Amendment to the International Traffic in Arms Regulations: Corrections, Clarifications, and Movement of Definitions
Federal Register, Volume 79 Issue 197 (Friday, October 10, 2014)
Federal Register Volume 79, Number 197 (Friday, October 10, 2014)
Rules and Regulations
Pages 61226-61236
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2014-23792
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DEPARTMENT OF STATE
22 CFR Parts 120, 121, 123, 126, and 130
Public Notice 8898
RIN 1400-AD64
Amendment to the International Traffic in Arms Regulations: Corrections, Clarifications, and Movement of Definitions
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: In an effort to streamline, simplify and clarify the recent revisions to the International Traffic in Arms Regulations (ITAR) made pursuant to the President's Export Control Reform (ECR) initiative, the Department of State is amending the ITAR as part of the Department of State's retrospective plan under Executive Order 13563 completed on August 17, 2011.
DATES: This rule is effective October 10, 2014.
FOR FURTHER INFORMATION CONTACT: Mr. C. Edward Peartree, Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-2792; email DDTCResponseTeam@state.gov. ATTN: Regulatory Change, Omnibus Clarifications. The Department of State's full retrospective plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.
SUPPLEMENTARY INFORMATION:
Changes in this Rule
The following changes are made to the ITAR with this final rule: (1) Definitions previously provided in Sec. Sec. 121.3, 121.4, 121.14, and 121.15 are removed from these sections and incorporated into U.S. Munitions List Categories VIII, VII, XX, and VI, respectively; (2) USML Category II is amended to clarify that grenade launchers are controlled in paragraph (a) as a result of the revisions previously made to USML Category IV pursuant to Export Control Reform; (3) USML Category IX is amended to enumerate military training not directly related to a defense article, which is a controlled activity pursuant to ITAR Sec. 120.9(a)(3). This change is required in order to provide exporters a USML category to cite for military training when not related to a defense article; (4) The note to paragraph (b) in the specially designed definition is revised to clarify that catch-all controls are only those that generically control parts, components, accessories, and attachments for a specified article and do not identify a specific specially designed part, component, accessory, or attachment. This revision is intended to help ensure that exporters properly apply ITAR Sec. 120.41 when classifying their article and clarify that when a specific article is described on the USML, it is enumerated and is not part of a catch-all; (5) The definitions previously provided in ITAR Sec. 121.8 are removed to new ITAR Sec. 120.45; (6) The policy with regard to when forgings, castings, and machined bodies are controlled as defense articles is removed from ITAR Sec. 121.10 and placed in ITAR Sec. 120.6; (7) The threshold for lithium-ion batteries controlled in Category VIII(h)(13) is increased from greater than 28 volts of direct current (VDC) nominal to greater than 38 VDC nominal, so as not to control on the USML such batteries in normal commercial aviation use; (8) A control for specially designed parts, components, accessories, and attachments is added to the helmets controlled in Category VIII(h)(15); (9) The phrase ``electric-generating'' is added to the control describing fuel cells in Category VIII(h)(23) to clarify that fuel bladders and fuel tanks are not within this control; (10) The word ``enumerated'' is replaced with the word ``described'' in the paragraphs of the USML for technical data and defense services directly related to the defense articles in that Category to clarify that the controls on technical data and defense services apply even if the defense article is described in a catch-all; (11) Conforming changes are made to citations throughout these sections; and (12) Minor reference corrections are made to Supplement No. 1 to Part 126, including moving the footnote to the entire Supplement from the end to the opening to better clarify if an item is excluded from eligibility in any row, it is excluded from that exemption, even if also described in another row that contains a description that may also include that item.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the opinion that controlling 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 5 U.S.C. 553 and 554.
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.
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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
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, a ``major'' rule is a rule that the Administrator of the OMB Office of Information and Regulatory Affairs finds has resulted or is likely to result in (1) an annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and foreign markets.
The Department does not believe this rulemaking will have an annual effect on the economy of $100,000,000 or more. Articles that are being removed from coverage in the U.S. Munitions List categories contained in this rule will still require licensing for export, but from the Department of Commerce. While the licensing regime of the Department of Commerce is more flexible than that of the Department of State, it is not expected that the change in jurisdiction of these articles will result in an export difference of $100,000,000 or more.
The Department also does not believe that this rulemaking will result in a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions, or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and foreign markets.
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,'' although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, this rule has been reviewed by the Office of Management and Budget (OMB).
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 rule does not impose or revise any reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
List of Subjects
22 CFR Parts 120 and 121
Arms and munitions, Classified information, Exports.
22 CFR Part 123
Arms and munitions, Exports, Reporting and recordkeeping requirements.
22 CFR Part 126
Arms and munitions, Exports.
22 CFR Part 130
Arms and munitions, Campaign funds, Confidential business information, Exports, Reporting and recordkeeping requirements.
Accordingly, the Department of State amends 22 CFR chapter I as follows:
PART 120--PURPOSE AND DEFINITIONS
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The authority citation for part 120 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. 2794; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
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Section 120.6 is revised to read as follows:
Sec. 120.6 Defense article.
Defense article means any item or technical data designated in Sec. 121.1 of this subchapter. The policy described in Sec. 120.3 is applicable to designations of additional items. This term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in Sec. 121.1 of this subchapter. It also includes forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles. It does not include basic marketing information on function or purpose or general system descriptions.
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Section 120.10 is amended by revising paragraph (a)(4) to read as follows:
Sec. 120.10 Technical data.
(a) * * *
(4) Software (see Sec. 120.45(f)) directly related to defense articles.
* * * * *
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Section 120.41 is amended by revising paragraph (a) introductory text, paragraph (a)(2), and the note to paragraph (b), to read as follows:
Sec. 120.41 Specially designed.
(a) Except for commodities or software described in paragraph (b) of
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this section, a commodity or software (see Sec. 120.45(f)) is specially designed if it:
* * * * *
(2) Is a part (see Sec. 120.45 (d)), component (see Sec. 120.45(b)), accessory (see Sec. 120.45(c)), attachment (see Sec. 120.45(c)), or software for use in or with a defense article.
* * * * *
Note to paragraph (b): The term ``enumerated'' refers to any article on the U.S. Munitions List or the Commerce Control List and not in a ``catch-all'' control. A ``catch-all'' control is one that does not refer to specific types of parts, components, accessories, or attachments, but rather controls unspecified parts, components, accessories, or attachments only if they were specially designed for an enumerated item.
* * * * *
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Section 120.45 is added to read as follows:
Sec. 120.45 End-items, components, accessories, attachments, parts, firmware, software, systems, and equipment.
(a) An end-item is a system, equipment, or an assembled article ready for its intended use. Only ammunition or fuel or other energy source is required to place it in an operating state.
(b) A component is an item that is useful only when used in conjunction with an end-item. A major component includes any assembled element that forms a portion of an end-item without which the end-item is inoperable. A minor component includes any assembled element of a major component.
(c) Accessories and attachments are associated articles for any component, equipment, system, or end-item, and which are not necessary for its operation, but which enhance its usefulness or effectiveness.
(d) A part is any single unassembled element of a major or a minor component, accessory, or attachment which is not normally subject to disassembly without the destruction or the impairment of designed use.
(e) Firmware and any related unique support tools (such as computers, linkers, editors, test case generators, diagnostic checkers, library of functions, and system test diagnostics) directly related to equipment or systems covered under any category of the U.S. Munitions List are considered as part of the end-item or component. Firmware includes but is not limited to circuits into which software has been programmed.
(f) Software includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems, and support software for design, implementation, test, operation, diagnosis and repair. A person who intends to export only software should, unless it is specifically enumerated in Sec. 121.1 of this subchapter (e.g., USML Category XIII(b)), apply for a technical data license pursuant to part 125 of this subchapter.
(g) A system is a combination of parts, components, accessories, attachments, firmware, software, equipment, or end-items that operate together to perform a function.
Note to paragraph (g): The industrial standards established by INCOSE and NASA provide examples for when commodities and software operate together to perform a function as a system. References to these standards are included in this note to provide examples for when commodities or software operate together to perform a function as a system. See the INCOSE standards for what constitutes a system at: http://g2sebok.incose.org/app/mss/asset.cfm?ID=INCOSE%20G2SEBOK%202.00&ST=F, and in INCOSE SE Handbook v3.1 2007; ISO/IEC 15288:2008. See the NASA standards for examples of what constitutes a system in NASA SE Handbook SP-2007-6105 Rev 1.
(h) Equipment is a combination of parts, components, accessories, attachments, firmware, or software that operate together to perform a function of, as, or for an end-item or system. Equipment may be a subset of an end-item based on the characteristics of the equipment. Equipment that meets the definition of an end-item is an end-item. Equipment that does not meet the definition of an end-item is a component, accessory, attachment, firmware, or software.
PART 121--THE UNITED STATES MUNITIONS LIST
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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.
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Section 121.1 is amended by:
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Revising the section heading;
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Revising the final sentence of paragraph (b)(2);
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Removing the word ``enumerated'' and adding in its place the word ``described'' in two places in paragraph (b)(2), in two places in paragraph (i) of Category I, in two places in paragraph (k) of Category II, in two places in paragraph (e) of Category III, in one place in paragraph (i) of Category IV, in one place in Note 1 to paragraph (i) of Category VI, in one place in Note to paragraph (h)(1) of Category VIII, in one place in paragraph (i) of Category VIII, in one place in paragraph (e) of Category IX, in one place in paragraph (e) of Category X, in two places in paragraph (d) of Category XI, in two places in paragraph (f) of Category XII, in two places in paragraph (l) of Category XIII, in two places in paragraph (m) of Category XIV, in two places in paragraph (f) of Category XV, in one place in paragraph (e) of Category XVI, in two places in paragraph (f) of Category XVIII, in one place in paragraph (g) of Category XIX, in one place in paragraph (d) of Category XX;
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Revising paragraph (a) of Category II;
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Removing the word ``numerated'' in adding in its place the word ``described'' in paragraph (j) of Category V;
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Revising paragraphs (a) and (b), and adding the note to paragraph (b)(4), and the note to paragraphs (a) and (b) in Category VI;
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Revising paragraphs (a) introductory text, (b), (c), and (e), and adding the note to paragraph (c), and note 1, note 2, and note 3 to Category VII in Category VII;
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Revising paragraphs (a) introductory text, (a)(9), (a)(11), (a)(12), (a)(13), adding paragraphs (a)(14), (a)(15), and (a)(16), revising paragraphs (h)(3), (h)(6), (h)(13), (h)(15), and (h)(23), adding note 1 and note 2 to paragraph (a)(11), and note 1 to paragraph (a), and redesignating the note to paragraph (a) as note 2 to paragraph (a) in Category VIII;
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Revising the title of Category IX, removing the note to paragraph (e) of Category IX, and revising paragraph (e) of Category IX;
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Adding note to paragraph (f)(1) in Category XIX; and
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Revising paragraphs (a) introductory text, (a)(1), and (a)(4), redesignating paragraphs (a)(6), (a)(7), and notes 1 through 3 of paragraph (a)(7) as paragraphs (a)(7), (a)(8), and notes 1 through 3 of paragraph (a)(8), respectively, adding a new paragraph (a)(6) and revising paragraph (a)(7) in Category XX.
The revisions and additions read as follows:
Sec. 121.1 The United States Munitions List.
* * * * *
(b) * * *
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(2) * * * Most U.S. Munitions List categories contain an entry on technical data (see Sec. 120.10 of this subchapter) and defense services (see Sec. 120.9 of this subchapter) related to the defense articles described in that U.S. Munitions List category.
* * * * *
Category II--Guns and Armament
*(a) Guns over caliber .50 (i.e., 12.7 mm), whether towed, airborne, self-propelled, or fixed, including but not limited to, howitzers, mortars, cannons, recoilless rifles, and grenade launchers.
* * * * *
Category VI--Surface Vessels of War and Special Naval Equipment
*(a) Warships and other combatant vessels (i.e., battleships, aircraft carriers, destroyers, frigates, cruisers, corvettes, littoral combat ships, mine sweepers, mine hunters, mine countermeasure ships, dock landing ships, amphibious assault ships), Coast Guard Cutters (with or equivalent to those with U.S. designations WHEC, WMEC, WMSL, or WPB for the purpose of this subchapter), or foreign-origin vessels specially designed to provide functions equivalent to those of the vessels listed above;
(b) Other vessels not controlled in paragraph (a) of this category, as follows:
(1) High-speed air cushion vessels for transporting cargo and personnel, ship-to-shore and across a beach, with a payload over 25 tons;
(2) Surface vessels integrated with nuclear propulsion plants or specially designed to support naval nuclear propulsion plants;
(3) Vessels armed or specially designed to be used as a platform to deliver munitions or otherwise destroy or incapacitate targets (e.g., firing lasers, launching torpedoes, rockets, or missiles, or firing munitions greater than .50 caliber); or
(4) Vessels incorporating any mission systems controlled under this subchapter.
Note to paragraph (b)(4): ``Mission systems'' are defined as ``systems'' (see Sec. 120.45(g) of this subchapter) that are defense articles that perform specific military functions such as by providing military communication, electronic warfare, target designation, surveillance, target detection, or sensor capabilities.
Note to paragraphs (a) and (b): Vessels specially designed for military use that are not identified in paragraph (a) or (b) of this category are subject to the EAR under ECCN 8A609, including any demilitarized vessels, regardless of origin or designation, manufactured prior to 1950 and unmodified since 1949. Vessels with modifications made to incorporate safety features required by law, are cosmetic (e.g., different paint), or that add parts or components otherwise available prior to 1950 are considered ``unmodified'' for the purposes of this paragraph.
* * * * *
Category VII--Ground Vehicles
*(a) Armored combat ground vehicles as follows:
* * * * *
*(b) Ground vehicles (not enumerated in paragraph (a) of this category) and trailers that are armed or are specially designed to be used as a firing or launch platform to deliver munitions or otherwise destroy or incapacitate targets (e.g., firing lasers, launching rockets, firing missiles, firing mortars, firing artillery rounds, or firing other ammunition greater than .50 caliber) (MT if specially designed for rockets, space launch vehicles, missiles, drones, or unmanned aerial vehicles capable of delivering a payload of at least 500 kg to a range of at least 300 km).
(c) Ground vehicles and trailers equipped with any mission systems controlled under this subchapter (MT if specially designed for rockets, space launch vehicles, missiles, drones, or unmanned aerial vehicles capable of delivering a payload of at least 500 kg to a range of at least 300 km).
Note to paragraph (c): ``Mission systems'' are defined as ``systems'' (see Sec. 120.45(g) of this subchapter) that are defense articles that perform specific military functions, such as by providing military communication, target designation, surveillance, target detection, or sensor capabilities.
* * * * *
*(e) Armored support vehicles capable of off-road or amphibious use specially designed to transport or deploy personnel or materiel, or to move with other vehicles over land in close support of combat vehicles or troops (e.g., personnel carriers, resupply vehicles, combat engineer vehicles, recovery vehicles, reconnaissance vehicles, bridge launching vehicles, ambulances, and command and control vehicles).
Note 1 to Category VII: Ground vehicles specially designed for military applications that are not identified in this category are subject to the EAR under ECCN 0A606, including any unarmed ground vehicles, regardless of origin or designation, manufactured prior to 1956 and unmodified since 1955. Ground vehicles with modifications made to incorporate safety features required by law, are cosmetic (e.g., different paint, repositioning of bolt holes), or that add parts or components otherwise available prior to 1956 are considered ``unmodified'' for the purposes of this paragraph. ECCN 0A606 also includes unarmed vehicles derived from otherwise EAR99 civilian vehicles that have been modified or otherwise fitted with materials to provide ballistic protection, including protection to level III (National Institute of Justice Standard 0108.01, September 1985) or better and that do not have reactive or electromagnetic armor.
Note 2 to Category VII: Armored ground vehicles are (i) ground vehicles that have integrated, fully armored hulls or cabs, or (ii) ground vehicles on which add-on armor has been installed to provide ballistic protection to level III (National Institute of Justice Standard 0108.01, September 1985) or better. Armored support vehicles do not include those that are merely capable of being equipped with add-on armor.
Note 3 to Category VII: Ground vehicles include any vehicle meeting the definitions or control parameters regardless of the surface (e.g., highway, off-road, rail) upon which the vehicle is designed to operate.
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Category VIII--Aircraft and Related Articles
(a) Aircraft, as follows:
* * * * *
(9) Air refueling aircraft;
* * * * *
(11) Aircraft incorporating any mission system controlled under this subchapter;
Note 1 to paragraph (a)(11): ``Mission systems'' are defined as ``systems'' (see Sec. 120.45(g) of this subchapter) that are defense articles that perform specific military functions such as by providing military communication, electronic warfare, target designation, surveillance, target detection, or sensor capabilities.
Note 2 to paragraph (a)(11): This does not include tethered aerostats. Mission systems incorporated on otherwise EAR-controlled aerostats are controlled as the mission systems themselves just as if they were mounted, for example, on a tower or a pole.
(12) Aircraft capable of being refueled in flight including hover-
in-flight refueling (HIFR);
*(13) Optionally Piloted Vehicles (OPV) (i.e. aircraft specially designed to operate with and without a pilot physically located in the aircraft) (MT if the OPV has a range equal to or greater than 300km);
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(14) Aircraft with a roll-on/roll-off ramp, capable of airlifting payloads over 35,000 lbs. to ranges over 2,000 nm without being refueled in-flight, and landing onto short or unimproved airfields;
*(15) Aircraft not enumerated in paragraphs (a)(1) through (a)(14) as follows:
(i) U.S.-origin aircraft that bear an original military designation of A, B, E, F, K, M, P, R, or S; or
(ii) Foreign-origin aircraft specially designed to provide functions equivalent to those of the aircraft listed in paragraph (a)(15)(i) of this category; or
(16) are armed or are specially designed to be used as a platform to deliver munitions or otherwise destroy targets (e.g., firing lasers, launching rockets, firing missiles, dropping bombs, or strafing);
Note 1 to paragraph (a): Aircraft specially designed for military applications that are not identified in paragraph (a) of this section are subject to the EAR and classified as ECCN 9A610, including any unarmed military aircraft, regardless of origin or designation, manufactured prior to 1956 and unmodified since manufacture. Aircraft with modifications made to incorporate safety of flight features or other FAA or NTSB modifications such as transponders and air data recorders are considered ``unmodified'' for the purposes of this paragraph.
* * * * *
(h) * * *
(3) Tail boom folding systems, stabilator folding systems or automatic rotor blade folding systems, and specially designed parts and components therefor;
* * * * *
(6) Bomb racks, missile launchers, missile rails, weapon pylons, pylon-to-launcher adapters, unmanned aerial vehicle (UAV) airborne launching systems, external stores support systems for ordnance or weapons, and specially designed parts and components therefor (MT if the bomb rack, missile launcher, missile rail, weapon pylon, pylon-to-
launcher adapter, UAV airborne launching system, or external stores support system is for a UAV, drone, or missile that has a ``range'' equal to or greater than 300 km);
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(13) Aircraft Lithium-ion batteries that provide greater than 38VDC nominal;
* * * * *
(15) Integrated helmets incorporating optical sights or slewing devices, which include the ability to aim, launch, track, or manage munitions (e.g., Helmet Mounted Cueing Systems, Joint Helmet Mounted Cueing Systems (JHMCS), Helmet Mounted Displays, Display and Sight Helmets (DASH)), and specially designed parts, components, accessories, and attachments therefor;
* * * * *
(23) Electricity-generating fuel cells specially designed for aircraft controlled in this category or controlled in ECCN 9A610;
* * * * *
Category IX--Military Training Equipment and Training
* * * * *
(e) Technical data (see Sec. 120.10 of this subchapter) and defense services (see Sec. 120.9 of this subchapter):
(1) Directly related to the defense articles enumerated in paragraphs (a) and (b) of this category;
(2) Directly related to the software and associated databases enumerated in paragraph (b)(4) of this category even if no defense articles are used or transferred; or
(3) Military training (see, Sec. 120.9(a)(3) of this subchapter) not directly related to defense articles or technical data enumerated in this subchapter.
* * * * *
Category XIX--Gas Turbine Engines and Associated Equipment
* * * * *
(f) * * *
(1) * * *
Note to paragraph (f)(1): Specially designed (see Sec. 120.41(b)(3)(ii) of this subchapter) does not control parts, components, accessories, and attachments that are common to engines enumerated in paragraph (a) through (d) of this category but not identified in paragraph (f)(1), and those identified in paragraph (f)(1). For example, a part common to only the F110 and F136 is not specially designed for purposes of the ITAR. A part common to only the F119 and F135--two engine models identified in paragraph (f)(1)--is specially designed.
* * * * *
Category XX--Submersible Vessels and Related Articles
(a) Submersible and semi-submersible vessels that are:
*(1) Submarines specially designed for military use;
* * * * *
(4) Armed or are specially designed to be used as a platform to deliver munitions or otherwise destroy or incapacitate targets (e.g., firing torpedoes, launching rockets, firing missiles, deploying mines, deploying countermeasures) or deploy military payloads;
* * * * *
(6) Integrated with nuclear propulsion systems;
(7) Equipped with any mission systems controlled under this subchapter; or
Note to paragraph (a)(7): ``Mission system'' is defined as a ``system'' (see Sec. 120.45(g) of this subchapter) that are defense articles that perform specific military functions such as by providing military communication, electronic warfare, target designation, surveillance, target detection, or sensor capabilities.
* * * * *
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Sections 121.2, 121.3, 121.4, 121.8, 121.10, 121.14, and 121.15 are removed and reserved.
PART 123--LICENSES FOR THE EXPORT AND TEMPORARY IMPORT OF DEFENSE ARTICLES
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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, 2797); 22 U.S.C. 2753; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. L. 105-261, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-
228; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
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Section 123.1 is amended by removing the word ``enumerated'' and adding in its place the word ``described'' in one place in paragraph (b)(1).
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Section 123.16 is amended by revising paragraph (b)(4) to read as follows:
Sec. 123.16 Exemptions of general applicability.
* * * * *
(b) * * *
(4) Port Directors of U.S. Customs and Border Protection shall permit the export without a license, of unclassified models or mock-ups of defense articles, provided that such models or mock-ups are inoperable and do not reveal any technical data in excess of that which is exempted from the licensing requirements of Sec. 125.4(b) of this subchapter and do not contain components (see Sec. 120.45(b) of this subchapter) covered by the U.S. Munitions List (see Sec. 121.1 of this subchapter). Some models or mockups built to scale or constructed of original materials can reveal technical data. U.S. persons who avail themselves of this exemption must provide a written certification to the Port Director of U.S. Customs and Border Protection that these conditions are met. This exemption does not imply that the
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Directorate of Defense Trade Controls will approve the export of any defense articles for which models or mocks-ups have been exported pursuant to this exemption.
* * * * *
PART 126--GENERAL POLICIES AND PROVISIONS
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The authority citation for part 126 continues to read as follows:
Authority: Secs. 2, 38, 40, 42, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 22 U.S.C. 2651a; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205; 3 CFR, 1994 Comp., p. 899; Sec. 1225, Pub. L. 108-375; Sec. 7089, Pub. L. 111-117; Pub. L. 111-
266; Sections 7045 and 7046, Pub. L. 112-74; E.O. 13637, 78 FR 16129.
Sec. 126.1 Amended
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Section 126.1 is amended by removing the word ``enumerated'' and adding in its place the word ``described'' in one place in paragraph (c).
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Supplement No. 1 to part 126 is revised to read as follows:
Supplement No. 1 to Part 126
Supplement No. 1*
*An ``X'' in the chart indicates that the item is excluded from use
under the exemption referenced in the top of the column. An item
excluded in any one row is excluded regardless of whether other rows may
contain a description that would include the item.
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(CA) Sec. (AS) Sec. (UK) Sec.
USML Category Exclusion 126.5 126.16 126.17
------------------------------------------------------------------------
I-XXI.......... Classified defense X X X
articles and
services. See Note 1.
I-XXI.......... Defense articles X X X
listed in the Missile
Technology Control
Regime (MTCR) Annex.
I-XXI.......... U.S. origin defense ......... X X
articles and services
used for marketing
purposes and not
previously licensed
for export in
accordance with this
subchapter.
I-XXI.......... Defense services for X ......... .........
or technical data
related to defense
articles identified
in this supplement as
excluded from the
Canadian exemption.
I-XXI.......... Any transaction X ......... .........
involving the export
of defense articles
and services for
which congressional
notification is
required in
accordance with Sec.
123.15 and Sec.
124.11 of this
subchapter.
I-XXI.......... U.S. origin defense ......... X X
articles and services
specific to
developmental systems
that have not
obtained written
Milestone B approval
from the U.S.
Department of Defense
milestone approval
authority, unless
such export is
pursuant to a written
solicitation or
contract issued or
awarded by the U.S.
Department of Defense
for an end-use
identified in
paragraph (e)(1),
(e)(2), or (e)(4) of
Sec. 126.16 or Sec.
126.17 of this
subchapter and is
consistent with other
exclusions of this
supplement.
I-XXI.......... Nuclear weapons X ......... .........
strategic delivery
systems and all
components, parts,
accessories, and
attachments
specifically designed
for such systems and
associated equipment.
I-XXI.......... Defense articles and ......... X X
services specific to
the existence or
method of compliance
with anti-tamper
measures, where such
measures are readily
identifiable, made at
originating
Government direction.
I-XXI.......... Defense articles and ......... X X
services specific to
reduced observables
or counter low
observables in any
part of the spectrum.
See Note 2.
I-XXI.......... Defense articles and ......... X X
services specific to
sensor fusion beyond
that required for
display or
identification
correlation. See Note
-
I-XXI.......... Defense articles and ......... X X
services specific to
the automatic target
acquisition or
recognition and
cueing of multiple
autonomous unmanned
systems.
I-XXI.......... Nuclear power ......... ......... X
generating equipment
or propulsion
equipment (e.g.,
nuclear reactors),
specifically designed
for military use and
components therefor,
specifically designed
for military use. See
also Sec. 123.20 of
this subchapter.
I-XXI.......... Libraries (parametric ......... ......... X
technical databases)
specially designed
for military use with
equipment controlled
on the USML. See Note
-
I-XXI.......... Defense services or X ......... .........
technical data
specific to applied
research as defined
in Sec. 125.4(c)(3)
of this subchapter,
design methodology as
defined in Sec.
125.4(c)(4) of this
subchapter,
engineering analysis
as defined in Sec.
125.4(c)(5) of this
subchapter, or
manufacturing know-
how as defined in
Sec. 125.4(c)(6) of
this subchapter. See
Note 12.
I-XXI.......... Defense services other X ......... .........
than those required
to prepare a quote or
bid proposal in
response to a written
request from a
department or agency
of the United States
Federal Government or
from a Canadian
Federal, Provincial,
or Territorial
Government; or
defense services
other than those
required to produce,
design, assemble,
maintain or service a
defense article for
use by a registered
U.S. company, or a
U.S. Federal
Government Program,
or for end-use in a
Canadian Federal,
Provincial, or
Territorial
Government Program.
See Note 14.
I.............. Firearms, close X ......... .........
assault weapons, and
combat shotguns.
II(k).......... Software source code ......... X X
related to USML
Category II(c),
II(d), or II(i). See
Note 4.
II(k).......... Manufacturing know-how X X X
related to USML
Category II(d). See
Note 5.
III............ Ammunition for X ......... .........
firearms, close
assault weapons, and
combat shotguns
listed in USML
Category I.
III............ Defense articles and ......... ......... X
services specific to
ammunition and fuse
setting devices for
guns and armament
controlled in USML
Category II.
III(e)......... Manufacturing know-how X X X
related to USML
Category III(d)(1) or
III(d)(2) and their
specially designed
components. See Note
-
III(e)......... Software source code ......... X X
related to USML
Category III(d)(1) or
III(d)(2). See Note 4.
IV............. Defense articles and X X X
services specific to
man-portable air
defense systems
(MANPADS). See Note 6.
IV............. Defense articles and ......... ......... X
services specific to
rockets, designed or
modified for non-
military applications
that do not have a
range of 300 km
(i.e., not controlled
on the MTCR Annex).
IV............. Defense articles and ......... X X
services specific to
torpedoes.
IV............. Defense articles and X X X
services specific to
anti-personnel
landmines. See Note
-
Page 61232
IV............. Defense articles and X X X
services specific to
cluster munitions.
IV(i).......... Software source code ......... X X
related to USML
Category IV(a),
IV(b), IV(c), or
IV(g). See Note 4.
IV(i).......... Manufacturing know-how X X X
related to USML
Category IV(a),
IV(b), IV(d), or
IV(g) and their
specially designed
components. See Note
-
V.............. The following ......... ......... X
energetic materials
and related
substances:.
-
TATB
(triaminotrinitrobenz
ene) (CAS 3058-38-6);.
-
Explosives
controlled in USML
Category V(a)(38);.
-
Iron powder (CAS
7439-89-6) with
particle size of 3
micrometers or less
produced by reduction
of iron oxide with
hydrogen;.
-
BOBBA-8 (bis(2-
methylaziridinyl)2-(2-
hydroxypropanoxy)
propylamino phosphine
oxide), and other
MAPO derivatives;.
-
N-methyl-p-
nitroaniline (CAS 100-
15-2); or.
f.
Trinitrophenylmethyln
itramine (tetryl)
(CAS 479-45-8).
V(a)(13)....... ANF or ANAzF as ......... ......... X
described in USML
Category
V(a)(13)(iii) and
(iv).
V(a)(23)....... Difluoraminated ......... ......... X
derivative of RDX as
described in USML
Category
V(a)(23)(iii).
V(c)(7)........ Pyrotechnics and ......... ......... X
pyrophorics
specifically
formulated for
military purposes to
enhance or control
radiated energy in
any part of the IR
spectrum.
V(d)(3)........ Bis-2, 2- ......... ......... X
dinitropropylnitrate
(BDNPN).
V(i)........... Developmental ......... X X
explosives,
propellants,
pyrotechnics, fuels,
oxidizers, binders,
additives, or
precursors therefor,
funded by the
Department of Defense
via contract or other
funding authorization
in accordance with
notes 1 to 3 for USML
Category V(i). This
exclusion does not
apply if such export
is pursuant to a
written solicitation
or contract issued or
awarded by the U.S.
Department of Defense
for an end-use
identified in
paragraph (e)(1),
(e)(2), or (e)(4) of
Sec. 126.16 or Sec.
126.17 of this
subchapter and is
consistent with other
exclusions of this
supplement.
VI............. Defense articles and ......... ......... X
services specific to
cryogenic equipment,
and specially
designed components
or accessories
therefor, specially
designed or
configured to be
installed in a
vehicle for military
ground, marine,
airborne or space
applications, capable
of operating while in
motion and of
producing or
maintaining
temperatures below
103 K (-170degC).
VI............. Defense articles and ......... ......... X
services specific to
superconductive
electrical equipment
(rotating machinery
and transformers)
specially designed or
configured to be
installed in a
vehicle for military
ground, marine,
airborne, or space
applications and
capable of operating
while in motion.
This, however, does
not include direct
current hybrid
homopolar generators
which have single-
pole normal metal
armatures that rotate
in a magnetic field
produced by
superconducting
windings, provided
those windings are
the only
superconducting
component in the
generator.
VI............. Defense articles and ......... X X
services specific to
naval technology and
systems relating to
acoustic spectrum
control and
awareness. See Note
-
-
VI(a).......... Nuclear powered X X X
vessels.
VI(e).......... Defense articles and X X X
services specific to
naval nuclear
propulsion equipment.
See Note 7.
VI(g).......... Software source code ......... X X
related to USML
Category VI(a) or
VI(c). See Note 4.
VII............ Defense articles and ......... ......... X
services specific to
cryogenic equipment,
and specially
designed components
or accessories
therefor, specially
designed or
configured to be
installed in a
vehicle for military
ground, marine,
airborne or space
applications, capable
of operating while in
motion and of
producing or
maintaining
temperatures below
103 K (-170degC).
VII............ Defense articles and ......... ......... X
services specific to
superconductive
electrical equipment
(rotating machinery
and transformers)
specially designed or
configured to be
installed in a
vehicle for military
ground, marine,
airborne, or space
applications and
capable of operating
while in motion.
This, however, does
not include direct
current hybrid
homopolar generators
that have single-pole
normal metal
armatures which
rotate in a magnetic
field produced by
superconducting
windings, provided
those windings are
the only
superconducting
component in the
generator.
VIII........... Defense articles and ......... ......... X
services specific to
cryogenic equipment,
and specially
designed components
and accessories
therefor, specially
designed or
configured to be
installed in a
vehicle for military
ground, marine,
airborne or space
applications, capable
of operating while in
motion and of
producing or
maintaining
temperatures below
103 K (-170degC).
VIII........... Defense articles and ......... ......... X
services specific to
superconductive
electrical equipment
(rotating machinery
and transformers)
specially designed or
configured to be
installed in a
vehicle for military
ground, marine,
airborne, or space
applications and
capable of operating
while in motion.
This, however, does
not include direct
current hybrid
homopolar generators
which have single-
pole normal metal
armatures that rotate
in a magnetic field
produced by
superconducting
windings, provided
those windings are
the only
superconducting
component in the
generator.
VIII(a)........ All USML Category X ......... .........
VIII(a) items.
VIII(f)........ Developmental aircraft X ......... .........
parts, components,
accessories, and
attachments
identified in USML
Category VIII(f).
VIII(i)........ Manufacturing know-how X X X
related to USML
Category VIII(a) or
VIII(e), and
specially designed
parts or components
therefor. See Note 5.
VIII(i)........ Software source code ......... X X
related to USML
Category VIII(a) or
VIII(e). See Note 4.
IX............. Training or simulation ......... X X
equipment for Man
Portable Air Defense
Systems (MANPADS).
See Note 6.
IX(e).......... Software source code ......... X X
related to USML
Category IX(a) or
IX(b). See Note 4.
IX(e).......... Software that is both ......... ......... X
specifically designed
or modified for
military use and
specifically designed
or modified for
modeling or
simulating military
operational scenarios.
Page 61233
X(e)........... Manufacturing know-how X X X
related to USML
Category X(a)(1) or
X(a)(2), and
specially designed
components therefor.
See Note 5.
XI(a).......... Defense articles and ......... X X
services specific to
countermeasures and
counter-
countermeasures See
Note 9.
XI(a).......... High Frequency and ......... X .........
Phased Array
Microwave Radar
systems, with
capabilities such as
search, acquisition,
tracking, moving
target indication,
and imaging radar
systems. See Note 16.
XI............. Defense articles and ......... X X
services specific to
naval technology and
systems relating to
acoustic spectrum
control and
awareness. See Note
-
XI(b), XI(c), Defense articles and ......... X X
XI(d). services specific to
USML Category XI (b)
(e.g., communications
security (COMSEC) and
TEMPEST).
XI(d).......... Software source code ......... X X
related to USML
Category XI(a). See
Note 4.
XI(d).......... Manufacturing know-how X X X
related to USML
Category XI(a)(3) or
XI(a)(4), and
specially designed
components therefor.
See Note 5.
XII............ Defense articles and ......... X X
services specific to
countermeasures and
counter-
countermeasures. See
Note 9.
XII............ Defense articles and X ......... .........
services specific to
USML Category XII(c)
articles, except any
1st- and 2nd-
generation image
intensification tubes
and 1st- and 2nd-
generation image
intensification night
sighting equipment.
End-items in USML
Category XII(c) and
related technical
data limited to basic
operations,
maintenance, and
training information
as authorized under
the exemption in Sec.
125.4(b)(5) of this
subchapter may be
exported directly to
a Canadian Government
entity (i.e.,
federal, provincial,
territorial, or
municipal) consistent
with Sec. 126.5,
other exclusions, and
the provisions of
this subchapter.
XII............ Technical data or X X X
defense services for
night vision
equipment beyond
basic operations,
maintenance, and
training data.
However, the AS and
UK Treaty exemptions
apply when such
export is pursuant to
a written
solicitation or
contract issued or
awarded by the U.S.
Department of Defense
for an end-use
identified in
paragraph (e)(1),
(e)(2), or (e)(4) of
Sec. 126.16 or Sec.
126.17 of this
subchapter and is
consistent with other
exclusions of this
supplement.
XII(f)......... Manufacturing know-how X X X
related to USML
Category XII(d) and
specially designed
components therefor.
See Note 5.
XII(f)......... Software source code ......... X X
related to USML
Category XII(a),
XII(b), XII(c), or
XII(d). See Note 4.
XIII(b)........ Defense articles and ......... X X
services specific to
USML Category XIII(b)
(Military Information
Security Assurance
Systems,
cryptographic
devices, software,
and components).
XIII(d)........ Carbon/carbon billets ......... ......... X
and preforms which
are reinforced in
three or more
dimensional planes,
specifically
designed, developed,
modified, configured
or adapted for
defense articles.
XIII(e)........ Defense articles and ......... ......... X
services specific to
armored plate
manufactured to
comply with a
military standard or
specification or
suitable for military
use. See Note 11.
XIII(g)........ Defense articles and ......... ......... X
services related to
concealment and
deception equipment
and materials.
XIII(h)........ Energy conversion ......... ......... X
devices other than
fuel cells.
XIII(j)........ Defense articles and ......... X X
services related to
hardware associated
with the measurement
or modification of
system signatures for
detection of defense
articles as described
in Note 2.
XIII(l)........ Software source code ......... X X
related to USML
Category XIII(a). See
Note 4.
XIV............ Defense articles and ......... X X
services related to
toxicological agents,
including chemical
agents, biological
agents, and
associated equipment.
XIV(a), XIV(b), Chemical agents listed X ......... .........
XIV(d), in USML Category
XIV(e), XIV(f). XIV(a), (d) and (e),
biological agents and
biologically derived
substances in USML
Category XIV(b), and
equipment listed in
USML Category XIV(f)
for dissemination of
the chemical agents
and biological agents
listed in USML
Category XIV(a), (b),
(d), and (e).
XV(a).......... Defense articles and X X X
services specific to
spacecraft/
satellites. However,
the Canadian
exemption may be used
for commercial
communications
satellites that have
no other type of
payload.
XV(b).......... Defense articles and ......... X X
services specific to
ground control
stations for
spacecraft telemetry,
tracking, and
control. Defense
articles and services
are not excluded
under this entry if
they do not control
the spacecraft.
Receivers for
receiving satellite
transmissions are
also not excluded
under this entry.
XV(c).......... Defense articles and ......... X X
services specific to
GPS/PPS security
modules.
XV(c).......... Defense articles X ......... .........
controlled in USML
Category XV(c) except
end-items for end-use
by the Federal
Government of Canada
exported directly or
indirectly through a
Canadian-registered
person.
XV(e).......... Anti-jam systems with X ......... .........
the ability to
respond to incoming
interference by
adaptively reducing
antenna gain
(nulling) in the
direction of the
interference.
XV(e).......... Antennas having any of X ......... .........
the following:.
-
Aperture (overall
dimension of the
radiating portions of
the antenna) greater
than 30 feet;.
-
All sidelobes less
than or equal to -35
dB relative to the
peak of the main
beam; or.
-
Designed, modified,
or configured to
provide coverage area
on the surface of the
earth less than 200
nautical miles in
diameter, where
``coverage area'' is
defined as that area
on the surface of the
earth that is
illuminated by the
main beam width of
the antenna (which is
the angular distance
between half power
points of the beam).
XV(e).......... Optical intersatellite X ......... .........
data links (cross
links) and optical
ground satellite
terminals.
Page 61234
XV(e).......... Spaceborne X ......... .........
regenerative baseband
processing (direct up
and down conversion
to and from baseband)
equipment.
XV(e).......... Propulsion systems X ......... .........
which permit
acceleration of the
satellite on-orbit
(i.e., after mission
orbit injection) at
rates greater than
0.1 g.
XV(e).......... Attitude control and X ......... .........
determination systems
designed to provide
spacecraft pointing
determination and
control or payload
pointing system
control better than
0.02 degrees per axis.
XV(e).......... All specifically X ......... .........
designed or modified
systems, components,
parts, accessories,
attachments, and
associated equipment
for all USML Category
XV(a) items, except
when specifically
designed or modified
for use in commercial
communications
satellites.
XV(e).......... Defense articles and ......... X X
services specific to
spacecraft and ground
control station
systems (only for
telemetry, tracking
and control as
controlled in USML
Category XV(b)),
subsystems,
components, parts,
accessories,
attachments, and
associated equipment.
XV(f).......... Technical data and X X X
defense services
directly related to
the other defense
articles excluded
from the exemptions
for USML Category XV.
XVI............ Defense articles and X X X
services specific to
design and testing of
nuclear weapons.
XVII........... Classified articles, X X X
and technical data
and defense services
relating thereto, not
elsewhere enumerated.
See Note 1.
XVIII.......... Defense articles and ......... X X
services specific to
directed energy
weapon systems.
XIX(e), Defense articles and ......... X X
XIX(f)(1), services specific to
XIX(f)(2), gas turbine engine
XIX(g). hot section
components and to
Full Authority
Digital Engine
Control Systems
(FADEC) or Digital
Electronic Engine
Controls (DEEC). See
Note 8.
XIX(g)......... Technical data and X X X
defense services for
gas turbine engine
hot sections. (This
does not include
hardware). See Note 8.
XX............. Defense articles and X X X
services related to
submersible vessels,
oceanographic, and
associated equipment.
XX............. Defense articles and ......... X X
services specific to
naval technology and
systems relating to
acoustic spectrum
control and
awareness. See Note
-
-
XX............. Defense articles ......... ......... X
specific to cryogenic
equipment, and
specially designed
components or
accessories therefor,
specially designed or
configured to be
installed in a
vehicle for military
ground, marine,
airborne or space
applications, capable
of operating while in
motion and of
producing or
maintaining
temperatures below
103 K (-170degC).
XX............. Defense articles ......... ......... X
specific to
superconductive
electrical equipment
(rotating machinery
and transformers)
specially designed or
configured to be
installed in a
vehicle for military
ground, marine,
airborne, or space
applications and
capable of operating
while in motion.
This, however, does
not include direct
current hybrid
homopolar generators
that have single-pole
normal metal
armatures which
rotate in a magnetic
field produced by
superconducting
windings, provided
those windings are
the only
superconducting
component in the
generator.
XX(a).......... Nuclear powered X X X
vessels.
XX(b).......... Defense articles and X X X
services specific to
naval nuclear
propulsion equipment.
See Note 7.
XX(c).......... Defense articles and ......... X X
services specific to
submarine combat
control systems.
XX(d).......... Software source code ......... X X
related to USML
Category XX(a). See
Note 4.
XXI............ Articles, and X X X
technical data and
defense services
relating thereto, not
otherwise enumerated
on the USML, but
placed in this
category by the
Director, Office of
Defense Trade
Controls Policy.
------------------------------------------------------------------------
Note 1: Classified defense articles and services are not eligible for
export under the Canadian exemptions. U.S. origin articles, technical
data, and services controlled in USML Category XVII are not eligible
for export under the UK Treaty exemption. U.S. origin classified
defense articles and services are not eligible for export under either
the UK or AS Treaty exemptions except when being released pursuant to a
U.S. Department of Defense written request, directive, or contract that
provides for the export of the defense article or service.
Note 2: The phrase ``any part of the spectrum'' includes radio frequency
(RF), infrared (IR), electro-optical, visual, ultraviolet (UV),
acoustic, and magnetic. Defense articles related to reduced observables
or counter reduced observables are defined as:
(a) Signature reduction (radio frequency (RF), infrared (IR), Electro-
Optical, visual, ultraviolet (UV), acoustic, magnetic, RF emissions) of
defense platforms, including systems, subsystems, components, materials
(including dual-purpose materials used for Electromagnetic Interference
(EM) reduction), technologies, and signature prediction, test and
measurement equipment and software, and material transmissivity/
reflectivity prediction codes and optimization software.
(b) Electronically scanned array radar, high power radars, radar
processing algorithms, periscope-mounted radar systems (PATRIOT),
LADAR, multistatic and IR focal plane array-based sensors, to include
systems, subsystems, components, materials, and technologies.
Note 3: Defense articles and services related to sensor fusion beyond
that required for display or identification correlation is defined as
techniques designed to automatically combine information from two or
more sensors/sources for the purpose of target identification,
tracking, designation, or passing of data in support of surveillance or
weapons engagement. Sensor fusion involves sensors such as acoustic,
infrared, electro optical, frequency, etc. Display or identification
correlation refers to the combination of target detections from
multiple sources for assignment of common target track designation.
Note 4: Software source code beyond that source code required for basic
operation, maintenance, and training for programs, systems, and/or
subsystems is not eligible for use of the UK or AS Treaty exemptions,
unless such export is pursuant to a written solicitation or contract
issued or awarded by the U.S. Department of Defense for an end-use
identified in paragraph (e)(1), (e)(2), or (e)(4) of Sec. 126.16 or
Sec. 126.17 of this subchapter and is consistent with other
exclusions of this supplement.
Note 5: Manufacturing know-how, as defined in Sec. 125.4(c)(6) of this
subchapter, is not eligible for use of the UK or AS Treaty exemptions,
unless such export is pursuant to a written solicitation or contract
issued or awarded by the U.S. Department of Defense for an end-use
identified in paragraph (e)(1), (e)(2), or (e)(4) of Sec. 126.16 or
Sec. 126.17 of this subchapter and is consistent with other
exclusions of this supplement.
Page 61235
Note 6: Defense articles and services specific to Man Portable Air
Defense Systems (MANPADS) includes missiles that can be used without
modification in other applications. It also includes production and
test equipment and components specifically designed or modified for
MANPAD systems, as well as training equipment specifically designed or
modified for MANPAD systems.
Note 7: Naval nuclear propulsion plants includes all of USML Category
VI(e). Naval nuclear propulsion information consists of technical data
that concern the design, arrangement, development, manufacture,
testing, operation, administration, training, maintenance, and repair
of the propulsion plants of naval nuclear-powered ships and prototypes,
including the associated shipboard and shore-based nuclear support
facilities. Examples of defense articles covered by this exclusion
include nuclear propulsion plants and nuclear submarine technologies or
systems; nuclear powered vessels (see USML Categories VI and XX).
Note 8: A complete gas turbine engine with embedded hot section
components or digital engine controls is eligible for export or
transfer under the Treaties. Technical data, other than those data
required for routine external maintenance and operation, related to the
hot section is not eligible for export under the Canadian exemption.
Technical data, other than those data required for routine external
maintenance and operation, related to the hot section or digital engine
controls, as well as individual hot section parts or components are not
eligible for the Treaty exemption whether shipped separately or
accompanying a complete engine. Gas turbine engine hot section exempted
defense article components and technology are combustion chambers and
liners; high pressure turbine blades, vanes, disks and related cooled
structure; cooled low pressure turbine blades, vanes, disks and related
cooled structure; cooled augmenters; and cooled nozzles. Examples of
gas turbine engine hot section developmental technologies are
Integrated High Performance Turbine Engine Technology (IHPTET),
Versatile, Affordable Advanced Turbine Engine (VAATE), and Ultra-
Efficient Engine Technology (UEET), which are also excluded from export
under the exemptions.
Note 9: Examples of countermeasures and counter-countermeasures related
to defense articles not exportable under the AS or UK Treaty exemptions
are:
(a) IR countermeasures;
(b) Classified techniques and capabilities;
(c) Exports for precision radio frequency location that directly or
indirectly supports fire control and is used for situation awareness,
target identification, target acquisition, and weapons targeting and
Radio Direction Finding (RDF) capabilities. Precision RF location is
defined as angle of arrival accuracy of less than five degrees (RMS)
and RF emitter location of less than ten percent range error;
(d) Providing the capability to reprogram; and
(e) Acoustics (including underwater), active and passive
countermeasures, and counter-countermeasures.
Note 10: Examples of defense articles covered by this exclusion include
underwater acoustic vector sensors; acoustic reduction; off-board,
underwater, active and passive sensing, propeller/propulsor
technologies; fixed mobile/floating/powered detection systems which
include in-buoy signal processing for target detection and
classification; autonomous underwater vehicles capable of long
endurance in ocean environments (manned submarines excluded); automated
control algorithms embedded in on-board autonomous platforms which
enable (a) group behaviors for target detection and classification, (b)
adaptation to the environment or tactical situation for enhancing
target detection and classification; ``intelligent autonomy''
algorithms that define the status, group (greater than 2) behaviors,
and responses to detection stimuli by autonomous, underwater vehicles;
and low frequency, broad band ``acoustic color,'' active acoustic
``fingerprint'' sensing for the purpose of long range, single pass
identification of ocean bottom objects, buried or otherwise (controlled
under Category USML XI(a)(1), (a)(2), (b), (c), and (d)).
Note 11: This exclusion does not apply to the platforms (e.g., vehicles)
for which the armored plates are applied. For exclusions related to the
platforms, refer to the other exclusions in this list, particularly for
the category in which the platform is controlled.
The excluded defense articles include constructions of metallic or non-
metallic materials or combinations thereof specially designed to
provide protection for military systems. The phrase ``suitable for
military use'' applies to any articles or materials which have been
tested to level IIIA or above IAW NIJ standard 0108.01 or comparable
national standard. This exclusion does not include military helmets,
body armor, or other protective garments which may be exported IAW the
terms of the AS or UK Treaty.
Note 12: Defense services or technical data specific to applied research
(Sec. 125.4(c)(3) of this subchapter), design methodology (Sec.
125.4(c)(4) of this subchapter), engineering analysis (Sec.
125.4(c)(5) of this subchapter), or manufacturing know-how (Sec.
125.4(c)(6) of this subchapter) are not eligible for export under the
Canadian exemptions. However, this exclusion does not include defense
services or technical data specific to build-to-print as defined in
Sec. 125.4(c)(1) of this subchapter, build/design-to-specification as
defined in Sec. 125.4(c)(2) of this subchapter, or basic research as
defined in Sec. 125.4(c)(3) of this subchapter, or maintenance (i.e.,
inspection, testing, calibration or repair, including overhaul,
reconditioning and one-to-one replacement of any defective items parts
or components, but excluding any modification, enhancement, upgrade or
other form of alteration or improvement that changes the basic
performance of the item) of non-excluded defense articles which may be
exported subject to other exclusions or terms of the Canadian
exemptions.
Note 13: The term ``libraries'' (parametric technical databases) means a
collection of technical information of a military nature, reference to
which may enhance the performance of military equipment or systems.
Note 14: In order to utilize the authorized defense services under the
Canadian exemption, the following must be complied with:
(a) The Canadian contractor and subcontractor must certify, in
writing, to the U.S. exporter that the technical data and defense
services being exported will be used only for an activity
identified in Supplement No. 1 to part 126 of this subchapter and
in accordance with Sec. 126.5 of this subchapter; and.
(b) A written arrangement between the U.S. exporter and the Canadian
recipient must:.
(1) Limit delivery of the defense articles being produced
directly to an identified manufacturer in the United States
registered in accordance with part 122 of this subchapter; a
department or agency of the United States Federal Government; a
Canadian-registered person authorized in writing to manufacture
defense articles by and for the Government of Canada; a
Canadian Federal, Provincial, or Territorial Government;.
(2) Prohibit the disclosure of the technical data to any other
contractor or subcontractor who is not a Canadian-registered
person;.
(3) Provide that any subcontract contain all the limitations of
Sec. 126.5 of this subchapter;.
(4) Require that the Canadian contractor, including
subcontractors, destroy or return to the U.S. exporter in the
United States all of the technical data exported pursuant to
the contract or purchase order upon fulfillment of the
contract, unless for use by a Canadian or United States
Government entity that requires in writing the technical data
be maintained. The U.S. exporter must be provided written
certification that the technical data is being retained or
destroyed; and.
Page 61236
(5) Include a clause requiring that all documentation created
from U.S. origin technical data contain the statement that,
``This document contains technical data, the use of which is
restricted by the U.S. Arms Export Control Act. This data has
been provided in accordance with, and is subject to, the
limitations specified in Sec. 126.5 of the International
Traffic in Arms Regulations (ITAR). By accepting this data, the
consignee agrees to honor the requirements of the ITAR.''.
(c) The U.S. exporter must provide the Directorate of Defense Trade
Controls a semi-annual report regarding all of their on-going
activities authorized under Sec. 126.5 of this subchapter. The
report shall include the article(s) being produced; the end-
user(s); the end-item into which the product is to be incorporated;
the intended end-use of the product; and the names and addresses of
all the Canadian contractors and subcontractors..
Note 15: This exclusion does not apply to demining equipment in support
of the clearance of landmines and unexploded ordnance for humanitarian
purposes.
As used in this exclusion, ``anti-personnel landmine'' means any mine
placed under, on, or near the ground or other surface area, or
delivered by artillery, rocket, mortar, or similar means or dropped
from an aircraft and which is designed to be detonated or exploded by
the presence, proximity, or contact of a person; any device or material
which is designed, constructed, or adapted to kill or injure and which
functions unexpectedly when a person disturbs or approaches an
apparently harmless object or performs an apparently safe act; any
manually-emplaced munition or device designed to kill, injure, or
damage and which is actuated by remote control or automatically after a
lapse of time.
Note 16: The radar systems described are controlled in USML Category
XI(a)(3)(i) through (v). As used in this entry, the term ``systems''
includes equipment, devices, software, assemblies, modules, components,
practices, processes, methods, approaches, schema, frameworks, and
models.
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PART 130--POLITICAL CONTRIBUTIONS, FEES AND COMMISSIONS
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The authority citation for part 130 continues to read as follows:
Authority: Sec. 39, Pub. L. 94-329, 90 Stat. 767 (22 U.S.C. 2779); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
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Section 130.8 is amended by revising the introductory text of paragraph (a) to read as follows:
Sec. 130.8 Vendor.
(a) Vendor means any distributor or manufacturer who, directly or indirectly, furnishes to an applicant or supplier defense articles valued in an amount of $500,000 or more which are end-items or major components as defined in Sec. 120.45 of this subchapter. It also means any person who, directly or indirectly, furnishes to an applicant or supplier defense articles or services valued in an amount of $500,000 or more when such articles or services are to be delivered (or incorporated in defense articles or defense services to be delivered) to or for the use of the armed forces of a foreign country or international organization under:
* * * * *
Rose E. Gottemoeller,
Under Secretary, Arms Control and International Security, Department of State.
FR Doc. 2014-23792 Filed 10-9-14; 8:45 am
BILLING CODE 4710-05-P
