22 March 1999
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: March 22, 1999 (Volume 64, Number 54)]
[Rules and Regulations]
[Page 13679-13681]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr99-11]

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DEPARTMENT OF STATE

22 CFR Parts 121 and 124

[Public Notice 3011]


Amendments to the International Traffic in Arms Regulations
(ITAR): Control of Commercial Communications Satellites on the United
States Munitions List

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule amends the International Traffic in Arms Regulations
(ITAR) by re-designating on the U.S. Munitions List (USML) commercial
communications satellites.

EFFECTIVE DATE: March 15, 1999.

FOR FURTHER INFORMATION CONTACT: William J. Lowell, Director, Office of
Defense Trade Controls, Bureau of Political-Military Affairs,
Department of State, Telephone (703) 812-2564 or FAX (703) 875-6647
ATTN: Regulatory Change, Commercial Communications Satellites.

SUPPLEMENTARY INFORMATION: On October 17, 1998, the President signed
Public Law 105-261, The Strom Thurmond National Defense Authorization
Act for Fiscal Year 1999. This Act requires that, inter alia, effective
March 15, 1999, communications satellites and related items (as defined
in the Act) be controlled on the U.S. Munitions List, except with
respect to export licenses for such satellites issued by the Department
of Commerce before March 15, 1999 and export license applications

[[Page 13680]]

made under the Export Administration Regulations before March 15, 1999.
    This coverage by the U.S. Munitions List does not extend to NASA's
International Space Station, which remains subject to the Commerce
Control List as set forth in 59 Fed. Regis. 47799 (1994).
    Importantly, however, this rule change does provide for U.S.
Munitions List coverage for all other spacecraft, including all
satellites, and all spacecraft technical data, as well as all
components, accessories, attachments, and related technical assistance,
including, without exception, all launch support activities (e.g.,
technical data provided to the launch provider on form, fit, function,
mass, electrical, mechanical, dynamic, environmental, telemetry,
safety, facility, launch pad access, and launch parameters, as well as
interfaces for mating and parameters for launch). The Office of Defense
Trade Controls will be contacting U.S. persons individually who have
received commodity jurisdiction determinations in the past that are
affected by this rule change.
    Consistent with Public Law 105-261, special export controls are
detailed for the launch of U.S.-origin satellites and components from
or by nationals of countries other than NATO (i.e., Belgium, Canada,
Denmark, France, Germany, Greece, Iceland, Italy, Luxembourg, The
Netherlands, Norway, Portugal, Spain, Turkey, the United Kingdom and
the United States) or major non-NATO allies (i.e. Australia, Egypt,
Israel, Japan, Republic of Korea, New Zealand, Jordan, and Argentina).
The mandatory munitions licensing requirement of Public Law 105-261 for
launch failure investigations and analyses is also elaborated, though
such requirement has long existed in the ITAR. The Office of Defense
Trade Controls generally will require a technical assistance agreement
for the launch of U.S.-origin satellites and components from or by
nationals of countries other than NATO or major non-NATO allies.
Similarly, the Office of Defense Trade Controls generally will not
authorize use of exemptions (e.g., Sec. 124.3 and Sec. 125.4(b)(2)) for
shipments of unclassified technical data in furtherance of a technical
assistance agreement in these circumstances unless the applicant has
established a computerized document control and archive system for all
such technical data and made provision for remote on-line access to the
system by the Departments of State and Defense.
    In carrying out this directive, Part 121 of Categories XIII and XV
of the U.S. Munitions List (Part 121), and Part 124 concerning
agreements and other defense services are amended.
    This amendment involves a foreign affairs function of the United
States, and therefore, is not subject to the procedures required by 5
U.S.C. 553 and 554. It is also exempt from review under Executive Order
12866 but has been reviewed internally by the Department to ensure
consistency with the purposes thereof. This amendment has been found to
be a minor rule within the meaning of the Small Business Regulatory
Enforcement Fairness Act of 1996, P.L. 104-121. It does not require
analysis under the Regulatory Flexibility Act or the Unfunded Mandates
Reform Act. However, interested parties are invited to submit written
comments to the Department of State, Office of Defense Trade Controls,
ATTN: Regulatory Change, Communications Satellites and Related Items,
Room 200, SA-6, Washington, D.C. 2052-0602.

List of Subjects

22 CFR Part 121

    Arms and Munitions, Exports.

22 CFR Part 124

    Arms and Munitions, Exports, Technical assistance.

    Accordingly, for the reasons set forth above, Title 22, Chapter 1,
subchapter M, is amended, as follows:

PART 121--THE UNITED STATES MUNITIONS LIST

    1. The authority citation for Part 121 is revised to read as
follows:

    Authority: Sec. 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. 2658; Pub. L. 105-261.

    2. In section 121.1, Category XIII is amended by revising paragraph
(b)(1) and by removing (b)(1)(i), and Category XV is amended by
revising paragraphs (a) and (b); removing paragraph (c); redesignating
paragraph (d) as paragraph (c); redesignating paragraph (b)(5) as (d)
and paragraphs (f)(5) (i) through (v) as (d)(1) through (5); revising
newly designated paragraph (d) introductory text; revising paragraph
(e) and (f); and removing paragraph (g), to read as follows:

Sec. 121.1  General--The United States Munitions List.

* * * * *

Category XIII--Auxiliary Military Equipment

* * * * *
    (b) * * *
    (1) Military cryptographic (including key management) systems,
equipment, assemblies, modules, integrated circuits, components or
software with the capability of maintaining secrecy or confidentiality
of information or information systems, including equipment and software
for tracking, telemetry and control (TT&C) encryption and decryption.

Category XV--Space Systems and Associated Equipment

    *(a) Spacecraft, including communications satellites, remote
sensing satellites, scientific satellites, research satellites,
navigation satellites, experimental and multi-mission satellites.

    *Note to paragraph (a): Commercial communications satellites,
scientific satellites, research satellites and experimental
satellites are designated as SME only when the equipment is intended
for use by the armed forces of any foreign country.

    (b) Ground control stations for telemetry, tracking and control of
spacecraft or satellites, or employing any of the cryptographic items
controlled under category XIII of this subchapter.
* * * * *
    (d) Radiation-hardened microelectronic circuits that meet or exceed
all five of the following characteristics:
* * * * *
    (e) All specifically designed or modified systems, components,
parts, accessories, attachments, and associated equipment for the
articles in this category, including the articles identified in
Sec. 1516 of Public Law 105-261: satellite fuel, ground support
equipment, test equipment, payload adapter or interface hardware,
replacement parts, and non-embedded solid propellant orbit transfer
engines (see also categories IV and V).
    (f) Technical data (as defined in Sec. 120.10 of this subchapter)
and defense services (as defined in Sec. 120.9 of this subchapter)
directly related to the articles enumerated in paragraphs (a) through
(e) of this category, as well as detailed design, development,
manufacturing or production data for all spacecraft and specifically
designed or modified components for all spacecraft systems. This
paragraph includes all technical data, without exception, for all
launch support activities (e.g., technical data provided to the launch
provider on form, fit, function, mass, electrical, mechanical, dynamic,
environmental, telemetry, safety, facility, launch pad access, and
launch parameters, as well as interfaces for mating and parameters

[[Page 13681]]

for launch.) (See Sec. 124.1 for the requirements for technical
assistance agreements before defense services may be furnished even
when all the information relied upon by the U.S. person in performing
the defense service is in the public domain or is otherwise exempt from
the licensing requirements of this subchapter.) Technical data directly
related to the manufacture or production of any article enumerated
elsewhere in this category that is designated as Significant Military
Equipment (SME) shall itself be designated SME. Further, technical data
directly related to the manufacture or production of all spacecraft,
notwithstanding the nature of the intended end use (e.g., even where
the hardware is not SME), is designated SME.

    Note to paragraph (f): The special export controls contained in
Sec. 124.15 of this subchapter are always required before a U.S.
person may participate in a launch failure investigation or analysis
and before the export of any article or defense service in this
category for launch in, or by nationals of, a country that is not a
member of the North Atlantic Treaty Organization or a major non-NATO
ally of the United States. Such special export controls also may be
imposed with respect to any destination as deemed appropriate in
furtherance of the security and foreign policy of the United States.

PART 124--AGREEMENTS, OFF-SHORE PROCURMENT AND OTHER DEFENSE
SERVICES

    3. The authority citation for Part 124 is revised to read as
follows:

    Authority: Sec. 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. 2658; Pub. L. 105-261.

    4. Section 124.15 is revised to read as follows:

Sec. 124.15  Special Export Controls for Defense Articles and Defense
Services Controlled under Category XV: Space Systems and Space
Launches.

    (a) The export of any satellite or related item (see Sec. 121.1,
Category XV(a) and (e)) or any defense service controlled by this
subchapter associated with the launch in, or by nationals of, a country
that is not a member of the North Atlantic Treaty Organization or a
major non-NATO ally of the United States always requires special
exports controls, in addition to other export controls required by this
subchapter, as follows:
    (1) All licenses and other requests for approval require a
technology transfer control plan (TTCP) approved by the Department of
Defense and an encryption technology control plan approved by the
National Security Agency. Drafts reflecting advance discussions with
both agencies must accompany submission of the license application or
proposed technical assistance agreement, and the letter of transmittal
required in Sec. 124.12 must identify the U.S. Government officials
familiar with the preparation of the draft TTCPs. The TTCP must require
any U.S. person or entity involved in the export to notify the
Department of Defense in advance of all meetings and interactions with
any foreign person or entity that is a party to the export and require
such U.S. person or entity to certify that it has complied with this
notification requirement within 30 days after launch.
    (2) The U.S. person must make arrangements with the Department of
Defense for monitoring. The costs of such monitoring services must be
fully reimbursed to the Department of Defense by the U.S. person
receiving such services. The letter of transmittal required under
Sec. 124.12 must also state that such reimbursement arrangements have
been made with the Department of Defense and identify the specific
Department of Defense official with whom these arrangements have been
made. As required by Public Law 105-261, such monitoring will cover,
but not be limited to--
    (i) Technical discussions and activities, including the design,
development, operation, maintenance, modification, and repair of
satellites, satellite components, missiles, other equipment, launch
facilities, and launch vehicles;
    (ii) Satellite processing and launch activities, including launch
preparation, satellite transportation, integration of the satellite
with the launch vehicle, testing and checkout prior to launch,
satellite launch, and return of equipment to the United States;
    (iii) Activities relating to launch failure, delay, or
cancellation, including post-launch failure investigations or analyses
with regard to either the launcher or the satellite; and
    (iv) All other aspects of the launch.
    (b) Mandatory licenses for launch failure (crash) investigations or
analyses: In the event of a failure of a launch from a foreign country
(including a post liftoff failure to reach proper orbit)--
    (1) The activities of U.S. persons or entities in connection with
any subsequent investigation or analysis of the failure continue to be
subject to the controls established under section 38 of the Arms Export
Control Act, including the requirements under this subchapter for
express approval prior to participation in such investigations or
analyses, regardless of whether a license was issued under this
subchapter for the initial export of the satellite or satellite
component;
    (2) Officials of the Department of Defense must monitor all
activities associated with the investigation or analyses to insure
against unauthorized transfer of technical data or services and U.S.
persons must follow the procedures set forth in paragraphs (a)(1) and
(a)(2) of this Category.
    (c) Although Public Law 105-261 does not require the application of
special export controls for the launch of U.S.-origin satellites and
components from or by nationals of countries that are members of NATO
or major non-NATO allies, such export controls may nonetheless be
applied, in addition to any other export controls required under this
subchapter, as appropriate in furtherance of the security and foreign
policy of the United States. Further, the export of any article or
defense service controlled under this subchapter to any destination may
also require that the special export controls identified in paragraphs
(a)(1) and (a)(2) of this category be applied in furtherance of the
security and foreign policy of the United States.
    (d) Mandatory licenses for exports to insurance providers and
underwriters: None of the exemptions or sub-licensing provisions
available in this subchapter may be used for the export of technical
data in order to obtain or satisfy insurance requirements. Such exports
are always subject to the prior approval and re-transfer requirements
of sections 3 and 38 of the Arms Export Control Act, as applied by
relevant provisions of this subchapter.

    Dated: March 11, 1999.
John D. Holum,
Acting Under Secretary of State for Arms Control and International
Security Affairs and Director, U.S. Arms Control and Disarmament
Agency, Department of State.
[FR Doc. 99-6797 Filed 3-19-99; 8:45 am]
BILLING CODE 4710-25-P
