Amendment to the International Traffic in Arms Regulations: United States Munitions List Category XI (Military Electronics), and Other Changes, 37535-37545 [2014-14681]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 79, Number 126 (Tuesday, July 1, 2014)]
[Rules and Regulations]
[Pages 37535-37545]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14681]



[[Page 37535]]

Vol. 79

Tuesday,

No. 126

July 1, 2014

Part VI





Department of State





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22 CFR Part 121





 Amendment to the International Traffic in Arms Regulations: United 
States Munitions List Category XI (Military Electronics), and Other 
Changes; Final Rule

Federal Register / Vol. 79 , No. 126 / Tuesday, July 1, 2014 / Rules 
and Regulations

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DEPARTMENT OF STATE

22 CFR Part 121

[Public Notice 8775]
RIN 1400-AD25


Amendment to the International Traffic in Arms Regulations: 
United States Munitions List Category XI (Military Electronics), and 
Other Changes

AGENCY: Department of State.

ACTION: 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 U.S. Munitions List (USML) Category XI 
(Military Electronics). The Department is also amending Category VIII 
(Aircraft and Related Articles) with respect to wing folding systems 
and both Categories VIII and XIX to remove three paragraphs superseded 
by the revision of Category XI. The revisions contained in this rule 
are part of the Department of State's retrospective plan under E.O. 
13563.

DATES: This rule is effective on December 30, 2014, except for to the 
revision to Sec.  121.1, Category VIII(h)(4), which is effective August 
15, 2014.

FOR FURTHER INFORMATION CONTACT: Mr. C. Edward Peartree, Director, 
Office of Defense Trade Controls Policy, Department of State, telephone 
(202) 663-2792; email DDTCResponseTeam@state.gov. ATTN: Regulatory 
Change, USML Category XI Final Rule. The Department of State's full 
retrospective plan can be accessed at https://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 parts 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 the export, reexport, and retransfer of commodities, 
software, technology, and services to various destinations, end users, 
and end uses. 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 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 part 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.

Export Control Reform Update

    Pursuant to the President's Export Control Reform (ECR) initiative, 
the Department has published proposed revisions to thirteen USML 
categories--and, upon the effective date of this rule, will have 
revised fifteen USML categories--to create a more positive control list 
and eliminate, where possible, ``catch all'' controls in the USML. The 
Department, along with the Departments of Commerce and Defense, 
reviewed the public comments the Department received on the proposed 
rules and has, where appropriate, revised the rules. A discussion of 
the comments relevant to the USML categories that are part of this rule 
is included later on in this notice.
    Discussions of the public comments relevant to the other USML 
categories that have been published as final rules are in ``Amendment 
to the International Traffic in Arms Regulations: Initial 
Implementation of Export Control Reform,'' published April 16, 2013 (78 
FR 22740); ``Amendment to the International Traffic in Arms 
Regulations: Continued Implementation of Export Control Reform,'' 
published July 8, 2013 (78 FR 40922); ``Amendment to the International 
Traffic in Arms Regulations: Third Rule Implementing Export Control 
Reform,'' published January 2, 2014 (79 FR 34); and ``Amendment to the 
International Traffic in Arms Regulations: Revision of U.S. Munitions 
List Category XV,'' published May 13, 2014 (79 FR 27180). These notices 
also contain policies and procedures regarding the licensing of items 
moving from the export jurisdiction of the Department of State to the 
Department of Commerce, a definition for specially designed, responses 
to public comments, and changes to other sections of the ITAR that 
affect the categories discussed in this rule. The Department continues 
to review the remaining USML categories and will publish them as 
proposed rules in the coming months.
    Pursuant to ECR, the Department of Commerce has been publishing 
revisions to the EAR, including various revisions to the CCL. Revision 
of the USML and CCL are coordinated so there is uninterrupted 
regulatory coverage for items moving from the jurisdiction of the 
Department of State to that of the Department of Commerce. The 
Department of Commerce's companion to this rule is ``Revisions to the 
Export Administration Regulations (EAR): Control of Military Electronic 
Equipment and Related Items the President Determines No Longer Warrant 
Control Under the United States Munitions List (USML).'' It is 
published elsewhere in this edition of the Federal Register.

Changes in This Rule

    The following changes are made to the ITAR with this final rule: 
(i) Revision of U.S. Munitions List (USML) Categories XI (Military 
Electronics); (ii) revision to USML Category VIII (Aircraft and Related 
Articles), paragraph (h)(4); (iii) continued implementation of a new 
licensing procedure for the export of items subject to the EAR that are 
to be exported with defense articles; and (iv) removal of USML Category 
VIII, paragraphs (h)(21) and (h)(22) and USML Category XIX (Gas Turbine 
Engines and Associated Equipment), paragraph (f)(7), as they are 
superseded by USML Category XI, paragraphs (c)(2), (c)(3), and (c)(11).

Revision of USML Category XI

    This final rule revises USML Category XI, covering military 
electronics, to describe more precisely the articles warranting control 
on the USML.
    Paragraph (a) is revised by adding various subparagraphs to 
specifically enumerate the articles controlled. Subparagraph (a)(6) is 
removed and placed in reserve, with the computers intended for control 
enumerated in new paragraph (c)(16). Paragraphs (a)(9)-(12) are added 
to cover (i) electronic sensor systems or equipment for non-acoustic 
antisubmarine warfare (ASW) or mine warfare, (ii) electronic sensor 
systems or

[[Page 37537]]

equipment for detection of concealed weapons, (iii) test sets specially 
designed for testing defense articles controlled in paragraphs (a)(3), 
(a)(4), (a)(5), or (b), and (iv) direction finding equipment specially 
designed for articles in select paragraphs of USML Categories IV and 
VIII.
    Paragraph (c) is amended by adding subparagraphs (1)-(18) to 
specifically enumerate the parts, components, accessories, attachments, 
and associated equipment controlled. Additionally, subparagraph (19) is 
added to enumerate control of classified technology.
    Finally, paragraph (x) is added to allow for ITAR licensing of 
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 XI and are described in the 
purchase documentation submitted with the application. As first 
described in the Department's April 16, 2013 notice (78 FR 22740), one 
of the objectives of this provision is to motivate exporters to make 
complete jurisdictional and classification determinations of the 
articles they are exporting.
    The Department published proposed revisions to USML Category XI on 
November 28, 2012 (see 77 FR 70958, RIN 1400-AD25) and July 25, 2013 
(see 78 FR 45018, RIN 1400-AD25). Both proposed rules requested public 
comment on the proposed changes. The public comments were reviewed and 
considered by the Department and other agencies. The Department's 
evaluation of the written comments and recommendations for the first 
proposed rule are in the second proposed rule. The Department's 
evaluation of the written comments and recommendations for the second 
proposed rule follows.
    The Department received proposals for modifications to the phrasing 
of regulatory text in USML Category XI. When the recommended changes 
added to the clarity of the regulation and were consistent with ECR 
objectives, the Department accepted them.
    One commenting party suggested that a separate sub-paragraph should 
be added for software and software source code for the development, 
operation, test, and repair of articles enumerated in Category XI. The 
Department believes that these articles are already captured in 
paragraph XI(d), and therefore did not accept this recommendation.
    One commenting party suggested that phrases such as ``having all of 
the following'' should be avoided. The Department did not accept this 
suggestion because the phrase is necessary to create, where possible, 
positive control lists, which is one of the objectives of Export 
Control Reform effort.
    One commenting party highlighted a circular reference between 
paragraphs (a)(1) and (c). Paragraph (a)(5)(i) refers to items ``that 
are specially designed to integrate, incorporate, network, or employ 
defense articles that are controlled in this subchapter.'' Paragraph 
(c) lists components that are specially designed for defense articles. 
The commenter asserts that this dual reference to ``specially 
designed'' in both places creates a logical paradox. For example, a 
system could possibly fall under paragraph (a)(5) because it is 
specially designed to integrate, incorporate, network, or employ 
defense articles controlled under paragraph (c)(1), (2), and (3). 
However, for paragraph (c)(1), (2), and (3) parts to be ITAR-
controlled, they must be ``designed for defense articles in this 
subchapter,'' which logically loops back to paragraph (a)(5). The 
commenter suggests that paragraph (c) be treated independently of other 
USML Category XI sub-paragraphs in line with the concept of creating a 
positive list, and that the circular reference to ``specially 
designed'' in both paragraphs (a)(5) and (c) be resolved. The 
Department agrees in part and adds the phrase, ``that are controlled in 
sub-paragraphs that do not use the term specially designed,'' at the 
end of paragraph (a)(5)(i) to resolve the circular reference issue.
    One commenting party suggested that USML Category XI should be 
reviewed periodically to ensure the most critical articles are 
controlled and that a committee of industry representatives should be 
created to provide input. The Department agrees that the USML, 
including Category XI, should be reviewed periodically to ensure that 
articles critical to national security and foreign policy are captured 
and that articles no longer warranting ITAR controls are reevaluated 
for possible control by the Department of Commerce. The exact details 
of such a reevaluation process have yet to be articulated. However, the 
Departments of State, Commerce, and Defense have committed to ensuring 
such efforts are a priority.
    One commenting party suggested that the Department should factor in 
foreign commercial availability when determining the appropriate level 
of control for an article. The Department did take foreign availability 
of like military systems into account when revising this category, but 
not in a manner that would be inconsistent with U.S. national security 
or foreign policy considerations. To the extent an item is commercially 
available and in normal commercial use, either domestically or outside 
the United States, the Department requested evidence of such 
applications, because it was not the Department's intention to describe 
in the revised USML Category XI items that are in normal commercial use 
unless such items provided to the United States a critical military or 
intelligence advantage. This final rule responds to all such evidence 
provided by public commenters.
    One commenting party suggested that paragraph (a)(1)(i) be revised 
to ensure that all multi-element sensing systems, especially Ultra 
Short Baseline systems, are not inadvertently captured because this 
would preclude commercial development of collision avoidance for 
unmanned surface and subsurface vehicles. The party also suggested 
revising this paragraph to remove the terms ``survey,'' ``detect,'' 
``classify,'' and ``identify.'' The Department did not accept these 
suggestions because the Department's objective is to specifically 
describe and control such articles on the USML.
    Regarding paragraph (a)(1)(i), one commenting party noted that 
passive towed array systems exist for tracking and classifying marine 
mammals in real time that operate under 20 kHz with greater than 10 kHz 
bandwidth. These systems are ``capable'' of tracking vessels (and do). 
The commenter recommended that the phrase ``capable of real-time'' be 
replaced by ``intended for real-time.'' The Department acknowledges 
this assertion as accurate; however, the control capability described 
in the revised paragraph is critical to U.S. national security and 
continues to warrant ITAR controls.
    One commenting party noted that paragraph (a)(1)(ii) appears to 
include commodities currently controlled on the CCL, namely 
6A001.a.2.a-c (hydrophones, hydrophone arrays, and related processing 
equipment), related software in 6D003, and the commodities currently 
described in ECCN 6A991. The Department amended paragraph (a)(1)(ii) by 
adding the qualifier phrase ``non-biologic'' before ``tonals.''
    One commenting party asserts that paragraph (a)(1)(ii) identifies 
``underwater single acoustic sensor systems that distinguish tonals and 
locates the origin of the sound'' without providing technical 
parameters to establish a reasonable threshold to warrant their 
inclusion on the USML, and recommends that if there are no clear 
technical parameters or performance thresholds that

[[Page 37538]]

differentiate between systems, perhaps the unique characteristics of 
military ``tonals'' should be subject to control rather than the 
sensing technology. The Department acknowledges the potential for 
confusion in this regard and added Note 1 to paragraph (a)(1)(ii) to 
read as follows: ``The term tonals implies discrete frequencies in the 
broadband and narrowband spectra, emanating from man-made objects.''
    One commenting party opined that use of the term ``origin'' in 
(a)(1)(ii) is confusing because it can be interpreted to mean either 
``classify'' or ``localize.'' The Department believes that the 
qualifying term ``locates'' makes clear that ``origin'' refers to a 
spatial origin rather than the classification status of an item.
    One commenting party recommend removing ``adaptive modulation'' 
from paragraph (a)(1)(iv) since it is a major source of academic 
research and development for research universities worldwide and the 
United States is not a leader in the field. The Department did not 
accept this recommendation because no examples of such commercial uses 
were provided for evaluation.
    One commenting party suggested that the note to paragraph 
(a)(1)(iii) leaves open the possibility that EAR99 items would become 
controlled by the ITAR. The Department agrees that the note as written 
suggested this possibility, and removed the note to paragraph 
(a)(1)(iii).
    With respect to paragraph (a)(1)(vii), one commenting party 
suggested that the capabilities regarding ``1m\2\ +RCS at range and 
altitude'' already exist in the legacy National Airspace System and 
recommended that these criteria be removed. The Department did not 
accept this suggestion because radar with this capability are still 
highly capable for defense purposes and warrant ITAR control.
    One commenting party opined that the articles listed in paragraph 
(a)(2) fall into a highly competitive foreign market, and should be 
more appropriately controlled in the 600-series, even though their 
primary use is military. The Department did not accept this 
recommendation because underwater acoustic countermeasures and counter-
countermeasures systems are a critical U.S. military capability. 
Moreover, no examples of commercial end-uses for such items were 
provided.
    With respect to paragraph (a)(2), one commenting party noted that 
the majority of torpedo countermeasure systems are unclassified 
mechanical and electrical equipment to deploy and retrieve a towed 
body, are not uniquely military, and that the only classified software 
and hardware should be controlled. The Department did not accept this 
suggestion because the text of this paragraph controls underwater 
acoustic countermeasures or counter-countermeasures systems, not their 
individual components.
    Several commenting parties opined that radar systems that have 
historically been controlled on the CCL are now being controlled by the 
USML in paragraph (a)(3) as a result of this final rule. The Department 
does not agree with this assertion and notes that the very broad text 
of Category XI is being replaced with a more positive list. While it 
may appear that various radar technologies are being newly controlled 
on the USML, they have in fact always been controlled by the ITAR. The 
Department notes that any previously issued Commodity Jurisdiction 
determinations that a particular radar system or component is subject 
to the EAR remain valid.
    One commenting party recommended the addition of a note to 
paragraph (a)(3) indicating that the identified technical parameters 
are intended to apply only to the designed capability of a system, 
rather than its potentially increased capability in altered 
environmental conditions. The Department did not accept this 
recommendation. The established thresholds in each paragraph are 
intended to apply to the optimal capability of a system in any given 
condition, not to that system's intended design capability.
    One commenting party noted that there exist radars supporting en-
route air traffic control that are capable of detecting a one square 
meter radar cross-section at ranges exceeding 85 nautical miles and 
recommended changing the threshold to one-half square meter or to a 
range of 150 nautical miles. The commenting party based this 
recommendation on a Commodity Classification Automated Tracking System 
(CCATS) determination issued by the Department of Commerce. The 
Department did not accept this recommendation and notes that the CCATS 
in questions applied to the frequency agility capability of the 
particular radar in question and not to the radar itself.
    Two commenting parties asserted that paragraph (a)(3)(i) could be 
interpreted to cover weather radar because they too ``maintain the 
positional state of an object of interest in a received radar signal 
through time.'' The commenting parties suggested the addition of the 
phrase ``and which is `specially designed' to have a range greater than 
14 nautical miles for a 0dBsm target.'' The Department did not accept 
this suggestion because weather radars do not track discrete objects of 
interest.
    One commenting party noted that paragraphs (a)(3)(vi)-(viii) 
identify specific detection ranges and radar cross section values that 
are consistent with the capabilities of aircraft tracking radars in use 
worldwide for commercial aviation. The Department has revised paragraph 
(a)(3)(vi) to preclude the inadvertent capture of commercial systems 
and was unable to identify commercial systems that would be captured by 
paragraph (a)(3)(viii). With respect to paragraph (a)(3)(vii), the 
Department acknowledges this observation and notes that, due to 
critical national security concerns, its intent is specifically to 
controls systems with this capability as defense articles.
    Two commenting parties asserted that bi-static radar is being 
developed for ground-based radar applications and suggest limiting the 
scope of paragraph (a)(3)(ix) to non-commercial products that have 
performance beyond the civil air traffic collision avoidance systems. 
The Department did not accept this suggestion because Note 3 to 
paragraph (a)(3) already addresses this issue.
    With respect to paragraph (a)(3)(ix), one commenting party noted 
that there exist radar systems that support terminal air traffic 
control modified to mitigate the effects of wind turbines, and to help 
support Ground Based Sense and Avoid Unmanned Aerial Systems in 
National Airspace Operations. The commenting party suggested adding a 
revisit rate of greater than or equal to 1/3 Hz to address this 
concern. The Department did not accept this recommendation and notes 
that the Federal Aviation Administration has not yet defined 
requirements for UAS sense and avoid capabilities. The commenting party 
referred to a Commodity Jurisdiction determination that such technology 
is subject to the EAR. The commenter did not provide a copy of this 
determination or any other reference to it and has been unable to 
identify such a determination. The Department notes that Commodity 
Jurisdiction determinations finding that a particular article is 
subject to the EAR remain valid.
    Two commenting parties asserted that paragraph (a)(3)(xii) over-
controls weather radar by including commercial, electronically 
steerable weather radar that lack military functionality and provided 
recommended revisions to it. The Department acknowledges the parties' 
concerns and adds a note to paragraph (a)(3)(xii).
    Three commenting parties noted that the criteria listed in 
paragraph (a)(3)(xii) would capture all multi-phased array

[[Page 37539]]

radar regardless of end-use. The Department acknowledges that the 
intent of this paragraph is to control all such radar because they are 
critical to U.S. national security. The Department also notes that this 
paragraph does not capture defense articles and technical data that 
were not previously controlled by USML Category XI; rather, it merely 
enumerates such defense articles and technical data as controlled.
    Four commenting parties noted that references to clutter filtering 
in paragraph (a)(3)(xvii) would control commercial weather radars. One 
of these parties suggested that increasing the control threshold from 
50dB to 60dB would alleviate this concern. The Department concurs and 
accepts the recommended threshold increase.
    In response to one commenting party's request for clarification on 
use of the phrase ``specific platform type'' in paragraph (a)(3)(xxi), 
the Department notes that the meaning of the word ``type'' in the 
paragraph controlling radar employing non-cooperative target 
recognition is that provided in 14 CFR Sec.  1.1, and adds Note 1 to 
paragraph (a)(3)(xxi) accordingly.
    One commenting party suggested that the reference to ``electronic 
combat equipment'' in paragraph (a)(4) is too broad because it would 
control items now subject to the EAR. The Department notes that the 
criteria in the following subparagraph already mitigate this concern.
    One commenting party stated that paragraph (a)(4)(i) appears to 
control detection and interception systems and equipment that have 
historically been controlled on the CCL. The Department notes that ECCN 
5A001.i only pertains to mobile telecommunication monitoring and that 
the control language in paragraph (a)(4)(i) does not encompass the 
intercept and processing of air interface of mobile telecommunications.
    One commenting party noted that paragraph (a)(4)(iii) appears to 
include commodities currently controlled on the CCL, specifically ECCN 
5A001.f. The Department notes that the use of ``specially designed'' in 
this entry specifically excludes this possibility.
    One commenting party recommended adding the phrase ``or modified'' 
after specially designed throughout paragraph (a)(5) in order to 
address cases where capability, not design, is at issue. The Department 
did not accept this recommendation because capability is already 
covered in the definition of specially designed.
    One commenting party suggested that paragraph (a)(7) appears to 
contradict one of the key purposes of export control reform, which is 
to provide a bright line regarding the export control jurisdiction of 
articles and services. The commenting party further indicated that the 
proposed revision does not define the criteria that will be used to 
determine a developmental electronic device or system to be a defense 
article. Similarly, three commenting parties posited that a system 
could be incorrectly determined to be ITAR-controlled solely because of 
its funding source. The Department did not accept these comments; notes 
1 through 3 to paragraph (a)(7) clearly indicate the criteria to be 
applied in this regard, thus obviating concerns of ambiguity. In 
situations where funding does control a particular article, the 
Department notes that this was precisely the intent of this entry. The 
Department notes that paragraph (a)(7) does not apply to electronic 
systems or equipment where the Department of Defense acts solely as a 
servicing agency for a contract on behalf of another agency of the U.S. 
Government, but does not itself contribute funding.
    One commenting party opined that paragraph (a)(8) would control 
unattended ground systems currently controlled on the CCL, or widely-
available commercial products that contain the capabilities enumerated, 
and suggested narrowing the scope of this entry by use of ``specially 
designed.'' The Department did not accept this suggestion because no 
examples were provided to substantiate this claim.
    One commenting party noted that paragraph (a)(10) identifies 
electronic sensor systems and equipment for detection of concealed 
weapons having a standoff detection range of greater than 45m, which 
conflicts with ECCN 2A984 for concealed object detection equipment 
which includes a standoff distance of 100m. The Department acknowledges 
this conflict and provides additional exclusionary criteria for 
frequency range and spatial resolution to address it.
    One commenting party noted that paragraph (a)(11) identifies test 
sets for counter remote-controlled improvised explosive devices and 
counter radio electronic warfare systems that are already controlled in 
paragraph (a)(4)(iii). The Department amended paragraph (a)(11) to 
remove these references.
    One commenting party stated that the note to paragraph (b) lacks 
clarity regarding what constitutes ``intelligence services.'' Based on 
the interagency review of the comments to the proposed note to Category 
XI(b), the Department concluded that the proposed note created more 
confusion regarding the scope of the Category XI(b) than it resolved. 
The Department has removed the note and has left the scope of the 
control the same. To the extent there are questions as to whether an 
item is within the scope of USML Category XI(b), ITAR Sec.  120.4 
allows for the submission of a request for a commodity jurisdiction 
determination for such items.
    Several commenting parties expressed concern with respect to 
control of spectrum analyzers in paragraph (b), particularly for those 
that are widely available on the foreign market and used for multiple 
commercial purposes, including Technical Surveillance Countermeasure 
(TSCM) services. The Department notes that the proposed revision to 
Category XI(b) did not propose new controls on spectrum analyzers. If a 
spectrum analyzer, or any other piece of electronic equipment, is 
specially designed for intelligence purposes and collects, surveys, 
monitors, or exploits the electromagnetic spectrum (regardless of 
transmission medium), or for counteracting such activities, then it is 
within the scope of USML Category XI(b). To the extent there are 
questions as to whether a particular item falls within the scope of 
this description, the exporter may submit a request for a commodity 
jurisdiction determination under ITAR Sec.  120.4.
    One commenting party recommended adding a note to paragraph (b)(1) 
to indicate that it does not apply to direction finding equipment or 
systems specially designed for navigation applications. The Department 
did not accept this recommendation and believes that the parameters 
define the control for direction finding equipment sufficiently to 
differentiate from CCL control.
    In response to recommendations and concerns of commenting parties, 
the Department has revised the controls for printed circuit boards and 
patterned multichip modules, providing each with a separate 
subparagraph, and notes that jurisdiction of a printed circuit board or 
patterned multichip module should follow the jurisdiction of the 
specific item for which it is designed, as opposed to the jurisdiction 
of the overall system into which the article one layer up from the 
printed circuit board is ultimately incorporated.
    One commenting party recommended adding a new, non-SME entry under 
paragraph (c) to enumerate control of chaff and flare rounds specially 
designed for the systems and equipment described in paragraph 
(a)(4)(iii), and parts and components therefor

[[Page 37540]]

containing materials controlled in USML Category V. The Department 
accepted this recommendation, and added paragraph (c)(17) accordingly.
    One commenting party recommended that the Department adopt the 
definition of ``Application Specific Integrated Circuit'' (ASIC) 
developed by the Joint Electron Device Engineering Council (JEDEC) 
Solid State Technology Association: ``An integrated circuit developed 
and produced for a specific application or function and for a single 
customer.'' The Department agreed in part, and added note to paragraph 
(c)(1) to define an ASIC. The Department does not agree that the term 
ASIC be limited to items produced for a single customer. Such language 
could lead to unintended drops in controls based on an order by a 
second customer. The Commerce Department has adopted the same 
definition in its rule being published in connection with this rule.
    One commenting party noted that the proposed paragraph (c)(4) would 
inadvertently control transmit/receive modules or transmit modules of a 
certain size that contain either an electric or a mechanical phase 
shifter or phaser. The Department agreed with this comment and amended 
paragraph (c)(4) accordingly.
    One commenting party suggested that paragraph (c)(5) controls 
capacitors in commercial use and recommended that they should be made 
subject to the EAR. The Department did not accept this recommendation 
on the basis that the discharge rate and energy life stipulated in the 
paragraph (c)(5) adequately differentiates those capacitors that 
warrant ITAR controls from those that are used commercially.
    Two commenting parties suggested that paragraph (c)(8) lacks the 
critical parameter of latency time for digital radio-frequency memory 
(DRFM) systems. The Department agreed with these comments and amended 
paragraph (c)(8) to control those systems whose output signal is a 
translation of the input signal (e.g. changes in magnitude, time, 
frequency).
    Three commenting parties indicated that paragraph (c)(10) as 
written would control items already controlled by ECCN 5A991.f, such as 
metamaterial surface scattering antennas designed for transmitting or 
receiving radio communications via a commercial operated fixed or 
mobile satellite service system. The Department agreed with these 
comments and revised paragraph (c)(10)(i) to control those antennas 
that employ four or more elements, electronically steer angular beams, 
independently steer angular nulls, create angular nulls with a null 
depth greater than 20 dB, and achieve a beam switching speed faster 
than 50 milliseconds. The Department notes that a suggestion to amend 
the beam switching speed to control only those faster than 1 
millisecond was not accepted as the modification of the remainder of 
the entry addresses the expressed concerns.
    One commenting party opined that use of the term ``radar bands'' in 
paragraph (c)(11)(ii) is too generic because any radio frequency can 
theoretically be used for radar application. The commenter recommended 
replacing ``radar bands'' with the phrase ``frequency bands for radar 
applications.'' The Department accepted this recommendation and revised 
the paragraph accordingly.
    One commenting party recommended adding the phrase ``for active 
sonar systems'' to the end of paragraph (c)(12)(i) to avoid situations 
where underwater projectors are used to observe responses of marine 
animals to underwater sound. The Department accepted the addition of 
this phrase, with the exception of the word ``active,'' because passive 
systems are also intended for control.
    Four commenting parties noted that paragraph (c)(14) is overly 
broad and would control tuners covered by ECCN 3A002.c.4. One party 
recommended constraining this paragraph to tuners specially designed 
for systems and equipment in paragraphs (a)(4) and (b). One party 
recommended that paragraph (c)(14) be deleted in its entirety. Two 
commenting parties recommended the addition of parameters for operating 
frequency range and tuning time based on frequency step size to clarify 
the type of tuner component intended to be controlled. The Department 
revised paragraph (c)(14) to control tuners specially designed for 
systems and equipment in paragraphs (a)(4) and (b).
    One commenting party suggested that paragraph (c)(15) conflicts 
with certain changes made to USML Category VIII, specifically with 
respect to unmanned aerial vehicles (UAVs), in that it would seem to 
include all unmanned aerial vehicles, military or civil, if they have a 
range equal to or greater than 300 km. The Department amended paragraph 
(c)(15) to indicate that it applies only to UAVs controlled by USML 
Category VIII.
    One commenting party suggested that paragraph (c)(19)(ii) could be 
interpreted as controlling commercial computers simply because they 
contain classified information. The Department does not agree, and 
believes the note to paragraph (c)(19)(ii) makes clear that it controls 
only those items that ``store, process, or transmit classified 
software.'' To further clarify this point, the Department amended the 
note to paragraph (c)(1)(ii) by adding a parenthetical reference to 
ITAR Sec.  121.8(f).

Change to Control of Wing Folding Systems in USML Category VIII and 
Other Changes in Category VIII and USML Category XIX

    The Department revised paragraph (h)(4) of USML Category VIII to 
ensure that wing folding systems for commercial aircraft are not 
controlled as defense articles, while retaining those systems that 
warrant ITAR controls for foreign policy and national security. This 
change is made based on a public comment received on the revisions 
proposed to USML Category VIII (see, RINs 1400-AC96 and 1400-AD37).
    The Department also removed paragraphs (h)(21) and (h)(22) in USML 
Category VIII and paragraph (f)(7) in USML Category XIX (Gas Turbine 
Engines and Associated Equipment), as they are superseded by paragraphs 
(c)(2), (c)(3), and (c)(11) in USML Category XI.

Adoption of Proposed Rules and Other Changes

    Having reviewed and evaluated the comments and recommended changes 
for the USML Category XI proposed rule, the Department has determined 
that it will, and hereby does, adopt them, with changes and omission 
noted and other edits, and promulgates them in final form under this 
rule.

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 has published parts of 
this rule in separate rulemaking actions as follows: an NPRM and final 
rule on Category VIII, 1400-AC96 and 1400-AD37, respectively; an NPRM 
and final rule on Category XIX, 1400-AC98 and 1400-AD37, respectively; 
and an NPRM and Supplemental NPRM on Category XI, 1400-AD25. The 
rulemakings had a 45- or 60-day provision for public comment, without 
prejudice to the determination that controlling the import and export 
of

[[Page 37541]]

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 
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.

Paperwork Reduction Act

    Following is a listing of approved collections that will be 
affected by revision of the U.S. Munitions List (USML) and the Commerce 
Control List pursuant to the President's Export Control Reform (ECR) 
initiative. 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 categories 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 between 3,000 and 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 
between 6,000 and 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

[[Page 37542]]

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 in 22 CFR Part 121

    Arms and munitions, Classified, Exports.

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. Section 121 is amended:
0
a. In Category VIII by revising paragraph (h)(4) and removing and 
reserving paragraphs (h)(21) and (22);
0
b. By revising Category XI ; and
0
c. In Category XIX by removing and reserving paragraph (f)(7).
    The revisions read as follows:


Sec.  121.1  General. The United States Munitions List.

* * * * *

Category VIII--Aircraft and Related Articles

* * * * *
    (h) * * *
    (4) Wing folding systems, and specially designed parts and 
components therefor, for:
    (i) Aircraft powered by power plants controlled under USML Category 
IV(d); or,
    (ii) Aircraft powered by gas turbine engines with any of the 
following characteristics:
    (A) The portion of the wing outboard of the wing fold is required 
for sustained flight;
    (B) Fuel can be stored outboard of the wing fold;
    (C) Control surfaces are outboard of the wing fold;
    (D) Hard points are outboard of the wing fold;
    (E) Hard points inboard of the wing fold are capable of in-flight 
ejection; or
    (F) The aircraft is designed to withstand maximum vertical 
maneuvering accelerations greater than +3.5g/-1.5g.
* * * * *
    (21) [Reserved]
    (22) [Reserved]
* * * * *

Category XI--Military Electronics

    (a) Electronic equipment and systems not included in Category XII 
of the U.S. Munitions List, as follows:
    *(1) Underwater hardware, equipment, or systems, as follows:
    (i) Active or passive acoustic array sensing systems or acoustic 
array equipment capable of real-time processing that survey or detect, 
and also track, localize (i.e., determine range and bearing), classify, 
or identify, surface vessels, submarines, other undersea vehicles, 
torpedoes, or mines, having any of the following:
    (A) Multi-static capability;
    (B) Operating frequency less than 20 kHz; or
    (C) Operating bandwidth greater than 10 kHz;
    (ii) Underwater single acoustic sensor system that distinguishes 
non-biologic tonals and locates the origin of the sound;
    Note to paragraph(a)(1)(ii): The term tonals implies discrete 
frequencies in the broadband and narrowband spectra, emanating from 
man-made objects.
    (iii) Non-acoustic systems that survey or detect, and also track, 
localize (i.e., determine range and bearing), classify, or identify, 
surface vessels, submarines, other undersea vehicles, torpedoes, or 
mines;
    (iv) Acoustic modems, networks, and communications equipment with 
real-time adaptive compensation or employing Low Probability of 
Intercept (LPI);
    Note to paragraph (a)(1)(iv): Adaptive compensation is the 
capability of an underwater modem to assess the water conditions to 
select the best algorithm to receive and transmit data.
    (v) Low Frequency/Very Low Frequency (LF/VLF) electronic modems, 
routers, interfaces, and communications equipment, specially designed 
for submarine communications; or
    (vi) Autonomous systems and equipment that enable cooperative 
sensing and engagement by fixed (bottom mounted/seabed) or mobile 
Autonomous Underwater Vehicles (AUVs);
    *(2) Underwater acoustic countermeasures or counter-countermeasures 
systems or equipment;
    *(3) Radar systems and equipment, as follows:
    (i) Airborne radar that maintains positional state of an object or 
objects of interest, other than weather phenomena, in a received radar 
signal through time;
    (ii) Synthetic Aperture Radar (SAR) incorporating image resolution 
less than (better than) 0.3 m, or incorporating Coherent Change 
Detection (CCD) with geo-registration accuracy less than (better than) 
0.3 m, not including concealed object detection equipment operating in 
the frequency range from 30 GHz to 3,000 GHz and having a spatial 
resolution of 0.5 milliradians up to and including 1 milliradians at a 
standoff distance of 100 m;
    (iii) Inverse Synthetic Aperture Radar (ISAR);
    (iv) Radar that geodetically-locates (i.e., geodetic latitude, 
geodetic longitude, and geodetic height) with a target location error 
50 (TLE50) less than or equal to 10 m at ranges greater than 1 km;
    (v) Any Ocean Surveillance Radar with an average-power-aperture 
product of greater than 50 Wm\2\;
    (vi) Any ocean surveillance radar that transmits a waveform with an 
instantaneous bandwidth greater than 100 MHz and has an antenna 
rotation rate greater than 60 Revolutions-per-Minute (RPM);
    (vii) Air surveillance radar with free space detection of 1 square 
meter RCS target at 85 nmi or greater range, scaled to RCS values as 
RCS to the \1/4\ power;
    (viii) Air surveillance radar with free space detection of 1 square 
meter RCS target at an altitude of 65,000 feet and an elevation angle 
greater than 20 degrees (i.e., counter-battery);
    (ix) Air surveillance radar with multiple elevation beams, phase or

[[Page 37543]]

amplitude monopulse estimation, or 3D height-finding;
    (x) Air surveillance radar with a beam solid angle less than or 
equal to 16 degrees\2\ that performs free space tracking of 1 square 
meter RCS target at a range greater or equal to 25 nmi with revisit 
rate greater or equal to \1/3\ Hz;
    (xi) Instrumentation radar for anechoic test facility or outdoor 
range that maintains positional state of an object of interest in a 
received radar signal through time or provides measurement of RCS of a 
static target less than or equal to minus 10dBsm, or RCS of a dynamic 
target;
    (xii) Radar incorporating pulsed operation with electronics 
steering of transmit beam in elevation and azimuth;
    Note to paragraph (a)(3)(xii): This paragraph does not control 
radars not otherwise controlled in this subchapter, operating with a 
peak transmit power less than or equal to 250 watts, and employing a 
design determined to be subject to the EAR via a commodity jurisdiction 
determination (see Sec.  120.4 of this subchapter).
    (xiii) Radar with mode(s) for ballistic tracking or ballistic 
extrapolation to source of launch or impact point of articles 
controlled in USML Categories III or IV;
    (xiv) Active protection radar and missile warning radar with 
mode(s) implemented for detection of incoming munitions;
    (xv) Over the horizon high frequency sky-wave (ionosphere) radar;
    (xvi) Radar that detects a moving object through a physical 
obstruction at distance greater than 0.2 m from the obstruction;
    (xvii) Radar having moving target indicator (MTI) or pulse-Doppler 
processing where any single Doppler filter provides a normalized 
clutter attenuation of greater than 60dB;
    Note to paragraph (a)(3)(xvii): ``Normalized clutter attenuation'' 
is defined as the reduction in the power level of received distributed 
clutter when normalized to the thermal noise level.
    (xviii) Radar having electronic protection (EP) or electronic 
counter-countermeasures (ECCM) other than manual gain control, 
automatic gain control, radio frequency selection, constant false alarm 
rate, and pulse repetition interval jitter;
    (xix) Radar employing electronic attack (EA) mode(s) using the 
radar transmitter and antenna;
    (xx) Radar employing electronic support (ES) mode(s) (i.e., the 
ability to use a radar system for ES purposes in one or more of the 
following: as a high-gain receiver, as a wide-bandwidth receiver, as a 
multi-beam receiver, or as part of a multi-point system);
    (xxi) Radar employing non-cooperative target recognition (NCTR) 
(i.e., the ability to recognize a specific platform type without 
cooperative action of the target platform);

    Note to Paragraph (a)(3)(xxi): The definition of ``type'' in 
this paragraph is that provided in 14 CFR Sec.  1.1.

    (xxii) Radar employing automatic target recognition (ATR) (i.e., 
recognition of target using structural features (e.g., tank versus car) 
of the target with system resolution better than (less than) 0.3 m);
    (xxiii) Radar that sends interceptor guidance commands or provides 
illumination keyed to an interceptor seeker;
    (xxiv) Radar employing waveform generation for LPI other than 
frequency modulated continuous wave (FMCW) with linear ramp modulation;
    (xxv) Radar that sends and receives communications;
    (xxvi) Radar that tracks or discriminates ballistic missile warhead 
from debris or countermeasures;
    (xxvii) Bi-static/multi-static radar that exploits greater than 125 
kHz bandwidth and is lower than 2 GHz center frequency to passively 
detect or track using radio frequency (RF) transmissions (e.g., 
commercial radio, television stations);
    (xxviii) Radar target generators, projectors, or simulators, 
specially designed for radars controlled by this category; or
    (xxix) Radar and laser radar systems specially designed for defense 
articles in paragraph (a)(1) of USML Category IV or paragraphs (a)(5), 
(a)(6), or (a)(13) of USML Category VIII (MT if specially designed for 
rockets, space launch vehicles, missiles, drones, or unmanned aerial 
vehicles capable of delivering a payload of at least 500 kg to a range 
of at least 300 km);

    Note 1 to paragraph (a)(3)(xxix): Laser radar systems embody 
specialized transmission, scanning, receiving, and signal processing 
techniques for utilization of lasers for echo ranging, direction 
finding, and discrimination of targets by location, radial speed, 
and body reflection characteristics.


    Note 2 to paragraph (a)(3)(xxix): For definition of ``range'' as 
it pertains to rocket systems, see note 1 to paragraph (a) of USML 
Category IV. ``Payload'' is the total mass that can be carried or 
delivered by the specified rocket, SLV, or missile that is not used 
to maintain flight.


    Note to paragraph (a)(3): This paragraph does not control: (a) 
Systems or equipment that require aircraft transponders in order to 
meet control parameters; (b) precision approach radar (PAR) 
equipment conforming to ICAO standards and employing electronically 
steerable linear (1- dimensional) arrays or mechanically positioned 
passive antennas; and (c) radio altimeter equipment conforming to 
FAA TSO C87.

    *(4) Electronic Combat (i.e., Electronic Warfare) systems and 
equipment, as follows:
    (i) Electronic Support (ES) systems and equipment that search for, 
intercept and identify, or locate sources of intentional or 
unintentional electromagnetic energy specially designed to provide 
immediate threat detection, recognition, targeting, planning, or 
conduct of future operations;

    Note to paragraph (a)(4)(i): ES provides tactical situational 
awareness, automatic cueing, targeting, electronic order of battle 
planning, electronic intelligence (ELINT), communication 
intelligence (COMINT), or signals intelligence (SIGINT).

    (ii) Systems and equipment that detect and automatically 
discriminate acoustic energy emanating from weapons fire (e.g., 
gunfire, artillery, rocket propelled grenades, or other projectiles), 
determining location or direction of weapons fire in less than two 
seconds from receipt of event signal, and able to operate on-the-move 
(e.g., operating on personnel, land vehicles, sea vessels, or aircraft 
while in motion); or
    (iii) Systems and equipment specially designed to introduce 
extraneous or erroneous signals into radar, infrared based seekers, 
electro-optic based seekers, radio communication receivers, navigation 
receivers, or that otherwise hinder the reception, operation, or 
effectiveness of adversary electronics (e.g., active or passive 
electronic attack, electronic countermeasure, electronic counter-
countermeasure equipment, jamming, and counter jamming equipment);
    *(5) Command, control, and communications (C3); command, control, 
communications, and computers (C4); command, control, communications, 
computers, intelligence, surveillance, and reconnaissance (C4ISR); and 
identification systems or equipment, that:
    (i) Are specially designed to integrate, incorporate, network, or 
employ defense articles that are controlled in paragraphs or 
subparagraphs of the categories of Sec.  121.1 of this part that do not 
use the term specially designed;
    (ii) Incorporate U.S. government identification friend or foe (IFF) 
Modes 4 or 5;

[[Page 37544]]

    (iii) Implement active or passive ECCM used to counter acts of 
communication disruption (e.g., radios that incorporate HAVE QUICK I/
II, SINCGARS, SATURN);
    (iv) Specially designed, rated, certified, or otherwise specified 
or described to be in compliance with U.S. government NSTISSAM TEMPEST 
1-92 standards or CNSSAM TEMPEST 01-02, to implement techniques to 
suppress compromising emanations of information bearing signals; or
    (v) Transmit voice or data signals specially designed to elude 
electromagnetic detection;
    (6) [Reserved]
    (7) Developmental electronic equipment or systems funded by the 
Department of Defense via contract or other funding authorization;

    Note 1 to paragraph (a)(7): This paragraph does not control 
electronic systems or equipment (a) in production, (b) determined to 
be subject to the EAR via a commodity jurisdiction determination 
(see Sec.  120.4 of this subchapter), or (c) identified in the 
relevant Department of Defense contract or other funding 
authorization as being developed for both civil and military 
applications.


    Note 2 to paragraph (a)(7): Note 1 does not apply to defense 
articles enumerated on the USML, whether in production or 
development.


    Note 3 to paragraph (a)(7): This paragraph is applicable only to 
those contracts and funding authorizations that are dated July 1, 
2015, or later.

    (8) Unattended ground sensor (UGS) systems or equipment having all 
of the following:
    (i) Automatic target detection;
    (ii) Automatic target tracking, classification, recognition, or 
identification;
    (iii) Self-forming or self-healing networks; and
    (iv) Self-localization for geo-locating targets;
    (9) Electronic sensor systems or equipment for non-acoustic 
antisubmarine warfare (ASW) or mine warfare (e.g., magnetic anomaly 
detectors (MAD), electric-field, electromagnetic induction);
    (10) Electronic sensor systems or equipment for detection of 
concealed weapons, having a standoff detection range of greater than 45 
m for personnel or detection of vehicle-carried weapons, not including 
concealed object detection equipment operating in the frequency range 
from 30 GHz to 3,000 GHz and having a spatial resolution of 0.5 
milliradians up to and including 1 milliradians at a standoff distance 
of 100 m;
    (11) Test sets specially designed for testing defense articles 
controlled in paragraphs (a)(3), (a)(4), (a)(5), or (b); or
    (12) Direction finding equipment for determining bearings to 
specific electromagnetic sources or terrain characteristics specially 
designed for defense articles in paragraph (a)(1) of USML Category IV 
or paragraphs (a)(5), (a)(6), or (a)(13) of USML Category VIII (MT if 
specially designed for rockets, SLVs, missiles, drones, or UAVs capable 
of delivering a payload of at least 500 kg to a range of at least 300 
km. See note 2 to paragraph (a)(3)(xxix) of this category).

    Note 1 to paragraph (a): The term ``Low Probability of 
Intercept'' used in this paragraph and elsewhere in this category is 
defined as a class of measures that disguise, delay, or prevent the 
interception of acoustic or electromagnetic signals. LPI techniques 
can involve permutations of power management, energy management, 
frequency variability, out-of-receiver-frequency band, low-side lobe 
antenna, complex waveforms, and complex scanning. LPI is also 
referred to as Low Probability of Intercept, Low Probability of 
Detection, and Low Probability of Identification.


    Note 2 to paragraph (a): Paragraphs (a)(3)(xxix) and (a)(12) 
include terrain contour mapping equipment, scene mapping and 
correlation (both digital and analogue) equipment, Doppler 
navigation radar equipment, passive interferometer equipment, and 
imaging sensor equipment (both active and passive).

    *(b) Electronic systems or equipment, not elsewhere enumerated in 
this sub-chapter, specially designed for intelligence purposes that 
collect, survey, monitor, or exploit the electromagnetic spectrum 
(regardless of transmission medium), or for counteracting such 
activities.
    (c) Parts, components, accessories, attachments, and associated 
equipment, as follows:
    (1) Application Specific Integrated Circuits (ASICs) and 
Programmable Logic Devices (PLD) programmed for defense articles in 
this subchapter;

    Note 1 to paragraph (c)(1): An ASIC is an integrated circuit 
developed and produced for a specific application or function 
regardless of number of customers.


    Note 2 to paragraph (c)(1): ASICs and PLDs programmed for 600 
series items are controlled in ECCN 3A611.f.


    Note 3 to paragraph (c)(1): Unprogrammed PLDs are not controlled 
by this paragraph.

    (2) Printed Circuit Boards (PCBs) and populated circuit card 
assemblies for which the layout is specially designed for defense 
articles in this subchapter;

    Note to paragraph (c)(2):  PCBs and populated circuit card 
assemblies for which the layout is specially designed for 600 series 
items are controlled in ECCN 3A611.g.

    (3) Multichip modules for which the pattern or layout is specially 
designed for defense articles in this subchapter;

    Note to paragraph (c)(3):  Multichip modules for which the 
pattern or layout is specially designed for 600 series items are 
controlled in ECCN 3A611.h.

    (4) Transmit/receive modules or transmit modules that have any two 
perpendicular sides, with either length d (in cm) equal to or less than 
15 divided by the lowest operating frequency in GHz [d<=15cm*GHz/fGHz], 
with an electronically variable phase shifter or phasers that are a 
Monolithic Microwave Integrated Circuit (MMIC), or incorporate a MMIC 
or discrete RF power transistor;
    (5) High-energy storage capacitors with a repetition rate of 6 
discharges or more per minute and full energy life greater than or 
equal to 10,000 discharges, at greater than 0.2 Amps per Joule peak 
current, that have any of the following:
    (i) Volumetric energy density greater than or equal to 1.5 J/cc; or
    (ii) Mass energy density greater than or equal to 1.3 kJ/kg;
    (6) Radio frequency circulators of any dimension equal to or less 
than one quarter (\1/4\) wavelength of the highest operating frequency 
and isolation greater than 30dB;
    (7) Polarimeter that detects and measures polarization of radio 
frequency signals within a single pulse;
    (8) Digital radio frequency memory (DRFM) with RF instantaneous 
input bandwidth greater than 400 MHz, and 4 bit or higher resolution 
whose output signal is a translation of the input signal (e.g. changes 
in magnitude, time, frequency) and `specially designed' parts and 
components therefor;
    (9) Vacuum electronic devices, as follows:
    (i) Multiple electron beam or sheet electron beam devices rated for 
operation at frequencies of 16 GHz or above, and with a saturated power 
output greater than 10,000 W (70 dBm) or a maximum average power output 
greater than 3,000 W (65 dBm); or
    (ii) Cross-field amplifiers with a gain of 15 dB to 17 dB or a duty 
factor greater than 5%;
    (10) Antenna, and specially designed parts and components therefor, 
that:
    (i) Employ four or more elements, electronically steer angular 
beams, independently steer angular nulls, create angular nulls with a 
null depth greater than 20 dB, and achieve a beam switching speed 
faster than 50 milliseconds;

[[Page 37545]]

    (ii) Form adaptive null attenuation greater than 35 dB with 
convergence time less than 1 second;
    (iii) Detect signals across multiple RF bands with matched left 
hand and right hand spiral antenna elements for determination of signal 
polarization; or
    (iv) Determine signal angle of arrival less than two degrees (e.g., 
interferometer antenna);

    Note to paragraph (c)(10): This category does not control 
Traffic Collision Avoidance Systems (TCAS) equipment conforming to 
FAA TSO C-119c.

    (11) Radomes or electromagnetic antenna windows that:
    (i) Incorporate radio frequency selective surfaces;
    (ii) Operate in multiple non-adjacent frequency bands for radar 
applications;
    (iii) Incorporate a structure that is specially designed to provide 
ballistic protection from bullets, shrapnel, or blast;
    (iv) Have a melting point greater than 1,300[deg] C and maintain a 
dielectric constant less than 6 at temperatures greater than 500[deg] 
C;
    (v) Are manufactured from ceramic materials with a dielectric 
constant less than 6 at any frequency from 100 MHz to 100 GHz (MT if 
usable in rockets, SLVs, or missiles capable of achieving a range 
greater than or equal to 300 km; or if usable in drones or UAVs capable 
of delivering a payload of at least 500 kg to a range of at least 300 
km. See note 2 to paragraph (a)(3)(xxix) of this category);
    (vi) Maintain structural integrity at stagnation pressures greater 
than 6,000 pounds per square foot; or
    (vii) Withstand combined thermal shock greater than 4.184 x 10\6\ 
J/m\2\ accompanied by a peak overpressure of greater than 50 kPa (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 
and usable in protecting against nuclear effects (e.g., Electromagnetic 
Pulse (EMP), X-rays, combined blast and thermal effects). See note 2 to 
paragraph (a)(3)(xxix) of this category);
    (12) Underwater sensors (acoustic vector sensors, hydrophones, or 
transducers) or projectors, specially designed for systems controlled 
by paragraphs (a)(1) and (a)(2) of this category, having any of the 
following:
    (i) A transmitting frequency below 10 kHz for sonar systems;
    (ii) Sound pressure level exceeding 224 dB (reference 1 mPa at 1 m) 
for equipment with an operating frequency in the band from 10 kHz to 24 
kHz inclusive;
    (iii) Sound pressure level exceeding 235 dB (reference 1 mPa at 1 
m) for equipment with an operating frequency in the band between 24 kHz 
and 30 kHz;
    (iv) Forming beams of less than 1[deg] on any axis and having an 
operating frequency of less than 100 kHz;
    (v) Designed to operate with an unambiguous display range exceeding 
5,120 m; or
    (vi) Designed to withstand pressure during normal operation at 
depths exceeding 1,000 m and having transducers with any of the 
following:
    (A) Dynamic compensation for pressure; or
    (B) Incorporating other than lead zirconate titanate as the 
transduction element;
    (13) Parts or components containing piezoelectric materials which 
are specially designed for underwater hardware, equipment, or systems 
controlled by paragraph (c)(12) of this category;
    (14) Tuners specially designed for systems and equipment in 
paragraphs (a)(4) and (b) of this category;
    (15) Electronic assemblies and components, capable of operation at 
temperatures in excess of 125[deg] C and specially designed for UAVs or 
drones controlled by USML Category VIII, rockets, space launch vehicles 
(SLV), or missiles controlled by USML Category IV capable of achieving 
a range greater than or equal to 300 km (MT) (see Note 2 to paragraph 
(a)(3)(xxix) of this category);
    (16) Hybrid (combined analogue/digital) computers specially 
designed for modeling, simulation, or design integration of systems 
enumerated in paragraphs (a)(1), (d)(1), (d)(2), (h)(1), (h)(2), 
(h)(4), (h)(8), and (h)(9) of USML Category IV or paragraphs (a)(5), 
(a)(6), or (a)(13) of USML Category VIII (MT if for rockets, SLVs, 
missiles, drones, or UAVs capable of delivering a payload of at least 
500 kg to a range of at least 300 km or their subsystems. See note 2 to 
paragraph (a)(3)(xxix) of this category);
    (17) Chaff and flare rounds specially designed for the systems and 
equipment described in paragraph (a)(4)(iii) of this category, and 
parts and components therefor containing materials controlled in USML 
Category V;
    (18) Parts, components, or accessories specially designed for an 
information assurance/information security system or radio controlled 
in this subchapter that modify its published properties (e.g., 
frequency range, algorithms, waveforms, CODECs, or modulation/
demodulation schemes); or
    * (19) Any part, component, accessory, attachment, equipment, or 
system that (MT for those articles designated as such):
    (i) Is classified;
    (ii) Contains classified software directly related to defense 
articles in this subchapter or 600 series items subject to the EAR; or
    (iii) Is being developed using classified information (see Sec.  
120.10(a)(2) of this subchapter).

    Note to paragraph (c)(19): ``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 to paragraph (c)(19)(ii): Parts and components controlled 
by this paragraph are limited to those that store, process, or 
transmit classified software (see Sec.  121.8(f) of this 
subchapter).

    (d) 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 (c) of 
this category and classified technical data directly related to items 
controlled in CCL ECCNs 3A611, 3B611, 3C611, and 3D611 and defense 
services using the classified technical data. (See Sec.  125.4 of this 
subchapter for exemptions.) (MT for technical data and defense services 
related to articles designated as such.)
    (e)-(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 includes commodities, 
software, or technology subject to the EAR (see Sec.  123.1(b) of 
this subchapter).

* * * * *

Category XIX--Gas Turbine Engines and Associated Equipment

* * * * *
    (f) * * *
    (7) [Reserved]
* * * * *

Rose E. Gottemoeller,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. 2014-14681 Filed 6-30-14; 8:45 am]
BILLING CODE 4710-25-P