Rule2023-08825
International Traffic in Arms Regulations: U.S. Munitions List Targeted Revisions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 27, 2023
Effective
May 21, 2023
Issuing agencies
State Department
Abstract
The Department of State (the Department) amends the International Traffic in Arms Regulations (ITAR) to remove from U.S. Munitions List (USML) Category XI certain high-energy storage capacitors and to clearly identify the high-energy storage capacitors that remain in USML Category XI.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 81 (Thursday, April 27, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 81 (Thursday, April 27, 2023)]
[Rules and Regulations]
[Pages 25488-25491]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08825]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice: 11986]
RIN 1400-AF27
International Traffic in Arms Regulations: U.S. Munitions List
Targeted Revisions
AGENCY: Department of State.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of State (the Department) amends the
International Traffic in Arms Regulations (ITAR) to remove from U.S.
Munitions List (USML) Category XI certain high-energy storage
capacitors and to clearly identify the high-energy storage capacitors
that remain in USML Category XI.
DATES: Effective date May 21, 2023.
Send comments by May 30, 2023.
ADDRESSES: Interested parties may submit comments to the Department of
State by any of the following methods:
<bullet> Visit the <a href="http://Regulations.gov">Regulations.gov</a> website at: <a href="http://www.regulations.gov">http://www.regulations.gov</a> and search for the docket number DOS-2023-0003.
[[Page 25489]]
<bullet> Email: <a href="/cdn-cgi/l/email-protection#d19595859281a4b3bdb8b292bebcbcb4bfa5a291a2a5b0a5b4ffb6bea7"><span class="__cf_email__" data-cfemail="9edadacaddceebfcf2f7fdddf1f3f3fbf0eaeddeedeaffeafbb0f9f1e8">[email protected]</span></a>. Commenting parties
must include RIN 1400-AF27 in the subject line of the email message.
<bullet> All comments should include the commenter's name, the
organization the commenter represents, if applicable, and the
commenter's address. If the Department of State is unable to read a
comment for any reason, and cannot contact the commenting party for
clarification, the Department of State may not be able to consider your
comment. After the conclusion of the comment period, the Department of
State will publish a Final Rule (in which it will address relevant
comments) as expeditiously as possible.
FOR FURTHER INFORMATION CONTACT: Mr. Chris Weil, Office of Defense
Trade Controls Policy, Department of State, telephone (202) 571-7051;
email <a href="/cdn-cgi/l/email-protection#0f4b4b5b4c4c7a7c7b60626a7d5c6a7d79666c6a4f7c7b6e7b6a21686079"><span class="__cf_email__" data-cfemail="1357574750506660677c7e7661407661657a70765360677267763d747c65">[email protected]</span></a> SUBJECT: ITAR Amendment--USML
Targeted Revisions (RIN 1400-AF27).
SUPPLEMENTARY INFORMATION: The Department of State's Directorate of
Defense Trade Controls (DDTC) administers the ITAR (22 CFR parts 120
through 130) to regulate the export, reexport, retransfer, and
temporary import of, and brokering activities related to certain items
and services. The articles, services, and information subject to the
jurisdiction of the Department of State under the ITAR (e.g., ``defense
articles'' and ``defense services'') are identified on the USML at ITAR
Sec. 121.1. Items not subject to the ITAR or to the exclusive
licensing jurisdiction of any other Department or Agency of the U.S.
Government are subject to the Export Administration Regulations (EAR,
15 CFR parts 730 through 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. This rule
does not modify the list of defense articles subject to permanent
import control by the Attorney General, as enumerated on the U.S.
Munitions Import List at 27 CFR part 447.
The Department seeks to control on the USML those articles and
services that provide a critical military or intelligence advantage.
The Department undertakes these revisions pursuant to the discretionary
statutory authority afforded the President in section 38(a)(1) of the
AECA and delegated to the Department of State in Executive Order 13637,
to control the export and temporary import of defense articles and
defense services in furtherance of world peace and the security and
foreign policy of the United States and to designate those items which
constitute the USML. The Department, informed by consultations with its
interagency partners, determined the articles removed from the USML
under this rulemaking no longer warrant control pursuant to the ITAR.
Targeted USML Revisions
With this rulemaking, the Department is removing from USML Category
XI certain high-energy storage capacitors that it assesses have broad
commercial application, are available internationally, and do not
provide a critical military or intelligence advantage. The Department
assesses that adding a 125-volt (125 V) voltage criterion for the high-
energy capacitors described on the USML ensures the capacitors that
remain warrant control on the USML. While adding the 125 V criterion to
paragraph (c)(5), the Department is simultaneously reorganizing the
paragraph to delineate each element of the control criteria more
clearly and adding a note to explain those criteria.
These changes are warranted because the Department found that
certain low-voltage high-energy storage capacitor technology has
progressed such that many models that exceed the existing USML control
criteria no longer provide a critical military or intelligence
advantage. Although these lower-voltage capacitors meet the energy
density and full energy life criteria, the technology for these lower-
voltage capacitors is well understood, and the capacitors have been
extensively integrated into commercial applications, such as Wi-Fi
routers and civil aviation aircraft transponders. Further, comparable
capacitors manufactured in other countries are widely available
internationally without multilateral export restrictions placed on
them.
The Department considered two methods of implementation for
specifying this voltage criterion. First, the Department considered
applying a voltage rating criterion, assessing it to be an industry-
standard term used to describe a value for existing capacitors that is
readily accessible to exporters and customers through the
specifications typically provided by Original Equipment Manufacturers
(OEMs). The Department assessed that this criterion would facilitate
compliance and implementation. This approach also would be in keeping
with the Department's intent to establish threshold criteria in
language readily understood by practitioners. However, it is possible
different OEMs determine voltage ratings using differing methodologies
or underlying assumptions, which could produce significantly different
ratings for equivalent products. The Department assesses this drawback
could be mitigated by clearly defining the term ``voltage rating'' in
the regulation but would require more information to do so
appropriately.
Second, the Department considered identifying the voltage
performance capability of the capacitors, as performance capability can
be empirically tested and is potentially less prone to
misinterpretation. However, it is not clear to the Department how much
additional testing would be required to confirm a given capacitor
model's capability or whether customers have ready access to that
information to facilitate compliance.
In this interim final rule, the Department implements the 125 V
criterion based on the voltage at which the capacitor is capable of
operating, in order to allow for public comment on advantages or
disadvantages of each approach and on potential definitions for
``voltage rating'' and ``capable of.''
The Department further reaffirms a core concept for compliance
programs:
When a commodity is described by a single criterion within a USML
entry, it is imperative to evaluate the remaining criteria of the
control to verify whether the commodity is described--even when the
commodity was not intentionally designed to meet or exceed the control
criteria.
Request for Comments
Consistent with its ongoing USML review process, the Department is
requesting public comments on the revisions described in this
rulemaking. The Department encourages the public to provide comments
directly related to this rule and responsive to the questions described
below. To facilitate timely review and assessment, comments should be
provided in a concise sentence or paragraph, followed by supporting
explanatory paragraphs and examples, with each distinct comment treated
separately (as opposed to multiple comments in one paragraph or
section). The Department requests comments focused on the following
questions:
1. Please provide specific examples of any high-energy storage
capacitors that exceed the 125 V threshold but fall under a 500 V
threshold that you believe do not provide a critical military
advantage.
2. What implementation challenges are presented by the use of
either ``capable of operating'' or ``voltage
[[Page 25490]]
rating'' to describe the voltage threshold?
3. Is there additional guidance that would be useful in parsing
``capable of operating,'' as used in this rule?
a. Is it sufficiently clear in the ``capable of operating''
implementation that the voltage capability is for steady-state, versus
transient or surge, operating conditions?
b. Is it sufficiently clear in the `capable of operating'
implementation that the voltage capability does not vary based on
circuit design margins?
4. Could a ``voltage rating'' criterion be implemented more easily
and consistently? If so,
a. Do you assess that a sufficient definition of ``voltage rating''
would be ``the value, based on the capacitor's design, testing, and
evaluation, that describes the maximum amount of continuous voltage
that will not damage the capacitor''?
b. Is it sufficiently clear in the alternative `voltage rating'
implementation that the voltage rating is for steady-state, versus
transient or surge, operating conditions?
c. Is it sufficiently clear in the alternative `voltage rating'
implementation that the voltage rating does not vary based on circuit
design margins?
d. What would be the effect of adding a temperature criterion
(e.g., ``measured at or below 85 [deg]C'') and is it accurate that the
voltage rating of a capacitor only declines with an increase in
temperature?
e. Would a criterion such as ``will not reduce the capacitor's full
energy life below 10,000 discharges'' address the fact that each charge
and discharge cycle likely inflicts some damage on a capacitor?
5. Are these revisions unclear in any way, or can they be more
concisely stated? For example, please identify any:
--Terms that you find ambiguous in definition or context
--Constructions or language that vary from existing USML entries
6. Are there other technical issues directly related to this entry
which the Department should address in a future rulemaking?
Comment Submissions
Instructions
Include the agency name and docket number or Regulatory Information
Number (RIN) (1400-AF27) for all submissions related to this
rulemaking. Relevant comments may be posted without substantive change
to the DDTC website (<a href="http://www.pmddtc.state.gov">www.pmddtc.state.gov</a>). Please remove any personal
information, because the Department will not edit comments. Parties who
wish to comment anonymously may do so by submitting their comments via
<a href="http://www.regulations.gov">www.regulations.gov</a>, leaving the fields that would identify the
commenter blank and including no identifying information in the comment
itself. Commenters are cautioned not to include proprietary, export-
controlled, or other sensitive information that they are not
comfortable making public in their comments. If such information would
provide useful insight to the comment: (1) assemble that information in
a separate document with proprietary markings; (2) include
``Proprietary supplement on file with: [provide POC]'' as the first
line in the body of the email submission; (3) submit the public portion
of the comment via email; and (4) call DDTC at (202) 663-1282 to
coordinate submission of the proprietary supplement.
Regulatory Analysis and Notices
Administrative Procedure Act
This rulemaking is exempt from section 553 (Rulemaking) and section
554 (Adjudications) of the Administrative Procedure Act (APA) pursuant
to 5 U.S.C. 553(a)(1) as a military or foreign affairs function of the
United States Government. 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 30-day provision for public
comment and a delayed effective date, without prejudice to its
determination that controlling the import and export of defense
articles and defense services is a military or foreign affairs
function.
Regulatory Flexibility Act
Since the Department is of the opinion that this rule is exempt
from the provisions of 5 U.S.C. 553, there is no requirement for an
analysis under the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not involve a mandate that will result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector of $100 million or more in any year and it
will not significantly or uniquely affect small governments. Therefore,
no actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Congressional Review Act
The Department assesses that this rulemaking is not a major rule
under the criteria of 5 U.S.C. 804. Moving the subject commodities to
the jurisdiction of the EAR will reduce regulatory restrictions and
compliance costs, particularly for U.S. exporters as well as some
importers who source the subject commodities from abroad. This will not
increase costs or prices and should have no adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises in domestic and export markets. To the contrary, the rule
is expected to reduce regulatory compliance costs in the long term and
facilitate U.S. manufacturers' competitiveness with foreign
manufacturers of similar commodities. The Department does not, however,
expect this change to have an annual effect on the economy of $100
million or more.
Executive Orders 12372 and 13132
This rulemaking does not have sufficient federalism implications to
require consultations or warrant the preparation of a federalism
summary impact statement. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities do not apply to this rulemaking.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributed impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been deemed a ``significant regulatory
action'' by the Office and Information and Regulatory Affairs under
Executive Order 12866.
This rule moves the export regulation of certain capacitors from
the ITAR to the EAR. This action reduces the regulatory burden on those
who export, temporarily import, retransfer, reexport, or perform
brokering activities involving the subject capacitors. In particular,
this action averts substantial regulatory burdens that would otherwise
apply to supply chains that rely on the subject capacitors and
commercial items into which the subject capacitors have been integrated
or incorporated. As discussed in ITAR Sec. 120.11(c), defense articles
remain subject to the ITAR after
[[Page 25491]]
incorporation or integration into an item not described on the USML,
unless otherwise provided in the ITAR. The Department assesses that
continuing to subject these capacitors (which are used in a wide swath
of everyday commercial items, including commercial aircraft and Wi-Fi
equipment) to the ITAR is unnecessary and would have significant
negative consequences for global commerce, including the grounding of
civil aircraft and the disruption of supply chains.
In implementing this rule, the Department is also revising USML
Category XI(c)(5) to clarify its structure and explain certain terms
used therein to minimize the potential for uncertainty.
The Department assesses that the benefits of this rulemaking
outweigh any costs, that modifying the USML in this manner is the most
cost-effective method to achieve the Department's regulatory objectives
on this matter, and that doing so will result in a net reduction of the
burden on the regulated community.
Executive Order 12988
The Department of State has reviewed this rulemaking in light of
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden.
Executive Order 13175
The Department of State has determined that this rulemaking will
not have tribal implications, will not impose substantial direct
compliance costs on Indian tribal governments, and will not preempt
tribal law. Accordingly, the requirements of Executive Order 13175 do
not apply to this rulemaking.
Paperwork Reduction Act
This rulemaking does not impose or revise any information
collections subject to 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 121
Arms and munitions, Classified information, Exports.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, part 121 is amended as follows:
PART 121--THE UNITED STATES MUNITIONS LIST
0
1. The authority citation for part 121 continues to read as follows:
Authority: 22 U.S.C. 2752, 2778, 2797; 22 U.S.C. 2651a; Sec.
1514, Pub. L. 105-261, 112 Stat. 2175; E.O. 13637, 78 FR 16129, 3
CFR, 2013 Comp., p. 223.
0
2. In Sec. 121.1, under Category XI, revise paragraph (c)(5) as
follows:
Sec. 121.1 The United States Munitions List.
* * * * *
Category XI--Military Electronics
* * * * *
(c) * * *
(5) High-energy storage capacitors that:
(i) Are capable of operating at greater than one hundred twenty-
five volts (125 V);
(ii) Have a repetition rate greater than or equal to six (6)
discharges per minute;
(iii) Have a full energy life greater than or equal to 10,000
discharges at greater than 0.2 Amps per Joule peak current; and
(iv) Have any of the following:
(A) Volumetric energy density greater than or equal to 1.5 J/cc; or
(B) Mass energy density greater than or equal to 1.3 kJ/kg;
Note to paragraph (c)(5): Volumetric energy density is Energy
per unit Volume. Mass energy density is Energy per unit Mass,
sometimes referred to as Gravimetric energy density or Specific
energy. Energy (E = \1/2\CV\2\, where C is Capacitance and V is the
Voltage rating) in these calculations must not be confused with
useful energy or extractable energy.
* * * * *
The Under Secretary of State for Arms Control and International
Security, Bonnie Jenkins, having reviewed and approved this document,
is delegating the authority to electronically sign this document to Jae
E. Shin, who is the Director of the Office of Defense Trade Controls
Compliance within the Directorate of Defense Trade Controls, for
purposes of publication in the Federal Register.
Jae E. Shin,
Director, Office of Defense Trade Controls Compliance, Department of
State.
[FR Doc. 2023-08825 Filed 4-26-23; 8:45 am]
BILLING CODE 4710-25-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on April 27, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.