04-11415. Amendment to the International Traffic in Arms Regulations: United States Munitions List

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

The Department of State, in consultation with the Departments of Defense and Commerce has reviewed the International Traffic In Arms Regulations (ITAR), Part 121—The United States Munitions List (USML), Category IX—Military Training Equipment, Category X—Protective Personnel Equipment, Category XII—Fire Control, Range Finder, Optical and Guidance and Control Equipment, Category XIII—Auxiliary Military Equipment, Category XIV—Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment, and Category XVIII—Directed Energy Weapons. The review resulted in a change of the title of Categories IX and X to better reflect the items controlled in each category. Consistent with previous published changes to other categories, Categories IX, X, and XIII have been revised to add interpretations that explain and amplify the terms used in the category. The categories were also reformatted in order that they might better identify the articles controlled. While no additional items have been added to any of the categories, some articles, previously covered more broadly are now specifically identified in separate paragraphs.

In addition, this document incorporates an amendment to the text of Category XIV as published in the Federal Register on November 27, 2002 to account for the existence of personal protection devices for domestic applications such as civil defense that provide protection against the chemical and biological agents controlled by the Category and that integrate components and parts subject to the controls of the International Traffic in Arms Regulations (ITAR). This revision transfers to the jurisdiction of the Department of Commerce certain articles previously controlled on the USML.

Finally, in complying with Presidential Determination No. 2004-02 of October 6, 2003, Presidential Determination No. 2004-16 of December 30, 2003, and Presidential Determination No. 2004-21 of January 15, 2004, the ITAR is being amended to add the Philippines, Thailand, and Kuwait as major non-NATO allies of the United States.

DATES:

Effective Date: May 21, 2004.

ADDRESSES:

Interested parties are invited to submit written comments to the Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Policy, ATTN: Regulatory Change, USML Part 121, Categories IX, X, XII, XIII, XIV, and XVIII, 12th Floor, SA-1, Washington DC 20522-0112. E-mail comments may be sent to: [e-mail] with the subject line: USML Review—Category (specify). Comments will be accepted at any time.

FOR FURTHER INFORMATION CONTACT:

Mr. Stephen Tomchik, Office of Defense Trade Controls Policy, Department of State, Telephone [phone] or FAX [phone]. ATTN: Regulatory Change, USML Part 121, Categories IX, X, XII, XIII, XIV and XVIII.

SUPPLEMENTARY INFORMATION:

The specific results of the Department of State lead interagency review by category are as follows:

1. Category IX

The review of Category IX—Military Training Equipment resulted in no change in the coverage, but the scope of coverage was clarified by adding the word “training” to the title of the category. However, added to the list of items identified as a trainer are pilot-less aircraft and human rated centrifuge trainers. In addition, certain trainers are consolidated (e.g., attack trainers, instrument flight trainers, operational flight trainer and air combat training systems). A weapons system trainer includes any trainer that provides rules of engagement including flight, tactics, techniques and/or simulation. A radar trainer includes any trainer that provides training for radar operation and target systems. The absence of radar target generators from the list of items included as training equipment is not a change in coverage, but a determination that the radar target generator is a component, part, or accessory of a radar system and more appropriately controlled in Category XI.

Specific changes to the category are the identification in paragraph (c) of tooling and equipment specifically designed or modified for production of the items in the category. This resulted in components, parts, accessories, attachment, and associated equipment moving to paragraph (d) and technical data and defense services to a new paragraph (e). In addition, a new paragraph (f) contains interpretations that explain and amplify terms used in the category.

2. Category X

The review changed the title of the category to better reflect the items controlled. The title now reads Category X—Protective Personnel Equipment and Shelters. Also, it was determined that reformatting the category would provide better identification to users of the items controlled. To provide specified control levels for body armor an interpretive note was added to outline the standards established by the National Institute of Justice Classification. In addition, a threshold parameter for pressure suits with military applications was added. Category X now specifically identifies the controls of certain military protective equipment (e.g., diving suits, goggles, glasses, visors). Similarly, the control of clothing designed to protect against sensor detection was clarified via the addition of a threshold parameter. Underwater breathing apparatus currently controlled in Category XIII are transferred to this category. Finally, having determined that they are more appropriately considered to be a component of an aircraft, liquid oxygen converters are transferred from paragraph (b) of this category to paragraph 8(h) of Category VIII and USML control is maintained on these commodities even though they no longer are specifically enumerated in the text.

To accomplish these changes paragraph (a) now controls protective personnel equipment, with subparagraphs for body armor, radar protective clothing, G-suits, full and partial pressure suits, submarine diving rescue suits, helmets designed to be compatible with communications hardware or optical sights/slewing devices, protective goggles, glasses or visors. With the movement of partial pressures suits to paragraph (a) of this category and the movement of liquid oxygen converters to Category VIII (h), paragraph (b) now contains permanent or transportable shelters. With the transfer of components, parts, accessories, attachments, and associated equipment currently in paragraph (c) and technical data and defense services currently in paragraph (d) to new paragraphs (d) and (e) respectively, paragraph (c) now controls tooling and equipment specifically designed or modified for the production of the articles controlled by the category. Finally, a new paragraph (f) is added to the category to provide interpretations that explain and amplify the terms used in the category.

3. Category XII

The Department of Commerce Export Commodity Control Numbers (ECCNs) found in paragraph (c) dealing with military second and third generation image intensification tubes and military infrared focal plane arrays that are part of a commercial system are corrected for accuracy.

4. Category XIII

The Military Information Security Systems in paragraph (b) are now described as Military Information Security Assurance Systems to more appropriately define the criteria for the evaluation of such systems. The language describing criteria in paragraph (b)(4) is changed to reflect current evaluation criteria. Paragraph (e) now controls armor and reactive armor not controlled elsewhere in this subchapter, while paragraph (f) controls certain specified structural materials. The current paragraphs (e) and (f) and redesignated (g) and (h) without any change in control. The chemiluminescent compounds currently in paragraph (g) are assessed to be more properly considered as components; those used for the detection or identification of chemical agents are covered under Category XIV as a component of chemical agent equipment, while solid state devices made from compounds designed or modified for military applications, such as semiconductors, are controlled in Category XI. The text referring to particle beam devices in paragraph (h) is transferred to Category XVIII—Directed Energy Weapons as an interpretive note. Paragraph (k) now controls tooling and equipment designed to produce the articles controlled by the category. Finally, a new paragraph (m) is added to the category to provide interpretations that explain and amplify the terms used in the category.

5. Category XIV

Since the publication on November 27, 2002 (67 FR 70839) of the revision to this category, information has become available demonstrating the existence of personal protection devices for domestic applications such as civil defense that integrate components and parts subject to the controls of the International Traffic in Arms Regulations (ITAR). As in the case of Category XII of the USML, wherein commercial systems that incorporate military second and third generation image intensification tubes and military focal plane arrays identified in the category are licensed by the Department of Commerce, commercial domestic preparedness devices that integrate components and parts subject to the controls of the ITAR will be licensed by the Department of Commerce. To effect this change, a new interpretive note is added to paragraph (n) of the Category, designated as (4), stating that domestic preparedness devices for individual protection that integrate components and parts identified in this subparagraph are licensed by the Department of Commerce when such components are: (1) Integral to the device; (2) inseparable from the device; and (3) incapable of replacement without compromising the effectiveness of the device. In addition, components and parts identified in this subparagraph exported for integration into domestic preparedness devices for individual protection are subject to the controls of the ITAR. Explanatory language currently in paragraph (f)(4) of the Category is transferred to and incorporated into the interpretive note. Because of the insertion of the new interpretive note (4) in paragraph (n), the interpretative notes currently identified as (4), (5), and (6) are renumbered as (5), (6) and (7). In accordance with Section 38(f) of the Arms Export Control Act (AECA), as amended, this removal has been notified to the Congress and the Commerce Control List (CCL) control identified for this commodity is ECCN 1A004.

6. Category XVIII

As noted above under the discussion for Category XIII, paragraph (h) pertaining to particle beam devices is moved to this category as a new interpretive note designated (g)(2).

Regulatory Analysis and Notices

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 1996. 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, it is determined that this rule does not have sufficient federalism implications to warrant application of consultation provisions of Executive Orders 12372 and 13132.

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.

§ 121.1

General. The United States Munitions List.

* * * * *

2. Section 121.1 is amended as follows:

A. Revise Category IX—Military Training Equipment, Category X—Protective Personnel Equipment, and Category XIII—Auxiliary Military Equipment;

B. In Category XII revise paragraph (c)

C. In Category XIV revise paragraphs (f)(4) and (n)(4), (5), and (6) and add new paragraph (n)(7);

D. In Category XVIII, revise paragraphs (g)(2) and (3) and add new paragraph (g)(4).

The revisions and additions read as follows:

Category IX—Military Training Equipment and Training

(a) Training equipment specifically designed, modified, configured or adapted for military purposes, including but not limited to weapons system trainers, radar trainers, gunnery training devices, antisubmarine warfare trainers, target equipment, armament training units, pilot-less aircraft trainers, navigation trainers and human-rated centrifuges.

(b) Simulation devices for the items covered by this subchapter.

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

(d) Components, parts, accessories, attachments, and associated equipment specifically designed, modified, configured, or adapted for the articles in paragraphs (a), (b) and (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.

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

(1) The weapons systems trainers in paragraph (a) of this category include individual crew stations and system specific trainers;

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

(3) The defense services and related technical data in paragraph (f) of this category include software and associated databases that can be used to simulate trainers, battle management, test scenarios/models, and weapons effects. In any instance when the military training transferred to a foreign person does not use articles controlled by the U.S. Munitions List, the training may nevertheless be a defense service that requires authorization in accordance with this subchapter. See e.g., § 120.9 and § 124.1 of this subchapter for additional information on military training.

Category X—Protective Personnel Equipment and Shelters

(a) Protective personnel equipment specifically designed, developed, configured, adapted, modified, or equipped for military applications. This includes but is not limited to:

(1) Body armor;

(2) Clothing to protect against or reduce detection by radar, infrared (IR) or other sensors at wavelengths greater than 900 nanometers, and the specially treated or formulated dyes, coatings, and fabrics used in its design, manufacture, and production;

(3) Anti-Gravity suits (G-suits);

(4) Pressure suits capable of operating at altitudes above 55,000 feet sea level;

(5) Atmosphere diving suits designed, developed, modified, configured, or adapted for use in rescue operations involving submarines controlled by this subchapter;

(6) Helmets specially designed, developed, modified, configured, or adapted to be compatible with military communication hardware or optical sights or slewing devices;

(7) Goggles, glasses, or visors designed to protect against lasers or thermal flashes discharged by an article subject to this subchapter.

(b) Permanent or transportable shelters specifically designed and modified to protect against the effect of articles covered by this subchapter as follows:

(1) Ballistic shock or impact;

(2) Nuclear, biological, or chemical contamination.

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

(d) Components, parts, accessories, attachments, and associated equipment specifically designed, modified, configured, or adapted for use with 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.

(f) The following interpretations explain and amplify the terms used in this category and throughout this subchapter: (1) The body armor covered by this category does not include Type 1, Type 2, Type 2a, or Type 3a as defined by the National Institute of Justice Classification;

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

(3) Pressure suits in paragraph (a) (4) of this category include full and partial suits used to simulate normal atmospheric pressure conditions at high altitude.

* * * * *

Category XII—Fire Control, Range Finder, Optical and Guidance and Control Equipment

* * * * *

* (c) Infrared focal plane array detectors specifically designed, modified, or configured for military use; image intensification and other night sighting equipment or systems specifically designed, modified or configured for military use; second generation and above military image intensification tubes (defined below) specifically designed, developed, modified, or configured for military use, and infrared, visible and ultraviolet devices specifically designed, developed, modified, or configured for military application. Military second and third generation image intensification tubes and military infrared focal plane arrays identified in this subparagraph are licensed by the Department of Commerce (ECCN 6A002A and 6A003A)) when part of a commercial system (i.e., those systems originally designed for commercial use). This does not include any military system comprised of non-military specification components. Replacement tubes or focal plane arrays identified in this paragraph being exported for commercial systems are subject to the controls of the ITAR.

* * * * *

Category XIII—Auxiliary Military Equipment

(a) Cameras and specialized processing equipment therefor, photointerpretation, stereoscopic plotting, and photogrammetry equipment which are specifically designed, developed, modified, adapted, or configured for military purposes, and components specifically designed or modified therefor;

(b) Military Information Security Assurance Systems and equipment, cryptographic devices, software, and components specifically designed, developed, modified, adapted, or configured for military applications (including command, control and intelligence applications). This includes: (1) Military cryptographic (including key management) systems, equipment assemblies, modules, integrated circuits, components or software with the capability of maintaining secrecy or confidentiality of information or information systems, including equipment and software for tracking, telemetry and control (TT&C) encryption and decryption;

(2) Military cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components of software which have the capability of generating spreading or hopping codes for spread spectrum systems or equipment;

(3) Military cryptanalytic systems, equipment, assemblies, modules, integrated circuits, components or software;

(4) Military systems, equipment, assemblies, modules, integrated circuits, components or software providing certified or certifiable multi-level security or user isolation exceeding Evaluation Assurance Level (EAL) 5 of the Security Assurance Evaluation Criteria and software to certify such systems, equipment or software;

(5) Ancillary equipment specifically designed, developed, modified, adapted, or configured for the articles in paragraphs (b)(1), (2), (3), and (4) of this category.

(c) Self-contained diving and underwater breathing apparatus as follows:

(1) Closed and semi-closed (rebreathing) apparatus;

(2) Specially designed components and parts for use in the conversion of open-circuit apparatus to military use; and,

(3) Articles exclusively designed for military use with self-contained diving and underwater swimming apparatus.

(d) Carbon/carbon billets and preforms not elsewhere controlled by this subchapter (e.g., Category IV) which are reinforced with continuous unidirectional tows, tapes, or woven cloths in three or more dimensional planes (e.g., 3D, 4D) specifically designed, developed, modified, configured or adapted for defense articles.

(e) Armor (e.g., organic, ceramic, metallic), and reactive armor and components, parts and accessories not elsewhere controlled by this subchapter which have been specifically designed, developed, modified, configured or adapted for a military application.

(f) Structural materials, including carbon/carbon and metal matrix composites, plate, forgings, castings, welding consumables and rolled and extruded shapes that have been specifically designed, developed, configured, modified or adapted for defense articles.

(g) Concealment and deception equipment specifically designed, developed, modified, configured or adapted for military application, including but not limited to special paints, decoys, smoke or obscuration equipment and simulators and components, parts and accessories specifically designed, developed, modified, configured or adapted therefor.

(h) Energy conversion devices for producing electrical energy from nuclear, thermal, or solar energy, or from chemical reaction that are specifically designed, developed, modified, configured or adapted for military application.

(i) Metal embrittling agents.

* (j) Hardware and equipment, which has been specifically designed or modified for military applications, that is associated with the measurement or modification of system signatures for detection of defense articles. This includes but is not limited to signature measurement equipment; reduction techniques and codes; signature materials and treatments; and signature control design methodology.

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

(l) 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 (k) 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 designed SME.

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

(1) Paragraph (d) of this category does not control carbon/carbon billets and preforms where reinforcement in the third dimension is limited to interlocking of adjacent layers only, and carbon/carbon 3D, 4D, etc. end items that have not been specifically designed or modified for military applications (e.g., brakes for commercial aircraft or high speed trains);

(2) Metal embrittlement agents in paragraph (i) of this category are non-lethal weapon substances that alter the crystal structure of metals within a short time span. Metal embrittling agents severely weaken metals by chemically changing their molecular structure. These agents are compounded in various substances to include adhesives, liquids, aerosols, foams and lubricants.

Category XIV—Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment

* * * * *

* (f) * * *

* * * * *

(4) Individual protection against the chemical and biological agents listed in paragraphs (a) and (b) of this category.

* * * * *

(n) * * *

(4)(i) The individual protection against the chemical and biological agents controlled by this category includes military protective clothing and masks, but not those items designed for domestic preparedness (e.g., civil defense). Domestic preparedness devices for individual protection that integrate components and parts identified in this subparagraph are licensed by the Department of Commerce when such components are:

(A) Integral to the device;

(B) inseparable from the device; and,

(C) incapable of replacement without compromising the effectiveness of the device.

(ii) Components and parts identified in this subparagraph exported for integration into domestic preparedness devices for individual protection are subject to the controls of the ITAR;

(5) Technical data and defense services in paragraph (l) include libraries, databases and algorithms specifically designed or modified for use with articles controlled in paragraph (f) of this category.

(6) The tooling and equipment covered by paragraph (l) of this category includes molds used to produce protective masks, over-boots, and gloves controlled by paragraph (f) and leak detection equipment specifically designed to test filters controlled by paragraph (f) of this category.

(7) The resulting product of the combination of any controlled or non-controlled substance compounded or mixed with any item controlled by this subchapter is also subject to the controls of this category.

* * * * *

Category XVIII—Directed Energy Weapons

* * * * *

(g) * * *

(2) The particle beam systems in paragraph (a)(3) of this category include devices embodying particle beam and electromagnetic pulse technology and associated components and subassemblies (e.g., ion beam current injectors, particle accelerators for neutral or charged particles, beam handling and projection equipment, beam steering, fire control, and pointing equipment, test and diagnostic instruments, and targets) which are specifically designed or modified for directed energy weapon applications.

(3) 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.

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

* * * * *

PART 123—LICENSES FOR THE EXPORT OF DEFENSE ARTICLES

3. 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, 2778, and 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.

4. Section 123.27 is amended by revising paragraph (a)(1) to read as follows:

§ 123.27

Special licensing regime for export 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, Kuwait, New Zealand, the Philippines, Thailand, and the Republic of Korea).

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Dated: March 17, 2004.

John R. Bolton,

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