Revisions to the Export Administration Regulations: Initial Implementation of Export doc

Billing code 3510-33-P DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 730, 732, 734, 736, 738, 740, 742, 743, 744, 746, 748, 750, 756, 758, 762, 764, 770, 772, and 774 [Docket No. 120403246-2657-01] RIN 0694-AF65 Revisions to the Export Administration Regulations: Initial Implementation of Export Control Reform AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule. SUMMARY: As part of the Export Control Reform (ECR) Initiative, the Bureau of Industry and Security (BIS), and the Directorate of Defense Trade Controls (DDTC), Department of State, have published multiple proposed amendments to the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), respectively, to strengthen national security by fundamentally reforming the export control system. This final rule implements the initial ECR changes by adding a structure and related provisions to control munitions items that the President has determined no longer warrant export control on the U.S. Munitions List (USML) on the Commerce Control List (CCL), specifically aircraft, gas turbine engines, and related items. This rule is being published in conjunction with a Department of State rule that revises the USML so that upon the effective date of both rules, the USML and CCL and corresponding regulatory structures will be complementary. The revisions in this final rule are also part of 1  Commerce’s retrospective regulatory review plan under EO 13563, which Commerce completed in August 2011. DATES: Effective Date: This rule is effective [INSERT DATE 180 DAYS AFTER PUBLICATION IN FEDERAL REGISTER]. ADDRESSES: Commerce’s full plan can be accessed at: http://open.commerce.gov/news/2011/08/23/commerce-plan-retrospective-analysis-existing- rules. FOR FURTHER INFORMATION CONTACT: For general questions about the “600 series” control structure or transition related questions, contact Hillary Hess, Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, at 202-482-2440 or rpd2@bis.doc.gov. For technical questions about the ECCNs included in this rule contact Gene Christiansen, Office of National Security and Technology Transfer Controls, at 202-482-2984 or gene.christiansen@bis.doc.gov. For questions about the definition of “specially designed,” contact Timothy Mooney, Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, at 202-482-2440 or timothy.mooney@bis.doc.gov. SUPPLEMENTARY INFORMATION: This final rule implements the initial ECR changes by adding a structure and related provisions to control munitions items that the President has determined no longer warrant export control on the U.S. Munitions List (USML) on the Commerce Control List (CCL). In addition to adding this control structure, this rule creates ten new “600 series” Export Control Classification Numbers (ECCNs) to control an initial tranche of items moving from the USML to the CCL: aircraft and gas turbine engines, related parts, components, accessories, attachments, software, and technology. 2  This rule also adopts as much as possible a common definition of “specially designed” for use under the EAR and the ITAR, along with other key terms used on the two control lists. In addition, this rule addresses implementation issues related to the transition of items from the USML to the CCL, including the continued use of DDTC-issued licenses that include items transferred to the CCL. This rule implements changes that were proposed in five rules published between July 15, 2011 and June 21, 2012 under ECR. This rule is being published in conjunction with a Department of State rule that revises the USML so that upon the effective date of both rules, the USML and CCL and corresponding regulatory structures will be complementary. Contents I. The Export Control Reform Initiative A. Background B. List of Proposed Rules C. Relationship to Other Rules Implementing ECR II. Addition of the “600 series” to the CCL A. General Structure B. Reasons for Control C. Items Paragraph III. Transition A. Delayed Effective Date B. Amendment to the EAR to Address Dual Licensing C. Transition Period and General Order No. 5 IV. Retrospective Regulatory Review 3  V. Part 730 – General Information VI. Part 732 – Steps for Using the EAR VII. Supplement No. 3 to part 732 – Red Flags VIII. Part 734 – Scope of the EAR A. Dual Licensing B. De Minimis IX. Part 736 – General Prohibitions A. Foreign-Produced Direct Product B. General Order No.5 X. Part 738 – CCL Overview and the Country Chart XI. Part 740 – License Exceptions A. Restrictions B. License Exception TMP C. License Exception RPL D. License Exception GOV E. License Exception TSU F. License Exception STA G. Other License Exception STA Changes H. Country Groups XII. Part 742 – Control Policy A. National Security (NS) Review Policy B. Regional Stability (RS) License Requirements C. RS Review Policy 4  XIII. Part 743 – Special Reporting A. Conventional Arms B. Major Defense Equipment XIV. Part 744 – End-User and End-Use Controls A. “Military End Use” in §§ 744.17 and 744.21 B. China Military End-Use Control XV. Part 746 – Embargoes and Other Special Controls A. Iraq B. UN Embargoes XVI. Part 748 – Applications and Documentation A. Classification Requests to Confirm that Items are not “Specially Designed” B. Unique Submission Requirements XVII. Part 750 – Application Processing, Issuance, and Denial A. Calculating Processing Times B. Shipment to Approved End Users C. Extended Validity D. Specificity on Application XVIII. Part 756 – Appeals XIX. Part 758 – Export Clearance Requirements A. Automated Export System (AES) Filing Regardless of Value, Except for .y Items B. Furnishing of ECCNs to Consignees C. Removal of Obsolete References in Revised Sections XX. Part 762 – Recordkeeping 5  XXI. Part 764 – Foreign-Produced Direct Product and Denial Orders XXII. Part 770 – Interpretations XXIII. Part 772 – Definitions (including Specially Designed) A. “Specially Designed” Definition B. Other Definitions XXIV. Part 774 – The Commerce Control List A. Product Group Headings B. ECCN 0A919 C. Aircraft and Related Items “600 series” ECCNs D. Gas Turbine Engines and Related Items “600 series” ECCNs E. 9Y018 ECCNs Rolled into “600 series” F. Supplement Nos. 6 and 7 – Sensitive List and Very Sensitive List G. Supplement No. 4 – Commerce Control List Order of Review XXV. Procedural Amendment – Authority Citation Update I. The Export Control Reform Initiative A. Background The objective of the Export Control Reform (ECR) Initiative is to protect and enhance U.S. national security interests. President Obama directed the Administration in August 2009 to conduct a broad-based review of the U.S. export control system to identify additional ways to enhance national security. In April 2010, then-Secretary of Defense Robert M. Gates, describing the initial results of that effort, explained that fundamental reform of the U.S. export control system is necessary to enhance national security. Once the International Traffic in Arms Regulations (ITAR) and its U.S. Munitions List (USML) are amended so that they control only 6  the items that provide the United States with a critical military or intelligence advantage or otherwise warrant such controls, and the Export Administration Regulations (EAR) are amended to control military items that do not warrant USML controls, the U.S. export control system will enhance national security by (i) improving interoperability of U.S. military forces with allied countries, (ii) strengthening the U.S. industrial base by, among other things, reducing incentives for foreign manufacturers to design out and avoid U.S origin content and services, and (iii) allowing export control officials to focus government resources on transactions that pose greater concern. On July 15, 2011, BIS published Proposed Revisions to the Export Administration Regulations (EAR): Control of Items the President Determines No Longer Warrant Control under the United States Munitions List (USML) (76 FR 41958) (hereinafter “July 15 (framework) rule”). That rule proposed a regulatory framework to control items on the USML that, in accordance with section 38(f) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(f)(1)), the President determines no longer warrant export control under the AECA. These items would be controlled under the EAR once the congressional notification requirements of section 38(f) and corresponding amendments to the ITAR (22 CFR parts 120-130) and its USML and the EAR (15 CFR parts 730-774) and its Commerce Control List (CCL) are completed. After the July 15 (framework) rule proposed this regulatory framework, BIS published subsequent rules proposing specific changes to the CCL, and to other parts of the EAR. Among other rules, on June 21, 2012, BIS published Proposed Revisions to the Export Administration Regulations: Implementation of Export Control Reform; Revisions to License Exceptions After Retrospective Regulatory Review (77 FR 37524) (hereinafter “June 21 (transition) rule”). That rule proposed, inter alia, establishing a general order to facilitate the transition from ITAR to 7  EAR licensing jurisdiction and broadening certain EAR license exceptions and licensing procedures to ensure they are not more restrictive than comparable ITAR exemptions and approvals. This final rule implements ECR by finalizing the provisions contained in five proposed rules published between July 15, 2011 and June 21, 2012, which adds to the CCL military aircraft, military gas turbine engines, and related items that the President has determined no longer warrant export control on the USML. The Department of State made the congressional notification required by Section 38(f) of the AECA for removal of these items from the USML. The majority of the revisions in this rule are specific to the munitions items that are transferred from the USML to the CCL; however, many revisions also affect items or transactions that were already subject to the EAR prior to the effective date of this rule. Rather than adding a new paragraph to § 734.3 for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), as proposed, BIS is adding a note to section 734.3(b)(1)(i) to clarify the delegations of authority between the Departments of State and Justice with respect to defense articles identified on the USML in the ITAR and the United States Munitions Import List (USMIL). BIS received no comments from the public on this issue. BIS does not believe that this change is substantive; rather it more accurately reflects the relationship between the USML in the ITAR and the United States Munitions Import List. B. List of Proposed Rules This rule implements amendments to the EAR proposed in the following five rules published between July 15, 2011 and June 21, 2012 under ECR: 8  • Proposed Revisions to the Export Administration Regulations (EAR): Control of Items the President Determines No Longer Warrant Control Under the United States Munitions List (USML), (, 76 FR 41958, July 15, 2011) (RIN 0694-AF17) (“July 15 (framework) rule”); • Revisions to the Export Administration Regulations (EAR): Control of Aircraft and Related Items the President Determines No Longer Warrant Control Under the United States Munitions List (USML), (76 FR 68675, November 7, 2011) (RIN 0694-AF36) (“November 7 (aircraft) rule”); • Revisions to the Export Administration Regulations (EAR): Control of Gas Turbine Engines and Related Items the President Determines No Longer Warrant Control Under the United States Munitions List (USML), (76 FR 76072, December 6, 2011) (RIN 0694-AF41) (“December 6 (gas turbine engines) rule”); • “Specially Designed” Definition, (77 FR 36409, June 19, 2012) (RIN 0694- AF66) (“June 19 (specially designed) rule”); and • Proposed Revisions to the Export Administration Regulations: Implementation of Export Control Reform; Revisions to License Exceptions After Retrospective Regulatory Review, (77 FR 37524, June 21, 2012) (RIN 0694-AF65) (“June 21 (transition) rule”). C. Relationship to Other Rules Implementing ECR This final rule is published concurrently with the Department of State final rule, Revisions to the International Traffic in Arms Regulations: Initial Implementation of Export Control Reform. BIS anticipates additional final rules will be published concurrently by both agencies moving additional munitions items from the USML to the CCL, once the notification 9  process is completed in accordance with section 38(f) of the AECA and subsequent USML categories and the corresponding Export Control Classification Numbers (ECCNs) are published in final form. II. Addition of the “600 Series” to the CCL In the July 15 (framework) rule, BIS proposed to add a new “xY6zz” control series to the CCL. This series, known as the “600 series,” would control most items formerly on the USML that move to the CCL and would consolidate the thirteen existing Wassenaar Arrangement Munitions List (WAML) entries (i.e., those entries currently under “xY018”). In implementing the “600 series” in this rule, as discussed below, BIS took into account comments related to the function and structure of the “600 series” submitted under all prior proposed rules issued as part of ECR that would move items from the USML to the CCL. These rules are: • Revisions to the Export Administration Regulations (EAR): Control of Military Vehicles and Related Items That the President Determines No Longer Warrant Control on the United States Munitions List, (76 FR 76085, December 6, 2011); • Revisions to the Export Administration Regulations (EAR): Control of Vessels of War and Related Articles the President Determines No Longer Warrant Control Under the United States Munitions List (USML), (76 FR 80282, December 23, 2011); • Revisions to the Export Administration Regulations (EAR): Control of Submersible Vessels, Oceanographic Equipment and Related Articles That the President Determines No longer Warrant Control Under the United States Munitions List (USML) (76 FR 80291, December 23, 2011); 10  [...]... other types of items subject to the EAR” to reflect the scope of items subject to export controls under the EAR Similarly, the revised text notes that while the term “dual use” is often used to describe the types of items subject to the EAR, more precisely, any item that is not exclusively controlled for export or reexport by another agency of the U.S Government or excluded from the EAR pursuant to. .. described the grandfathering of DDTC licenses and agreements, the use of BIS authorizations, and the submission of disclosures to BIS and DDTC related to the transition of items from the USML to the CCL In response to the proposed general order, BIS received public comments regarding: the timing for submitting a license application to BIS, clarification of when to submit a disclosure to BIS and when to submit... will be able to choose whether to use a DDTC or BIS authorization so long as the export, reexport, or in-country transfer meets the applicable requirements described herein In accordance with new § 120.5(b) of the ITAR, § 734.3(e) authorizes the export, reexport or in-country transfer of items subject to the EAR when the items subject to the EAR will be used in or with items subject to the ITAR and... 120.5(b) of the ITAR DDTC added § 120.5(b) to the ITAR on [INSERT DATE OF PUBLICATION].) Under this provision, DDTC has discretion in determining whether the requirements of § 120.5 have been met and whether items subject to the EAR should be authorized under a license, agreement, or other approval by DDTC To provide guidance on the use of § 120.5(b) of the ITAR, items subject to the EAR may be exported,... from BIS for the export of the part or component Since the number of authorizations would remain the same, this scenario would not be eligible for the provision described above Section 734.3(e) authorizes the export, reexport or in-country transfer of items subject to the EAR when those items are subject to licenses, agreements, or other approvals issued by DDTC to authorize items subject to the EAR that... any export, reexport, or in-country transfer of an item subject to the EAR that is outside the scope of the LOA or DSP-94 must adhere to the requirements of the FMS case In addition, no separate authorization from BIS is required to supplement actions taken on FMS cases by the Department of State’s Office of Regional Security and Arms Transfers (RSAT) Questions regarding §§ 120.5(b) or 126.6(c) of the. .. State the authority to license or otherwise authorize the export, reexport or in-country transfer of items otherwise subject to the EAR, as agreed upon by the Secretaries of State and Commerce (Executive Order 13637 of March 8, 2013, Administration of Reformed Export Controls, 78 FR 16129, March 13, 2013) The items will remain subject to the EAR, and BIS will continue to maintain jurisdiction for licensing... being added to the EAR in this final rule BIS did not adopt any of the other recommendations concerning the red flags for the following reasons Generalizing red flags 13 and 14 to apply to the entire EAR would dilute their effect in highlighting the military nature of the “600 series” items and the precautions appropriate for such items, including the various provisions being added to the EAR in this... regarding the earliest date that BIS will accept license applications for items moving from the USML to the 22    CCL under this final rule and under future final rules For those wishing to export under the authority of the EAR as soon as possible for items moving from the USML to the CCL, applicants may submit license applications immediately after the publication of the final rule adding such items to the. .. security objectives of the reform effort as set forth above With respect to MT controls, the Departments of Defense, State, and Commerce have reviewed the USML to determine which items are currently subject to MT controls As mentioned, BIS will continue to review the CCL to make the entries more clear and positive, including reviewing the scope of controls on items subject to the EAR The United Nations . delegated to the Secretary of State the authority to license or otherwise authorize the export, reexport or in-country transfer of items otherwise subject to the. BIS published Proposed Revisions to the Export Administration Regulations: Implementation of Export Control Reform; Revisions to License Exceptions After