International Traffic in Arms Regulations: Revision of U.S. Munitions List Category XV, 2889-2892 [2016-31751]
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Veteran Avia LLC a.k.a., the following
alias:
—Veteran Airline.
1 Beckett Place, South Hamptonshire,
London, U.K. (See also addresses
under Armenia, Greece, and Pakistan).
*
*
For all items subject to
the EAR. (See § 744.11
of the EAR).
Presumption of denial ......
79 FR 56003, 9/18/14. 81
FR 8829, 2/23/16. 82
FR [INSERT FR PAGE
NUMBER] 1/10/17.
Country
Dated: December 28, 2016.
Alexander K. Lopes, Jr.,
Acting Assistant Secretary for Export
Administration.
[FR Doc. 2016–31833 Filed 1–9–17; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice: 9688]
RIN 1400–AD33
International Traffic in Arms
Regulations: Revision of U.S.
Munitions List Category XV
Department of State.
Final rule.
AGENCY:
ACTION:
As part of the President’s
Export Control Reform (ECR) initiative,
the Department published an interim
final rule on May 13, 2014 that revised
Category XV (Spacecraft and Related
Articles) of the U.S. Munitions List
(USML). After reviewing comments to
the interim final rule, the Department of
State is amending the International
Traffic in Arms Regulations (ITAR) to
further revise Category XV of the USML
to describe more precisely the articles
warranting control in that category.
DATES: This final rule is effective on
January 15, 2017.
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 XV.
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
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SUMMARY:
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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 exports
and reexports. 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.
The Department published an interim
final rule revising USML Category XV
on May 13, 2014 (79 FR 27180) and
received 11 public comments on the
proposed changes to the ITAR. The
interim final rule became effective
November 10, 2014, and this final rule
is making changes in response to the
previously received comments received
on the interim final rule.
Changes in This Rule
Paragraphs (a)(2), (a)(10), (a)(11),
(a)(12), (e)(4), (e)(5), (e)(11)(iv), (e)(12),
(e)(20), and Note 3 to paragraph (a) and
Note 3 to paragraph (f) are amended to
better reflect the intended scope of
control with regard to autonomous
tracking systems, logistics, propulsion
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systems, cryocoolers and vibration
suppression systems. Paragraphs
(a)(7)(i) and (e)(2) are amended to clarify
the size of the respective aperture
dimension of specific electro-optical
remote sensing capabilities and space
qualified optics.
Three commenters stated that the
aperture dimensions in paragraph
(a)(7)(i) (electro-optical satellite
systems) should be raised from 0.35m to
at or below 1.1m to reflect the
commercial market for satellite imagery
and account for technical advances in
apertures and ground resolution
capabilities. The Department
acknowledges this comment and that
aperture technology is evolving, and has
revised (a)(7)(i) to 0.50m to reflect the
current status of technology that
provides the United States with a
critical military or intelligence
advantage and warrants control on the
USML.
Two commenters stated that (a)(12)
should be revised to include a definition
of ‘‘spaceflight,’’ or an inclusion of the
word ‘‘human’’ in front of ‘‘spaceflight,’’
as well as to clarify that the provision
does not control satellites subject to the
jurisdiction of the Department of
Commerce. The Department disagrees
with this comment because the word
‘‘spaceflight’’ was removed from
paragraph (a) in a November 10, 2014
clean-up rule (79 FR 66608). In
addition, the revisions to paragraph
(a)(12) herein clarify that the rule does
not control satellites subject to the
jurisdiction of the Department of
Commerce.
Two commenters suggested that (c)(4)
be amended to better reflect the controls
imposed by both the EAR and Missile
Technology Control Regime, and to
avoid any regulatory confusion caused
by the fact that drones and UAVs are
already controlled under Category VIII
of the ITAR. The Department
acknowledges the comments, and
proposed removal of paragraph (c) to
Category XII (Fire Control, Range
Finder, Optical and Guidance and
Control Equipment) (see 81 FR 8438,
Feb. 18, 2016). All public comments
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pertaining to (c) will be addressed in
that final rule.
One commenter stated that the
aperture dimensions in paragraph (e)(2)
should be raised from 0.35m to 1.1m to
reflect the commercial market for
satellite imagery. The Department
acknowledges this comment and that
aperture technology is evolving, and has
revised the dimension in (e)(2)(ii) to
0.50m to reflect the current status of
technology that provides the United
States with a critical military or
intelligence advantage and warrants
control on the USML.
One commenter noted that paragraph
(e)(4), which concerns space qualified
mechanical cryocoolers, uses the term
‘‘specially designed’’ to describe the
electronics captured in that provision,
but that the words ‘‘specially designed’’
are omitted from (e)(5), resulting in
certain commercial control electronics
being inadvertently caught under the
ITAR. The Department agrees with this
comment, and has added the words
‘‘specially designed’’ to (e)(5).
One commenter expressed concern
with possible unintended consequences
of the interim final rule on space
qualified laser radar, or light detection
and ranging (LIDAR). Specifically, while
the interim final rule clarified that (e)(7)
does not control space qualified LIDAR,
the commenter expressed concern that it
could still be caught by paragraph (e)(3).
The Department clarifies that paragraph
(e)(3) could not inadvertently catch
space qualified LIDAR, because note 2
to paragraph (e) makes clear that when
the articles described in Category XV(e)
are ‘‘integrated into and included as an
integral part’’ of an item subject to the
EAR, they are subject to the EAR. A
space qualified focal plane array by
itself would be caught by (e)(3), but
once integrated and integral to an item
subject to the EAR, such as an EARcontrolled space qualified LIDAR, the
space qualified focal plane array would
be subject to the EAR.
One commenter stated that Note 3 to
paragraph (f) should be amended to
clarify that ‘‘housekeeping’’ data from
spacecraft are not subject to the ITAR or
EAR, and that the ITAR should be
updated to reflect the language of Note
2 to Product Group E, Category 9 of the
Commerce Control List (CCL). The
Department accepts this comment and
aligns note 3 to paragraph (f) with the
corresponding Note 2 published in
Product Group E, Category 9 of the CCL
for the purpose of consistency between
the USML and CCL.
Two commenters asserted that ITAR
§ 124.15 imposes ‘‘special export
controls’’ over and above the standard
licensing controls without a
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corresponding national security
consideration, and the provisions
should be amended to reflect that the
additional scrutiny imposed would only
be used in limited and particular
circumstances. In addition, the
commenters stated that the Departments
of State and Commerce should jointly
revise the regulatory requirements to
remove the de facto pre-licensing
requirement for satellite exports subject
to the EAR intended for launch in
NATO and major non-NATO allied
countries. The Department does not
accept these comments as § 124.15 only
applies to satellites and related items
controlled by Category XV of the USML.
These controls do not apply to the EAR,
which has its own analogous form of
controls.
Additional Changes
The Department also makes a number
of other revisions to Category XV to
limit the controls to those items that
provide a critical military or intelligence
advantage to the United States and
warrant controls on the USML, which
are detailed below.
This final rule amends paragraph
(a)(2) to clarify that the control applies
to spacecraft that perform real-time
autonomous detection and tracking of
moving objects, other than celestial
bodies. The control does not include
systems that can track fixed points to
determine their own movement based
on the relative position of the fixed
points over time.
This final rule amends paragraphs
(a)(10) and (11) to clarify the nature of
the technology and defense articles
controlled. Paragraph (a)(10) is revised
to control spacecraft that autonomously
perform collision avoidance. Paragraph
(a)(11) is revised to control sub-orbital
craft that incorporate a propulsion
system described in either paragraph (e)
or Category IV(d)(1)–(6), and are
specially designed for atmospheric entry
or re-entry. The Department also makes
a corresponding change to paragraph
(e)(20) to reflect the forms of propulsion
controlled in paragraph (a)(11). The
Department also removes the Note 3
paragraph (a) regarding attitude control.
A new Note 3 to paragraph (a) is added
to remove the James Webb Space
Telescope from the jurisdiction of the
USML and transfer its control to the
EAR. A new sentence is also to Note 2
to paragraph (e)(17) removing the
primary and secondary payloads of the
James Webb Space Telescope from the
jurisdiction of the USML and
transferring their control to the EAR.
Any parts and components of the James
Webb Space Telescope that are
controlled in other entries of paragraph
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(e) remain on the USML, except as
described in Note 2 to paragraph (e).
This final rule amends paragraphs
(e)(4) and (e)(5) to clarify the type of
systems controlled. Specifically, the
word ‘‘systems’’ is added to both
provisions to make it clear that the
provisions are designed to control ‘‘cold
finger systems’’ in (e)(4) and ‘‘vibration
suppression systems’’ and ‘‘active
dampening systems’’ in (e)(5).
This final rule amends paragraphs
(e)(11)(iv) and (e)(12) to clarify the type
of propulsions systems controlled.
Paragraph (e)(11)(iv) is revised to
control electric propulsion systems,
such as plasma and ion based systems,
that provide greater than 300 milliNewtons of thrust and a specific
impulse greater than 1,500 sec; or that
operate at an input power of more than
15kW. Paragraph (e)(12) is revised to
control bi-propellants or monopropellant rocket engines with which
provide greater than 150 lbf (i.e., 667.23
N) vacuum thrust.
Regulatory Analysis and Notices
Administrative Procedure Act
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 §§ 553 (rulemaking) and 554
(adjudications) of the Administrative
Procedure Act (APA). Although this rule
is exempt from the rulemaking
provisions of the APA and without
prejudice to the Department’s
determination that controlling the
import and export of defense services is
a foreign affairs function, the
Department allowed a 45-day public
comment period for the interim final
rule. The Department has made
additional refinements to what was
proposed based on the public comments
received, which helps to further the
objectives described in the interim final
rule that is published as a final rule
today. This final rule will be effective
on January 15, 2017.
Regulatory Flexibility Act
Since this final 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.
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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
This rulemaking is not a major rule as
defined in 5 U.S.C. 804.
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,’’ under Executive Order 12866.
Accordingly, this rule has been
reviewed by the Office of Management
and Budget (OMB).
Executive Order 12988
The Department of State reviewed this
rulemaking in light of Executive Order
12988 to eliminate ambiguity, minimize
litigation, establish clear legal
standards, and reduce burden.
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Executive Order 13175
The Department of State determined
that this rulemaking will not have tribal
implications, will not impose
substantial direct compliance costs on
Indian tribal governments, and will not
preempt tribal law. Accordingly, the
requirements of Executive Order 13175
do not apply to this rulemaking.
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Paperwork Reduction Act
This rule does not impose any new
reporting or recordkeeping requirements
subject the Paperwork Reduction Act 44
U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 121
Arms and munitions, Classified
information, Exports,Technical
assistance.
Accordingly, for the reasons set forth
above, title 22, chapter I, subchapter M,
part 121 is amended as follows:
PART 121—THE UNITED STATES
MUNITIONS LIST
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.
2. In § 121.1, under Category XV:
a. Revise paragraphs (a)(2), (a)(7)(i),
and (a)(10) through (12).
■ b. Add Note to paragraph (a)(12).
■ c. Revise Note 3 to paragraph (a).
■ d. Revise paragraphs (e)(2), (4), and
(5), (e)(11)(iv), and (e)(12).
■ e. Revise Note 2 to paragraph (e)(17).
■ f. Revise paragraph (e)(20).
■ g. Revise Note 3 to paragraph (f).
The revisions and addition read as
follows:
■
■
§ 121.1
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The United States Munitions List.
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Category XV—Spacecraft and Related
Articles
(a) * * *
* (2) Autonomously detect and track
moving ground, airborne, missile, or
space objects other than celestial bodies,
in real-time using imaging, infrared,
radar, or laser systems;
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(7) * * *
(i) Electro-optical visible and near
infrared (VNIR) (i.e., 400nm to 1,000nm)
or infrared (i.e., greater than 1,000nm to
30,000nm) with less than 40 spectral
bands and having a clear aperture
greater than 0.50m;
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(10) Autonomously perform collision
avoidance;
(11) Are sub-orbital, incorporate
propulsion systems described in
paragraph (e) of this category or
Category IV(d)(1)–(6) of this section, and
are specially designed for atmospheric
entry or re-entry;
(12) Are specially designed to provide
inspection or surveillance of another
spacecraft, or service another spacecraft
via grappling or docking; or
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Note to paragraph (a)(12): This paragraph
does not control spacecraft that dock
exclusively via the NASA Docking System
(NDS), which are controlled by ECCN
9A515.a.4.
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Note 3 to paragraph (a): This paragraph
does not control the James Webb Space
Telescope, which is subject to the EAR.
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(e) * * *
(2) Space-qualified optics (i.e., lens,
mirror or membrane) having one of the
following:
(i) Active properties (e.g., adaptive,
deformable) with a largest lateral clear
aperture dimension greater than 0.35m;
or
(ii) A largest lateral clear aperture
dimension greater than 0.50m;
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(4) Space-qualified mechanical (i.e.,
active) cryocooler or active cold finger
systems, and associated control
electronics specially designed therefor;
(5) Space-qualified active vibration
suppression systems, including active
isolation and active dampening systems,
and associated control electronics
specially designed therefor;
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(11) * * *
(iv) Electric (Plasma/Ion) propulsion
systems that provide a thrust greater
than 300 milli-Newtons and a specific
impulse greater than 1,500 sec; or that
operate at an input power of more than
15kW;
(12) Thrusters (e.g., spacecraft or
rocket engines) using bi-propellants or
mono-propellant that provide greater
than 150 lbf (i.e., 667.23 N) vacuum
thrust (MT for rocket motors or engines
having a total impulse capacity equal to
or greater than 8.41 × 10∧5 newton
seconds);
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Note 2 to paragraph (e)(17): An ECCN
9A004 or ECCN 9A515.a spacecraft remains
a spacecraft subject to the EAR even when
incorporating a hosted payload performing a
function described in paragraph (a) of this
category. All spacecraft that incorporate
primary or secondary payloads that perform
a function described in paragraph (a) of this
category are controlled by that paragraph.
This paragraph does not control primary or
secondary payloads of the James Webb Space
Telescope, which are subject to the EAR.
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(20) Equipment modules, stages, or
compartments that incorporate
propulsion systems described in
paragraph (e) of this category or
Category IV(d)(1)–(6) of this section, and
can be separated or jettisoned from
another spacecraft; or
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Note 3 to paragraph (f): Paragraph (f) and
ECCNs 9E001, 9E002 and 9E515 do not
control the data transmitted to or from a
satellite or spacecraft, whether real or
simulated, when limited to information about
the health, operational status, or
measurements or function of, or raw sensor
output from, the spacecraft, spacecraft
payload(s), or its associated subsystems or
components. Such information is not within
the scope of information captured within the
definition of technology in the EAR for
purposes of Category 9 Product Group E.
Examples of such information, which are
commonly referred to as ‘‘housekeeping
data,’’ include (i) system, hardware,
component configuration, and operation
status information pertaining to
temperatures, pressures, power, currents,
voltages, and battery charges; (ii) spacecraft
or payload orientation or position
information, such as state vector or
ephemeris information; (iii) payload raw
mission or science output, such as images,
spectra, particle measurements, or field
measurements; (iv) command responses; (v)
accurate timing information; and (vi) link
budget data. The act of processing such
telemetry data—i.e., converting raw data into
engineering units or readable products—or
encrypting it does not, in and of itself, cause
the telemetry data to become subject to the
ITAR or to ECCN 9E515 for purposes of
9A515, or to ECCNs 9E001 or 9E002 for
purposes of 9A004. All classified technical
data directly related to items controlled in
USML Category XV or ECCNs 9A515, and
defense services using the classified
technical data, remains subject to the ITAR.
This note does not affect controls in USML
XV(f), ECCN 9D515, or ECCN 9E515 on
software source code or commands that
control a spacecraft, payload, or associated
subsystems for purposes of 9A515. This note
also does not affect controls in ECCNs 9D001,
9D002, 9E001, or 9E002 on software source
code or commands that control a spacecraft,
payload, or associated subsystems for
purposes of 9A004.
*
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Dated: December 22, 2016.
Tom Countryman,
Acting Under Secretary, Arms Control and
International Security, Department of State.
[FR Doc. 2016–31751 Filed 1–9–17; 8:45 am]
BILLING CODE 4710–25–P
DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade
Bureau
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27 CFR Part 16
[Docket No. TTB–2017–0001; Notice No.
170]
Civil Monetary Penalty Inflation
Adjustment—Alcoholic Beverage
Labeling Act
Alcohol and Tobacco Tax and
Trade Bureau, Treasury.
AGENCY:
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Notification of civil monetary
penalty adjustment.
ACTION:
This document informs the
public that the maximum penalty for
violations of the Alcoholic Beverage
Labeling Act (ABLA) is being adjusted
in accordance with the Federal Civil
Penalties Inflation Adjustment Act of
1990, as amended. Prior to the
publication of this document, any
person who violated the provisions of
the ABLA was subject to a civil penalty
of not more than $19,787, with each day
constituting a separate offense. This
document announces that this
maximum penalty is being increased to
$20,111.
DATES: The new maximum civil penalty
for violations of the ABLA takes effect
on January 10, 2017 and applies to
penalties that are assessed after that
date.
FOR FURTHER INFORMATION CONTACT:
Andrew L. Malone, Public Guidance
Program Manager, Regulations and
Rulings Division, Alcohol and Tobacco
Tax and Trade Bureau, 1310 G Street
NW., Box 12, Washington, DC 20005;
(202) 453–1039, ext. 188.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
Statutory Authority for Federal Civil
Monetary Penalty Inflation Adjustments
The Federal Civil Penalties Inflation
Adjustment Act of 1990 (the Inflation
Adjustment Act), Public Law 101–410,
104 Stat. 890, 28 U.S.C. 2461 note,
requires the regular adjustment and
evaluation of civil monetary penalties to
maintain their deterrent effect and helps
to ensure that penalty amounts imposed
by the Federal Government are properly
accounted for and collected. A ‘‘civil
monetary penalty’’ is defined in the
Inflation Adjustment Act as any penalty,
fine, or other such sanction that is: (1)
For a specific monetary amount as
provided by Federal law, or has a
maximum amount provided for by
Federal law; (2) assessed or enforced by
an agency pursuant to Federal law; and
(3) assessed or enforced pursuant to an
administrative proceeding or a civil
action in the Federal courts.
The Debt Collection Improvement Act
of 1996 (the Improvement Act of 1996),
Public Law 104–134, section 31001(s),
110 Stat. 1321, enacted on April 26,
1996, amended the Inflation Adjustment
Act by requiring civil monetary
penalties to be adjusted for inflation.
The Inflation Adjustment Act was
further amended by the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (the
Improvements Act of 2015), Public Law
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114–74, section 701, 129 Stat. 584,
enacted on November 2, 2015. The
Improvements Act of 2015 changed the
method agencies use to calculate
inflation adjustments to civil monetary
penalties, as well as the method and
frequency of future adjustments. The
Improvements Act of 2015 also
instructed agencies to apply its method
of calculating the inflation adjustment
to the original statutory penalty, rather
than to penalties as they were adjusted
under the Improvement Act of 1996. To
account for inflation that took place
between the enactment of the original
penalties and the enactment of the
Improvements Act of 2015, agencies
must make a ‘‘catch-up’’ first adjustment
through an interim final rulemaking that
is published no later than July 1, 2016,
and takes effect no later than August 1,
2016. Agencies shall adjust civil
monetary penalties by the inflation
adjustment described in section 5 of the
Inflation Adjustment Act no later than
January 15 of every year thereafter. The
Improvements Act of 2015 also provides
that any increase in a civil monetary
penalty shall apply only to civil
monetary penalties, including those
whose associated violation predated
such an increase, which are assessed
after the date the increase takes effect.
As amended, the Inflation Adjustment
Act provides that the inflation
adjustment does not apply to civil
monetary penalties under the Internal
Revenue Code of 1986 or the Tariff Act
of 1930.
Alcoholic Beverage Labeling Act
The Alcohol and Tobacco Tax and
Trade Bureau (TTB) administers the
Federal Alcohol Administration Act
(FAA Act) pursuant to section 1111(d)
of the Homeland Security Act of 2002,
codified at 6 U.S.C. 531(d). The
Secretary has delegated various
authorities through Treasury
Department Order 120–01, dated
December 10, 2013, (superseding
Treasury Department Order 120–01,
dated January 24, 2003), to the TTB
Administrator to perform the functions
and duties in the administration and
enforcement of this law.
The FAA Act contains the Alcoholic
Beverage Labeling Act (ABLA) of 1988,
Public Law 100–690, 27 U.S.C. 213–
219a, which was enacted on November
18, 1988. Section 204 of the ABLA,
codified in 27 U.S.C. 215, requires that
a health warning statement appear on
the labels of all containers of alcoholic
beverages manufactured, imported, or
bottled for sale or distribution in the
United States, as well as on containers
of alcoholic beverages that are
manufactured, imported, bottled, or
E:\FR\FM\10JAR1.SGM
10JAR1
]]>Agencies
[Federal Register Volume 82, Number 6 (Tuesday, January 10, 2017)]
[Rules and Regulations]
[Pages 2889-2892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31751]
=======================================================================
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DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice: 9688]
RIN 1400-AD33
International Traffic in Arms Regulations: Revision of U.S.
Munitions List Category XV
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: As part of the President's Export Control Reform (ECR)
initiative, the Department published an interim final rule on May 13,
2014 that revised Category XV (Spacecraft and Related Articles) of the
U.S. Munitions List (USML). After reviewing comments to the interim
final rule, the Department of State is amending the International
Traffic in Arms Regulations (ITAR) to further revise Category XV of the
USML to describe more precisely the articles warranting control in that
category.
DATES: This final rule is effective on January 15, 2017.
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 XV.
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 exports and reexports. 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.
The Department published an interim final rule revising USML
Category XV on May 13, 2014 (79 FR 27180) and received 11 public
comments on the proposed changes to the ITAR. The interim final rule
became effective November 10, 2014, and this final rule is making
changes in response to the previously received comments received on the
interim final rule.
Changes in This Rule
Paragraphs (a)(2), (a)(10), (a)(11), (a)(12), (e)(4), (e)(5),
(e)(11)(iv), (e)(12), (e)(20), and Note 3 to paragraph (a) and Note 3
to paragraph (f) are amended to better reflect the intended scope of
control with regard to autonomous tracking systems, logistics,
propulsion systems, cryocoolers and vibration suppression systems.
Paragraphs (a)(7)(i) and (e)(2) are amended to clarify the size of the
respective aperture dimension of specific electro-optical remote
sensing capabilities and space qualified optics.
Three commenters stated that the aperture dimensions in paragraph
(a)(7)(i) (electro-optical satellite systems) should be raised from
0.35m to at or below 1.1m to reflect the commercial market for
satellite imagery and account for technical advances in apertures and
ground resolution capabilities. The Department acknowledges this
comment and that aperture technology is evolving, and has revised
(a)(7)(i) to 0.50m to reflect the current status of technology that
provides the United States with a critical military or intelligence
advantage and warrants control on the USML.
Two commenters stated that (a)(12) should be revised to include a
definition of ``spaceflight,'' or an inclusion of the word ``human'' in
front of ``spaceflight,'' as well as to clarify that the provision does
not control satellites subject to the jurisdiction of the Department of
Commerce. The Department disagrees with this comment because the word
``spaceflight'' was removed from paragraph (a) in a November 10, 2014
clean-up rule (79 FR 66608). In addition, the revisions to paragraph
(a)(12) herein clarify that the rule does not control satellites
subject to the jurisdiction of the Department of Commerce.
Two commenters suggested that (c)(4) be amended to better reflect
the controls imposed by both the EAR and Missile Technology Control
Regime, and to avoid any regulatory confusion caused by the fact that
drones and UAVs are already controlled under Category VIII of the ITAR.
The Department acknowledges the comments, and proposed removal of
paragraph (c) to Category XII (Fire Control, Range Finder, Optical and
Guidance and Control Equipment) (see 81 FR 8438, Feb. 18, 2016). All
public comments
[[Page 2890]]
pertaining to (c) will be addressed in that final rule.
One commenter stated that the aperture dimensions in paragraph
(e)(2) should be raised from 0.35m to 1.1m to reflect the commercial
market for satellite imagery. The Department acknowledges this comment
and that aperture technology is evolving, and has revised the dimension
in (e)(2)(ii) to 0.50m to reflect the current status of technology that
provides the United States with a critical military or intelligence
advantage and warrants control on the USML.
One commenter noted that paragraph (e)(4), which concerns space
qualified mechanical cryocoolers, uses the term ``specially designed''
to describe the electronics captured in that provision, but that the
words ``specially designed'' are omitted from (e)(5), resulting in
certain commercial control electronics being inadvertently caught under
the ITAR. The Department agrees with this comment, and has added the
words ``specially designed'' to (e)(5).
One commenter expressed concern with possible unintended
consequences of the interim final rule on space qualified laser radar,
or light detection and ranging (LIDAR). Specifically, while the interim
final rule clarified that (e)(7) does not control space qualified
LIDAR, the commenter expressed concern that it could still be caught by
paragraph (e)(3). The Department clarifies that paragraph (e)(3) could
not inadvertently catch space qualified LIDAR, because note 2 to
paragraph (e) makes clear that when the articles described in Category
XV(e) are ``integrated into and included as an integral part'' of an
item subject to the EAR, they are subject to the EAR. A space qualified
focal plane array by itself would be caught by (e)(3), but once
integrated and integral to an item subject to the EAR, such as an EAR-
controlled space qualified LIDAR, the space qualified focal plane array
would be subject to the EAR.
One commenter stated that Note 3 to paragraph (f) should be amended
to clarify that ``housekeeping'' data from spacecraft are not subject
to the ITAR or EAR, and that the ITAR should be updated to reflect the
language of Note 2 to Product Group E, Category 9 of the Commerce
Control List (CCL). The Department accepts this comment and aligns note
3 to paragraph (f) with the corresponding Note 2 published in Product
Group E, Category 9 of the CCL for the purpose of consistency between
the USML and CCL.
Two commenters asserted that ITAR Sec. 124.15 imposes ``special
export controls'' over and above the standard licensing controls
without a corresponding national security consideration, and the
provisions should be amended to reflect that the additional scrutiny
imposed would only be used in limited and particular circumstances. In
addition, the commenters stated that the Departments of State and
Commerce should jointly revise the regulatory requirements to remove
the de facto pre-licensing requirement for satellite exports subject to
the EAR intended for launch in NATO and major non-NATO allied
countries. The Department does not accept these comments as Sec.
124.15 only applies to satellites and related items controlled by
Category XV of the USML. These controls do not apply to the EAR, which
has its own analogous form of controls.
Additional Changes
The Department also makes a number of other revisions to Category
XV to limit the controls to those items that provide a critical
military or intelligence advantage to the United States and warrant
controls on the USML, which are detailed below.
This final rule amends paragraph (a)(2) to clarify that the control
applies to spacecraft that perform real-time autonomous detection and
tracking of moving objects, other than celestial bodies. The control
does not include systems that can track fixed points to determine their
own movement based on the relative position of the fixed points over
time.
This final rule amends paragraphs (a)(10) and (11) to clarify the
nature of the technology and defense articles controlled. Paragraph
(a)(10) is revised to control spacecraft that autonomously perform
collision avoidance. Paragraph (a)(11) is revised to control sub-
orbital craft that incorporate a propulsion system described in either
paragraph (e) or Category IV(d)(1)-(6), and are specially designed for
atmospheric entry or re-entry. The Department also makes a
corresponding change to paragraph (e)(20) to reflect the forms of
propulsion controlled in paragraph (a)(11). The Department also removes
the Note 3 paragraph (a) regarding attitude control. A new Note 3 to
paragraph (a) is added to remove the James Webb Space Telescope from
the jurisdiction of the USML and transfer its control to the EAR. A new
sentence is also to Note 2 to paragraph (e)(17) removing the primary
and secondary payloads of the James Webb Space Telescope from the
jurisdiction of the USML and transferring their control to the EAR. Any
parts and components of the James Webb Space Telescope that are
controlled in other entries of paragraph (e) remain on the USML, except
as described in Note 2 to paragraph (e).
This final rule amends paragraphs (e)(4) and (e)(5) to clarify the
type of systems controlled. Specifically, the word ``systems'' is added
to both provisions to make it clear that the provisions are designed to
control ``cold finger systems'' in (e)(4) and ``vibration suppression
systems'' and ``active dampening systems'' in (e)(5).
This final rule amends paragraphs (e)(11)(iv) and (e)(12) to
clarify the type of propulsions systems controlled. Paragraph
(e)(11)(iv) is revised to control electric propulsion systems, such as
plasma and ion based systems, that provide greater than 300 milli-
Newtons of thrust and a specific impulse greater than 1,500 sec; or
that operate at an input power of more than 15kW. Paragraph (e)(12) is
revised to control bi-propellants or mono-propellant rocket engines
with which provide greater than 150 lbf (i.e., 667.23 N) vacuum thrust.
Regulatory Analysis and Notices
Administrative Procedure Act
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 Sec. Sec. 553 (rulemaking)
and 554 (adjudications) of the Administrative Procedure Act (APA).
Although this rule is exempt from the rulemaking provisions of the APA
and without prejudice to the Department's determination that
controlling the import and export of defense services is a foreign
affairs function, the Department allowed a 45-day public comment period
for the interim final rule. The Department has made additional
refinements to what was proposed based on the public comments received,
which helps to further the objectives described in the interim final
rule that is published as a final rule today. This final rule will be
effective on January 15, 2017.
Regulatory Flexibility Act
Since this final rule is exempt from the provisions of 5 U.S.C.
553, there is no requirement for an analysis under the Regulatory
Flexibility Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not involve a mandate that will result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any year and it
will not significantly or uniquely affect small governments.
[[Page 2891]]
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
This rulemaking is not a major rule as defined in 5 U.S.C. 804.
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,'' under Executive Order 12866. Accordingly, this rule has been
reviewed by the Office of Management and Budget (OMB).
Executive Order 12988
The Department of State reviewed this rulemaking in light of
Executive Order 12988 to eliminate ambiguity, minimize litigation,
establish clear legal standards, and reduce burden.
Executive Order 13175
The Department of State determined that this rulemaking will not
have tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not preempt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements subject the Paperwork Reduction Act 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 121
Arms and munitions, Classified information, Exports,Technical
assistance.
Accordingly, for the reasons set forth above, title 22, chapter I,
subchapter M, part 121 is amended as follows:
PART 121--THE UNITED STATES MUNITIONS LIST
0
1. The authority citation for part 121 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105-261, 112
Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
0
2. In Sec. 121.1, under Category XV:
0
a. Revise paragraphs (a)(2), (a)(7)(i), and (a)(10) through (12).
0
b. Add Note to paragraph (a)(12).
0
c. Revise Note 3 to paragraph (a).
0
d. Revise paragraphs (e)(2), (4), and (5), (e)(11)(iv), and (e)(12).
0
e. Revise Note 2 to paragraph (e)(17).
0
f. Revise paragraph (e)(20).
0
g. Revise Note 3 to paragraph (f).
The revisions and addition read as follows:
Sec. 121.1 The United States Munitions List.
* * * * *
Category XV--Spacecraft and Related Articles
(a) * * *
* (2) Autonomously detect and track moving ground, airborne,
missile, or space objects other than celestial bodies, in real-time
using imaging, infrared, radar, or laser systems;
* * * * *
(7) * * *
(i) Electro-optical visible and near infrared (VNIR) (i.e., 400nm
to 1,000nm) or infrared (i.e., greater than 1,000nm to 30,000nm) with
less than 40 spectral bands and having a clear aperture greater than
0.50m;
* * * * *
(10) Autonomously perform collision avoidance;
(11) Are sub-orbital, incorporate propulsion systems described in
paragraph (e) of this category or Category IV(d)(1)-(6) of this
section, and are specially designed for atmospheric entry or re-entry;
(12) Are specially designed to provide inspection or surveillance
of another spacecraft, or service another spacecraft via grappling or
docking; or
Note to paragraph (a)(12): This paragraph does not control
spacecraft that dock exclusively via the NASA Docking System (NDS),
which are controlled by ECCN 9A515.a.4.
* * * * *
Note 3 to paragraph (a): This paragraph does not control the
James Webb Space Telescope, which is subject to the EAR.
* * * * *
(e) * * *
(2) Space-qualified optics (i.e., lens, mirror or membrane) having
one of the following:
(i) Active properties (e.g., adaptive, deformable) with a largest
lateral clear aperture dimension greater than 0.35m; or
(ii) A largest lateral clear aperture dimension greater than 0.50m;
* * * * *
(4) Space-qualified mechanical (i.e., active) cryocooler or active
cold finger systems, and associated control electronics specially
designed therefor;
(5) Space-qualified active vibration suppression systems, including
active isolation and active dampening systems, and associated control
electronics specially designed therefor;
* * * * *
(11) * * *
(iv) Electric (Plasma/Ion) propulsion systems that provide a thrust
greater than 300 milli-Newtons and a specific impulse greater than
1,500 sec; or that operate at an input power of more than 15kW;
(12) Thrusters (e.g., spacecraft or rocket engines) using bi-
propellants or mono-propellant that provide greater than 150 lbf (i.e.,
667.23 N) vacuum thrust (MT for rocket motors or engines having a total
impulse capacity equal to or greater than 8.41 x 10[caret]5
newton seconds);
* * * * *
Note 2 to paragraph (e)(17): An ECCN 9A004 or ECCN 9A515.a
spacecraft remains a spacecraft subject to the EAR even when
incorporating a hosted payload performing a function described in
paragraph (a) of this category. All spacecraft that incorporate
primary or secondary payloads that perform a function described in
paragraph (a) of this category are controlled by that paragraph.
This paragraph does not control primary or secondary payloads of the
James Webb Space Telescope, which are subject to the EAR.
* * * * *
(20) Equipment modules, stages, or compartments that incorporate
propulsion systems described in paragraph (e) of this category or
Category IV(d)(1)-(6) of this section, and can be separated or
jettisoned from another spacecraft; or
* * * * *
[[Page 2892]]
Note 3 to paragraph (f): Paragraph (f) and ECCNs 9E001, 9E002
and 9E515 do not control the data transmitted to or from a satellite
or spacecraft, whether real or simulated, when limited to
information about the health, operational status, or measurements or
function of, or raw sensor output from, the spacecraft, spacecraft
payload(s), or its associated subsystems or components. Such
information is not within the scope of information captured within
the definition of technology in the EAR for purposes of Category 9
Product Group E. Examples of such information, which are commonly
referred to as ``housekeeping data,'' include (i) system, hardware,
component configuration, and operation status information pertaining
to temperatures, pressures, power, currents, voltages, and battery
charges; (ii) spacecraft or payload orientation or position
information, such as state vector or ephemeris information; (iii)
payload raw mission or science output, such as images, spectra,
particle measurements, or field measurements; (iv) command
responses; (v) accurate timing information; and (vi) link budget
data. The act of processing such telemetry data--i.e., converting
raw data into engineering units or readable products--or encrypting
it does not, in and of itself, cause the telemetry data to become
subject to the ITAR or to ECCN 9E515 for purposes of 9A515, or to
ECCNs 9E001 or 9E002 for purposes of 9A004. All classified technical
data directly related to items controlled in USML Category XV or
ECCNs 9A515, and defense services using the classified technical
data, remains subject to the ITAR. This note does not affect
controls in USML XV(f), ECCN 9D515, or ECCN 9E515 on software source
code or commands that control a spacecraft, payload, or associated
subsystems for purposes of 9A515. This note also does not affect
controls in ECCNs 9D001, 9D002, 9E001, or 9E002 on software source
code or commands that control a spacecraft, payload, or associated
subsystems for purposes of 9A004.
* * * * *
Dated: December 22, 2016.
Tom Countryman,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2016-31751 Filed 1-9-17; 8:45 am]
BILLING CODE 4710-25-P
