70958 Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 / Proposed Rules 

4.3. With regard to innovative 

products and treatments for ‘‘reduction 

in consumption of tobacco,’’ 

a. How can the reduction best be 

measured? 

b. If the reduction is associated with 

a certain goal or benefit: 

i. What evidence is available to 

indicate that the reduction in 

consumption will bring about that goal 

or achieve that benefit? 

ii. What degree and duration of 

reduction are necessary to achieve that 

goal or benefit? 

4.4. With regard to innovative 

products and treatments for ‘‘reduction 

in the harm associated with continued 

tobacco use’’: 

a. How should the ‘‘harm’’ be 

identified and measured? 

b. Is there a range of harms that might 

be addressed, and if so, which are the 

most important to address? 

4.5. With regard to innovative 

products and treatments making claims 

in any of the three categories identified 

in section 918(b), what barriers exist to 

development and marketing approval? 

4.6 In regulating the innovative 

products and treatments referenced in 

section 918(b), how can FDA and other 

HHS Agencies act to ensure that the 

three effects mentioned in section 

918(b)—total abstinence from tobacco 

use, reductions in consumption of 

tobacco, and reductions in the harm 

associated with continued tobacco use— 

are achieved as broader outcomes, in a 

manner that best protects and promotes 

the public health? 

4.7. How can these broader outcomes 

be taken into account in FDA’s 

premarket evaluation of new product 

candidates? 

III. Attendance and Registration 

The FDA Conference Center at the 

White Oak location is a Federal facility 

with security procedures and limited 

seating. Attendance is free and will be 

on a first-come, first-served basis. 

Individuals who wish to present at the 

public hearing must register by 

December 6, 2012, and provide 

complete contact information, including 

name, title, affiliation, address, email, 

and phone number. Those without 

email access may register by contacting 

Ayanna Augustus (see FOR FURTHER

INFORMATION CONTACT). FDA has 

included questions for comment in 

section II of this document. You should 

identify the number of each question 

you wish to address in your 

presentation, so that FDA can consider 

that in organizing the presentations. 

Individuals and organizations with 

common interests should consolidate or 

coordinate their presentations and 

request time for a joint presentation. 

FDA will do its best to accommodate 

requests to speak and will determine the 

amount of time allotted for each oral 

presentation, and the approximate time 

that each oral presentation is scheduled 

to begin. FDA will notify registered 

presenters of their scheduled times, and 

make available an agenda at http:// 

www.fda.gov/Drugs/NewsEvents/ 

ucm324938.htm approximately 1 week 

prior to the public hearing. Once FDA 

notifies registered presenters of their 

scheduled times, presenters should 

submit to FDA an electronic copy of 

their presentation to 

Section918PublicMeeting@fda.hhs.gov 

by December 10, 2012. 

If you need special accommodations 

because of a disability, please contact 

Ayanna Augustus (see FOR FURTHER

INFORMATION CONTACT) at least 7 days 

before the meeting. 

A live Web cast of this public hearing 

may be seen at https:// 

collaboration.fda.gov/Section918 on the 

day of the public hearing. A video 

record of the public hearing will be 

available at the same Web address for 1 

year. 

IV. Notice of Hearing Under 21 CFR 

Part 15 

The Commissioner of Food and Drugs 

is announcing that the public hearing 

will be held in accordance with part 15 

(21 CFR part 15). The hearing will be 

conducted by a presiding officer, who 

will be accompanied by senior 

management and technical experts from 

various offices within FDA. 

Under § 15.30(f), the hearing is 

informal and the rules of evidence do 

not apply. No participant may interrupt 

the presentation of another participant. 

Only the presiding officer and panel 

members may question any person 

during or at the conclusion of each 

presentation. Public hearings under part 

15 are subject to FDA’s policy and 

procedures for electronic media 

coverage of FDA’s public administrative 

proceedings (part 10 (21 CFR part 10, 

subpart C)). Under § 10.205, 

representatives of the electronic media 

may be permitted, subject to certain 

limitations, to videotape, film, or 

otherwise record FDA’s public 

administrative proceedings, including 

presentations by participants. The 

hearing will be transcribed as stipulated 

in § 15.30(b) (see section VI of this 

document). To the extent that the 

conditions for the hearing, as described 

in this document, conflict with any 

provisions set out in part 15, this 

document acts as a waiver of those 

provisions as specified in § 15.30(h). 

V. Request for Comments 

Regardless of attendance at the public 

hearing, interested persons may submit 

either electronic or written comments to 

the Division of Dockets Management 

(see ADDRESSES). It is no longer 

necessary to send two copies of mailed 

comments. Identify comments with the 

docket number found in brackets in the 

heading of this document. Received 

comments may be seen in the Division 

of Dockets Management between 9 a.m. 

and 4 p.m., Monday through Friday. 

VI. Transcripts 

Transcripts of the public hearing will 

be available for review at the Division 

of Dockets Management (see ADDRESSES) 

and on the Internet at http:// 

www.regulations.gov approximately 30 

days after the public hearing. A 

transcript will also be made available in 

either hard copy or on CD–ROM, upon 

submission of a Freedom of Information 

request. Written requests should be sent 

to the Division of Freedom of 

Information (ELEM–1029), Food and 

Drug Administration, 12420 Parklawn 

Dr., Element Bldg., Rockville, MD 

20857. 

Dated: November 21, 2012. 

Leslie Kux, 

Assistant Commissioner for Policy. 

[FR Doc. 2012–28835 Filed 11–27–12; 8:45 am] 

BILLING CODE 4160–01–P 

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. 

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. 


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Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 / Proposed Rules 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-bycategory 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 C3, C4, C4ISR, 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 antisubmarine 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 


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70960 Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 / Proposed Rules 

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 


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Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 / Proposed Rules 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: 

§ 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 countercountermeasures 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 <10 dBsm from sea clutter with a 

false alarm rate of 10¥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; 


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(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 

degrees2 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 countercountermeasures (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 highgain receiver, as a wide-bandwidth 

receiver, as a multi-beam receiver, or as 

part of a multi-point system); 

(xxi) Radar employing noncooperative 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, electrooptic 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 countercountermeasure equipment, jamming, 

and counter jamming equipment); 

(5) Command, control, and 

communications (C3), command, 

control, communications, and 

computers (C4), command, control, 

communications, computers, 

intelligence, surveillance, and 

reconnaissance (C4ISR), and 

identification systems or equipment, as 

follows: 

(i) C3, C4, and C4ISR 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 

§ 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 


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Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 / Proposed Rules 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 antisubmarine 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 countermeasure (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 frequencydomain 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≤15cm*GHz/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 nonadjacent 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 °C and maintain a dielectric 

constant less than 6 at temperatures 

greater than 500 °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 × 106 J/m2

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 mPa 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 mPa 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° 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 


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70964 Federal Register / Vol. 77, No. 229 / Wednesday, November 28, 2012 / Proposed Rules 

(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 °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 § 120.10 of this 

subchapter) and defense services (see 

§ 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 § 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: 

§ 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 PoliticalMilitary Affairs, Department of State. 

[FR Doc. 2012–28477 Filed 11–23–12; 11:15 am] 

BILLING CODE 4710–25–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 226 

Osage Negotiated Rulemaking 

Committee 

AGENCY: Bureau of Indian Affairs, 

Interior 

ACTION: Notice of public meeting 

cancellation 

SUMMARY: In accordance with the 

requirements of the Federal Advisory 

Committee Act, 5 U.S.C. Appendix 2, 

the U.S. Department of the Interior, 

Bureau of Indian Affairs, Osage 

Negotiated Rulemaking Committee has 

cancelled the December 13–14, 2012 

meeting. 

DATES: The meetings were originally 

scheduled for Thursday, December 13, 

2012, and Friday, December 14, 2012, 

from 9 a.m. to 6 p.m. at the Wah Zha 

Zhi Cultural Center, 1449 W. Main, 

Pawhuska, Oklahoma 74056. A new 

meeting date and location will be 

announced later. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Eddie Streater, Designated Federal 

Officer, Bureau of Indian Affairs, 

Wewoka Agency, P.O. Box 1540, 

Seminole, OK 74818; telephone (405) 

257–6250; fax (405) 257–3875; or email 

osageregneg@bia.gov. Additional 

Committee information can be found at: 

http://www.bia.gov/osageregneg. 

SUPPLEMENTARY INFORMATION: On 

October 14, 2011, the United States and 

the Osage Nation (formerly known as 

the Osage Tribe) signed a Settlement 

Agreement to resolve litigation 

regarding alleged mismanagement of the 

Osage Nation’s oil and gas mineral 

estate, among other claims. As part of 

the Settlement Agreement, the parties 

agreed that it would be mutually 

beneficial ‘‘to address means of 

improving the trust management of the 

Osage Mineral Estate, the Osage Tribal 

Trust Account, and Other Osage 

Accounts.’’ Settlement Agreement, 

Paragraph 1.i. The parties agreed that a 

review and revision of the existing 

regulations is warranted to better assist 

the Bureau of Indian Affairs (BIA) in 

managing the Osage Mineral Estate. The 

parties agreed to engage in a negotiated 

rulemaking for this purpose. Settlement 

Agreement, Paragraph 9.b. After the 

Committee submits its report, BIA will 

develop a proposed rule to be published 

in the Federal Register. 

Dated: November 21, 2012. 

Michael S. Black, 

Director, Bureau of Indian Affairs. 

[FR Doc. 2012–28806 Filed 11–27–12; 8:45 am] 

BILLING CODE 4310–02–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2012–0938] 

RIN 1625–AA87 

Security Zone, Potomac and Anacostia 

Rivers; Washington, DC 

AGENCY: Coast Guard, DHS. 

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: This action is a supplemental 

notice of proposed rulemaking (SNPRM) 

to the Coast Guard’s October 24, 2012, 

notice of proposed rulemaking (NPRM) 

that proposed to establish a security 

zone during activities associated with 

the Presidential Inauguration in 

Washington, DC from January 15, 2013 

through January 24, 2013 (77 FR 64943). 

This supplemental proposal extends the 

southern boundary of the proposed 

security zone. This rule prohibits 

vessels and people from entering the 

security zone and requires vessels and 

persons in the security zone to depart 

the security zone, unless specifically 

exempt under the provisions in this rule 

or granted specific permission from the 

Coast Guard Captain of the Port 

Baltimore. This action is intended to 

temporarily restrict vessel traffic in 

portions of the Potomac and Anacostia 

Rivers during the event. 

DATES: Comments and related material 

must be received by the Coast Guard on 

or before December 28, 2012. 


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