State and BIS Propose Rules to Revise USML Cat X & CCL, "Tiering" on Hold, Etc.
The State Department issued a proposed rule to revise U.S. Munitions List Category X (personal protective equipment and shelters) to describe more precisely the materials warranting control on the USML. At the same time, the Bureau of Industry and Security is proposing the creation of five new 600 series ECCNs to control personal protective equipment, shelters, and related items the President determines no longer warrant control under Category X of the USML. The State Department is also not proposing any tiering at this time, and is still developing its definition of "Specially Designed."
Written comments on both proposed rules are due by July 23.
State Dept Proposed Rule
Does Not Reflect Tiering
In December 2010, the State Department and BIS described the administration’s plan to make the USML and the Commodity Control List (CCL) positive, tiered, and aligned so eventually they can be combined into a single control list. While these remain the administration’s ultimate Export Control Reform (ECR) objectives, State said, their concurrent implementation would be problematic in the near term. As a result, the administration 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.
(See ITT's Online Archives [10121021] and [10120921] for summary of State and BIS plans, respectively, to make the USML and CCL positive, tiered, and aligned, and to establish a "bright line" between the two.)
Proposed Revision of USML Category X
The State Department's proposed rule would revise USML Category X, covering personal protective equipment and shelters, at 22 CFR 121.1 to describe more precisely the materials warranting control on the USML. The proposed revisions would move certain items to the CCL, define certain articles more narrowly and specifically, etc.
Highlights of proposed changes include:
Body armor. Body armor in paragraph (a)(1) of Category X would be changed so that it specifically covers only body armor providing a protection level equal to or greater than NIJ Type IV. BIS said Type III body armor would be controlled on the CCL in proposed ECCN 1A613.
Anti-gravity, pressure & atmosphere diving suits: Anti-gravity suits, pressure suits, and atmosphere diving suits currently controlled in paragraphs (a)(3), (a)(4), and (a)(5) of Category X would become subject to the Export Administration Regulations (EAR).
Goggles, spectacles, and visors. Only googles, spectacles, or visors employing other than common broadband absorptive dyes and UV inhibitors as a means of protection with optical density greater than 3 would be controlled in Category X paragraph (a)(7).
Shelters. Permanent and transportable shelters, currently controlled in paragraph (b) of Category X, as well as equipment for the production of articles covered in this category (current paragraph (c), would be controlled on the CCL in ECCNs 1A613 and 1B613, respectively.
Parts and components. Former paragraph (d) of Category X, which controls “components, parts, accessories, attachments, and associated equipment specifically designed, modified, configured, or adapted for use with the articles in paragraphs (a) through (c) of this category,” would be limited in scope to include only ceramic or composite body armor plates, laser protective lenses for googles defined in proposed paragraph (a)(7), and classified hardware.
BIS said that, as with the revision of other categories, the USML will not control all generic, non-specific parts and components that are in any way specifically designed or modified for a defense article, but that these items would become subject to the new 600-series controls in category 1 of the CCL.
Proposed Definition for "Specially Designed"
For the purposes of this proposed rule, the draft definition for “specially designed” in the State Department's December 2010 proposed rule should be used, said State. The draft definition provided at that time is as follows: “For the purposes of this Subchapter, the term 'specially designed' means that the end-item, equipment, accessory, attachment, system, component, or part (see ITAR 121.8) has properties that (i) distinguish it for certain predetermined purposes, (ii) are directly related to the functioning of a defense article, and (iii) are used exclusively or predominantly in or with a defense article identified on the USML.”
(BIS subsequently published on July 15, 2011, for public comment, the Administration’s proposed definition of “specially designed” that would be common to the CCL and the USML. The public provided more than 40 comments on that proposed definition by the September 13 deadline. State and the Department of Commerce plan to publish for public comment another proposed rule on a definition of “specially designed” that would be common to the USML and the CCL, which is currently under review by the Office of Management and Budget. See ITT's Online Archives 11071519 for summary of the July 2011 BIS proposed rule for new definitions for "specially designed" end items, parts, etc.; the proposed rule also covers an EAR control structure to transfer less significant items from the USML to the CCL, the transfer of an initial tranche of items from USML Category VII to the CCL, etc.)
BIS Proposed Rule
Proposed Revisions to the CCL
BIS’ proposed rule describes how personal protective equipment, shelters, and related items the President determines no longer warrant control under Category X of the USML would be controlled under the CCL.
Highlights of proposed changes include:
Five new “600 series” ECCNs. The BIS proposed rule would create five new "600 series" Export Control Classification Numbers (1A613, 1B613, 1C613, 1D613, and 1E613) in the CCL to control items that the President determines no longer warrant control under USML Category X. All of these proposed 1Y613 ECCNs (except items in the .y paragraphs) would be subject to national security (NS 1), regional stability (RS 1), and antiterrorism (AT 1) controls.
Examples of commodities controlled under proposed 1A613 would include: armored plate “specially designed” for military use and not controlled on the USML (1A613.a); shelters “specially designed” to provide ballistic protection or protect against nuclear, biological, or chemical contamination (1A613.b); military helmets providing protection less than NIJ level IV (currently classified under ECCN 0A018.d) and helmet shells providing protection less than NIJ level IV (1A613.c); soft body armor and protective garments manufactured to military standards or specifications that provide ballistic protection equal to or less than NIJ level III (NIJ 0101.06, July 2008) as well as hard body armor plate that provides NIJ level III protection (1A613.d); etc.
Proposed ECCN 1B613 would specifically control plasma pressure compaction (P2C) equipment “specially designed for the “production” or “development” of commodities specified in ECCN 1A613 or USML Category X, in addition to proposed ECCN 1B613’s general controls on equipment.
ECCNs 1Y613 would also contain a paragraph y.99 that would control any item that (i) has been determined, in an applicable commodity jurisdiction determination issued by State to be subject to the EAR; and (ii) would otherwise be controlled elsewhere under one of the Category 0 “600 series” ECCNS.
Military helmets. BIS’ proposed rule would remove the references to military helmets in ECCN 0A018 (items on the Wassenaar Munitions List) paragraph (d) that describe exceptions to control under that ECCN. BIS said conventional steel helmets described in paragraph .d.1 (conventional steel helmets not equipped with communications hardware, optical sights, etc.), which are currently controlled under ECCN 0A988, would be moved to proposed ECCN 1A613.y.1. Military helmets described in ECCN 0A018.d.2 are currently subject to the ITAR, said BIS, and that jurisdiction would not change under these proposed changes.
Due to this change, military helmets under ECCN 0A018.d would be controlled for national security (NS1), regional stability (RS1), and antiterrorism (AT1). Military helmets currently controlled under ECCN 0A988 would be controlled for AT1 reasons only.
Machetes. This proposed rule would remove machetes from the CCL and designate them as EAR99 items, in part because the removal of conventional steel helmets not equipped with communications hardware, optical sights, etc. (as defined by the exception to ECCN 0A018.d.1) from ECCN 0A988 would leave machetes as the only items controlled under that ECCN. BIS said this proposal would help streamline the CCL and remove an item for which it believes no national security or foreign policy concern merits control.
Non-military body armor. Body armor not manufactured to military standards, currently classified under ECCN 1A005, would not be reclassified under proposed ECCN 1A613 like military-grade body armor that moved from the USML. However, BIS said this proposed rule would revise the List of Controlled Items section in ECCN 1A005 to more positively identify soft body armor and hard body armor plates that are controlled under this ECCN.
TMP and BAG license exceptions for military body armor. BIS’ proposed rule would allow license exception BAG and license exception TMP for exports of body armor classified under proposed ECCN 1A613.d (soft body armor and protective garments manufactured to military standards or specifications that provide ballistic protection equal to or less than NIJ level III (NIJ 0101.06, July 2008) as well as hard body armor plate that provides NIJ level III protection). With respect to license exception TMP for proposed ECCN 1A613.d, BIS would create an exception to TMP to allow exports of these articles to Country Group D:1 countries not subject to an arms embargo, as well as Iraq. Only exports, and not reexports, would be eligible for these two license exceptions.
Strategic Trade Authorization. Finally, BIS said items described in proposed ECCNs 1A613 and 1B613 would be eligible for License Exception STA under Section 740(c)(1) without the need for a determination.
State proposed rule (FR Pub 06/07/12) available here.
BIS proposed rule (FR Pub 06/07/12) available here.