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[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Proposed Rules]
[Pages 70958-70964]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28477]

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DEPARTMENT OF STATE

22 CFR Part 121

RIN 1400-AD25
[Public Notice: 8091]

Amendment to the International Traffic in Arms Regulations: 
Revision of U.S. Munitions List Category XI and Definition for 
``Equipment''

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: As part of the President's Export Control Reform effort, the 
Department of State proposes to amend the International Traffic in Arms 
Regulations (ITAR) to revise Category XI (military electronics) of the 
U.S. Munitions List (USML) to describe more precisely the articles 
warranting control on the USML and to provide a definition for 
``equipment.'' The revisions contained in this rule are part of the 
Department of State's retrospective plan under E.O. 13563 completed on 
August 17, 2011. The Department of State's full plan can be accessed at 
http://www.state.gov/documents/organization/181028.pdf.

[[Page 70959]]

DATES: The Department of State will accept comments on this proposed 
rule until January 28, 2013.

ADDRESSES: Interested parties may submit comments within 60 days of the 
date of publication by one of the following methods:
     Email: DDTCResponseTeam@state.gov with the subject line, 
``ITAR Amendment--Category XI and `Equipment.' ''
     Internet: At www.regulations.gov, search for this notice 
by using this rule's RIN (1400-AD25).

Comments received after that date will be considered if feasible, but 
consideration cannot be assured. Those submitting comments should not 
include any personally identifying information they do not desire to be 
made public or information for which a claim of confidentiality is 
asserted because those comments and/or transmittal emails will be made 
available for public inspection and copying after the close of the 
comment period via the Directorate of Defense Trade Controls Web site 
at www.pmddtc.state.gov. Parties who wish to comment anonymously may do 
so by submitting their comments via www.regulations.gov, leaving the 
fields that would identify the commenter blank and including no 
identifying information in the comment itself. Comments submitted via 
www.regulations.gov are immediately available for public inspection.

FOR FURTHER INFORMATION CONTACT: Ms. Candace M. J. Goforth, Director, 
Office of Defense Trade Controls Policy, Department of State, telephone 
(202) 663-2792; email DDTCResponseTeam@state.gov. ATTN: Regulatory 
Change, USML Category XI and ``Equipment.''

SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls 
(DDTC), U.S. Department of State, administers the International Traffic 
in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to 
the jurisdiction of the ITAR, i.e., ``defense articles,'' are 
identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1). 
With few exceptions, items not subject to the export control 
jurisdiction of the ITAR are subject to the jurisdiction of the Export 
Administration Regulations (``EAR,'' 15 CFR parts 730-774, which 
includes the Commerce Control List (CCL) in Supplement No. 1 to Part 
774), administered by the Bureau of Industry and Security (BIS), U.S. 
Department of Commerce. Both the ITAR and the EAR impose license 
requirements on exports and reexports. Items not subject to the ITAR or 
to the exclusive licensing jurisdiction of any other set of regulations 
are subject to the EAR.

Export Control Reform Update

    The Departments of State and Commerce described in their respective 
Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the 
Administration's plan to make the USML and the CCL positive, tiered, 
and aligned so that eventually they can be combined into a single 
control list (see ``Commerce Control List: Revising Descriptions of 
Items and Foreign Availability,'' 75 FR 76664 (December 9, 2010) and 
``Revisions to the United States Munitions List,'' 75 FR 76935 
(December 10, 2010)). The notices also called for the establishment of 
a ``bright line'' between the USML and the CCL to reduce government and 
industry uncertainty regarding export jurisdiction by clarifying 
whether particular items are subject to the jurisdiction of the ITAR or 
the EAR. While these remain the Administration's ultimate Export 
Control Reform objectives, their concurrent implementation would be 
problematic in the near term. In order to more quickly reach the 
national security objectives of greater interoperability with U.S. 
allies, enhancing the defense industrial base, and permitting the U.S. 
Government to focus its resources on controlling and monitoring the 
export and reexport of more significant items to destinations, end-
uses, and end-users of greater concern than NATO allies and other 
multi-regime partners, the Administration has decided, as an interim 
step, to propose and implement revisions to both the USML and the CCL 
that are more positive, but not yet tiered.
    Specifically, based in part on a review of the comments received in 
response to the December 2010 notices, the Administration has 
determined that fundamentally altering the structure of the USML by 
tiering and aligning it on a category-by-category basis would 
significantly disrupt the export control compliance systems and 
procedures of exporters and reexporters. For example, until the entire 
USML was revised and became final, some USML categories would follow 
the legacy numbering and control structures while the newly revised 
categories would follow a completely different numbering structure. In 
order to allow for the national security benefits to flow from re-
aligning the jurisdictional status of defense articles that no longer 
warrant control on the USML on a category-by-category basis while 
minimizing the impact on exporters' internal control and jurisdictional 
and classification marking systems, the Administration plans to proceed 
with building positive lists now and afterward return to structural 
changes.

Revision of Category XI

    This proposed rule revises USML Category XI, covering military 
electronics, to advance the national security objectives set forth 
above and to more accurately describe the articles within the category, 
in order to establish a ``bright line'' between the USML and the CCL 
for the control of these articles.
    Paragraphs (a)(1) (covering underwater hardware, equipment, and 
systems), (a)(3) (covering radar systems and equipment), (a)(4) 
(covering electronic combat equipment), and (a)(5) (covering C\3\, 
C\4\, C\4\ISR, and identification systems and equipment), are amended 
to more specifically enumerate the articles controlled therein.
    Paragraph (a)(6), which currently controls military computers, is 
removed, and the articles controlled therein are transferred to the 
jurisdiction of the Department of Commerce under new ECCN 3A611.
    Paragraph (a)(8) is added to cover unattended ground sensors.
    Paragraph (a)(9) is added to cover electronic sensor systems for 
anti-submarine warfare or mine warfare.
    Paragraph (a)(10) is added to cover electronic sensor systems for 
concealed weapons.
    Paragraph (a)(11) is added to cover test sets ``specially 
designed'' and programmed for testing counter radio controlled 
improvised explosive device electronic warfare systems.
    Paragraph (a)(12) is added to cover equipment to process or analyze 
Category XI defense articles.
    Paragraph (b) (covering electronic systems or equipment for search, 
reconnaissance, collection, monitoring, direction finding, display, 
analysis, or production of information from the electromagnetic 
spectrum and electronic systems or equipment that counteracts 
electronic surveillance) is amended to provide consistency with 
Wassenaar Munitions List controls while retaining the same catch-all 
coverage of the current paragraph (b).
    A significant aspect of this more positive, but not yet tiered, 
proposed USML category is that it does not contain controls on all 
generic parts, components, accessories, and attachments that are 
specifically designed or modified for a defense article, regardless of 
their significance to maintaining a military advantage for the United 
States. Rather, it contains, with

[[Page 70960]]

a few exceptions, a positive list of specific types of parts, 
components, accessories, and attachments that continue to warrant 
control on the USML. The exceptions pertain to those parts, components, 
accessories, and attachments identified as ``specially designed.''
    Paragraph (d) is amended to remove reference to Significant 
Military Equipment.
    Section 121.8 is amended by including a definition for 
``equipment'' in new paragraph (h).
    Finally, articles common to the Missile Technology Control Regime 
(MTCR) Annex and the USML are to be identified on the USML with the 
parenthetical ``(MT)'' at the end of each section containing such 
articles. A separate proposed rule will address the sections in the 
ITAR that include MTCR definitions.

Definition for Specially Designed

    Although one of the goals of the export control reform initiative 
is to describe USML controls without using design intent criteria, a 
few of the controls in the proposed revision nonetheless use the term 
``specially designed.'' It is, therefore, necessary for the Department 
to define the term. Three proposed definitions have been published to 
date. For the purpose of evaluation of this proposed rule, reviewers 
should use the definition provided by the Department of State in the 
June 19, 2012, proposed rule (77 FR 36428).

Request for Comments

    As the U.S. Government works through the proposed revisions to the 
USML, some solutions have been adopted that were determined to be the 
best of available options. With the thought that multiple perspectives 
would be beneficial to the USML revision process, the Department 
welcomes the assistance of users of the lists and requests input on the 
following:
    (1) A key goal of this rulemaking is to ensure the USML and the CCL 
together control all the items that meet Wassenaar Arrangement 
commitments embodied in Munitions List Category 11 (WA-ML11). To that 
end, the public is asked to identify any potential lack of coverage 
brought about by the proposed rules for Category XI contained in this 
notice and the new Category 3 ECCNs published separately by the 
Department of Commerce when reviewed together.
    (2) The key goal of this rulemaking is to establish a ``bright 
line'' between the USML and the CCL for the control of these materials. 
The public is asked to provide specific examples of military 
electronics whose jurisdiction would be in doubt based on this 
revision.
    (3) The current USML Category XI(c) does not control electronic 
parts, components, accessories, and attachments ``in normal commercial 
use.'' Although the proposed revisions to the USML do not preclude the 
possibility that electronic and other items in normal commercial use 
would or should be ITAR-controlled because, e.g., they provide the 
United States with a critical military or intelligence advantage, the 
U.S. Government does not want to inadvertently control items on the 
ITAR that are in normal commercial use. The public is thus asked to 
provide specific examples of electronics, if any, that would be 
controlled by the revised Category XI that are now in normal commercial 
use.

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 sections 553 (rulemaking) and 554 
(adjudications) of the Administrative Procedure Act (APA). Although the 
Department is of the opinion that this rule is exempt from the 
rulemaking provisions of the APA, the Department is publishing this 
rule with a 60-day provision for public comment and without prejudice 
to its determination that controlling the import and export of defense 
services is a foreign affairs function. As noted above, and also 
without prejudice to the Department position that this rulemaking is 
not subject to the APA, the Department previously published a related 
Advance Notice of Proposed Rulemaking (RIN 1400-AC78) on December 10, 
2010 (75 FR 76935), and accepted comments for 60 days.

Regulatory Flexibility Act

    Since the Department is of the opinion that this rule is exempt 
from the rulemaking provisions of 5 U.S.C. 553, it does not require 
analysis under the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This proposed amendment 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

    This proposed amendment has been found not to be a major rule 
within the meaning of the Small Business Regulatory Enforcement 
Fairness Act of 1996.

Executive Orders 12372 and 13132

    This proposed amendment 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 proposed amendment 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 proposed amendment.

Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 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 rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget (OMB).

Executive Order 12988

    The Department of State has reviewed the proposed amendment 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

[[Page 70961]]

will not preempt tribal law. Accordingly, Executive Order 13175 does 
not apply to this rulemaking.

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to, nor is subject to a penalty for failure to comply with, 
a collection of information, subject to the requirements of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless 
that collection of information displays a currently valid OMB control 
number. This proposed rule would affect the following approved 
collections: (1) Statement of Registration, DS-2032, OMB No. 1405-0002; 
(2) Application/License for Permanent Export of Unclassified Defense 
Articles and Related Unclassified Technical Data, DSP-5, OMB No. 1405-
0003; (3) Application/License for Temporary Import of Unclassified 
Defense Articles, DSP-61, OMB No. 1405-0013; (4) Nontransfer and Use 
Certificate, DSP-83, OMB No. 1405-0021; (5) Application/License for 
Permanent/Temporary Export or Temporary Import of Classified Defense 
Articles and Classified Technical Data, DSP-85, OMB No. 1405-0022; (6) 
Application/License for Temporary Export of Unclassified Defense 
Articles, DSP-73, OMB No. 1405-0023; (7) Statement of Political 
Contributions, Fees, or Commissions in Connection with the Sale of 
Defense Articles or Services, OMB No. 1405-0025; (8) Authority to 
Export Defense Articles and Services Sold Under the Foreign Military 
Sales (FMS) Program, DSP-94, OMB No. 1405-0051; (9) Application for 
Amendment to License for Export or Import of Classified or Unclassified 
Defense Articles and Related Technical Data, DSP-6, -62, -74, -119, OMB 
No. 1405-0092; (10) Request for Approval of Manufacturing License 
Agreements, Technical Assistance Agreements, and Other Agreements, DSP-
5, OMB No. 1405-0093; (11) Maintenance of Records by Registrants, OMB 
No. 1405-0111; (12) Annual Brokering Report, DS-4142, OMB No. 1405-
0141; (13) Brokering Prior Approval (License), DS-4143, OMB No. 1405-
0142; (14) Projected Sale of Major Weapons in Support of Section 
25(a)(1) of the Arms Export Control Act, DS-4048, OMB No. 1405-0156; 
(15) Export Declaration of Defense Technical Data or Services, DS-4071, 
OMB No. 1405-0157; (16) Request for Commodity Jurisdiction 
Determination, DS-4076, OMB No. 1405-0163; (17) Request to Change End-
User, End-Use, and/or Destination of Hardware, DS-6004, OMB No. 1405-
0173; (18) Request for Advisory Opinion, DS-6001, OMB No. 1405-0174; 
(19) Voluntary Disclosure, OMB No. 1405-0179; and (20) Technology 
Security/Clearance Plans, Screening Records, and Non-Disclosure 
Agreements Pursuant to 22 CFR 126.18, OMB No. 1405-0195. The Department 
of State believes there will be minimal changes to these collections. 
The Department of State believes the combined effect of all rules to be 
published moving commodities from the USML to the EAR as part of the 
Administration's Export Control Reform would decrease the number of 
license applications by approximately 30,000 annually. The Department 
of State is looking for comments on the potential reduction in burden.

List of Subjects in Part 121

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, part 121 is proposed to be amended as follows:

PART 121--THE UNITED STATES MUNITIONS LIST

    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); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. 
p. 79; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920.

    2. Section 121.1 is amended by revising U.S. Munitions List 
Category XI to read as follows:

Sec.  121.1  General. The United States Munitions List.

* * * * *

Category XI--Military Electronics

    (a) Electronic equipment not included in Category XII of the U.S. 
Munitions list, as follows:
    (1) Underwater hardware, equipment, or systems, as follows:
    (i) Active or passive acoustic array sensing systems or equipment 
that survey or detect, and track, localize (i.e., determine range and 
bearing), classify, or identify surface vessels, submarines, other 
undersea vehicles, torpedoes, or mines having any of the following:
    (A) Multi-aspect capability;
    (B) Operating frequency less than 20 kHz;
    (C) Bandwidth greater than 10 kHz; or
    (D) Capable of real-time processing;
    (ii) Underwater single acoustic sensor system that distinguishes 
tonals and locates the origin of the sound;
    (iii) Non-acoustic systems that survey or detect, and track, 
localize, classify, or identify surface vessels, submarines, other 
undersea vehicles, torpedoes, or mines;

    Note to paragraph (a)(1)(iii): Equipment controlled in CCL ECCN 
5A001.b.1 is not included.

    (iv) Acoustic modems, networks, and communications equipment with 
adaptive compensation or employing Low Probability of Intercept (LPI);

    Note 1 to paragraph (a)(1)(iv): Adaptive compensation is the 
capability of an underwater modem to assess the water conditions to 
select the best algorithm to receive and transmit data.

    Note 2 to paragraph (a)(1)(iv): The term ``Low Probability of 
Intercept'' used in this paragraph and elsewhere in this category is 
defined as a class of measures that disguise, delay, or prevent the 
interception of acoustic or electromagnetic signals. LPI techniques 
can involve permutations of power management, energy management, 
frequency variability, out-of-receiver-frequency band, low-side lobe 
antenna, complex waveforms, and complex scanning. LPI is also 
referred to as Low Probability of Intercept, Low Probability of 
Detection, and Low Probability of Identification.

    (v) LF/VLF electronic modems, routers, interfaces and 
communications equipment ``specially designed'' for submarine 
communications; or
    (vi) Autonomous processing/control systems and equipment that 
enable cooperative sensing and engagement by fixed (bottom mounted/
seabed) or mobile Autonomous Underwater Vehicles (AUVs);
    (2) Underwater acoustic countermeasures or counter-countermeasures 
systems or equipment;
    (3) Radar systems and equipment, as follows:
    (i) Airborne radar that track targets;
    (ii) Synthetic aperture radar (SAR) incorporating image resolution 
less than (better than) 0.3 meter, or incorporating Coherent Change 
Detection (CCD) with geo-registration accuracy less than (better than) 
0.3 meter;
    (iii) Inverse Synthetic Aperture Radar (ISAR);
    (iv) Radar that geo-locates with a target location error 50 (TLE50) 
less than or equal to 10 meters;
    (v) Any ocean surface surveillance radar with either a product of 
transmit peak power times antenna gain divided by minimum detectable 
signal of >165 dB, or a capability to distinguish a target of -6 or better 
in sea state 3 or higher, or both;
    (vi) Sea surveillance/navigation radar with free space detection of 
1 square meter radar cross section (RCS) target at 20 nautical miles 
(nmi) or greater range;
    (vii) Land or perimeter surveillance radar with free space 
detection of 1 square meter RCS target at 5.4 nmi or greater range and 
has a revisit rate of faster than once every sixty seconds;

[[Page 70962]]

    (viii) Air surveillance radar with free space detection of 1 sq m 
RCS target at 85 nmi or greater range or free space detection of 1 sq m 
RCS target at an altitude of 65,000 feet and an elevation angle greater 
than 20 degrees;
    (ix) Air surveillance radar with multiple elevation beams, phase or 
amplitude monopulse estimation, or 3D height-finding;
    (x) Air surveillance radar with a beam solid angle less than or 
equal to 16 degrees\2\ that performs free space tracking of 1 sq m RCS 
target at a range greater or equal to 25 nmi with revisit rate greater 
or equal to \1/3\ hertz;
    (xi) Instrumentation radar for anechoic test facility or outdoor 
range to track targets, or provide measure of RCS of static target less 
than or equal to -10dBsm, or RCS of dynamic target;
    (xii) Radar incorporating pulsed operation with electronics 
steering of transmit beam in elevation and azimuth;
    (xiii) Radar with mode(s) for ballistic tracking or ballistic 
extrapolation to source of launch or impact point of articles 
controlled in USML Categories III or IV;
    (xiv) Active protection radar and missile warning radar with 
mode(s) implemented for detection of incoming munitions;
    (xv) Over the horizon high frequency sky-wave (ionosphere) radar;
    (xvi) Radar that detects a moving object through a physical 
obstruction at distance greater than 0.2 meters from the obstruction;
    (xvii) Radar having moving target indicator (MTI) or pulse-Doppler 
processing where any single Doppler filter provides a normalized 
clutter attenuation of greater than 50dB;

    Note to paragraph (a)(3)(xvii): ``Normalized clutter 
attenuation'' is defined as the reduction in the power level of 
received distributed clutter when normalized to the thermal noise 
level.

    (xviii) Radar having electronic protection (EP) or electronic 
counter-countermeasures (ECCM) other than manual gain control, 
automatic gain control, radio frequency selection, constant false alarm 
rate, and pulse repetition interval jitter;
    (xix) Radar employing electronic attack (EA) mode(s) using the 
radar transmitter and antenna;
    (xx) Radar employing electronic support (ES) mode(s) (i.e., the 
ability to use a radar system for ES purposes in one or more of the 
following: As a high-gain receiver, as a wide-bandwidth receiver, as a 
multi-beam receiver, or as part of a multi-point system);
    (xxi) Radar employing non-cooperative target recognition (NCTR) 
(i.e., the ability to recognize a specific platform type without 
cooperative action of the target platform);
    (xxii) Radar employing automatic target recognition (ATR) (i.e., 
recognition of generic target type using structural features of the 
target) with system resolution better than (less than) 0.3 meters;
    (xxiii) Radar that sends interceptor guidance commands or provides 
illumination keyed to an interceptor seeker;
    (xxiv) Radar employing waveform generation for low probability of 
intercept (LPI) other than frequency modulated continuous wave (FMCW) 
with linear ramp modulation;
    (xxv) Radar that sends and receives communications;
    (xxvi) Radar that tracks or discriminates ballistic missile warhead 
from debris or countermeasures;
    (xxvii) Bi-static/multi-static radar that exploits greater than 125 
kHz bandwidth and is lower than 2 GHz center frequency to passively 
detect or track using RF transmissions (e.g., commercial radio or 
television stations);
    (xxviii) Radar target generators, projectors, or simulators 
``specially designed'' for radars controlled by this category; or
    (xxix) Radar and laser radar systems ``specially designed'' for 
defense articles in (a)(1) of Category IV and (a)(5) and (a)(6) of 
Category VIII (MT);

    Note to paragraph (a)(3): This category does not control 
secondary surveillance radar (SSR) or precision approach radar (PAR) 
equipment conforming to ICAO standards and employing electronically 
steerable linear (1-dimensional) arrays or mechanically positioned 
passive antennae.

    (4) Electronic combat equipment, as follows:
    (i) Electronic support (ES) systems and equipment that search for, 
intercept, and identify, or locate sources of intentional or 
unintentional electromagnetic energy for the purpose of immediate 
threat detection, recognition, targeting, planning, or conduct of 
future operations;

    Note to paragraph (a)(4)(i): Electronic Support functions 
consist of tactical situational awareness, automatic cueing, 
targeting, electronic order of battle planning, electronic 
intelligence (ELINT), communication intelligence (COMINT), signals 
intelligence (SIGINT).

    (ii) Systems and equipment that detect and automatically 
discriminate acoustic energy emanating from weapons fire (e.g., 
gunfire, artillery, rocket propelled grenades, or other projectiles), 
determining location or direction of weapons fire in less than two 
seconds from receipt of event signal, and able to operate on-the-move 
(e.g., operating on personnel, land vehicles, sea vessels, or aircraft 
while in motion); or
    (iii) Systems and equipment ``specially designed'' to introduce 
extraneous or erroneous signals into radar, infrared based seekers, 
electro-optic based seekers, radio communication receivers, navigation 
receivers, or that otherwise hinder the reception, operation, or 
effectiveness of adversary electronics (e.g., active or passive 
electronic attack, electronic countermeasure, electronic counter-
countermeasure equipment, jamming, and counter jamming equipment);
    (5) Command, control, and communications (C\3\), command, control, 
communications, and computers (C\4\), command, control, communications, 
computers, intelligence, surveillance, and reconnaissance (C\4\ISR), 
and identification systems or equipment, as follows:
    (i) C\3\, C\4\, and C\4\ISR systems ``specially designed'' to 
integrate, incorporate, network, or employ defense articles controlled 
in this subchapter;
    (ii) Identification friend or foe (IFF) systems or equipment 
incorporating U.S. government Modes 4 or 5;
    (iii) Systems or equipment that implement active or passive 
electronic counter-countermeasures (ECCM) used to counter acts of 
communication disruption (e.g., radios that incorporate HAVE QUICK I/
II, SINCGARS, SATURN);
    (iv) Systems or equipment implementing techniques to suppress 
compromising emanations of information bearing signals ``specially 
designed'' or certified to meet U.S. Government NSTISSAM TEMPEST 1-92 
standards or CNSSAM TEMPEST 01-02; or
    (v) Systems or equipment that transmit voice or data signals 
``specially designed'' to elude electromagnetic detection;
    (6) [Reserved]
    (7) Developmental electronic devices, systems, or equipment funded 
by the Department of Defense;

    Note 1 to paragraph (a)(7): Paragraph XI(a)(7) does not control 
developmental electronic devices, systems, or equipment (a) 
determined to be subject to the EAR via a commodity jurisdiction 
determination (see Sec.  120.4 of this subchapter) or (b) identified 
in the relevant Department of Defense contract as being developed 
for both civil and military applications.

    Note 2 to paragraph (a)(7): Note 1 does not apply to defense 
articles enumerated on the

[[Page 70963]]

USML, whether in production or development.

    (8) Unattended ground sensor (UGS) systems or equipment having all 
of the following:
    (i) Automatic target detection;
    (ii) Automatic target tracking, classification, recognition, or 
identification;
    (iii) Self-forming or self-healing networks; and
    (iv) Self-localization for geo-locating targets;
    (9) Electronic sensor systems or equipment for non-acoustic anti-
submarine warfare (ASW) or mine warfare (e.g., magnetic anomaly 
detectors (MAD), electric-field, and electromagnetic induction);
    (10) Electronic sensor systems or equipment for detection of 
concealed weapons, having a standoff detection range of greater than 45 
meters for personnel or detection of vehicle-carried weapons;
    (11) Test sets ``specially designed'' and programmed for testing 
counter radio controlled improvised explosive device (C-RCIED) 
electronic warfare (CREW) systems;
    (12) Equipment ``specially designed'' to process or analyze signals 
from defense articles controlled by this category; or
    (13) Direction finding equipment for determining bearings to 
specific electromagnetic sources or terrain characteristics ``specially 
designed'' for defense articles in paragraph (a)(1) of Category IV and 
paragraphs (a)(5) and (a)(6) of Category VIII (MT).
    (b) Electronic systems or equipment ``specially designed'' for the 
collection, surveillance, monitoring, or exploitation of the 
electromagnetic spectrum (regardless of transmission medium), for 
intelligence or security purposes or for counteracting such activities. 
This includes:
    (1) Non-cooperative direction finding systems that have an angle of 
arrival (AOA) accuracy better than (less than) two degrees RMS and are 
not ``specially designed'' for navigation;
    (2) Such systems or equipment that use burst techniques (e.g., time 
compression techniques);
    (3) Systems and equipment ``specially designed'' for measurement 
and signature intelligence (MASINT);
    (4) Technical surveillance counter-measure (TSCM) or electronic 
surveillance equipment and counter electronic surveillance equipment 
(including spectrum analyzers) for the RF/microwave spectrum that:
    (i) Sweep or scan speed exceeding 250 MHz per second;
    (ii) Have instantaneous bandwidth exceeding 110 MHz;
    (iii) Have built-in signal analysis capability;
    (iv) Have a volume of less than 1 cubic foot;
    (v) Record time-domain or frequency-domain digital signals other 
than single trace spectral snapshots; and
    (vi) Display time-vs-frequency domain (e.g., waterfall or rising 
raster).
    (c) Parts, components, accessories, attachments, and associated 
equipment, as follows:
    (1) Application specific integrated circuits (ASIC) for which the 
functionality is ``specially designed'' for defense articles in this 
subchapter;
    (2) Printed circuit boards or patterned multichip modules for which 
the layout is ``specially designed'' for defense articles in this 
subchapter;
    (3) Transmit/receive modules or transmit modules that have any two 
perpendicular sides, with either length d (in cm) equal to or less than 
15 divided by the lowest operating frequency in GHz [d
fGHz], that incorporate a MMIC or discrete RF power 
transistor and a phase shifter or phasers;
    (4) High-energy storage capacitors with a repetition rate of 6 
discharges or more per minute that have any of the following:
    (i) Volumetric energy density greater than or equal to 1.3 J/cc;
    (ii) Mass energy density greater than or equal to 1.1 kJ/kg; or
    (iii) Full energy life greater than or equal to 10,000 discharges;
    (5) Radio frequency circulators of any dimension equal to or less 
than one quarter (\1/4\) wavelength of the highest operating frequency 
and isolation greater than 30dB;
    (6) Polarimeter that detects and measures polarization of radio 
frequency signals within a single pulse;
    (7) Digital radio frequency memory (DRFM) with RF instantaneous 
input bandwidth greater than 400 MHz, and 4 bit or higher resolution 
and ``specially designed'' parts and components therefor;
    (8) Vacuum electronic devices, as follows:
    (i) Multiple electron beam or sheet electron beam devices rated for 
operation at frequencies of 16 GHz or above, and with a saturated power 
output greater than 10,000 W (70 dBm) or a maximum average power output 
greater than 3,000 W (65 dBm); or
    (ii) Cross-field amplifiers with a gain of 15 dB to 17 dB or a duty 
factor greater than 5%;
    (9) Antenna, and ``specially designed'' parts and components 
therefor, that:
    (i) Electronically steer angular beams and nulls with four or more 
elements;
    (ii) Form adaptive null attenuation greater than 35 dB with 
convergence time less than 1 second;
    (iii) Detect signals across multiple RF bands with matched left 
hand and right hand spiral antenna elements for determination of signal 
polarization; or
    (iv) Determine signal angle of arrival less than two degrees (e.g., 
interferometer antenna);
    (10) Radomes or electromagnetic antenna windows that:
    (i) Incorporate radio frequency selective surfaces (MT);
    (ii) Operate in multiple or more non-adjacent radar bands (MT);
    (iii) Incorporate a structure that is ``specially designed'' to 
provide ballistic protection from bullets, shrapnel, or blast (MT);
    (iv) Have a melting point greater than 1,300 [deg]C and maintain a 
dielectric constant less than 6 at temperatures greater than 500 [deg]C 
(MT);
    (v) Are manufactured from ceramic materials with a dielectric 
constant less than 6 at any frequency from 100 MHz to 100 GHz (MT);
    (vi) Maintain structural integrity at stagnation pressures greater 
than 6,000 pounds per square foot (MT);
    (vii) Withstand combined thermal shock greater than 4.184 x 10\6\ 
J/m\2\ accompanied by a peak overpressure of greater than 50 kPa (MT); 
or
    (viii) Are configured to blend with the external geometry of end-
items controlled in Category IV (MT);
    (11) Underwater sensors (acoustic vector sensors, hydrophones, or 
transducers) or projectors ``specially designed'' for systems 
controlled by paragraphs (a)(1) and XI(a)(2) of this category, having 
any of the following:
    (i) A transmitting frequency below 10 kHz;
    (ii) Sound pressure level exceeding 224 dB (reference 1 [mu]Pa at 1 
m) for equipment with an operating frequency in the band from 10 kHz to 
24 kHz inclusive;
    (iii) Sound pressure level exceeding 235 dB (reference 1 [mu]Pa at 
1 m) for equipment with an operating frequency in the band between 24 
kHz and 30 kHz;
    (iv) Forming beams of less than 1[deg] on any axis and having an 
operating frequency of less than 100 kHz;
    (v) Designed to operate with an unambiguous display range exceeding 
5,120 m; or
    (vi) Designed to withstand pressure during normal operation at 
depths exceeding 1,000 m and having transducers with any of the 
following:
    (A) Dynamic compensation for pressure; or

[[Page 70964]]

    (B) Incorporating other than lead zirconate titanate as the 
transduction element;
    (12) Parts or components containing piezoelectric materials which 
are ``specially designed'' for underwater hardware, equipment, or 
systems controlled by paragraph (c)(11) of this category;
    (13) Tuners having an instantaneous bandwidth of 30 MHz or greater 
and a tuning speed of 300 microseconds or less to within 10 KHz of 
desired frequency;
    (14) Electronic assemblies and components ``specially designed'' 
for missiles, rockets, or UAVs capable of achieving a range of at least 
300 km and capable of operation at temperatures in excess of 125 [deg]C 
(MT);
    (15) ``Specially designed'' hybrid (combined analogue/digital) 
computers for modeling, simulation, or design integration of systems 
enumerated in paragraphs (a)(1), (d)(1), (d)(2), (h)(1), (h)(2), 
(h)(4), (h)(8), and (h)(9) of Category IV or paragraphs (a)(5) and 
(a)(6) of Category VIII (MT);
    (16) Parts, components, or accessories ``specially designed'' to 
modify or customize the properties (e.g., operating frequencies, 
algorithms, waveforms, CODECs, or modulation/demodulation schemes) of a 
radio or information assurance/information security article controlled 
in this subchapter beyond what is specified in the public domain or the 
published product specifications; or
    (17) Any part, component, accessory, attachment, equipment, or 
system that (MT for those articles designated as such):
    (i) Is classified;
    (ii) Contains classified software; or
    (iii) Is being developed using classified information.
    (iv) Classified means classified pursuant to Executive Order 13526, 
or predecessor order, and a security classification guide developed 
pursuant thereto or equivalent, or to the corresponding classification 
rules of another government or intergovernmental organization.
    (d) Technical data (see Sec.  120.10 of this subchapter) and 
defense services (see Sec.  120.9 of this subchapter) directly related 
to the defense articles enumerated in paragraphs (a) through (c) of 
this category and classified technical data directly related to items 
controlled in CCL ECCN 9E620 and defense services using the classified 
technical data. (See Sec.  125.4 of this subchapter for exemptions.) 
(MT for technical data and defense services related to articles 
designated as such.)
* * * * *
    3. Section 121.8 is amended by revising the section heading and 
adding paragraph (h) to read as follows:

Sec.  121.8  End-items, components, accessories, attachments, parts, 
firmware, software, systems, and equipment.

* * * * *
    (h) Equipment is a combination of parts, components, accessories, 
attachments, firmware, or software that operate together to perform a 
specialized function of an end-item or a system.

    Dated: November 19, 2012.
Andrew J. Shapiro,
Assistant Secretary, Bureau of Political-Military Affairs, Department 
of State.
[FR Doc. 2012-28477 Filed 11-23-12; 11:15 am]
BILLING CODE 4710-25-P
```