volume 75, Number 237 (Friday, December 10, 2010)]
[Proposed Rules]
[Pages 76935-76940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30994]
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DEPARTMENT OF STATE
22 CFR Part 121
RIN 1400-AC78
[Public Notice: 7257]
Revisions to the United States Munitions List
AGENCY: Department of State.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: As part of the President's export control reform initiative,
the Directorate of Defense Trade Controls (DDTC) seeks public comment
on revisions to the United States Munitions List (USML) that would make
it a ``positive list'' of controlled defense articles, requests that
the public ``tier'' defense articles based on the Administration's
three-tier control criteria, and identify those current defense
articles that the public believes do not fall within the scope of any
of the criteria's tiers. A ``positive list'' is a list that describes
controlled items using objective criteria rather than broad, open-
ended, subjective, or design intent-based criteria. DDTC is not seeking
with this advance notice of proposed rulemaking (ANPRM) input on
whether particular defense articles should or should not be controlled
on the USML or whether any defense articles should be controlled
differently. Rather, it is only seeking with this ANPRM input on how
the USML can be revised so that it clearly describes what is subject to
the jurisdiction of the International Traffic in Arms Regulations
(ITAR), how defense articles are identified by tier, and what current
defense articles do not fall within the scope of any of the tiers.
Guidelines for revision of the USML toward this end are provided in
this ANPRM. Please see the proposed rule published elsewhere in this
issue of the Federal Register for an example of a USML Category that
has been revised in this manner.
DATES: Comments must be received by February 8, 2011.
ADDRESSES: Interested parties may submit comments within 60 days of the
date of the publication by any of the following methods:
E-mail: [email protected] with the subject line,
``USML--Positive List.''
Mail: PM/DDTC, SA-1, 12th Floor, Directorate of Defense
Trade Controls, Office of Defense Trade Controls Policy, ATTN: USML--
Positive List, Bureau of Political Military Affairs, U.S. Department of
State, Washington, DC 20522-0112.
Persons with access to the Internet may also view this
ANPRM by searching for its RIN on the U.S. Government regulations Web
site at http://regulations.gov/index.cfm.
FOR FURTHER INFORMATION CONTACT: Director Charles B. Shotwell, Office
of Defense Trade Controls Policy, Department of State, Telephone (202)
663-2792 or Fax (202) 261-8199; E-mail [email protected],
ATTN: USML--Positive List.
SUPPLEMENTARY INFORMATION:
Existing Controls
The Directorate of Defense Trade Controls (DDTC), U.S. Department
of State, administers the International Traffic in Arms Regulations
(ITAR) (22 CFR parts 120-130). The items subject to the jurisdiction of
the ITAR, i.e., ``defense articles,'' including related technical data,
and ``defense services,'' are identified on the ITAR's U.S. Munitions
List (USML) (22 CFR 121.1). With few exceptions, items that are not
subject to the export control jurisdiction of the ITAR are subject to
the jurisdiction of the Export Administration Regulations (EAR), 15 CFR
Parts 730-774. The Bureau of Industry and Security (BIS), U.S.
Department of Commerce, administers the EAR, which include the Commerce
Control List (CCL) (15 CFR part 774). The descriptions in many USML
categories are general and include design intent as a reason for an
item to be controlled. The descriptions in most CCL categories are
specific and generally include technical parameters for an item to be
controlled.
Export Control Reform
A key part of the Administration's Export Control Reform effort is
to review and revise both the ITAR and the CCL to enhance national
security so that they: (1) Are ``tiered'' consistent with the criteria
the U.S. Government has established to distinguish the types of items
that should be controlled at different levels for different types of
destinations, end-uses, and end-users; (2) create a ``bright line''
between the two lists to clarify jurisdictional determinations and
reduce government and industry uncertainty about whether a particular
item is subject to the jurisdiction of the ITAR or the EAR; and (3) are
structurally ``aligned'' so that they can eventually be combined into a
single control list.
The Administration has determined that these changes are necessary
to better focus its resources on protecting those items that need to be
protected, to end jurisdictional confusion between the ITAR and EAR,
and to provide clarity to make it easier for exporters to comply with
the regulations and for the U.S. Government to administer and enforce
them.
In order to accomplish the three above-referenced tasks
simultaneously, the USML and, to a lesser degree, the CCL must be
revised so that they are aligned into ``positive lists.'' A ``positive
list'' is one that describes controlled items using objective criteria
such as horsepower, microns, wavelength, speed, accuracy, hertz or
other precise descriptions rather than broad, open-ended, subjective,
or design intent-based criteria.
The U.S. Government has developed a methodology to transition the
current control lists to this new structure. This methodology includes
guidance on how to articulate the parameters for the items controlled
and criteria to be used to screen these items to determine their tier
of control. The full draft methodology that was developed for internal
use by the U.S. Government was provided to the Department of State's
Defense Trade Advisory Group (DTAG) as well as to the Department of
Commerce's Technical Advisory Committees as it was being finalized. The
full text is not included in this notice, as aspects are beyond the
scope of the request for public comment; however, the full text is
available for public review on the DDTC Web page at http://www.pmddtc.state.gov/DTAG/index.html.
This notice provides a summary of the full methodology and the full
text of its guidance for building a ``positive'' list to order to
request input from the public on this key feature of the control list
reform.
Request for Comments
As the U.S. Government continues its work on preparing proposed
revisions to the USML, it seeks public input on how best to describe
the USML in a positive
[[Page 76936]]
manner. U.S. companies, trade associations, and individuals that
produce, market, or export USML-controlled defense articles are
generally well positioned to describe their articles positively and to
provide comments on what are and are not clear descriptions of controls
over the articles. Public comment at this stage of the USML review
process also ensures that affected industry sectors have the
opportunity to contribute and comment on a key element of Export
Control Reform.
The U.S. Government is not, at this time, seeking public comment on
whether an item should or should not be controlled on the USML;
however, the public is requested to identify those defense articles
that it believes do not fall within the scope of any of the criteria's
tiers. The U.S. Government is also not seeking public comment at this
time on whether an item should be controlled differently for export to
different countries. General comments on the overall reform process or
the other aspects of current export controls are outside the scope of
this inquiry. In order to contribute directly to export control reform,
all comments are strongly encouraged to abide by the detailed
guidelines provided in this notice.
BIS will publish a separate request for public comments on (1) how
to describe items controlled on CCL more clearly and in a more
``positive'' ``tiered'' manner and (2) the availability of certain
items outside of certain destinations.
The following is a summary of the specific requests for public
comment described in this notice:
Public comments should be provided on a category-by-
category basis.
Within each category, public input should be further
identified by groups A thru E as further described below.
Public input should describe defense articles in a
``positive'' way:
1. Use objective criteria or thresholds, such as precise
descriptions or technical parameters, that do not lend themselves to
multiple interpretations by reasonable people.
2. Descriptions should not contain any (a) controls that use
generic labels for ``parts,'' ``components,'' ``accessories,''
``attachments,'' or ``end-items'' or (b) other types of controls for
specific types of defense articles because, for example, they were
``specifically designed or modified'' for a defense article, but should
contain identification of those ``parts,'' ``components,''
``accessories,'' ``attachments,'' or ``end-items'' that do warrant
enumerated control on the USML. Separately, the use of ``specially
designed'' as a control criterion for the other ``parts,''
``components,'' ``accessories,'' ``attachments,'' or ``end-items''
should only be applied when required by multilateral obligations or
when no other reasonable option exists.
3. Items are not to be listed on both the CCL and the USML unless
there are specific technical or other objective criteria--regardless of
the reason why any particular item was designed or modified--that
distinguish between when an item is USML-controlled or when it is CCL-
controlled.
4. In cases where technical characteristics are classified and need
to be protected, the objective descriptions of the products controlled
should be set at an unclassified level below the classified level.
5. Public input should include the recommended tier of control for
the defense articles described using the tiering criteria in Part IV,
Step 4 of the Guidelines in this notice.
6. The public is also requested to identify any current defense
articles that do not fall within the scope of any of the criteria's
tiers, and provide an explanation why they believe that such items are
not within the scope of the criteria.
The U.S. Government's Work on the USML
The U.S. Government has already begun reviewing and revising the
USML. The State Department published as a proposed rule elsewhere in
this issue of the Federal Register a proposed revision to USML Category
VII, which pertains to tanks and military vehicles. As members of the
public prepare their comments on how to revise other USML categories
into positive lists, they should use this revised Category VII as a
guide for the level and type of detail the U.S. Government is seeking
to develop in the remaining USML categories other than Category XVII
(Classified Articles, Technical Data and Defense Services Not Otherwise
Enumerated) and Category XXI (Miscellaneous Articles).
Guidelines
I. Introduction
This notice describes the background to and the process by which
the U.S. Government is reviewing and, as appropriate, revising the two
primary lists of items it controls--the USML and the CCL. The review
and revision are part of Phase II of the broad, three-phased Export
Control Reform effort. A summary of the control list work and the three
phase reform effort is available at the White House Web page at http://www.whitehouse.gov/the-press-office/2010/08/30/president-obama-lays-foundation-a-new-export-control-system-strengthen-n. ``Items,'' for
purposes of this notice, are (a) physical things such as goods,
products, materials, commodities, end-items, parts, components, and
defense articles; (b) technology and technical data; and (c) software.
The types of services and other transactions, licensing policies, and
the lists of destinations, end-uses, and end-users that are subject to
export controls, and the efforts to review and revise them, will be
described in separate documents.
II. Goals of the Phase II Control List Review and Revision Effort
The purpose of the control list review effort is to enhance
national security by reviewing and revising the USML and the CCL so
that they:
1. Are ``tiered'' consistent with the criteria the U.S. Government
has established to distinguish the types of items that should be
controlled at different levels for different types of destinations,
end-uses, and end-users (``Criteria,'' detailed below);
2. Create a ``bright line'' between the two lists to clarify
jurisdictional determinations and reduce government and industry
uncertainty about whether particular items are subject to the
jurisdiction of the International Traffic in Arms Regulations (ITAR) or
the Export Administration Regulations (EAR); and
3. Are structurally ``aligned'' so that they later can eventually
be combined into a single control list.
In order to accomplish these tasks simultaneously, the USML and, to
a lesser degree, the CCL must be revised so that they are aligned into
``positive lists.'' A ``positive list'' is a list that describes
controlled items using objective criteria such as horsepower, microns,
wavelength, speed, accuracy, hertz or other precise descriptions rather
than broad, open-ended, subjective, catch-all, or design intent-based
criteria.
III. Background to the Control List Review and Revision Effort
A key element of Export Control Reform is that all items on the
USML and the CCL must be screened against the Criteria the U.S.
Government has developed to determine new control levels consistent
with contemporary national security threats and other issues.
The basic premise of the effort is that if an item type falls
within the scope of one of the Criteria's three tiers, the item should
be controlled for export, reexport, and in-country transfer at the
[[Page 76937]]
level set forth in the licensing policy the U.S. Government is
developing for that tier. The licensing policies to be assigned to each
tier are still under development but, generally, the highest tier of
control will carry the most comprehensive license and compliance
requirements.
If an item is determined not to be within the scope of any of the
three tiers, it should not be on a control list. (Items that do not
meet one of the primary elements of the tiered criteria, such as being
significant for maintaining a military or intelligence advantage, which
must nonetheless be controlled for a separate foreign policy,
statutory, or multilateral obligation, will be identified as Tier 3
items.)
The U.S. Government has also determined that, during Phase II, the
USML and the CCL should be revised and aligned so that there is a clear
jurisdictional ``bright line'' between the items subject to the control
of the ITAR and the control of the EAR.
The U.S. Government is committed to creating a clear jurisdictional
``bright line'' so that exporters and foreign parties can more easily
and consistently determine whether many types of commodities,
technologies, and software--and directly related services--are subject
to the ITAR or the EAR.
The creation of a ``bright line'' is also a vital interim step in
the U.S. Government's plan to have, by the end of Phase III, a single
list of controlled items that is divided into three tiers and
administered by a single licensing agency under a single set of export
control regulations. The interim ``bright line'' is necessary because
the structures of the USML and the CCL are significantly different.
Many of the ITAR's USML controls are based on subjective or design-
intent criteria. That is, regardless of an item's capability,
sophistication, age, funding, lethality, end-use, or origins, it is,
with some exceptions, USML-controlled if it was originally
``specifically designed, modified, or adapted'' for a military or space
application, purpose, or use. In particular, most USML categories
contain a non-specific catch-all control over every ``part'' or
``component'' that was ``specifically designed or modified'' for any of
the defense articles listed in that category. This means, for example,
that a bolt specifically modified for a military vehicle, and all
technical data and services directly related to the bolt, are
controlled for almost worldwide export in a similar manner to the
military vehicle itself (and all the technical data and services
directly related to the military vehicle).
Most of the EAR's CCL controls are based on the technical
capabilities and specifications of items regardless of their intended
end-use or the reasons for which they were designed. The CCL's controls
are also more flexible in that different types of items are controlled
differently to different groups of destinations and end-users depending
on the significance of the item. In other words, the CCL is a more
``positive'' list with more flexible controls than the USML. The EAR do
nonetheless have a significant number of export control classification
numbers (ECCNs) with controls on items that are ``specially designed''
for some purpose or end-item. The issues involving the definition of
this term--a term that must remain in many ECCNs, at least for now, to
remain consistent with multilateral obligations--are addressed below.
Because the USML contains many broad, general descriptions of the
types of articles controlled, each USML category will need to be
``opened'' in order to further assess whether each defense article
within its scope still warrants control under the USML based on
national security concerns and to screen them against the U.S.
Government's Criteria to create a tiered ``positive list.''
``Screening'' articles means determining which items that are currently
USML-controlled defense articles should remain on the USML, which items
that are currently USML controlled defense articles could be controlled
under the CCL, and which items no longer require any control beyond
EAR99 controls because they do not meet the criteria of any of the
three tiers. ``Opening'' USML categories means identifying and then
creating specific, positive lists of the specific types of articles the
U.S. Government wants to control rather than relying on broad, general
descriptions of or subjective criteria for determining when something
is controlled.
IV. Steps for and Guidelines Controlling List Review and Revision
Effort
The following are the steps and the guidelines that the U.S.
Government has developed to prepare proposed amendments to the USML and
the CCL so that they are, with rare exceptions, aligned ``positive
lists'' that do not overlap and are consistent with the tiered
criteria. The guidelines are set out in ordered steps.
Step 1--Review Each USML Category and Related ECCNs Separately
The USML and the CCL are too big and complex to be reviewed in
their entirety all at once. In order to make the project more
manageable, USML categories (and related ECCNs) are being reviewed
separately, albeit with an awareness to the reviews or planned reviews
in any other USML category or ECCN that could affect the effort. Public
comments should be provided on a category-by-category basis, as further
described below.
Step 2 --Provide Input Following the New Proposed Structure of the USML
The U.S. Government is proposing to revise the structure of the
USML so that it tracks the A, B, C, D, E structure of the CCL (which
also tracks the Wassenaar Arrangement dual-use list structure) and also
has an additional F and G ``Group'' to address ITAR-specific defense
service and manufacturing controls. That is, each revised USML category
is being divided into seven ``Groups'':
``A,'' for ``Equipment, Assemblies, and Components'';
``B,'' for ``Test, Inspection, and Production Equipment'';
``C,'' for ``Materials'';
``D,'' for Software'';
``E,'' for ``Technology'';
``F,'' for ``Defense Services''; and
``G,'' for ``Manufacturing and Production Authorizations.''
For purposes of the list review and revision effort, the public is
requested to provide input in sections A thru E. Sections F and G at
this stage do not require input for building the positive list. To
facilitate public comment, these heading terms are defined as follows:
A. ``Equipment, Assemblies, and Components'' means any tangible
item that falls within the scope of any one of the defined terms in
ITAR Sec. 121.8--i.e., ``end-item,'' ``accessory,'' ``attachment,''
``associated equipment,'' ``component,'' or ``part''--or ``commodity,''
as defined in EAR Sec. 772.1, and is not ``test, inspection, or
production equipment,'' as defined for Group B, or ``materials,'' as
defined for Group C.
B. ``Test, Inspection, and Production Equipment'' means any
tangible item that is ``specially designed'' to test, inspect, produce,
or develop any of the types of items defined in ITAR Sec. 121.8 or a
``commodity,'' as defined in EAR Sec. 772.1. Examples include machine
tools, measuring equipment, lithography equipment, tape lay-up
machines, templates, jigs, mandrels, moulds, dies, fixtures, and
alignment mechanisms.
C. ``Material'' means any crude or processed matter that is not
clearly identifiable as any of the types of items defined in ITAR Sec.
121.8 or a ``commodity'' that is more broadly defined in EAR Sec.
772.1. Examples
[[Page 76938]]
include the alloys, ceramics, prepregs, and raw material out of which
parts, components, accessories, attachments, associated equipment, and
end-items are made. Examples also include chemicals, toxins, and
biological organisms.
D. ``Software'' means a collection of one or more programs or
microprograms fixed in any tangible medium of expression. It includes
object code, source code, system functional design logic flows,
algorithms, application programs, operating systems, and other programs
to design, implement, test, operate, diagnose, or repair other software
or items. A ``program'' is a sequence of instructions to carry out a
process in, or convertible into, a form executable by an electronic
computer. A ``microprogram'' is a sequence of elementary instructions,
maintained in a special storage, the execution of which is initiated by
the introduction of its reference instruction into an instruction
register.
E. ``Technology'' means, when reviewing items that are or should be
on the USML, ``technical data'' as defined in ITAR Sec. 120.10(a)(1).
``Technology'' means, when reviewing items that are or should be on the
CCL, ``technology'' as defined in EAR Sec. 772.1. ``Technology'' does
not include any information that falls within the scope of ``public
domain,'' as defined in ITAR Sec. 120.11, or is outside the scope of
the EAR or ``publicly available,'' as referenced in EAR Sec. Sec.
734.3(b)(2) and (b)(3), respectively.
These definitions are not intended to narrow or materially alter
any term in the ITAR or the EAR. Rather, they are combinations of
similar terms that are used now in the EAR and the ITAR to give
structure to the tiered, aligned, positive list revision effort. The
U.S. Government is currently preparing proposed harmonized terms to be
used in the ITAR, EAR, and the sanctions regulations. This separate
task should not, however, affect the public's review and input. The
scope and meaning of and controls over defense services and
manufacturing and production authorizations will be addressed
separately.
Step 3--Describe Defense Articles in a ``Positive'' Way
The Department of State requests public input on how defense
articles should be described, to the maximum extent possible, in a
``positive'' way. When providing input describing defense articles
within the A, B, C, D, and E Group structure, the Department offers the
following guidelines to aid the public in providing comments that make
the revised USML a ``positive list'':
1. Positive List Guideline #1: The public should, to the extent
possible, use objective criteria or thresholds, such as precise
descriptions or technical parameters, that do not lend themselves to
multiple interpretations by reasonable people.
Controls on items using technical descriptions will be the most
effective means for all parties involved in the export process to
clearly and easily determine jurisdiction and control requirements. For
example, USML Categories V and XIV are subject to few jurisdictional
questions because the controls are, in the main, based on specifically
identified chemical compounds.
Category V also illustrates the value of using a technical
parameter to create clear controls. Both the USML and the CCL control
spherical aluminum powder. The controls on the USML are limited,
however, to a specific technical parameter: Spherical aluminum powder
``in particle sizes of 60 micrometers or less.''
By using this guideline for revisions to the USML, reliance on
subjective or discretionary terms such as ``design-intent'' or
``ultimate end-use'' of an item will be eliminated. Such terms have
historically been difficult for industry and government to apply and
consistently agree upon.
2. Positive List Guideline #2: When providing suggestions for
revised USML categories, descriptions should avoid any (i) controls
that use generic labels for ``parts,'' ``components,'' ``accessories,''
``attachments,'' or ``end-items''; or (ii) other types of controls for
specific types of defense articles because, for example, they were
``specifically designed or modified'' for a defense article.
This guideline includes a recommended prohibition against using as
standards for in the USML generic phrases such as the following:
Are ``capable for use with'' a defense article;
Are ``equivalent to'' a defense article;
Have ``significant military or intelligence
applicability'';
Have a ``military purpose'';
Have ``military application''; or
Are ``predominately used'' in military applications or end
items.
This instruction does not prohibit the control on the USML of items
that have, by whatever definition, any of these characteristics. To the
contrary, the instruction requests the public describe and identify
such items without using the generic phrases, which are at the root of
many of the difficulties encountered in the current export control
lists.
This instruction also does not mean that specific models or part
numbers of components need to be identified. Rather, types of items
should be listed. For example, the parts and components controlled
under a revised USML Category I could be limited to ``barrels,
receiver, frames, slides, bolts, and bolt carriers that fit and
function in any of the above-listed firearms.'' All other parts and
components that fit or function in such firearms, even if specifically
or specially designed or modified for them in terms of their size,
shape or configuration, could be controlled in a separate entry that
could become subject to the EAR.
The guidelines governing how items moved to the jurisdiction of the
EAR would be controlled will be addressed in a separate future
Department of Commerce notice. The Department of State is seeking with
this notice comments on current defense articles that the public does
not view meet any of the criteria as explained in Step 4 below.
This guideline is a critical tool for achieving one of the
essential goals of the list reform effort, which is to ``de-conflict''
the USML and the CCL. At the end of the process, the lists should be
written so that exporters easily and consistently can determine the
jurisdictional status of an article, technical data, or software--and
reasonable parties would reach the same conclusion about the nature of
the item at issue if presented with the same facts.
This drafting prohibition exists because it is necessary to stop
using terms that do not readily lend themselves to objective
determinations. These terms have been at the core of most
jurisdictional disputes over the decades and have thus been a
distraction from the larger mission of precisely and clearly
controlling items for national security and foreign policy purposes.
Guideline 2 does not apply to the miscellaneous USML
Categories XVII or XXI. The guidelines, the limitations on and
requirements for use, and its prospective-only characteristics, will be
described in more detail in a separate notice.
3. Positive List Guideline # 3: Items are not to be listed on both
the CCL and the USML unless there are specific technical or other
objective criteria--regardless of the reason why any particular item
was designed or modified--that distinguish between when an item is
USML-controlled and when it is CCL-controlled.
[[Page 76939]]
An implication of this guideline is that if an item is listed on
the CCL, an exporter is entitled to conclude that it is EAR-controlled
unless there is a specific cross reference in the ECCN to the USML
stating that such items that exceed the technical characteristics
described in that USML category are ITAR-controlled--even if the item
was specifically designed, modified, or intended for use in civil
applications. If a cross-reference does not exist, one will be added to
recommend consulting both the USML and the CCL for potential controls,
particularly in situations where an item exceeds specific technical
parameters that could cause it to be USML-controlled.
For example, an integrated circuit that falls within the technical
description of ECCN 3A001 is CCL-controlled regardless of whether it
was specifically designed or modified, in terms of its form or fit, to
function exclusively in a military end-item unless it exceeds the
radiation tolerances described in USML subcategory XV(d). An integrated
circuit that exceeds such tolerances would be USML controlled
regardless of why it was so designed. This example does not preclude
the possibility that subcategory XV(d) may need to be amended to
increase the radiation-tolerant thresholds.
An implication of this guideline is that all controls in the
amended USML and CCL on parts and components must be at the item-type
level, with technical characteristics determining whether or how the
part or component is controlled for export, and not at the model or
part number level by virtue of an item having been modified to fit into
a particular end-item. This approach de-emphasizes the significance of
``form'' or ``fit'' in determining whether an item is USML-controlled
and focuses more on its function, capability, performance, or
characteristics.
4. Positive List Guideline #4: In cases where technical
characteristics are classified and need to be protected, the objective
descriptions of the products controlled should be set at an
unclassified level below the classified level.
As a reminder, both the USML and CCL list review efforts pertain
only to unclassified information (e.g., not Confidential, Secret, or
Top Secret). This means that USML Category XVII (Classified Articles,
Technical Data and Defense Services Not Otherwise Enumerated) does not
need to be reviewed or revised.
5. Positive List Guideline #5: Use ``Specially Designed'' as a
control criterion only when required by multilateral obligations or
when no other reasonable option exists.
There are specific, identified types of end-items and generic
``components'' that are controlled on the Wassenaar Munitions List
because they are ``specially designed'' for another item or some
purpose. The Wassenaar Arrangement does not define the term ``specially
designed.'' Controls for such items should nonetheless carry forward to
the revised USML or revised CCL with as precise of a description as
possible of what is controlled. Thus, for example, the revised USML
subcategory VII(g) generic, catch-all controls over components would
read ``Military Vehicle components as follows:''. The subcategory would
then list the types of components controlled by that subcategory in
that tier using the objective criteria set forth above.
For articles that are not within the scope of the Wassenaar
Munitions List or other multilateral regime, but should nonetheless be
listed on the USML, the term ``specially designed'' should rarely be
used as a control parameter. Where a revised USML subcategory must use
``specially designed'' to remain consistent with the Wassenaar
Arrangement or other multilateral regime obligation or when no other
reasonable option exists to describe the control without using the
term, the public is asked to use the following draft definition of the
term:
``For the purposes of this Subchapter, the term ``specially
designed'' means that the end-item, equipment, accessory, attachment,
system, component, or part (see ITAR Sec. 121.8) has properties that
(i) distinguish it for certain predetermined purposes, (ii) are
directly related to the functioning of a defense article, and (iii) are
used exclusively or predominantly in or with a defense article
identified on the USML.''
The Departments of State and Commerce will be seeking public
comment on this draft definition in a later notice.
Step 4: Provide Recommended Tier of Control for the Defense Articles
Identified in Step 3
The Department of State requests public input on screening those
items the public identifies in a more ``positive'' way in Step 3
against the three tier control criteria listed in Section III above and
described further below, and identify the tier of control for items
within each category and group (A, B, C, D, and E). The U.S. Government
will make the final decisions on what types of defense articles are
within the scope of any of the three tiers and, thus, may or may not
accept suggestions regarding how items should be tiered. Nonetheless,
the Department of State is interested in the public's views on the
issue of how defense articles on a positive list can be described so
that they are distinguished with tiered, objective criteria.
Although the U.S. Government retains full discretion in deciding
how any particular type of defense article is tiered, or divided by
objective criteria among different tiers, the public is asked to
provide input regarding how defense articles, or types of defense
articles with different capabilities, should be described within
different tiers.
The Criteria and the scope of its three tiers are as follows:
1. A Tier 1 control shall apply to:
a. A weapon of mass destruction (WMD);
b. A WMD-capable unmanned delivery system;
c. A plant, facility or item specially designed for producing,
processing, or using:
(i) WMDs;
(ii) Special nuclear materials; or
(iii) WMD-capable unmanned delivery systems; or
d. An item almost exclusively available from the United States that
provides a critical military or intelligence advantage.
2. A Tier 2 control shall apply to an item that is not in Tier 1,
is almost exclusively available from Regime Partners or Adherents and:
a. Provides a substantial military or intelligence advantage; or
b. Makes a substantial contribution to the indigenous development,
production, use, or enhancement of a Tier 1 or Tier 2 item.
3. A Tier 3 control shall apply to an item not in Tiers 1 or 2
that:
a. Provides a significant military or intelligence advantage;
b. Makes a significant contribution to the indigenous development,
production, use, or enhancement of a Tier 1, 2, or 3 item; or
c. Is controlled for national security, foreign policy, or human
rights reasons.
Tier 1 defense articles are those that are almost exclusively
available from the United States and that provide a critical military
or intelligence advantage.
Tier 2 defense articles are those that are almost exclusively
available from countries that are members of the multilateral export
control regimes that control such items and (i) provide a substantial
military or intelligence advantage, or (ii) make a substantial
contribution to the indigenous development, production, use, or
enhancement of a Tier 1 or Tier 2 item.
[[Page 76940]]
Tier 3 defense articles are those that provide a significant
military or intelligence advantage, or make a significant contribution
to the indigenous development, production, use, or enhancement of a
Tier 1, 2, or 3 item.
For defense articles currently controlled on the USML, the public
is asked to identify the items they believe do not fall within the
scope of any of the criteria's tiers and explain why they believe such
items are not within the scope of the criteria. These items may be
candidates to be moved to the CCL.
Items controlled pursuant to multilateral agreement, i.e., the
Wassenaar Arrangement, the Missile Technology Control Regime, the
Australia Group, the Chemical Weapons Convention, and the Nuclear
Suppliers Group, that do not meet the availability or ``military or
intelligence advantage'' control criteria in Tiers 1, 2 or 3 will be
identified by the U.S. Government as Tier 3 items until and unless
their control status is adjusted consistent with the procedures of the
applicable multilateral agreement.
The following are definitions of several of the key terms and
phrases used in the tiered criteria set forth above. The term ``almost
exclusively available'' means that the item is only available from a
very small number of other countries that have in place effective
export controls on the item. The term ``critical'' means providing a
capability with respect to which the United States cannot afford to
fall to parity and that would pose a grave threat to national security
if not controlled (i.e., a ``crown jewel''). Examples of ``grave threat
to national security'' include: Armed hostilities against the United
States or its allies; disruption of foreign relations vitally affecting
the national security; the compromise of vital national defense plans
or complex crypto-logic and communications intelligence systems; the
revelation of sensitive intelligence operations; the disclosure of
scientific or technological developments vital to national security; or
critical assistance to foreign development and/or acquisition of WMD.
The term ``substantial'' means providing a capability with respect
to which the United States must maintain parity and that would pose a
serious threat to national security if not controlled. Examples of a
``serious threat to the national security'' include: Disruption of
foreign relations significantly affecting the national security;
significant impairment of a program or policy directly related to the
national security; revelation of significant military plans or
intelligence operations; compromise of scientific or technological
developments relating to national security; or substantial assistance
to foreign development or acquisition of a WMD.
The term ``significant'' means providing a capability that could be
reasonably expected to cause damage to national security if not
controlled.
Dated: November 30, 2010.
Ellen O. Tauscher,
Under Secretary, Arms Control and International Security, Department of
State.
[FR Doc. 2010-30994 Filed 12-8-10; 4:15 pm]
BILLING CODE 4710-25-P