Commerce Schedules Export-Related Rulemaking in Unified Agenda; FTR Rewrite in February

The Commerce Department released its fall 2012 Unified Agenda, setting out its regulatory plans for fiscal year 2013. Scheduled rulemakings include the Census Bureau’s Foreign Trade Regulations rewrite, as well as numerous proposed and final rules relating to Export Control Reform. In FY 2012, the Bureau of Industry and Security issued nine of the 12 final rules planned in the fall 2011 Unified Agenda, and three of seven proposed rules. Census had only planned to issue its FTR rewrite final rule, and did not do so in FY 2012.

Final FTR Rewrite due in February

According to the Unified Agenda, Census’ FTR rewrite final rule should be published in February, over two years since the proposed rule was issued. Census changed the abstract for the final rule to say it's “lifting the moratorium on accepting new applicants for the postdeparture filing program and modifying the program.” The rest of the abstract for the rule, which says Census will require Automated Export System (AES) filing for used self-propelled vehicles and temporary exports, as well as make “remedial changes,” is unchanged from the fall 2011 Unified Agenda.

USML-CCL Rewrite Final & Proposed Rules Scheduled

The Unified Agenda lists BIS' upcoming proposed and final rules relating to the transfer of items from the U.S. Munitions List to the Commerce Control List. Proposed rules on missiles; dissemination, detection and protection equipment; ammunition and ordinance; guns; firearms; and fire control equipment will all be published in 2013, according to the Unified Agenda. The proposed rules, along with the corresponding USML category and the scheduled month of publication are as follows (those marked by an asterisk are currently under Office of Management and Budget review):

The agenda also details the final rules moving items from the USML to the CCL that BIS expects to put out in FY 2013. These moves are subject to State Department notifications to Congress. At a Dec. 7 meeting of the President’s Export Council Subcommittee on Export Administration (PECSEA), Undersecretary for Industry and Security Eric Hirschhorn said he expects the first notification to occur in February (see ITT’s Online Archives 12121001 for summary). BIS’ planned USML-CCL transfer final rules are as follows:

(NOTE: The State Department’s regulatory agenda lists the scheduled publication date for all of its USML transfer rules as May 2013.)

Other Upcoming BIS Rules

BIS is planning to issue additional proposed and final rules pertaining to export controls, including other aspects of Export Control Reform. Among these are proposed rules on use of the Shippers Export Declaration in AES, non-material changes to export licenses, and a clarification of the definition of a routed export transaction. Also scheduled are final rules on encryption controls and editorial corrections to the CCL and Export Administration Regulations.

Proposed rules. Among the seven non-list transfer proposed rules BIS includes in the Unified Agenda, three have never been published in previous iterations of the agenda. Among them are:

Amendment to Licensing Requirements for Exports to Canada of Shotguns, Shotgun Shells and Optical Sighting Devices would amend licensing requirements in the EAR for items controlled under ECCNs 0A984, 0A986, and 0A987 to Canada, and is set for publication in February 2013 (here).

Clarification of the Definition of a Routed Export Transaction would clarify parties’ responsibilities under the EAR in “routed export transactions.” It would also detail when and how a U.S. principal party in interest (USPPI) may delegate its responsibilities to determine license requirements and apply for a license to the foreign principal party in interest (FPPI), and would clarify the parties' responsibilities under the EAR in a 'routed export transaction' when the USPPI maintains its responsibility for license requirements determination and licensing. It is scheduled for a March 2013 publication (here).

Revisions to the EAR: Unverified List would add the Unverified List (UVL) to the EAR, and would limit the availability of license exceptions in transactions involving listed parties when BIS is unable to conduct end-use checks, including where foreign government action or inaction prevents such checks from proceeding, or where BIS is unable to verify the existence or authenticity of a foreign transaction party. The proposed rule will be published in May 2013, BIS said (here).

Other proposed rules. Proposed rules that BIS has already listed in previous Unified Agendas include: (1) a reproposal of revisions to defense priorities and allocations system regulations in May 2013 (here); a proposed rule requiring some exporters to show CCL paragraphs in export control classification numbers in AES in June 2013 (here); a proposed revision of the CCL based on the application of modern technologies to crime control and law enforcement activities, in March 2013 (here); and proposed changes to requirements for the addition of non-material changes to export licenses, in June 2013 (here).

Final rules. Among the ten non-list transfer final rules BIS said it expects to publish in FY 2013, seven have never before been listed in a previous version of the Unified Agenda. These new final rules include:

Editorial Corrections to the Commerce Control List of the Export Administration Regulations will correct reference and typographical errors in the CCL. The corrections will primarily be editorial in nature, said BIS, and will not affect license requirements. A technical standard in ECCN 3A991 will also be revised. This final rule is due in April 2013 (here).

Editorial Corrections to the Export Administration Regulations will correct reference and typographical errors in the EAR. The corrections will be editorial in nature and will not affect license requirements, according to BIS. The rule is scheduled for publication in April 2013 (here).

List of Items Classified Under Export Control Classification 0Y521 Series will amend the EAR to make items subject to the EAR and to impose on those items a license requirement for export and reexport to all destinations, except Canada. Specifically, this rule will classify specified biosensor systems, collective protection systems, short-wave and mid-wave infrared camera lens, single element photomultiplier, transistors, and underwater acoustic sensors under ECCN 0A521. The commodities will be controlled for regional stability (RS) Column 1 reasons. The only license exception available for these commodities will be License Exception GOV. BIS said it will publish this rule in April 2013 (here).

Time Limit for Completion of Voluntary Self Disclosures and Revised Service of Process Procedures, issued as a proposed rule in November 2012, is scheduled for publication as a final rule in July 2013. The rule would impose a 180-day time limit from the date of the initial notification for submitting the comprehensive narrative account of violations when voluntarily disclosing EAR violations to the Office of Export Enforcement. This rule also would authorize use of delivery services other than registered or certified mail for service of charging letters in administrative enforcement proceedings (here). (See ITT’s Online Archives 12110619 for summary of the proposed rule.)

Other final rules. Another new final rule in the Unified Agenda will implement Australia Group agreements made at the 2012 plenary, and is set for publication in May 2013 (here). BIS also has two final rules coming up to add persons to the Entity List, schedule for publication in March 2013 (here) and April 2013 (here), respectively. Final rules previously listed in the Unified Agenda by BIS, and listed again in this fall 2012 edition, include: revisions to VEU provisions adding a notification requirement (already published on Dec. 19, see ITT’s Online Archives 12121820 for summary); changes to encryption export controls in February 2013 (here); and the implementation of 2004 and 2005 Nuclear Suppliers Group decisions in June 2013 (here).