02-23715. Amendment to the International Traffic in Arms Regulations: United States Munitions List

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

The Department of State is revising the U.S. Munitions List (USML), Category II—Artillery Projectors, Category III—Ammunition, Category VII—Tanks and Military Vehicles, and Category XVI—Nuclear Weapons Design and Test Equipment. Also, in order to provide complete coverage of an emerging technology, Category XVIII, currently “Reserved”, is revised to control directed energy weapons. Categories II, III, and XVI are revised to amend the titles to provide more comprehensive coverage of items controlled in the categories. Category II is further amended for clarity, to move self-propelled guns and howitzers and their engines from Category VII (c) and (g), respectively, and to specifically identify kinetic energy weapons systems, and specifically designed production, tooling, test and evaluation equipment. Category II, is further amended to enhance the control on signature control materials currently found only in Category XIII(j). Category VII is amended to delete paragraph (c) and to amend paragraph (g) to delete the engines for self-propelled guns and howitzers and to renumber the paragraphs. The interpretations and amplifications of categories currently found elsewhere in the International Traffic in Arms Regulations (ITAR) relative to categories III and VII, respectively, are also being included in the revised text of the relevant category. Category XVI is revised to include a new paragraph identifying specifically designed or modified components, parts, accessories, attachments and associated equipment for the articles in the category. In addition, the regulations are amended to more properly identify the alternative control and transfer authorities on nuclear materials under other statutes implemented by other agencies. Finally, in implementation of the Presidential Determination No. 2002-10 of March 14, 2002, Bahrain is added as a major non-NATO ally of the United States.

EFFECTIVE DATE:

September 19, 2002.

FOR FURTHER INFORMATION CONTACT:

Mr. Stephen Tomchik, Office of Defense Trade Controls, Department of State, Telephone [phone] or FAX [phone]. ATTN: Regulatory Change, USML Part 121, Category V and XIV.

SUPPLEMENTARY INFORMATION:

This notice of rule making sets out the results of a review of the U.S. Munitions List (USML), Category II and III, by the Department of State in consultation with the Departments of Defense and Commerce, and of Category XVI by the Department of State in consultation with the Departments of Defense, Commerce, and Energy. In Categories II, III, and XVIII the titles are revised to more accurately reflect the full range of articles covered by each category (e.g. the movement of self-propelled guns and howitzers and their engines from Category VII paragraph (c) and paragraph (g) respectively to Category II).

In amending Category II, the items currently in paragraph (c) are transferred to a new paragraph (j). Paragraph (c) now controls apparatus and devices for launching or delivering ordnance, other than those items controlled in Category IV of the USML. The items in (d) are transferred to a new paragraph (k) permitting an emerging class of new energy weapons determined to be inadequately defined on the USML to now be specifically identified. Paragraph (d) now controls kinetic energy weapon systems specifically designed or modified for destruction or rendering mission-abort of a target. During the review, it was also determined that the coverage of signature control materials currently found in Category XIII(j) was inadequate. While signature control features may be integral to a given system design, they can also be sold as add-on subassemblies or materials for application to existing systems. Therefore a new paragraph (e) now controls signature control materials for the articles in Category II. Category II (a) was expanded to control all guns over caliber .50 whether towed, airborne, self-propelled or fixed resulting in the transfer of self-propelled guns and howitzers from Category VII (c) to this category. Category II is further revised to add a new paragraph (f) to control the engines for self-propelled guns and howitzers moved from Category VII (g). Also added are, a new paragraph (g) to identify production tooling and equipment specifically designed or modified for the production of the articles controlled by this category, a new paragraph (h) to control specifically designed or modified test and evaluation equipment and test models, and a new paragraph (i) to control autoloading systems for electronic programming of projectile function.

In addition to revising the title of Category III, the category is further revised to move components, parts, accessories and attachments from paragraph (b) to paragraph (d). This is done for the sake of greater internal logic and consistency. Paragraph (d), in addition to controlling components, parts, accessories, attachments and associated equipment for the articles in the category, is also revised to specifically identify certain ammunition/ordnance components, parts, accessories and attachments and to designate them as Significant Military Equipment (SME). The ammunition belting and linking machines in paragraph (c) are moved to paragraph (b) followed by the logically related corresponding move of ammunition manufacturing and loading machines from paragraph (d) to paragraph (c). The interpretation and amplification language in § 121.6 is transferred to a new paragraph (f) and section 121.6 will be captioned “Reserved”.

Category XVI, is revised to transfer the items currently in Category XIV(d) of the USML to paragraph (c) and to add a new paragraph (d) to ensure coverage of specifically designed components, parts, accessories, attachments and associated equipment for the articles in the category. The technical data and services in paragraph (c) are moved to a new paragraph (e). Also, section 123.20 of the regulations is revised to more properly identify the alternative control and transfer authorities on nuclear materials, nuclear parts of nuclear weapons, or other non-nuclear parts of nuclear weapons systems implemented by other agencies.

Category XVIII currently “Reserved”, is revised to create a new category to the USML to ensure control of directed energy weapons. While Categories XII (b) and XIII (h) currently control aspects of directed energy weapons, this new category will provide a more complete coverage of the emerging technologies (e.g., items used to burn out radar receivers, disable electro-optic sensors or intercept missiles). Revisions to Categories XII (b) and XIII (h), as appropriate, will take place during review of each of these categories.

Finally, Category VII, Tanks and Military Vehicles, is revised to delete paragraph (c), to remove the engines for self propelled guns and howitzers from paragraph (g) and to renumber the remaining paragraphs. Consistent with the change in previous categories, to include interpretative notes where appropriate in the category itself, the text of § 121.4 is moved to the category, in paragraph (i), and section 121.4 will be captioned “Reserved”.

This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866; but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. It has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1966. It will not have substantial direct effects on the States, 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 section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant application of Executive Orders Nos. 12372 and 13123. However, affected U.S. persons are invited to submit written comments to the Department of State, Office of Defense Trade Controls, ATTN: Stephen Tomchik, Regulatory Change, USML Category II, III, and XVIII, 12th Floor, SA-1, Washington, D.C. 20522-0112.

List of Subjects in 22 CFR Parts 121 and 123

• Arms and munitions
• Exports

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, Parts 121 and 123 are amended as follows:

PART 121—UNITED STATES MUNITIONS LIST

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

Authority: Sec. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2278, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp., p. 79; 22 U.S.C. 2658; Pub. L. 105-261, 112 Stat. 1920. 2. In § 121.1, Category II and Category III are revised; Category VII is amended by revising paragraphs (c) through (i); Category XVI is revised; and Category XVIII is added to read as follows:

§ 121.1

General. The United States Munitions List.

* * * * *

Category II-Guns and Armament

*(a) Guns over caliber .50 (12.7mm, whether towed, airborne, self-propelled, or fixed, including but not limited to, howitzers, mortars, cannons and recoilless rifles.

(b) Flame throwers specifically designed or modified for military application.

(c) Apparatus and devices for launching or delivering ordnance, other than those articles controlled in Category IV.

*(d) Kinetic energy weapon systems specifically designed or modified for destruction or rendering mission-abort of a target.

(e) Signature control materials (e.g., parasitic, structural, coatings, screening) techniques, and equipment specifically designed, developed, configured, adapted or modified to alter or reduce the signature (e.g., muzzle flash suppression, radar, infrared, visual, laser/electro-optical, acoustic) of defense articles controlled by this category.

*(f) Engines specifically designed or modified for the self-propelled guns and howitzers in paragraph (a) of this category.

(g) Tooling and equipment specifically designed or modified for the production of defense articles controlled by this category.

(h) Test and evaluation equipment and test models specifically designed or modified for the articles controlled by this category. This includes but is not limited to diagnostic instrumentation and physical test models.

(i) Autoloading systems for electronic programming of projectile function for the defense articles controlled in this Category.

(j) All other components, parts, accessories, attachments and associated equipment specifically designed or modified for the articles in paragraphs (a) through (i) of this category. This includes but is not limited to mounts and carriages for the articles controlled in this category.

(k) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (j) of this category. Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.

(l) The following interpretations explain and amplify the terms used in this category and elsewhere in this subchapter:

(1) The kinetic energy weapons systems in paragraph (d) of this category include but are not limited to:

(i) Launch systems and subsystems capable of accelerating masses larger than 0.1g to velocities in excess of 1.6km/s, in single or rapid fire modes, using methods such as: electromagnetic, electrothermal, plasma, light gas, or chemical;

(ii) Prime power generation, electric armor, energy storage, thermal management; conditioning, switching or fuel-handling equipment; and the electrical interfaces between power supply gun and other turret electric drive function;

(iii) Target acquisition, tracking fire control or damage assessment systems; and

(iv) Homing seeker, guidance or divert propulsion (lateral acceleration) systems for projectiles.

(2) The articles in this category include any end item, component, accessory, attachment part, firmware, software or system that has been designed or manufactured using technical data and defense services controlled by this category.

(3) The articles specifically designed or modified for military application controlled in this category include any article specifically developed, configured, or adapted for military application.

Category III—Ammunition/Ordnance

*(a) Ammunition/ordnance for the articles in Categories I and II of this section.

(b) Ammunition/ordnance handling equipment specifically designed or modified for the articles controlled in this category, such as, belting, linking, and de-linking equipment.

(c) Equipment and tooling specifically designed or modified for the production of defense articles controlled by this category.

(d) Components, parts, accessories, attachments and associated equipment specifically designed or modified for the articles in this category:

*(1) Guidance and control components for the articles in paragraph (a) of this category;

*(2) Safing, arming and fuzing components (including target detection and localization devices) for the articles in paragraph (a) of this category; and

(3) All other components, parts, accessories, attachments and associated equipment for the articles in paragraphs (a) through (c) of this category.

(e) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (d) of this category. Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.

(f) The following explains and amplifies the terms used in this category and elsewhere in this subchapter:

(1) The components, parts, accessories and attachments controlled in this category include, but are not limited to cartridge cases, powder bags (or other propellant charges), bullets, jackets, cores, shells (excluding shotgun shells), projectiles (including canister rounds and submunitions therefor), boosters, firing components therefor, primers, and other detonating devices for the defense articles controlled in this category.

(2) This category does not control cartridge and shell casings that, prior to export, have been rendered useless beyond the possibility of restoration for use as a cartridge or shell casing by means of heating, flame treatment, mangling, crushing, cutting or popping.

(3) Equipment and tooling in paragraph (c) of this category does not include equipment for hand-loading ammunition.

(4) The articles in this category include any end item, component, accessory, attachment, part, firmware, software, or system that has been designed or manufactured using technical data and defense services controlled by this category.

(5) The articles specifically designed or modified for military application controlled in this category include any article specifically developed, configured, or adapted for military application

* * * * *

Category VII—Tanks and Military Vehicles

* * * * *

(c) Military trucks, trailers, hoists, and skids specifically designed, modified, or equipped to mount or carry weapons of Categories I, II and IV of this section or for carrying and handling the articles in paragraph (a) of Categories III and IV of this section.

*(d) Military recovery vehicles.

*(e) Amphibious vehicles.

*(f) Engines specifically designed or modified for the vehicles in paragraphs (a), (b), and (e) of this category.

(g) All specifically designed or modified components, parts, accessories, attachments, and associated equipment for the articles in this category, including but not limited to military bridges and deep water fording kits.

(h) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (g) of this category. Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.

(i) The following explains and amplifies the terms used in this category and elsewhere in this subchapter.

(1) An amphibious vehicle in paragraph (e) of this category is an automotive vehicle or chassis which embodies all-wheel drive, is equipped to meet special military requirements, and which has sealed electrical system or adaptation features for deep water fording.

(2) The articles in this category include any end item, component, accessory, attachment part, firmware, software or system that has been designed or manufactured using technical data and defense service controlled by this category.

* * * * *

Category XVI—Nuclear Weapons, Design and Testing Related Items

*(a) Any article, material, equipment, or device which is specifically designed or modified for use in the design, development, or fabrication of nuclear weapons or nuclear explosive devices. (See § 123.20 of this subchapter and Department of Commerce Export Administration Regulations, 15 CFR 742.3 and 744.2).

*(b) Any article, material, equipment, or device which is specifically designed or modified for use in the devising, carrying out, or evaluating of nuclear weapons tests or any other nuclear explosions (including for modeling or simulating the employment of nuclear weapons or the integrated operational use of nuclear weapons), except such items as are in normal commercial use for other purposes.

*(c) Nuclear radiation detection and measurement devices specifically designed or modified for military applications.

(d) All specifically designed or modified components and parts, accessories, attachments, and associated equipment for the articles in this category.

(e) Technical data (as defined in § 120.10 of this subchapter), and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (d) of this category. (See also, § 123.20 of this subchapter.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.

* * * * *

Category XVIII—Directed Energy Weapons

*(a) Directed energy weapon systems specifically designed or modified for military applications (e.g., destruction, degradation or rendering mission-abort of a target). These include, but are not limited to:

(1) Laser systems, including continuous wave or pulsed laser systems, specifically designed or modified to cause blindness;

(2) Lasers of sufficient continuous wave or pulsed power to effect destruction similar to the manner of conventional ammunition;

(3) Particle beam systems;

(4) Particle accelerators that project a charged or neutral particle beam with destructive power;

(5) High power radio-frequency (RF) systems;

(6) High pulsed power or high average power radio frequency beam transmitters that produce fields sufficiently intense to disable electronic circuitry at distant targets;

(7) Prime power generation, energy storage, switching, power conditioning, thermal management or fuel-handling equipment;

(8) Target acquisition or tracking systems;

(9) Systems capable or assessing target damage, destruction or mission-abort;

(10) Beam-handling, propagation or pointing equipment;

(11) Equipment with rapid beam slew capability for rapid multiple target operations;

(12) Negative ion beam funneling equipment; and,

(13) Equipment for controlling and slewing a high-energy ion beam.

*(b) Equipment specifically designed or modified for the detection or identification of, or defense against, articles controlled in paragraph (a) of this category.

(c) Tooling and equipment specifically designed or modified for the production of defense articles controlled by this category.

(d) Test and evaluation equipment and test models specifically designed or modified for the defense articles controlled by this category. This includes, but is not limited to, diagnostic instrumentation and physical test models.

(e) Components, parts, accessories, attachments and associated equipment specifically designed or modified for the articles in paragraphs (a) through (d) of this category.

(f) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (e) of this category. Technical data directly related to the manufacture or production of any defense articles enumerated in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.

(g) The following interpretations explain and amplify terms used in this category and elsewhere in this subchapter:

(1) The components, parts, accessories, attachments and associated equipment include, but are not limited to adaptive optics and phase conjugators components, space-qualified accelerator components, targets and specifically designed target diagnostics, current injectors for negative hydrogen ion beams, and space-qualified foils for neutralizing negative hydrogen isotope beams.

(2) The articles controlled in this category include any end item, component, accessory, attachment, part, firmware, software or system that has been designed or manufactured using technical data and defense services controlled by this category.

(3) The articles specifically designed or modified for military application controlled in this category include any article specifically developed, configured, or adapted for military application.

* * * * *

Sec. 121.4 [Removed and Reserved]

3. Section 121.4 is removed and reserved.

Sec. 121.6 [Removed and Reserved]

4. Section 121.6 is removed and reserved.

PART 123—LICENSES FOR THE EXPORT OF DEFENSE ARTICLES

5. The authority citation for Part 123 continues to read as follows:

Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2278, 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp., p. 79; 22 U.S.C. 2658; Pub. L. 105-261, 112 Stat. 1920.

6. Section 123.20 is revised to read as follows:

§ 123.20

Nuclear related controls.

(a) The provisions of this subchapter do not apply to equipment, technical data or services in Category VI(e) and Category XVI of § 121.1 of this subchapter to the extent such equipment, technical data or services are under the export control of the Department of Energy or the Nuclear Regulatory Commission pursuant to the Atomic Energy Act of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978, as amended, or is a government transfer authorized pursuant to these Acts.

(b) The transfer of materials, including special nuclear materials, nuclear parts of nuclear weapons, or other non-nuclear parts of nuclear weapons systems involving Restricted Data or of assistance involving any person directly or indirectly engaging in the production or use thereof is prohibited except as authorized by the Atomic Energy Act of 1954, as amended. The transfer of Restricted Data or such assistance is prohibited except as authorized by the Atomic Energy Act of 1954, as amended. The technical data or defense services relating to nuclear weapons, nuclear weapons systems or related defense purposes (and such data or services relating to applications of atomic energy for peaceful purposes, or related research and development) may constitute Restricted Data or such assistance, subject to the foregoing prohibition.

(c) A license for the export of any machinery, device, component, equipment, or technical data relating to equipment referred to in Category VI(e) of § 121.1 of this subchapter will not be granted unless the proposed equipment comes within the scope of an existing Agreement for Cooperation for Mutual Defense Purposes concluded pursuant to the Atomic Energy Act of 1954, as amended, with the government of the country to which the Article is to be exported. Licenses may be granted in the absence of such an agreement only:

(1) If the proposed export involves an article which is identical to that in use in an unclassified civilian nuclear power plant,

(2) If the proposed export has no relationship to naval nuclear propulsion, and

(3) If it is not for use in a naval propulsion plant.

7. Section 123.27(a)(1) is revised to read as follows:

§ 123.27

Special licensing regime for exports to U.S. allies of commercial communications satellite components, systems, parts, accessories, attachments and associated technical data.

(a) * * *

(1) The proposed exports or re-exports concern exclusively one or more countries of the North Atlantic Treaty Organization (Belgium, Canada, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, The Netherlands, Norway, Poland, Portugal, Spain, Turkey, United Kingdom, and the United States) and/or one or more countries which have been designated in accordance with section 517 of the Foreign Assistance Act of 1961 as a major non-NATO ally (and as defined further in section 644(q) of that Act) for purposes of that Act and the Arms Export Control Act (Argentina, Australia, Bahrain, Egypt, Israel, Japan, Jordan, New Zealand and the Republic of Korea).

* * * * *

Dated: August 16, 2002.

John R. Bolton,

Under Secretary, Arms Control and International Security, Department of State.