BIS, State Dept. Final Rules to Shift USML Fire Control, Other Articles to CCL

The Bureau of Industry and Security and the State Department announced final rules (here and here) that will transfer certain fire control, laser, imaging and guidance equipment from U.S. Munitions List (USML) Category XII to the Commerce Control List. The final rules also shift certain items from USML categories VIII (aircraft), XIII (materials and miscellaneous articles) and XV (spacecraft) to USML Category XII. BIS and State issued the regulations after considering comments on proposed rules issued in May 2015 (see 1505040021) and February 2016 (see 1602180022). The Obama administration switched fewer lower-level military parts and components from Category XII to the CCL than for other USML categories, simply because remaining items in that category still warrant International Traffic in Arms Regulations (ITAR) control, State said.

In response to BIS' February proposal, some commenters said the proposed increased controls for the infrared detection items were too strict and complex, and didn’t align with Wassenaar Arrangement licensing policies, the agency said in the final rule. Contrary to two commenters’ requests, BIS did not remove the § 744.9 licensing requirement for 9-Hertz (cycles per second) cameras in CCL Export Control Classification Number (ECCN) 6A993.a, but added language that the statute doesn’t apply to exports, re-exports or transfers that are part of a military deployment by a nation in BIS Country Group A:1 (generally Wassenaar Arrangement-participating states).

BIS’ final rule will also add a worldwide regional stability control -- an instrument of U.S. foreign policy to maintain regional stability -- for ECCN 6A002 (optical sensors and equipment, and “components” therefor), and clarifies that the type of focal plane arrays controlled in USML Category XII(e) are primarily infrared. The rule also adds language to the CCL delineating the jurisdiction of space-qualified focal plane arrays under USML Category XV(e). BIS is also adding a “License Requirement Note” clarifying that ECCN 6A003 (cameras, systems or equipment, and “components” therefor) commodities not subject to the ITAR but “of the type described in USML Category XII(c)” will be controlled as cameras of 6A003, when they incorporate a camera controlled by that ECCN. BIS intends the language to “link the more specific terminology” of USML Category XII with the Wassenaar-based terminology of 6A003.

The rules will take effect Dec. 31, BIS and State said. In addition to the ECCNs listed above, BIS's proposed rule would revise the following ECCNs:

• 0A919: “Military commodities” located and produced outside the United States as follows (see List of Items Controlled)
• 0A987: Optical sighting devices for firearms (including shotguns controlled by 0A984); and “components” as follows (see List of Items Controlled)
• 2A984: Concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution of 0.1 milliradian up to and including 1 milliradian at a standoff distance of 100 meters; and “parts” and “components,” not elsewhere specified (n.e.s.)
• 6A004: Optical equipment and “components,” as follows (see List of Items Controlled)
• 6A005: “Lasers,” “components” and optical equipment, as follows (see List of Items Controlled), excluding items that are subject to the export licensing authority of the Nuclear Regulatory Commission
• 6A007: Gravity meters (gravimeters) and gravity gradiometers, as follows (see List of Items Controlled)
• 6A008: Radar systems, equipment and assemblies, having any of the following (see List of Items Controlled), and “specially designed” “components” therefor
• 6A107: Gravity meters (gravimeters) or gravity gradiometers, other than those controlled by 6A007, designed or modified for airborne or marine use, as follows, (see List of Items Controlled) and “specially designed” “parts” and “components” therefor
• 6A611: Acoustic systems and equipment, radar, and “parts,” “components,” “accessories,” and “attachments” “specially designed” therefor, “specially designed” for a military application that are not enumerated in any USML category or other ECCN are controlled by ECCN 3A611. Military fire control, laser, imaging, and guidance equipment that are not enumerated in any USML category or ECCN are controlled by ECCN 7A611
• 6A990: Read-out integrated circuits
• 6A993: Cameras, not controlled by 6A003 or 6A203
• 6D002: “Software” “specially designed” for the “use” of equipment controlled by 6A002.b, 6A008 or 6B008
• 6D003: Other “software”
• 6D991: “Software,” n.e.s., “specially designed” for the “development”, “production”, or “use” of commodities controlled by 6A002, 6A003, 6A990, 6A991, 6A996, 6A997, or 6A998
• 6E001: “Technology” according to the General Technology Note for the “development” of equipment, materials or “software” controlled by 6A (except 6A990, 6A991, 6A992, 6A994, 6A995, 6A996, 6A997, 6A998, or 6A999.c), 6B (except 6B995), 6C (except 6C992 or 6C994), or 6D (except 6D991, 6D992, or 6D993)
• 6E002: “Technology” according to the General Technology Note for the “production” of equipment or materials controlled by 6A (except 6A990, 6A991, 6A992, 6A994, 6A995, 6A996, 6A997, 6A998 or 6A999.c), 6B (except 6B995) or 6C (except 6C992 or 6C994)
• 6E990: “Technology” “required” for the “development” or “production” of commodities controlled by ECCN 6A990
• 7A001: Accelerometers as follows (see List of Items Controlled) and “specially designed” “components” therefor
• 7A002: Gyros or angular rate sensors, having any of the following (see List of Items Controlled) and “specially designed” “components” therefor
• 7A003: “Inertial measurement equipment or systems”
• 7A005: Global Navigation Satellite Systems (GNSS) receiving equipment having any of the following (see List of Items Controlled) and “specially designed” “components” therefor
• 7A101: Accelerometers, other than those controlled by 7A001 (see List of Items Controlled), and “specially designed” “parts” and “components” therefor
• 7A102: Gyros, other than those controlled by 7A002 (see List of Items Controlled), and “specially designed” “parts” and “components” therefor
• 7A611: Military fire control, laser, imaging, and guidance equipment
• 7A994: Other navigation direction finding equipment, airborne communication equipment, all aircraft inertial navigation systems not controlled under 7A003 or 7A103, and other avionic equipment, including “parts” and “components,” n.e.s.
• 7E994: “Technology,” n.e.s., for the “development,” “production”, or “use” of navigation, airborne communication, and other avionics equipment
• 8A002: Marine systems, equipment, “parts” and “components”
• 9A991: “Aircraft”, n.e.s., and gas turbine engines not controlled by 9A001 or 9A101 and “parts” and “components,” n.e.s.

BIS's proposed rule would also add the following ECCNs:

• 0E987: “Technology” “required” for the “development,” or “production” of commodities controlled by 0A987 that incorporate a focal plane array or image intensifier tube
• 7B611: Test, inspection, and production commodities “specially designed” for military fire control, laser, imaging, and guidance equipment
• 7D611: “Software” “specially designed” for commodities controlled by 7A611 or equipment controlled by 7B611
• 7E611: “Technology” “required” for the “development,” “production,” operation, installation, maintenance, repair, overhaul or refurbishing of commodities controlled by 7A611, commodities controlled by 7B611, or software controlled by 7D611

In its announcement, BIS said it will continue to help businesses comply with the new and updated rules. State said it boosted industry outreach, especially to small- and medium-sized businesses, “as part of [Export Control Reform].” State said that most of the 38 comments it received in connection with the February proposal stated that proposed USML Category XII controls “drew a clear line” between the USML’s exclusively military items and CCL exports that have commercial and civil uses. In contrast with current regulations, the revised USML Category XII specifically identifies and controls “defense articles” specially designed for a military end user, State said. The department is inserting the definition for “military end user,” borrowed from the Export Administration Regulations, as a note to Category XII. “A military end user is defined as the national armed services, national guard, national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support military end uses,” State said. “Contemporaneous documents are required to support the design intent; otherwise, use by a military end user establishes that the item is specially designed for a military end user.”

(Federal Register 10/12/16)