Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Category X, 33698-33701 [2012-13744]
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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules
Category X(c), that is ‘‘specially
designed’’ for the ‘‘production’’ or
‘‘development’’ of commodities
controlled by ECCN 1A613 or USML
Category X.
b. Plasma pressure compaction (P2C)
equipment ‘‘specially designed’’ for the
production of ceramic or composite
body armor plates controlled by ECCN
1A613 or USML Category X.
c. to x. [RESERVED]
y. Specific test, inspection, and
‘‘production’’ ‘‘equipment’’ ‘‘specially
designed’’ for the ‘‘production’’ or
‘‘development’’ of commodities
controlled by ECCN 1A613 or USML
Category X, as follows:
y.1 to y.98 [RESERVED]
y.99 Commodities not identified on
the CCL that (i) have been determined,
in an applicable commodity jurisdiction
determination issued by the U.S.
Department of State, to be subject to the
EAR and (ii) would otherwise be
controlled elsewhere in ECCN 1B613.
13. In Supplement No. 1 to part 774,
Category 1, add a new Export Control
Classification Number 1D613 between
ECCN 1D390 and 1D993 to read as
follows:
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
1D613 ‘‘Software’’ ‘‘specially
designed’’ for the ‘‘development,’’
‘‘production,’’ operation, installation,
maintenance, repair, overhaul or
refurbishing of commodities controlled
by 1A613 or 1B613, as follows (see list
of items controlled).
License Requirements
Reason for Control: NS, RS, AT
Control(s)
NS applies to entire entry
except 1D613.y.
RS applies to entire entry
except 1D613.y.
AT applies to entire entry ..
Country chart
NS Column 1.
RS Column 1.
than 10% U.S.-origin ‘‘600 series’’
items.
Related Definitions: N/A.
Items:
a. ‘‘Software’’ (other than ‘‘software’’
controlled in paragraph .y of this entry)
‘‘specially designed’’ for the
‘‘development,’’ ‘‘production,’’
operation or maintenance of
commodities controlled by ECCNs
1A613 (except 1A613.y) or 1B613
(except 1B613.y).
b. to x. [RESERVED]
y. Specific ‘‘software’’ ‘‘specially
designed’’ for the ‘‘production,’’
‘‘development,’’ or operation or
maintenance of commodities controlled
by ECCNs 1A613 or 1B613, as follows:
y.1. Specific ‘‘software’’ ‘‘specially
designed’’ for the ‘‘production,’’
‘‘development,’’ operation or
maintenance of commodities controlled
by ECCNs 1A613.y or 1B613.y.
y.2 through y.98 [RESERVED]
y.99 ‘‘Software’’ not identified on the
CCL that (i) has been determined to be
subject to the EAR in a commodity
jurisdiction determination issued by the
U.S. Department of State and (ii) would
otherwise be controlled elsewhere in
ECCN 1D613.
14. In Supplement No. 1 to part 774,
Category 1, add a new Export Control
Classification Number 1E613 between
ECCN 1E355 and 1E994 to read as
follows:
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
1E613 ‘‘Technology’’ ‘‘required’’ for
the ‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul or refurbishing of
commodities controlled by 1A613 or
1B613 or ‘‘software’’ controlled by
1D613, as follows (see list of items
controlled).
License Requirements
Reason for Control: NS, RS, AT
AT Column 1.
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Control(s)
License Exceptions
CIV: N/A.
TSR: N/A.
STA: Paragraph (c)(2) of License
Exception STA (§ 740.20(c)(2)) of the
EAR may not be used for any ‘‘software’’
in 1D613.
List of Items Controlled
Unit: $ value.
Related Controls: ‘‘Software’’ directly
related to articles controlled by USML
Category X is subject to the control of
USML paragraph X(e) of the ITAR. See
ECCN 0A919 for foreign made ‘‘military
commodities’’ that incorporate more
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Country chart
NS applies to entire entry
except 1E613.y.
RS applies to entire entry
except 1E613.y.
AT applies to entire entry ..
NS Column 1.
AT Column 1.
List of Items Controlled
Unit: $ value.
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Dated: May 30, 2012.
Kevin J. Wolf,
Assistant Secretary of Commerce for Export
Administration.
[FR Doc. 2012–13745 Filed 6–6–12; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice 7915]
RS Column 1.
License Exceptions
CIV: N/A.
TSR: N/A.
STA: Paragraph (c)(2) of License
Exception STA (§ 740.20(c)(2)) of the
EAR may not be used for any
‘‘technology’’ in 1E613.
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Related Controls: Technical data
directly related to articles controlled by
USML Category X is subject to the
control of USML paragraph X(e) of the
ITAR. See ECCN 0A919 for foreign
made ‘‘military commodities’’ that
incorporate more than 10% U.S.-origin
‘‘600 series’’ items.
Related Definitions: N/A
Items:
a. ‘‘Technology’’ (other than
‘‘technology’’ controlled by paragraph .y
of this entry) ‘‘required’’ for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul, or refurbishing of
commodities or ‘‘software’’ controlled
by ECCNs 1A613 (except 1A613.y),
1B613 (except 1B613.y), or 1D613
(except 1D613.y).
b. through x. [RESERVED]
y. Specific ‘‘technology’’ ‘‘required’’
for the ‘‘production,’’ ‘‘development,’’
operation, installation, maintenance,
repair, or overhaul of commodities or
software controlled by ECCNs 1A613,
1B613, or 1D613, as follows:
y.1. Specific ‘‘technology’’ ‘‘required’’
for the ‘‘production,’’ ‘‘development,’’
operation, installation, maintenance,
repair or overhaul of commodities or
software controlled by ECCNs 1A613.y,
1B613.y, or 1D613.y.
y.2. through y.98 [RESERVED]
y.99. ‘‘Technology’’ that would
otherwise be controlled elsewhere in
this entry but that (i) has been
determined to be subject to the EAR in
a commodity jurisdiction determination
issued by the U.S. Department of State
and (ii) is not otherwise identified
elsewhere on the CCL.
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RIN 1400–AD16
Amendment to the International Traffic
in Arms Regulations: Revision of U.S.
Munitions List Category X
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 X
SUMMARY:
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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules
(personal protective equipment and
shelters) of the U.S. Munitions List
(USML) to describe more precisely the
materials warranting control on the
USML.
DATES: The Department of State will
accept comments on this proposed rule
until July 23, 2012.
ADDRESSES: Interested parties may
submit comments within 45 days of the
date of publication by one of the
following methods:
• Email:
DDTCResponseTeam@state.gov with the
subject line, ‘‘ITAR Amendment—
Category X.’’
• Internet: At www.regulations.gov,
search for this notice by using this rule’s
RIN (1400–AD16).
Comments received after that date
will be considered if feasible, but
consideration cannot be assured. Those
submitting comments should not
include any personally identifying
information they do not desire to be
made public or information for which a
claim of confidentiality is asserted
because those comments and/or
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
www.pmddtc.state.gov. Parties who
wish to comment anonymously may do
so by submitting their comments via
www.regulations.gov, leaving the fields
that would identify the commenter
blank and including no identifying
information in the comment itself.
Comments submitted via
www.regulations.gov are immediately
available for public inspection.
FOR FURTHER INFORMATION CONTACT: Ms.
Candace M. J. Goforth, Director, Office
of Defense Trade Controls Policy,
Department of State, telephone (202)
663–2792; email
DDTCResponseTeam@state.gov. ATTN:
Regulatory Change, USML Category X.
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 (CCL) in
Supplement No. 1 to Part 774),
administered by the Bureau of Industry
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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 (December 9,
2010) and ‘‘Revisions to the United
States Munitions List,’’ 75 FR 76935
(December 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 U.S. allies, enhancing the 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 NATO allies 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 it 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
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33699
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 X
This proposed rule revises USML
Category X, covering personal protective
equipment and shelters, to advance the
national security objectives set forth
above and to more accurately describe
the articles within the category, in order
to establish a ‘‘bright line’’ between the
USML and the CCL for the control of
these articles.
Body armor enumerated in paragraph
(a)(1) would be that which meets or
exceeds NIJ Standard-0101.06 Type IV.
Type III body armor would be
controlled on the CCL in proposed
ECCN 1A613.
Anti-gravity suits, pressure suits, and
atmosphere diving suits, currently
controlled in paragraphs (a)(3), (a)(4),
and (a)(5), respectively, would become
subject to the EAR.
Paragraph (a)(7) would control certain
protective goggles, spectacles, and
visors with an optical density of 3 or
greater.
Permanent and transportable shelters,
currently controlled in paragraph (b), as
well as equipment for the production of
articles covered in this category (current
paragraph (c)), would be controlled on
the CCL in ECCNs 1A613 and 1B613,
respectively.
Paragraph (d), which controls parts
and components, is limited in scope to
include only ceramic or composite body
armor plates, laser protective lenses for
the articles enumerated in (a)(7), and
classified hardware. As with the
revision of other categories, the USML
will not control all generic, non-specific
parts, components, accessories, and
attachments that are in any way
specifically designed or modified for a
defense article, regardless of their
significance to maintaining a military
advantage for the United States. These
items would become subject to the new
600 series controls in Category 1 of the
CCL, to be published separately by the
Department of Commerce.
Finally, paragraph (f), which currently
provides interpretations of Category X,
is removed and placed in reserve.
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
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controls in the proposed revision
nonetheless use the term ‘‘specially
designed.’’ It is, therefore, necessary for
the Department to define the term. Two
proposed definitions have been
published 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
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 enditem, 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. In the interim, and for the purpose
of evaluation of this proposed rule,
reviewers should use the definition
provided in the December ANPRM.
asked to identify any potential lack of
coverage brought about by the proposed
rules for Category X contained in this
notice and the new Category 1 ECCNs
published separately by the Department
of Commerce when reviewed together.
(2) The key goal of this rulemaking is
to establish a ‘‘bright line’’ between the
USML and the CCL for the control of
these materials. The public is asked to
provide specific examples of materials
and miscellaneous articles whose
jurisdiction would be in doubt based on
this revision.
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 13
(WA–ML13). To that end, the public is
Unfunded Mandates Reform Act of 1995
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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 (APA). 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 the Department is of the
opinion that this rule is exempt from the
rulemaking provisions of 5 U.S.C. 553,
it does not require analysis under the
Regulatory Flexibility Act.
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
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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 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.
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 preempt tribal law.
Accordingly, Executive Order 13175
does not apply to this rulemaking.
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.
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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules
List of Subjects in 22 CFR Part 121
Arms and munitions, Exports.
Accordingly, for the reasons set forth
above, Title 22, Chapter I, Subchapter
M, part 121 is proposed to be 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); E.O. 11958, 42 FR 4311; 3 CFR, 1977
Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105–
261, 112 Stat. 1920.
2. Section 121.1 is amended by
revising U.S. Munitions List Category X
to read as follows:
§ 121.1 General. The United States
Munitions List.
*
*
*
*
*
Category X—Personal Protective
Equipment and Shelters
(a) Personal protective equipment, as
follows:
(1) Body armor providing a protection
level equal to or greater than NIJ Type
IV.
Note 1 to (a)(1): See National Institute of
Justice Classification, NIJ Standard-0101.06.
Note 2 to (a)(1): For body armor providing
a level of protection of Type I, Type II, Type
IIA, Type IIIA, or Type III, see ECCNs 1A005
and 1A613.
(2) Personal protective clothing,
equipment, or face paints ‘‘specially
designed’’ to protect against or reduce
detection by radar, IR, or other sensors
at wavelengths greater than 900
nanometers.
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Note to (a)(2): See Category XIII(j) for
controls on related materials.
(3) [Reserved]
(4) [Reserved]
(5) Integrated helmets, not specified
in Category VIII (h)(15) or Category XII,
incorporating optical sights or slewing
devices, which include the ability to
aim, launch, track, or manage
munitions.
(6) Helmets and helmet shells
providing a protection level equal to or
greater than NIJ Type IV.
(7) Goggles, spectacles, or visors,
employing other than common
broadband absorptive dyes and UV
inhibitors as a means of protection (e.g.,
narrow band filters/dyes or broadband
limiters/coatings with high visible
transparency), with optical density
greater than 3 that protect against:
(i) Visible (in-band) wavelengths;
(ii) Thermal flashes associated with
nuclear detonations; or
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(iii) Near infrared or ultraviolet (outof-band) wavelengths.
NATIONAL MEDIATION BOARD
Note 1 to (a)(7): See Category XIII(j) for
controls on related materials.
33701
29 CFR Parts 1206
Note 2 to (a)(7): See Category XII for sensor
protection equipment.
(8) Developmental personal protective
equipment and shelters and ‘‘specially
designed’’ parts, components,
accessories, and attachments therefor,
developed under a contract with the
U.S. Department of Defense.
Note to (a)(8): Developmental personal
protective equipment and shelters, and
‘‘specially designed’’ parts, components,
accessories, and attachments therefor,
determined to be subject to the EAR via a
commodity jurisdiction determination (see
§ 120.4 of this subchapter) are not controlled
by this paragraph.
(b) [Reserved]
(c) [Reserved]
(d) Parts, components, assemblies,
and associated equipment for the
personal protective equipment
controlled in this category as follows:
(1) Ceramic or composite plates that
provide protection equal to or greater
than NIJ Type IV.
(2) Lenses for the goggles, spectacles,
and visors controlled in paragraph (a)(7)
of this category.
(3) 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’’ 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.
(e) 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 (d) of this
category.
(f) [Reserved]
*
*
*
*
*
Dated: May 31, 2012.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and
International Security, Department of State.
[FR Doc. 2012–13744 Filed 6–6–12; 8:45 am]
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[Docket No. C–7034]
RIN 3140–ZA01
Representation Procedures and
Rulemaking Authority; Correction
AGENCY:
ACTION:
National Mediation Board.
Proposed rule; correction.
This document corrects the
text of a proposed rule published in the
Federal Register on May 15, 2012. The
proposed rule changes the National
Mediation Board’s (NMB or Board)
existing rules for run-off elections to
incorporate statutory language added to
the Railway Labor Act (RLA) by the
Federal Aviation Administration
Modernization and Reform Act of 2012.
SUMMARY:
Comment date: The NMB will
extend the comment period by
accepting written comments that are
received on or before August 6, 2012.
DATES:
FOR FURTHER INFORMATION CONTACT:
Mary Johnson, General Counsel,
National Mediation Board, 202–692–
5050, infoline@nmb.gov.
The
National Mediation Board is correcting
its proposed rule published in the
Federal Register on May 15, 2012 at 77
FR 28536. This document makes a
correction to clarify that Rule 1206.1
only applies in elections where 3 or
more options receive valid votes.
SUPPLEMENTARY INFORMATION:
Correction
In FR Doc. No. 2012–11770, on page
28537, in the right column, the text for
§ 1206.1 is correctly revised to read as
follows:
§ 1206.1 Run-off elections.
(a) In an election among any craft or class
where three or more options (including the
option for no representation) receive valid
votes, if no option receives a majority of the
legal votes cast, or in the event of a tie vote,
the Board shall authorize a run-off election.
(b) In the event a run-off election is
authorized by the Board, the names of the
two options which received the highest
number of votes cast in the first election shall
be placed on the run-off ballot, and no blank
line on which voters may write in the name
of any organization or individual will be
provided on the run-off ballot.
(c) Employees who were eligible to vote at
the conclusion of the first election shall be
eligible to vote in the run-off election except:
(1) Those employees whose employment
relationship has terminated; and
(2) Those employees who are no longer
employed in the craft or class.
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]]>Agencies
[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Proposed Rules]
[Pages 33698-33701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13744]
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DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice 7915]
RIN 1400-AD16
Amendment to the International Traffic in Arms Regulations:
Revision of U.S. Munitions List Category X
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 X
[[Page 33699]]
(personal protective equipment and shelters) of the U.S. Munitions List
(USML) to describe more precisely the materials warranting control on
the USML.
DATES: The Department of State will accept comments on this proposed
rule until July 23, 2012.
ADDRESSES: Interested parties may submit comments within 45 days of the
date of publication by one of the following methods:
Email: DDTCResponseTeam@state.gov with the subject line,
``ITAR Amendment--Category X.''
Internet: At www.regulations.gov, search for this notice
by using this rule's RIN (1400-AD16).
Comments received after that date will be considered if feasible,
but consideration cannot be assured. Those submitting comments should
not include any personally identifying information they do not desire
to be made public or information for which a claim of confidentiality
is asserted because those comments and/or 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 www.pmddtc.state.gov. Parties who wish to comment anonymously may do
so by submitting their comments via www.regulations.gov, leaving the
fields that would identify the commenter blank and including no
identifying information in the comment itself. Comments submitted via
www.regulations.gov are immediately available for public inspection.
FOR FURTHER INFORMATION CONTACT: Ms. Candace M. J. Goforth, Director,
Office of Defense Trade Controls Policy, Department of State, telephone
(202) 663-2792; email DDTCResponseTeam@state.gov. ATTN: Regulatory
Change, USML Category X.
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 (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.
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 (December 9, 2010) and
``Revisions to the United States Munitions List,'' 75 FR 76935
(December 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 U.S.
allies, enhancing the 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 NATO allies 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 it 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 X
This proposed rule revises USML Category X, covering personal
protective equipment and shelters, to advance the national security
objectives set forth above and to more accurately describe the articles
within the category, in order to establish a ``bright line'' between
the USML and the CCL for the control of these articles.
Body armor enumerated in paragraph (a)(1) would be that which meets
or exceeds NIJ Standard-0101.06 Type IV. Type III body armor would be
controlled on the CCL in proposed ECCN 1A613.
Anti-gravity suits, pressure suits, and atmosphere diving suits,
currently controlled in paragraphs (a)(3), (a)(4), and (a)(5),
respectively, would become subject to the EAR.
Paragraph (a)(7) would control certain protective goggles,
spectacles, and visors with an optical density of 3 or greater.
Permanent and transportable shelters, currently controlled in
paragraph (b), as well as equipment for the production of articles
covered in this category (current paragraph (c)), would be controlled
on the CCL in ECCNs 1A613 and 1B613, respectively.
Paragraph (d), which controls parts and components, is limited in
scope to include only ceramic or composite body armor plates, laser
protective lenses for the articles enumerated in (a)(7), and classified
hardware. As with the revision of other categories, the USML will not
control all generic, non-specific parts, components, accessories, and
attachments that are in any way specifically designed or modified for a
defense article, regardless of their significance to maintaining a
military advantage for the United States. These items would become
subject to the new 600 series controls in Category 1 of the CCL, to be
published separately by the Department of Commerce.
Finally, paragraph (f), which currently provides interpretations of
Category X, is removed and placed in reserve.
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
[[Page 33700]]
controls in the proposed revision nonetheless use the term ``specially
designed.'' It is, therefore, necessary for the Department to define
the term. Two proposed definitions have been published 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 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. In
the interim, and for the purpose of evaluation of this proposed rule,
reviewers should use the definition provided in the December 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 13 (WA-ML13). To that
end, the public is asked to identify any potential lack of coverage
brought about by the proposed rules for Category X contained in this
notice and the new Category 1 ECCNs published separately by the
Department of Commerce when reviewed together.
(2) The key goal of this rulemaking is to establish a ``bright
line'' between the USML and the CCL for the control of these materials.
The public is asked to provide specific examples of materials and
miscellaneous articles whose jurisdiction would be in doubt based on
this revision.
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 (APA). 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 the Department is of the opinion that this rule is exempt
from the rulemaking provisions of 5 U.S.C. 553, it does not require
analysis under the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This 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 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.
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 preempt
tribal law. Accordingly, Executive Order 13175 does not apply to this
rulemaking.
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 33701]]
List of Subjects in 22 CFR Part 121
Arms and munitions, Exports.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, part 121 is proposed to be 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); E.O. 11958, 42 FR 4311; 3 CFR, 1977
Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920.
2. Section 121.1 is amended by revising U.S. Munitions List
Category X to read as follows:
Sec. 121.1 General. The United States Munitions List.
* * * * *
Category X--Personal Protective Equipment and Shelters
(a) Personal protective equipment, as follows:
(1) Body armor providing a protection level equal to or greater
than NIJ Type IV.
Note 1 to (a)(1): See National Institute of Justice
Classification, NIJ Standard-0101.06.
Note 2 to (a)(1): For body armor providing a level of
protection of Type I, Type II, Type IIA, Type IIIA, or Type III, see
ECCNs 1A005 and 1A613.
(2) Personal protective clothing, equipment, or face paints
``specially designed'' to protect against or reduce detection by radar,
IR, or other sensors at wavelengths greater than 900 nanometers.
Note to (a)(2): See Category XIII(j) for controls on related
materials.
(3) [Reserved]
(4) [Reserved]
(5) Integrated helmets, not specified in Category VIII (h)(15) or
Category XII, incorporating optical sights or slewing devices, which
include the ability to aim, launch, track, or manage munitions.
(6) Helmets and helmet shells providing a protection level equal to
or greater than NIJ Type IV.
(7) Goggles, spectacles, or visors, employing other than common
broadband absorptive dyes and UV inhibitors as a means of protection
(e.g., narrow band filters/dyes or broadband limiters/coatings with
high visible transparency), with optical density greater than 3 that
protect against:
(i) Visible (in-band) wavelengths;
(ii) Thermal flashes associated with nuclear detonations; or
(iii) Near infrared or ultraviolet (out-of-band) wavelengths.
Note 1 to (a)(7): See Category XIII(j) for controls on related
materials.
Note 2 to (a)(7): See Category XII for sensor protection
equipment.
(8) Developmental personal protective equipment and shelters and
``specially designed'' parts, components, accessories, and attachments
therefor, developed under a contract with the U.S. Department of
Defense.
Note to (a)(8): Developmental personal protective equipment and
shelters, and ``specially designed'' parts, components, accessories,
and attachments therefor, determined to be subject to the EAR via a
commodity jurisdiction determination (see Sec. 120.4 of this
subchapter) are not controlled by this paragraph.
(b) [Reserved]
(c) [Reserved]
(d) Parts, components, assemblies, and associated equipment for the
personal protective equipment controlled in this category as follows:
(1) Ceramic or composite plates that provide protection equal to or
greater than NIJ Type IV.
(2) Lenses for the goggles, spectacles, and visors controlled in
paragraph (a)(7) of this category.
(3) 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'' 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.
(e) 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 (d) of this category.
(f) [Reserved]
* * * * *
Dated: May 31, 2012.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2012-13744 Filed 6-6-12; 8:45 am]
BILLING CODE 4710-25-P
