[Federal Register Volume 79, Number 92 (Tuesday, May 13, 2014)]
[Rules and Regulations]
[Pages 27180-27189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10806]
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DEPARTMENT OF STATE
22 CFR Parts 120, 121, and 124
[Public Notice: 8728]
RIN 1400-AD33
Amendment to the International Traffic in Arms Regulations:
Revision of U.S. Munitions List Category XV
AGENCY: Department of State.
ACTION: Interim final rule.
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SUMMARY: As part of the President's Export Control Reform (ECR) effort,
the Department of State is amending the International Traffic in Arms
Regulations (ITAR) to revise Category XV (Spacecraft and Related
Articles) of the U.S. Munitions List (USML) to describe more precisely
the articles warranting control in that category. The revisions
contained in this rule are part of the Department of State's
retrospective plan under Executive Order 13563 completed on August 17,
2011. This rule is published as an interim final rule because the
Department believes that substantial national security benefits will
flow from the changes to the controls on spacecraft and related items,
but acknowledges that additional analysis of and public comment on the
control thresholds for remote sensing satellites are warranted.
DATES: This rule is effective November 10, 2014, except for Sec.
121.1, Category XV(d), which is effective June 27, 2014. Interested
parties may submit comments on paragraphs (a)(7) and (e)(11) of USML
Category XV and ITAR Sec. 124.15 by June 27, 2014.
ADDRESSES: Interested parties may submit comments on paragraphs (a)(7)
and (e)(11) of USML Category XV and ITAR Sec. 124.15 within 45 days of
the date of publication by one of the following methods:
E-mail: [email protected] with the subject line,
``USML Category XV(a)(7) and (e)(11) and ITAR Sec. 124.15.''
Internet: At www.regulations.gov, search for this notice
by using this notice's RIN (1400-AD33).
Comments received after that date may be considered if feasible,
but consideration cannot be assured. Those submitting comments should
not include any personally identifying information they do not desire
to be made public or information for which a claim of confidentiality
is asserted because those comments and/or transmittal emails will be
made available for public inspection and copying after the close of the
comment period via the Directorate of Defense Trade Controls Web site
at www.pmddtc.state.gov. Parties who wish to comment anonymously may do
so by submitting their comments via www.regulations.gov, leaving the
fields that would identify the commenter blank and including no
identifying information in the comment itself. Comments submitted via
www.regulations.gov are immediately available for public inspection.
FOR FURTHER INFORMATION CONTACT: Mr. C. Edward Peartree, Director,
Office of Defense Trade Controls Policy, Department of State, telephone
(202) 663-2792; email [email protected]. ATTN: Regulatory
Change, USML Category XV. The Department of State's full retrospective
plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.
SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls
(DDTC), U.S. Department of State, administers the International Traffic
in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to
the jurisdiction of the ITAR, i.e., ``defense articles'' and ``defense
services,'' are identified on the ITAR's U.S. Munitions List (USML) (22
CFR 121.1). With few exceptions, items not subject to the export
control jurisdiction of the ITAR are subject to the jurisdiction of the
Export Administration Regulations (``EAR,'' 15 CFR 730-774, which
includes the Commerce Control List (CCL) in Supplement No. 1 to part
774), administered by the Bureau of Industry and Security (BIS), U.S.
Department of Commerce. Both the ITAR and the EAR impose license
requirements on exports, reexports, and retransfers. Items not subject
to the ITAR, or to the exclusive licensing jurisdiction of any other
set of regulations, are subject to the EAR.
All references to the USML in this rule are to the list of defense
articles and defense services controlled for the purpose of export or
temporary import pursuant to the ITAR, and not to the defense articles
on the USML that are controlled by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) for the purpose of permanent import under
its regulations. See 27 CFR 447. Pursuant to section 38(a)(1) of the
Arms Export Control Act (AECA), all defense articles controlled for
export or import are part of the USML under the AECA. For the sake of
clarity, the list of defense articles controlled by ATF for the purpose
of permanent import is the U.S. Munitions Import List (USMIL). The
transfer of defense articles from the ITAR's USML to the EAR's CCL for
the purpose of export control does not affect the list of defense
articles controlled on the USMIL under the AECA for the purpose of
permanent import.
Changes in This Rule
The following changes are made to the ITAR with this interim final
rule: (i) Revision of U.S. Munitions List (USML) Category XV
(Spacecraft and Related Articles); (ii) amendment to paragraph (i) of
USML Category IV, regarding spacecraft-launch vehicle integration and
launch failure analysis services; (iii) conforming edits to ITAR Sec.
124.15, regarding special export controls for satellites and satellite
launches; and (iv) amendment to ITAR Sec. 120.10(b) to include
telemetry data to the list of exclusions from technical data. The
Department notes that there is a shorter implementation period for
radiation-hardened microelectronic circuits formerly described in
paragraph (d) of
[[Page 27181]]
USML Category XV; 45 days following publication of this rule, they are
controlled in ECCN 9A515.d. In addition, microelectronic circuits that
would otherwise have been within the scope of paragraph (e) of USML
Category XV are no longer subject to the ITAR 45 days following the
publication of this rule; instead, they are controlled in ECCN 9A515.e.
Software and technical data directly related to such microelectronic
circuits are controlled in ECCNs 9D515 and 9E515, respectively, 45 days
following the publication of this rule as well.
When moving items from the USML to the jurisdiction of the CCL, the
Department coordinates the publication of rules with the Department of
Commerce so there is uninterrupted regulatory coverage for the items
changing jurisdiction. The Department of Commerce's companion to this
rule is, ``Revisions to the Export Administration Regulations (EAR):
Control of Spacecraft Systems and Related Items the President
Determines No Longer Warrant Control Under the United States Munitions
List (USML).'' It is published elsewhere in this issue of the Federal
Register.
The revised definition for defense services, published with the
USML Category XV proposed rule (RINs 1400-AC80 and 1400-AD33) on May
24, 2013, will be the subject of a separate rule.
Impact on Licensing Burden
As required by Executive Order 13563, the Department intends to
review this rule's impact on the licensing burden on exporters.
Licensing and export data are routinely collected on an ongoing basis,
including from the Department's electronic licensing database, from the
Automated Export System, and from public comments. This information has
been, and will continue to form, the basis for ongoing reviews of this
rule and other rules promulgated pursuant to ECR. As part of its plan
for retrospective analysis under Executive Order 13563, the Department
intends to conduct periodic reviews of this rule and to modify, or
repeal, aspects of this rule, as appropriate, after public notice and
comment. With regard to a number of aspects of this rule, assessments
and refinements will be made on an ongoing basis. This is particularly
the case with regard to possible modifications that will be considered
based on the public comments.
Revision of USML Category XV
This interim final rule revises USML Category XV, covering
spacecraft and related articles, to remove from it certain articles
that are now subject to the EAR, and to more clearly describe the
articles controlled therein.
This rule follows a change to section 1513 of Public Law 105-261,
the Strom Thurmond National Defense Authorization Act for Fiscal Year
1999, which required that space-related items, including all
satellites, were to be controlled as defense articles and removed the
President's authority to move these items off the USML.
Section 1248 of the National Defense Authorization Act for Fiscal
Year 2010 (Pub. L. 111-84) provided that the Secretaries of Defense and
State carry out an assessment of the risks associated with removing
satellites and related components from the USML. The Departments of
Defense and State conducted this review and identified certain
satellites and related items that are not critical to national
security, do not contain technologies unique to the United States, and
are more appropriately subject to the EAR, which allows for the
creation of license exceptions for exports to certain destinations and
complete controls for exports to others. This report was provided to
the Congress in April 2012.
The National Defense Authorization Act for Fiscal Year 2013 (Pub.
L. 112-239), in section 1261, returned to the President the authority
to determine which satellites and related articles are controlled on
the USML. With this authority, and consistent with the President's
Export Control Reform (ECR) effort, the Department made the following
revisions to USML Category XV.
Paragraphs (a) and (e) are revised to more specifically describe
the articles controlled therein. Certain commercial communications and
remote sensing satellites are not enumerated in paragraph (a); they are
now subject to the EAR.
Paragraph (b) is revised to limit its scope to ground control
systems and training simulators specially designed for telemetry,
tracking, and control of spacecraft in paragraph (a) of USML Category
XV.
The articles currently covered in paragraph (c), certain Global
Positioning System receiving equipment, will be proposed for control in
USML Category XII. Until a revised USML Category XII is implemented,
these articles will continue to be covered in paragraph (c).
The articles formerly covered in paragraph (d), certain radiation-
hardened microelectronic circuits, are controlled on the CCL in new
ECCN 9A515.d. To the extent paragraph (e) controlled any other
microelectronic circuits, they are controlled on the CCL in new ECCN
9A515.e. Software and technical data directly related to such
microelectronic circuits are controlled on the CCL in new ECCNs 9D515
and 9E515, respectively. The effective date for these changes in
controls pertaining to microelectronic circuits is 45 days from the
publication date of this rule.
Paragraph (f) is revised to explicitly provide that directly
related defense services include the furnishing of assistance
(including training) in the integration of a satellite or spacecraft to
a launch vehicle, including both planning and onsite support,
regardless of the jurisdiction, ownership, or origin of the satellite
or spacecraft, or whether technical data is used. It also includes the
furnishing of assistance (including training) in the launch failure
analysis of a satellite or spacecraft, regardless of the jurisdiction,
ownership, or origin of the satellite of spacecraft, or whether
technical data is used. This text was part of the defense services
definition published with the proposed rule for this category; the
Department now provides it in paragraph (f).
Articles common to the Missile Technology Control Regime (MTCR)
Annex and the USML are identified on the USML, including in USML
Category XV, with the parenthetical ``(MT)'' at the end of each
paragraph containing such articles.
A new ``(x) paragraph'' is added to USML Category XV, allowing ITAR
licensing for commodities, software, and technology subject to the EAR,
provided those commodities, software, and technology are to be used in
or with defense articles controlled in USML Category XV and are
described in the purchase documentation submitted with the application.
The Department notes that ``technical data'' instead of ``technology''
was used in the revised USML categories that have been published thus
far, and that have a paragraph (x). Those paragraphs will be amended to
adopt this change. The EAR definition of technology is operative in
this paragraph.
Revised USML Category XV, along with a revised definition for
defense services, was published as a proposed rule on May 24, 2013, for
public comment (see ``Amendment to the International Traffic in Arms
Regulations: Revision of U.S. Munitions List Category XV and Definition
of `Defense Service,''' 78 FR 31444, RINs 1400-AC80 and 1400-AD33). The
comment period ended July 8, 2013. The public comments were reviewed
and considered by the Department and other agencies. The Department's
evaluation of the written comments and
[[Page 27182]]
recommendations for the defense services definition will be provided in
a separate rule regarding defense services. The Department's evaluation
of the written comments and recommendations for USML Category XV
follows.
The Department notes that although the Administration sought the
authority to decide the export licensing jurisdiction for spacecraft
and related articles, the Department, along with the Department of
Defense, reported to the Congress that currently only three broad types
of articles are appropriate to control on the CCL: Communication
satellites that do not contain classified components or capability;
remote sensing satellites with performances parameters below certain
thresholds; and systems, subsystems, parts, and components associated
with these satellites and with performance parameters below certain
thresholds. The Department intends to control on the USML, and
specifically provides for this in paragraph (a) introductory text, some
spacecraft that have commercial end-use. Spacecraft that have
commercial end-use with capabilities above specified thresholds will
still be controlled on the USML. Therefore, the Department did not
accept recommendations to move off the USML certain spacecraft based on
the rationale that established commercial end-use alone should
determine export jurisdiction.
As an example, a commenting party recommended that satellites and
associated articles pertaining to the Amateur Satellite Service not be
controlled on the USML. To the greatest extent possible, the Department
is revising the USML using the principle of control based on article
capability, and not article end-use, believing the former to be the
better standard for protecting the technologies of importance to
national security. Based on this standard, the Department did not
accept this recommendation or other recommendations to remove from USML
Category XV satellites and associated articles based solely on
potential or actual commercial application. As was the case before this
revision, if a commercial or research activity requires the export of
an article controlled under USML Category XV (to include the provision
of technical data to a foreign person in the United States, but
excluding certain instances where a defense article is incorporated
into a spacecraft now subject to the EAR), ITAR licensing requirements
apply.
Commenting parties recommended various articles that would be
pertinent to the emerging civil and commercial space industry be moved
from the USML to the CCL so as to facilitate its growth. The Department
did not accept the premise of this recommendation. The review of USML
Category XV was conducted with the intent of appropriately protecting
military-critical technologies; the revisions to the category are
consistent with this intention. While nurturing the civil and
commercial space industry is a laudable goal, certain of the
technologies on which this industry may develop and operate are of
critical military importance and concern, and therefore must remain
controlled on the USML at this time. For example, launching spacecraft
to sub-orbit or orbit requires MTCR Category I items, upon which are
placed the greatest restraint with regard to export. The Department
deems it appropriate that such articles are controlled on the USML.
Spacecraft specially designed for human space flight that have
integrated propulsion present another security concern, for such
capabilities may be used for the purposes of weapons targeting from
space. So, although these technologies and capabilities are used in
commercial endeavors, they continue to merit control on the USML. As
technologies develop, and as there may come to be a greater
differentiation between military-critical and commercial technologies,
their licensing jurisdiction will be reassessed, as provided for in
section 38(f) of the AECA.
In response to the recommendation of commenting parties, the
Department qualified the term ``track'' in paragraph (a)(2) by adding
the terms ``autonomously'' and ``real-time.''
In response to the recommendation of a commenting party, the
Department clarifies that paragraph (a)(3) does not capture signal
interference mitigation technology and revised the paragraph to make
clearer the intention of the paragraph.
Commenting parties recommended revising paragraph (a)(4), to except
from it such services that are commercial in nature. The Department did
not accept this recommendation. As the technology and applications in
question are at an initial phase of development, the Department does
not believe there is currently a commercial impact of this regulation.
The Department, though, modified the text to more precisely describe
the articles controlled therein, and renumbered it as paragraph
(a)(10).
Commenting parties recommended the aperture threshold for civil and
commercial remote sensing satellites in paragraph (a)(7)(i) be
increased from 0.35 meters to a threshold more appropriate for current
world capabilities and market conditions. The Department did not accept
this recommendation at this time. However, it, along with other
agencies, understands that the technology and civil and commercial
applications in this area are evolving. Thus, the Department has
committed to reviewing during the six months after the publication of
this rule whether further amendments to the USML controls on civil and
commercial remote sensing satellites are warranted, and seeks
additional public comment on this matter.
In response to the recommendation of a commenting party, the
Department confirms that satellites with payloads designed to
supplement the signals produced by other satellite-based or terrestrial
navigation systems for specific geographic areas or terrestrial
applications are not covered by paragraph (a)(9). Therefore, a
satellite or spacecraft that provides only a differential correction
broadcast for the purposes of positioning, navigation, or timing is
controlled in ECCN 9A515.
In response to commenting parties, the Department removed as a
control parameter the text of paragraph (c)(2) (``designed for
producing navigation results above 60,000 feet altitude and at 1,000
knots velocity or greater'') for Global Positioning System receiving
equipment. That control parameter has been updated based upon the MTCR
Annex. Therefore, Global Positioning System receiving equipment
designed or modified for airborne applications and capable of providing
navigation information at speeds in excess of 600 m/s (1,165 nautical
mph), and specially designed parts and components therefor, are
controlled in ECCN 7A105. Paragraph (c) controls Global Positioning
System receiving equipment based upon the three remaining criteria.
In response to the recommendation of commenting parties, the
Department provided a shorter implementation period for radiation-
hardened microelectronic circuits. The articles formerly described in
paragraph (d) are controlled in ECCN 9A515.d, 45 days following
publication of this rule. In addition, microelectronic circuits that
would otherwise have been within the scope of paragraph (e) are no
longer subject to the ITAR 45 days following the publication of this
rule; instead, they are controlled in ECCN 9A515.e. Software and
technical data directly related to such microelectronic circuits are
controlled in ECCNs 9D515 and 9E515, respectively, 45 days following
the publication of this rule as well. The Department notes that these
items cannot be exported via a Department
[[Page 27183]]
license intended to export only USML Category XV articles until
paragraph (x) of USML Category XV takes effect (and provided the other
criteria for use of paragraph (x) are met).
In response to the recommendation of commenting parties, the
Department revised the text in paragraph (e)(1) to clarify that
antennas on spacecraft are controlled therein, and not ground-based
antennas.
A commenting party recommended that the diameter of the antenna
system described in paragraph (e)(1) be increased from greater than 25
meters to greater than 35 meters, and the aperture dimension provided
for space-qualified optics in paragraph (e)(2) be increased. The
Department did not accept these recommendations. The Department notes
that, as provided in a note to paragraph (e), spacecraft and other
items described in ECCN 9A515 remain subject to the EAR, even if
defense articles are incorporated therein, provided the resultant
spacecraft is not described in paragraph (a).
In response to commenting parties, the Department clarifies that
paragraph (e)(7) does not control space-qualified laser radar or Light
Detection and Ranging (LIDAR) equipment, and notes that none of the
items excluded from USML control, as formerly identified in a note to
paragraph (e), are included in this revised USML Category XV.
A commenting party requested clarification of the term ``space-
based'' in paragraph (e)(8), and how it is differentiated from the term
``space-qualified.'' The Department moved the controls of paragraph
(e)(8) to (e)(7), and removed paragraph (e)(8) and use of the term
``space-based.'' The Department included in a note to paragraph (e) the
information that the terms ``designed'' and ``manufactured'' in the
space-qualified definition are synonymous with the specially designed
definition of ITAR Sec. 120.41. The Department also notes that use in
the ITAR of the ``space-qualified'' definition, a central criterion of
which is the altitude aspect, does not indicate that the U.S.
government has accepted that the altitude of 100 km above the surface
of the Earth represents a legal demarcation between national air space
and outer space under United States or international law.
The Department notes that paragraph (e)(11) has been expanded to
include other space-based systems that were not included in the
proposed rule. In the proposed rule, paragraph (e)(11) read thus:
``Space-based nuclear thermionic or non-nuclear thermionic converters
or generators, and specially designed parts and components therefor.''
In this rule, paragraph (e)(11) reads thus: ``Space-based systems, and
specially designed parts and components therefor, as follows: (i)
Nuclear reactors and associated power conversion systems (e.g., liquid
metal or gas-cooled fast reactors); (ii) radioisotope-based power
systems (e.g., radioisotope thermoelectric generators); or (iii)
nuclear thermal propulsion systems (e.g., solid core, liquid core, gas
core fission.'' The Department is seeking comment on this revision of
paragraph (e)(11).
In response to commenting parties, the Department revised the
regulation at paragraph (e)(13) to capture those control moment
gyroscopes that are specially designed for spacecraft. The Department
notes that paragraph (e)(13) does not control fly wheels or reaction
wheels.
Commenting parties requested clarification that an ITAR-controlled
hosted payload on a satellite subject to the EAR would not change the
licensing jurisdiction of the satellite, making it a satellite
controlled on the USML. The Department added a note to paragraph
(e)(17) stipulating that a satellite subject to the EAR that has such a
hosted payload that performs any of the functions described in
paragraph (a) will remain subject to the EAR. In addition, the note
also provides that a satellite with a primary or secondary payload that
performs any of the functions described in paragraph (a) is a satellite
controlled on the USML.
The Department did not accept the recommendation of commenting
parties to remove the paragraph controlling payloads developed with
Department of Defense funding, but it did provide for certain
exclusions, and added a provision delaying the effective date of the
paragraph for six months beyond the effective date of the revised
category. One such exclusion is that a payload developed with
Department of Defense funding can nonetheless be determined to be
subject to the EAR pursuant to a Commodity Jurisdiction determination.
This means that, with respect to secondary or hosted payload, or
specially designed parts or components therefor, that are subject to
the ITAR only by virtue having been developed with Defense Department
funding (i.e., no other parts of USML Category XV apply to the
articles), one may request the Department to exercise its discretion to
determine under ITAR Sec. 120.4 that the article is nonetheless not
subject to the ITAR. The Department will process such requests on a
case-by-case basis based on whether the article at issue would
otherwise meet the standards for being included on the USML.
Commenting parties recommended the Department confirm that various
types of telemetry--i.e., communications to and from satellites and
other spacecraft, whether on the ground, in the air, or in space--are
not subject to the ITAR or the EAR, or, if so, to exclude them from the
controls for satellite and spacecraft technical data and technology in
paragraph (f) and ECCN 9E515. Based on a review of the comments and the
types of information pertaining to satellites and spacecraft that
warrant control, the Departments of State and Commerce have determined
to codify existing policy within the regulations that data transmitted
to or from a satellite or spacecraft, whether real or simulated, is not
subject to the ITAR and, if within the scope of the EAR's definition of
``technology,'' is designated as EAR99 if it is limited to information
about the health, operational status, or function of, or raw sensor
output from, the spacecraft, spacecraft payload, or its associated
subsystems or components. Such information is often referred to as
``housekeeping data.'' In addition, the act of processing such
telemetry data--i.e., converting raw data into engineering units or
readable products--or encrypting it does not, in and of itself, cause
the telemetry data to become subject to the ITAR or to ECCN 9E515. To
implement this determination, the Department added a note to paragraph
(f) that such information is not subject to the ITAR and the Department
of Commerce added a note to ECCN 9E515 that such information, to the
extent it would be subject to the EAR, is EAR99. Other types of
technical data, as defined in ITAR Sec. 120.10, directly related to
USML Category XV articles and other types of technology, as defined in
EAR Sec. 772.1, required for 9A515 items, are still controlled. In
addition, the notes to paragraph (f) and 9E515 do not change the ITAR-
control status of classified information directly related to defense
articles and defense services on the USML and 600-series items subject
to the EAR, as well as information covered by an invention secrecy
order. ``Classified,'' for these purposes, means that which is
classified pursuant to Executive Order 13526, a predecessor or
successor order, or to the corresponding classification rules of
another government or international organization.
The Department received proposals for alternative phrasing of the
regulatory text in USML Category XV. When the recommended changes added
to the clarity of the regulation and were
[[Page 27184]]
consistent with the Administration's ECR effort, the Department
accepted them.
As stated above, the Department will address public comments on the
proposed revision of the defense services definition in a separate
rule. However, the Department addresses here one of the comments that
resulted in a change to USML Categories IV and XV. A commenting party
recommended that paragraphs (a)(5) and (a)(6) of the proposed defense
services definition, regarding the furnishing of assistance in the
integration of a spacecraft to a launch vehicle and in the launch
failure analysis of a spacecraft or launch vehicle, respectively, be
removed, and that those activities be described in the USML categories
covering spacecraft and launch vehicles, on the basis that a general
definition should not have such program-specific clauses. The
Department accepted this recommendation and revised paragraph (f) of
USML Category XV and paragraph (i) of USML Category IV accordingly. The
revision includes the recommendation of commenting parties to
specifically provide that the service must be provided to a foreign
person in order for it to be a licensable activity.
Additional Changes
The Department revised the definition of technical data at ITAR
Sec. 120.10 to specify that it does not include telemetry data as
defined in note 3 to USML Category XV(f).
The Department amended paragraph (i) of USML Category IV to specify
that directly related defense services include the furnishing of
assistance (including training) in the integration of a satellite or
spacecraft to a launch vehicle, including both planning and onsite
support, regardless of the jurisdiction, ownership, or origin of the
satellite or spacecraft, or whether technical data is used. It also
includes the furnishing of assistance (including training) in the
launch failure analysis of a launch vehicle, regardless of the
jurisdiction, ownership, or origin of the launch vehicle, or whether
technical data is used. This text was part of the defense services
definition published with the proposed rule for USML Category XV; the
Department now provides it in paragraph (i) of USML Category IV.
The Department revised ITAR Sec. 124.15 to clarify which special
export controls apply to satellites and related items subject to the
ITAR and which controls apply to satellites and related items subject
to the ITAR or the EAR. For certain of the special export controls, the
Department of Commerce is adding consistent controls in its companion
interim final rule for satellites subject to the EAR. Because the
changes to this section were not in the proposed rule, the Department
is now requesting comment.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the opinion that controlling the
import and export of defense articles and services is a foreign affairs
function of the United States Government and that rules implementing
this function are exempt from sections 553 (rulemaking) and 554
(adjudications) of the Administrative Procedure Act (APA). Although the
Department is of the opinion that this rule is exempt from the
rulemaking provisions of the APA, the Department published this rule as
proposed rule with a 45-day provision for public comment and without
prejudice to its determination that controlling the import and export
of defense services is a foreign affairs function.
Regulatory Flexibility Act
Since the Department is of the opinion that this rule is exempt
from the provisions of 5 U.S.C. 553, there is no requirement for an
analysis under the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not involve a mandate that will result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any year and it
will not significantly or uniquely affect small governments. Therefore,
no actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
For purposes of the Small Business Regulatory Enforcement Fairness
Act of 1996 (the ``Act''), a ``major'' rule is a rule that the
Administrator of the OMB Office of Information and Regulatory Affairs
finds has resulted or is likely to result in (1) an annual effect on
the economy of $100,000,000 or more; (2) a major increase in costs or
prices for consumers, individual industries, federal, state, or local
government agencies, or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and foreign markets.
The Department does not believe this rulemaking will have an annual
effect on the economy of $100,000,000 or more. Articles that are being
removed from coverage in the U.S. Munitions List categories contained
in this rule will still require licensing for export, but from the
Department of Commerce. While the licensing regime of the Department of
Commerce is more flexible than that of the Department of State, it is
not expected that the change in jurisdiction of these articles will
result in an export difference of $100,000,000 or more.
The Department also does not believe that this rulemaking will
result in a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies, or geographic
regions, or have significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic and foreign markets.
Executive Orders 12372 and 13132
This rulemaking will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rulemaking does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this rulemaking.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributed impacts, and equity). These executive orders
stress the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This rulemaking has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, this rule has been reviewed by the
[[Page 27185]]
Office of Management and Budget (OMB).
Executive Order 12988
The Department of State reviewed this rulemaking in light of
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden.
Executive Order 13175
The Department of State determined that this rulemaking will not
have tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not preempt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
Paperwork Reduction Act
Following is a listing of approved collections that will be
affected by revision of the USML and the CCL pursuant to ECR. This
final rule continues the implementation of ECR. The list of collections
and the description of the manner in which they will be affected
pertains to revision of the USML in its entirety, not only to the
category published in this rule. In accordance with the Paperwork
Reduction Act, the Department of State will request comment on these
collections from all interested persons. In particular, the Department
will seek comment on changes to licensing burden based on
implementation of regulatory changes pursuant to ECR, and on projected
changes based on continued implementation of regulatory changes
pursuant to ECR. The affected information collections are as follows:
(1) Statement of Registration, DS-2032, OMB No. 1405-0002. The
Department estimates that up to 5,000 of currently-registered persons
will not need to maintain registration following full revision of the
USML. This would result in a burden reduction of 10,000 hours annually,
based on a revised time burden of two hours to complete a Statement of
Registration.
(2) Application/License for Permanent Export of Unclassified
Defense Articles and Related Unclassified Technical Data, DSP-5, OMB
No. 1405-0003. The Department estimates that there will be 35,000 fewer
DSP-5 submissions annually following full revision of the USML. This
would result in a burden reduction of 35,000 hours annually.
(3) Application/License for Temporary Import of Unclassified
Defense Articles, DSP-61, OMB No. 1405-0013. The Department estimates
that there will be 200 fewer DSP-61 submissions annually following full
revision of the USML. This would result in a burden reduction of 100
hours annually.
(4) Application/License for Temporary Export of Unclassified
Defense Articles, DSP-73, OMB No. 1405-0023. The Department estimates
that there will be 800 fewer DSP-73 submissions annually following full
revision of the USML. This would result in a burden reduction of 800
hours annually.
(5) Application for Amendment to License for Export or Import of
Classified or Unclassified Defense Articles and Related Technical Data,
DSP-6, -62, -74, -119, OMB No. 1405-0092. The Department estimates that
there will be 2,000 fewer amendment submissions annually following full
revision of the USML. This would result in a burden reduction of 1,000
hours annually.
(6) Request for Approval of Manufacturing License Agreements,
Technical Assistance Agreements, and Other Agreements, DSP-5, OMB No.
1405-0093. The Department estimates that there will be 1,000 fewer
agreement submissions annually following full revision of the USML.
This would result in a burden reduction of 2,000 hours annually.
(7) Maintenance of Records by Registrants, OMB No. 1405-0111. The
requirement to actively maintain records pursuant to provisions of the
International Traffic in Arms Regulations (ITAR) will decline
commensurate with the drop in the number of persons who will be
required to register with the Department pursuant to the ITAR. As
stated above, the Department estimates that up to 5,000 of the
currently-registered persons will not need to maintain registration
following full revision of the USML. This would result in a burden
reduction of 100,000 hours annually. However, the ITAR does provide for
the maintenance of records for a period of five years. Therefore,
persons newly relieved of the requirement to register with the
Department may still be required to maintain records.
(8) Export Declaration of Defense Technical Data or Services, DS-
4071, OMB No. 1405-0157. The Department estimates that there will be
2,000 fewer declaration submissions annually following full revision of
the USML. This would result in a burden reduction of 1,000 hours
annually.
List of Subjects
22 CFR Parts 120 and 121
Arms and munitions, Classified information, Exports.
22 CFR Part 124
Arms and munitions, Exports, Technical assistance.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, parts 120, 121, and 124 are amended as follows:
PART 120--PURPOSE AND DEFINITIONS
0
1. The authority citation for part 120 continues to read as follows:
Authority: Sections 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; 22 U.S.C. 2651a; Pub.
L. 105-261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L.
112-239; E.O. 13637, 78 FR 16129.
0
2. Section 120.10 is amended by revising paragraph (b) to read as
follows:
Sec. 120.10 Technical data.
* * * * *
(b) The definition in paragraph (a) of this section does not
include information concerning general scientific, mathematical, or
engineering principles commonly taught in schools, colleges, and
universities, or information in the public domain as defined in Sec.
120.11 of this subchapter or telemetry data as defined in note 3 to
Category XV(f) of part 121 of this subchapter. It also does not include
basic marketing information on function or purpose or general system
descriptions of defense articles.
PART 121--THE UNITED STATES MUNITIONS LIST
0
3. The authority citation for part 121 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105-261, 112
Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
0
4. Section 121.1 is amended by revising paragraph (i) of U.S. Munitions
List Category IV and revising Category XV, to read as follows:
Sec. 121.1 General. The United States Munitions List.
* * * * *
Category IV-- Launch Vehicles, Guided Missiles, Ballistic Missiles,
Rockets, Torpedoes, Bombs, and Mines
* * * * *
(i) Technical data (see Sec. 120.10 of this subchapter) and
defense services (see Sec. 120.9 of this subchapter) directly related
to the defense articles enumerated in paragraphs (a) through (h) of
this category and classified technical data directly related to items
[[Page 27186]]
controlled in ECCNs 0A604, 0B604, 0D604, 9A604, 9B604, or 9D604 and
defense services using the classified technical data. Defense services
include the furnishing of assistance (including training) in the
integration of a satellite or spacecraft to a launch vehicle, including
both planning and onsite support, regardless of the jurisdiction,
ownership, or origin of the satellite or spacecraft, or whether
technical data is used. It also includes the furnishing of assistance
(including training) in the launch failure analysis of a launch
vehicle, regardless of the jurisdiction, ownership, or origin of the
launch vehicle, or whether technical data is used. (See Sec. 125.4 of
this subchapter for exemptions, and Sec. 124.15 of this subchapter for
special export controls for spacecraft and spacecraft launches.) (MT
for technical data and defense services related to articles designated
as such.)
* * * * *
Category XV-- Spacecraft and Related Articles
(a) Spacecraft, including satellites and space vehicles, whether
designated developmental, experimental, research, or scientific, or
having a commercial, civil, or military end-use, that:
*(1) Are specially designed to mitigate effects (e.g.,
scintillation) of or for detection of a nuclear detonation;
*(2) Autonomously track ground, airborne, missile, or space objects
in real-time using imaging, infrared, radar, or laser systems;
*(3) Conduct signals intelligence (SIGINT) or measurement and
signatures intelligence (MASINT);
*(4) Are specially designed to be used in a constellation or
formation that when operated together, in essence or effect, form a
virtual satellite (e.g., functioning as if one satellite) with the
characteristics or functions of other items in paragraph (a);
*(5) Are anti-satellite or anti-spacecraft (e.g., kinetic, RF,
laser, charged particle);
*(6) Have space-to-ground weapons systems (e.g., kinetic or
directed energy);
*(7) Have any of the following electro-optical remote sensing
capabilities or characteristics:
(i) Electro-optical visible and near infrared (VNIR) (i.e., 400nm
to 1,000nm) or infrared (i.e., greater than 1,000nm to 30,000nm) with
less than 40 spectral bands and having a clear aperture greater than
0.35 meters;
(ii) Electro-optical hyperspectral with 40 spectral bands or more
in the VNIR, short-wavelength infrared (SWIR) (i.e., greater than
1,000nm to 2,500nm) or any combination of the aforementioned and having
a Ground Sample Distance (GSD) less than 30 meters;
(iii) Electro-optical hyperspectral with 40 spectral bands or more
in the mid-wavelength infrared (MWIR) (i.e., greater than 2,500nm to
5,500nm) having a narrow spectral bandwidth of [Delta][lambda] less
than or equal to 20nm full width at half maximum (FWHM) or having a
wide spectral bandwidth with [Delta][lambda] greater than 20nm FWHM and
a GSD less than 200 meters; or
(iv) Electro-optical hyperspectral with 40 spectral bands or more
in the long-wavelength infrared (LWIR) (i.e., greater than 5,500nm to
30,000nm) having a narrow spectral bandwidth of [Delta][lambda] less
than or equal to 50nm FWHM or having a wide spectral bandwidth with
[Delta][lambda] greater than 50nm FWHM and a GSD less than 500 meters;
Note 1 to paragraph (a)(7): Ground Sample Distance (GSD) is
measured from a spacecraft's nadir (i.e., local vertical) position.
Note 2 to paragraph (a)(7): Optical remote sensing spacecraft
or satellite spectral bandwidth is the smallest difference in
wavelength (i.e., [Delta][lambda]) that can be distinguished at full
width at half maximum (FWHM) of wavelength [lambda].
Note 3 to paragraph (a)(7): An optical satellite or spacecraft
is not Significant Military Equipment (see Sec. 120.7 of this
subchapter) if non-earth pointing.
* (8) Have radar remote sensing capabilities or characteristics
(e.g., active electronically scanned array (AESA), synthetic aperture
radar (SAR), inverse synthetic aperture radar (ISAR), ultra-wideband
SAR), except those having a center frequency equal to or greater than 1
GHz but less than or equal to 10 GHz and having a bandwidth less than
300 MHz;
(9) Provide Positioning, Navigation, and Timing (PNT) signals;
Note to paragraph (a)(9): This paragraph does not control a
satellite or spacecraft that provides only a differential correction
broadcast for the purposes of positioning, navigation, or timing.
(10) Provide space-based logistics, assembly, or servicing of any
spacecraft (e.g., refueling) and have integrated propulsion other than
that required for attitude control;
(11) [Reserved]
(12) Provide for sub-orbital, Earth orbital, cis-lunar, lunar, deep
space (i.e., space beyond lunar orbit), and planetary spaceflight, or
in-space human habitation, which have integrated propulsion other than
that required for attitude control; or
* (13) Are classified, contain classified software or hardware, are
manufactured using classified production data, or are being developed
using classified information (e.g., having classified requirements,
specifications, functions, or operational characteristics or include
classified cryptographic items controlled under USML Category XIII of
this subchapter). ``Classified'' means classified pursuant to Executive
Order 13526, or predecessor order, and a security classification guide
developed pursuant thereto or equivalent, or to the corresponding
classification rules of another government or international
organization.
Note 1 to paragraph (a): Spacecraft not identified in this
paragraph are subject to the EAR (see ECCNs 9A004 and 9A515).
Spacecraft described in ECCNs 9A004 and 9A515 remain subject to the
EAR even if defense articles described on the USML are incorporated
therein, except when such incorporation results in a spacecraft
described in this paragraph.
Note 2 to paragraph (a): This paragraph does not control (a)
the International Space Station (ISS) and its specially designed (as
defined in the EAR) parts and components, which are subject to the
EAR, or (b) those articles for the ISS that are determined to be
subject to the EAR via a commodity jurisdiction determination (see
Sec. 120.4 of this subchapter). Use of a defense article on the ISS
that was not specially designed (as defined in the EAR) for the ISS
does not cause the item to become subject to the EAR.
Note 3 to paragraph (a): Attitude control is the exercise of
control over spacecraft orientation (e.g., pointing) within an
orbital plane, which may include orbit maintenance using the
attitude control thrusters.
(b) Ground control systems or training simulators, specially
designed for telemetry, tracking, and control (TT&C) of spacecraft in
paragraph (a) of this category.
Note to paragraph (b): Parts, components, accessories,
attachments, equipment, or systems that are common to ground control
systems or training simulators controlled in this paragraph and
those that are used for spacecraft not controlled in paragraph (a)
of this category are subject to the EAR.
(c) Global Positioning System (GPS) receiving equipment specially
designed for military application, or GPS receiving equipment with any
of the following characteristics, and specially designed parts and
components therefor:
(1) Specially designed for encryption or decryption (e.g., Y-Code)
of GPS precise positioning service (PPS) signals (MT if designed or
modified for airborne applications);
(2) [Reserved]
(3) Specially designed for use with a null steering antenna, an
electronically steerable antenna, or including a null
[[Page 27187]]
steering antenna designed to reduce or avoid jamming signals (MT if
designed or modified for airborne applications);
(4) Specially designed for use with rockets, missiles, SLVs,
drones, or unmanned air vehicle systems capable of delivering at least
a 500 kg payload to a range of at least 300 km (MT if designed or
modified for rockets, missiles, SLVs, drones, or unmanned air vehicle
systems controlled in this subchapter).
Note to paragraph (c)(4): ``Payload'' is the total mass that
can be carried or delivered by the specified rocket, missile, SLV,
drone or unmanned aerial vehicle that is not used to maintain
flight. For definition of ``range'' as it pertains to rocket
systems, see note 1 to paragraph (a) of USML Category IV For
definition of ``range'' as it pertains to aircraft systems, see note
to paragraph (a) of USML Category VIII.
Note to paragraph (c): The articles described in this paragraph
are subject to the EAR when, prior to export, reexport, retransfer,
or temporary import, they are integrated into and included as an
integral part of an item subject to the EAR.
(d) [Reserved]
(e) Spacecraft parts, components, accessories, attachments,
equipment, or systems, as follows:
(1) Antenna systems specially designed for spacecraft that:
(i) Have a dimension greater than 25 meters in diameter or length
of the major axis;
(ii) Employ active electronic scanning;
(iii) Are adaptive beam forming; or
(iv) Are for interferometric radar;
(2) Space-qualified optics (i.e., lens or mirror), including
optical coating, having active properties (e.g., adaptive, deformable)
with a largest lateral clear aperture dimension greater than 0.35
meters;
(3) Space-qualified focal plane arrays (FPA) having a peak response
in the wavelength range exceeding 900nm and readout integrated circuit
(ROIC), whether separate or integrated, specially designed therefor;
(4) Space-qualified mechanical (i.e., active) cryocooler or active
cold finger, and associated control electronics specially designed
therefor;
(5) Space-qualified active vibration suppression, including active
isolation and active dampening, and associated control electronics
therefor;
(6) Optical bench assemblies specially designed to enable
spacecraft to meet or exceed the parameters described in paragraph (a)
of this category;
(7) Space-qualified kinetic or directed-energy systems (e.g., RF,
laser, charged particle) specially designed for spacecraft in paragraph
(a)(5) or (a)(6) of this category, and specially designed parts and
components therefor (e.g., power conditioning and beam-handling/
switching, propagation, tracking, and pointing equipment);
(8) [Reserved]
(9) Space-qualified cesium, rubidium, hydrogen maser, or quantum
(e.g., based upon Al, Hg, Yb, Sr, Be Ions) atomic clocks, and specially
designed parts and components therefor;
(10) Attitude determination and control systems, and specially
designed parts and components therefor, that provide a spacecraft's
geolocation accuracy, without using Ground Location Points, better than
or equal to:
(i) 5 meters (CE90) from low earth orbit (LEO);
(ii) 30 meters (CE90) from medium earth orbit (MEO);
(iii) 150 meters (CE90) from geosynchronous orbit (GEO); or
(iv) 225 meters (CE90) from high earth orbit (HEO);
(11) Space-based systems, and specially designed parts and
components therefor, as follows:
(i) Nuclear reactors and associated power conversion systems (e.g.,
liquid metal or gas-cooled fast reactors);
(ii) Radioisotope-based power systems (e.g., radioisotope
thermoelectric generators); or
(iii) Nuclear thermal propulsion systems (e.g., solid core, liquid
core, gas core fission;
(12) Thrusters (e.g., rocket engines) that provide greater than 150
lbf (i.e., 667.23 N) vacuum thrust (MT for rocket motors or engines
having a total impulse capacity equal to or greater than
8.41x10[caret]5 newton seconds);
(13) Control moment gyroscope (CMG) specially designed for
spacecraft;
(14) Space-qualified monolithic microwave integrated circuits
(MMIC) that combine transmit and receive (T/R) functions on a single
die as follows:
(i) Having a power amplifier with maximum saturated peak output
power (in watts), Psat, greater than 200 divided by the maximum
operating frequency (in GHz) squared [Psat >200 W*GHz2/fGHz2]; or
(ii) Having a common path (e.g., phase shifter-digital attenuator)
circuit with greater than 3 bits phase shifting at operating
frequencies 10 GHz or below, or greater than 4 bits phase shifting at
operating frequencies above 10 GHz;
(15) Space-qualified oscillator for radar in paragraph (a) of this
category with phase noise less than -120 dBc/Hz + (20 log10(RF) (in
GHz)) measured at 2 KHz*RF (in GHz) from carrier;
(16) Space-qualified star tracker or star sensor with angular
accuracy less than or equal to 1 arcsec (1-Sigma) per star coordinate,
and a tracking rate equal to or greater than 3.0 deg/sec, and specially
designed parts and components therefor (MT);
*(17) Primary, secondary, or hosted payload that performs any of
the functions described in paragraph (a) of this category;
Note 1 to paragraph (e)(17): Primary payload is that complement
of equipment designed from the outset to accomplish the prime
mission function of the spacecraft payload mission set. The primary
payload may operate independently from the secondary payload(s).
Secondary payload is that complement of equipment designed from the
outset to be fully integrated into the spacecraft payload mission
set. The secondary payload may operate separately from the primary
payload. Hosted payload is a complement of equipment or sensors that
uses the available or excess capacity (mass, volume, power, etc.) of
a spacecraft to accommodate an additional, independent mission. The
hosted payload may share the spacecraft bus support infrastructure.
The hosted payload performs an additional, independent mission which
does not dictate control or operation of the spacecraft. A hosted
payload is not capable of operating as an independent spacecraft.
Spacecraft bus (distinct from the spacecraft payload), provides the
support infrastructure of the spacecraft (e.g., command and data
handling, communications and antenna(s), electrical power,
propulsion, thermal control, attitude and orbit control, guidance,
navigation and control, structure and truss, life support (for
crewed mission)) and location (e.g., attachment, interface) for the
spacecraft payload. Spacecraft payload is that complement of
equipment attached to the spacecraft bus that performs a particular
mission in space (e.g., communications, observation, science).
Note 2 to paragraph (e)(17): An ECCN 9A004 or ECCN 9A515.a
spacecraft remains a spacecraft subject to the EAR even when
incorporating a hosted payload performing a function described in
paragraph (a) of this category. All spacecraft that incorporate
primary or secondary payloads that perform a function described in
paragraph (a) of this category are controlled by that paragraph.
*(18) Secondary or hosted payload, and specially designed parts and
components therefor, developed with Department of Defense-funding;
Note 1 to paragraph (e)(18): This paragraph does not control
payloads that are (a) determined to be subject to the EAR via a
commodity jurisdiction determination (see Sec. 120.4 of this
subchapter), or (b) identified in the relevant Department of Defense
contract or other funding authorization or agreement as being
developed for both military and either civil or commercial
applications.
Note 2 to paragraph (e)(18): This paragraph is applicable only
to those contracts or funding authorizations or agreements that are
dated XXXX XX, 2015, or later.
[[Page 27188]]
(19) Spacecraft heat shields or heat sinks specially designed for
atmospheric entry or re-entry, and specially designed parts and
components therefor (MT if usable in rockets, SLVs, missiles, drones,
or UAVs capable of delivering a payload of at least 500 kg to a range
of at least 300 km);
Note to paragraph (e)(19): ``Payload'' is the total mass that
can be carried or delivered by the specified rocket, SLV, missile,
drone, or UAV that is not used to maintain flight. For definition of
``range'' as it pertains to aircraft systems, see note to paragraph
(a) of USML Category VIII. For definition of ``range'' as it
pertains to rocket systems, see note 1 to paragraph (a) of USML
Category IV.
(20) Equipment modules, stages, or compartments that contain
propulsion other than that required for attitude control and can be
separated or jettisoned from another spacecraft (see note 3 to
paragraph (a) of this category); or
*(21) Any part, component, accessory, attachment, equipment, or
system that:
(i) Is classified;
(ii) Contains classified software; or
(iii) Is being developed using classified information.
Note to paragraph (e)(21): ``Classified'' means classified
pursuant to Executive Order 13526, or predecessor order, and a
security classification guide developed pursuant thereto or
equivalent, or to the corresponding classification rules of another
government or international organization.
Note 1 to paragraph (e): Parts, components, accessories,
attachments, equipment, or systems specially designed for spacecraft
or other articles enumerated in this category but not listed in
paragraph (e) are subject to the EAR.
Note 2 to paragraph (e): The articles described in this
paragraph are subject to the EAR when, prior to export, reexport,
retransfer, or temporary import, they are integrated into and
included as an integral part of an item subject to the EAR (see note
2 to paragraph (e)(17) of this category).
Note 3 to paragraph (e): For the purposes of this paragraph, an
article is space-qualified if it is designed, manufactured, or
qualified through successful testing, for operation at altitudes
greater than 100 km above the surface of the Earth. The use of an
altitude of 100 km above the surface of the Earth in this paragraph
does not represent a legal demarcation between national air space
and outer space under United States or international law.
Note 4 to paragraph (e): (1) A determination that a specific
article (or commodity) (e.g., by product serial number) is space-
qualified by virtue of testing alone does not mean that other
articles in the same production run or model series are space-
qualified if not individually tested. (2) ``Article'' is synonymous
with ``commodity,'' as defined in EAR Sec. 772.1. (3) A specific
article not designed or manufactured for use at altitudes greater
than 100 km above the surface of the Earth is not space-qualified
before it is successfully tested. (4) The terms ``designed'' and
``manufactured'' in this definition are synonymous with ``specially
designed.''
(f) Technical data (see Sec. 120.10 of this subchapter) and
defense services (see Sec. 120.9 of this subchapter) directly
related to the defense articles enumerated in paragraphs (a) through
(e) of this category and classified technical data directly related
to items controlled in ECCNs 9A515, 9B515, or 9D515 and defense
services using the classified technical data. Defense services
include the furnishing of assistance (including training) in the
integration of a satellite or spacecraft to a launch vehicle,
including both planning and onsite support, regardless of the
jurisdiction, ownership, or origin of the satellite or spacecraft,
or whether technical data is used. It also includes the furnishing
of assistance (including training) in the launch failure analysis of
a satellite or spacecraft, regardless of the jurisdiction,
ownership, or origin of the satellite of spacecraft, or whether
technical data is used. (See Sec. 125.4 of this subchapter for
exemptions, and Sec. 124.15 of this subchapter for special export
controls for satellites and satellite launches.) (MT for technical
data and defense services related to articles designated as such.)
Note 1 to paragraph (f): The technical data control of this
paragraph does not apply to technical data directly related to
articles enumerated in paragraphs (c) or (e) of this category when
such articles are integrated into and included as an integral part
of a satellite subject to the EAR. For controls in these
circumstances, see ECCN 9E515. This includes that level of technical
data (including marketing data) necessary and reasonable for a
purchaser to have assurance that a U.S. built item intended to
operate in space has been designed, manufactured, and tested in
conformance with specified contract requirements (e.g., operational
performance, reliability, lifetime, product quality, or delivery
expectations) as well as data necessary for normal orbit satellite
operations, to evaluate in-orbit anomalies, and to operate and
maintain associated ground station equipment (except encryption
hardware).
Note 2 to paragraph (f): Activities and technology/technical
data directly related to or required for the spaceflight (e.g., sub-
orbital, orbital, lunar, interplanetary, or otherwise beyond Earth
orbit) passenger or participant experience, regardless of whether
the passenger or participant experience is for space tourism,
scientific or commercial research, commercial manufacturing/
production activities, educational, media, or commercial
transportation purposes, are not subject to the ITAR or the EAR.
Such activities and technology/technical data include those directly
related to or required for: (a) Spacecraft access, ingress, and
egress, including the operation of all spacecraft doors, hatches,
and airlocks; (b) physiological training (e.g., human-rated
centrifuge training or parabolic flights, pressure suit or spacesuit
training/operation); (c) medical evaluation or assessment of the
spaceflight passenger or participant; (d) training for and operation
by the passenger or participant of health and safety related
hardware (e.g., seating, environmental control and life support,
hygiene facilities, food preparation, exercise equipment, fire
suppression, communications equipment, safety-related clothing or
headgear) or emergency procedures; (e) viewing of the interior and
exterior of the spacecraft or terrestrial mock-ups; (f) observing
spacecraft operations (e.g., pre-flight checks, landing, in-flight
status); (g) training in spacecraft or terrestrial mock-ups for
connecting to or operating passenger or participant equipment used
for purposes other than operating the spacecraft; or (h) donning,
wearing, or utilizing the passenger's or participant's flight suit,
pressure suit, or spacesuit, and personal equipment.
Note 3 to paragraph (f): Neither paragraph (f) nor ECCN 9E515
controls the data transmitted to or from a satellite or spacecraft,
whether real or simulated, when limited to information about the
health, operational status, or function of, or measurements or raw
sensor output from, the spacecraft, spacecraft payload(s), or their
associated subsystems or components. Such data or technology is
subject to the EAR and is designated EAR99. Examples of such data
and technology, which are commonly referred to as ``housekeeping
data,'' include (a) system, hardware, component configuration, and
operation status information pertaining to temperatures, pressures,
power, currents, voltages, and battery charges; (b) spacecraft or
payload orientation or position information, such as state vector or
ephemeris information; (c) payload raw mission or science output,
such as images, spectra, particle measurements, or field
measurements; (d) command responses; (e) accurate timing
information; and (f) link budget data. The act of processing such
telemetry data--i.e., converting raw data into engineering units or
readable products--or encrypting it does not, in and of itself,
cause the telemetry data to become subject to the ITAR or to ECCN
9E515. All classified technical data directly related to items
controlled in USML Category XV or ECCNs 9A515, and defense services
using the classified technical data, remain subject to the ITAR.
This note does not affect controls in paragraph (f), ECCN 9D515, or
ECCN 9E515 on software source code or commands that control a
spacecraft, payload, or associated subsystem.
(g)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR (see
Sec. 120.42 of this subchapter) used in or with defense articles
controlled in this category.
Note to paragraph (x):
Use of this paragraph is limited to license applications for
defense articles controlled in this category where the purchase
documentation also includes commodities, software, or
[[Page 27189]]
technology subject to the EAR (see Sec. 123.21(b) of this
subchapter).
* * * * *
PART 124--AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE
SERVICES
0
5. The authority citation for part 124 is revised to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; 22 U.S.C. 2776;
Section 1514, Pub. L. 105-261; Pub. L. 111-266; Section 1261, Pub.
L. 112-239; E.O. 13637, 78 FR 16129.
0
6. Section 124.15 is amended by revising paragraphs (a) introductory
text, (b) introductory text, (b)(2), and (c), to read as follows:
Sec. 124.15 Special Export Controls for Defense Articles and Defense
Services Controlled Under Category XV: Space Systems and Space
Launches.
(a) The export of a satellite or related item controlled by
Category XV of part 121 of this subchapter or any defense service
controlled by this subchapter associated with the launch in, or by
nationals of, a country that is not a member of the North Atlantic
Treaty Organization (NATO) or a major non-NATO ally of the United
States always requires special export controls, in addition to other
export controls required by this subchapter, as follows:
* * * * *
(b) Mandatory licenses for launch failure (crash) investigations or
analyses of any satellite controlled pursuant to this subchapter or
subject to the EAR: In the event of a failure of a launch from a
foreign country (including a post liftoff failure to reach proper
orbit)--
* * * * *
(2) Officials of the Department of Defense must monitor all
activities associated with the investigation or analyses to insure
against unauthorized transfer of technical data or services and U.S.
persons must follow the procedures set forth in paragraphs (a)(1) and
(a)(2) of this section.
(c) Although Public Law 105-261 does not require the application of
special export controls for the launch of U.S.-origin satellites and
components from or by nationals of countries that are members of NATO
or major non-NATO allies, such export controls may nonetheless be
applied, in addition to any other export controls required under this
subchapter, as appropriate in furtherance of the security and foreign
policy of the United States. Further, the export of any article or
defense service controlled under this subchapter to any destination may
also require that the special export controls identified in paragraphs
(a)(1) and (a)(2) of this section be applied in furtherance of the
security and foreign policy of the United States.
* * * * *
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2014-10806 Filed 5-12-14; 8:45 am]
BILLING CODE 4710-25-P