[Federal Register Volume 83, Number 169 (Thursday, August 30, 2018)]
[Rules and Regulations]
[Pages 44228-44229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19029]


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DEPARTMENT OF STATE

22 CFR Part 121

[Public Notice: 10486]
RIN 1400-AE70


Continued Temporary Modification of Category XI of the United 
States Munitions List

AGENCY: Department of State.

ACTION: Final rule; notice of temporary modification.

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SUMMARY: The Department of State, pursuant to its regulations and in 
the interest of the security of the United States, temporarily modifies 
paragraph (b) in Category XI of the United States Munitions List 
(USML).

DATES: Amendatory instructions 1 and 2 are effective August 30, 2018. 
Amendatory instruction No. 3 is effective August 30, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Monjay, Office of Defense 
Trade Controls Policy, Department of State, telephone (202) 663-2817; 
email [email protected]. ATTN: Temporary Modification of Category XI.

SUPPLEMENTARY INFORMATION: On July 1, 2014, the Department published a 
final rule revising Category XI of the USML, 79 FR 37536, effective 
December 30, 2014. That final rule, consistent with the two prior 
proposed rules for USML Category XI (78 FR 45018, July 25, 2013 and 77 
FR 70958, November 28, 2012), revised paragraph (b) of Category XI to 
clarify the extent of control and maintain the existing scope of 
control on items described in paragraph (b) and the directly related 
software described in paragraph (d).
    The Department later determined that exporters may read the revised 
control language to exclude certain intelligence-analytics software 
that has been and remains controlled on the USML. Therefore, the 
Department determined that it was in the interest of the security of 
the United States to temporarily revise USML Category XI paragraph (b), 
pursuant to the provisions of Sec.  126.2, while a long-term solution 
was developed. The Department published a final rule on July 2, 2015 
(80 FR 37974) that temporarily modified USML Category XI(b) until 
December 29, 2015. The Department published a final rule on December 
16, 2015 (80 FR 78130) that continued the July 2, 2015 modification to 
August 30, 2017. The Department published a final rule on August 30, 
2017 (82 FR 41172) that continued the December 16, 2015 modification to 
August 30, 2018.
    The temporary revision clarified that the scope of control in 
existence prior to December 30, 2014 for USML paragraph (b) and 
directly related software in paragraph (d) remains in effect. This 
clarification is achieved by reinserting the words ``analyze and 
produce information from'' and by adding software to the description of 
items controlled.
    The Department, with its interagency partners, continues to develop 
a long term solution for USML Category XI(b). However, that solution 
will not be in place when the current temporary modification expires on 
August 30, 2018. Therefore, the Department has determined, for the 
national security and foreign policy of the United States and in the 
best interest of the U.S. defense industry, to publish a final rule 
that extends the temporary modification of USML XI(b) for one year, to 
August 30, 2019, to allow it to be revised as part of the wholesale 
revision of USML Category XI. On February 12, 2018, the Department 
published a Notice of Inquiry (83 FR 5970) requesting public comment on 
USML Categories V, X and XI. The Department and the interagency are 
reviewing the public comments submitted in response, and the Department 
is drafting a proposed rule setting out revised versions of the three 
categories for public comment. Extending the temporary revisions of 
USML Category XI(b) now will allow the U.S. government to finalize its 
review of USML Category XI, with rulemaking to follow, to include any 
further modifications to USML Category XI paragraph (b) as may be 
warranted.

Regulatory Findings

Administrative Procedure Act

    This rulemaking is exempt from section[thinsp]553 (Rulemaking) and 
section 554 (Adjudications) of the Administrative Procedure Act (APA) 
pursuant to 5 U.S.C. 553(a)(1) as a military or foreign affairs 
function of the United States Government.

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.

[[Page 44229]]

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

    The Department does not believe this rulemaking is a major rule 
under the criteria of 5 U.S.C. 804.

Executive Orders 12372 and 13132

    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 all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributed impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rulemaking is a significant but not an economically 
significant rule, under the criteria of Executive Order 12866, and is 
consistent with the provisions of Executive Order 13563.

Executive Order 12988

    The Department of State has reviewed this rulemaking in light of 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden.

Executive Order 13175

    The Department of State has determined that this rulemaking will 
not have tribal implications, will not impose substantial direct 
compliance costs on Indian tribal governments, and will not preempt 
tribal law. Accordingly, the requirements of Executive Order 13175 do 
not apply to this rulemaking.

Paperwork Reduction Act

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

Executive Order 13771

    This rule is not subject to the requirements of E.O. 13771 (82 FR 
9339, February 3, 2017).

List of Subjects in 22 CFR Part 121

    Arms and munitions, Classified information, Exports.

    For reasons stated in the preamble, the State Department amends 22 
CFR part 121 as follows:

PART 121--THE UNITED STATES MUNITIONS LIST

0
1. 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
2. In Sec.  121.1, under Category XI, revise paragraph (b), effective 
August 30, 2018, to read as follows:


Sec.  121.1   The United States Munitions List.

* * * * *

Category XI--Military Electronics

* * * * *
    * (b) Electronic systems, equipment or software, not elsewhere 
enumerated in this subchapter, specially designed for intelligence 
purposes that collect, survey, monitor, or exploit, or analyze and 
produce information from, the electromagnetic spectrum (regardless of 
transmission medium), or for counteracting such activities.
* * * * *

0
3. In Sec.  121.1, under Category XI, revise paragraph (b), effective 
August 30, 2019, to read as follows:


Sec.  121.1   The United States Munitions List.

* * * * *

Category XI--Military Electronics

* * * * *
    * (b) Electronic systems or equipment, not elsewhere enumerated in 
this subchapter, specially designed for intelligence purposes that 
collect, survey, monitor, or exploit the electromagnetic spectrum 
(regardless of transmission medium), or for counteracting such 
activities.
* * * * *

    Dated: August 27, 2018.
Andrea Thompson,
Under Secretary of State for Arms Control and International Security, 
U.S. Department of State.
[FR Doc. 2018-19029 Filed 8-29-18; 8:45 am]
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