Federal Register | Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Category XV and Definition of “Defense Service”

(a) A defense service means:

(1) The furnishing of assistance (including training) using other than public domain information (see§ 120.11 of this subchapter) to a foreign person (see§ 120.16 of this subchapter), whether in the United States or abroad, in the design, development, engineering, manufacture, production, assembly, testing, intermediate- or depot-level maintenance (see§ 120.38 of this subchapter), modification, demilitarization, destruction, or processing of defense articles (see§ 120.6 of this subchapter);

(2) The furnishing of assistance to a foreign person, whether in the United States or abroad, for the integration of any item controlled on the U.S. Munitions List (USML) (see§ 121.1 of this subchapter) or items subject to the EAR (see§ 120.42 of this subchapter) into an end item (see§ 121.8(a) of this subchapter) or component (see § 121.8(b) of this subchapter) that is controlled as a defense article on the USML, regardless of the origin;

Note to paragraph (a)(2):

“Integration” means the systems engineering design process of uniting two or more items in order to form, coordinate, or blend into a functioning or unified whole, including introduction of software to enable proper operation of the article. This includes determining where to integrate an item (e.g., integration of a civil engine into a destroyer which requires changes or modifications to the destroyer in order for the civil engine to operate properly; not plug and play). “Integration” is distinct from “installation,” which means the act of putting something in its place and does not require changes or modifications to the item in which it is being installed (e.g., installing a dashboard radio into a military vehicle where no changes or modifications to the vehicle are required).

(3) The furnishing of assistance (including training), to a foreign person regardless of whether technical data (see§ 120.10 of this subchapter) is transferred, including formal or informal instruction in the United States or abroad by any means, in the tactical employment (not basic operation) of a defense article;

(4) Conducting direct combat operations for a foreign person (see paragraph (b)(5) of this section);

(5) The furnishing of assistance (including training) in the integration of a satellite or spacecraft to a launch vehicle, including both planning and onsite support, regardless of the jurisdiction of, the ownership of, or the origin of the satellite or spacecraft, or whether technical data is used; or

(6) The furnishing of assistance (including training) in the launch failure analysis of a satellite, spacecraft, or launch vehicle, regardless of the jurisdiction of, the ownership of, or the origin of the satellite, spacecraft, or launch vehicle, or whether technical data is used.

(b) The following is not a defense service:

(1) Training in organizational-level (basic-level) maintenance (see§ 120.38 of this subchapter) of a defense article lawfully approved for export from the United States or subsequently approved for reexport or retransfer to an end-user, unless otherwise proscribed in § 126.1 of this subchapter or otherwise ineligible (see§ 126.7(a)(4) and (6) of this subchapter);

(2) Mere employment of a natural U.S. person by a foreign person;

(3) Servicing of an item subject to the EAR (see§ 120.42 of this subchapter) that has been integrated or installed into a defense article;

(4) Providing law enforcement, physical security, or personal protective services (including training and advice) to or for a foreign person (see§ 120.16 of this subchapter) using only public domain information; or

(5) Services performed, to include direct combat operations, as a member of the regular military forces of a foreign nation by a U.S. person who has been drafted into such forces.

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

* * * * *

(a) Spacecraft, including satellites, manned or unmanned space vehicles, whether designated developmental, experimental, research or scientific, or having a commercial, civil, or military end-use, that:

*(1) Are specially designed to mitigate effects (e.g., scintillation) of or for detection of a nuclear detonation;

*(2) Track ground, airborne, missile, or space objects using imaging, infrared, radar, or laser systems;

*(3) Conduct signals or measurement and signatures intelligence;

(4) Provide space-based logistics, assembly or servicing of any spacecraft (e.g., refueling);

*(5) Are anti-satellite or anti-spacecraft (e.g., kinetic, RF, laser, charged particle);

*(6) Have space-to-ground weapons systems (e.g., kinetic or directed energy);

*(7) Have any of the following electro-optical remote sensing capabilities or characteristics:

(i) Electro-optical visible and near infrared (VNIR) (i.e., 400nm to 1,000nm) or infrared (i.e., greater than 1,000nm to 30,000nm) with less than 40 spectral bands having an aperture greater than 0.35 meters;

(ii) Electro-optical hyperspectral with 40 spectral bands or more in the VNIR, short-wavelength infrared (SWIR) (i.e., greater than 1,000nm to 2,500nm) or any combination of the aforementioned and having a Ground Sample Distance (GSD) less than 30 meters;

(iii) Electro-optical hyperspectral with 40 spectral bands or more in the mid-wavelength infrared (MWIR) (i.e., greater than 2,500nm to 5,500nm) having a narrow spectral bandwidth of Δλ less than or equal to 20nm full width at half maximum (FWHM) or having a wide spectral bandwidth with Δλ greater than 20nm FWHM and a GSD less than 200 meters; or

(iv) Electro-optical hyperspectral with 40 spectral bands or more in the long-wavelength infrared (LWIR) (i.e., greater than 5,500nm to 30,000nm) having a narrow spectral bandwidth of Δλ less than or equal to 50nm FWHM or having a wide spectral bandwidth with Δλ greater than 50nm FWHM and a GSD less than 500 meters;

Note 1 to paragraph (a)(7):

Ground Sample Distance (GSD) is measured from a spacecraft's nadir (i.e., local vertical) position.

Note 2 to paragraph (a)(7):

Optical remote sensing spacecraft or satellite spectral bandwidth is the smallest difference in wavelength (i.e.,Δλ) that can be distinguished at full width at half maximum (FWHM) of wavelength λ.

Note 3 to paragraph (a)(7):

An optical satellite or spacecraft is not SME if non-earth pointing.

*(8) Have radar remote sensing capabilities or characteristics (e.g., active electronically scanned array (AESA), synthetic aperture radar (SAR), inverse synthetic aperture radar (ISAR), ultra-wideband SAR) except those having a center frequency equal to or greater than 1 GHz but less than or equal to 10 GHz AND having a bandwidth less than 300 MHz;

(9) Provide Positioning, Navigation, and Timing (PNT);

Note to paragraph (a)(9):

This paragraph does not control a satellite or spacecraft that provides only a differential correction broadcast for the purposes of positioning, navigation, or timing.

*(10) Are specially designed to be used in a constellation or formation that when operated together, in essence or effect, form a virtual satellite (e.g., functioning as if one satellite) with the characteristics of other items in paragraph (a);

(11) Are man-rated sub-orbital, orbital, lunar, interplanetary or habitat; or

*(12) Are classified, contain classified software or hardware, are manufactured using classified production data, or are being developed using classified information (e.g., having classified requirements, specifications, functions, or operational characteristics or include classified cryptographic items controlled under USML Category XIII of this subchapter). “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 international organization.

Note to paragraph (a):

Spacecraft that are not identified in this paragraph are subject to the EAR.

(b) Ground control systems and training simulators specially designed for telemetry, tracking, and control of spacecraft in paragraph (a) of this category.

Note to paragraph (b):

Parts, components, accessories, attachments, equipment, or systems that are common to satellite ground systems or simulators used to control non-USML satellites are subject to the EAR.

(c) Global Positioning System (GPS) receiving equipment specifically designed, modified, or configured for military use; or GPS receiving equipment with any of the following characteristics:

(1) Designed for encryption or decryption (e.g., Y-Code) of GPS precise positioning service (PPS) signals;

(2) Designed for producing navigation results above 60,000 feet altitude and at 1,000 knots velocity or greater;

(3) Specifically designed or modified for use with a null steering antenna or including a null steering antenna designed to reduce or avoid jamming signals;

(4) Designed or modified for use with unmanned air vehicle systems capable of delivering at least a 500 kg “payload” to a “range” of at least 300 km.

Note 1 to paragraph (c)(4):

“Payload” is the total mass that can be carried or delivered by the specified rocket, space launch vehicle, missile, drone, or unmanned aerial vehicle that is not used to maintain flight. “Range” is the maximum distance that the specified aircraft system is capable of traveling in the mode of stable flight as measured by the projection of its trajectory over the surface of the Earth. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining “range.” The “range” for aircraft systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links, or other external constraints. For aircraft systems, the “range” will be determined for a one-way distance using the most fuel-efficient flight profile (e.g., cruise speed and altitude), assuming International Civil Aviation Organization (ICAO) standard atmosphere with zero wind.

Note 2 to paragraph (c)(4):

GPS receivers designed or modified for use with military unmanned air vehicle systems with less capability are considered to be specifically designed, modified, or configured for military use and therefore covered under this paragraph (c)(4). Any GPS equipment not meeting this definition is subject to the jurisdiction of the Department of Commerce (DOC). Manufacturers or exporters of equipment under DOC jurisdiction are advised that the U.S. Government does not assure the availability of the GPS P-Code for civil navigation. It is the policy of the Department of Defense (DOD) that GPS receivers using P-Code without clarification as to whether or not those receivers were designed or modified to use Y-Code will be presumed to be Y-Code capable and covered under this paragraph. The DOD policy further requires that a notice be attached to all P-Code receivers presented for export. The notice must state the following: “ADVISORY NOTICE: This receiver uses the GPS P-Code signal, which, by U.S. policy, may be switched off without notice.”

(d) [Reserved]

(e) Spacecraft parts, components, accessories, attachments, equipment, or systems, as follows:

(1) Antennas as follows:

(i) Having a diameter greater than 25 meters;

(ii) Are actively scanned;

(iii) Are adaptive beam forming; or

(iv) Are for interferometric radar;

(2) Space-qualified optics (i.e., lens or mirror), including optical coating, having active properties (e.g., adaptive or deformable), or having a largest lateral dimension greater than 0.35 meters;

(3) “Space-qualified” focal plane arrays (FPA) having a peak response in the wavelength range exceeding 900nm and readout integrated circuit (ROIC) specially designed therefor;

(4) “Space-qualified” mechanical cryocooler, active cold finger, and associated control electronics specially designed therefor;

(5) “Space-qualified” active vibration suppression, including isolation and dampening, and associated control electronics therefor;

(6) Optical bench assemblies for items in paragraph (a) of this category and the multi-aperture assemblies; fast steering mirrors (i.e., greater than 300 rad/sec [2] acceleration), pushbroom assemblies, flexure mounts, beam splitters, mirror folds, focus or channeling mechanisms, alignment mechanisms, inertial reference unit (IRU), black body cavities, baffles and covers, and control electronics specially designed therefor;

(7) Non-communications space-qualified directed energy (e.g., lasers or RF) systems and specially designed for a spacecraft in paragraph (a) of this category;

(8) Space-based kinetic systems or charged particle energy systems, including power conditioning and beam-handling/switching, propagation, tracking, or pointing equipment, and specially designed parts and components therefor;

(9) “Space-qualified” cesium, rubidium, hydrogen maser, or quantum (e.g., based upon Al, Hg, Yb, Sr, Be Ions) atomic clocks, and specially designed parts and components therefor;

(10) Attitude determination and control systems, and specially designed parts and components therefor, that provide earth location accuracy without using Ground Location Points better than or equal to:

(i) 5 meters from low earth orbit (LEO);

(ii) 30 meters from medium earth orbit (MEO);

(iii) 150 meters from geosynchronous orbit (GEO); or

(iv) 225 meters from high earth orbit (HEO);

(11) Space-based nuclear thermionic or non-nuclear thermionic converters or generators, and specially designed parts and components therefor;

(12) Thrusters (e.g., rocket engines) that provide for orbit adjustment greater than 150 lbf (i.e., 667.23 N) vacuum thrust;

(13) Control moment gyroscope;

(14) “Space-qualified” monolithic microwave integrated circuits (MMIC) that combine transmit and receive (T/R) functions on a single die as follows:

(i) Having a power amplifier with maximum saturated peak output power (in watts), Psat, greater than 200 divided by the maximum operating frequency (in GHz) squared [Psat >200 W*GHz [2] /fGHz [2] ]; or

(ii) Having a common path (e.g., phase shifter-digital attenuator) circuit with greater than 3 bits phase shifting at operating frequencies 10 GHz or below, or greater than 4 bits phase shifting at operating frequencies above 10 GHz;

(15) “Space-qualified” oscillator for radar in paragraph (a) of this category with phase noise less than ‐120 dBc/Hz + (20 log 10 (RF) (in GHz)) measured at 2 KHz*RF (in GHz) from carrier;

(16) “Space-qualified” star tracker or star sensor with angular accuracy less than or equal to 1 arcsec in all three axes and a tracking rate equal to or greater than 3.0 deg/sec, and specially designed parts and components therefor (MT);

*(17) Secondary or hosted payload, and specially designed parts and components therefor, that perform any of the functions described in paragraph (a) of this category;

*(18) Department of Defense-funded secondary or hosted payload, and specially designed parts and components therefor; or

(19) Spacecraft re-entry vehicles, and specially designed parts and components therefor, as follows (MT if usable in rockets, SLVs, missiles, drones, or UAVs capable of delivering a “payload” of at least 500 kg to a “range” of at least 300 km):

(i) Heat shields, and components therefore, fabricated of ceramic or ablative materials;

(ii) Heat sinks and components therefore, fabricated of light-weight, high heat capacity materials; or

(iii) Electronic equipment specially designed for spacecraft re-entry vehicles;

Note to paragraph (e)(19):

For definition of “range” as it pertains to aircraft systems, see note to paragraph (c)(4) of this category. For definition of “range” as it pertains to rocket systems, see note to paragraph (f)(6) of USML Category VI.

*(20) Any part, component, accessory, attachment, equipment, or system that (i) is classified;

(ii) Contains classified software; or

(iii) 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 or international organization.

Note 1 to paragraph (e):

Parts, components, accessories, and attachments specially designed for spacecraft enumerated in this category but not listed in paragraph (e) are subject to the EAR.

Note 2 to paragraph (e):

For the purposes of this paragraph, an article is “space-qualified” if it is designed, manufactured, or qualified through successful testing, for operation at altitudes greater than 100 km above the surface of the Earth. Notes: (1) A determination that a specific article (or commodity) (e.g., by product serial number) is “space-qualified” by virtue of testing does not mean that other articles in the same production run or model series are “space-qualified” if not individually tested. (2) “Article” is synonymous with “commodity,” as defined in EAR § 772.1. (3) A specific article not designed or manufactured for use at altitudes greater than 100 km above the surface of the Earth is not “space-qualified” before it is successfully tested.

(f) 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 (e) of this category and classified technical data directly related to items controlled in ECCNs 9A515, 9B515, 9C515, and 9D515 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.)

(g)-(w) [Reserved]

(x) Commodities, software, and technical data subject to the EAR (see§ 120.42 of this subchapter) used in or with defense articles controlled in this category.

Note to paragraph (x):

Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technical data subject to the EAR (see§ 123.1(b) of this subchapter).

* * * * *

7.Section 124.2 is amended by revising the section header, removing and reserving paragraphs (a) and (b), and revising paragraph (c) introductory text to read as follows:

https://www.federalregister.gov/articles/2013/05/24/2013-11985/amendment-to-the-international-traffic-in-arms-regulations-revision-of-us-munitions-list-category-xv