Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Category XV, 27180-27189 [2014-10806]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 79, Number 92 (Tuesday, May 13, 2014)]
[Rules and Regulations]
[Pages 27180-27189]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10806]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Parts 120, 121, and 124

[Public Notice: 8728]
RIN 1400-AD33


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

AGENCY: Department of State.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: As part of the President's Export Control Reform (ECR) effort, 
the Department of State is amending the International Traffic in Arms 
Regulations (ITAR) to revise Category XV (Spacecraft and Related 
Articles) of the U.S. Munitions List (USML) to describe more precisely 
the articles warranting control in that category. The revisions 
contained in this rule are part of the Department of State's 
retrospective plan under Executive Order 13563 completed on August 17, 
2011. This rule is published as an interim final rule because the 
Department believes that substantial national security benefits will 
flow from the changes to the controls on spacecraft and related items, 
but acknowledges that additional analysis of and public comment on the 
control thresholds for remote sensing satellites are warranted.

DATES: This rule is effective November 10, 2014, except for Sec.  
121.1, Category XV(d), which is effective June 27, 2014. Interested 
parties may submit comments on paragraphs (a)(7) and (e)(11) of USML 
Category XV and ITAR Sec.  124.15 by June 27, 2014.

ADDRESSES: Interested parties may submit comments on paragraphs (a)(7) 
and (e)(11) of USML Category XV and ITAR Sec.  124.15 within 45 days of 
the date of publication by one of the following methods:
     E-mail: DDTCResponseTeam@state.gov with the subject line, 
``USML Category XV(a)(7) and (e)(11) and ITAR Sec.  124.15.''
     Internet: At www.regulations.gov, search for this notice 
by using this notice's RIN (1400-AD33).
    Comments received after that date may 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: Mr. C. Edward Peartree, Director, 
Office of Defense Trade Controls Policy, Department of State, telephone 
(202) 663-2792; email DDTCResponseTeam@state.gov. ATTN: Regulatory 
Change, USML Category XV. The Department of State's full retrospective 
plan can be accessed at https://www.state.gov/documents/organization/181028.pdf.

SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls 
(DDTC), U.S. Department of State, administers the International Traffic 
in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to 
the jurisdiction of the ITAR, i.e., ``defense articles'' and ``defense 
services,'' are identified on the ITAR's U.S. Munitions List (USML) (22 
CFR 121.1). With few exceptions, items not subject to the export 
control jurisdiction of the ITAR are subject to the jurisdiction of the 
Export Administration Regulations (``EAR,'' 15 CFR 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, reexports, and retransfers. Items not subject 
to the ITAR, or to the exclusive licensing jurisdiction of any other 
set of regulations, are subject to the EAR.
    All references to the USML in this rule are to the list of defense 
articles and defense services controlled for the purpose of export or 
temporary import pursuant to the ITAR, and not to the defense articles 
on the USML that are controlled by the Bureau of Alcohol, Tobacco, 
Firearms and Explosives (ATF) for the purpose of permanent import under 
its regulations. See 27 CFR 447. Pursuant to section 38(a)(1) of the 
Arms Export Control Act (AECA), all defense articles controlled for 
export or import are part of the USML under the AECA. For the sake of 
clarity, the list of defense articles controlled by ATF for the purpose 
of permanent import is the U.S. Munitions Import List (USMIL). The 
transfer of defense articles from the ITAR's USML to the EAR's CCL for 
the purpose of export control does not affect the list of defense 
articles controlled on the USMIL under the AECA for the purpose of 
permanent import.

Changes in This Rule

    The following changes are made to the ITAR with this interim final 
rule: (i) Revision of U.S. Munitions List (USML) Category XV 
(Spacecraft and Related Articles); (ii) amendment to paragraph (i) of 
USML Category IV, regarding spacecraft-launch vehicle integration and 
launch failure analysis services; (iii) conforming edits to ITAR Sec.  
124.15, regarding special export controls for satellites and satellite 
launches; and (iv) amendment to ITAR Sec.  120.10(b) to include 
telemetry data to the list of exclusions from technical data. The 
Department notes that there is a shorter implementation period for 
radiation-hardened microelectronic circuits formerly described in 
paragraph (d) of

[[Page 27181]]

USML Category XV; 45 days following publication of this rule, they are 
controlled in ECCN 9A515.d. In addition, microelectronic circuits that 
would otherwise have been within the scope of paragraph (e) of USML 
Category XV are no longer subject to the ITAR 45 days following the 
publication of this rule; instead, they are controlled in ECCN 9A515.e. 
Software and technical data directly related to such microelectronic 
circuits are controlled in ECCNs 9D515 and 9E515, respectively, 45 days 
following the publication of this rule as well.
    When moving items from the USML to the jurisdiction of the CCL, the 
Department coordinates the publication of rules with the Department of 
Commerce so there is uninterrupted regulatory coverage for the items 
changing jurisdiction. The Department of Commerce's companion to this 
rule is, ``Revisions to the Export Administration Regulations (EAR): 
Control of Spacecraft Systems and Related Items the President 
Determines No Longer Warrant Control Under the United States Munitions 
List (USML).'' It is published elsewhere in this issue of the Federal 
Register.
    The revised definition for defense services, published with the 
USML Category XV proposed rule (RINs 1400-AC80 and 1400-AD33) on May 
24, 2013, will be the subject of a separate rule.

Impact on Licensing Burden

    As required by Executive Order 13563, the Department intends to 
review this rule's impact on the licensing burden on exporters. 
Licensing and export data are routinely collected on an ongoing basis, 
including from the Department's electronic licensing database, from the 
Automated Export System, and from public comments. This information has 
been, and will continue to form, the basis for ongoing reviews of this 
rule and other rules promulgated pursuant to ECR. As part of its plan 
for retrospective analysis under Executive Order 13563, the Department 
intends to conduct periodic reviews of this rule and to modify, or 
repeal, aspects of this rule, as appropriate, after public notice and 
comment. With regard to a number of aspects of this rule, assessments 
and refinements will be made on an ongoing basis. This is particularly 
the case with regard to possible modifications that will be considered 
based on the public comments.

Revision of USML Category XV

    This interim final rule revises USML Category XV, covering 
spacecraft and related articles, to remove from it certain articles 
that are now subject to the EAR, and to more clearly describe the 
articles controlled therein.
    This rule follows a change to section 1513 of Public Law 105-261, 
the Strom Thurmond National Defense Authorization Act for Fiscal Year 
1999, which required that space-related items, including all 
satellites, were to be controlled as defense articles and removed the 
President's authority to move these items off the USML.
    Section 1248 of the National Defense Authorization Act for Fiscal 
Year 2010 (Pub. L. 111-84) provided that the Secretaries of Defense and 
State carry out an assessment of the risks associated with removing 
satellites and related components from the USML. The Departments of 
Defense and State conducted this review and identified certain 
satellites and related items that are not critical to national 
security, do not contain technologies unique to the United States, and 
are more appropriately subject to the EAR, which allows for the 
creation of license exceptions for exports to certain destinations and 
complete controls for exports to others. This report was provided to 
the Congress in April 2012.
    The National Defense Authorization Act for Fiscal Year 2013 (Pub. 
L. 112-239), in section 1261, returned to the President the authority 
to determine which satellites and related articles are controlled on 
the USML. With this authority, and consistent with the President's 
Export Control Reform (ECR) effort, the Department made the following 
revisions to USML Category XV.
    Paragraphs (a) and (e) are revised to more specifically describe 
the articles controlled therein. Certain commercial communications and 
remote sensing satellites are not enumerated in paragraph (a); they are 
now subject to the EAR.
    Paragraph (b) is revised to limit its scope to ground control 
systems and training simulators specially designed for telemetry, 
tracking, and control of spacecraft in paragraph (a) of USML Category 
XV.
    The articles currently covered in paragraph (c), certain Global 
Positioning System receiving equipment, will be proposed for control in 
USML Category XII. Until a revised USML Category XII is implemented, 
these articles will continue to be covered in paragraph (c).
    The articles formerly covered in paragraph (d), certain radiation-
hardened microelectronic circuits, are controlled on the CCL in new 
ECCN 9A515.d. To the extent paragraph (e) controlled any other 
microelectronic circuits, they are controlled on the CCL in new ECCN 
9A515.e. Software and technical data directly related to such 
microelectronic circuits are controlled on the CCL in new ECCNs 9D515 
and 9E515, respectively. The effective date for these changes in 
controls pertaining to microelectronic circuits is 45 days from the 
publication date of this rule.
    Paragraph (f) is revised to explicitly provide that directly 
related defense services include the furnishing of assistance 
(including training) in the integration of a satellite or spacecraft to 
a launch vehicle, including both planning and onsite support, 
regardless of the jurisdiction, ownership, or origin of the satellite 
or spacecraft, or whether technical data is used. It also includes the 
furnishing of assistance (including training) in the launch failure 
analysis of a satellite or spacecraft, regardless of the jurisdiction, 
ownership, or origin of the satellite of spacecraft, or whether 
technical data is used. This text was part of the defense services 
definition published with the proposed rule for this category; the 
Department now provides it in paragraph (f).
    Articles common to the Missile Technology Control Regime (MTCR) 
Annex and the USML are identified on the USML, including in USML 
Category XV, with the parenthetical ``(MT)'' at the end of each 
paragraph containing such articles.
    A new ``(x) paragraph'' is added to USML Category XV, allowing ITAR 
licensing for commodities, software, and technology subject to the EAR, 
provided those commodities, software, and technology are to be used in 
or with defense articles controlled in USML Category XV and are 
described in the purchase documentation submitted with the application. 
The Department notes that ``technical data'' instead of ``technology'' 
was used in the revised USML categories that have been published thus 
far, and that have a paragraph (x). Those paragraphs will be amended to 
adopt this change. The EAR definition of technology is operative in 
this paragraph.
    Revised USML Category XV, along with a revised definition for 
defense services, was published as a proposed rule on May 24, 2013, for 
public comment (see ``Amendment to the International Traffic in Arms 
Regulations: Revision of U.S. Munitions List Category XV and Definition 
of `Defense Service,''' 78 FR 31444, RINs 1400-AC80 and 1400-AD33). The 
comment period ended July 8, 2013. The public comments were reviewed 
and considered by the Department and other agencies. The Department's 
evaluation of the written comments and

[[Page 27182]]

recommendations for the defense services definition will be provided in 
a separate rule regarding defense services. The Department's evaluation 
of the written comments and recommendations for USML Category XV 
follows.
    The Department notes that although the Administration sought the 
authority to decide the export licensing jurisdiction for spacecraft 
and related articles, the Department, along with the Department of 
Defense, reported to the Congress that currently only three broad types 
of articles are appropriate to control on the CCL: Communication 
satellites that do not contain classified components or capability; 
remote sensing satellites with performances parameters below certain 
thresholds; and systems, subsystems, parts, and components associated 
with these satellites and with performance parameters below certain 
thresholds. The Department intends to control on the USML, and 
specifically provides for this in paragraph (a) introductory text, some 
spacecraft that have commercial end-use. Spacecraft that have 
commercial end-use with capabilities above specified thresholds will 
still be controlled on the USML. Therefore, the Department did not 
accept recommendations to move off the USML certain spacecraft based on 
the rationale that established commercial end-use alone should 
determine export jurisdiction.
    As an example, a commenting party recommended that satellites and 
associated articles pertaining to the Amateur Satellite Service not be 
controlled on the USML. To the greatest extent possible, the Department 
is revising the USML using the principle of control based on article 
capability, and not article end-use, believing the former to be the 
better standard for protecting the technologies of importance to 
national security. Based on this standard, the Department did not 
accept this recommendation or other recommendations to remove from USML 
Category XV satellites and associated articles based solely on 
potential or actual commercial application. As was the case before this 
revision, if a commercial or research activity requires the export of 
an article controlled under USML Category XV (to include the provision 
of technical data to a foreign person in the United States, but 
excluding certain instances where a defense article is incorporated 
into a spacecraft now subject to the EAR), ITAR licensing requirements 
apply.
    Commenting parties recommended various articles that would be 
pertinent to the emerging civil and commercial space industry be moved 
from the USML to the CCL so as to facilitate its growth. The Department 
did not accept the premise of this recommendation. The review of USML 
Category XV was conducted with the intent of appropriately protecting 
military-critical technologies; the revisions to the category are 
consistent with this intention. While nurturing the civil and 
commercial space industry is a laudable goal, certain of the 
technologies on which this industry may develop and operate are of 
critical military importance and concern, and therefore must remain 
controlled on the USML at this time. For example, launching spacecraft 
to sub-orbit or orbit requires MTCR Category I items, upon which are 
placed the greatest restraint with regard to export. The Department 
deems it appropriate that such articles are controlled on the USML. 
Spacecraft specially designed for human space flight that have 
integrated propulsion present another security concern, for such 
capabilities may be used for the purposes of weapons targeting from 
space. So, although these technologies and capabilities are used in 
commercial endeavors, they continue to merit control on the USML. As 
technologies develop, and as there may come to be a greater 
differentiation between military-critical and commercial technologies, 
their licensing jurisdiction will be reassessed, as provided for in 
section 38(f) of the AECA.
    In response to the recommendation of commenting parties, the 
Department qualified the term ``track'' in paragraph (a)(2) by adding 
the terms ``autonomously'' and ``real-time.''
    In response to the recommendation of a commenting party, the 
Department clarifies that paragraph (a)(3) does not capture signal 
interference mitigation technology and revised the paragraph to make 
clearer the intention of the paragraph.
    Commenting parties recommended revising paragraph (a)(4), to except 
from it such services that are commercial in nature. The Department did 
not accept this recommendation. As the technology and applications in 
question are at an initial phase of development, the Department does 
not believe there is currently a commercial impact of this regulation. 
The Department, though, modified the text to more precisely describe 
the articles controlled therein, and renumbered it as paragraph 
(a)(10).
    Commenting parties recommended the aperture threshold for civil and 
commercial remote sensing satellites in paragraph (a)(7)(i) be 
increased from 0.35 meters to a threshold more appropriate for current 
world capabilities and market conditions. The Department did not accept 
this recommendation at this time. However, it, along with other 
agencies, understands that the technology and civil and commercial 
applications in this area are evolving. Thus, the Department has 
committed to reviewing during the six months after the publication of 
this rule whether further amendments to the USML controls on civil and 
commercial remote sensing satellites are warranted, and seeks 
additional public comment on this matter.
    In response to the recommendation of a commenting party, the 
Department confirms that satellites with payloads designed to 
supplement the signals produced by other satellite-based or terrestrial 
navigation systems for specific geographic areas or terrestrial 
applications are not covered by paragraph (a)(9). Therefore, a 
satellite or spacecraft that provides only a differential correction 
broadcast for the purposes of positioning, navigation, or timing is 
controlled in ECCN 9A515.
    In response to commenting parties, the Department removed as a 
control parameter the text of paragraph (c)(2) (``designed for 
producing navigation results above 60,000 feet altitude and at 1,000 
knots velocity or greater'') for Global Positioning System receiving 
equipment. That control parameter has been updated based upon the MTCR 
Annex. Therefore, Global Positioning System receiving equipment 
designed or modified for airborne applications and capable of providing 
navigation information at speeds in excess of 600 m/s (1,165 nautical 
mph), and specially designed parts and components therefor, are 
controlled in ECCN 7A105. Paragraph (c) controls Global Positioning 
System receiving equipment based upon the three remaining criteria.
    In response to the recommendation of commenting parties, the 
Department provided a shorter implementation period for radiation-
hardened microelectronic circuits. The articles formerly described in 
paragraph (d) are controlled in ECCN 9A515.d, 45 days following 
publication of this rule. In addition, microelectronic circuits that 
would otherwise have been within the scope of paragraph (e) are no 
longer subject to the ITAR 45 days following the publication of this 
rule; instead, they are controlled in ECCN 9A515.e. Software and 
technical data directly related to such microelectronic circuits are 
controlled in ECCNs 9D515 and 9E515, respectively, 45 days following 
the publication of this rule as well. The Department notes that these 
items cannot be exported via a Department

[[Page 27183]]

license intended to export only USML Category XV articles until 
paragraph (x) of USML Category XV takes effect (and provided the other 
criteria for use of paragraph (x) are met).
    In response to the recommendation of commenting parties, the 
Department revised the text in paragraph (e)(1) to clarify that 
antennas on spacecraft are controlled therein, and not ground-based 
antennas.
    A commenting party recommended that the diameter of the antenna 
system described in paragraph (e)(1) be increased from greater than 25 
meters to greater than 35 meters, and the aperture dimension provided 
for space-qualified optics in paragraph (e)(2) be increased. The 
Department did not accept these recommendations. The Department notes 
that, as provided in a note to paragraph (e), spacecraft and other 
items described in ECCN 9A515 remain subject to the EAR, even if 
defense articles are incorporated therein, provided the resultant 
spacecraft is not described in paragraph (a).
    In response to commenting parties, the Department clarifies that 
paragraph (e)(7) does not control space-qualified laser radar or Light 
Detection and Ranging (LIDAR) equipment, and notes that none of the 
items excluded from USML control, as formerly identified in a note to 
paragraph (e), are included in this revised USML Category XV.
    A commenting party requested clarification of the term ``space-
based'' in paragraph (e)(8), and how it is differentiated from the term 
``space-qualified.'' The Department moved the controls of paragraph 
(e)(8) to (e)(7), and removed paragraph (e)(8) and use of the term 
``space-based.'' The Department included in a note to paragraph (e) the 
information that the terms ``designed'' and ``manufactured'' in the 
space-qualified definition are synonymous with the specially designed 
definition of ITAR Sec.  120.41. The Department also notes that use in 
the ITAR of the ``space-qualified'' definition, a central criterion of 
which is the altitude aspect, does not indicate that the U.S. 
government has accepted that the altitude of 100 km above the surface 
of the Earth represents a legal demarcation between national air space 
and outer space under United States or international law.
    The Department notes that paragraph (e)(11) has been expanded to 
include other space-based systems that were not included in the 
proposed rule. In the proposed rule, paragraph (e)(11) read thus: 
``Space-based nuclear thermionic or non-nuclear thermionic converters 
or generators, and specially designed parts and components therefor.'' 
In this rule, paragraph (e)(11) reads thus: ``Space-based systems, and 
specially designed parts and components therefor, as follows: (i) 
Nuclear reactors and associated power conversion systems (e.g., liquid 
metal or gas-cooled fast reactors); (ii) radioisotope-based power 
systems (e.g., radioisotope thermoelectric generators); or (iii) 
nuclear thermal propulsion systems (e.g., solid core, liquid core, gas 
core fission.'' The Department is seeking comment on this revision of 
paragraph (e)(11).
    In response to commenting parties, the Department revised the 
regulation at paragraph (e)(13) to capture those control moment 
gyroscopes that are specially designed for spacecraft. The Department 
notes that paragraph (e)(13) does not control fly wheels or reaction 
wheels.
    Commenting parties requested clarification that an ITAR-controlled 
hosted payload on a satellite subject to the EAR would not change the 
licensing jurisdiction of the satellite, making it a satellite 
controlled on the USML. The Department added a note to paragraph 
(e)(17) stipulating that a satellite subject to the EAR that has such a 
hosted payload that performs any of the functions described in 
paragraph (a) will remain subject to the EAR. In addition, the note 
also provides that a satellite with a primary or secondary payload that 
performs any of the functions described in paragraph (a) is a satellite 
controlled on the USML.
    The Department did not accept the recommendation of commenting 
parties to remove the paragraph controlling payloads developed with 
Department of Defense funding, but it did provide for certain 
exclusions, and added a provision delaying the effective date of the 
paragraph for six months beyond the effective date of the revised 
category. One such exclusion is that a payload developed with 
Department of Defense funding can nonetheless be determined to be 
subject to the EAR pursuant to a Commodity Jurisdiction determination. 
This means that, with respect to secondary or hosted payload, or 
specially designed parts or components therefor, that are subject to 
the ITAR only by virtue having been developed with Defense Department 
funding (i.e., no other parts of USML Category XV apply to the 
articles), one may request the Department to exercise its discretion to 
determine under ITAR Sec.  120.4 that the article is nonetheless not 
subject to the ITAR. The Department will process such requests on a 
case-by-case basis based on whether the article at issue would 
otherwise meet the standards for being included on the USML.
    Commenting parties recommended the Department confirm that various 
types of telemetry--i.e., communications to and from satellites and 
other spacecraft, whether on the ground, in the air, or in space--are 
not subject to the ITAR or the EAR, or, if so, to exclude them from the 
controls for satellite and spacecraft technical data and technology in 
paragraph (f) and ECCN 9E515. Based on a review of the comments and the 
types of information pertaining to satellites and spacecraft that 
warrant control, the Departments of State and Commerce have determined 
to codify existing policy within the regulations that data transmitted 
to or from a satellite or spacecraft, whether real or simulated, is not 
subject to the ITAR and, if within the scope of the EAR's definition of 
``technology,'' is designated as EAR99 if it is limited to information 
about the health, operational status, or function of, or raw sensor 
output from, the spacecraft, spacecraft payload, or its associated 
subsystems or components. Such information is often referred to as 
``housekeeping data.'' In addition, the act of processing such 
telemetry data--i.e., converting raw data into engineering units or 
readable products--or encrypting it does not, in and of itself, cause 
the telemetry data to become subject to the ITAR or to ECCN 9E515. To 
implement this determination, the Department added a note to paragraph 
(f) that such information is not subject to the ITAR and the Department 
of Commerce added a note to ECCN 9E515 that such information, to the 
extent it would be subject to the EAR, is EAR99. Other types of 
technical data, as defined in ITAR Sec.  120.10, directly related to 
USML Category XV articles and other types of technology, as defined in 
EAR Sec.  772.1, required for 9A515 items, are still controlled. In 
addition, the notes to paragraph (f) and 9E515 do not change the ITAR-
control status of classified information directly related to defense 
articles and defense services on the USML and 600-series items subject 
to the EAR, as well as information covered by an invention secrecy 
order. ``Classified,'' for these purposes, means that which is 
classified pursuant to Executive Order 13526, a predecessor or 
successor order, or to the corresponding classification rules of 
another government or international organization.
    The Department received proposals for alternative phrasing of the 
regulatory text in USML Category XV. When the recommended changes added 
to the clarity of the regulation and were

[[Page 27184]]

consistent with the Administration's ECR effort, the Department 
accepted them.
    As stated above, the Department will address public comments on the 
proposed revision of the defense services definition in a separate 
rule. However, the Department addresses here one of the comments that 
resulted in a change to USML Categories IV and XV. A commenting party 
recommended that paragraphs (a)(5) and (a)(6) of the proposed defense 
services definition, regarding the furnishing of assistance in the 
integration of a spacecraft to a launch vehicle and in the launch 
failure analysis of a spacecraft or launch vehicle, respectively, be 
removed, and that those activities be described in the USML categories 
covering spacecraft and launch vehicles, on the basis that a general 
definition should not have such program-specific clauses. The 
Department accepted this recommendation and revised paragraph (f) of 
USML Category XV and paragraph (i) of USML Category IV accordingly. The 
revision includes the recommendation of commenting parties to 
specifically provide that the service must be provided to a foreign 
person in order for it to be a licensable activity.

Additional Changes

    The Department revised the definition of technical data at ITAR 
Sec.  120.10 to specify that it does not include telemetry data as 
defined in note 3 to USML Category XV(f).
    The Department amended paragraph (i) of USML Category IV to specify 
that directly related defense services include the furnishing of 
assistance (including training) in the integration of a satellite or 
spacecraft to a launch vehicle, including both planning and onsite 
support, regardless of the jurisdiction, ownership, or origin of the 
satellite or spacecraft, or whether technical data is used. It also 
includes the furnishing of assistance (including training) in the 
launch failure analysis of a launch vehicle, regardless of the 
jurisdiction, ownership, or origin of the launch vehicle, or whether 
technical data is used. This text was part of the defense services 
definition published with the proposed rule for USML Category XV; the 
Department now provides it in paragraph (i) of USML Category IV.
    The Department revised ITAR Sec.  124.15 to clarify which special 
export controls apply to satellites and related items subject to the 
ITAR and which controls apply to satellites and related items subject 
to the ITAR or the EAR. For certain of the special export controls, the 
Department of Commerce is adding consistent controls in its companion 
interim final rule for satellites subject to the EAR. Because the 
changes to this section were not in the proposed rule, the Department 
is now requesting comment.

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department of State is of the opinion that controlling the 
import and export of defense articles and services is a foreign affairs 
function of the United States Government and that rules implementing 
this function are exempt from sections 553 (rulemaking) and 554 
(adjudications) of the Administrative Procedure Act (APA). Although the 
Department is of the opinion that this rule is exempt from the 
rulemaking provisions of the APA, the Department published this rule as 
proposed 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.

Regulatory Flexibility Act

    Since the Department is of the opinion that this rule is exempt 
from the provisions of 5 U.S.C. 553, there is no requirement for an 
analysis under the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This rulemaking does not involve a mandate that will result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any year and it 
will not significantly or uniquely affect small governments. Therefore, 
no actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (the ``Act''), a ``major'' rule is a rule that the 
Administrator of the OMB Office of Information and Regulatory Affairs 
finds has resulted or is likely to result in (1) an annual effect on 
the economy of $100,000,000 or more; (2) a major increase in costs or 
prices for consumers, individual industries, federal, state, or local 
government agencies, or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and foreign markets.
    The Department does not believe this rulemaking will have an annual 
effect on the economy of $100,000,000 or more. Articles that are being 
removed from coverage in the U.S. Munitions List categories contained 
in this rule will still require licensing for export, but from the 
Department of Commerce. While the licensing regime of the Department of 
Commerce is more flexible than that of the Department of State, it is 
not expected that the change in jurisdiction of these articles will 
result in an export difference of $100,000,000 or more.
    The Department also does not believe that this rulemaking will 
result in a major increase in costs or prices for consumers, individual 
industries, federal, state, or local government agencies, or geographic 
regions, or have significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and foreign markets.

Executive Orders 12372 and 13132

    This rulemaking will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rulemaking does not have 
sufficient federalism implications to require consultations or warrant 
the preparation of a federalism summary impact statement. The 
regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this rulemaking.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributed impacts, and equity). These executive orders 
stress the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rulemaking has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, this rule has been reviewed by the

[[Page 27185]]

Office of Management and Budget (OMB).

Executive Order 12988

    The Department of State reviewed this rulemaking in light of 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden.

Executive Order 13175

    The Department of State determined that this rulemaking will not 
have tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not preempt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Paperwork Reduction Act

    Following is a listing of approved collections that will be 
affected by revision of the USML and the CCL pursuant to ECR. This 
final rule continues the implementation of ECR. The list of collections 
and the description of the manner in which they will be affected 
pertains to revision of the USML in its entirety, not only to the 
category published in this rule. In accordance with the Paperwork 
Reduction Act, the Department of State will request comment on these 
collections from all interested persons. In particular, the Department 
will seek comment on changes to licensing burden based on 
implementation of regulatory changes pursuant to ECR, and on projected 
changes based on continued implementation of regulatory changes 
pursuant to ECR. The affected information collections are as follows:
    (1) Statement of Registration, DS-2032, OMB No. 1405-0002. The 
Department estimates that up to 5,000 of currently-registered persons 
will not need to maintain registration following full revision of the 
USML. This would result in a burden reduction of 10,000 hours annually, 
based on a revised time burden of two hours to complete a Statement of 
Registration.
    (2) Application/License for Permanent Export of Unclassified 
Defense Articles and Related Unclassified Technical Data, DSP-5, OMB 
No. 1405-0003. The Department estimates that there will be 35,000 fewer 
DSP-5 submissions annually following full revision of the USML. This 
would result in a burden reduction of 35,000 hours annually.
    (3) Application/License for Temporary Import of Unclassified 
Defense Articles, DSP-61, OMB No. 1405-0013. The Department estimates 
that there will be 200 fewer DSP-61 submissions annually following full 
revision of the USML. This would result in a burden reduction of 100 
hours annually.
    (4) Application/License for Temporary Export of Unclassified 
Defense Articles, DSP-73, OMB No. 1405-0023. The Department estimates 
that there will be 800 fewer DSP-73 submissions annually following full 
revision of the USML. This would result in a burden reduction of 800 
hours annually.
    (5) Application for Amendment to License for Export or Import of 
Classified or Unclassified Defense Articles and Related Technical Data, 
DSP-6, -62, -74, -119, OMB No. 1405-0092. The Department estimates that 
there will be 2,000 fewer amendment submissions annually following full 
revision of the USML. This would result in a burden reduction of 1,000 
hours annually.
    (6) Request for Approval of Manufacturing License Agreements, 
Technical Assistance Agreements, and Other Agreements, DSP-5, OMB No. 
1405-0093. The Department estimates that there will be 1,000 fewer 
agreement submissions annually following full revision of the USML. 
This would result in a burden reduction of 2,000 hours annually.
    (7) Maintenance of Records by Registrants, OMB No. 1405-0111. The 
requirement to actively maintain records pursuant to provisions of the 
International Traffic in Arms Regulations (ITAR) will decline 
commensurate with the drop in the number of persons who will be 
required to register with the Department pursuant to the ITAR. As 
stated above, the Department estimates that up to 5,000 of the 
currently-registered persons will not need to maintain registration 
following full revision of the USML. This would result in a burden 
reduction of 100,000 hours annually. However, the ITAR does provide for 
the maintenance of records for a period of five years. Therefore, 
persons newly relieved of the requirement to register with the 
Department may still be required to maintain records.
    (8) Export Declaration of Defense Technical Data or Services, DS-
4071, OMB No. 1405-0157. The Department estimates that there will be 
2,000 fewer declaration submissions annually following full revision of 
the USML. This would result in a burden reduction of 1,000 hours 
annually.

List of Subjects

22 CFR Parts 120 and 121

    Arms and munitions, Classified information, Exports.

22 CFR Part 124

    Arms and munitions, Exports, Technical assistance.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, parts 120, 121, and 124 are amended as follows:

PART 120--PURPOSE AND DEFINITIONS

0
1. The authority citation for part 120 continues to read as follows:

    Authority:  Sections 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; 22 U.S.C. 2651a; Pub. 
L. 105-261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L. 
112-239; E.O. 13637, 78 FR 16129.


0
2. Section 120.10 is amended by revising paragraph (b) to read as 
follows:


Sec.  120.10  Technical data.

* * * * *
    (b) The definition in paragraph (a) of this section does not 
include information concerning general scientific, mathematical, or 
engineering principles commonly taught in schools, colleges, and 
universities, or information in the public domain as defined in Sec.  
120.11 of this subchapter or telemetry data as defined in note 3 to 
Category XV(f) of part 121 of this subchapter. It also does not include 
basic marketing information on function or purpose or general system 
descriptions of defense articles.

PART 121--THE UNITED STATES MUNITIONS LIST

0
3. The authority citation for part 121 continues to read as follows:

    Authority:  Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105-261, 112 
Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.


0
4. Section 121.1 is amended by revising paragraph (i) of U.S. Munitions 
List Category IV and revising Category XV, to read as follows:


Sec.  121.1  General. The United States Munitions List.

* * * * *

Category IV-- Launch Vehicles, Guided Missiles, Ballistic Missiles, 
Rockets, Torpedoes, Bombs, and Mines

* * * * *
    (i) Technical data (see Sec.  120.10 of this subchapter) and 
defense services (see Sec.  120.9 of this subchapter) directly related 
to the defense articles enumerated in paragraphs (a) through (h) of 
this category and classified technical data directly related to items

[[Page 27186]]

controlled in ECCNs 0A604, 0B604, 0D604, 9A604, 9B604, or 9D604 and 
defense services using the classified technical data. Defense services 
include the furnishing of assistance (including training) in the 
integration of a satellite or spacecraft to a launch vehicle, including 
both planning and onsite support, regardless of the jurisdiction, 
ownership, or origin of the satellite or spacecraft, or whether 
technical data is used. It also includes the furnishing of assistance 
(including training) in the launch failure analysis of a launch 
vehicle, regardless of the jurisdiction, ownership, or origin of the 
launch vehicle, or whether technical data is used. (See Sec.  125.4 of 
this subchapter for exemptions, and Sec.  124.15 of this subchapter for 
special export controls for spacecraft and spacecraft launches.) (MT 
for technical data and defense services related to articles designated 
as such.)
* * * * *

Category XV-- Spacecraft and Related Articles

    (a) Spacecraft, including satellites and space vehicles, whether 
designated developmental, experimental, research, or scientific, or 
having a commercial, civil, or military end-use, that:
    *(1) Are specially designed to mitigate effects (e.g., 
scintillation) of or for detection of a nuclear detonation;
    *(2) Autonomously track ground, airborne, missile, or space objects 
in real-time using imaging, infrared, radar, or laser systems;
    *(3) Conduct signals intelligence (SIGINT) or measurement and 
signatures intelligence (MASINT);
    *(4) Are specially designed to be used in a constellation or 
formation that when operated together, in essence or effect, form a 
virtual satellite (e.g., functioning as if one satellite) with the 
characteristics or functions of other items in paragraph (a);
    *(5) Are anti-satellite or anti-spacecraft (e.g., kinetic, RF, 
laser, charged particle);
    *(6) Have space-to-ground weapons systems (e.g., kinetic or 
directed energy);
    *(7) Have any of the following electro-optical remote sensing 
capabilities or characteristics:
    (i) Electro-optical visible and near infrared (VNIR) (i.e., 400nm 
to 1,000nm) or infrared (i.e., greater than 1,000nm to 30,000nm) with 
less than 40 spectral bands and having a clear aperture greater than 
0.35 meters;
    (ii) Electro-optical hyperspectral with 40 spectral bands or more 
in the VNIR, short-wavelength infrared (SWIR) (i.e., greater than 
1,000nm to 2,500nm) or any combination of the aforementioned and having 
a Ground Sample Distance (GSD) less than 30 meters;
    (iii) Electro-optical hyperspectral with 40 spectral bands or more 
in the mid-wavelength infrared (MWIR) (i.e., greater than 2,500nm to 
5,500nm) having a narrow spectral bandwidth of [Delta][lambda] less 
than or equal to 20nm full width at half maximum (FWHM) or having a 
wide spectral bandwidth with [Delta][lambda] greater than 20nm FWHM and 
a GSD less than 200 meters; or
    (iv) Electro-optical hyperspectral with 40 spectral bands or more 
in the long-wavelength infrared (LWIR) (i.e., greater than 5,500nm to 
30,000nm) having a narrow spectral bandwidth of [Delta][lambda] less 
than or equal to 50nm FWHM or having a wide spectral bandwidth with 
[Delta][lambda] greater than 50nm FWHM and a GSD less than 500 meters;

    Note 1 to paragraph (a)(7):  Ground Sample Distance (GSD) is 
measured from a spacecraft's nadir (i.e., local vertical) position.


    Note 2 to paragraph (a)(7):  Optical remote sensing spacecraft 
or satellite spectral bandwidth is the smallest difference in 
wavelength (i.e., [Delta][lambda]) that can be distinguished at full 
width at half maximum (FWHM) of wavelength [lambda].


    Note 3 to paragraph (a)(7):  An optical satellite or spacecraft 
is not Significant Military Equipment (see Sec.  120.7 of this 
subchapter) if non-earth pointing.


    * (8) Have radar remote sensing capabilities or characteristics 
(e.g., active electronically scanned array (AESA), synthetic aperture 
radar (SAR), inverse synthetic aperture radar (ISAR), ultra-wideband 
SAR), except those having a center frequency equal to or greater than 1 
GHz but less than or equal to 10 GHz and having a bandwidth less than 
300 MHz;
    (9) Provide Positioning, Navigation, and Timing (PNT) signals;

    Note to paragraph (a)(9):  This paragraph does not control a 
satellite or spacecraft that provides only a differential correction 
broadcast for the purposes of positioning, navigation, or timing.

    (10) Provide space-based logistics, assembly, or servicing of any 
spacecraft (e.g., refueling) and have integrated propulsion other than 
that required for attitude control;
    (11) [Reserved]
    (12) Provide for sub-orbital, Earth orbital, cis-lunar, lunar, deep 
space (i.e., space beyond lunar orbit), and planetary spaceflight, or 
in-space human habitation, which have integrated propulsion other than 
that required for attitude control; or
    * (13) Are classified, contain classified software or hardware, are 
manufactured using classified production data, or are being developed 
using classified information (e.g., having classified requirements, 
specifications, functions, or operational characteristics or include 
classified cryptographic items controlled under USML Category XIII of 
this subchapter). ``Classified'' means classified pursuant to Executive 
Order 13526, or predecessor order, and a security classification guide 
developed pursuant thereto or equivalent, or to the corresponding 
classification rules of another government or international 
organization.

    Note 1 to paragraph (a):  Spacecraft not identified in this 
paragraph are subject to the EAR (see ECCNs 9A004 and 9A515). 
Spacecraft described in ECCNs 9A004 and 9A515 remain subject to the 
EAR even if defense articles described on the USML are incorporated 
therein, except when such incorporation results in a spacecraft 
described in this paragraph.


    Note 2 to paragraph (a):  This paragraph does not control (a) 
the International Space Station (ISS) and its specially designed (as 
defined in the EAR) parts and components, which are subject to the 
EAR, or (b) those articles for the ISS that are determined to be 
subject to the EAR via a commodity jurisdiction determination (see 
Sec.  120.4 of this subchapter). Use of a defense article on the ISS 
that was not specially designed (as defined in the EAR) for the ISS 
does not cause the item to become subject to the EAR.


    Note 3 to paragraph (a):  Attitude control is the exercise of 
control over spacecraft orientation (e.g., pointing) within an 
orbital plane, which may include orbit maintenance using the 
attitude control thrusters.

    (b) Ground control systems or training simulators, specially 
designed for telemetry, tracking, and control (TT&C) of spacecraft in 
paragraph (a) of this category.

    Note to paragraph (b):  Parts, components, accessories, 
attachments, equipment, or systems that are common to ground control 
systems or training simulators controlled in this paragraph and 
those that are used for spacecraft not controlled in paragraph (a) 
of this category are subject to the EAR.

    (c) Global Positioning System (GPS) receiving equipment specially 
designed for military application, or GPS receiving equipment with any 
of the following characteristics, and specially designed parts and 
components therefor:
    (1) Specially designed for encryption or decryption (e.g., Y-Code) 
of GPS precise positioning service (PPS) signals (MT if designed or 
modified for airborne applications);
    (2) [Reserved]
    (3) Specially designed for use with a null steering antenna, an 
electronically steerable antenna, or including a null

[[Page 27187]]

steering antenna designed to reduce or avoid jamming signals (MT if 
designed or modified for airborne applications);
    (4) Specially designed for use with rockets, missiles, SLVs, 
drones, or unmanned air vehicle systems capable of delivering at least 
a 500 kg payload to a range of at least 300 km (MT if designed or 
modified for rockets, missiles, SLVs, drones, or unmanned air vehicle 
systems controlled in this subchapter).

    Note to paragraph (c)(4):  ``Payload'' is the total mass that 
can be carried or delivered by the specified rocket, missile, SLV, 
drone or unmanned aerial vehicle that is not used to maintain 
flight. For definition of ``range'' as it pertains to rocket 
systems, see note 1 to paragraph (a) of USML Category IV For 
definition of ``range'' as it pertains to aircraft systems, see note 
to paragraph (a) of USML Category VIII.


    Note to paragraph (c):  The articles described in this paragraph 
are subject to the EAR when, prior to export, reexport, retransfer, 
or temporary import, they are integrated into and included as an 
integral part of an item subject to the EAR.

    (d) [Reserved]
    (e) Spacecraft parts, components, accessories, attachments, 
equipment, or systems, as follows:
    (1) Antenna systems specially designed for spacecraft that:
    (i) Have a dimension greater than 25 meters in diameter or length 
of the major axis;
    (ii) Employ active electronic scanning;
    (iii) Are adaptive beam forming; or
    (iv) Are for interferometric radar;
    (2) Space-qualified optics (i.e., lens or mirror), including 
optical coating, having active properties (e.g., adaptive, deformable) 
with a largest lateral clear aperture dimension greater than 0.35 
meters;
    (3) Space-qualified focal plane arrays (FPA) having a peak response 
in the wavelength range exceeding 900nm and readout integrated circuit 
(ROIC), whether separate or integrated, specially designed therefor;
    (4) Space-qualified mechanical (i.e., active) cryocooler or active 
cold finger, and associated control electronics specially designed 
therefor;
    (5) Space-qualified active vibration suppression, including active 
isolation and active dampening, and associated control electronics 
therefor;
    (6) Optical bench assemblies specially designed to enable 
spacecraft to meet or exceed the parameters described in paragraph (a) 
of this category;
    (7) Space-qualified kinetic or directed-energy systems (e.g., RF, 
laser, charged particle) specially designed for spacecraft in paragraph 
(a)(5) or (a)(6) of this category, and specially designed parts and 
components therefor (e.g., power conditioning and beam-handling/
switching, propagation, tracking, and pointing equipment);
    (8) [Reserved]
    (9) Space-qualified cesium, rubidium, hydrogen maser, or quantum 
(e.g., based upon Al, Hg, Yb, Sr, Be Ions) atomic clocks, and specially 
designed parts and components therefor;
    (10) Attitude determination and control systems, and specially 
designed parts and components therefor, that provide a spacecraft's 
geolocation accuracy, without using Ground Location Points, better than 
or equal to:
    (i) 5 meters (CE90) from low earth orbit (LEO);
    (ii) 30 meters (CE90) from medium earth orbit (MEO);
    (iii) 150 meters (CE90) from geosynchronous orbit (GEO); or
    (iv) 225 meters (CE90) from high earth orbit (HEO);
    (11) Space-based systems, and specially designed parts and 
components therefor, as follows:
    (i) Nuclear reactors and associated power conversion systems (e.g., 
liquid metal or gas-cooled fast reactors);
    (ii) Radioisotope-based power systems (e.g., radioisotope 
thermoelectric generators); or
    (iii) Nuclear thermal propulsion systems (e.g., solid core, liquid 
core, gas core fission;
    (12) Thrusters (e.g., rocket engines) that provide greater than 150 
lbf (i.e., 667.23 N) vacuum thrust (MT for rocket motors or engines 
having a total impulse capacity equal to or greater than 
8.41x10[caret]5 newton seconds);
    (13) Control moment gyroscope (CMG) specially designed for 
spacecraft;
    (14) Space-qualified monolithic microwave integrated circuits 
(MMIC) that combine transmit and receive (T/R) functions on a single 
die as follows:
    (i) Having a power amplifier with maximum saturated peak output 
power (in watts), Psat, greater than 200 divided by the maximum 
operating frequency (in GHz) squared [Psat >200 W*GHz2/fGHz2]; or
    (ii) Having a common path (e.g., phase shifter-digital attenuator) 
circuit with greater than 3 bits phase shifting at operating 
frequencies 10 GHz or below, or greater than 4 bits phase shifting at 
operating frequencies above 10 GHz;
    (15) Space-qualified oscillator for radar in paragraph (a) of this 
category with phase noise less than -120 dBc/Hz + (20 log10(RF) (in 
GHz)) measured at 2 KHz*RF (in GHz) from carrier;
    (16) Space-qualified star tracker or star sensor with angular 
accuracy less than or equal to 1 arcsec (1-Sigma) per star coordinate, 
and a tracking rate equal to or greater than 3.0 deg/sec, and specially 
designed parts and components therefor (MT);
    *(17) Primary, secondary, or hosted payload that performs any of 
the functions described in paragraph (a) of this category;

    Note 1 to paragraph (e)(17):  Primary payload is that complement 
of equipment designed from the outset to accomplish the prime 
mission function of the spacecraft payload mission set. The primary 
payload may operate independently from the secondary payload(s). 
Secondary payload is that complement of equipment designed from the 
outset to be fully integrated into the spacecraft payload mission 
set. The secondary payload may operate separately from the primary 
payload. Hosted payload is a complement of equipment or sensors that 
uses the available or excess capacity (mass, volume, power, etc.) of 
a spacecraft to accommodate an additional, independent mission. The 
hosted payload may share the spacecraft bus support infrastructure. 
The hosted payload performs an additional, independent mission which 
does not dictate control or operation of the spacecraft. A hosted 
payload is not capable of operating as an independent spacecraft. 
Spacecraft bus (distinct from the spacecraft payload), provides the 
support infrastructure of the spacecraft (e.g., command and data 
handling, communications and antenna(s), electrical power, 
propulsion, thermal control, attitude and orbit control, guidance, 
navigation and control, structure and truss, life support (for 
crewed mission)) and location (e.g., attachment, interface) for the 
spacecraft payload. Spacecraft payload is that complement of 
equipment attached to the spacecraft bus that performs a particular 
mission in space (e.g., communications, observation, science).


    Note 2 to paragraph (e)(17):  An ECCN 9A004 or ECCN 9A515.a 
spacecraft remains a spacecraft subject to the EAR even when 
incorporating a hosted payload performing a function described in 
paragraph (a) of this category. All spacecraft that incorporate 
primary or secondary payloads that perform a function described in 
paragraph (a) of this category are controlled by that paragraph.

    *(18) Secondary or hosted payload, and specially designed parts and 
components therefor, developed with Department of Defense-funding;

    Note 1 to paragraph (e)(18):  This paragraph does not control 
payloads that are (a) determined to be subject to the EAR via a 
commodity jurisdiction determination (see Sec.  120.4 of this 
subchapter), or (b) identified in the relevant Department of Defense 
contract or other funding authorization or agreement as being 
developed for both military and either civil or commercial 
applications.


    Note 2 to paragraph (e)(18):  This paragraph is applicable only 
to those contracts or funding authorizations or agreements that are 
dated XXXX XX, 2015, or later.


[[Page 27188]]


    (19) Spacecraft heat shields or heat sinks specially designed for 
atmospheric entry or re-entry, and specially designed parts and 
components therefor (MT if usable in rockets, SLVs, missiles, drones, 
or UAVs capable of delivering a payload of at least 500 kg to a range 
of at least 300 km);

    Note to paragraph (e)(19):  ``Payload'' is the total mass that 
can be carried or delivered by the specified rocket, SLV, missile, 
drone, or UAV that is not used to maintain flight. For definition of 
``range'' as it pertains to aircraft systems, see note to paragraph 
(a) of USML Category VIII. For definition of ``range'' as it 
pertains to rocket systems, see note 1 to paragraph (a) of USML 
Category IV.

    (20) Equipment modules, stages, or compartments that contain 
propulsion other than that required for attitude control and can be 
separated or jettisoned from another spacecraft (see note 3 to 
paragraph (a) of this category); or
    *(21) Any part, component, accessory, attachment, equipment, or 
system that:
    (i) Is classified;
    (ii) Contains classified software; or
    (iii) Is being developed using classified information.

    Note to paragraph (e)(21):  ``Classified'' means classified 
pursuant to Executive Order 13526, or predecessor order, and a 
security classification guide developed pursuant thereto or 
equivalent, or to the corresponding classification rules of another 
government or international organization.


    Note 1 to paragraph (e):  Parts, components, accessories, 
attachments, equipment, or systems specially designed for spacecraft 
or other articles enumerated in this category but not listed in 
paragraph (e) are subject to the EAR.


    Note 2 to paragraph (e):  The articles described in this 
paragraph are subject to the EAR when, prior to export, reexport, 
retransfer, or temporary import, they are integrated into and 
included as an integral part of an item subject to the EAR (see note 
2 to paragraph (e)(17) of this category).


    Note 3 to paragraph (e):  For the purposes of this paragraph, an 
article is space-qualified if it is designed, manufactured, or 
qualified through successful testing, for operation at altitudes 
greater than 100 km above the surface of the Earth. The use of an 
altitude of 100 km above the surface of the Earth in this paragraph 
does not represent a legal demarcation between national air space 
and outer space under United States or international law.


    Note 4 to paragraph (e):  (1) A determination that a specific 
article (or commodity) (e.g., by product serial number) is space-
qualified by virtue of testing alone does not mean that other 
articles in the same production run or model series are space-
qualified if not individually tested. (2) ``Article'' is synonymous 
with ``commodity,'' as defined in EAR Sec.  772.1. (3) A specific 
article not designed or manufactured for use at altitudes greater 
than 100 km above the surface of the Earth is not space-qualified 
before it is successfully tested. (4) The terms ``designed'' and 
``manufactured'' in this definition are synonymous with ``specially 
designed.''
    (f) Technical data (see Sec.  120.10 of this subchapter) and 
defense services (see Sec.  120.9 of this subchapter) directly 
related to the defense articles enumerated in paragraphs (a) through 
(e) of this category and classified technical data directly related 
to items controlled in ECCNs 9A515, 9B515, or 9D515 and defense 
services using the classified technical data. Defense services 
include the furnishing of assistance (including training) in the 
integration of a satellite or spacecraft to a launch vehicle, 
including both planning and onsite support, regardless of the 
jurisdiction, ownership, or origin of the satellite or spacecraft, 
or whether technical data is used. It also includes the furnishing 
of assistance (including training) in the launch failure analysis of 
a satellite or spacecraft, regardless of the jurisdiction, 
ownership, or origin of the satellite of spacecraft, or whether 
technical data is used. (See Sec.  125.4 of this subchapter for 
exemptions, and Sec.  124.15 of this subchapter for special export 
controls for satellites and satellite launches.) (MT for technical 
data and defense services related to articles designated as such.)


    Note 1 to paragraph (f):  The technical data control of this 
paragraph does not apply to technical data directly related to 
articles enumerated in paragraphs (c) or (e) of this category when 
such articles are integrated into and included as an integral part 
of a satellite subject to the EAR. For controls in these 
circumstances, see ECCN 9E515. This includes that level of technical 
data (including marketing data) necessary and reasonable for a 
purchaser to have assurance that a U.S. built item intended to 
operate in space has been designed, manufactured, and tested in 
conformance with specified contract requirements (e.g., operational 
performance, reliability, lifetime, product quality, or delivery 
expectations) as well as data necessary for normal orbit satellite 
operations, to evaluate in-orbit anomalies, and to operate and 
maintain associated ground station equipment (except encryption 
hardware).


    Note 2 to paragraph (f):  Activities and technology/technical 
data directly related to or required for the spaceflight (e.g., sub-
orbital, orbital, lunar, interplanetary, or otherwise beyond Earth 
orbit) passenger or participant experience, regardless of whether 
the passenger or participant experience is for space tourism, 
scientific or commercial research, commercial manufacturing/
production activities, educational, media, or commercial 
transportation purposes, are not subject to the ITAR or the EAR. 
Such activities and technology/technical data include those directly 
related to or required for: (a) Spacecraft access, ingress, and 
egress, including the operation of all spacecraft doors, hatches, 
and airlocks; (b) physiological training (e.g., human-rated 
centrifuge training or parabolic flights, pressure suit or spacesuit 
training/operation); (c) medical evaluation or assessment of the 
spaceflight passenger or participant; (d) training for and operation 
by the passenger or participant of health and safety related 
hardware (e.g., seating, environmental control and life support, 
hygiene facilities, food preparation, exercise equipment, fire 
suppression, communications equipment, safety-related clothing or 
headgear) or emergency procedures; (e) viewing of the interior and 
exterior of the spacecraft or terrestrial mock-ups; (f) observing 
spacecraft operations (e.g., pre-flight checks, landing, in-flight 
status); (g) training in spacecraft or terrestrial mock-ups for 
connecting to or operating passenger or participant equipment used 
for purposes other than operating the spacecraft; or (h) donning, 
wearing, or utilizing the passenger's or participant's flight suit, 
pressure suit, or spacesuit, and personal equipment.


    Note 3 to paragraph (f):  Neither paragraph (f) nor ECCN 9E515 
controls the data transmitted to or from a satellite or spacecraft, 
whether real or simulated, when limited to information about the 
health, operational status, or function of, or measurements or raw 
sensor output from, the spacecraft, spacecraft payload(s), or their 
associated subsystems or components. Such data or technology is 
subject to the EAR and is designated EAR99. Examples of such data 
and technology, which are commonly referred to as ``housekeeping 
data,'' include (a) system, hardware, component configuration, and 
operation status information pertaining to temperatures, pressures, 
power, currents, voltages, and battery charges; (b) spacecraft or 
payload orientation or position information, such as state vector or 
ephemeris information; (c) payload raw mission or science output, 
such as images, spectra, particle measurements, or field 
measurements; (d) command responses; (e) accurate timing 
information; and (f) link budget data. The act of processing such 
telemetry data--i.e., converting raw data into engineering units or 
readable products--or encrypting it does not, in and of itself, 
cause the telemetry data to become subject to the ITAR or to ECCN 
9E515. All classified technical data directly related to items 
controlled in USML Category XV or ECCNs 9A515, and defense services 
using the classified technical data, remain subject to the ITAR. 
This note does not affect controls in paragraph (f), ECCN 9D515, or 
ECCN 9E515 on software source code or commands that control a 
spacecraft, payload, or associated subsystem.

    (g)-(w) [Reserved]
    (x) Commodities, software, and technology subject to the EAR (see 
Sec.  120.42 of this subchapter) used in or with defense articles 
controlled in this category.

    Note to paragraph (x):
     Use of this paragraph is limited to license applications for 
defense articles controlled in this category where the purchase 
documentation also includes commodities, software, or

[[Page 27189]]

technology subject to the EAR (see Sec.  123.21(b) of this 
subchapter).

* * * * *

PART 124--AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE 
SERVICES

0
5. The authority citation for part 124 is revised to read as follows:


    Authority:  Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; 22 U.S.C. 2776; 
Section 1514, Pub. L. 105-261; Pub. L. 111-266; Section 1261, Pub. 
L. 112-239; E.O. 13637, 78 FR 16129.


0
6. Section 124.15 is amended by revising paragraphs (a) introductory 
text, (b) introductory text, (b)(2), and (c), to read as follows:


Sec.  124.15  Special Export Controls for Defense Articles and Defense 
Services Controlled Under Category XV: Space Systems and Space 
Launches.

    (a) The export of a satellite or related item controlled by 
Category XV of part 121 of this subchapter or any defense service 
controlled by this subchapter associated with the launch in, or by 
nationals of, a country that is not a member of the North Atlantic 
Treaty Organization (NATO) or a major non-NATO ally of the United 
States always requires special export controls, in addition to other 
export controls required by this subchapter, as follows:
* * * * *
    (b) Mandatory licenses for launch failure (crash) investigations or 
analyses of any satellite controlled pursuant to this subchapter or 
subject to the EAR: In the event of a failure of a launch from a 
foreign country (including a post liftoff failure to reach proper 
orbit)--
* * * * *
    (2) Officials of the Department of Defense must monitor all 
activities associated with the investigation or analyses to insure 
against unauthorized transfer of technical data or services and U.S. 
persons must follow the procedures set forth in paragraphs (a)(1) and 
(a)(2) of this section.
    (c) Although Public Law 105-261 does not require the application of 
special export controls for the launch of U.S.-origin satellites and 
components from or by nationals of countries that are members of NATO 
or major non-NATO allies, such export controls may nonetheless be 
applied, in addition to any other export controls required under this 
subchapter, as appropriate in furtherance of the security and foreign 
policy of the United States. Further, the export of any article or 
defense service controlled under this subchapter to any destination may 
also require that the special export controls identified in paragraphs 
(a)(1) and (a)(2) of this section be applied in furtherance of the 
security and foreign policy of the United States.
* * * * *

Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security, 
Department of State.
[FR Doc. 2014-10806 Filed 5-12-14; 8:45 am]
BILLING CODE 4710-25-P