Adjustment of Controls for Lower Performing Radar and Continued Temporary Modification of Category XI of the United States Munitions List
| Published date | 30 August 2019 |
| Citation | 84 FR 45652 |
| Record Number | 2019-18821 |
| Section | Rules and Regulations |
| Court | State Department |
Federal Register, Volume 84 Issue 169 (Friday, August 30, 2019)
[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45652-45654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18821]
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DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice: 10779]
RIN 1400-AE88
Adjustment of Controls for Lower Performing Radar and Continued
Temporary Modification of Category XI of the United States Munitions
List
AGENCY: Department of State.
ACTION: Final rule; notification of temporary modification.
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SUMMARY: The Department of State, in response to public comments,
revises Category XI on the United States Munitions List to remove items
that do not warrant continued inclusion, and, pursuant to its
regulations and in the interest of the security of the United States,
temporarily modifies paragraph (b) in Category XI of the United States
Munitions List (USML).
DATES: This rule is effective August 30, 2019, except for amendatory
instruction 3 which is effective August 30, 2021.
FOR FURTHER INFORMATION CONTACT: Ms. Sarah Heidema, Director, Office of
Defense Trade Controls Policy, Department of State, telephone (202)
663-1282; email [email protected].
[[Page 45653]]
ATTN: Radar Revision and Temporary Modification of Category XI.
SUPPLEMENTARY INFORMATION: On July 1, 2014, the Department published a
final rule revising Category XI of the USML, 79 FR 37536, effective
December 30, 2014. That final rule, consistent with the two prior
proposed rules for USML Category XI (78 FR 45018, July 25, 2013 and 77
FR 70958, November 28, 2012), revised paragraph (b) of Category XI to
clarify the extent of control and maintain the existing scope of
control on items described in paragraph (b) and the directly related
software described in paragraph (d).
The Department later determined that exporters may read the revised
control language to exclude certain intelligence-analytics software
that has been and remains controlled on the USML. Therefore, the
Department determined that it was in the interest of the security of
the United States to temporarily revise USML Category XI paragraph (b),
pursuant to the provisions of 22 CFR 126.2, while a long-term solution
was developed. The Department published a final rule on July 2, 2015
(80 FR 37974) that temporarily modified USML Category XI(b) until
December 29, 2015. The Department published a final rule on December
16, 2015 (80 FR 78130) that continued the July 2, 2015 modification to
August 30, 2017. The Department published a final rule on August 30,
2017 (82 FR 41172) that continued the December 16, 2015 modification to
August 30, 2018. The Department published a final rule on August 30,
2018 (83 FR 44228) that continued the December 16, 2015 modification to
August 30, 2019.
The temporary revision clarified that the scope of control in
existence prior to December 30, 2014 for USML Category XI paragraph (b)
and directly related software in paragraph (d) remains in effect. This
clarification is achieved by reinserting the words ``analyze and
produce information from'' and by adding software to the description of
items controlled.
The Department, with its interagency partners, continues to develop
a long term solution for USML Category XI(b). However, that solution
will not be in place when the current temporary modification expires on
August 30, 2019. Therefore, the Department has determined, for the
national security and foreign policy of the United States and in the
best interest of the U.S. defense industry, to publish a final rule
that extends the temporary modification of USML XI(b) for two years, to
August 30, 2021, to allow it to be revised as part of the wholesale
revision of USML Category XI.
Adjustment of Controls for Lower Performing Radar
On February 12, 2018, the Department published a Notice of Inquiry
(83 FR 5970) requesting public comment on USML Categories V, X, and XI.
The Department and the interagency are reviewing the public comments
submitted in response, and the Department intends to draft a proposed
rule setting out revised versions of the three categories for public
comment. Extending the temporary revisions of USML Category XI(b) now
will allow the U.S. government to finalize its review of USML Category
XI, which might include proposing further modification to USML Category
XI paragraph (b) as may be warranted.
In the public comments that the Department received in response to
the Notice of Inquiry were several that identified current and imminent
commercial uses for certain lower performing radars, including in
driver-assisted and self-driving ground vehicles and in detect and
avoid systems for autonomous aerial systems. In its review of the
public comments and development of a rulemaking on USML Category XI,
the Department and its interagency partners have determined that
revisions to USML Category XI can be made to exclude these radars and
radar components from the USML. The control for certain air
surveillance radar in paragraph (a)(3)(ix) of USML Category XI is
reserved and a note is added to Category XI that removes from the USML
those transmit/receive modules and transmit/receive monolithic
microwave integrated circuits (MMICs) fabricated exclusively with
homojunction complementary metal-oxide-semiconductor (CMOS) silicon-
based circuits on silicon substrates, as well as radars and radar
antennas that are specially designed to use only such modules or MMICs.
These radars and radar components will become subject to the Export
Administration Regulations upon the effective date of this revision as
a matter of law, pursuant to 15 CFR 734.3(a).
Regulatory Findings
Administrative Procedure Act
This rulemaking is exempt from section[thinsp]553 (Rulemaking) and
section[thinsp]554 (Adjudications) of the Administrative Procedure Act
(APA) pursuant to 5 U.S.C. 553(a)(1) as a military or foreign affairs
function of the United States Government.
Regulatory Flexibility Act
Since the Department is of the opinion that this 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. 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
The Department does not believe this rulemaking is a major rule
under the criteria of 5 U.S.C. 804.
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 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 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 rulemaking is a significant but not an economically
significant rule, under the criteria of Executive Order 12866, and is
consistent with the provisions of Executive Order 13563.
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.
[[Page 45654]]
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.
Executive Order 13771
This rule is not subject to the requirements of E.O. 13771 as the
impacts are considered de minimis (82 FR 9339, February 3, 2017).
List of Subjects in 22 CFR Part 121
Arms and munitions, Classified information, Exports.
For reasons stated in the preamble, the State Department amends 22
CFR part 121 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. Effective August 30, 2019, in Sec. 121.1, under Category XI, remove
and reserve paragraph (a)(3)(ix), revise paragraph (b), and add a note
to Category XI to read as follows:
Sec. 121.1 The United States Munitions List.
* * * * *
Category XI--Military Electronics
* * * * *
* (b) Electronic systems, equipment or software, not elsewhere
enumerated in this subchapter, specially designed for intelligence
purposes that collect, survey, monitor, or exploit, or analyze and
produce information from, the electromagnetic spectrum (regardless of
transmission medium), or for counteracting such activities.
* * * * *
Note to Category XI: Category XI does not control transmit/
receive modules, transmit/receive MMICs, transmit modules, or
transmit MMICs that incorporate or are MMICs fabricated exclusively
with homojunction CMOS silicon-based circuits on silicon substrates,
or radars and radar antennas specially designed to use only such
modules or MMICs.
* * * * *
0
3. Effective August 30, 2021, in Sec. 121.1, under Category XI, revise
paragraph (b) to read as follows:
Sec. 121.1 The United States Munitions List.
* * * * *
Category XI--Military Electronics
* * * * *
*(b) Electronic systems or equipment, not elsewhere enumerated in
this subchapter, specially designed for intelligence purposes that
collect, survey, monitor, or exploit the electromagnetic spectrum
(regardless of transmission medium), or for counteracting such
activities.
* * * * *
Andrea Thompson,
Under Secretary for Arms Control and International Security.
[FR Doc. 2019-18821 Filed 8-29-19; 8:45 am]
BILLING CODE 4710-25-P
