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[Federal Register Volume 76, Number 234 (Tuesday, December 6, 2011)]
[Proposed Rules]
[Pages 76097-76100]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30977]

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DEPARTMENT OF STATE

22 CFR Part 121

RIN 1400-AC98
[Public Notice 7703]

Amendment to the International Traffic in Arms Regulations: 
Establishment of U.S. Munitions List Category XIX for Gas Turbine 
Engines

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 establish Category XIX of the U.S. Munitions List 
(USML) to describe gas turbine engines and associated equipment 
warranting control on the USML.

DATES: The Department of State will accept comments on this proposed 
rule until January 20, 2012.

ADDRESSES: Interested parties may submit comments within 45 days of the 
date of publication by one of the following methods:
     Email: DDTCResponseTeam@state.gov with the subject line, 
``ITAR Amendments--Category XIX, Gas Turbine Engines.''
     Internet: At www.regulations.gov, search for this notice 
by using this rule's RIN (1400-AC98).

Comments received after that date will be considered if feasible, but 
consideration cannot be assured. We will make all comments (including 
any personally identifying information or information for which a claim 
of confidentiality is asserted in those comments or their transmittal 
emails) 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: Director Charles B. Shotwell, Office 
of Defense Trade Controls Policy, Department of State, Telephone (202) 
663-2792 or Fax (202) 261-8199; Email DDTCResponseTeam@state.gov. Attn: 
Regulatory Change, USML Category XIX.

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 in 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 
Advance 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 
``Revision 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 our allies, enhancing our 
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 our NATO 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 them 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.

[[Page 76098]]

Establishment of Category XIX for Gas Turbine Engines and Associated 
Equipment

    This proposed rule establishes USML Category XIX to cover gas 
turbine engines and associated equipment currently covered in 
Categories VI, VII, and VIII. The USML identifies engine subcategories 
in all three of these categories, but there has been confusion 
concerning the controls in Category VI (which currently lists only 
``naval nuclear propulsion plants,'' leading exporters to question 
whether other types of propulsion systems are controlled as 
``components'' in Category VI(f)), Category VII (which controls both 
diesel and gas turbine engines under the same general term ``engines'' 
in Category VII(f)), and Category VIII (which controls ``military 
aircraft engines'' but not reciprocating engines). The intent of this 
change is to make clear that gas turbine engines for surface vessels, 
vehicles, and aircraft that meet certain objective parameters are 
controlled on the USML.
    The most 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 in 
any way specifically designed or modified for a defense article, 
regardless of their significance to maintaining a military advantage 
for the United States. Rather, it contains a list of specific types of 
parts, components, accessories, and attachments that continue to 
warrant control on the USML. All other parts, components, accessories, 
and attachments will become subject to the new 600 series controls in 
the CCL to be published separately by the Department of Commerce. The 
Administration has also proposed revisions to the jurisdictional status 
of certain militarily less significant end items that do not warrant 
USML control, but the primary impact of this proposed rule will be with 
respect to current USML controls on parts, components, accessories, and 
attachments that no longer warrant USML control.

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. Two proposed definitions have been published to 
date.
    The Department first provided a draft definition for ``specially 
designed'' in the December 2010 ANPRM (75 FR 76935) and noted the term 
would be used minimally in the USML, and then only to remain consistent 
with the Wassenaar Arrangement or other multilateral regime obligation 
or when no other reasonable option exists to describe the control 
without using the term. The draft definition provided at that time is 
as follows: ``For the purposes of this Subchapter, the term ``specially 
designed'' means that the end-item, equipment, accessory, attachment, 
system, component, or part (see ITAR Sec.  121.8) has properties that 
(i) Distinguish it for certain predetermined purposes, (ii) are 
directly related to the functioning of a defense article, and (iii) are 
used exclusively or predominantly in or with a defense article 
identified on the USML.''
    The Department of Commerce subsequently published on July 15, 2011, 
for public comment the Administration's proposed definition of 
``specially designed'' that would be common to the CCL and the USML. 
The public provided more than 40 comments on that proposed definition 
on or before the September 13 deadline for comments. The Departments of 
State, Commerce, and Defense are now reviewing those comments and 
related issues, and the Departments of State and Commerce plan to 
publish for public comment another proposed rule on a definition of 
``specially designed'' that would be common to the USML and the CCL. In 
the interim, and for the purpose of evaluation of this proposed rule, 
reviewers should use the definition provided in the December ANPRM.

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 the Munitions List. To that end, the public is 
asked to identify any potential lack of coverage brought about by the 
proposed rules for engines for vessels of war, military vehicles, and 
military aircraft contained in this notice and the new ECCNs published 
separately by the Department of Commerce when reviewed together.
    (2) The assumption behind the creation of a single category for 
items that are part of systems controlled in several categories is that 
the consolidation of these items sharing essentially the same 
technology will clarify which engines and related items are controlled, 
will simplify the regulations as a whole, and will lead to more 
effective controls over engines with national security concerns. We ask 
the public to specifically address this assumption, and to provide its 
opinion on whether the creation of a new category, as opposed to 
retaining controls in various categories, would be easier for users of 
the list.

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 Sec.  553 (Rulemaking) and Sec.  554 
(Adjudications) of the Administrative Procedure Act. 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 45-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), and accepted 
comments for 60 days.

Regulatory Flexibility Act

    Since this proposed amendment is not subject to 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.

[[Page 76099]]

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 Order 12866

    The Department 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 governing the conduct of 
this function are exempt from the requirements of Executive Order 
12866. However, the Department has reviewed the proposed rule to ensure 
its consistency with the regulatory philosophy and principles set forth 
in the Executive Order.

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 will not pre-empt 
tribal law. Accordingly, the requirement of Executive Order 13175 does 
not apply to this rulemaking.

Executive Order 13563

    The Department of State has considered this rule in light of 
Executive Order 13563, dated January 18, 2011, and affirms that this 
regulation is consistent with the guidance therein.

Paperwork Reduction Act

    This proposed amendment does not impose any new reporting or 
recordkeeping requirements subject to the Paperwork Reduction Act, 44 
U.S.C. chapter 35.

List of Subjects in 22 CFR 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 revised to read as follows:

Sec.  121.1  General. The United States Munitions List.

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Category XIX--Gas Turbine Engines and Associated Equipment

    *(a) Turbofan and Turbojet engines, whether in development, 
production, or inventory (including technology demonstrators), capable 
of 15,000 lbf (66.7 kN) of thrust or greater that have any of the 
following:
    (1) with or capable of thrust augmentation (afterburner);
    (2) thrust or exhaust nozzle vectoring;
    (3) contains parts or components controlled in paragraph (f)(4) of 
this category;
    (4) capable of inverted flight;
    (5) capable of high power extraction (greater than 50 percent of 
engine thrust) at altitudes greater than 40,000 feet; or
    (6) capable of directed flow thrust reversing using bypass/fan and 
core flow air and also capable for being deployed in flight.
    *(b) Turboshaft and Turboprop engines, whether in development, 
production, or inventory (including technology demonstrators), capable 
of 1500 shp (1119 kW) or greater that have any of the following:
    (1) Cooled low pressure turbine, cooled intermediate pressure 
turbine, or cooled power turbine;
    (2) contains parts or components controlled in paragraph (f)(4)(i) 
or (f)(4)(ii) of this category; or
    (3) capable of oil sump sealing when the engine is in the vertical 
position.
    (c) Engines, whether in development, production, or inventory 
(including technology demonstrators), ``specially designed'' for armed 
or military unmanned aerial vehicle systems, cruise missiles, or target 
drones.
    *(d) AGT1500, CTS800, TF40B, T55, TF60, T700, and TF50 engines.
    *(e) Digital engine controls (e.g., Full Authority Digital Engine 
Controls (FADEC) and Digital Electronic Engine Controls (DEEC)) 
``specially designed'' for gas turbine engines controlled in this 
category.
    (f) Components, parts, accessories, attachments, or associated 
equipment as follows:
    (1) components, parts, accessories, attachments, and equipment 
``specially designed'' for the following U.S.-origin engines (and 
military variants thereof): AE1107C, F101, F107, F112, F118, F119, 
F120, F124, F125, F135, F136, F414, F415, J402, GE38, TF40B, and TF60;

    Note: Digital engine controls (e.g., Full Authority Digital 
Engine Controls (FADEC) and Digital Electronic Engine Controls 
(DEEC)) ``specially designed'' for the engines identified in (f)(1) 
of this category are controlled by (e) of this category.

    *(2) hot section components (i.e., combustors, turbine blades, 
vanes, nozzles, disks and shrouds) ``specially designed'' for gas 
turbine engines controlled this category and related cooled components 
(i.e., cooled low pressure turbine blades, vanes, disks; cooled 
augmenters; and cooled nozzles) ``specially designed'' for gas turbine 
engines controlled in this category. The cowl, diffuser, dome, chamber, 
shells, and liners for the combustors are also controlled by this 
paragraph;
    (3) engine monitoring systems (i.e., prognostics, diagnostics, and 
health) ``specially designed'' for gas turbine engines and components 
controlled in this category; or
    (4) any component, part, accessory, attachment, equipment, or 
system that:
    (i) is classified;
    (ii) contains classified software;
    (iii) is manufactured using classified production data; or
    (iv) is being developed using classified information.
    ``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.
    (g) Technical data and defense services directly related to the 
defense articles enumerated in paragraphs (a) through (f) of this 
category.
* * * * *

[[Page 76100]]

    Dated: November 28, 2011.
Ellen O. Tauscher,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. 2011-30977 Filed 12-5-11; 8:45 am]
BILLING CODE 4710-25-P
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