[Federal Register Volume 89, Number 58 (Monday, March 25, 2024)]
[Rules and Regulations]
[Pages 20546-20548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06199]



[[Page 20546]]

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DEPARTMENT OF STATE

22 CFR Part 121

[Public Notice: 12223]
RIN 1400-AF27


International Traffic in Arms Regulations: Revision to U.S. 
Munitions List Category XI--High-Energy Storage Capacitors

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State (the Department) published an interim 
final rule on April 27, 2023, effective May 21, 2023, amending the 
International Traffic in Arms Regulations (ITAR) to remove from U.S. 
Munitions List (USML) Category XI certain high-energy storage 
capacitors and to clearly identify the high-energy storage capacitors 
that remain in USML Category XI. After reviewing the comments received 
in response to that interim final rule, the Department is now further 
amending USML Category XI to remove additional high-energy storage 
capacitors and to more clearly identify those that remain in USML 
Category XI.

DATES: Effective date: April 24, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Rasmussen, Office of 
Defense Trade Controls Policy, Department of State, telephone (202) 
663-2217; email [email protected] SUBJECT: ITAR Amendment--
High-Energy Storage Capacitors (RIN 1400-AF27)

SUPPLEMENTARY INFORMATION: The Department of State's Directorate of 
Defense Trade Controls (DDTC) administers the ITAR (22 CFR parts 120 
through 130) to regulate the export, reexport, retransfer, and 
temporary import of, and brokering activities related to certain items 
and services. The articles and information subject to the jurisdiction 
of the Department of State under the ITAR (i.e., ``defense articles'') 
are identified on the USML at ITAR section 121.1. Items not subject to 
the ITAR or to the exclusive licensing jurisdiction of any other 
department or agency of the U.S. Government are subject to the Export 
Administration Regulations (EAR, 15 CFR parts 730 through 774, which 
includes the Commerce Control List (CCL) in Supplement No. 1 to part 
774). The EAR is administered by the Bureau of Industry and Security 
(BIS), U.S. Department of Commerce. This rule does not modify the list 
of defense articles and defense services controlled for purposes of 
permanent import by the Attorney General, as enumerated on the U.S. 
Munitions Import List at 27 CFR part 447.
    The Department seeks to control on the USML those articles and 
services that provide a critical military or intelligence advantage, 
or, in the case of weapons, have an inherently military function. The 
Department undertakes these revisions pursuant to the discretionary 
statutory authority afforded the President in section 38(a)(1) of the 
Arms Export Control Act (AECA) (22 U.S.C. 2778(a)(1)) and delegated to 
the Secretary of State in Executive Order 13637, to control the export 
and temporary import of defense articles and defense services in 
furtherance of world peace and the security and foreign policy of the 
United States, and to designate those items which constitute the USML. 
The Department, informed by comments received from the public and 
consultations with its interagency partners, determined the articles 
removed from the USML by this rule no longer warrant control under the 
ITAR.
    On April 27, 2023, the Department published an interim final rule 
at 88 FR 25488, with an effective date of May 21, 2023 (the interim 
final rule), to remove from USML Category XI certain high-energy 
storage capacitors that it assessed have broad commercial application, 
are available internationally, and do not provide a critical military 
or intelligence advantage. Specifically, the interim final rule added a 
voltage criterion to paragraph (c)(5) of USML Category XI, limiting 
that paragraph to capacitors ``capable of operating at greater than one 
hundred twenty-five volts (125 V).''
    In the interim final rule, the Department requested comments from 
the interested community, focusing on certain questions about the new 
voltage criterion. The Department now responds to those comments and 
further amends the ITAR, and more specifically the USML, through this 
final rule.

Voltage Rating and ``Capable of Operating''

    The Department received four comments from the public, all of which 
recommended that the Department define the voltage criterion according 
to ``voltage rating'' or ``rated voltage,'' rather than ``capable of 
operating.'' One commenter asserted that ``voltage rating'' is the 
industry standard term and noted that the use of ``voltage rating'' 
would provide consistency with the way that capacitor voltages are 
specified on the CCL under Export Control Classification Numbers 
(ECCNs) 3A001.e.2 and 3A201.a. Two other commenters asserted that 
``rated voltage'' is the industry standard term, and one cited the 
Electronic Components Industry Association (ECIA) definition of ``rated 
voltage'' as ``the voltage at which an electrical component can operate 
for extended periods without loss of its basic properties.'' Another 
commenter recommended ``voltage rating'' but also suggested the term 
``steady state voltage rating.'' The Department affirms that the 
voltage criterion should not be conflated with transient, or surge, 
voltage ratings.
    All commenters opposed the use of the phrase ``capable of 
operating'' to specify the voltage threshold, asserting that ``capable 
of operating'' is unclear because it does not reflect terminology 
widely used in the electronics industry and most capacitors are 
``capable of operating'' for a limited time in conditions for which 
they were not designed, although they may incur damage in doing so. One 
commenter further asserted that it is inherently unclear whether a 
voltage criterion defined in terms of ``capable of operating'' would 
vary based upon a customer's circuit design margins and the application 
into which the capacitor is integrated. In contrast, industry 
practitioners already understand that ``rated voltage'' and ``voltage 
rating'' apply to the capacitor itself, and do not depend on end use. 
The Department affirms its intent is to regulate such capacitors based 
on their performance capability, regardless of limitations imposed by 
the circuit in which they are currently installed.
    The Department accepts these comments and will implement the term 
``rated voltage'' to specify the voltage criterion in place of the 
phrase ``capable of operating,'' which does not have a broadly accepted 
definition. The Department notes that rated voltage is commonly 
provided in manufacturers' product literature worldwide, thereby giving 
persons other than the manufacturer valuable information in assessing 
the capabilities of the capacitors. Furthermore, one commenter asserted 
that the maximum voltage a capacitor can withstand is not generally 
assessed during product development, which focuses upon the recommended 
operating conditions and the limit provided in the specification. Thus, 
a criterion specified in terms of ``capable of operating'' may require 
manufacturers to expend resources to perform testing that they would 
not otherwise conduct.
    Accordingly, the Department has decided to specify the voltage 
criterion in paragraph (c)(5)(i) of USML Category XI in terms of 
``rated voltage.''

[[Page 20547]]

Definition of Rated Voltage

    The interim final rule also asked whether a sufficient definition 
of ``voltage rating'' would be ``the value, based on the capacitor's 
design, testing, and evaluation, that describes the maximum amount of 
continuous voltage that will not damage the capacitor.'' All commenters 
assessed that this definition was accurate, with one recommending 
adding an operating duration, temperature, and maximum failure rate to 
ensure consistency across manufacturers and to prevent manufacturers 
from, for example, increasing the temperature to claim a lower rated 
voltage.
    One commenter suggested including a note clarifying that rated 
voltage does not include short-term transient or surge operating 
conditions. Another commenter assessed that adding a temperature 
criterion ``would complicate the verbiage'' of paragraph (c)(5), but it 
suggested that if a temperature criterion is added, the Department 
should use the term ``rated temperature,'' where rated temperature is 
``the maximum temperature at which a capacitor can be used without 
voltage derating (or degradation).'' Another commenter simply explained 
that manufacturers rate their capacitors at different temperatures 
according to the intended end use application.
    The interim final rule additionally asked whether a criterion such 
as ``will not reduce the capacitor's full energy life below 10,000 
discharges'' would address the fact that each charge and discharge 
cycle likely inflicts some damage on a capacitor. Commenters did not 
support this suggestion, finding the criterion itself or the suggested 
discharge threshold irrelevant to their capacitors.
    Based on this feedback, the Department is amending the Note to 
paragraph (c)(5) of Category XI to define ``rated voltage'' as ``the 
value, based on the capacitor's design, testing, and evaluation, that 
describes the maximum amount of continuous voltage that will not damage 
the capacitor.'' The Department also adds a sentence clarifying that 
rated voltage does not include short-term transient or surge operating 
conditions. Furthermore, the Department clarifies that ``rated 
voltage'' shall be assessed for this criterion at an operating 
temperature of 85 degrees Celsius ([deg]C) or less. This clarification 
is intended to ensure consistency across manufacturers in evaluating 
the threshold. Since capacitor voltage ratings lower as temperatures 
rise, voltage ratings below 500 V at temperatures at or below 85 [deg]C 
may be utilized to assess the voltage criterion, as may voltage ratings 
above 500 V at temperatures above 85 [deg]C; however, voltage ratings 
below 500 V at temperatures above 85 [deg]C must be temperature 
corrected to 85 [deg]C or lower to assess the voltage criterion.

Voltage Threshold

    One commenter reported that wet tantalum capacitors with a rated 
voltage of 150 V are being developed for use in commercial 
applications. The commenter also asserted that some medical 
applications, such as defibrillators, use wet tantalum capacitors with 
a voltage rating at or above 250 V.
    The Department determined it is appropriate to raise the voltage 
threshold in excess of a rated voltage of 500 V. The Department 
assesses that continuing to use the greater than 125 V threshold from 
the interim final rule would result in unnecessary controls on 
capacitors utilized in commercial applications that are comparable to 
those available internationally without multilateral export control 
restrictions. Moreover, the Department recognizes that the rated 
voltage of such capacitors is likely to increase over time. Most 
significantly, during its review, the Department did not identify any 
capacitors with a rated voltage of 500 V or less that continue to 
provide a critical military or intelligence advantage such that they 
continue to warrant control on the USML.

Regulatory Analysis and Notices

Administrative Procedure Act

    This rulemaking is exempt from section 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. However, the Department elected to solicit comments on 
an interim final rule and has responded to those comments in this final 
rule without prejudice to its determination that controlling the export 
and temporary import of defense articles and services is a military or 
foreign affairs function.

Regulatory Flexibility Act

    Since this rule is exempt from the notice-and-comment rulemaking 
provisions of 5 U.S.C. 553, it does not require 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.

Congressional Review Act

    The Department assesses that this rule is not 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, 13563, and 14094

    Executive Orders 12866 (as amended by Executive Order 14094) 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 rule has been 
deemed a ``significant regulatory action'' under Executive Order 12866. 
Accordingly, the rule has been reviewed by the Office of Management and 
Budget (OMB).

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.

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Paperwork Reduction Act

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

List of Subjects in 22 CFR Part 121

    Arms and munitions, Classified information, Exports.

    For the reasons stated in the preamble, the Department of State 
amends Title 22, Chapter I, Subchapter M, 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:  22 U.S.C. 2752, 2778, 2797; 22 U.S.C. 2651a; Sec. 
1514, Pub. L. 105-261, 112 Stat. 2175; E.O. 13637, 78 FR 16129, 3 
CFR, 2013 Comp., p. 223.


0
2. In Sec.  121.1, under Category XI, revise paragraph (c)(5) as 
follows:


Sec.  121.1   The United States Munitions List.

* * * * *
Category XI--Military Electronics
* * * * *
    (c) * * *
    (5) High-energy storage capacitors that:
    (i) Have a rated voltage of greater than five hundred volts (500 
V);
    (ii) Have a repetition rate greater than or equal to six (6) 
discharges per minute;
    (iii) Have a full energy life greater than or equal to 10,000 
discharges at greater than 0.2 Amps per Joule peak current; and
    (iv) Have any of the following:
    (A) Volumetric energy density greater than or equal to 1.5 J/cc; or
    (B) Mass energy density greater than or equal to 1.3 kJ/kg;

    Note to paragraph (c)(5):  Volumetric energy density is Energy 
per unit Volume. Mass energy density is Energy per unit Mass, 
sometimes referred to as Gravimetric energy density or Specific 
energy. Energy (E = \1/2\CV\2\, where C is Capacitance and V is the 
rated voltage) in these calculations must not be confused with 
useful energy or extractable energy. Rated voltage is the value, 
based on the capacitor's design, testing, and evaluation, that 
describes the maximum amount of continuous voltage, at an operating 
temperature less than or equal to 85 degrees Celsius (85 [deg]C), 
that will not damage the capacitor. Rated voltage does not include 
short-term transient or surge operating conditions.

* * * * *

Bonnie D. Jenkins,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. 2024-06199 Filed 3-22-24; 8:45 am]
BILLING CODE 4710-25-P