SUPPLEMENTARY INFORMATION:

The Department of State's Directorate of Defense Trade Controls (DDTC) administers the ITAR (22 CFR parts 120 through 130) to, among other things, regulate the export, reexport, retransfer, and temporary import of defense articles and defense services described on the USML at ITAR § 121.1. Items not subject to the ITAR or to the exclusive licensing jurisdiction of certain other departments or agencies of the U.S. Government are subject to the Export Administration Regulations (EAR) (15 CFR parts 730 through 774), which include the Commerce Control List (CCL) in Supplement No. 1 to part 774. The EAR is administered by the Department of ( printed page 59064) Commerce, Bureau of Industry and Security (BIS). This rule does not modify the list of defense articles and defense services controlled for purposes of permanent import by the Attorney General, as enumerated on the U.S. Munitions Import List (USMIL) at 27 CFR 447.21.

Section 38 of the Arms Export Control Act (AECA) (22 U.S.C. 2778) requires periodic review of the USML to determine which articles and services, if any, no longer warrant designation. In maintaining the USML, DDTC identifies articles and services for potential addition to or removal from the USML, or for clarification on how they are described on the USML, through a variety of methods. This can include public feedback and interagency consultations, commodity jurisdiction reviews, advisory opinions, and technology monitoring. The Department maintains the USML such that it comprises those defense articles or defense services that provide a critical military or intelligence advantage. The Department, informed by consultations with its interagency partners, and with the concurrence of the Department of Defense, has determined that those articles and services this rule removes from the USML no longer warrant ITAR control.

USML Category XX(a)(10) describes certain vessels with a gross weight rating exceeding 3,000 pounds that are designed to operate without human interaction for longer than 24 hours or for more than 70 nautical miles. The license exemption at ITAR § 126.9(u) authorizes certain transfers of vessels described in USML Category XX(a)(10).

The Department, with the concurrence of the Department of Defense, now assesses that vessels described in USML Category XX(a)(10) with a gross weight rating up to 8,000 pounds only provide a critical military or intelligence advantage when they are described elsewhere on the USML or when they are specially designed to possess certain navigation capabilities. Based on this assessment, the Department is revising paragraph (a)(10) to continue describing vessels at or under 8,000 pounds only if they are specially designed to have navigation capabilities beyond the ability to (1) follow fixed waypoints and (2) perform collision avoidance maneuvers that adhere to the see-and-avoid principles of navigation regulations. The Department is also revising paragraph (a)(10) to use the term “specially designed,” which is defined in § 120.41, to improve the clarity of the control text. The Department is also adding a new paragraph (a)(11) and moving vessels with a gross weight rating exceeding 8,000 pounds that are specially designed to operate without human interaction for longer than 24 hours or for more than 70 nautical miles, to paragraph (11) from the current paragraph (10). This rule does not modify the license exemption at § 126.9(u); the provisions in that exemption remain available for vessels described in USML Category XX(a)(10). The Department also makes conforming changes to paragraph (a)(9) in this rule. The Department also notes its intent to review the ITAR controls on autonomous capabilities, including the maritime navigation systems described in USML Category VI.

Request for Comments

Specific Comments Requested

The Department encourages the public to provide comments related to this rule, as well as comments specifically responsive to the questions described in this section. To facilitate timely review and assessment, comments should be provided in a concise sentence or paragraph, followed by supporting explanatory paragraphs and examples, with each distinct comment treated separately as opposed to multiple comments in one paragraph or section. The Department encourages commenters to include supporting facts, research, and evidence in their comments. When doing so, commenters are encouraged to provide citations to any published materials referenced.

1. Are there other navigation capabilities the Department should consider in order to refine the updated navigation system criteria in the new USML Category XX(a)(10)?

2. Section § 126.9 includes a licensing exemption for certain activities using UUVs described in USML Category XX(a)(10).

a. What challenges, if any, have operators of vessels described in the new USML Category XX(a)(10) encountered in using the exemption? How could the Department revise the exemption to mitigate those challenges while continuing to protect U.S. national security interests?

b. Are there additional activities the Department should consider adding to the list of authorized purposes in § 126.9(u)(2)(iii)?

Comment Submission Instructions

Include the Regulatory Information Number (RIN) (1400-AG35) for all submissions related to this rule and follow the submission instructions contained in the ADDRESSES section above. Parties who wish to comment anonymously may do so by submitting their comments via www.regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself. Commenters are cautioned not to include proprietary, export-controlled, personal, or other sensitive information in their comments that they would not want to be made public. If such information would provide useful insight to the comment: (1) assemble that information in a separate document with relevant markings; (2) include “[Proprietary] supplement on file with: [provide POC]” as the first line in the body of the email submission; (3) submit the public portion of the comment via email; and (4) call DDTC at (202) 663-1282 to coordinate submission of the proprietary supplement.

Regulatory Analysis and Notices

Administrative Procedure Act

This rulemaking is exempt from the rulemaking requirements of the Administrative Procedure Act (APA) pursuant to 5 U.S.C. 553(a)(1) as it involves a military or foreign affairs function of the United States. Nevertheless, and without prejudice to this determination, the Department seeks public comments in this rule.

Regulatory Flexibility Act

Since this rule is exempt from the notice-and-comment 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 rulemaking does not involve a mandate that will result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

The Office of Information and Regulatory Affairs has found that this rule is not a major rule under the criteria of 5 U.S.C. 804(2).

Executive Orders 12372 and 13132

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 ( printed page 59065) regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

Executive Orders 12866 and 13563

Executive Order 12866, as supplemented and affirmed by Executive Order 13563, directs 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. After review by the Office of Management and Budget (OMB), this rule has been deemed to be a “significant regulatory action” under section 3(f) of Executive Order 12866.

This rule was undertaken pursuant to a statutory directive to periodically review the items on the USML. The Department generally determines which items warrant addition to, or removal from, the USML by assessing whether each provides a critical military or intelligence advantage based on national security and foreign policy considerations. Because the costs and benefits of changing what is controlled focus on the effect or utility of the item or service, rather than its market prevalence or economic value, quantitative analyses cannot be usefully estimated and are not available, particularly since the global prevalence or availability of the item or service are not known. Qualitatively, the rule was assessed for costs and benefits. These revisions are also informed by confidential requests for commodity jurisdiction determinations and advisory opinions, submitted by industry. The Department takes into account common questions and strives to streamline and simplify USML paragraphs based on how it understands industry experience with certain parts of the USML.

This rule removes the designation of certain defense articles by revising USML Category XX(a). Vessels removed from the scope of USML Category XX(a)(10), that are not described elsewhere on the USML, will become subject to the EAR. This action reduces the regulatory requirements associated with the removed vessels. The Department assesses the vessels removed by this rule do not warrant control under the ITAR. The Department assesses the benefits of this rulemaking outweigh any costs, that modifying the USML in this manner is the most cost-effective method to achieve the Department's regulatory objectives on this matter, and that doing so will result in a net reduction of the burden on the regulated community.

The alternative to this rule was inaction or delay. The Department could have waited to amend larger parts of the USML at once or continued to gather data to evaluate the controls affected by this rule. These alternatives were rejected. Statutory requirements, including section 38(f) of the Arms Export Control Act (22 U.S.C. 2778(f)), and section 1345 of the National Defense Authorization Act for Fiscal Year 2024, require a periodic review of the USML for edits like those made by this rule. While the Department continuously reviews the entire USML, it aims to implement most revisions through rules that are focused on specific items or subsets of the USML.

Executive Order 14192

This rule is exempt from Executive Order 14192 as it is a regulation issued with respect to a foreign affairs or national security function of the United States.

Executive Order 12988

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

Executive Order 13175

The Department of State 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, the requirements of Executive Order 13175 do not apply to this rulemaking.

Paperwork Reduction Act

This rulemaking does not impose or revise any information collections subject to 44 U.S.C. chapter 35.

For the reasons set forth in the preamble, the Department of State amends 22 CFR part 121, the United States Munitions List, as follows:

91 FR 59063