Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Categories VIII and XIX, 83126-83135 [2016-27775]
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83126
Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations
14. In ECCN 9B619, revise the
‘‘Related Controls’’ paragraph in the List
of Items Controlled section to read as
follows:
■
9B619 Test, inspection, and production
‘‘equipment’’ and related commodities
‘‘specially designed’’ for the
‘‘development’’ or ‘‘production’’ of
commodities enumerated or otherwise
described in ECCN 9A619 or USML
Category XIX (see List of Items
Controlled).
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List of Items Controlled
Related Controls: USML Category XIX(f)(1)
controls ‘‘parts,’’ ‘‘components,’’
‘‘accessories,’’ and ‘‘attachments’’
‘‘specially designed’’ for the engines
described in Category XIX(f)(1), but does
not control the commodities enumerated or
otherwise described in ECCN 9B619.
USML Category XIX(f)(2)–(11) controls
other engine ‘‘parts,’’ ‘‘components,’’
‘‘accessories,’’ ‘‘attachments,’’ and
‘‘systems.’’
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■ 15. In ECCN 9C610, revise the
heading, and the ‘‘Items’’ paragraph of
the ‘‘List of Items Controlled’’ section to
read as follows:
9C610 Materials ‘‘specially designed’’ for
commodities controlled by USML
Category VIII or ECCN 9A610 and not
elsewhere specified in the CCL or the
USML (see List of Items Controlled).
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Note 2: Materials ‘‘specially designed’’ for
both aircraft enumerated in USML Category
VIII and aircraft enumerated in ECCN 9A610
are subject to the controls of this ECCN
b. [Reserved]
16. In ECCN 9C619, revise the
heading, and the ‘‘Items’’ paragraph of
the ‘‘List of Items Controlled’’ section to
read as follows:
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9C619 Materials ‘‘specially designed’’ for
commodities controlled by USML
Category XIX or ECCN 9A619 and not
elsewhere specified in the CCL or on the
USML (see List of Items Controlled).
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List of Items Controlled
* * *
Items:
a. Materials not controlled by paragraph .b
of this entry and not elsewhere specified in
the CCL or on the USML, and ‘‘specially
designed’’ for commodities enumerated or
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Note 2: Materials described in paragraph
.a of this entry that are ‘‘specially designed’’
for both an engine enumerated in USML
Category XIX and an engine enumerated in
ECCN 9A619 are subject to the controls of
this ECCN 9C619
Note 3: Materials described in this entry
that are or have been used in gas turbine
engines in production (i.e., not in
development) that are not enumerated or
otherwise described on the USML or ECCN
9A619 are not controlled by this entry.
17. In ECCN 9E610, in the ‘‘List of
Items Controlled’’ section, the ‘‘Items’’
paragraph is amended by:
■ a. Removing the word ‘‘or’’ from the
end of paragraph .b.13;
■ b. Removing the period from the end
of paragraph .b.14 and adding in its
place a semicolon followed by the word
‘‘or’’; and
■ c. Adding paragraph .b.15.
The addition reads as follows.
■
List of Items Controlled
* * *
Items: a. Materials not elsewhere specified in
the USML or the CCL and ‘‘specially
designed’’ for commodities enumerated or
otherwise described in USML Category VIII
or ECCN 9A610 (except 9A610.y).
Note 1: Materials enumerated elsewhere in
the CCL, such as in a CCL Category 1 ECCN,
are controlled pursuant to controls of the
applicable ECCN.
*
otherwise described in USML Category XIX
or ECCN 9A619 (except 9A619.y).
b. Materials ‘‘specially designed’’ for use in
certain gas turbine engines, as follows:
b.1. Powders ‘‘specially designed’’ for
thermal or environmental barrier coating of
defense articles enumerated or described in
USML Category XIX paragraphs (f)(1)–(f)(4)
for engines listed in (f)(1);
b.2. Superalloys (i.e., nickel, cobalt or iron
based), used in directionally solidified or
single crystal casting, ‘‘specially designed’’
for defense articles enumerated or described
in USML Category XIX paragraphs (f)(1)–
(f)(4) for engines listed in paragraph (f)(1); or
b.3. Imide matrix, metal matrix, or ceramic
matrix composite material (i.e., reinforcing
fiber combined with a matrix) ‘‘specially
designed’’ for defense articles enumerated or
described in USML Category XIX paragraphs
(f)(1)–(f)(4) for engines listed in paragraph
(f)(1).
Note 1: Materials enumerated elsewhere in
the CCL, such as in a CCL Category 1 ECCN,
are controlled pursuant to the controls of the
applicable ECCN.
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18. In ECCN 9E619, the ‘‘List of Items
Controlled’’ section is amended by
revising the ‘‘Related Controls’’
paragraph, and in the ‘‘Items’’
paragraph:
■ a. Revising the Note that immediately
follows paragraph .a;
■ b. Removing the word ‘‘or’’ from the
end of paragraph .b.8;
■ c. Removing the period from the end
of paragraph .b.9 and adding in its place
a semicolon followed by the word ‘‘or’’;
and
■ d. Adding paragraph b.10.
The revision and addition read as
follows:
■
9E619 ‘‘Technology’’ ‘‘required’’ for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul, or refurbishing of
military gas turbine engines and related
commodities controlled by 9A619,
equipment controlled by 9B619,
materials controlled by 9C619, or
software controlled by 9D619 (see List of
Items Controlled).
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List of Items Controlled
Related Controls: Technical data directly
related to articles enumerated or otherwise
described in USML Category XIX are subject
to the control of USML Category XIX(g).
*
*
*
*
*
Items:
* * *
Note: ‘‘Build-to-print technology’’
‘‘required’’ for the ‘‘production’’ of items
described in paragraphs b.1 through b.10 of
this entry is classified under 9E619.a.
b. * * *
b.10. Materials controlled by ECCN
9C619.b.
Dated: November 8, 2016.
Kevin J. Wolf,
Assistant Secretary for Export
Administration.
9E610 Technology ‘‘required’’ for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul, or refurbishing of
military aircraft and related
commodities controlled by 9A610,
equipment controlled by 9B610,
materials controlled by 9C610, or
software controlled by 9D610 (see List of
Items Controlled).
[FR Doc. 2016–27777 Filed 11–18–16; 8:45 am]
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[Public Notice: 9604]
Amendment to the International Traffic
in Arms Regulations: Revision of U.S.
Munitions List Categories VIII and XIX
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List of Items Controlled
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Items:
*
b. * * *
b.15. Technology ‘‘required’’ for the
‘‘development’’ or ‘‘production’’ of ‘‘parts’’ or
‘‘components’’ controlled in 9A610.x and
‘‘specially designed’’ for damage or failureadaptive flight control systems controlled in
Category VIII(h)(7) of the USML.
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BILLING CODE 3510–33–P
DEPARTMENT OF STATE
22 CFR Part 121
RIN 1400–AD89
Department of State.
Final rule.
AGENCY:
ACTION:
As part of the President’s
Export Control Reform (ECR) initiative,
the Department of State amends the
International Traffic in Arms
Regulations (ITAR) to revise Categories
SUMMARY:
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Federal Register / Vol. 81, No. 224 / Monday, November 21, 2016 / Rules and Regulations
VIII (aircraft and related articles) and
XIX (gas turbine engines and associated
equipment) of the U.S. Munitions List
(USML) to describe more precisely the
articles warranting control on the
USML. The revisions contained in this
rule are part of the Department of State’s
retrospective plan under E.O. 13563.
DATES: This final rule is effective on
December 31, 2016.
FOR FURTHER INFORMATION CONTACT: Mr.
C. Edward Peartree, Director, Office of
Defense Trade Controls Policy,
Department of State, telephone (202)
663–2792; email
DDTCPublicComments@state.gov.
ATTN: ITAR Amendment—USML
Categories VIII and XIX.
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.
All references to the USML in this
rule are to the list of defense articles
controlled for the purpose of export or
temporary import pursuant to the ITAR,
and not to the defense articles on the
USML that are controlled by the Bureau
of Alcohol, Tobacco, Firearms and
Explosives (ATF) for the purpose of
permanent import under its regulations.
See 27 CFR part 447. Pursuant to section
38(a)(1) of the Arms Export Control Act
(AECA), all defense articles controlled
for export or import are part of the
USML under the AECA. 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 does
not affect the list of defense articles
controlled on the USMIL.
Revision of Category VIII
This final rule revises USML Category
VIII, covering aircraft and related
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articles. The revisions are undertaken in
order to ensure that the category, which
was last revised in 2013, is clear, does
not inadvertently control items in
normal commercial use, accounts for
technological developments, and
properly implements the national
security and foreign policy objectives of
the ECR initiative. The Department
published a proposed rule for these
revisions, as well as the revisions to
Category XIX described below, on
February 9, 2016 (81 FR 6797).
Paragraph (a) is revised to clarify that
the controls for all paragraphs are
applicable ‘‘whether manned,
unmanned, remotely piloted, or
optionally piloted,’’ by modifying
paragraph (a)(5) to clarify the design
feature meriting USML control, and by
deleting paragraph (a)(6) and placing it
into reserve, because the relevant
control is subsumed by revised
paragraph (a)(5). Paragraphs (a)(7),
(a)(8), and (a)(9) are modified to clarify
the respective design features meriting
USML control. The text of paragraphs
(a)(11) and (a)(13) is deleted and the
paragraphs are placed into reserve.
Paragraph (a)(14) is modified to exclude
L–100 and LM–100J aircraft from the
scope of control. Note 2 to paragraph (a)
is revised to clarify the definition of the
described term.
Paragraph (d) is modified to delete the
‘‘ship-based’’ control parameter and to
clarify the intent and scope of the
control.
Paragraph (e) reflects having been
placed into reserve in the final rule
published by the Department on
October 12, 2016 (81 FR 70340).
Notes 1 and 3 to paragraph (f) are
modified to incorporate clarifying
language.
Several changes are made to
paragraph (h). Paragraph (h)(1) is
revised to update the list of subject
platforms, and to delete the reference to
‘‘equipment’’ because the specific types
of equipment that warrant ITAR control
are now enumerated separately in
paragraph (h)(29). The Note to
paragraph (h)(1) is modified to
incorporate technical corrections and to
enhance the clarity of the note.
Paragraph (h)(2) is revised to focus the
scope of control on certain rotorcraft
gearboxes meeting specific technical
parameters, and a note to paragraph
(h)(2) is added to clarify certain
terminology used therein. Paragraph
(h)(4)(ii) is modified to clarify the scope
of control. Paragraph (h)(5) is updated to
add the words ‘‘On-aircraft’’ in order to
clarify the scope of control, while
paragraph (h)(6) is updated to add the
words ‘‘or rocket’’ after ‘‘missile.’’
Paragraph (h)(7) is modified to clarify
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83127
the scope of control. Paragraph (h)(8) is
modified to clarify the meaning of
‘‘threat-adaptive autonomous flight
control systems.’’ Paragraph (h)(10) is
modified to enhance the clarity of the
control text. Paragraph (h)(13) is deleted
and placed into reserve. Paragraph
(h)(16) is modified to incorporate a
technical correction. Paragraph (h)(18)
is modified to control parts and
components that are specially designed
to meet the same performance criteria as
the systems identified in the paragraph.
Paragraph (h)(19) is modified to remove
reference to ECCN 9A610.
Current paragraphs (h)(23) through
(h)(26) are placed into reserve, with new
controls added as paragraphs (h)(27)
through (h)(29). Finally, the note to
Category VIII is modified to update the
paragraphs of paragraph (h) that are
affected, as well as to reflect paragraph
(e) having been placed into reserve.
A commenting party expressed
concern that the objective of the USML
review process, first announced in a
Notice of Inquiry on March 2, 2015 (80
FR 11314), is to reconsider or reverse
the effect of the ECR initiative. The
Department clarifies that the purpose of
the USML review process is to review
and update the subject USML
categories, as needed, to account for
technological developments, practical
application issues identified by
exporters and reexporters, and changes
in the military and commercial
applications of items affected by the list.
The ‘‘positive list’’ structure adopted in
each of the revised USML categories
requires an ongoing process of review in
order to ensure that the list is current
and reflective of the modern state of the
subject technology. This ongoing effort
has been anticipated since the start of
the ECR initiative and is not intended to
reconsider or reverse the effort.
A commenter requested clarification
as to why paragraph (h)(2) had been
removed from the Note to Category VIII.
Paragraph (h)(2) has been revised
significantly to control only a class of
rotorcraft gearboxes for which there is
no current civil application. Given the
reduced scope of control in the revised
paragraph (h)(2), inclusion in the Note
to Category VIII is no longer
appropriate.
Three commenting parties
recommended that paragraph (a)(5) be
deleted, given the proposed reference to
‘‘unmanned’’ aircraft in paragraph (a),
while an additional commenter
suggested that the proposed paragraph
(a)(5) was less clear than the existing
version of the same paragraph. In light
of these comments, the Department
modified the paragraph to control only
those unmanned aerial vehicles that are
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specially designed to incorporate a
defense article, in order to focus the
paragraph on the intended scope of
control. The Department disagrees with
the commenters recommending deletion
of the paragraph, as there is continuing
oversight utility in maintaining a clear,
enumerated control for unmanned aerial
vehicles that are specially designed to
incorporate a defense article,
particularly in light of the unique
considerations for these aircraft as set
forth in the Department’s policy on
unmanned aerial systems.
Two commenters suggested that the
proposed revisions to paragraph (a)(7)
were less clear than the existing version
of the same paragraph, and could
potentially capture an overly broad
scope of aircraft with intelligence,
surveillance, and reconnaissance (ISR)
capabilities where such aircraft
incorporate a defense article. The
Department agreed with these
commenters and revised the paragraph
to control only those aircraft that are
specially designed to incorporate a
defense article for the purpose of
performing an intelligence, surveillance,
and reconnaissance function, in order to
better focus the scope of control and
exclude certain aircraft that merely
incorporate a defense article.
One commenter expressed concern
that proposed paragraph (a)(8) would
control technical data for electronic
warfare or command, control, and
communication aircraft that simply
incorporated a defense article, while
another party requested clarification of
these terms as well as the significant
military equipment (SME) designation
for this paragraph. The Department
notes that command, control, and
communication systems are currently
designated as SME in USML Category
XI, so analogous treatment is
appropriate in this paragraph. While the
Department has not defined the
referenced terms, as there were no
examples provided of demonstrated
uncertainty in the regulated community,
the scope of the paragraph has been
revised to control only those referenced
aircraft types that are specially designed
to incorporate a defense article for the
purpose of performing a referenced
function.
A commenting party recommended
the replacement of each instance of the
words ‘‘capable of’’ with ‘‘equipped to’’
or ‘‘designed for,’’ as appropriate in the
context of the paragraph at issue. The
Department reviewed each paragraph in
which these words appeared and made
the appropriate revisions where the
paragraph did not otherwise provide
technical parameters or performance
criteria that sufficiently constrained and
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identified the class of articles subject to
control.
Three commenters suggested that
paragraph (a)(14) be revised to limit the
scope of control to aircraft with
uniquely military capabilities, to the
exclusion of aircraft platforms such as
the L–100 and LM–100J. One
commenter asserted that the systems
and functions that make the C–130J a
sophisticated military platform are
removed on the LM–100J, and that
militarization of the latter platform
would be very difficult. In response to
these comments, the Department revised
paragraph (a)(14) to exclude the L–100
and LM–100J aircraft.
A commenting party requested
clarification regarding the classification
of parts and components that are not
enumerated or otherwise described on
the USML, and are common to the C–
130 and the L–100 aircraft. As with all
parts and components classification
concerns, the commenter is advised to
follow the standard order of review
guidance provided on the DDTC Web
site (see https://pmddtc.state.gov/faqs/
ecr.html#b). Where an item is described
in multiple entries, an enumerated entry
takes precedence over an entry
controlling the item by virtue of a
specially designed catch-all. The
exception to this rule is where a SME
entry is involved. In all situations, a
SME entry will take precedence over a
non-SME entry. If, through the order of
review, one determines a particular item
is not specifically enumerated in the
USML, it may still be controlled by
virtue of its parts and components,
which are caught via a catch-all. For
example, a part or component of an
airborne radar system specially
designed for the F–35 may not be
enumerated or captured in USML
Category XI but will be controlled under
the specially designed catch-all of
Category VIII(h)(1). If the article does
not appear to fall under any USML
paragraph or paragraph, consult the
EAR to complete the classification
inquiry.
A commenter recommended the
deletion of paragraph (a)(15)(ii), based
on the observation that paragraphs (a)(1)
through (a)(14) do not specify whether
the subject aircraft is of U.S. or foreign
origin. The Department notes that
paragraph (a)(15)(ii) follows paragraph
(a)(15)(i), which captures aircraft not
otherwise enumerated in paragraph (a)
but bearing any enumerated military
designation. Since foreign-origin aircraft
would not bear a U.S. military
designation, paragraph (a)(15)(ii) exists
to capture the foreign equivalents of the
U.S.-origin aircraft controlled by
paragraph (a)(15)(i).
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One commenting party recommended
a revision of paragraph (d) to limit its
scope to launching and recovery
equipment for aircraft controlled in
paragraph (a) that meet a minimum
weight threshold, so as to exclude small
UAVs. The Department disagreed with
this recommendation, noting that the
paragraph controls only launching and
recovery equipment that is specially
designed to allow a subject aircraft to
land on a vessel described in Category
VI(a)–(c). This language controls a
sufficiently narrow class of aircraft and
adequately excludes many small UAV
platforms.
A commenter expressed concern
regarding the removal of the word
‘‘equipment’’ from paragraph (h)(1), as it
potentially confuses the jurisdiction of
such equipment. To clarify the scope of
controlled equipment and avoid a
perception that equipment designed for
aircraft enumerated in paragraph (h)(1)
is per se controlled in the same
paragraph, the Department created
proposed paragraph (h)(30), which
appears in this final rule as paragraph
(h)(29), to specify the specific types of
equipment that warrant USML control.
A commenting party recommended
the exclusion from paragraph (h)(1) of
those parts identified in ECCNs 9A610.y
or 9A619.y. The Department disagreed
with this recommendation. The
structure of CCL controls is
distinguishable from those in the USML,
with the CCL utilizing ‘‘reasons for
control’’ and country licensing policies
that are not available under the ITAR or
AECA. As such, provisions from the
CCL cannot easily be adopted for the
purposes of the USML. Given the
unique policy considerations applicable
to the enumerated aircraft in paragraph
(h)(1) and their low observable/counter
low observable capabilities, the
Department declines to exclude classes
of parts and components for these
highly sensitive platforms.
One commenter recommended that
paragraph (h)(2) be revised to control
only those rotorcraft gearboxes that are
qualified to a particular military
standard. The Department disagreed
with this comment, because military
standards are not developed and
published to advance export controlrelated objectives and may be revised
frequently for reasons unrelated to
export controls, which may additionally
reduce the clarity of the USML through
successive iterations of revisions to
these standards.
Two commenters asserted that
individual performance criteria specific
in paragraph (h)(2) are not uniquely
military in nature. The Department
notes that both criteria are required for
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control, and it is the combination of the
two specified criteria that makes the
controlled article militarily significant.
No examples were provided of
commercial items capable of meeting
both performance criteria.
A commenter suggested that tail boom
folding systems controlled under
paragraph (h)(3) could be useful in civil
applications to optimize the use of
space. The Department did not revise
the control because the commenter did
not provide an example of a current
civil application for the articles
controlled in this paragraph.
A commenter recommended that
paragraph (h)(5) be reviewed in concert
with ECCN 9A610.e to ensure that the
two entries did not overlap. The
Department reviewed the entries and
made no change to the paragraph, as it
is sufficiently limited in scope to onaircraft arresting gear and excludes
arresting gear used on the ground.
One commenting party recommended
that paragraph (h)(6) be revised to
control ‘‘rocket launchers’’ in addition
to ‘‘missile launchers,’’ and further
recommended criteria to exclude from
control certain airborne UAV launching
capabilities. The Department agreed
with the addition of ‘‘rocket launchers’’
and revised the paragraph accordingly.
However, the Department disagreed
with the recommended airborne
launching criteria, as the ability to
deploy a UAV from an aircraft in flight
is a current military capability.
A commenting party suggested that
the Department had not offered a
sufficient rationale to move to the
USML specially designed parts and
components for the systems controlled
in paragraph (h)(7). The Department
agreed with this comment and deleted
the proposed addition. The disposition
of the relevant parts and components
will be addressed in the Department of
Commerce’s companion rule.
A commenting party recommended
that paragraph (h)(8) be merged with
paragraph (h)(12), in order to create a
single paragraph for flight control
systems that excludes commercial UAV
‘‘sense-and-avoid’’ capabilities. The
Department observes that the ability of
the subject UAVs to ‘‘avoid collisions’’
is only one aspect of the control
parameter, which also requires the
capability to ‘‘stay together’’ by virtue of
the subject flight control system. No
example has been presented of a
commercial UAV flight control system
that provides the capability for multiple
UAVs to both ‘‘avoid collisions’’ and
‘‘stay together.’’ Accordingly, the
Department did not revise the
paragraph.
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One commenter suggested that
paragraph (h)(10) include a note, similar
to the Note to Category XI(a)(3),
indicating that the paragraph does not
control radio altimeter equipment
conforming to Federal Aviation
Administration TSO–C87. The
Department did not add this note to
paragraph (h)(10), because commercial
altimeters conforming to this standard
would not possess either of the low
probability of intercept capabilities
described in the paragraph. Since
current commercial altimeters cannot
meet the criteria of paragraph (h)(10), it
is not necessary to include a note that
would impact only these commercial
items.
Three commenting parties suggested
that the Department had not offered a
sufficient rationale to move to the
USML specially designed parts and
components for the systems controlled
in paragraph (h)(18). The Department
partially agreed with this comment and
revised the proposed addition. The only
parts and components added to
paragraph (h)(18) are those that are
specially designed to function after
impact of a 7.62 mm or larger projectile.
This is the same criterion that applies to
the drive systems and flight control
systems subject to control under this
paragraph; thus, this paragraph unifies
the articles subject to control under a
common parameter of military
criticality.
Two commenters recommended
revisions to enhance the clarity of
paragraph (h)(20). This paragraph
pertains to classified defense articles
and classified information, and
replicates the structure of similar entries
in other revised USML categories that
are outside of the scope of this rule. To
maintain conformity with those entries,
the Department has noted these
commenters’ recommendations and will
reconsider them in the context of a later
review of all USML entries relating to
classified defense articles and classified
information.
Four commenting parties asserted that
the proposed paragraph (h)(27) did not
control articles providing a critical
military advantage, would control
variable speed gearboxes in commercial
use, or would otherwise limit
commercial development utilizing such
technology. The Department notes that
former paragraph (h)(2), prior to the
revisions set forth in this rule,
controlled ‘‘variable speed gearboxes’’
generally. Accordingly, the proposed
paragraph (h)(27) constituted a
reduction in the range of variable speed
gearboxes subject to the ITAR to those
employed in next-generation military
technology. In light of the comments
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received, the Department has further
refined paragraph (h)(27) to clarify the
meaning of ‘‘variable speed gearbox,’’ as
well as to articulate the varying output
speed currently in use in military
applications.
A commenting party observed that the
proposed paragraph (h)(28) would
capture dual-use electrical power or
thermal management systems used with
Category XIX engines. The Department
agreed with this comment and revised
the paragraph to control electrical
power or thermal management systems
specially designed for an engine
controlled in Category XIX.
A commenter requested clarification
that the use of the term ‘‘pound’’ in
paragraph (h)(28)(i) refers only to the
generator and not the controller. The
Department updated the paragraph to
clarify that the referenced threshold
excludes the mass of the controller for
the purpose of calculating the
gravimetric power density. The
commenter additionally requested
clarification as to whether the threshold
reflects the total heat exchanger capacity
or a single heat exchanger. The
Department updated the paragraph to
address the concerns expressed in the
comment.
The same commenter asserted that
paragraph (h)(28)(iii) lacked clarity and
should be deleted. The Department
agreed with this comment and deleted
the paragraph. Consequentially,
proposed paragraph (h)(28)(iv) now
appears in this final rule as paragraph
(h)(28)(iii). Additionally, the commenter
requested clarification regarding the
conditions for measuring the threshold
in proposed paragraph (h)(28)(iv). The
Department did not insert additional
criteria regarding measurement
conditions because the paragraph as
drafted describes the threshold for ITAR
control at a sufficient level of
granularity.
A commenter proposed revisions to
proposed paragraph (h)(29) to better
articulate the scope of software to be
controlled. A second commenter
recommended deletion of the paragraph,
since algorithms and software are
already controlled as technical data. The
Department agreed with the second
commenter and deleted the proposed
paragraph, having determined that the
subject software is already controlled
under paragraph (i).
Three commenters suggested that
proposed paragraph (h)(30) would result
in expense to industry with
questionable regulatory benefit, and
would require the re-review of certain
parts and components to determine
whether classification under the new
paragraph is appropriate.
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The Department notes that Category
VIII was among the first two categories
to undergo revision pursuant to the ECR
initiative, a primary goal of which was
to create a ‘‘positive list’’ that would
inevitably require periodic revisions to
keep reflective of the current state of
technology. The experience of industry
with the earliest revised categories, as
well as the U.S. government in
enforcing the regulations, has identified
areas in which adjustments to
Categories VIII and XIX were necessary
to best articulate the articles subject to
control.
The former treatment of equipment in
paragraph (h)(1) potentially created the
impression that equipment for
enumerated aircraft was broadly
controlled under that paragraph. For
additional clarity, a newly-created
paragraph, now found at (h)(29),
enumerates certain types of equipment
that merit ITAR control. While the
Department’s review considered in all
cases the potential impact to industry in
revising aspects of these categories, the
primary standard of review was the
‘‘critical military or intelligence
advantage’’ standard set forth in ITAR
§ 120.3(b). As a general principle, where
migration of items from the CCL to the
USML was considered, the Department
sought first to accommodate the item in
a revised ECCN. The articles that newly
appear on or have returned to the USML
in this rule are those that constitute or
are specially designed for nextgeneration technology and thus satisfy
ITAR § 120.3. In response to comments
received, the Department revised the
paragraph to better articulate the
specific types of equipment that meet
this standard.
Finally, a commenter recommended
replacing the words ‘‘technical data’’ in
paragraph (x) with ‘‘technology,’’ to
align the text with other revised
categories and utilize the appropriate
EAR terminology. The Department
agreed and made the recommended
change.
Revision of Category XIX
This final rule revises USML Category
XIX, covering gas turbine engines. As
with USML Category VIII, the revisions
are undertaken in order to ensure that
the category is clear, does not
inadvertently control items in normal
commercial use, accounts for
technological developments, and
properly implements the national
security and foreign policy objectives of
the ECR initiative.
Paragraph (a) is modified to clarify the
scope of controlled engines and to
incorporate technical corrections.
Paragraph (b)(1) is revised to update the
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performance criteria meriting control,
while paragraph (b)(2) is revised to
clarify the specific power threshold
specified therein.
Paragraph (c) is modified to
incorporate conforming and technical
changes and to make clear that the
paragraph applies only to gas turbine
engines, while paragraph (d) is modified
to update the list of subject engines. The
Note to paragraph (e) is modified to
incorporate a conforming change.
Several changes are included within
paragraph (f). Paragraph (f)(1) is
modified to incorporate technical
corrections and to update the list of
subject engines. Paragraph (f)(2)
introduces additional text to clarify the
scope of controlled hot section
components, and to reorganize the text
according to the nature of the articles.
New controls are included in
paragraphs (f)(7) through (f)(12).
A commenter asserted that the PT6C–
67A, a commercial model, would
exceed the threshold proposed in
paragraph (b)(1). In response to this
comment, the Department increased the
relevant threshold to 2000 mechanical
shp (1491 kW).
Three commenting parties
recommended clarification regarding
the specific power threshold set forth in
paragraph (b)(2). The Department agreed
with these commenters and revised the
relevant language to include a unit of
measurement for the specific power
threshold and maximum takeoff shaft
horsepower. The Department further
notes that given the additional
modifications to paragraph (b)(2)
described below, and the requirement
that an engine must meet all of the
criteria of paragraph (b)(2) to be subject
to ITAR control, the revised paragraph
should not pose a risk of capturing nextgeneration commercial engine models.
Two commenters asserted that the
term ‘‘armament gas’’ in paragraph (b)(2)
is unclear and requested a definition.
The Department disagreed with the
commenters because the term can be
interpreted based on the plain meaning
of the words ‘‘armament gas
ingestion’’—that is, the term describes
an engine that is specially designed to
ingest gas released from armaments.
Three commenting parties requested
clarification regarding the term
‘‘transient maneuvers’’ in paragraph
(b)(2), and requested revision to capture
only maneuvers that are unique to
military scenarios. The Department
agreed with these comments and revised
the parameter to capture non-civil
transient maneuvers.
Three commenting parties suggested
that the phrase ‘‘controlled in this
category’’ in paragraph (c) be revised to
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read ‘‘controlled in Category VIII.’’ The
Department partially agreed and revised
the phrase to read ‘‘controlled in this
subchapter.’’
A commenter recommended the
removal of the GE38 engine from
paragraph (d), indicating that it is a
marketing name that was used during
the development of the T408 and will
not be used in production. The
Department agrees with this observation
but also notes that GE38 models remain
in use in test aircraft. Accordingly, the
GE38 reference will remain in paragraph
(d) while such engines are still in use.
One commenter recommended the
removal of the MT7 engine from
paragraph (d), arguing that it is a
derivative of the AE1107C and that oil
sump sealing is being designed out of
the model. While the comment appears
to describe a design modification that
has not yet occurred, the Department
further notes that the subject engine is
unique to a destroyer platform. For
these reasons, the MT7 was retained in
paragraph (d).
The Department has removed the
TF60 engine from paragraph (d) in
response to a public comment that
recommended its removal.
A commenter questioned whether the
word ‘‘systems’’ in paragraph (e) should
be interpreted to also indicate controls
of parts and components thereof. The
Department confirms that paragraph (e)
is limited to specified systems and
includes no reference to ‘‘parts and
components thereof’’; accordingly, parts
and components thereof are not
controlled under paragraph (e).
Two comments asserted, with respect
to paragraph (f) as well as several
paragraphs thereof, that materials
should not be controlled in this category
because Category XIII is intended to
contain all materials entries. The
Department disagreed in part with these
comments. Where the materials at issue
pertain only to a particular class of
defense articles that are controlled in a
single subcategory—as with these
materials relevant only to gas turbine
engines controlled in Category XIX—
there is little utility in requiring the
reader to review multiple USML
categories for articles of potential
relevance. Were these materials of broad
applicability for a variety of defense
articles controlled under more than one
USML category, the Department would
locate the relevant USML entries in
Category XIII. However, in this case,
ECCN 9C619 remains the appropriate
category for the materials described in
the proposed rule. The companion rule
the Commerce Department has
published explains the new licensing
policies pertaining to such materials. No
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new materials controls are added to
Category XIX.
Two commenting parties
recommended the exclusion from
paragraph (f)(1) of those parts identified
in ECCNs 9A610.y or 9A619.y. The
Department disagreed with this
comment for reasons similar to those
explained above in the context of a
similar comment on Category VIII(h)(1),
regarding the different structures and
objectives of CCL ECCNs as well as the
national security interest in retaining
control over the parts and components
of engines with evolving or nextgeneration applications.
One commenter expressed concern
regarding the removal of the word
‘‘equipment’’ from paragraph (f)(1). As
with Category VIII(h)(1), the word was
removed to avoid the impression that all
equipment, including production
equipment, relevant to the enumerated
aircraft was subject to control under this
paragraph. The Department has created
a new paragraph (f)(12), which appeared
in the proposed rule as proposed
paragraph (f)(16), to enumerate certain
types of equipment that merit control.
Three commenters requested
clarification of the word ‘‘actively’’ in
paragraph (f)(2), and requested the
addition of a definition. The Department
agreed that the term, which first
appeared in the proposed rule, did not
improve the clarity of the paragraph and
deleted each instance of the term.
A commenting party recommended
the reorganization of paragraph (f)(2) to
refer to ‘‘intermediate pressure turbine
blades’’ after ‘‘high pressure turbine
blades’’ and before ‘‘low pressure
turbine blades.’’ The Department agreed
and revised the paragraph accordingly.
A commenting party expressed
difficulty interpreting the meaning of
‘‘engine monitoring systems’’ in
paragraph (f)(5) and suggested that a
definition of the term might be
beneficial. The Department disagreed
with the comment because the term can
be sufficiently understood without a
new definition, given the existing
definition of ‘‘system’’ set forth in ITAR
§ 120.45(g).
Four parties commented generally on
the new paragraphs that appeared in the
proposed rule as (f)(7) through (f)(16),
arguing that USML control of the subject
articles will result in expense to
industry by requiring reclassification of
articles previously subject to the EAR.
As with Category VIII, described above,
Category XIX was among the first two
categories to undergo revision pursuant
to the ECR initiative, a primary goal of
which was to create a ‘‘positive list’’
that would inevitably require periodic
revisions to keep reflective of the
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current state of technology. The
experience of industry with the earliest
revised categories, as well as the U.S.
government in enforcing the regulations,
has identified areas in which
adjustments to Categories VIII and XIX
were necessary to best articulate the
articles subject to control.
While the Department’s review
considered in all cases the potential
impact to industry in revising aspects of
these categories, the primary standard of
review was the ‘‘critical military or
intelligence advantage’’ standard set
forth in ITAR § 120.3(b). As a general
principle, where a migration of items
from the CCL to the USML was
considered, the Department sought first
to accommodate the item in a revised
ECCN. The articles that nevertheless
appear in new USML entries in this rule
constitute or are specially designed for
next-generation technology and thus
satisfy ITAR § 120.3.
The Department disagrees with the
commenters’ characterization of
proposed paragraph (f)(16), now
appearing as paragraph (f)(12), which
controls certain enumerated types of
equipment. Since ‘‘equipment’’ was
referenced generally in the previous
iteration of paragraph (f), the objective
of this addition is to better clarify the
equipment subject to ITAR control.
With respect to the remaining proposed
paragraphs, the Department applied this
standard and determined that proposed
paragraphs (f)(7), (f)(13), (f)(14), and
(f)(15) were not necessary for inclusion
in the USML. Accordingly, these
proposed paragraphs have been deleted.
The considerations that prompted the
addition of proposed paragraph (f)(7) are
adequately addressed through paragraph
(g), while the remaining deleted
proposed entries will be addressed by
the Department of Commerce in ECCN
9C619.
The Department retained proposed
paragraph (f)(8), now appearing in the
category as paragraph (f)(7), because the
referenced equipment allows for the
production of gas turbine engines and
parts and components that offer a
critical military advantage.
Among the retained new paragraphs
and in response to public comments, the
Department revised proposed
paragraphs (f)(9) through (f)(12)—now
appearing as paragraphs (f)(8) through
(f)(11)—to reference only systems
specially designed for gas turbine
engines controlled in Category XIX, in
order to avoid a chilling effect on
potential commercial applications of
these technologies.
The Department revised proposed
paragraph (f)(16), now appearing in this
final rule as paragraph (f)(12), to
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83131
enumerate certain types of equipment
that is specially designed for a defense
article described in paragraph (f)(1).
Finally, a commenter recommended
replacing the words ‘‘technical data’’ in
paragraph (x) with ‘‘technology,’’ to
align the text with other revised
categories and utilize the appropriate
EAR terminology. The Department
agreed and made the recommended
change.
Regulatory Findings
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 a proposed rule
(81 FR 6797) 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 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 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 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 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 amendment
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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 amendment.
Executive Order 12866 and 13563
Executive Orders 12866 and 13563
direct agencies to assess all 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).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This rule has been
designated a ‘‘significant regulatory
action,’’ although not economically
significant, under section 3(f) of
Executive Order 12866. Accordingly,
the rule has been reviewed by the Office
of Management and Budget (OMB).
Executive Order 12988
The Department of State has reviewed
the 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.
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Paperwork Reduction Act
Following is a listing of approved
collections that will be affected by
revision of the U.S. Munitions List
(USML) and the Commerce Control List
pursuant to the President’s Export
Control Reform (ECR) initiative. This
rule continues the implementation of
ECR. The list of collections pertains to
revision of the USML in its entirety, not
only to the categories published in this
rule. The Department is not proposing
or making changes to these collections
in this rule. The information collections
impacted by the ECR initiative are as
follows:
(1) Statement of Registration, DS–
2032, OMB No. 1405–0002.
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(2) Application/License for Permanent
Export of Unclassified Defense Articles
and Related Unclassified Technical
Data, DSP–5, OMB No. 1405–0003.
(3) Application/License for
Temporary Import of Unclassified
Defense Articles, DSP–61, OMB No.
1405–0013.
(4) Application/License for
Temporary Export of Unclassified
Defense Articles, DSP–73, OMB No.
1405–0023.
(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.
(6) Request for Approval of
Manufacturing License Agreements,
Technical Assistance Agreements, and
Other Agreements, DSP–5, OMB No.
1405–0093.
(7) Maintenance of Records by
Registrants, OMB No. 1405–0111.
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 amended as follows:
PART 121—THE UNITED STATES
MUNITIONS LIST
1. The authority citation for part 121
continues to read as follows:
■
Authority: Secs. 2, 38, and 71, Pub. L. 90–
629, 90 Stat. 744 (22 U.S.C. 2752, 2778,
2797); 22 U.S.C. 2651a; Pub. L. 105–261, 112
Stat. 1920; Section 1261, Pub. L. 112–239;
E.O. 13637, 78 FR 16129.
2. Section 121.1 is amended by
revising U.S. Munitions List Categories
VIII and XIX to read as follows:
■
§ 121.1
*
*
The United States Munitions List.
*
*
*
Category VIII—Aircraft and Related
Articles
(a) Aircraft, whether manned,
unmanned, remotely piloted, or
optionally piloted, as follows (MT if the
aircraft, excluding manned aircraft, has
a range equal to or greater than 300 km):
* (1) Bombers;
* (2) Fighters, fighter bombers, and
fixed-wing attack aircraft;
* (3) Turbofan- or turbojet-powered
trainers used to train pilots for fighter,
attack, or bomber aircraft;
* (4) Attack helicopters;
* (5) Unmanned aerial vehicles
(UAVs) specially designed to
incorporate a defense article;
* (6) [Reserved]
* (7) Aircraft specially designed to
incorporate a defense article for the
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purpose of performing an intelligence,
surveillance, and reconnaissance
function;
* (8) Aircraft specially designed to
incorporate a defense article for the
purpose of performing an electronic
warfare function; airborne warning and
control aircraft; or aircraft specially
designed to incorporate a defense article
for the purpose of performing a
command, control, and communications
function;
(9) Aircraft specially designed to
incorporate a defense article for the
purpose of performing an air refueling
function;
(10) Target drones;
(11) [Reserved]
(12) Aircraft capable of being refueled
in-flight including hover-in-flight
refueling (HIFR);
(13) [Reserved]
(14) Aircraft with a roll-on/roll-off
ramp, capable of airlifting payloads over
35,000 lbs. to ranges over 2,000 nm
without being refueled in-flight, and
landing onto short or unimproved
airfields, other than L–100 and LM–100J
aircraft;
* (15) Aircraft not enumerated in
paragraphs (a)(1) through (a)(14) as
follows:
(i) U.S.-origin aircraft that bear an
original military designation of A, B, E,
F, K, M, P, R, or S; or
(ii) Foreign-origin aircraft specially
designed to provide functions
equivalent to those of the aircraft listed
in paragraph (a)(15)(i) of this category;
or
(16) Aircraft that are armed or are
specially designed to be used as a
platform to deliver munitions or
otherwise destroy targets (e.g., firing
lasers, launching rockets, firing missiles,
dropping bombs, or strafing);
Note 1 to paragraph (a): Aircraft specially
designed for military applications that are
not identified in paragraph (a) of this section
are subject to the EAR and classified as ECCN
9A610, including any model of unarmed
military aircraft manufactured prior to 1956,
regardless of origin or designation, and
unmodified since manufacture. Aircraft with
modifications made to incorporate safety of
flight features or other FAA or NTSB
modifications such as transponders and air
data recorders are considered ‘‘unmodified’’
for the purposes of this paragraph.
Note 2 to paragraph (a): ‘‘Range’’ is the
maximum distance that the specified aircraft
system is capable of traveling in the mode of
stable flight as measured by the projection of
its trajectory over the surface of the Earth.
The maximum capability based on the design
characteristics of the system, when fully
loaded with fuel or propellant, will be taken
into consideration in determining range. The
range for aircraft systems will be determined
independently of any external factors such as
operational restrictions, limitations imposed
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by telemetry, data links, or other external
constraints. For aircraft systems, the range
will be determined for a one-way distance
using the most fuel-efficient flight profile
(e.g., cruise speed and altitude), assuming
International Civil Aviation Organization
(ICAO) standard atmosphere with zero wind,
but with no fuel reserve.
(b)–(c) [Reserved]
(d) Launching and recovery
equipment specially designed to allow
an aircraft described in paragraph (a) of
this category to take off or land on a
vessel described in Category VI
paragraphs (a) through (c) (MT if the
launching and recovery equipment is for
an aircraft, excluding manned aircraft,
that has a range equal to or greater than
300 km).
Note to paragraph (d): For the definition
of ‘‘range,’’ see note to paragraph (a) of this
category.
(e) [Reserved]
(f) Developmental aircraft funded by
the Department of Defense via contract
or other funding authorization, and
specially designed parts, components,
accessories, and attachments therefor.
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Note 1 to paragraph (f): This paragraph
does not control aircraft and specially
designed parts, components, accessories, and
attachments therefor (a) in production; (b)
determined to be subject to the EAR via a
commodity jurisdiction determination (see
§ 120.4 of this subchapter), or (c) identified
in the relevant Department of Defense
contract or other funding authorization as
being developed for both civil and military
applications.
Note 2 to paragraph (f): Note 1 does not
apply to defense articles enumerated on the
U.S. Munitions List, whether in production
or development.
Note 3 to paragraph (f): This paragraph is
applicable only to those contracts, other
funding authorizations, or modifications
initiating development of a new defense
article that are dated April 16, 2014, or later.
(g) [Reserved]
(h) Parts, components, accessories,
attachments, associated equipment and
systems, as follows:
(1) Parts, components, accessories,
and attachments specially designed for
the following U.S.-origin aircraft: The
B–1B, B–2, B–21, F–15SE, F/A–18 E/F,
EA–18G, F–22, F–35, and future
variants thereof; or the F–117 or U.S.
Government technology demonstrators.
Parts, components, accessories, and
attachments of the F–15SE and F/A–18
E/F that are common to earlier models
of these aircraft, unless listed in
paragraph (h) of this category, are
subject to the EAR;
Note to paragraph (h)(1): This paragraph
does not control parts, components,
accessories, and attachments that are
common to aircraft described in paragraph (a)
of this category but not identified in
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paragraph (h)(1), and those identified in
paragraph (h)(1). For example, when
applying § 120.41(b)(3), a part common to
only the F–16 and F–35 is not specially
designed for purposes of this paragraph. A
part common to only the F–22 and F–35—
two aircraft models identified in paragraph
(h)(1)—is specially designed for purposes of
this paragraph, unless one of the other
paragraphs is applicable under § 120.41(b) of
this subchapter.
(2) Rotorcraft gearboxes with internal
pitch line velocities exceeding 20,000
feet per minute and able to operate 30
minutes with loss of lubrication without
an emergency or auxiliary lubrication
system, and specially designed parts
and components therefor;
Note to paragraph (h)(2): Loss of
lubrication means a situation where oil/
lubrication is mostly or completely lost from
a transmission/gearbox such that only a
residual coating remains due to the
lubrication system failure.
(3) Tail boom folding systems,
stabilator folding systems or automatic
rotor blade folding systems, and
specially designed parts and
components therefor;
(4) Wing folding systems, and
specially designed parts and
components therefor, for:
(i) Aircraft powered by power plants
controlled under USML Category IV(d);
or
(ii) Aircraft with any of the following
characteristics and powered by gas
turbine engines:
(A) The portion of the wing outboard
of the wing fold is required for
sustained flight;
(B) Fuel can be stored outboard of the
wing fold;
(C) Control surfaces are outboard of
the wing fold;
(D) Hard points are outboard of the
wing fold;
(E) Hard points inboard of the wing
fold allow for in-flight ejection; or
(F) The aircraft is designed to
withstand maximum vertical
maneuvering accelerations greater than
+3.5g/¥1.5g.
(5) On-aircraft arresting gear (e.g., tail
hooks and drag chutes) and specially
designed parts and components
therefor;
(6) Bomb racks, missile or rocket
launchers, missile rails, weapon pylons,
pylon-to-launcher adapters, unmanned
aerial vehicle (UAV) airborne launching
systems, external stores support systems
for ordnance or weapons, and specially
designed parts and components therefor
(MT if the bomb rack, missile launcher,
missile rail, weapon pylon, pylon-tolauncher adapter, UAV airborne
launching system, or external stores
support system is for an aircraft,
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excluding manned aircraft, or missile
that has a ‘‘range’’ equal to or greater
than 300 km);
(7) Damage or failure-adaptive flight
control systems, that do not consist
solely of redundant internal circuitry,
specially designed for aircraft controlled
in this category;
(8) Threat-adaptive autonomous flight
control systems, where a ‘‘threatadaptive autonomous flight control
system’’ is a flight control system that,
without input from the operator or pilot,
adjusts the aircraft control or flight path
to minimize risk caused by hostile
threats;
(9) Non-surface-based flight control
systems and effectors (e.g., thrust
vectoring from gas ports other than main
engine thrust vector);
(10) Radar altimeters with output
power management LPI (low probability
of intercept) or signal modulation (i.e.,
frequency hopping, chirping, direct
sequence-spectrum spreading) LPI
capabilities (MT if for an aircraft,
excluding manned aircraft, or missile
that has a ‘‘range’’ equal to or greater
than 300 km);
(11) Air-to-air refueling systems and
hover-in-flight refueling (HIFR) systems,
and specially designed parts and
components therefor;
(12) Unmanned aerial vehicle (UAV)
flight control systems and vehicle
management systems with swarming
capability (i.e., UAVs interact with each
other to avoid collisions and stay
together, or, if weaponized, coordinate
targeting) (MT if for an aircraft,
excluding manned aircraft, or missile
that has a ‘‘range’’ equal to or greater
than 300 km);
(13) [Reserved]
(14) Lift fans, clutches, and roll posts
for short take-off, vertical landing
(STOVL) aircraft and specially designed
parts and components for such lift fans
and roll posts;
(15) Integrated helmets incorporating
optical sights or slewing devices, which
include the ability to aim, launch, track,
or manage munitions (e.g., Helmet
Mounted Cueing Systems, Joint Helmet
Mounted Cueing Systems (JHMCS),
Helmet Mounted Displays, Display and
Sight Helmets (DASH)), and specially
designed parts, components,
accessories, and attachments therefor;
(16) Fire control computers, stores
management systems, armaments
control processors, and aircraft-weapon
interface units and computers (e.g.,
AGM–88 HARM Aircraft Launcher
Interface Computer (ALIC));
(17) Mission computers, vehicle
management computers, and integrated
core processers specially designed for
aircraft controlled in this category;
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(18) Drive systems, flight control
systems, and parts and components
therefor, specially designed to function
after impact of a 7.62mm or larger
projectile;
(19) Thrust reversers specially
designed to be deployed in flight for
aircraft controlled in this category;
* (20) Any part, component,
accessory, attachment, equipment, or
system that:
(i) Is classified;
(ii) Contains classified software
directly related to defense articles in
this subchapter or 600 series items
subject to the EAR; or
(iii) Is being developed using
classified information.
asabaliauskas on DSK3SPTVN1PROD with RULES
Note to paragraph (h)(20): 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;
(21)–(26) [Reserved]
(27) Variable speed gearboxes, where
a ‘‘variable speed gearbox’’ has the
ability to vary the gearbox output speed
by mechanical means within the
gearbox while the gearbox input speed
from the engine or other source is
constant, and is capable of varying
output speed by 20% or greater and
providing power to rotors, proprotors,
propellers, propfans, or liftfans; and
specially designed parts and
components therefor;
(28) Electrical power or thermal
management systems specially designed
for an engine controlled in Category XIX
and having any of the following:
(i) Electrical power generators that
provide greater than 300kW of electrical
power (per generator) with gravimetric
power densities exceeding 2kW/pound
(excluding the mass of the controller for
the purpose of calculating the
gravimetric power density);
(ii) Heat exchangers that exchange 60
kW/K-m3 or 1 kW/K of heat or greater
into the gas turbine engine flow path; or
(iii) Direct-cooling thermal electronic
package heat exchangers that transfer
20kW of heat or greater at 100W/cm2 or
greater.
(29) Any of the following equipment
if specially designed for a defense
article described in paragraph (h)(1):
(i) Scale test models;
(ii) Full scale iron bird ground rigs
used to test major aircraft systems; or
(iii) Jigs, locating fixtures, templates,
gauges, molds, dies, or caul plates.
(i) Technical data (see § 120.10 of this
subchapter) and defense services (see
§ 120.9 of this subchapter) directly
related to the defense articles described
in paragraphs (a) through (h) of this
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17:02 Nov 18, 2016
Jkt 241001
category and classified technical data
directly related to items controlled in
ECCNs 9A610, 9B610, 9C610, and
9D610 and defense services using
classified technical data. (See § 125.4 of
this subchapter for exemptions.) (MT for
technical data and defense services
related to articles designated as such.)
(j)–(w) [Reserved]
(x) Commodities, software, and
technology subject to the EAR (see
§ 120.42 of this subchapter) used in or
with defense articles controlled in this
category.
* (c) Gas turbine engines (including
technology demonstrators,
developmental engines, and variable
cycle engines) specially designed for
unmanned aerial vehicle systems
controlled in this subchapter, cruise
missiles, or target drones (MT if for an
engine used in an aircraft, excluding
manned aircraft, or missile that has a
‘‘range’’ equal to or greater than 300
km).
* (d) GE38, AGT1500, CTS800, MT7,
T55, HPW3000, GE3000, T408, and
T700 engines.
Note to paragraph (x): Use of this
paragraph is limited to license applications
for defense articles controlled in this category
where the purchase documentation includes
commodities, software, or technology subject
to the EAR (see § 123.1(b) of this subchapter).
Note: Parts, components, accessories, and
attachments in paragraphs (h)(3)–(5), (7),
(14), (17), or (19) are licensed by the
Department of Commerce when incorporated
in an aircraft subject to the EAR and
classified under ECCN 9A610. Replacement
systems, parts, components, accessories and
attachments are subject to the controls of the
ITAR.
Note to paragraph (d): Engines subject to
the control of this paragraph are licensed by
the Department of Commerce when
incorporated in an aircraft subject to the EAR
and controlled under ECCN 9A610. Such
engines are subject to the controls of the
ITAR in all other circumstances.
*
*
*
*
*
Category XIX—Gas Turbine Engines
and Associated Equipment
* (a) Turbofan and Turbojet engines
(including those that are technology
demonstrators, developmental engines,
or variable cycle engines) capable of
15,000 lbf (66.7 kN) of thrust or greater
that have any of the following:
(1) With or specially designed for
thrust augmentation (afterburner);
(2) Thrust or exhaust nozzle
vectoring;
(3) Parts or components controlled in
paragraph (f)(6) of this category;
(4) Specially designed for sustained
30 second inverted flight or negative g
maneuver; or
(5) Specially designed for high power
extraction (greater than 50 percent of
engine thrust at altitude) at altitudes
greater than 50,000 feet.
* (b) Turboshaft and Turboprop
engines (including those that are
technology demonstrators or
developmental engines) that have any of
the following:
(1) Capable of 2000 mechanical shp
(1491 kW) or greater and specially
designed with oil sump sealing when
the engine is in the vertical position; or
(2) Capable of a specific power of 225
shp/(lbm/sec) or greater and specially
designed for armament gas ingestion
and non-civil transient maneuvers,
where specific power is defined as
maximum takeoff shaft horsepower
(shp) divided by compressor inlet flow
(lbm/sec).
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* (e) Digital engine control systems
(e.g., Full Authority Digital Engine
Controls (FADEC) and Digital Electronic
Engine Controls (DEEC)) specially
designed for gas turbine engines
controlled in this category (MT if the
digital engine control system is for an
aircraft, excluding manned aircraft, or
missile that has a range equal to or
greater than 300 km).
Note to paragraph (e): Digital electronic
control systems autonomously control the
engine throughout its whole operating range
from demanded engine start until demanded
engine shut-down, in both normal and fault
conditions.
(f) Parts, components, accessories,
attachments, associated equipment, and
systems as follows:
(1) Parts, components, accessories,
and attachments specially designed for
the following U.S.-origin engines (and
military variants thereof): F101, F107,
F112, F118, F119, F120, F135, F136,
F414, F415, and J402;
Note to paragraph (f)(1): This paragraph
does not control parts, components,
accessories, and attachments that are
common to engines enumerated in paragraph
(a) through (d) of this category but not
identified in paragraph (f)(1), and those
identified in paragraph (f)(1). For example, a
part common to only the F110 and F136 is
not specially designed for purposes of this
paragraph. A part common to only the F119
and F135—two engine models identified in
paragraph (f)(1)—is specially designed for
purposes of this paragraph, unless one of the
other paragraphs is applicable under
§ 120.41(b).
* (2) Hot section components (i.e.,
combustion chambers and liners; high
pressure turbine blades, vanes, disks
and related cooled structure; cooled
intermediate pressure turbine blades,
vanes, disks and related cooled
structures; cooled low pressure turbine
blades, vanes, disks and related cooled
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than one, occurring across any section
of the bypass duct, and specially
designed parts, components,
accessories, and attachments therefor; or
(12) Any of the following equipment
if specially designed for a defense
article described in paragraph (f)(1): Jigs,
locating fixtures, templates, gauges,
molds, dies, caul plates, or bellmouths.
(g) Technical data (see § 120.10 of this
subchapter) and defense services (see
§ 120.9 of this subchapter) directly
related to the defense articles described
in paragraphs (a) through (f) of this
category and classified technical data
directly related to items controlled in
ECCNs 9A619, 9B619, 9C619, and
9D619 and defense services using the
classified technical data. (See § 125.4 of
this subchapter for exemptions.) (MT for
technical data and defense services
related to articles designated as such.)
(h)–(w) [Reserved]
(x) Commodities, software, and
technology subject to the EAR (see
§ 120.42 of this subchapter) used in or
with defense articles controlled in this
category.
Note to paragraph (f)(6): ‘‘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;
asabaliauskas on DSK3SPTVN1PROD with RULES
structures; cooled shaft-driving power
turbine blades, vanes, disks and related
cooled structures; cooled augmenters;
and cooled nozzles) specially designed
for gas turbine engines controlled in this
category;
(3) Uncooled turbine blades, vanes,
disks, and tip shrouds specially
designed for gas turbine engines
controlled in this category;
(4) Combustor cowls, diffusers,
domes, and shells specially designed for
gas turbine engines controlled in this
category;
(5) Engine monitoring systems (i.e.,
prognostics, diagnostics, and health)
specially designed for gas turbine
engines and components controlled in
this category;
* (6) Any part, component, accessory,
attachment, equipment, or system that:
(i) Is classified;
(ii) Contains classified software
directly related to defense articles in
this subchapter or 600 series items
subject to the EAR; or
(iii) Is being developed using
classified information.
Note to paragraph (x): Use of this
paragraph is limited to license applications
for defense articles controlled in this category
where the purchase documentation includes
commodities, software, or technology subject
to the EAR (see § 123.1(b) of this subchapter).
(7) Investment casting cores, core
dies, or wax pattern dies for parts or
components enumerated in paragraphs
(f)(1), (f)(2), or (f)(3) of this category;
(8) Pressure gain combustors specially
designed for engines controlled in this
category, and specially designed parts
and components therefor;
(9) Three-stream fan systems,
specially designed for gas turbine
engines controlled in this Category, that
allow the movement of airflow between
the streams to control fan pressure ratio
or bypass ratio (by means other than use
of fan corrected speed or the primary
nozzle area to change the fan pressure
ratio or bypass ratio), and specially
designed parts, components,
accessories, and attachments therefor;
(10) High pressure compressors,
specially designed for gas turbine
engines controlled in this Category, with
core-driven bypass streams that have a
pressure ratio greater than one,
occurring across any section of the
bypass duct, and specially designed
parts, components, accessories, and
attachments therefor;
(11) Intermediate compressors of a
three-spool compression system,
specially designed for gas turbine
engines controlled in this Category, with
an intermediate spool-driven bypass
stream that has a pressure ratio greater
VerDate Sep<11>2014
17:02 Nov 18, 2016
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Dated: November 14, 2016.
Thomas M. Countryman,
Acting Under Secretary, Arms Control and
International Security, Department of State.
[FR Doc. 2016–27775 Filed 11–18–16; 8:45 am]
BILLING CODE 4710–25–P
NATIONAL LABOR RELATIONS
BOARD
29 CFR Part 102
Rule Exempting an Amended System
of Records From Certain Provisions of
the Privacy Act
AGENCY:
National Labor Relations
Board.
ACTION:
Direct final rule.
The National Labor Relations
Board (NLRB) exempts an amended
system of records, NLRB–17, Personnel
Security Records, from certain
provisions of the Privacy Act of 1974, 5
U.S.C. 552a, pursuant to sections (k)(1),
(2), (3), (5), (6), and (7) of that Act.
DATES: This rule is effective January 20,
2017 without further action, unless
adverse comment is received by
December 21, 2016. If adverse comment
is received, the NLRB will publish a
timely withdrawal of the rule in the
Federal Register.
SUMMARY:
PO 00000
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83135
All persons who desire to
submit written comments for
consideration by the Agency regarding
the rule shall mail them to the Agency’s
Senior Agency Official for Privacy,
National Labor Relations Board, 1015
Half Street SE., Third Floor,
Washington, DC 20570–0001, or submit
them electronically to pac@nlrb.gov.
Comments may also be submitted
electronically through https://
www.regulations.gov, which contains a
copy of this rule and any submitted
comments.
FOR FURTHER INFORMATION CONTACT:
Prem Aburvasamy, Senior Agency
Official for Privacy, National Labor
Relations Board, 1015 Half Street SE.,
Third Floor, Washington, DC 20570–
0001, (855)-209–9394, pac@nlrb.gov.
SUPPLEMENTARY INFORMATION: Elsewhere
in today’s issue of the Federal Register,
the Agency is amending one of its
systems of records, NLRB–17, Personnel
Security Records, pursuant to the
Privacy Act of 1974.
Pursuant to subsections (k)(1), (2), (3),
(5), (6), and (7) of the Privacy Act, and
for the reasons set forth below, the
Board includes within Section 102.119,
additional paragraphs (o) and (p),
exempting portions of the amended
system of records (NLRB–17) from
subsections (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I), and (f) of the Privacy
Act.
Subsection (k)(1) of the Privacy Act
authorizes the head of an agency to
exempt a system of records from
subsections (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I), and (f) of the Privacy
Act (5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (f))
(hereinafter, ‘‘the applicable
subsections’’) if records are properly
classified pursuant to an Executive
Order, within the meaning of section
552(b)(1).
Subsection (k)(3) of the Privacy Act
authorizes the head of an agency to
exempt a system of records from the
applicable subsections where the
information is maintained in connection
with providing protective services to the
President of the United States or other
individuals pursuant to section 3056 of
title 18 of the U.S. Code.
Subsections (k)(2), (5), and (7) of the
Privacy Act, in combination, authorize
the head of an agency to exempt a
system of records from the applicable
subsections if records are created or
maintained for the purpose of
determining suitability, eligibility,
qualifications, or potential for
promotion for Federal civilian
employment, military service, Federal
contracts, or access to classified
ADDRESSES:
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]]>Agencies
[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Rules and Regulations]
[Pages 83126-83135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27775]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 121
RIN 1400-AD89
[Public Notice: 9604]
Amendment to the International Traffic in Arms Regulations:
Revision of U.S. Munitions List Categories VIII and XIX
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: As part of the President's Export Control Reform (ECR)
initiative, the Department of State amends the International Traffic in
Arms Regulations (ITAR) to revise Categories
[[Page 83127]]
VIII (aircraft and related articles) and XIX (gas turbine engines and
associated equipment) of the U.S. Munitions List (USML) to describe
more precisely the articles warranting control on the USML. The
revisions contained in this rule are part of the Department of State's
retrospective plan under E.O. 13563.
DATES: This final rule is effective on December 31, 2016.
FOR FURTHER INFORMATION CONTACT: Mr. C. Edward Peartree, Director,
Office of Defense Trade Controls Policy, Department of State, telephone
(202) 663-2792; email DDTCPublicComments@state.gov. ATTN: ITAR
Amendment--USML Categories VIII and XIX.
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.
All references to the USML in this rule are to the list of defense
articles controlled for the purpose of export or temporary import
pursuant to the ITAR, and not to the defense articles on the USML that
are controlled by the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) for the purpose of permanent import under its
regulations. See 27 CFR part 447. Pursuant to section 38(a)(1) of the
Arms Export Control Act (AECA), all defense articles controlled for
export or import are part of the USML under the AECA. 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 does not affect the list
of defense articles controlled on the USMIL.
Revision of Category VIII
This final rule revises USML Category VIII, covering aircraft and
related articles. The revisions are undertaken in order to ensure that
the category, which was last revised in 2013, is clear, does not
inadvertently control items in normal commercial use, accounts for
technological developments, and properly implements the national
security and foreign policy objectives of the ECR initiative. The
Department published a proposed rule for these revisions, as well as
the revisions to Category XIX described below, on February 9, 2016 (81
FR 6797).
Paragraph (a) is revised to clarify that the controls for all
paragraphs are applicable ``whether manned, unmanned, remotely piloted,
or optionally piloted,'' by modifying paragraph (a)(5) to clarify the
design feature meriting USML control, and by deleting paragraph (a)(6)
and placing it into reserve, because the relevant control is subsumed
by revised paragraph (a)(5). Paragraphs (a)(7), (a)(8), and (a)(9) are
modified to clarify the respective design features meriting USML
control. The text of paragraphs (a)(11) and (a)(13) is deleted and the
paragraphs are placed into reserve. Paragraph (a)(14) is modified to
exclude L-100 and LM-100J aircraft from the scope of control. Note 2 to
paragraph (a) is revised to clarify the definition of the described
term.
Paragraph (d) is modified to delete the ``ship-based'' control
parameter and to clarify the intent and scope of the control.
Paragraph (e) reflects having been placed into reserve in the final
rule published by the Department on October 12, 2016 (81 FR 70340).
Notes 1 and 3 to paragraph (f) are modified to incorporate
clarifying language.
Several changes are made to paragraph (h). Paragraph (h)(1) is
revised to update the list of subject platforms, and to delete the
reference to ``equipment'' because the specific types of equipment that
warrant ITAR control are now enumerated separately in paragraph
(h)(29). The Note to paragraph (h)(1) is modified to incorporate
technical corrections and to enhance the clarity of the note. Paragraph
(h)(2) is revised to focus the scope of control on certain rotorcraft
gearboxes meeting specific technical parameters, and a note to
paragraph (h)(2) is added to clarify certain terminology used therein.
Paragraph (h)(4)(ii) is modified to clarify the scope of control.
Paragraph (h)(5) is updated to add the words ``On-aircraft'' in order
to clarify the scope of control, while paragraph (h)(6) is updated to
add the words ``or rocket'' after ``missile.'' Paragraph (h)(7) is
modified to clarify the scope of control. Paragraph (h)(8) is modified
to clarify the meaning of ``threat-adaptive autonomous flight control
systems.'' Paragraph (h)(10) is modified to enhance the clarity of the
control text. Paragraph (h)(13) is deleted and placed into reserve.
Paragraph (h)(16) is modified to incorporate a technical correction.
Paragraph (h)(18) is modified to control parts and components that are
specially designed to meet the same performance criteria as the systems
identified in the paragraph. Paragraph (h)(19) is modified to remove
reference to ECCN 9A610.
Current paragraphs (h)(23) through (h)(26) are placed into reserve,
with new controls added as paragraphs (h)(27) through (h)(29). Finally,
the note to Category VIII is modified to update the paragraphs of
paragraph (h) that are affected, as well as to reflect paragraph (e)
having been placed into reserve.
A commenting party expressed concern that the objective of the USML
review process, first announced in a Notice of Inquiry on March 2, 2015
(80 FR 11314), is to reconsider or reverse the effect of the ECR
initiative. The Department clarifies that the purpose of the USML
review process is to review and update the subject USML categories, as
needed, to account for technological developments, practical
application issues identified by exporters and reexporters, and changes
in the military and commercial applications of items affected by the
list. The ``positive list'' structure adopted in each of the revised
USML categories requires an ongoing process of review in order to
ensure that the list is current and reflective of the modern state of
the subject technology. This ongoing effort has been anticipated since
the start of the ECR initiative and is not intended to reconsider or
reverse the effort.
A commenter requested clarification as to why paragraph (h)(2) had
been removed from the Note to Category VIII. Paragraph (h)(2) has been
revised significantly to control only a class of rotorcraft gearboxes
for which there is no current civil application. Given the reduced
scope of control in the revised paragraph (h)(2), inclusion in the Note
to Category VIII is no longer appropriate.
Three commenting parties recommended that paragraph (a)(5) be
deleted, given the proposed reference to ``unmanned'' aircraft in
paragraph (a), while an additional commenter suggested that the
proposed paragraph (a)(5) was less clear than the existing version of
the same paragraph. In light of these comments, the Department modified
the paragraph to control only those unmanned aerial vehicles that are
[[Page 83128]]
specially designed to incorporate a defense article, in order to focus
the paragraph on the intended scope of control. The Department
disagrees with the commenters recommending deletion of the paragraph,
as there is continuing oversight utility in maintaining a clear,
enumerated control for unmanned aerial vehicles that are specially
designed to incorporate a defense article, particularly in light of the
unique considerations for these aircraft as set forth in the
Department's policy on unmanned aerial systems.
Two commenters suggested that the proposed revisions to paragraph
(a)(7) were less clear than the existing version of the same paragraph,
and could potentially capture an overly broad scope of aircraft with
intelligence, surveillance, and reconnaissance (ISR) capabilities where
such aircraft incorporate a defense article. The Department agreed with
these commenters and revised the paragraph to control only those
aircraft that are specially designed to incorporate a defense article
for the purpose of performing an intelligence, surveillance, and
reconnaissance function, in order to better focus the scope of control
and exclude certain aircraft that merely incorporate a defense article.
One commenter expressed concern that proposed paragraph (a)(8)
would control technical data for electronic warfare or command,
control, and communication aircraft that simply incorporated a defense
article, while another party requested clarification of these terms as
well as the significant military equipment (SME) designation for this
paragraph. The Department notes that command, control, and
communication systems are currently designated as SME in USML Category
XI, so analogous treatment is appropriate in this paragraph. While the
Department has not defined the referenced terms, as there were no
examples provided of demonstrated uncertainty in the regulated
community, the scope of the paragraph has been revised to control only
those referenced aircraft types that are specially designed to
incorporate a defense article for the purpose of performing a
referenced function.
A commenting party recommended the replacement of each instance of
the words ``capable of'' with ``equipped to'' or ``designed for,'' as
appropriate in the context of the paragraph at issue. The Department
reviewed each paragraph in which these words appeared and made the
appropriate revisions where the paragraph did not otherwise provide
technical parameters or performance criteria that sufficiently
constrained and identified the class of articles subject to control.
Three commenters suggested that paragraph (a)(14) be revised to
limit the scope of control to aircraft with uniquely military
capabilities, to the exclusion of aircraft platforms such as the L-100
and LM-100J. One commenter asserted that the systems and functions that
make the C-130J a sophisticated military platform are removed on the
LM-100J, and that militarization of the latter platform would be very
difficult. In response to these comments, the Department revised
paragraph (a)(14) to exclude the L-100 and LM-100J aircraft.
A commenting party requested clarification regarding the
classification of parts and components that are not enumerated or
otherwise described on the USML, and are common to the C-130 and the L-
100 aircraft. As with all parts and components classification concerns,
the commenter is advised to follow the standard order of review
guidance provided on the DDTC Web site (see https://pmddtc.state.gov/faqs/ecr.html#b). Where an item is described in multiple entries, an
enumerated entry takes precedence over an entry controlling the item by
virtue of a specially designed catch-all. The exception to this rule is
where a SME entry is involved. In all situations, a SME entry will take
precedence over a non-SME entry. If, through the order of review, one
determines a particular item is not specifically enumerated in the
USML, it may still be controlled by virtue of its parts and components,
which are caught via a catch-all. For example, a part or component of
an airborne radar system specially designed for the F-35 may not be
enumerated or captured in USML Category XI but will be controlled under
the specially designed catch-all of Category VIII(h)(1). If the article
does not appear to fall under any USML paragraph or paragraph, consult
the EAR to complete the classification inquiry.
A commenter recommended the deletion of paragraph (a)(15)(ii),
based on the observation that paragraphs (a)(1) through (a)(14) do not
specify whether the subject aircraft is of U.S. or foreign origin. The
Department notes that paragraph (a)(15)(ii) follows paragraph
(a)(15)(i), which captures aircraft not otherwise enumerated in
paragraph (a) but bearing any enumerated military designation. Since
foreign-origin aircraft would not bear a U.S. military designation,
paragraph (a)(15)(ii) exists to capture the foreign equivalents of the
U.S.-origin aircraft controlled by paragraph (a)(15)(i).
One commenting party recommended a revision of paragraph (d) to
limit its scope to launching and recovery equipment for aircraft
controlled in paragraph (a) that meet a minimum weight threshold, so as
to exclude small UAVs. The Department disagreed with this
recommendation, noting that the paragraph controls only launching and
recovery equipment that is specially designed to allow a subject
aircraft to land on a vessel described in Category VI(a)-(c). This
language controls a sufficiently narrow class of aircraft and
adequately excludes many small UAV platforms.
A commenter expressed concern regarding the removal of the word
``equipment'' from paragraph (h)(1), as it potentially confuses the
jurisdiction of such equipment. To clarify the scope of controlled
equipment and avoid a perception that equipment designed for aircraft
enumerated in paragraph (h)(1) is per se controlled in the same
paragraph, the Department created proposed paragraph (h)(30), which
appears in this final rule as paragraph (h)(29), to specify the
specific types of equipment that warrant USML control.
A commenting party recommended the exclusion from paragraph (h)(1)
of those parts identified in ECCNs 9A610.y or 9A619.y. The Department
disagreed with this recommendation. The structure of CCL controls is
distinguishable from those in the USML, with the CCL utilizing
``reasons for control'' and country licensing policies that are not
available under the ITAR or AECA. As such, provisions from the CCL
cannot easily be adopted for the purposes of the USML. Given the unique
policy considerations applicable to the enumerated aircraft in
paragraph (h)(1) and their low observable/counter low observable
capabilities, the Department declines to exclude classes of parts and
components for these highly sensitive platforms.
One commenter recommended that paragraph (h)(2) be revised to
control only those rotorcraft gearboxes that are qualified to a
particular military standard. The Department disagreed with this
comment, because military standards are not developed and published to
advance export control-related objectives and may be revised frequently
for reasons unrelated to export controls, which may additionally reduce
the clarity of the USML through successive iterations of revisions to
these standards.
Two commenters asserted that individual performance criteria
specific in paragraph (h)(2) are not uniquely military in nature. The
Department notes that both criteria are required for
[[Page 83129]]
control, and it is the combination of the two specified criteria that
makes the controlled article militarily significant. No examples were
provided of commercial items capable of meeting both performance
criteria.
A commenter suggested that tail boom folding systems controlled
under paragraph (h)(3) could be useful in civil applications to
optimize the use of space. The Department did not revise the control
because the commenter did not provide an example of a current civil
application for the articles controlled in this paragraph.
A commenter recommended that paragraph (h)(5) be reviewed in
concert with ECCN 9A610.e to ensure that the two entries did not
overlap. The Department reviewed the entries and made no change to the
paragraph, as it is sufficiently limited in scope to on-aircraft
arresting gear and excludes arresting gear used on the ground.
One commenting party recommended that paragraph (h)(6) be revised
to control ``rocket launchers'' in addition to ``missile launchers,''
and further recommended criteria to exclude from control certain
airborne UAV launching capabilities. The Department agreed with the
addition of ``rocket launchers'' and revised the paragraph accordingly.
However, the Department disagreed with the recommended airborne
launching criteria, as the ability to deploy a UAV from an aircraft in
flight is a current military capability.
A commenting party suggested that the Department had not offered a
sufficient rationale to move to the USML specially designed parts and
components for the systems controlled in paragraph (h)(7). The
Department agreed with this comment and deleted the proposed addition.
The disposition of the relevant parts and components will be addressed
in the Department of Commerce's companion rule.
A commenting party recommended that paragraph (h)(8) be merged with
paragraph (h)(12), in order to create a single paragraph for flight
control systems that excludes commercial UAV ``sense-and-avoid''
capabilities. The Department observes that the ability of the subject
UAVs to ``avoid collisions'' is only one aspect of the control
parameter, which also requires the capability to ``stay together'' by
virtue of the subject flight control system. No example has been
presented of a commercial UAV flight control system that provides the
capability for multiple UAVs to both ``avoid collisions'' and ``stay
together.'' Accordingly, the Department did not revise the paragraph.
One commenter suggested that paragraph (h)(10) include a note,
similar to the Note to Category XI(a)(3), indicating that the paragraph
does not control radio altimeter equipment conforming to Federal
Aviation Administration TSO-C87. The Department did not add this note
to paragraph (h)(10), because commercial altimeters conforming to this
standard would not possess either of the low probability of intercept
capabilities described in the paragraph. Since current commercial
altimeters cannot meet the criteria of paragraph (h)(10), it is not
necessary to include a note that would impact only these commercial
items.
Three commenting parties suggested that the Department had not
offered a sufficient rationale to move to the USML specially designed
parts and components for the systems controlled in paragraph (h)(18).
The Department partially agreed with this comment and revised the
proposed addition. The only parts and components added to paragraph
(h)(18) are those that are specially designed to function after impact
of a 7.62 mm or larger projectile. This is the same criterion that
applies to the drive systems and flight control systems subject to
control under this paragraph; thus, this paragraph unifies the articles
subject to control under a common parameter of military criticality.
Two commenters recommended revisions to enhance the clarity of
paragraph (h)(20). This paragraph pertains to classified defense
articles and classified information, and replicates the structure of
similar entries in other revised USML categories that are outside of
the scope of this rule. To maintain conformity with those entries, the
Department has noted these commenters' recommendations and will
reconsider them in the context of a later review of all USML entries
relating to classified defense articles and classified information.
Four commenting parties asserted that the proposed paragraph
(h)(27) did not control articles providing a critical military
advantage, would control variable speed gearboxes in commercial use, or
would otherwise limit commercial development utilizing such technology.
The Department notes that former paragraph (h)(2), prior to the
revisions set forth in this rule, controlled ``variable speed
gearboxes'' generally. Accordingly, the proposed paragraph (h)(27)
constituted a reduction in the range of variable speed gearboxes
subject to the ITAR to those employed in next-generation military
technology. In light of the comments received, the Department has
further refined paragraph (h)(27) to clarify the meaning of ``variable
speed gearbox,'' as well as to articulate the varying output speed
currently in use in military applications.
A commenting party observed that the proposed paragraph (h)(28)
would capture dual-use electrical power or thermal management systems
used with Category XIX engines. The Department agreed with this comment
and revised the paragraph to control electrical power or thermal
management systems specially designed for an engine controlled in
Category XIX.
A commenter requested clarification that the use of the term
``pound'' in paragraph (h)(28)(i) refers only to the generator and not
the controller. The Department updated the paragraph to clarify that
the referenced threshold excludes the mass of the controller for the
purpose of calculating the gravimetric power density. The commenter
additionally requested clarification as to whether the threshold
reflects the total heat exchanger capacity or a single heat exchanger.
The Department updated the paragraph to address the concerns expressed
in the comment.
The same commenter asserted that paragraph (h)(28)(iii) lacked
clarity and should be deleted. The Department agreed with this comment
and deleted the paragraph. Consequentially, proposed paragraph
(h)(28)(iv) now appears in this final rule as paragraph (h)(28)(iii).
Additionally, the commenter requested clarification regarding the
conditions for measuring the threshold in proposed paragraph
(h)(28)(iv). The Department did not insert additional criteria
regarding measurement conditions because the paragraph as drafted
describes the threshold for ITAR control at a sufficient level of
granularity.
A commenter proposed revisions to proposed paragraph (h)(29) to
better articulate the scope of software to be controlled. A second
commenter recommended deletion of the paragraph, since algorithms and
software are already controlled as technical data. The Department
agreed with the second commenter and deleted the proposed paragraph,
having determined that the subject software is already controlled under
paragraph (i).
Three commenters suggested that proposed paragraph (h)(30) would
result in expense to industry with questionable regulatory benefit, and
would require the re-review of certain parts and components to
determine whether classification under the new paragraph is
appropriate.
[[Page 83130]]
The Department notes that Category VIII was among the first two
categories to undergo revision pursuant to the ECR initiative, a
primary goal of which was to create a ``positive list'' that would
inevitably require periodic revisions to keep reflective of the current
state of technology. The experience of industry with the earliest
revised categories, as well as the U.S. government in enforcing the
regulations, has identified areas in which adjustments to Categories
VIII and XIX were necessary to best articulate the articles subject to
control.
The former treatment of equipment in paragraph (h)(1) potentially
created the impression that equipment for enumerated aircraft was
broadly controlled under that paragraph. For additional clarity, a
newly-created paragraph, now found at (h)(29), enumerates certain types
of equipment that merit ITAR control. While the Department's review
considered in all cases the potential impact to industry in revising
aspects of these categories, the primary standard of review was the
``critical military or intelligence advantage'' standard set forth in
ITAR Sec. 120.3(b). As a general principle, where migration of items
from the CCL to the USML was considered, the Department sought first to
accommodate the item in a revised ECCN. The articles that newly appear
on or have returned to the USML in this rule are those that constitute
or are specially designed for next-generation technology and thus
satisfy ITAR Sec. 120.3. In response to comments received, the
Department revised the paragraph to better articulate the specific
types of equipment that meet this standard.
Finally, a commenter recommended replacing the words ``technical
data'' in paragraph (x) with ``technology,'' to align the text with
other revised categories and utilize the appropriate EAR terminology.
The Department agreed and made the recommended change.
Revision of Category XIX
This final rule revises USML Category XIX, covering gas turbine
engines. As with USML Category VIII, the revisions are undertaken in
order to ensure that the category is clear, does not inadvertently
control items in normal commercial use, accounts for technological
developments, and properly implements the national security and foreign
policy objectives of the ECR initiative.
Paragraph (a) is modified to clarify the scope of controlled
engines and to incorporate technical corrections. Paragraph (b)(1) is
revised to update the performance criteria meriting control, while
paragraph (b)(2) is revised to clarify the specific power threshold
specified therein.
Paragraph (c) is modified to incorporate conforming and technical
changes and to make clear that the paragraph applies only to gas
turbine engines, while paragraph (d) is modified to update the list of
subject engines. The Note to paragraph (e) is modified to incorporate a
conforming change.
Several changes are included within paragraph (f). Paragraph (f)(1)
is modified to incorporate technical corrections and to update the list
of subject engines. Paragraph (f)(2) introduces additional text to
clarify the scope of controlled hot section components, and to
reorganize the text according to the nature of the articles. New
controls are included in paragraphs (f)(7) through (f)(12).
A commenter asserted that the PT6C-67A, a commercial model, would
exceed the threshold proposed in paragraph (b)(1). In response to this
comment, the Department increased the relevant threshold to 2000
mechanical shp (1491 kW).
Three commenting parties recommended clarification regarding the
specific power threshold set forth in paragraph (b)(2). The Department
agreed with these commenters and revised the relevant language to
include a unit of measurement for the specific power threshold and
maximum takeoff shaft horsepower. The Department further notes that
given the additional modifications to paragraph (b)(2) described below,
and the requirement that an engine must meet all of the criteria of
paragraph (b)(2) to be subject to ITAR control, the revised paragraph
should not pose a risk of capturing next-generation commercial engine
models.
Two commenters asserted that the term ``armament gas'' in paragraph
(b)(2) is unclear and requested a definition. The Department disagreed
with the commenters because the term can be interpreted based on the
plain meaning of the words ``armament gas ingestion''--that is, the
term describes an engine that is specially designed to ingest gas
released from armaments.
Three commenting parties requested clarification regarding the term
``transient maneuvers'' in paragraph (b)(2), and requested revision to
capture only maneuvers that are unique to military scenarios. The
Department agreed with these comments and revised the parameter to
capture non-civil transient maneuvers.
Three commenting parties suggested that the phrase ``controlled in
this category'' in paragraph (c) be revised to read ``controlled in
Category VIII.'' The Department partially agreed and revised the phrase
to read ``controlled in this subchapter.''
A commenter recommended the removal of the GE38 engine from
paragraph (d), indicating that it is a marketing name that was used
during the development of the T408 and will not be used in production.
The Department agrees with this observation but also notes that GE38
models remain in use in test aircraft. Accordingly, the GE38 reference
will remain in paragraph (d) while such engines are still in use.
One commenter recommended the removal of the MT7 engine from
paragraph (d), arguing that it is a derivative of the AE1107C and that
oil sump sealing is being designed out of the model. While the comment
appears to describe a design modification that has not yet occurred,
the Department further notes that the subject engine is unique to a
destroyer platform. For these reasons, the MT7 was retained in
paragraph (d).
The Department has removed the TF60 engine from paragraph (d) in
response to a public comment that recommended its removal.
A commenter questioned whether the word ``systems'' in paragraph
(e) should be interpreted to also indicate controls of parts and
components thereof. The Department confirms that paragraph (e) is
limited to specified systems and includes no reference to ``parts and
components thereof''; accordingly, parts and components thereof are not
controlled under paragraph (e).
Two comments asserted, with respect to paragraph (f) as well as
several paragraphs thereof, that materials should not be controlled in
this category because Category XIII is intended to contain all
materials entries. The Department disagreed in part with these
comments. Where the materials at issue pertain only to a particular
class of defense articles that are controlled in a single subcategory--
as with these materials relevant only to gas turbine engines controlled
in Category XIX--there is little utility in requiring the reader to
review multiple USML categories for articles of potential relevance.
Were these materials of broad applicability for a variety of defense
articles controlled under more than one USML category, the Department
would locate the relevant USML entries in Category XIII. However, in
this case, ECCN 9C619 remains the appropriate category for the
materials described in the proposed rule. The companion rule the
Commerce Department has published explains the new licensing policies
pertaining to such materials. No
[[Page 83131]]
new materials controls are added to Category XIX.
Two commenting parties recommended the exclusion from paragraph
(f)(1) of those parts identified in ECCNs 9A610.y or 9A619.y. The
Department disagreed with this comment for reasons similar to those
explained above in the context of a similar comment on Category
VIII(h)(1), regarding the different structures and objectives of CCL
ECCNs as well as the national security interest in retaining control
over the parts and components of engines with evolving or next-
generation applications.
One commenter expressed concern regarding the removal of the word
``equipment'' from paragraph (f)(1). As with Category VIII(h)(1), the
word was removed to avoid the impression that all equipment, including
production equipment, relevant to the enumerated aircraft was subject
to control under this paragraph. The Department has created a new
paragraph (f)(12), which appeared in the proposed rule as proposed
paragraph (f)(16), to enumerate certain types of equipment that merit
control.
Three commenters requested clarification of the word ``actively''
in paragraph (f)(2), and requested the addition of a definition. The
Department agreed that the term, which first appeared in the proposed
rule, did not improve the clarity of the paragraph and deleted each
instance of the term.
A commenting party recommended the reorganization of paragraph
(f)(2) to refer to ``intermediate pressure turbine blades'' after
``high pressure turbine blades'' and before ``low pressure turbine
blades.'' The Department agreed and revised the paragraph accordingly.
A commenting party expressed difficulty interpreting the meaning of
``engine monitoring systems'' in paragraph (f)(5) and suggested that a
definition of the term might be beneficial. The Department disagreed
with the comment because the term can be sufficiently understood
without a new definition, given the existing definition of ``system''
set forth in ITAR Sec. 120.45(g).
Four parties commented generally on the new paragraphs that
appeared in the proposed rule as (f)(7) through (f)(16), arguing that
USML control of the subject articles will result in expense to industry
by requiring reclassification of articles previously subject to the
EAR. As with Category VIII, described above, Category XIX was among the
first two categories to undergo revision pursuant to the ECR
initiative, a primary goal of which was to create a ``positive list''
that would inevitably require periodic revisions to keep reflective of
the current state of technology. The experience of industry with the
earliest revised categories, as well as the U.S. government in
enforcing the regulations, has identified areas in which adjustments to
Categories VIII and XIX were necessary to best articulate the articles
subject to control.
While the Department's review considered in all cases the potential
impact to industry in revising aspects of these categories, the primary
standard of review was the ``critical military or intelligence
advantage'' standard set forth in ITAR Sec. 120.3(b). As a general
principle, where a migration of items from the CCL to the USML was
considered, the Department sought first to accommodate the item in a
revised ECCN. The articles that nevertheless appear in new USML entries
in this rule constitute or are specially designed for next-generation
technology and thus satisfy ITAR Sec. 120.3.
The Department disagrees with the commenters' characterization of
proposed paragraph (f)(16), now appearing as paragraph (f)(12), which
controls certain enumerated types of equipment. Since ``equipment'' was
referenced generally in the previous iteration of paragraph (f), the
objective of this addition is to better clarify the equipment subject
to ITAR control. With respect to the remaining proposed paragraphs, the
Department applied this standard and determined that proposed
paragraphs (f)(7), (f)(13), (f)(14), and (f)(15) were not necessary for
inclusion in the USML. Accordingly, these proposed paragraphs have been
deleted. The considerations that prompted the addition of proposed
paragraph (f)(7) are adequately addressed through paragraph (g), while
the remaining deleted proposed entries will be addressed by the
Department of Commerce in ECCN 9C619.
The Department retained proposed paragraph (f)(8), now appearing in
the category as paragraph (f)(7), because the referenced equipment
allows for the production of gas turbine engines and parts and
components that offer a critical military advantage.
Among the retained new paragraphs and in response to public
comments, the Department revised proposed paragraphs (f)(9) through
(f)(12)--now appearing as paragraphs (f)(8) through (f)(11)--to
reference only systems specially designed for gas turbine engines
controlled in Category XIX, in order to avoid a chilling effect on
potential commercial applications of these technologies.
The Department revised proposed paragraph (f)(16), now appearing in
this final rule as paragraph (f)(12), to enumerate certain types of
equipment that is specially designed for a defense article described in
paragraph (f)(1).
Finally, a commenter recommended replacing the words ``technical
data'' in paragraph (x) with ``technology,'' to align the text with
other revised categories and utilize the appropriate EAR terminology.
The Department agreed and made the recommended change.
Regulatory Findings
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
a proposed rule (81 FR 6797) 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 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 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 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 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 amendment
[[Page 83132]]
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 amendment.
Executive Order 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
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). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget (OMB).
Executive Order 12988
The Department of State has reviewed the 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
Following is a listing of approved collections that will be
affected by revision of the U.S. Munitions List (USML) and the Commerce
Control List pursuant to the President's Export Control Reform (ECR)
initiative. This rule continues the implementation of ECR. The list of
collections pertains to revision of the USML in its entirety, not only
to the categories published in this rule. The Department is not
proposing or making changes to these collections in this rule. The
information collections impacted by the ECR initiative are as follows:
(1) Statement of Registration, DS-2032, OMB No. 1405-0002.
(2) Application/License for Permanent Export of Unclassified
Defense Articles and Related Unclassified Technical Data, DSP-5, OMB
No. 1405-0003.
(3) Application/License for Temporary Import of Unclassified
Defense Articles, DSP-61, OMB No. 1405-0013.
(4) Application/License for Temporary Export of Unclassified
Defense Articles, DSP-73, OMB No. 1405-0023.
(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.
(6) Request for Approval of Manufacturing License Agreements,
Technical Assistance Agreements, and Other Agreements, DSP-5, OMB No.
1405-0093.
(7) Maintenance of Records by Registrants, OMB No. 1405-0111.
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 amended as follows:
PART 121--THE UNITED STATES MUNITIONS LIST
0
1. The authority citation for part 121 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105-261, 112
Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
0
2. Section 121.1 is amended by revising U.S. Munitions List Categories
VIII and XIX to read as follows:
Sec. 121.1 The United States Munitions List.
* * * * *
Category VIII--Aircraft and Related Articles
(a) Aircraft, whether manned, unmanned, remotely piloted, or
optionally piloted, as follows (MT if the aircraft, excluding manned
aircraft, has a range equal to or greater than 300 km):
* (1) Bombers;
* (2) Fighters, fighter bombers, and fixed-wing attack aircraft;
* (3) Turbofan- or turbojet-powered trainers used to train pilots
for fighter, attack, or bomber aircraft;
* (4) Attack helicopters;
* (5) Unmanned aerial vehicles (UAVs) specially designed to
incorporate a defense article;
* (6) [Reserved]
* (7) Aircraft specially designed to incorporate a defense article
for the purpose of performing an intelligence, surveillance, and
reconnaissance function;
* (8) Aircraft specially designed to incorporate a defense article
for the purpose of performing an electronic warfare function; airborne
warning and control aircraft; or aircraft specially designed to
incorporate a defense article for the purpose of performing a command,
control, and communications function;
(9) Aircraft specially designed to incorporate a defense article
for the purpose of performing an air refueling function;
(10) Target drones;
(11) [Reserved]
(12) Aircraft capable of being refueled in-flight including hover-
in-flight refueling (HIFR);
(13) [Reserved]
(14) Aircraft with a roll-on/roll-off ramp, capable of airlifting
payloads over 35,000 lbs. to ranges over 2,000 nm without being
refueled in-flight, and landing onto short or unimproved airfields,
other than L-100 and LM-100J aircraft;
* (15) Aircraft not enumerated in paragraphs (a)(1) through (a)(14)
as follows:
(i) U.S.-origin aircraft that bear an original military designation
of A, B, E, F, K, M, P, R, or S; or
(ii) Foreign-origin aircraft specially designed to provide
functions equivalent to those of the aircraft listed in paragraph
(a)(15)(i) of this category; or
(16) Aircraft that are armed or are specially designed to be used
as a platform to deliver munitions or otherwise destroy targets (e.g.,
firing lasers, launching rockets, firing missiles, dropping bombs, or
strafing);
Note 1 to paragraph (a): Aircraft specially designed for
military applications that are not identified in paragraph (a) of
this section are subject to the EAR and classified as ECCN 9A610,
including any model of unarmed military aircraft manufactured prior
to 1956, regardless of origin or designation, and unmodified since
manufacture. Aircraft with modifications made to incorporate safety
of flight features or other FAA or NTSB modifications such as
transponders and air data recorders are considered ``unmodified''
for the purposes of this paragraph.
Note 2 to paragraph (a): ``Range'' is the maximum distance that
the specified aircraft system is capable of traveling in the mode of
stable flight as measured by the projection of its trajectory over
the surface of the Earth. The maximum capability based on the design
characteristics of the system, when fully loaded with fuel or
propellant, will be taken into consideration in determining range.
The range for aircraft systems will be determined independently of
any external factors such as operational restrictions, limitations
imposed
[[Page 83133]]
by telemetry, data links, or other external constraints. For
aircraft systems, the range will be determined for a one-way
distance using the most fuel-efficient flight profile (e.g., cruise
speed and altitude), assuming International Civil Aviation
Organization (ICAO) standard atmosphere with zero wind, but with no
fuel reserve.
(b)-(c) [Reserved]
(d) Launching and recovery equipment specially designed to allow an
aircraft described in paragraph (a) of this category to take off or
land on a vessel described in Category VI paragraphs (a) through (c)
(MT if the launching and recovery equipment is for an aircraft,
excluding manned aircraft, that has a range equal to or greater than
300 km).
Note to paragraph (d): For the definition of ``range,'' see note
to paragraph (a) of this category.
(e) [Reserved]
(f) Developmental aircraft funded by the Department of Defense via
contract or other funding authorization, and specially designed parts,
components, accessories, and attachments therefor.
Note 1 to paragraph (f): This paragraph does not control
aircraft and specially designed parts, components, accessories, and
attachments therefor (a) in production; (b) determined to be subject
to the EAR via a commodity jurisdiction determination (see Sec.
120.4 of this subchapter), or (c) identified in the relevant
Department of Defense contract or other funding authorization as
being developed for both civil and military applications.
Note 2 to paragraph (f): Note 1 does not apply to defense
articles enumerated on the U.S. Munitions List, whether in
production or development.
Note 3 to paragraph (f): This paragraph is applicable only to
those contracts, other funding authorizations, or modifications
initiating development of a new defense article that are dated April
16, 2014, or later.
(g) [Reserved]
(h) Parts, components, accessories, attachments, associated
equipment and systems, as follows:
(1) Parts, components, accessories, and attachments specially
designed for the following U.S.-origin aircraft: The B-1B, B-2, B-21,
F-15SE, F/A-18 E/F, EA-18G, F-22, F-35, and future variants thereof; or
the F-117 or U.S. Government technology demonstrators. Parts,
components, accessories, and attachments of the F-15SE and F/A-18 E/F
that are common to earlier models of these aircraft, unless listed in
paragraph (h) of this category, are subject to the EAR;
Note to paragraph (h)(1): This paragraph does not control parts,
components, accessories, and attachments that are common to aircraft
described in paragraph (a) of this category but not identified in
paragraph (h)(1), and those identified in paragraph (h)(1). For
example, when applying Sec. 120.41(b)(3), a part common to only the
F-16 and F-35 is not specially designed for purposes of this
paragraph. A part common to only the F-22 and F-35--two aircraft
models identified in paragraph (h)(1)--is specially designed for
purposes of this paragraph, unless one of the other paragraphs is
applicable under Sec. 120.41(b) of this subchapter.
(2) Rotorcraft gearboxes with internal pitch line velocities
exceeding 20,000 feet per minute and able to operate 30 minutes with
loss of lubrication without an emergency or auxiliary lubrication
system, and specially designed parts and components therefor;
Note to paragraph (h)(2): Loss of lubrication means a situation
where oil/lubrication is mostly or completely lost from a
transmission/gearbox such that only a residual coating remains due
to the lubrication system failure.
(3) Tail boom folding systems, stabilator folding systems or
automatic rotor blade folding systems, and specially designed parts and
components therefor;
(4) Wing folding systems, and specially designed parts and
components therefor, for:
(i) Aircraft powered by power plants controlled under USML Category
IV(d); or
(ii) Aircraft with any of the following characteristics and powered
by gas turbine engines:
(A) The portion of the wing outboard of the wing fold is required
for sustained flight;
(B) Fuel can be stored outboard of the wing fold;
(C) Control surfaces are outboard of the wing fold;
(D) Hard points are outboard of the wing fold;
(E) Hard points inboard of the wing fold allow for in-flight
ejection; or
(F) The aircraft is designed to withstand maximum vertical
maneuvering accelerations greater than +3.5g/-1.5g.
(5) On-aircraft arresting gear (e.g., tail hooks and drag chutes)
and specially designed parts and components therefor;
(6) Bomb racks, missile or rocket launchers, missile rails, weapon
pylons, pylon-to-launcher adapters, unmanned aerial vehicle (UAV)
airborne launching systems, external stores support systems for
ordnance or weapons, and specially designed parts and components
therefor (MT if the bomb rack, missile launcher, missile rail, weapon
pylon, pylon-to-launcher adapter, UAV airborne launching system, or
external stores support system is for an aircraft, excluding manned
aircraft, or missile that has a ``range'' equal to or greater than 300
km);
(7) Damage or failure-adaptive flight control systems, that do not
consist solely of redundant internal circuitry, specially designed for
aircraft controlled in this category;
(8) Threat-adaptive autonomous flight control systems, where a
``threat-adaptive autonomous flight control system'' is a flight
control system that, without input from the operator or pilot, adjusts
the aircraft control or flight path to minimize risk caused by hostile
threats;
(9) Non-surface-based flight control systems and effectors (e.g.,
thrust vectoring from gas ports other than main engine thrust vector);
(10) Radar altimeters with output power management LPI (low
probability of intercept) or signal modulation (i.e., frequency
hopping, chirping, direct sequence-spectrum spreading) LPI capabilities
(MT if for an aircraft, excluding manned aircraft, or missile that has
a ``range'' equal to or greater than 300 km);
(11) Air-to-air refueling systems and hover-in-flight refueling
(HIFR) systems, and specially designed parts and components therefor;
(12) Unmanned aerial vehicle (UAV) flight control systems and
vehicle management systems with swarming capability (i.e., UAVs
interact with each other to avoid collisions and stay together, or, if
weaponized, coordinate targeting) (MT if for an aircraft, excluding
manned aircraft, or missile that has a ``range'' equal to or greater
than 300 km);
(13) [Reserved]
(14) Lift fans, clutches, and roll posts for short take-off,
vertical landing (STOVL) aircraft and specially designed parts and
components for such lift fans and roll posts;
(15) Integrated helmets incorporating optical sights or slewing
devices, which include the ability to aim, launch, track, or manage
munitions (e.g., Helmet Mounted Cueing Systems, Joint Helmet Mounted
Cueing Systems (JHMCS), Helmet Mounted Displays, Display and Sight
Helmets (DASH)), and specially designed parts, components, accessories,
and attachments therefor;
(16) Fire control computers, stores management systems, armaments
control processors, and aircraft-weapon interface units and computers
(e.g., AGM-88 HARM Aircraft Launcher Interface Computer (ALIC));
(17) Mission computers, vehicle management computers, and
integrated core processers specially designed for aircraft controlled
in this category;
[[Page 83134]]
(18) Drive systems, flight control systems, and parts and
components therefor, specially designed to function after impact of a
7.62mm or larger projectile;
(19) Thrust reversers specially designed to be deployed in flight
for aircraft controlled in this category;
* (20) Any part, component, accessory, attachment, equipment, or
system that:
(i) Is classified;
(ii) Contains classified software directly related to defense
articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
Note to paragraph (h)(20): 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;
(21)-(26) [Reserved]
(27) Variable speed gearboxes, where a ``variable speed gearbox''
has the ability to vary the gearbox output speed by mechanical means
within the gearbox while the gearbox input speed from the engine or
other source is constant, and is capable of varying output speed by 20%
or greater and providing power to rotors, proprotors, propellers,
propfans, or liftfans; and specially designed parts and components
therefor;
(28) Electrical power or thermal management systems specially
designed for an engine controlled in Category XIX and having any of the
following:
(i) Electrical power generators that provide greater than 300kW of
electrical power (per generator) with gravimetric power densities
exceeding 2kW/pound (excluding the mass of the controller for the
purpose of calculating the gravimetric power density);
(ii) Heat exchangers that exchange 60 kW/K-m\3\ or 1 kW/K of heat
or greater into the gas turbine engine flow path; or
(iii) Direct-cooling thermal electronic package heat exchangers
that transfer 20kW of heat or greater at 100W/cm\2\ or greater.
(29) Any of the following equipment if specially designed for a
defense article described in paragraph (h)(1):
(i) Scale test models;
(ii) Full scale iron bird ground rigs used to test major aircraft
systems; or
(iii) Jigs, locating fixtures, templates, gauges, molds, dies, or
caul plates.
(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 described in paragraphs (a) through (h) of this
category and classified technical data directly related to items
controlled in ECCNs 9A610, 9B610, 9C610, and 9D610 and defense services
using classified technical data. (See Sec. 125.4 of this subchapter
for exemptions.) (MT for technical data and defense services related to
articles designated as such.)
(j)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR (see
Sec. 120.42 of this subchapter) used in or with defense articles
controlled in this category.
Note to paragraph (x): Use of this paragraph is limited to
license applications for defense articles controlled in this
category where the purchase documentation includes commodities,
software, or technology subject to the EAR (see Sec. 123.1(b) of
this subchapter).
Note: Parts, components, accessories, and attachments in
paragraphs (h)(3)-(5), (7), (14), (17), or (19) are licensed by the
Department of Commerce when incorporated in an aircraft subject to
the EAR and classified under ECCN 9A610. Replacement systems, parts,
components, accessories and attachments are subject to the controls
of the ITAR.
* * * * *
Category XIX--Gas Turbine Engines and Associated Equipment
* (a) Turbofan and Turbojet engines (including those that are
technology demonstrators, developmental engines, or variable cycle
engines) capable of 15,000 lbf (66.7 kN) of thrust or greater that have
any of the following:
(1) With or specially designed for thrust augmentation
(afterburner);
(2) Thrust or exhaust nozzle vectoring;
(3) Parts or components controlled in paragraph (f)(6) of this
category;
(4) Specially designed for sustained 30 second inverted flight or
negative g maneuver; or
(5) Specially designed for high power extraction (greater than 50
percent of engine thrust at altitude) at altitudes greater than 50,000
feet.
* (b) Turboshaft and Turboprop engines (including those that are
technology demonstrators or developmental engines) that have any of the
following:
(1) Capable of 2000 mechanical shp (1491 kW) or greater and
specially designed with oil sump sealing when the engine is in the
vertical position; or
(2) Capable of a specific power of 225 shp/(lbm/sec) or greater and
specially designed for armament gas ingestion and non-civil transient
maneuvers, where specific power is defined as maximum takeoff shaft
horsepower (shp) divided by compressor inlet flow (lbm/sec).
* (c) Gas turbine engines (including technology demonstrators,
developmental engines, and variable cycle engines) specially designed
for unmanned aerial vehicle systems controlled in this subchapter,
cruise missiles, or target drones (MT if for an engine used in an
aircraft, excluding manned aircraft, or missile that has a ``range''
equal to or greater than 300 km).
* (d) GE38, AGT1500, CTS800, MT7, T55, HPW3000, GE3000, T408, and
T700 engines.
Note to paragraph (d): Engines subject to the control of this
paragraph are licensed by the Department of Commerce when
incorporated in an aircraft subject to the EAR and controlled under
ECCN 9A610. Such engines are subject to the controls of the ITAR in
all other circumstances.
* (e) Digital engine control systems (e.g., Full Authority Digital
Engine Controls (FADEC) and Digital Electronic Engine Controls (DEEC))
specially designed for gas turbine engines controlled in this category
(MT if the digital engine control system is for an aircraft, excluding
manned aircraft, or missile that has a range equal to or greater than
300 km).
Note to paragraph (e): Digital electronic control systems
autonomously control the engine throughout its whole operating range
from demanded engine start until demanded engine shut-down, in both
normal and fault conditions.
(f) Parts, components, accessories, attachments, associated
equipment, and systems as follows:
(1) Parts, components, accessories, and attachments specially
designed for the following U.S.-origin engines (and military variants
thereof): F101, F107, F112, F118, F119, F120, F135, F136, F414, F415,
and J402;
Note to paragraph (f)(1): This paragraph does not control parts,
components, accessories, and attachments that are common to engines
enumerated in paragraph (a) through (d) of this category but not
identified in paragraph (f)(1), and those identified in paragraph
(f)(1). For example, a part common to only the F110 and F136 is not
specially designed for purposes of this paragraph. A part common to
only the F119 and F135--two engine models identified in paragraph
(f)(1)--is specially designed for purposes of this paragraph, unless
one of the other paragraphs is applicable under Sec. 120.41(b).
* (2) Hot section components (i.e., combustion chambers and liners;
high pressure turbine blades, vanes, disks and related cooled
structure; cooled intermediate pressure turbine blades, vanes, disks
and related cooled structures; cooled low pressure turbine blades,
vanes, disks and related cooled
[[Page 83135]]
structures; cooled shaft-driving power turbine blades, vanes, disks and
related cooled structures; cooled augmenters; and cooled nozzles)
specially designed for gas turbine engines controlled in this category;
(3) Uncooled turbine blades, vanes, disks, and tip shrouds
specially designed for gas turbine engines controlled in this category;
(4) Combustor cowls, diffusers, domes, and shells specially
designed for gas turbine engines controlled in this category;
(5) Engine monitoring systems (i.e., prognostics, diagnostics, and
health) specially designed for gas turbine engines and components
controlled in this category;
* (6) Any part, component, accessory, attachment, equipment, or
system that:
(i) Is classified;
(ii) Contains classified software directly related to defense
articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
Note to paragraph (f)(6): ``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;
(7) Investment casting cores, core dies, or wax pattern dies for
parts or components enumerated in paragraphs (f)(1), (f)(2), or (f)(3)
of this category;
(8) Pressure gain combustors specially designed for engines
controlled in this category, and specially designed parts and
components therefor;
(9) Three-stream fan systems, specially designed for gas turbine
engines controlled in this Category, that allow the movement of airflow
between the streams to control fan pressure ratio or bypass ratio (by
means other than use of fan corrected speed or the primary nozzle area
to change the fan pressure ratio or bypass ratio), and specially
designed parts, components, accessories, and attachments therefor;
(10) High pressure compressors, specially designed for gas turbine
engines controlled in this Category, with core-driven bypass streams
that have a pressure ratio greater than one, occurring across any
section of the bypass duct, and specially designed parts, components,
accessories, and attachments therefor;
(11) Intermediate compressors of a three-spool compression system,
specially designed for gas turbine engines controlled in this Category,
with an intermediate spool-driven bypass stream that has a pressure
ratio greater than one, occurring across any section of the bypass
duct, and specially designed parts, components, accessories, and
attachments therefor; or
(12) Any of the following equipment if specially designed for a
defense article described in paragraph (f)(1): Jigs, locating fixtures,
templates, gauges, molds, dies, caul plates, or bellmouths.
(g) 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 described in paragraphs (a) through (f) of this
category and classified technical data directly related to items
controlled in ECCNs 9A619, 9B619, 9C619, and 9D619 and defense services
using the classified technical data. (See Sec. 125.4 of this
subchapter for exemptions.) (MT for technical data and defense services
related to articles designated as such.)
(h)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR (see
Sec. 120.42 of this subchapter) used in or with defense articles
controlled in this category.
Note to paragraph (x): Use of this paragraph is limited to
license applications for defense articles controlled in this
category where the purchase documentation includes commodities,
software, or technology subject to the EAR (see Sec. 123.1(b) of
this subchapter).
Dated: November 14, 2016.
Thomas M. Countryman,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2016-27775 Filed 11-18-16; 8:45 am]
BILLING CODE 4710-25-P
