82 FR 2889 - International Traffic in Arms Regulations: Revision of U.S. Munitions List Category XV

DEPARTMENT OF STATE

Federal Register Volume 82, Issue 6 (January 10, 2017)

As part of the President's Export Control Reform (ECR) initiative, the Department published an interim final rule on May 13, 2014 that revised Category XV (Spacecraft and Related Articles) of the U.S. Munitions List (USML). After reviewing comments to the interim final rule, the Department of State is amending the International Traffic in Arms Regulations (ITAR) to further revise Category XV of the USML to describe more precisely the articles warranting control in that category.

[Federal Register Volume 82, Number 6 (Tuesday, January 10, 2017)]
[Rules and Regulations]
[Pages 2889-2892]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31751]


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DEPARTMENT OF STATE

22 CFR Part 121

[Public Notice: 9688]
RIN 1400-AD33


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

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: As part of the President's Export Control Reform (ECR) 
initiative, the Department published an interim final rule on May 13, 
2014 that revised Category XV (Spacecraft and Related Articles) of the 
U.S. Munitions List (USML). After reviewing comments to the interim 
final rule, the Department of State is amending the International 
Traffic in Arms Regulations (ITAR) to further revise Category XV of the 
USML to describe more precisely the articles warranting control in that 
category.

DATES: This final rule is effective on January 15, 2017.

FOR FURTHER INFORMATION CONTACT: Mr. C. Edward Peartree, Director, 
Office of Defense Trade Controls Policy, Department of State, 
telephone: (202) 663-2792; email: [email protected]. ATTN: 
Regulatory Change, USML Category XV.

SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls 
(DDTC), U.S. Department of State, administers the International Traffic 
in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to 
the jurisdiction of the ITAR, i.e., ``defense articles'' and ``defense 
services,'' are identified on the ITAR's U.S. Munitions List (USML) (22 
CFR 121.1). With few exceptions, items not subject to the export 
control jurisdiction of the ITAR are subject to the jurisdiction of the 
Export Administration Regulations (``EAR,'' 15 CFR parts 730-774, which 
includes the Commerce Control List (CCL) in Supplement No. 1 to part 
774), administered by the Bureau of Industry and Security (BIS), U.S. 
Department of Commerce. Both the ITAR and the EAR impose license 
requirements on exports and reexports. Items not subject to the ITAR or 
to the exclusive licensing jurisdiction of any other set of regulations 
are subject to the EAR.
    All references to the USML in this rule are to the list of defense 
articles controlled for the purpose of export or temporary import 
pursuant to the ITAR, and not to the defense articles on the USML that 
are controlled by the Bureau of Alcohol, Tobacco, Firearms and 
Explosives (ATF) for the purpose of permanent import under its 
regulations. See 27 CFR part 447. Pursuant to section 38(a)(1) of the 
Arms Export Control Act (AECA), all defense articles controlled for 
export or import are part of the USML under the AECA. For the sake of 
clarity, the list of defense articles controlled by ATF for the purpose 
of permanent import is the U.S. Munitions Import List (USMIL). The 
transfer of defense articles from the ITAR's USML to the EAR's CCL for 
the purpose of export control does not affect the list of defense 
articles controlled on the USMIL under the AECA for the purpose of 
permanent import.
    The Department published an interim final rule revising USML 
Category XV on May 13, 2014 (79 FR 27180) and received 11 public 
comments on the proposed changes to the ITAR. The interim final rule 
became effective November 10, 2014, and this final rule is making 
changes in response to the previously received comments received on the 
interim final rule.

Changes in This Rule

    Paragraphs (a)(2), (a)(10), (a)(11), (a)(12), (e)(4), (e)(5), 
(e)(11)(iv), (e)(12), (e)(20), and Note 3 to paragraph (a) and Note 3 
to paragraph (f) are amended to better reflect the intended scope of 
control with regard to autonomous tracking systems, logistics, 
propulsion systems, cryocoolers and vibration suppression systems. 
Paragraphs (a)(7)(i) and (e)(2) are amended to clarify the size of the 
respective aperture dimension of specific electro-optical remote 
sensing capabilities and space qualified optics.
    Three commenters stated that the aperture dimensions in paragraph 
(a)(7)(i) (electro-optical satellite systems) should be raised from 
0.35m to at or below 1.1m to reflect the commercial market for 
satellite imagery and account for technical advances in apertures and 
ground resolution capabilities. The Department acknowledges this 
comment and that aperture technology is evolving, and has revised 
(a)(7)(i) to 0.50m to reflect the current status of technology that 
provides the United States with a critical military or intelligence 
advantage and warrants control on the USML.
    Two commenters stated that (a)(12) should be revised to include a 
definition of ``spaceflight,'' or an inclusion of the word ``human'' in 
front of ``spaceflight,'' as well as to clarify that the provision does 
not control satellites subject to the jurisdiction of the Department of 
Commerce. The Department disagrees with this comment because the word 
``spaceflight'' was removed from paragraph (a) in a November 10, 2014 
clean-up rule (79 FR 66608). In addition, the revisions to paragraph 
(a)(12) herein clarify that the rule does not control satellites 
subject to the jurisdiction of the Department of Commerce.
    Two commenters suggested that (c)(4) be amended to better reflect 
the controls imposed by both the EAR and Missile Technology Control 
Regime, and to avoid any regulatory confusion caused by the fact that 
drones and UAVs are already controlled under Category VIII of the ITAR. 
The Department acknowledges the comments, and proposed removal of 
paragraph (c) to Category XII (Fire Control, Range Finder, Optical and 
Guidance and Control Equipment) (see 81 FR 8438, Feb. 18, 2016). All 
public comments

[[Page 2890]]

pertaining to (c) will be addressed in that final rule.
    One commenter stated that the aperture dimensions in paragraph 
(e)(2) should be raised from 0.35m to 1.1m to reflect the commercial 
market for satellite imagery. The Department acknowledges this comment 
and that aperture technology is evolving, and has revised the dimension 
in (e)(2)(ii) to 0.50m to reflect the current status of technology that 
provides the United States with a critical military or intelligence 
advantage and warrants control on the USML.
    One commenter noted that paragraph (e)(4), which concerns space 
qualified mechanical cryocoolers, uses the term ``specially designed'' 
to describe the electronics captured in that provision, but that the 
words ``specially designed'' are omitted from (e)(5), resulting in 
certain commercial control electronics being inadvertently caught under 
the ITAR. The Department agrees with this comment, and has added the 
words ``specially designed'' to (e)(5).
    One commenter expressed concern with possible unintended 
consequences of the interim final rule on space qualified laser radar, 
or light detection and ranging (LIDAR). Specifically, while the interim 
final rule clarified that (e)(7) does not control space qualified 
LIDAR, the commenter expressed concern that it could still be caught by 
paragraph (e)(3). The Department clarifies that paragraph (e)(3) could 
not inadvertently catch space qualified LIDAR, because note 2 to 
paragraph (e) makes clear that when the articles described in Category 
XV(e) are ``integrated into and included as an integral part'' of an 
item subject to the EAR, they are subject to the EAR. A space qualified 
focal plane array by itself would be caught by (e)(3), but once 
integrated and integral to an item subject to the EAR, such as an EAR-
controlled space qualified LIDAR, the space qualified focal plane array 
would be subject to the EAR.
    One commenter stated that Note 3 to paragraph (f) should be amended 
to clarify that ``housekeeping'' data from spacecraft are not subject 
to the ITAR or EAR, and that the ITAR should be updated to reflect the 
language of Note 2 to Product Group E, Category 9 of the Commerce 
Control List (CCL). The Department accepts this comment and aligns note 
3 to paragraph (f) with the corresponding Note 2 published in Product 
Group E, Category 9 of the CCL for the purpose of consistency between 
the USML and CCL.
    Two commenters asserted that ITAR Sec.  124.15 imposes ``special 
export controls'' over and above the standard licensing controls 
without a corresponding national security consideration, and the 
provisions should be amended to reflect that the additional scrutiny 
imposed would only be used in limited and particular circumstances. In 
addition, the commenters stated that the Departments of State and 
Commerce should jointly revise the regulatory requirements to remove 
the de facto pre-licensing requirement for satellite exports subject to 
the EAR intended for launch in NATO and major non-NATO allied 
countries. The Department does not accept these comments as Sec.  
124.15 only applies to satellites and related items controlled by 
Category XV of the USML. These controls do not apply to the EAR, which 
has its own analogous form of controls.

Additional Changes

    The Department also makes a number of other revisions to Category 
XV to limit the controls to those items that provide a critical 
military or intelligence advantage to the United States and warrant 
controls on the USML, which are detailed below.
    This final rule amends paragraph (a)(2) to clarify that the control 
applies to spacecraft that perform real-time autonomous detection and 
tracking of moving objects, other than celestial bodies. The control 
does not include systems that can track fixed points to determine their 
own movement based on the relative position of the fixed points over 
time.
    This final rule amends paragraphs (a)(10) and (11) to clarify the 
nature of the technology and defense articles controlled. Paragraph 
(a)(10) is revised to control spacecraft that autonomously perform 
collision avoidance. Paragraph (a)(11) is revised to control sub-
orbital craft that incorporate a propulsion system described in either 
paragraph (e) or Category IV(d)(1)-(6), and are specially designed for 
atmospheric entry or re-entry. The Department also makes a 
corresponding change to paragraph (e)(20) to reflect the forms of 
propulsion controlled in paragraph (a)(11). The Department also removes 
the Note 3 paragraph (a) regarding attitude control. A new Note 3 to 
paragraph (a) is added to remove the James Webb Space Telescope from 
the jurisdiction of the USML and transfer its control to the EAR. A new 
sentence is also to Note 2 to paragraph (e)(17) removing the primary 
and secondary payloads of the James Webb Space Telescope from the 
jurisdiction of the USML and transferring their control to the EAR. Any 
parts and components of the James Webb Space Telescope that are 
controlled in other entries of paragraph (e) remain on the USML, except 
as described in Note 2 to paragraph (e).
    This final rule amends paragraphs (e)(4) and (e)(5) to clarify the 
type of systems controlled. Specifically, the word ``systems'' is added 
to both provisions to make it clear that the provisions are designed to 
control ``cold finger systems'' in (e)(4) and ``vibration suppression 
systems'' and ``active dampening systems'' in (e)(5).
    This final rule amends paragraphs (e)(11)(iv) and (e)(12) to 
clarify the type of propulsions systems controlled. Paragraph 
(e)(11)(iv) is revised to control electric propulsion systems, such as 
plasma and ion based systems, that provide greater than 300 milli-
Newtons of thrust and a specific impulse greater than 1,500 sec; or 
that operate at an input power of more than 15kW. Paragraph (e)(12) is 
revised to control bi-propellants or mono-propellant rocket engines 
with which provide greater than 150 lbf (i.e., 667.23 N) vacuum thrust.

Regulatory Analysis and Notices

Administrative Procedure Act

    The import and export of defense articles and services is a foreign 
affairs function of the United States government and that rules 
implementing this function are exempt from Sec. Sec.  553 (rulemaking) 
and 554 (adjudications) of the Administrative Procedure Act (APA). 
Although this rule is exempt from the rulemaking provisions of the APA 
and without prejudice to the Department's determination that 
controlling the import and export of defense services is a foreign 
affairs function, the Department allowed a 45-day public comment period 
for the interim final rule. The Department has made additional 
refinements to what was proposed based on the public comments received, 
which helps to further the objectives described in the interim final 
rule that is published as a final rule today. This final rule will be 
effective on January 15, 2017.

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

    This rulemaking does not involve a mandate that will result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any year and it 
will not significantly or uniquely affect small governments.

[[Page 2891]]

Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rulemaking is not a major rule as defined in 5 U.S.C. 804.

Executive Orders 12372 and 13132

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

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributed impacts, and equity). These executive orders 
stress the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rulemaking has been designated a ``significant regulatory 
action,'' under Executive Order 12866. Accordingly, this rule has been 
reviewed by the Office of Management and Budget (OMB).

Executive Order 12988

    The Department of State reviewed this rulemaking in light of 
Executive Order 12988 to eliminate ambiguity, minimize litigation, 
establish clear legal standards, and reduce burden.

Executive Order 13175

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

Paperwork Reduction Act

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

List of Subjects in 22 CFR Part 121

    Arms and munitions, Classified information, Exports,Technical 
assistance.

    Accordingly, for the reasons set forth above, title 22, chapter I, 
subchapter M, part 121 is amended as follows:

PART 121--THE UNITED STATES MUNITIONS LIST

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

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


0
2. In Sec.  121.1, under Category XV:
0
a. Revise paragraphs (a)(2), (a)(7)(i), and (a)(10) through (12).
0
b. Add Note to paragraph (a)(12).
0
c. Revise Note 3 to paragraph (a).
0
d. Revise paragraphs (e)(2), (4), and (5), (e)(11)(iv), and (e)(12).
0
e. Revise Note 2 to paragraph (e)(17).
0
f. Revise paragraph (e)(20).
0
g. Revise Note 3 to paragraph (f).
    The revisions and addition read as follows:


Sec.  121.1   The United States Munitions List.

* * * * *

Category XV--Spacecraft and Related Articles

    (a) * * *
    * (2) Autonomously detect and track moving ground, airborne, 
missile, or space objects other than celestial bodies, in real-time 
using imaging, infrared, radar, or laser systems;
* * * * *
    (7) * * *
    (i) Electro-optical visible and near infrared (VNIR) (i.e., 400nm 
to 1,000nm) or infrared (i.e., greater than 1,000nm to 30,000nm) with 
less than 40 spectral bands and having a clear aperture greater than 
0.50m;
* * * * *
    (10) Autonomously perform collision avoidance;
    (11) Are sub-orbital, incorporate propulsion systems described in 
paragraph (e) of this category or Category IV(d)(1)-(6) of this 
section, and are specially designed for atmospheric entry or re-entry;
    (12) Are specially designed to provide inspection or surveillance 
of another spacecraft, or service another spacecraft via grappling or 
docking; or

    Note to paragraph (a)(12): This paragraph does not control 
spacecraft that dock exclusively via the NASA Docking System (NDS), 
which are controlled by ECCN 9A515.a.4.

* * * * *

    Note 3 to paragraph (a): This paragraph does not control the 
James Webb Space Telescope, which is subject to the EAR.

* * * * *
    (e) * * *
    (2) Space-qualified optics (i.e., lens, mirror or membrane) having 
one of the following:
    (i) Active properties (e.g., adaptive, deformable) with a largest 
lateral clear aperture dimension greater than 0.35m; or
    (ii) A largest lateral clear aperture dimension greater than 0.50m;
* * * * *
    (4) Space-qualified mechanical (i.e., active) cryocooler or active 
cold finger systems, and associated control electronics specially 
designed therefor;
    (5) Space-qualified active vibration suppression systems, including 
active isolation and active dampening systems, and associated control 
electronics specially designed therefor;
* * * * *
    (11) * * *
    (iv) Electric (Plasma/Ion) propulsion systems that provide a thrust 
greater than 300 milli-Newtons and a specific impulse greater than 
1,500 sec; or that operate at an input power of more than 15kW;
    (12) Thrusters (e.g., spacecraft or rocket engines) using bi-
propellants or mono-propellant that provide greater than 150 lbf (i.e., 
667.23 N) vacuum thrust (MT for rocket motors or engines having a total 
impulse capacity equal to or greater than 8.41 x 10[caret]5 
newton seconds);
* * * * *

    Note 2 to paragraph (e)(17): An ECCN 9A004 or ECCN 9A515.a 
spacecraft remains a spacecraft subject to the EAR even when 
incorporating a hosted payload performing a function described in 
paragraph (a) of this category. All spacecraft that incorporate 
primary or secondary payloads that perform a function described in 
paragraph (a) of this category are controlled by that paragraph. 
This paragraph does not control primary or secondary payloads of the 
James Webb Space Telescope, which are subject to the EAR.

* * * * *
    (20) Equipment modules, stages, or compartments that incorporate 
propulsion systems described in paragraph (e) of this category or 
Category IV(d)(1)-(6) of this section, and can be separated or 
jettisoned from another spacecraft; or
* * * * *


[[Page 2892]]


    Note 3 to paragraph (f): Paragraph (f) and ECCNs 9E001, 9E002 
and 9E515 do not control the data transmitted to or from a satellite 
or spacecraft, whether real or simulated, when limited to 
information about the health, operational status, or measurements or 
function of, or raw sensor output from, the spacecraft, spacecraft 
payload(s), or its associated subsystems or components. Such 
information is not within the scope of information captured within 
the definition of technology in the EAR for purposes of Category 9 
Product Group E. Examples of such information, which are commonly 
referred to as ``housekeeping data,'' include (i) system, hardware, 
component configuration, and operation status information pertaining 
to temperatures, pressures, power, currents, voltages, and battery 
charges; (ii) spacecraft or payload orientation or position 
information, such as state vector or ephemeris information; (iii) 
payload raw mission or science output, such as images, spectra, 
particle measurements, or field measurements; (iv) command 
responses; (v) accurate timing information; and (vi) link budget 
data. The act of processing such telemetry data--i.e., converting 
raw data into engineering units or readable products--or encrypting 
it does not, in and of itself, cause the telemetry data to become 
subject to the ITAR or to ECCN 9E515 for purposes of 9A515, or to 
ECCNs 9E001 or 9E002 for purposes of 9A004. All classified technical 
data directly related to items controlled in USML Category XV or 
ECCNs 9A515, and defense services using the classified technical 
data, remains subject to the ITAR. This note does not affect 
controls in USML XV(f), ECCN 9D515, or ECCN 9E515 on software source 
code or commands that control a spacecraft, payload, or associated 
subsystems for purposes of 9A515. This note also does not affect 
controls in ECCNs 9D001, 9D002, 9E001, or 9E002 on software source 
code or commands that control a spacecraft, payload, or associated 
subsystems for purposes of 9A004.

* * * * *

    Dated: December 22, 2016.
Tom Countryman,
 Acting Under Secretary, Arms Control and International Security, 
Department of State.
[FR Doc. 2016-31751 Filed 1-9-17; 8:45 am]
 BILLING CODE 4710-25-P