[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45652-45654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18821]


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DEPARTMENT OF STATE

22 CFR Part 121

[Public Notice: 10779]
RIN 1400-AE88


Adjustment of Controls for Lower Performing Radar and Continued 
Temporary Modification of Category XI of the United States Munitions 
List

AGENCY: Department of State.

ACTION: Final rule; notification of temporary modification.

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SUMMARY: The Department of State, in response to public comments, 
revises Category XI on the United States Munitions List to remove items 
that do not warrant continued inclusion, and, 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: This rule is effective August 30, 2019, except for amendatory 
instruction 3 which is effective August 30, 2021.

FOR FURTHER INFORMATION CONTACT: Ms. Sarah Heidema, Director, Office of 
Defense Trade Controls Policy, Department of State, telephone (202) 
663-1282; email [email protected].

[[Page 45653]]

ATTN: Radar Revision and 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 22 CFR 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 Department published a final rule on August 30, 
2018 (83 FR 44228) that continued the December 16, 2015 modification to 
August 30, 2019.
    The temporary revision clarified that the scope of control in 
existence prior to December 30, 2014 for USML Category XI 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, 2019. 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 two years, to 
August 30, 2021, to allow it to be revised as part of the wholesale 
revision of USML Category XI.

Adjustment of Controls for Lower Performing Radar

    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 intends to draft 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, which might include proposing further modification to USML Category 
XI paragraph (b) as may be warranted.
    In the public comments that the Department received in response to 
the Notice of Inquiry were several that identified current and imminent 
commercial uses for certain lower performing radars, including in 
driver-assisted and self-driving ground vehicles and in detect and 
avoid systems for autonomous aerial systems. In its review of the 
public comments and development of a rulemaking on USML Category XI, 
the Department and its interagency partners have determined that 
revisions to USML Category XI can be made to exclude these radars and 
radar components from the USML. The control for certain air 
surveillance radar in paragraph (a)(3)(ix) of USML Category XI is 
reserved and a note is added to Category XI that removes from the USML 
those transmit/receive modules and transmit/receive monolithic 
microwave integrated circuits (MMICs) fabricated exclusively with 
homojunction complementary metal-oxide-semiconductor (CMOS) silicon-
based circuits on silicon substrates, as well as radars and radar 
antennas that are specially designed to use only such modules or MMICs. 
These radars and radar components will become subject to the Export 
Administration Regulations upon the effective date of this revision as 
a matter of law, pursuant to 15 CFR 734.3(a).

Regulatory Findings

Administrative Procedure Act

    This rulemaking is exempt from section[thinsp]553 (Rulemaking) and 
section[thinsp]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. 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.

[[Page 45654]]

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 as the 
impacts are considered de minimis (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. Effective August 30, 2019, in Sec.  121.1, under Category XI, remove 
and reserve paragraph (a)(3)(ix), revise paragraph (b), and add a note 
to Category XI 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.
* * * * *

    Note to Category XI:  Category XI does not control transmit/
receive modules, transmit/receive MMICs, transmit modules, or 
transmit MMICs that incorporate or are MMICs fabricated exclusively 
with homojunction CMOS silicon-based circuits on silicon substrates, 
or radars and radar antennas specially designed to use only such 
modules or MMICs.

* * * * *

0
3. Effective August 30, 2021, in Sec.  121.1, under Category XI, revise 
paragraph (b) 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.
* * * * *

Andrea Thompson,
Under Secretary for Arms Control and International Security.
[FR Doc. 2019-18821 Filed 8-29-19; 8:45 am]
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