Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Category VIII, 68694-68698 [2011-28502]

Download as PDF srobinson on DSK4SPTVN1PROD with PROPOSALS 68694 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Proposed Rules in the United States and, in the case of continuing guarantees, signed under the penalty of perjury? (a) Do retailers who obtain such guarantees obtain them for all, most, some, or few of the textile products they sell? (b) Why do retailers decline to obtain such guarantees? (c) Have changes in technology, such as the use of electronic documents, affected the ability of retailers to obtain valid separate or continuing guarantees? If so, why and how? If not, why not? (d) Provide any evidence concerning the extent to which retailers obtain such guarantees and the reasons why retailers decline to obtain them. (23) What proportion of textile products sold in the U.S. are imported? What proportion of imported products are imported directly by retailers? What proportion are imported by businesses located in the United States for resale or distribution to retailers? How have these proportions changed since the Textile Act and Rules became effective? (a) Have changes in the extent or manner in which textile products are imported affected the ability of retailers to obtain valid separate or continuing guarantees? If so, does the ability of retailers to obtain such guarantees differ depending on whether the textile products are imported directly by retailers versus imported by businesses for resale or distribution to retailers? (b) Provide any evidence concerning the costs of obtaining valid guarantees for imported textile products and the impact of such costs on the ability of retailers to obtain valid guarantees. (c) Do changes in the extent or manner in which textile products are imported indicate that the Textile Act and Rules should be modified? If so, why and how? If not, why not? You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before January 3, 2012. Write ‘‘Textile Rules, 16 CFR Part 303, Project No. P948404’’ on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http:// www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals’ home contact information from comments before placing them on the Commission Web site. Because your comment will be made public, you are solely responsible for making sure that your comment doesn’t include any sensitive personal information, such as anyone’s Social Security number, date VerDate Mar<15>2010 17:46 Nov 04, 2011 Jkt 226001 of birth, driver’s license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment doesn’t include any sensitive health information, like medical records or other individually-identifiable health information. In addition, don’t include any ‘‘[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential,’’ as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, don’t include competitively-sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names. If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you must follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).15 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest. Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https:// ftcpublic.commentworks.com/ftc/ textilerulesanpr by following the instructions on the web-based form. If this Notice appears at http:// www.regulations.gov/#!home, you also may file a comment through that Web site. If you file your comment on paper, write ‘‘Textile Rules, 16 CFR Part 303, Project No. P948404’’ on your comment and on the envelope and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H–113 (Annex G), 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service. Visit the Commission Web site at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the 15 In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c), 16 CFR 4.9(c). PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before January 3, 2012. You can find more information, including routine uses permitted by the Privacy Act, in the Commission’s privacy policy, at http://www.ftc.gov/ftc/privacy.htm. List of Subjects in 16 CFR Part 303 Advertising, Labeling, Recordkeeping, Textile fiber products. Authority: 15 U.S.C. 70 et seq. By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. 2011–28631 Filed 11–4–11; 8:45 am] BILLING CODE 6750–01–P DEPARTMENT OF STATE 22 CFR Part 121 RIN 1400–AC96 [Public Notice: [ 7673]] Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Category VIII Department of State. Proposed rule. AGENCY: ACTION: As part of the President’s Export Control Reform effort, the Department of State proposes to amend the International Traffic in Arms Regulations (ITAR) to revise Category VIII (aircraft and related articles) of the U.S. Munitions List (USML) to describe more precisely the military aircraft and related defense articles warranting control on the USML. DATES: The Department of State will accept comments on this proposed rule until December 22, 2011. ADDRESSES: Interested parties may submit comments within 45 days of the date of publication by one of the following methods: • E-mail: DDTCResponseTeam@state.gov with the subject line, ‘‘ITAR Amendments— Category VIII. • Internet: At http:// www.regulations.gov, search for this notice by using this rule’s RIN (1400– AC96). Comments received after that date will be considered if feasible, but consideration cannot be assured. All comments (including any personally identifying information or information for which a claim of confidentiality is SUMMARY: E:\FR\FM\07NOP1.SGM 07NOP1 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Proposed Rules asserted in those comments or their transmittal emails) will be made available for public inspection and copying after the close of the comment period via the Directorate of Defense Trade Controls Web site at http:// www.pmddtc.state.gov. Parties who wish to comment anonymously may do so by submitting their comments via http://www.regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself. Comments submitted via http:// www.regulations.gov are immediately available for public inspection. 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,’’ 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 in 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. srobinson on DSK4SPTVN1PROD with PROPOSALS Export Control Reform Update The Departments of State and Commerce described in their respective Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the Administration’s plan to make the USML and the CCL positive, tiered, and aligned so that eventually they can be combined into a single control list (see ‘‘Commerce Control List: Revising Descriptions of Items and Foreign Availability,’’ 75 FR 76664 (Dec. 9, 2010) and ‘‘Revision to the United States Munitions List,’’ 75 FR 76935 (Dec. 10, 2010)). The notices also called for the establishment of a ‘‘bright line’’ between the USML and the CCL to reduce government and industry uncertainty regarding export jurisdiction by clarifying whether particular items are subject to the jurisdiction of the ITAR or the EAR. While these remain the Administration’s ultimate Export Control Reform objectives, their concurrent implementation would be problematic in the near term. In order to VerDate Mar<15>2010 17:46 Nov 04, 2011 Jkt 226001 more quickly reach the national security objectives of greater interoperability with our allies, enhancing our defense industrial base, and permitting the U.S. Government to focus its resources on controlling and monitoring the export and reexport of more significant items to destinations, end uses, and end users of greater concern than our NATO and other multi-regime partners, the Administration has decided, as an interim step, to propose and implement revisions to both the USML and the CCL that are more positive, but not yet tiered. Specifically, based in part on a review of the comments received in response to the December 2010 notices, the Administration has determined that fundamentally altering the structure of the USML by tiering and aligning them on a category-by-category basis would significantly disrupt the export control compliance systems and procedures of exporters and reexporters. For example, until the entire USML was revised and became final, some USML categories would follow the legacy numbering and control structures while the newly revised categories would follow a completely different numbering structure. In order to allow for the national security benefits to flow from re-aligning the jurisdictional status of defense articles that no longer warrant control on the USML on a category-bycategory basis while minimizing the impact on exporters’ internal control and jurisdictional and classification marking systems, the Administration plans to proceed with building positive lists now and afterward return to structural changes. Revision of Category VIII This proposed rule revises USML Category VIII, covering aircraft and related articles, to establish a clearer line between the USML and the CCL regarding controls over military aircraft and related articles. The proposed revision narrows the types of aircraft and related items controlled on the USML to only those that warrant control under the stringent requirements of the Arms Export Control Act. Changes include moving similar articles currently controlled in multiple categories into a single category or subcategory (e.g., inertial navigations systems for aircraft formerly controlled under Category VIII(e) will likely be moved to controls either in Category XII or the CCL in future proposed rules and, as noted in proposed Category VIII(b), gas turbine engines for articles controlled in this category will likely be included in proposed Category XIX, which will be the subject of a separate PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 68695 notice). Other former Category VIII subcategories have been ‘‘reserved’’ because the Department is proposing to change the jurisdictional status of the items covered therein so that they would become subject to the EAR, most likely under ECCN 9A610 or 9A619. This proposed rule also revises § 121.3 to more clearly define ‘‘aircraft’’ for purposes of the revised USML Category VIII. The most significant aspect of this more positive, but not yet tiered, proposed USML category is that it does not contain controls on all generic parts, components, accessories, and attachments that are specifically designed or modified for a defense article, regardless of their significance to maintaining a military advantage for the United States. Rather, it contains, with one principal exception, a positive list of specific types of parts, components, accessories, and attachments that continue to warrant control on the USML. The exception pertains to parts, components, accessories, and attachments ‘‘specially designed’’ for the following U.S.-origin aircraft that have low observable features or characteristics: B–1B, B–2, F–15SE, F/A18E/F/G, F–22, F–35 (and variants thereof), F–117, or United States Government technology demonstrators. All other parts, components, accessories, and attachments ‘‘specially designed’’ for a military aircraft and other articles now subject to USML Category VIII would become subject to the new 600 series controls in Category 9 of the CCL to be published separately by the Department of Commerce. The Administration has also proposed revisions to the jurisdictional status of certain militarily less significant end items that do not warrant USML control, but the primary impact of this proposed change will be with respect to current USML controls on parts, components, accessories, and attachments that no longer warrant USML control. Definition for Specially Designed Although one of the goals of the export control reform initiative is to describe USML controls without using design intent criteria, a few of the controls in the proposed revision nonetheless use the term ‘‘specially designed.’’ It is, therefore, necessary for the Department to define the term. Two definitions have been proposed to date. The Department first provided a draft definition for ‘‘specially designed’’ in the December 2010 ANPRM (75 FR 76935) and noted the term would be used minimally in the USML, and then only to remain consistent with the Wassenaar Arrangement or other E:\FR\FM\07NOP1.SGM 07NOP1 68696 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Proposed Rules srobinson on DSK4SPTVN1PROD with PROPOSALS multilateral regime obligation or when no other reasonable option exists to describe the control without using the term. The draft definition provided at that time is as follows: ‘‘For the purposes of this Subchapter, the term ‘‘specially designed’’ means that the end-item, equipment, accessory, attachment, system, component, or part (see ITAR § 121.8) has properties that (i) distinguish it for certain predetermined purposes, (ii) are directly related to the functioning of a defense article, and (iii) are used exclusively or predominantly in or with a defense article identified on the USML.’’ The Department of Commerce subsequently published on July 15, 2011, for public comment, the Administration’s proposed definition of ‘‘specially designed’’ that would be common to the CCL and the USML. The public provided more than 40 comments on that proposed definition on or before the September 13 deadline for comments. The Departments of State, Commerce, and Defense are now reviewing those comments and related issues, and the Departments of State and Commerce plan to publish for public comment another proposed rule on a definition of ‘‘specially designed’’ that would be common to the USML and the CCL. For the purpose of evaluation of this proposed rule, reviewers should use the definition provided in the December 2010 ANPRM. Request for Comments As the U.S. Government works through the proposed revisions to the USML, some solutions have been adopted that were determined to be the best of available options. With the thought that multiple perspectives would be beneficial to the USML revision process, the Department welcomes the assistance of users of the lists and requests input on the following: (1) A key goal of this rulemaking is to ensure the USML and the CCL together control all the items that meet Wassenaar Arrangement commitments embodied in Munitions List Category 10 (ML 10). To that end, the public is asked to identify any potential lack of coverage brought about by the proposed rules for Category VIII contained in this FRN and the new Category 9 ECCNs published separately by the Department of Commerce when reviewed together. (2) While many of the aircraft controlled in paragraph (a) of Category VIII are defined based on objective parameters, some are not. For example, unmanned aerial vehicles controlled under (a)(6) are simply described as ‘‘military.’’ This is to differentiate those VerDate Mar<15>2010 17:46 Nov 04, 2011 Jkt 226001 unmanned aerial vehicles currently controlled under Category VIII from those currently controlled, and will remain so controlled, under ECCN 9A012. The public is asked to provide input on regulatory language that would control those with an objective description that precludes removal from the USML and does not inadvertently designate as ‘‘defense articles’’ aircraft currently subject to the EAR. 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 § 553 (Rulemaking) and § 554 (Adjudications) of the Administrative Procedure Act. Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule with a 45-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function. As noted above, and also without prejudice to the Department position that this rulemaking is not subject to the APA, the Department previously published a related Advance Notice of Proposed Rulemaking (RIN 1400–AC78), and accepted comments for 60 days. Regulatory Flexibility Act Since this proposed amendment is not subject to 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act. Unfunded Mandates Reform Act of 1995 This proposed amendment 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 This proposed amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 Executive Orders 12372 and 13132 This proposed amendment 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 proposed amendment 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 proposed amendment. Executive Order 12866 The Department 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 governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has reviewed the proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Order. Executive Order 12988 The Department of State has reviewed the proposed amendment 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 pre-empt tribal law. Accordingly, the requirement of Executive Order 13175 does not apply to this rulemaking. Executive Order 13563 The Department of State has considered this rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein. Paperwork Reduction Act This proposed amendment does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. E:\FR\FM\07NOP1.SGM 07NOP1 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Proposed Rules List of Subjects in Parts 120 and 121 Arms and munitions, Exports. Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, parts 120 and 121 are proposed to be amended as follows: PART 120—PURPOSE AND DEFINITIONS 1. Section Contents is revised to read as follows: * * * * * 120.33–120.36 [Reserved] 120.37 Foreign ownership and foreign control. 120.38 [Reserved] 120.39 Regular employee. 120.40 [Reserved] PART 121—THE UNITED STATES MUNITIONS LIST 2. 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); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105– 261, 112 Stat. 1920. 3. Section 121.1 is amended by revising U.S. Munitions List Category VIII to read as follows: § 121.1 General. The United States Munitions List. * * * * * srobinson on DSK4SPTVN1PROD with PROPOSALS VIII—Aircraft and Related Articles (a) Aircraft (see § 121.3 of this subchapter) as follows: *(1) Bombers; *(2) Fighters, fighter bombers, and fixed-wing attack aircraft; *(3) Jet-powered trainers used to train pilots for fighter, attack, or bomber aircraft; *(4) Attack helicopters; *(5) Unarmed military unmanned aerial vehicles (UAVs); *(6) Armed unmanned aerial vehicles; *(7) Military intelligence, surveillance, and reconnaissance aircraft; *(8) Electronic warfare, airborne warning and control aircraft; (9) Air refueling aircraft and Strategic airlift aircraft; (10) Target drones; (11) Aircraft equipped with any mission systems controlled under this subchapter; or (12) Aircraft capable of being refueled in flight including hover-in-flight refueling (HIFR). (b) [Reserved—for items formerly controlled under this subcategory see Category XIX and an ECCN to be determined] (c) [Reserved] VerDate Mar<15>2010 17:46 Nov 04, 2011 Jkt 226001 (d) Launching and recovery equipment ‘‘specially designed’’ for defense articles described in paragraph (a) of this category. (e) [Reserved] (f) Developmental aircraft and ‘‘specially designed’’ parts, components, accessories, and attachments therefor developed under a contract with the U.S. Department of Defense. (g) [Reserved] (h) Aircraft components, parts, accessories, attachments, and associated equipment as follows: (1) Components, parts, accessories, attachments, and equipment ‘‘specially designed’’ for the following U.S.-origin aircraft: B–1B, B–2, F–15SE, F/A18E/F/ G, F–22, F–35 (and variants thereof), F–117, or United States Government technology demonstrators. Components, parts, accessories, attachments, and equipment of the F–15SE, and F/A–18 E/F/G that are common to earlier models of these aircraft, unless listed below, are subject to the jurisdiction of the Export Administration Regulations; (2) Face gear gearboxes, split-torque gearboxes, variable speed gearboxes, synchronization shafts, interconnecting drive shafts, and gearboxes with internal pitch line velocities exceeding 15,000 feet per minute and parts and components ‘‘specially designed’’ therefor; (3) Tail boom, stabilator and automatic rotor blade folding systems and parts and components ‘‘specially designed’’ therefor; (4) Aircraft wing folding systems and parts and components ‘‘specially designed’’ therefor; (5) Tail hooks and arresting gear and parts and components ‘‘specially designed’’ therefor; (6) Bomb racks, missile launchers, missile rails, weapon pylons, pylon-tolauncher adapters, UAV launching systems, and external stores support systems and parts and components ‘‘specially designed’’ therefor; (7) Damage/failure-adaptive flight control systems; (8) Threat-adaptive autonomous flight control systems; (9) Non-surface-based flight control systems and effectors, e.g., thrust vectoring from gas ports other than main engine thrust vector, ‘‘specially designed’’ for aircraft; (10) Radar altimeters with output power management or signal modulation (i.e., frequency hopping, chirping, direct sequence-spectrum spreading) LPI (low probability of intercept) capabilities; (11) Air-to-air refueling systems and hover-in-flight refueling (HIFR) systems PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 68697 and parts and components ‘‘specially designed’’ therefor; (12) UAV flight control systems and vehicle management systems with swarming capability, i.e., UAVs interact with each other to avoid collisions and stay together, or, if weaponized, coordinate targeting; (13) Aircraft lithium-ion batteries that provide 28 VDC or 270 VDC; (14) Lift fans, clutches, and roll posts for short take-off, vertical landing (STOVL) aircraft and parts and components ‘‘specially designed’’ for such lift fans and roll posts; (15) Helmet Mounted Cueing Systems, Joint Helmet Mounted Cueing Systems (JHMCS), Helmet Mounted Displays, Display and Sight Helmets (DASH), and variants thereof; (16) Fire control computers, mission computers, vehicle management computers, integrated core processers, stores management systems, armaments control processors, aircraft-weapon interface units and computers (e.g., AGM–88 HARM Aircraft Launcher Interface Computer (ALIC)) ‘‘specially designed’’ for aircraft; (17) Radomes ‘‘specially designed’’ for operation in multiple or nonadjacent radar bands or designed to withstand a combined thermal shock greater than 4.184 x 106 J/m2 accompanied by a peak overpressure of greater than 50 kPa; (18) Drive systems and flight control systems ‘‘specially designed’’ to function after impact of a 7.62 mm or larger projectile; or (19) Any component, part, accessory, attachment, equipment, or system that: (i) is classified; (ii) contains classified software; (iii) is manufactured using classified production data; or (iv) is being developed using classified information. ‘‘Classified’’ in this subcategory 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. (i) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (h) of this category. (See § 125.4 of this subchapter for exemptions.) * * * * * 4. Section 121.3 is revised to read as follows: § 121.3 Aircraft and related articles. (a) In Category VIII, except as described in (b) below, ‘‘aircraft’’ means E:\FR\FM\07NOP1.SGM 07NOP1 68698 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Proposed Rules developmental, production, or inventory aircraft that: (1) Are U.S.-origin aircraft that bear an original military designation of A, B, E, F, K, M, P, R or S; (2) Are foreign-origin aircraft ‘‘specially designed’’ to provide functions equivalent to those of the aircraft listed in (a)(1) of this section; (3) Are armed or are ‘‘specially designed’’ to be used as a platform to deliver munitions or otherwise destroy targets (e.g., firing lasers, launching rockets, firing missiles, dropping bombs, or strafing); (4) Are strategic airlift aircraft capable of airlifting payloads over 35,000 lbs to ranges over 2,000 nm without being refueled in-flight into short or unimproved airfields; (5) Are capable of being refueled inflight; or (6) Incorporate any ‘‘mission systems’’ controlled under this subchapter. ‘‘Mission systems’’ are defined as ‘‘systems’’ (see § 121.8(g) of this subchapter) that are defense articles that perform specific military functions beyond airworthiness, such as by providing military communication, radar, active missile counter measures, target designation, surveillance, or sensor capabilities. (b) Aircraft ‘‘specially designed’’ for military applications that are not identified in (a) of this section are subject to the EAR under an ECCN to be determined, including any unarmed military aircraft, regardless of origin or designation, manufactured prior to 1956 and unmodified since manufacture. Modifications made to incorporate safety of flight features or other FAA or NTSB modifications such as transponders and air data recorders are considered ‘‘unmodified’’ for the purposes of this subparagraph. Dated: October 28, 2011. Ellen O. Tauscher, Under Secretary, Arms Control and International Security, Department of State. [FR Doc. 2011–28502 Filed 11–4–11; 8:45 am] BILLING CODE 4710–25–P ENVIRONMENTAL PROTECTION AGENCY srobinson on DSK4SPTVN1PROD with PROPOSALS 40 CFR Part 52 [EPA–R03–OAR–2011–0773; FRL- 9487–7] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revision to Nitrogen Oxides Budget Trading Program Environmental Protection Agency (EPA). AGENCY: VerDate Mar<15>2010 17:46 Nov 04, 2011 Jkt 226001 ACTION: Proposed rule. EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia that revises regulatory language that inadvertently ended its nitrogen oxides (NOX) budget at the end of the 2008 ozone season. In the Final Rules section of this Federal Register, EPA is approving the State’s SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received in writing by December 7, 2011. ADDRESSES: Submit your comments, identified by Docket ID Number EPA– R03–OAR–2011–0773 by one of the following methods: A. www.regulations.gov. Follow the on-line instructions for submitting comments. B. E-mail: fernandez.cristina@epa.gov C. Mail: EPA–R03–OAR–2011–0773, Cristina Fernandez, Associate Director, Office of Air Quality Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: At the previouslylisted EPA Region III address. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–R03–OAR–2011– 0773. EPA’s policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless SUMMARY: PO 00000 Frm 00039 Fmt 4702 Sfmt 9990 you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814–2308, or by email at powers.marilyn@epa.gov. SUPPLEMENTARY INFORMATION: For further information, please see the information provided in the direct final action, with the same title, that is located in the ‘‘Rules and Regulations’’ section of this Federal Register publication. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule approving Virginia’s revision to its NOx Budget Trading program and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. Dated: October 25, 2011. W.C. Early, Acting Regional Administrator, Region III. [FR Doc. 2011–28639 Filed 11–4–11; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\07NOP1.SGM 07NOP1

Agencies

[Federal Register Volume 76, Number 215 (Monday, November 7, 2011)]
[Proposed Rules]
[Pages 68694-68698]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28502]


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DEPARTMENT OF STATE

22 CFR Part 121

RIN 1400-AC96
[Public Notice: [ 7673]]


Amendment to the International Traffic in Arms Regulations: 
Revision of U.S. Munitions List Category VIII

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: As part of the President's Export Control Reform effort, the 
Department of State proposes to amend the International Traffic in Arms 
Regulations (ITAR) to revise Category VIII (aircraft and related 
articles) of the U.S. Munitions List (USML) to describe more precisely 
the military aircraft and related defense articles warranting control 
on the USML.

DATES: The Department of State will accept comments on this proposed 
rule until December 22, 2011.

ADDRESSES: Interested parties may submit comments within 45 days of the 
date of publication by one of the following methods:
     E-mail: DDTCResponseTeam@state.gov with the subject line, 
``ITAR Amendments--Category VIII.
     Internet: At http://www.regulations.gov, search for this 
notice by using this rule's RIN (1400-AC96).

Comments received after that date will be considered if feasible, but 
consideration cannot be assured. All comments (including any personally 
identifying information or information for which a claim of 
confidentiality is

[[Page 68695]]

asserted in those comments or their transmittal emails) will be made 
available for public inspection and copying after the close of the 
comment period via the Directorate of Defense Trade Controls Web site 
at http://www.pmddtc.state.gov. Parties who wish to comment anonymously 
may do so by submitting their comments via http://www.regulations.gov, 
leaving the fields that would identify the commenter blank and 
including no identifying information in the comment itself. Comments 
submitted via  http://www.regulations.gov are immediately available for 
public inspection.

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,'' 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 in 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.

Export Control Reform Update

    The Departments of State and Commerce described in their respective 
Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the 
Administration's plan to make the USML and the CCL positive, tiered, 
and aligned so that eventually they can be combined into a single 
control list (see ``Commerce Control List: Revising Descriptions of 
Items and Foreign Availability,'' 75 FR 76664 (Dec. 9, 2010) and 
``Revision to the United States Munitions List,'' 75 FR 76935 (Dec. 10, 
2010)). The notices also called for the establishment of a ``bright 
line'' between the USML and the CCL to reduce government and industry 
uncertainty regarding export jurisdiction by clarifying whether 
particular items are subject to the jurisdiction of the ITAR or the 
EAR. While these remain the Administration's ultimate Export Control 
Reform objectives, their concurrent implementation would be problematic 
in the near term. In order to more quickly reach the national security 
objectives of greater interoperability with our allies, enhancing our 
defense industrial base, and permitting the U.S. Government to focus 
its resources on controlling and monitoring the export and reexport of 
more significant items to destinations, end uses, and end users of 
greater concern than our NATO and other multi-regime partners, the 
Administration has decided, as an interim step, to propose and 
implement revisions to both the USML and the CCL that are more 
positive, but not yet tiered.
    Specifically, based in part on a review of the comments received in 
response to the December 2010 notices, the Administration has 
determined that fundamentally altering the structure of the USML by 
tiering and aligning them on a category-by-category basis would 
significantly disrupt the export control compliance systems and 
procedures of exporters and reexporters. For example, until the entire 
USML was revised and became final, some USML categories would follow 
the legacy numbering and control structures while the newly revised 
categories would follow a completely different numbering structure. In 
order to allow for the national security benefits to flow from re-
aligning the jurisdictional status of defense articles that no longer 
warrant control on the USML on a category-by-category basis while 
minimizing the impact on exporters' internal control and jurisdictional 
and classification marking systems, the Administration plans to proceed 
with building positive lists now and afterward return to structural 
changes.

Revision of Category VIII

    This proposed rule revises USML Category VIII, covering aircraft 
and related articles, to establish a clearer line between the USML and 
the CCL regarding controls over military aircraft and related articles. 
The proposed revision narrows the types of aircraft and related items 
controlled on the USML to only those that warrant control under the 
stringent requirements of the Arms Export Control Act. Changes include 
moving similar articles currently controlled in multiple categories 
into a single category or subcategory (e.g., inertial navigations 
systems for aircraft formerly controlled under Category VIII(e) will 
likely be moved to controls either in Category XII or the CCL in future 
proposed rules and, as noted in proposed Category VIII(b), gas turbine 
engines for articles controlled in this category will likely be 
included in proposed Category XIX, which will be the subject of a 
separate notice). Other former Category VIII subcategories have been 
``reserved'' because the Department is proposing to change the 
jurisdictional status of the items covered therein so that they would 
become subject to the EAR, most likely under ECCN 9A610 or 9A619.
    This proposed rule also revises Sec.  121.3 to more clearly define 
``aircraft'' for purposes of the revised USML Category VIII.
    The most significant aspect of this more positive, but not yet 
tiered, proposed USML category is that it does not contain controls on 
all generic parts, components, accessories, and attachments that are 
specifically designed or modified for a defense article, regardless of 
their significance to maintaining a military advantage for the United 
States. Rather, it contains, with one principal exception, a positive 
list of specific types of parts, components, accessories, and 
attachments that continue to warrant control on the USML. The exception 
pertains to parts, components, accessories, and attachments ``specially 
designed'' for the following U.S.-origin aircraft that have low 
observable features or characteristics: B-1B, B-2, F-15SE, F/A18E/F/G, 
F-22, F-35 (and variants thereof), F-117, or United States Government 
technology demonstrators.
    All other parts, components, accessories, and attachments 
``specially designed'' for a military aircraft and other articles now 
subject to USML Category VIII would become subject to the new 600 
series controls in Category 9 of the CCL to be published separately by 
the Department of Commerce. The Administration has also proposed 
revisions to the jurisdictional status of certain militarily less 
significant end items that do not warrant USML control, but the primary 
impact of this proposed change will be with respect to current USML 
controls on parts, components, accessories, and attachments that no 
longer warrant USML control.

Definition for Specially Designed

    Although one of the goals of the export control reform initiative 
is to describe USML controls without using design intent criteria, a 
few of the controls in the proposed revision nonetheless use the term 
``specially designed.'' It is, therefore, necessary for the Department 
to define the term. Two definitions have been proposed to date.
    The Department first provided a draft definition for ``specially 
designed'' in the December 2010 ANPRM (75 FR 76935) and noted the term 
would be used minimally in the USML, and then only to remain consistent 
with the Wassenaar Arrangement or other

[[Page 68696]]

multilateral regime obligation or when no other reasonable option 
exists to describe the control without using the term. The draft 
definition provided at that time is as follows: ``For the purposes of 
this Subchapter, the term ``specially designed'' means that the end-
item, equipment, accessory, attachment, system, component, or part (see 
ITAR Sec.  121.8) has properties that (i) distinguish it for certain 
predetermined purposes, (ii) are directly related to the functioning of 
a defense article, and (iii) are used exclusively or predominantly in 
or with a defense article identified on the USML.''
    The Department of Commerce subsequently published on July 15, 2011, 
for public comment, the Administration's proposed definition of 
``specially designed'' that would be common to the CCL and the USML. 
The public provided more than 40 comments on that proposed definition 
on or before the September 13 deadline for comments. The Departments of 
State, Commerce, and Defense are now reviewing those comments and 
related issues, and the Departments of State and Commerce plan to 
publish for public comment another proposed rule on a definition of 
``specially designed'' that would be common to the USML and the CCL. 
For the purpose of evaluation of this proposed rule, reviewers should 
use the definition provided in the December 2010 ANPRM.

Request for Comments

    As the U.S. Government works through the proposed revisions to the 
USML, some solutions have been adopted that were determined to be the 
best of available options. With the thought that multiple perspectives 
would be beneficial to the USML revision process, the Department 
welcomes the assistance of users of the lists and requests input on the 
following: (1) A key goal of this rulemaking is to ensure the USML and 
the CCL together control all the items that meet Wassenaar Arrangement 
commitments embodied in Munitions List Category 10 (ML 10). To that 
end, the public is asked to identify any potential lack of coverage 
brought about by the proposed rules for Category VIII contained in this 
FRN and the new Category 9 ECCNs published separately by the Department 
of Commerce when reviewed together.
    (2) While many of the aircraft controlled in paragraph (a) of 
Category VIII are defined based on objective parameters, some are not. 
For example, unmanned aerial vehicles controlled under (a)(6) are 
simply described as ``military.'' This is to differentiate those 
unmanned aerial vehicles currently controlled under Category VIII from 
those currently controlled, and will remain so controlled, under ECCN 
9A012. The public is asked to provide input on regulatory language that 
would control those with an objective description that precludes 
removal from the USML and does not inadvertently designate as ``defense 
articles'' aircraft currently subject to the EAR.

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 Sec.  553 (Rulemaking) and Sec.  554 
(Adjudications) of the Administrative Procedure Act. Although the 
Department is of the opinion that this rule is exempt from the 
rulemaking provisions of the APA, the Department is publishing this 
rule with a 45-day provision for public comment and without prejudice 
to its determination that controlling the import and export of defense 
services is a foreign affairs function. As noted above, and also 
without prejudice to the Department position that this rulemaking is 
not subject to the APA, the Department previously published a related 
Advance Notice of Proposed Rulemaking (RIN 1400-AC78), and accepted 
comments for 60 days.

Regulatory Flexibility Act

    Since this proposed amendment is not subject to 5 U.S.C. 553, it 
does not require analysis under the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This proposed amendment 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

    This proposed amendment has been found not to be a major rule 
within the meaning of the Small Business Regulatory Enforcement 
Fairness Act of 1996.

Executive Orders 12372 and 13132

    This proposed amendment 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 proposed amendment 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 proposed amendment.

Executive Order 12866

    The Department 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 governing the conduct of 
this function are exempt from the requirements of Executive Order 
12866. However, the Department has reviewed the proposed rule to ensure 
its consistency with the regulatory philosophy and principles set forth 
in the Executive Order.

Executive Order 12988

    The Department of State has reviewed the proposed amendment 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 pre-empt 
tribal law. Accordingly, the requirement of Executive Order 13175 does 
not apply to this rulemaking.

Executive Order 13563

    The Department of State has considered this rule in light of 
Executive Order 13563, dated January 18, 2011, and affirms that this 
regulation is consistent with the guidance therein.

Paperwork Reduction Act

    This proposed amendment does not impose any new reporting or 
recordkeeping requirements subject to the Paperwork Reduction Act, 44 
U.S.C. Chapter 35.

[[Page 68697]]

List of Subjects in Parts 120 and 121

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, parts 120 and 121 are proposed to be amended as follows:

PART 120--PURPOSE AND DEFINITIONS

    1. Section Contents is revised to read as follows:
* * * * *
120.33-120.36 [Reserved]
120.37 Foreign ownership and foreign control.
120.38 [Reserved]
120.39 Regular employee.
120.40 [Reserved]

PART 121--THE UNITED STATES MUNITIONS LIST

    2. 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); E.O. 11958, 42 FR 4311; 3 CFR, 1977 
Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920.

    3. Section 121.1 is amended by revising U.S. Munitions List 
Category VIII to read as follows:


Sec.  121.1  General. The United States Munitions List.

* * * * *

VIII--Aircraft and Related Articles

    (a) Aircraft (see Sec.  121.3 of this subchapter) as follows:
    *(1) Bombers;
    *(2) Fighters, fighter bombers, and fixed-wing attack aircraft;
    *(3) Jet-powered trainers used to train pilots for fighter, attack, 
or bomber aircraft;
    *(4) Attack helicopters;
    *(5) Unarmed military unmanned aerial vehicles (UAVs);
    *(6) Armed unmanned aerial vehicles;
    *(7) Military intelligence, surveillance, and reconnaissance 
aircraft;
    *(8) Electronic warfare, airborne warning and control aircraft;
    (9) Air refueling aircraft and Strategic airlift aircraft;
    (10) Target drones;
    (11) Aircraft equipped with any mission systems controlled under 
this subchapter; or
    (12) Aircraft capable of being refueled in flight including hover-
in-flight refueling (HIFR).
    (b) [Reserved--for items formerly controlled under this subcategory 
see Category XIX and an ECCN to be determined]
    (c) [Reserved]
    (d) Launching and recovery equipment ``specially designed'' for 
defense articles described in paragraph (a) of this category.
    (e) [Reserved]
    (f) Developmental aircraft and ``specially designed'' parts, 
components, accessories, and attachments therefor developed under a 
contract with the U.S. Department of Defense.
    (g) [Reserved]
    (h) Aircraft components, parts, accessories, attachments, and 
associated equipment as follows:
    (1) Components, parts, accessories, attachments, and equipment 
``specially designed'' for the following U.S.-origin aircraft: B-1B, B-
2, F-15SE, F/A18E/F/G, F-22, F-35 (and variants thereof), F-117, or 
United States Government technology demonstrators. Components, parts, 
accessories, attachments, and equipment of the F-15SE, and F/A-18 E/F/G 
that are common to earlier models of these aircraft, unless listed 
below, are subject to the jurisdiction of the Export Administration 
Regulations;
    (2) Face gear gearboxes, split-torque gearboxes, variable speed 
gearboxes, synchronization shafts, interconnecting drive shafts, and 
gearboxes with internal pitch line velocities exceeding 15,000 feet per 
minute and parts and components ``specially designed'' therefor;
    (3) Tail boom, stabilator and automatic rotor blade folding systems 
and parts and components ``specially designed'' therefor;
    (4) Aircraft wing folding systems and parts and components 
``specially designed'' therefor;
    (5) Tail hooks and arresting gear and parts and components 
``specially designed'' therefor;
    (6) Bomb racks, missile launchers, missile rails, weapon pylons, 
pylon-to-launcher adapters, UAV launching systems, and external stores 
support systems and parts and components ``specially designed'' 
therefor;
    (7) Damage/failure-adaptive flight control systems;
    (8) Threat-adaptive autonomous flight control systems;
    (9) Non-surface-based flight control systems and effectors, e.g., 
thrust vectoring from gas ports other than main engine thrust vector, 
``specially designed'' for aircraft;
    (10) Radar altimeters with output power management or signal 
modulation (i.e., frequency hopping, chirping, direct sequence-spectrum 
spreading) LPI (low probability of intercept) capabilities;
    (11) Air-to-air refueling systems and hover-in-flight refueling 
(HIFR) systems and parts and components ``specially designed'' 
therefor;
    (12) UAV flight control systems and vehicle management systems with 
swarming capability, i.e., UAVs interact with each other to avoid 
collisions and stay together, or, if weaponized, coordinate targeting;
    (13) Aircraft lithium-ion batteries that provide 28 VDC or 270 VDC;
    (14) Lift fans, clutches, and roll posts for short take-off, 
vertical landing (STOVL) aircraft and parts and components ``specially 
designed'' for such lift fans and roll posts;
    (15) Helmet Mounted Cueing Systems, Joint Helmet Mounted Cueing 
Systems (JHMCS), Helmet Mounted Displays, Display and Sight Helmets 
(DASH), and variants thereof;
    (16) Fire control computers, mission computers, vehicle management 
computers, integrated core processers, stores management systems, 
armaments control processors, aircraft-weapon interface units and 
computers (e.g., AGM-88 HARM Aircraft Launcher Interface Computer 
(ALIC)) ``specially designed'' for aircraft;
    (17) Radomes ``specially designed'' for operation in multiple or 
nonadjacent radar bands or designed to withstand a combined thermal 
shock greater than 4.184 x 10\6\ J/m\2\ accompanied by a peak 
overpressure of greater than 50 kPa;
    (18) Drive systems and flight control systems ``specially 
designed'' to function after impact of a 7.62 mm or larger projectile; 
or
    (19) Any component, part, accessory, attachment, equipment, or 
system that:
    (i) is classified;
    (ii) contains classified software;
    (iii) is manufactured using classified production data; or
    (iv) is being developed using classified information.
    ``Classified'' in this subcategory 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.
    (i) Technical data (as defined in Sec.  120.10 of this subchapter) 
and defense services (as defined in Sec.  120.9 of this subchapter) 
directly related to the defense articles enumerated in paragraphs (a) 
through (h) of this category. (See Sec.  125.4 of this subchapter for 
exemptions.)
* * * * *
    4. Section 121.3 is revised to read as follows:


Sec.  121.3  Aircraft and related articles.

    (a) In Category VIII, except as described in (b) below, 
``aircraft'' means

[[Page 68698]]

developmental, production, or inventory aircraft that:
    (1) Are U.S.-origin aircraft that bear an original military 
designation of A, B, E, F, K, M, P, R or S;
    (2) Are foreign-origin aircraft ``specially designed'' to provide 
functions equivalent to those of the aircraft listed in (a)(1) of this 
section;
    (3) Are armed or are ``specially designed'' to be used as a 
platform to deliver munitions or otherwise destroy targets (e.g., 
firing lasers, launching rockets, firing missiles, dropping bombs, or 
strafing);
    (4) Are strategic airlift aircraft capable of airlifting payloads 
over 35,000 lbs to ranges over 2,000 nm without being refueled in-
flight into short or unimproved airfields;
    (5) Are capable of being refueled in-flight; or
    (6) Incorporate any ``mission systems'' controlled under this 
subchapter. ``Mission systems'' are defined as ``systems'' (see Sec.  
121.8(g) of this subchapter) that are defense articles that perform 
specific military functions beyond airworthiness, such as by providing 
military communication, radar, active missile counter measures, target 
designation, surveillance, or sensor capabilities.
    (b) Aircraft ``specially designed'' for military applications that 
are not identified in (a) of this section are subject to the EAR under 
an ECCN to be determined, including any unarmed military aircraft, 
regardless of origin or designation, manufactured prior to 1956 and 
unmodified since manufacture. Modifications made to incorporate safety 
of flight features or other FAA or NTSB modifications such as 
transponders and air data recorders are considered ``unmodified'' for 
the purposes of this subparagraph.

    Dated: October 28, 2011.
Ellen O. Tauscher,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. 2011-28502 Filed 11-4-11; 8:45 am]
BILLING CODE 4710-25-P