Revisions to the Export Administration Regulations (EAR): Control of Personal Protective Equipment, Shelters, and Related Items the President Determines No Longer Warrant Control Under the United States Munitions List (USML), 33688-33698 [2012-13745]
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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of the airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it would
modify controlled airspace at Fort
Morgan Municipal Airport, Fort
Morgan, CO.
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1E,
‘‘Environmental Impacts: Policies and
Procedures’’ prior to any FAA final
regulatory action.
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the
authority delegated to me, the Federal
Aviation Administration proposes to
amend 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9V, Airspace
Designations and Reporting Points,
dated August 9, 2011, and effective
September 15, 2011 is amended as
follows:
Paragraph 6005 Class E airspace areas
extending upward from 700 feet or more
above the surface of the earth.
*
*
*
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ANM CO E5
*
*
Fort Morgan, CO [New]
Fort Morgan Municipal Airport, CO
(Lat. 40°20′02″ N., Long. 103°48′15″ W.)
That airspace extending upward from 700
feet above the surface within 7.5-mile radius
of the Fort Morgan Municipal Airport.
Issued in Seattle, Washington, on May 30,
2012.
John Warner,
Manager, Operations Support Group, Western
Service Center.
[FR Doc. 2012–13842 Filed 6–6–12; 8:45 am]
BILLING CODE 4910–13–P
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Bureau of Industry and Security
15 CFR Parts 740, 742, and 774
[Docket No. 120201082–2132–01]
RIN 0694–AF58
Revisions to the Export Administration
Regulations (EAR): Control of Personal
Protective Equipment, Shelters, and
Related Items the President
Determines No Longer Warrant Control
Under the United States Munitions List
(USML)
Bureau of Industry and
Security, Department of Commerce.
ACTION: Proposed rule.
AGENCY:
List of Subjects in 14 CFR Part 71
§ 71.1
DEPARTMENT OF COMMERCE
This proposed rule describes
how articles the President determines
no longer warrant export control under
Category X (Protective Personnel
Equipment and Shelters) of the United
States Munitions List (USML), would be
controlled under the Commerce Control
List (CCL) in new Export Control
Classification Numbers (ECCNs) 1A613,
1B613, 1D613, and 1E613. In
conjunction with establishing these new
ECCNs, this proposed rule would
control military helmets (currently
controlled under ECCNs 0A018 and
0A988) under new ECCN 1A613 and
amend ECCN 1A005 for body armor.
This proposed rule also would remove
machetes from ECCN 0A988. This is one
in a planned series of proposed rules
describing how various types of articles
the President determines, as part of the
Administration’s Export Control Reform
Initiative, no longer warrant USML
control, would be controlled on the CCL
and by the EAR. This proposed rule is
being published in conjunction with a
proposed rule of the Department of
State, Directorate of Defense Trade
Controls (DDTC), which would amend
the list of articles controlled by USML
Category X in the International Traffic
In Arms Regulations (ITAR).
DATES: Comments must be received by
July 23, 2012.
ADDRESSES: You may submit comments
by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. The identification
number for this rulemaking is BIS–
2012–0019.
• By email directly to
publiccomments@bis.doc.gov. Include
RIN 0694–AF58 in the subject line.
• By mail or delivery to Regulatory
Policy Division, Bureau of Industry and
Security, U.S. Department of Commerce,
Room 2099B, 14th Street and
SUMMARY:
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Pennsylvania Avenue NW., Washington,
DC 20230. Refer to RIN 0694–AF58.
FOR FURTHER INFORMATION CONTACT:
Michael Rithmire, Office of National
Security and Technology Transfer
Controls, Bureau of Industry and
Security, U.S. Department of Commerce,
Telephone: (202) 482–6105, Email:
Michael.Rithmire@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
On July 15, 2011, as part of the
Administration’s ongoing Export
Control Reform Initiative, the Bureau of
Industry and Security (BIS) published a
proposed rule (76 FR 41958) (herein
‘‘the July 15 proposed rule’’) that set
forth a framework for how articles,
which the President determines in
accordance with section 38(f) of the
Arms Export Control Act (AECA)
(22 U.S.C. 2778(f)) would no longer
warrant export control on the United
States Munitions List (USML) of the
ITAR, would be controlled on the
Commerce Control List (CCL) in
Supplement No. 1 to Part 774 of the
Export Administration Regulations
(EAR). On November 7, 2011 (76 FR
68675) (herein ‘‘the November 7
proposed rule’’), BIS published a rule
proposing several changes to the
framework initially proposed in the July
15 rule.
Following the structure of the July 15
proposed rule, this proposed rule
describes BIS’s proposal for controlling
under the EAR and its CCL personal
protective equipment, shelters, and
related articles now controlled by the
ITAR’s USML Category X. The proposed
changes described in this proposed rule
and the State Department’s proposed
amendment to Category X of the USML
are based on a review of Category X by
the Defense Department, which worked
with the Departments of State and
Commerce in preparing the proposed
amendments. The review was focused
on identifying the types of articles that
are now controlled by USML Category X
in the ITAR that are either (i) inherently
military and otherwise warrant export
control on the USML or (ii) if it is a type
common to non-military protective
equipment, possessing parameters or
characteristics that provide a critical
military or intelligence advantage to the
United States, and that are almost
exclusively available from the United
States. If an article satisfied one or both
of those criteria, the article remained on
the USML in the ITAR. If an article did
not satisfy either standard but was
nonetheless a type of article that is, as
a result of differences in form and fit,
‘‘specially designed’’ for military
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applications, it was identified in the
new ECCNs proposed in this notice. The
licensing requirements and other EARspecific controls for such items also
described in this notice would enhance
national security, permitting the U.S.
Government to focus its resources on
controlling, monitoring, investigating,
analyzing, and, if need be, prohibiting
exports and reexports of more
significant items to destinations, end
uses, and end users of greater concern
than our NATO allies and other multiregime partners.
Pursuant to section 38(f) of the AECA,
the President shall review the USML ‘‘to
determine what items, if any, no longer
warrant export controls under’’ the
AECA. The President must report the
results of the review to Congress and
wait 30 days before removing any such
items from the USML. The report must
‘‘describe the nature of any controls to
be imposed on that item under any
other provision of law.’’ 22 U.S.C.
2778(f)(1). This proposed rule describes
how certain protective equipment and
related articles in USML Category X
would be controlled by the EAR and its
CCL if the President determines that the
articles no longer warrant export control
on the USML.
In the July 15 proposed rule, BIS
proposed creating a series of new
ECCNs to control items that would be
removed from the USML, or that are
items from the Wassenaar Arrangement
on Export Controls for Conventional
Arms and Dual Use Goods and
Technologies Munitions List (Wassenaar
Arrangement Munitions List or WAML)
that are already controlled elsewhere on
the CCL. The proposed rule referred to
this series as the ‘‘600 series’’ because
the third character in each of the new
ECCNs would be a ‘‘6.’’ The first two
characters of the 600 series ECCNs serve
the same function as any other ECCN as
described in § 738.2 of the EAR. The
first character is a digit in the range 0
through 9 that identifies the Category on
the CCL in which the ECCN is located.
The second character is a letter in the
range A through E that identifies the
product group within a CCL Category. In
the 600 series, the third character is the
number 6. With few exceptions, the
final two characters identify the WAML
category that covers items that are the
same or similar to items in a particular
600 series ECCN.
This proposed rule would create four
such ECCNs—1A613, to control
armored and protective ‘‘equipment,’’
constructions, and ‘‘components;’’
1B613, to control test, inspection, and
‘‘production’’ equipment, and related
commodities ‘‘specially designed’’ for
the ‘‘development’’ or ‘‘production’’ of
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commodities controlled by ECCN 1A613
or USML Category X and not identified
in USML Category X; 1D613, to control
‘‘software’’ for the ‘‘development,’’
‘‘production,’’ operation, installation,
maintenance, repair, overhaul, or
refurbishing of items controlled by
ECCNs 1A613 or 1B613; and 1E613, to
control ‘‘technology’’ for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul, or refurbishing of items
controlled by ECCNs 1A613, 1B613, or
1D613.
This proposed rule also would revise
three existing ECCNs—0A018, certain
items on the Wassenaar Arrangement
Munitions List; 0A988, conventional
military steel helmets and machetes;
and 1A005, body armor and specially
designed components not manufactured
to military standards or specifications.
Further, this rule would revise License
Exceptions Baggage (BAG) and
Temporary Imports, Exports, and
Reexports (TMP) to authorize exports of
certain body armor classified under new
ECCN 1A613.
BIS will publish additional Federal
Register notices containing proposed
amendments to the CCL that will
describe proposed controls for
additional categories of articles the
President determines no longer warrant
export control under the USML. The
State Department will publish
concurrently proposed amendments to
the USML that correspond to the BIS
notices. BIS will also publish proposed
rules to further align the CCL with the
WAML and the Missile Technology
Control Regime Equipment, Software
and Technology Annex.
Detailed Description of Changes
Proposed by This Rule
Proposed ECCN 1A613: Armored and
Protective ‘‘Equipment,’’ Constructions,
and Components
Proposed ECCN 1A613 would impose
national security (NS Column 1),
regional stability (RS Column 1), and
antiterrorism (AT Column 1) controls on
commodities described herein.
Paragraph .a of ECCN 1A613 would
control armored plate ‘‘specially
designed’’ for military use and not
controlled by the USML. Paragraph .b
would control shelters ‘‘specially
designed’’ to provide ballistic protection
or protect against nuclear, biological, or
chemical contamination. Paragraph .c
would control 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.
Paragraph .d would control soft body
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33689
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. Body armor
currently classified under ECCN 1A005
would not be reclassified under this
ECCN, as discussed below. Paragraph .e
would control other personal protective
equipment, such as handheld ballistic
shields, ‘‘specially designed’’ for
military applications not specified in
the USML or CCL. Paragraphs .f through
.w would be reserved for future use.
Paragraph .x would control ‘‘parts,’’
‘‘components,’’ ‘‘accessories and
attachments’’ that are ‘‘specially
designed’’ for a commodity controlled
by proposed ECCN 1A613 and not
specified elsewhere in the CCL or
USML. Paragraph .y would control
specific ‘‘parts,’’ ‘‘components,’’
‘‘accessories and attachments’’
‘‘specially designed’’ for a commodity
controlled under proposed ECCN 1A613
and not elsewhere specified in the CCL.
This proposed rule would control
conventional military steel helmets,
currently classified under ECCN 0A988,
under paragraph .y.1. Paragraphs .y.2
through .y.98 would be reserved for
future classification of specific
equipment.
BIS proposed to move anti-gravity
suits, pressure suits, and atmosphere
diving suits, currently controlled in the
USML under Category X(a)(3), (a)(4),
and (a)(5), respectively, to ECCN 9A610
in the November 7 proposed rule.
Proposed ECCN 1B613: Test, Inspection,
and ‘‘Production’’ ‘‘Equipment’’ and
Related Commodities ‘‘Specially
Designed’’ for the ‘‘Development’’ or
‘‘Production’’ of Commodities
Controlled by ECCN 1A613 or USML
Category X
Proposed ECCN 1B613 would impose
national security (NS Column 1),
regional stability (RS Column 1), and
antiterrorism (AT Column 1) controls on
commodities described herein.
Paragraph .a of ECCN 1B613 would
control test, inspection, and
‘‘production’’ ‘‘equipment’’ that is not
specified in USML Category X(c) and is
‘‘specially designed’’ for the
‘‘production’’ or ‘‘development’’ of
commodities specified in proposed
ECCN 1A613 or USML Category X.
Paragraph .b would control plasma
pressure compaction (P2C) equipment
‘‘specially designed’’ for the
‘‘production’’ of ceramic or composite
body armor plates controlled by ECCN
1A613 or USML Category X. Paragraphs
.c through .x would be reserved for
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future use. Paragraph .y would control
specific test, inspection, and
‘‘production’’ ‘‘equipment’’ ‘‘specially
designed’’ for the ‘‘production’’ or
‘‘development’’ of commodities
controlled by ECCN 1A613 or USML
Category X. Paragraphs .y.1 through
.y.98 would be reserved for future use.
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Proposed ECCN 1D613: ‘‘Software’’
‘‘Specially Designed’’ for the
‘‘Development,’’ ‘‘Production,’’
Operation, Installation, Maintenance,
Repair, Overhaul or Refurbishing of
Commodities Controlled by ECCNs
1A613 or 1B613
Proposed ECCN 1D613 would impose
national security (NS Column 1),
regional stability (RS Column 1), and
antiterrorism (AT Column 1) controls on
‘‘software’’ described herein. Paragraph
.a would control ‘‘software’’ (other than
‘‘software’’ controlled in paragraph .y of
ECCN 1D613) ‘‘specially designed’’ for
the ‘‘development,’’ ‘‘production,’’
operation or maintenance of
commodities controlled by ECCNs
1A613 (except 1A613.y) or 1B613
(except 1B613.y). Paragraphs .b through
.x would be reserved for future use.
Paragraph .y would control specific
‘‘software’’ ‘‘specially designed’’ for the
‘‘production,’’ ‘‘development,’’ or
operation or maintenance of
commodities listed in proposed ECCNs
1A613 or 1B613. While paragraphs .y.2
through .y.98 would be reserved,
paragraph .y.1 would control specific
‘‘software’’ ‘‘specially designed’’ for the
‘‘production,’’ ‘‘development,’’ or
operation or maintenance of
commodities listed in proposed ECCNs
1A613.y or 1B613.y.
Proposed ECCN 1E613: ‘‘Technology’’
‘‘Required’’ for the ‘‘Development,’’
‘‘Production,’’ Operation, Installation,
Maintenance, Repair, Overhaul or
Refurbishing of Commodities Controlled
by ECCNs 1A613 or 1B613, or
‘‘Software’’ Controlled by ECCN 1D613
Proposed ECCN 1E613 would impose
national security (NS Column 1),
regional stability (RS Column 1), and
antiterrorism (AT Column 1) controls on
the ‘‘technology’’ described herein.
Paragraph .a would control
‘‘technology’’ (other than ‘‘technology’’
controlled under paragraph .y)
‘‘required’’ for the ‘‘development,’’
‘‘production,’’ operation, installation,
maintenance, repair, overhaul, or
refurbishing of commodities controlled
by ECCNs 1A613 (except 1A613.y) or
1B613 (except 1B613.y), or software
controlled by ECCN 1D613 (except
1D613.y). Paragraphs .b through .x
would be reserved for future use.
Paragraph .y would control specific
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‘‘technology’’ ‘‘required’’ for the
‘‘production,’’ ‘‘development,’’
operation, installation, maintenance,
repair, or overhaul of commodities or
software listed in ECCNs 1A613, 1B613,
or 1D613. While paragraphs .y.2 through
.y.98 would be reserved, paragraph .y.1
would control specific ‘‘technology’’
‘‘required’’ for the ‘‘production,’’
‘‘development,’’ operation, installation,
maintenance, repair, or overhaul of
commodities or software listed in
ECCNs 1A613.y, 1B613.y, or 1D613.y.
Inclusion of ‘‘.y.99’’ Paragraphs in 600
Series ECCNs
Proposed new ECCNs 1A613, 1B613,
1D613 and 1E613 also would contain a
paragraph ‘‘.y.99’’ that would control
any item that meets all of the following
criteria: (i) The item is not listed on the
CCL; (ii) the item was previously
determined to be subject to the EAR in
an applicable commodity jurisdiction
determination issued by the U.S.
Department of State; and (iii) the item
would otherwise be controlled under
one of these 0x613 ECCNs because, for
example, the item was ‘‘specially
designed’’ for a military use.
ECCNs 0A018 and 0A988 Amended
This proposed rule would remove the
references to military helmets in ECCN
0A018.d. Conventional steel helmets
described in paragraph .d.1, which are
currently controlled under ECCN
0A988, would be moved to proposed
ECCN 1A613.y.1. Military helmets
described in paragraph .d.2 are
currently subject to the ITAR, and that
jurisdiction would not change under
this proposed rule. Military helmets
classified under ECCN 0A018.d (i.e.,
that are not described in paragraphs .d.1
or .d.2) would be moved to proposed
ECCN 1A613.c under this proposed
rule. Consequently, this proposed rule
would amend the Related Controls
paragraph to provide references to
ECCNs 1A613.c and 1A613.y.1 and the
USML for military helmets currently
described in paragraph .d, and would
remove the Note referencing paragraph
.d.
In addition, this proposed rule would
remove references to conventional
military steel helmets from the heading
and the control paragraph of ECCN
0A988. As a result of this move, these
helmets would be subject to the
de minimis limits applicable to ‘‘600
series’’ items that were proposed in the
July 15 and November 7 proposed rules,
as well as the restrictions on License
Exception availability for ‘‘600 series’’
items. ECCN 0A988 would be amended
to cross reference ECCN 1A613.y.1.
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Under ECCN 0A018.d, military
helmets are currently controlled for
national security, antiterrorism, and
United Nations (UN) reasons. Under
proposed ECCN 1A613.c, they would be
controlled for national security, regional
stability, and antiterrorism reasons and
no longer controlled for UN reasons.
Controlling these items for UN reasons
is unnecessary in light of the November
7 proposed rule’s amendment to the RS
Column 1 licensing policy, which stated
that there would be a general policy of
denial for ‘‘600 series’’ items if the
destination is subject to a United States
arms embargo or a United Nations
Security Council arms embargo. A list of
such destinations is identified in
proposed section 740.2(a)(12),
published in the November 7 proposed
rule (and amended with this proposed
rule, as discussed below).
Under ECCN 0A988, conventional
steel military steel helmets are
controlled for UN reasons only; under
ECCN 1A613.y.1, they would be
controlled for antiterrorism reasons
only. This change would remove the
CCL-based license requirement for
exports or reexports of the helmets to
Rwanda and Iraq since Rwanda is no
longer subject to a UN arms embargo
and since ECCN 0A988 helmets do not
fit the scope of the arms and related
materiel that are subject to the current
UN arms embargo on Iraq. This change
would also impose a new CCL-based
license requirement for exports or
reexports of 0A988 helmets to Cuba,
Iran, Sudan, and Syria for foreign policy
reasons.
Removing conventional military steel
helmets from ECCN 0A988 would leave
machetes as the only items controlled
under that ECCN. Machetes do not meet
the criteria of any proposed 600 series
ECCN. Consequently, BIS reviewed
machetes to determine whether such
items should remain in ECCN 0A988,
move to a different ECCN, or be
removed from the CCL. Currently, ECCN
0A988 imposes a CCL-based license
requirement for exports and reexports of
machetes to Iraq, North Korea, and
Rwanda due to UN arms embargoes.
However, machetes do not fit the scope
of arms and related materiel that are
subject to UN arms embargoes. Further,
machetes do not fit the scope of any
ECCNs currently controlling items for
anti-terrorism reasons. Therefore, this
proposed rule would remove machetes
from the CCL and designate them as
EAR99 items. This proposal would help
streamline the CCL and remove an item
for which BIS believes no national
security or foreign policy concern exists
to merit control under the CCL. As
EAR99 items, machetes would continue
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to require licenses for certain countries
subject to comprehensive embargoes
and sanctions under part 746 and
certain end uses and end users
described in part 744 of the EAR.
ECCN 1A005 Amended
This proposed rule would revise the
List of Items Controlled section in ECCN
1A005 to more positively identify soft
body armor and hard body armor plates
that are controlled under this ECCN. In
addition, this proposed rule would
amend the Related Controls paragraph
of ECCN 1A005 to reference body armor
controlled under ECCN 1A613 and
police helmets and shields controlled
under ECCN 0A979.
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License Exception BAG Amended for
Body Armor Controlled Under ECCN
1A613.d
In the July 15 proposed rule, BIS
proposed adding new section
740.2(a)(13) to the EAR to identify when
items classified under the ‘‘600 series’’
would be eligible for license exceptions.
This proposed rule would amend
proposed § 740.2(a)(13)(i) and current
§ 740.14 to authorize, under License
Exception BAG, exports of body armor
classified under newly proposed ECCN
1A613.d. License Exception BAG, in
§ 740.14, would be amended by adding
a new paragraph (h), which generally is
modeled on the exemptions in
§§ 123.17(f) and (g) of the ITAR. In
addition, to parallel § 123.17(g) of the
ITAR, which authorizes exports without
a license under certain circumstances to
Afghanistan and Iraq, both of which are
subject to arms embargoes under § 126.1
of the ITAR, this proposed rule would
revise the July 15 rule’s proposed
restrictions on all license exceptions set
forth in § 740.2(a)(12) to authorize
exports of ECCN 1A613.d body armor to
those two countries, as long as the
specified conditions of license
condition availability are met. Under
this proposal for License Exception
BAG, only exports, and not reexports,
would be authorized for body armor
controlled under ECCN 1A613.d. BIS
encourages public comments on
whether BAG should also authorize
reexports of such body armor and, if so,
whether conditions should apply to
such reexports.
Concurrently, this proposed rule
would revise the July 15 rule’s proposed
amendment to § 740.2(a)(12) by
updating the list of countries currently
subject to a United States or UN arms
embargo by including Fiji and removing
Sierra Leone.
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License Exception TMP Amended for
Body Armor Controlled Under ECCN
1A613.d
As with License Exception BAG, this
proposed rule would amend License
Exception TMP to authorize the export
of ECCN 1A613.d body armor as a tool
of trade. Specifically, this proposed rule
would add new paragraph (a)(3)(v) to
§ 740.9, which generally would be
modelled on the exemptions in
§§ 123.17(f) and (g) of the ITAR. In order
to authorize exports of ECCN 1A613.d
body armor through TMP to countries
that are in Country Group D:1 but not
subject to a United States arms embargo,
this proposed rule would add an
exception in paragraph (a)(3)(i)(B)(6) of
§ 740.9 to the restriction on the use of
TMP for destinations in Country Group
D:1. To enable exports of ECCN 1A613.d
body armor under TMP to Iraq, which
is in Country Group D:1 and currently
subject to a United States arms embargo,
this proposed rule would add paragraph
(a)(3)(i)(B)(7), which would authorize
exports of ECCN 1A613.d body armor to
Iraq under proposed paragraph
(a)(3)(v)(B).
To ensure that body armor controlled
under ECCN 1A005 may be exported to
the same destinations as more sensitive
body armor controlled under ECCN
1A613.d, this proposed rule would also
add paragraph (a)(3)(i)(B)(5) to § 740.9 to
authorize the export of ECCN 1A005
body armor to countries in Country
Group D:1. In addition, to parallel
existing License Exception TMP
provisions for ECCN 1A005 body armor,
reexports of such items would be
permitted in addition to exports.
Because the proposed changes to
License Exception TMP for body armor
controlled under ECCN 1A613.d are
modelled on the exemptions in
§§ 123.17(f) and (g) of the ITAR, they
would authorize only exports, and not
reexports. BIS encourages comments on
whether TMP should also authorize
reexports of such body armor and, if so,
what conditions should apply to such
reexports.
Proposed New ECCNs and License
Exception STA
The July 15 proposed rule would
impose certain restrictions on the use of
license exceptions for items that would
be controlled under the new ‘‘600
series’’ ECCNs on the CCL. For instance,
proposed § 740.20(g) describes the
process for requesting License
Exception STA eligibility for ‘‘600
series’’ end items classified in an ECCN
‘‘xA6zz’’ entry. This proposed rule
differs from the July 15 proposed rule in
that items described in proposed ECCN
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33691
1A613 would be eligible for
§ 740.20(c)(1) of License Exception STA
without need for a determination
described in § 740.2(g). Likewise, items
described in ECCN 1B613 would also be
eligible for § 740.20(c)(1) of License
Exception STA without need for a
determination. No items described in
ECCNs 1A613, 1B613, 1D613, or 1E613
would be eligible for § 740.20(c)(2) of
License Exception STA.
Relationship to the July 15 and
November 7 Proposed Rules
As referenced above, the purpose of
the July 15 proposed rule was to set up
the framework to support the transfer of
items from the USML to the CCL. To
facilitate that goal, the July 15 proposed
rule contained definitions and concepts
that were meant to be applied across
categories. However, as BIS undertakes
rulemakings to move specific categories
of items from the USML to the CCL,
there may be unforeseen issues or
complications that may require BIS to
reexamine those definitions and
concepts. The comment period for the
July 15 proposed rule closed on
September 13, 2011. In the November 7
proposed rule, BIS proposed several
changes to those definitions and
concepts. The comment period for the
November 7 proposed rule closed on
December 22, 2011.
To the extent that this rule’s proposals
affect any provision in either of those
proposed rules or any provision in
either of those proposed rules affect this
proposed rule, BIS will consider
comments on those provisions so long
as they are in the context of the changes
proposed in this rule.
BIS believes that the following aspects
of the July 15 and November 7 proposed
rules are among those that could affect
this proposed rule:
• De minimis provisions in § 734.4;
• Restrictions on use of license
exceptions in §§ 740.2, 740.10, 740.11,
and 740.20 (including restrictions
proposed by the November 7, 2011,
proposed rule that would apply to items
outside the scope of that rule);
• Change to national security
licensing policy in § 742.4;
• Licensing policy in § 742.4(b)(1)(ii);
• Addition of 600 series items to
Supplement No. 2 to Part 744—List of
Items Subject to the Military End-Use
Requirement of § 744.21;
• Addition of U.S. arms embargo
policy regarding 600 series items set
forth in § 742.4(b)(1)(ii) (national
security) of the July 15 proposed rule to
§ 742.6(b)(1) (regional stability) of the
November 7 proposed rule; and
• Definitions of terms in § 772.1.
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Effects of This Proposed Rule
De minimis
The July 15 proposed rule would
impose certain unique de minimis
requirements on items controlled under
the new 600 series ECCNs. Section
734.3 of the EAR provides, inter alia,
that under certain conditions, items
made outside the United States that
incorporate items subject to the EAR are
not subject to the EAR if they do not
exceed a de minimis percentage of
controlled U.S.-origin content.
Depending on the destination, the de
minimis percentage can be either 10
percent or 25 percent. The personal
protective equipment, shelters, and
related items that would be subject to
the EAR as a result of this proposed rule
would become eligible for de minimis
treatment.
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Use of License Exceptions
Personal protective equipment,
shelters, and related items currently on
the USML that would be classified
under proposed ECCNs 1A613 and
1B613 would become eligible for several
license exceptions, including STA,
which would be available for exports to
certain government agencies of NATO
and other multi-regime close allies. The
exchange of information and statements
required under STA is substantially less
burdensome than the license
application requirements currently
required under the ITAR, as discussed
in more detail in the ‘‘Regulatory
Requirements’’ section of this proposed
rule. None of the personal protective
equipment, shelters, or related items
that would be controlled by ECCNs
1A613 or 1B613 would be subject to the
provision in the July 15 proposed rule
that proposes to preclude the use of
License Exception STA for ‘‘600 series’’
end items unless approval for such use
is sought from and granted by BIS. The
items covered by this rule also would be
eligible for the following license
exceptions: LVS (limited value
shipments), up to $1500 and RPL
(servicing and parts replacement). In
addition, body armor classified under
ECCN 1A613.d would be eligible for
License Exceptions BAG (baggage) and
TMP (temporary imports, exports, and
reexports).
Alignment With the Wassenaar
Arrangement Munitions List
The Administration has stated since
the beginning of the Export Control
Reform Initiative that the reforms will
be consistent with U.S. obligations to
the multilateral export control regimes.
Accordingly, the Administration will, in
this and subsequent proposed rules,
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exercise its national discretion to
implement, clarify, and, to the extent
feasible, align its controls with those of
the regimes. This proposed rule would
align controls on the items that it adds
to the CCL by placing them in new 600
series ECCNs ending in ‘‘13’’ to parallel
Category ML13 on the Wassenaar
Arrangement Munitions List
(‘‘[Armored] or protective equipment,
constructions and components’’). Items
in proposed ECCN 1A613 are covered
by WAML Category ML 13.
Request for Comments
BIS seeks comments on this proposed
rule. BIS will consider all comments
received on or before July 23, 2012. All
comments must be in writing and
submitted via one or more of the
methods listed under the ADDRESSES
caption to this notice. All comments
(including any personal identifiable
information or information for which a
claim of confidentially is asserted either
in those comments or their transmittal
emails) will be available for public
inspection and copying. Parties who
wish to comment anonymously may do
so by submitting their comments via
www.regulations.gov and, leaving the
fields for information that would
identify the commenter blank, and
including no identifying information in
the comment itself.
Although the Export Administration
Act expired on August 20, 2001, the
President, through Executive Order
13222 of August 17, 2001, 3 CFR, 2001
Comp., p. 783 (2002), as extended by the
Notice of August 12, 2011, 76 FR 50661
(August 16, 2011), has continued the
Export Administration Regulations in
effect under the International
Emergency Economic Powers Act. BIS
continues to carry out the provisions of
the Act, as appropriate and to the extent
permitted by law, pursuant to Executive
Order 13222.
Rulemaking Requirements
1. Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distribute impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This rule has been
designated a ‘‘significant regulatory
action,’’ although not economically
significant, under section 3(f) of
Executive Order 12866. Accordingly,
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the rule has been reviewed by the Office
of Management and Budget (OMB).
2. Notwithstanding any other
provision of law, no person is required
to respond to, nor is subject to a penalty
for failure to comply with, a collection
of information, subject to the
requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.) (PRA), unless that collection of
information displays a currently valid
OMB control number. This proposed
rule would affect two approved
collections: Simplified Network
Application Processing + System
(control number 0694–0088), which
includes, among other things, license
applications, and License Exceptions
and Exclusions (0694–0137).
As stated in the July 15 proposed rule,
BIS believes that the combined effect of
all rules to be published adding items to
the EAR that would be removed from
the ITAR as part of the Administration’s
Export Control Reform Initiative would
increase the number of license
applications submitted by
approximately 16,000 annually,
resulting in an increase in burden hours
of 5,067 (16,000 transactions at 17
minutes each) under control number
0694–0088.
Some items formerly on the USML
will become eligible for License
Exception STA under this rule. As
specified in the STA eligibility
paragraphs for 1A613 and 1B613, such
items would not need a determination
of eligibility per § 740.20(g) of the EAR.
As stated in the July 15 proposed rule,
BIS believes that the increased use of
License Exception STA resulting from
the combined effect of all rules to be
published adding items to the EAR that
would be removed from the ITAR as
part of the Administration’s Export
Control Reform Initiative would
increase the burden associated with
control number 0694–0137 by about
23,858 hours (20,450 transactions at 1
hour and 10 minutes each).
BIS expects that this increase in
burden would be more than offset by a
reduction in burden hours associated
with approved collections related to the
ITAR. This proposed rule addresses
controls on personal protective
equipment and related parts,
components, production equipment,
software, and technology. Because, with
few exceptions, the ITAR allows
exemptions from license requirements
only for exports to Canada, most exports
of such items, even when destined to
NATO member states and other close
allies, require State Department
authorization. In addition, the exports of
technology necessary to produce such
items in the inventories of the United
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States and its NATO and other close
allies require State Department
authorizations. Under the EAR, as
proposed, such technology would
become eligible for export to NATO
member states and other close allies
under License Exception STA. Use of
License Exception STA imposes a
paperwork and compliance burden
because, for example, exporters must
furnish information about the item
being exported to the consignee and
obtain from the consignee an
acknowledgement and commitment to
comply with the EAR. However, the
Administration understands that
complying with the requirements of
STA is likely less burdensome than
applying for licenses. For example,
under License Exception STA, a single
consignee statement can apply to an
unlimited number of products, need not
have an expiration date and need not be
submitted to the government in advance
for approval. Suppliers with regular
customers can tailor a single statement
and assurance to match their business
relationship rather than applying
repeatedly for licenses with every
purchase order to supply reliable
customers in countries that are close
allies or members of export control
regimes or both.
Even in situations in which a license
would be required under the EAR, the
burden likely will be reduced compared
to the license requirement of the ITAR.
In particular, license applications for
exports of technology controlled by
ECCN 1E613 are likely to be less
complex and burdensome than the
authorizations required to export ITARcontrolled technology, i.e.,
Manufacturing License Agreements and
Technical Assistance Agreements.
3. This rule does not contain policies
with Federalism implications as that
term is defined under E.O. 13132.
4. The Regulatory Flexibility Act
(RFA), as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency
to prepare an initial regulatory
flexibility analysis (IRFA) for any rule
subject to the notice and comment
rulemaking requirements under the
Administrative Procedure Act (5 U.S.C.
553) or any other statute. However,
under section 605(b) of the RFA, if the
head of an agency certifies that a rule
will not have a significant impact on a
substantial number of small entities, the
RFA does not require the agency to
prepare a regulatory flexibility analysis.
Pursuant to section 605(b), the Chief
Counsel for Regulation, Department of
Commerce, submitted a memorandum
to the Chief Counsel for Advocacy,
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Small Business Administration,
certifying that this proposed rule, if
promulgated, will not have a significant
impact on a substantial number of small
entities.
The changes proposed in this rule do
not impact the original certification for
these rules in the July 15 proposed rule.
Consequently, BIS has not prepared a
regulatory flexibility analysis. A
summary of the factual basis for the
certification, which also takes into
consideration the changes proposed by
this proposed rule, is provided below.
Number of Small Entities
The Bureau of Industry and Security
(BIS) does not collect data on the size
of entities that apply for and are issued
export licenses. Although BIS is unable
to estimate the exact number of small
entities that would be affected by this
rule, it acknowledges that this rule
would affect some unknown number of
them.
Economic Impact
This proposed rule is part of the
Administration’s Export Control Reform
Initiative. Under that initiative, the
USML would be revised to be a
‘‘positive’’ list, i.e., a list that does not
use generic, catch-all controls on any
part, component, accessory, attachment,
or end item that was in any way
specifically modified for a defense
article, regardless of the article’s
military or intelligence significance or
non-military applications. At the same
time, articles that the President
determines to no longer warrant export
control on the USML would become
controlled on the CCL. Such items,
along with certain military items that
currently are on the CCL, will be
identified in specific ECCNs known as
the ‘‘600 series’’ ECCNs. In addition,
some items currently on the CCL will
move from existing ECCNs to the new
600 series ECCNs.
In practice, the greatest impact of this
rule on small entities would likely be
reduced administrative costs and
reduced delay for exports of items that
are now on the USML but would
become subject to the EAR. As part of
this proposal, parts and components
that are ‘‘specially designed’’ for
commodities proposed to be controlled
under ECCN 1A613 and are not
controlled under proposed USML
Category X(d) would be included on the
CCL. Such parts and components are
more likely to be produced by small
businesses, which would benefit from
this proposed change.
Changing the jurisdictional status of
the items described in this notice from
the USML to the CCL would reduce the
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33693
burden on small entities (and other
entities as well) through: (i) Eliminating
some license requirements; (ii)
increasing availability of license
exceptions; (iii) simplifying license
application procedures; and (iv)
reducing or eliminating registration fees.
These amendments are part of the
Administration’s effort to make the
USML the U.S. Government’s list of
critical military and intelligence items
that warrant the stringent worldwide
export controls of the ITAR, while
controlling all other military and
intelligence items, particularly generic
parts and components, through the CCL.
BIS believes that the economic benefits
for the proposed amendments include
the significant reduction in the time
spent determining and addressing issues
associated with determining the
jurisdictional status of such items now.
In addition, parts and components
currently controlled under the ITAR
remain under ITAR control when
incorporated into foreign-made items,
regardless of the significance or
insignificance of the item. This
discourages foreign buyers from
incorporating such U.S. content. The
availability of de minimis treatment
under the EAR, for those items that
would no longer be controlled under the
ITAR, may reduce the disincentive for
foreign manufacturers to purchase U.S.origin parts and components.
Many exports and reexports of
Category X protective equipment and
related items that would be placed on
the CCL, as proposed in this rule, would
become eligible for license exceptions
that apply to shipments to U.S.
Government agencies, shipments valued
at less than $1,500 (equipment,
components, and production equipment
only), parts and components being
exported for use as replacement parts,
temporary exports, and License
Exception Strategic Trade Authorization
(STA), reducing the number of licenses
that exporters of these items would
need. License Exceptions under the EAR
would allow suppliers to send routine
replacement parts and low level parts to
NATO member states and other close
allies and export control regime partners
for use by those governments and for
use by contractors building equipment
for those governments or for the U.S.
Government without having to obtain
export licenses. Under License
Exception STA, the exporter would
need to furnish information about the
item being exported to the consignee
and obtain a statement from the
consignee that, among other things,
would commit the consignee to comply
with the EAR and other applicable U.S.
laws. Because such statements and
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obligations can apply to an unlimited
number of transactions and have no
expiration date, they would create a net
reduction in burden on transactions that
the government routinely approves
through the license application process
that the License Exception STA
statements would replace.
Even for exports and reexports for
which a license would be required
under the proposed rule, the process
would be simpler and less costly under
the EAR. When a USML Category X
article is moved to the CCL, the number
of destinations for which a license is
required would remain unchanged.
However, the burden on the license
applicant would decrease because the
licensing procedure for CCL items is
simpler and more flexible than the
license procedure for USML articles.
Under the ITAR licensing procedure,
an applicant must include a purchase
order or contract with its application.
There is no such requirement under the
CCL licensing procedure. This
difference gives the CCL applicant at
least two advantages. First, the
applicant has a way to determine
whether the U.S. Government will
authorize the transaction before it enters
into potentially lengthy, complex, and
expensive sales presentations or
contract negotiations. Under the ITAR
procedure, the applicant must caveat all
sales presentations with a reference to
the need for government approval, and
is more likely to engage in substantial
effort and expense only to find that the
government will reject the application.
Second, a CCL license applicant need
not limit its application to the quantity
or value of one purchase order or
contract. It may apply for a license to
cover all of its expected exports or
reexports to a specified consignee over
the life of a license (normally two years,
but may be longer if circumstances
warrant a longer period), thus reducing
the total number of licenses for which
the applicant must apply.
In addition, many applicants
exporting or reexporting items that this
rule proposes to transfer from the USML
to the CCL would realize cost savings by
eliminating some or all registration fees
currently assessed under the ITAR’s
licensing procedure. Currently, USML
applicants must pay to use DDTC’s
licensing procedure even if they never
actually are authorized to export.
Registration fees for manufacturers and
exporters of articles on the USML start
at $2,250 per year, increase to $2,750 for
organizations applying for one to ten
licenses per year and further increases
to $2,750 plus $250 per license
application (subject to a maximum of
three percent of total application value)
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for those who need to apply for more
than ten licenses per year. Conversely,
there are no registration or application
processing fees for applications to
export items listed on the CCL. Once the
Category X items that are the subject to
this rulemaking are moved from the
USML to the CCL, entities currently
applying for licenses from the
Department of State will find their
registration fees reduced if the number
of ITAR licenses those entities need
declines. If an entity’s entire product
line is moved to the CCL, its ITAR
registration and registration fee
requirements will be eliminated.
De minimis treatment under the EAR
would also become available for all
items that this rule proposes to transfer
from the USML to the CCL. Items
subject to the ITAR will remain subject
to the ITAR when they are incorporated
abroad into a foreign-made product,
regardless of the percentage of U.S
content in that foreign-made product.
However, foreign-made products
incorporating items that this rule would
move to the CCL would be subject to the
EAR only if their total controlled U.S.origin content exceeds 10 percent.
Because including small amounts of
U.S.-origin content would not subject
foreign-made products to the EAR,
foreign manufacturers would have less
incentive to refrain from purchasing
such U.S.-origin parts and components,
a development that potentially would
mean greater sales for U.S. suppliers,
including small entities.
For items currently on the CCL that
would be moved from existing ECCNs to
the new 600 series, license exception
availability would be narrowed
somewhat and the applicable de
minimis threshold for foreign-made
products containing those items would
in some cases be reduced from 25
percent to 10 percent. BIS is still
considering comments made in
response to the July 15 rule pertaining
to these proposed de minimis levels
and, as noted above, will consider de
minimis-related comments to this
proposed rule provided they are in the
context of this proposed rule. However,
BIS believes that any increased burden
imposed by those actions will be offset
substantially by the reduction in burden
attributable to the moving of items from
the USML to CCL and the compliance
benefits associated with the
consolidation of all WAML items
subject to the EAR in one series of
ECCNs.
Conclusion
BIS is unable to determine the precise
number of small entities that would be
affected by this rule. Based on the facts
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and conclusions set forth above, BIS
believes that any burdens imposed by
this rule would be offset by a reduction
in the number of items that would
require a license, increased
opportunities for use of license
exceptions for exports to certain
countries, simpler export license
applications, reduced or eliminated
registration fees, and application of a de
minimis threshold for foreign-made
items incorporating U.S.-origin parts
and components, which would reduce
the incentive for foreign buyers to
design out or avoid U.S.-origin content.
For these reasons, the Chief Counsel for
Regulation of the Department of
Commerce certified to the Chief Counsel
for Advocacy of the Small Business
Administration that this rule, if adopted
in final form, would not have a
significant economic impact on a
substantial number of small entities.
Accordingly, no IRFA is required, and
none has been prepared.
List of Subjects
15 CFR Part 740
Administrative practice and
procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 774
Exports, Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, the Export Administration
Regulations (15 CFR parts 730–774) are
proposed to be amended as follows:
PART 740—[AMENDED]
1. The authority citation for part 740
continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C.
7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u);
42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C.
1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O.
13026, 61 FR 58767, 3 CFR, 1996 Comp.,
p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
Comp., p. 783; Notice of August 12, 2011, 76
FR 50661 (August 16, 2011).
2. As proposed to be amended July 15,
2011, at 76 FR 41958, and November 7,
2011, at 76 FR 65675, § 740.2 is further
amended by:
a. Revising paragraph (a)(12)
introductory text;
b. Revising the last sentence of
paragraph (a)(13)(i)(E); and
c. Adding paragraph (a)(13)(i)(F).
The revision and additions read as
follows:
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§ 740.2 Restrictions on all License
Exceptions.
(a) * * *
(12) Items classified under the ‘‘600
series’’ that are destined to a country
subject to a United States arms embargo
or a United Nations Security Council
arms embargo (Afghanistan, Belarus,
Burma, China, Cote d’Ivoire, Cuba,
Cyprus, Democratic Republic of Congo,
Eritrea, Fiji, Haiti, Iraq, Iran, Lebanon,
Liberia, Libya, North Korea, Somalia, Sri
Lanka, Sudan, Syria, Venezuela,
Vietnam, Yemen, and Zimbabwe) may
not be authorized under any license
exception except by License Exception
GOV under § 740.11(b)(2)(ii), License
Exception TMP under § 740.9(a)(3)(v)
for exports to Afghanistan and Iraq, and
License Exception BAG under
§ 740.14(h)(2) for exports to Afghanistan
and Iraq.
*
*
*
*
*
(13) * * *
(i) * * *
(E) * * * Except for MT-controlled
items, exports and reexports to nongovernmental end users in a country
listed in § 740.20(c)(1) are authorized
through License Exception STA under
§ 740.20(c)(1) so long as the item at
issue at the time of export, reexport, or
transfer (in-country) is ultimately
destined for end use by the armed
forces, police, paramilitary, law
enforcement, customs, correctional, fire,
and search and rescue agencies of a
government of one of the § 740.20(c)(1)
countries or by the United States
Government, or is for the
‘‘development’’ or ‘‘production’’ of an
item for use by one of those agencies of
those governments or a person in the
United States; or
(F) License Exception BAG (§ 740.14).
*
*
*
*
*
3. Amend section 740.9 by adding
paragraphs (a)(3)(i)(B)(5) through (7) and
(a)(3)(v) to read as follows:
with paragraph (a)(3)(v)(B) of this
section.
*
*
*
*
*
(v) Restrictions specific to the export
of body armor classified under ECCN
1A613.d. (A) Exports to countries not
identified in § 740.2(a)(12). U.S. persons
may temporarily export one set of body
armor classified under ECCN 1A613.d to
countries not identified in
§ 740.2(a)(12), provided that:
(1) A declaration by the U.S. person
and an inspection by a customs officer
are made;
(2) The body armor is with the U.S.
person’s baggage or effects, whether
accompanied or unaccompanied (but
not mailed); and
(3) The body armor is for that person’s
exclusive use and not for reexport or
other transfer of ownership.
(B) Exports to Afghanistan or Iraq.
U.S. persons may temporarily export
one set of body armor classified under
ECCN 1A613.d to Afghanistan or Iraq,
provided that:
(1) A declaration by the U.S. person
and an inspection by a customs officer
are made;
(2) The body armor is with the U.S.
person’s baggage or effects, whether
accompanied or unaccompanied (but
not mailed);
(3) The body armor is for that person’s
exclusive use and not for reexport or
other transfer of ownership; and
(4) For temporary exports to Iraq, the
U.S. person utilizing the license
exception is either a person affiliated
with the U.S. Government traveling on
official business or is a person not
affiliated with the U.S. Government but
traveling to Iraq under a direct
authorization by the Government of Iraq
and engaging in humanitarian activities
for, on behalf of, or at the request of the
Government of Iraq.
*
*
*
*
*
4. Amend section 740.14 by adding
paragraph (h) to read as follows:
§ 740.14
*
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§ 740.9 Temporary imports, exports, and
reexports (TMP).
*
*
*
*
*
(a) * * *
(3) * * *
(i) * * *
(B) * * *
(5) Body armor classified under ECCN
1A005 exported or reexported in
accordance with paragraph (a)(2)(i) of
this section;
(6) Body armor classified under ECCN
1A613.d exported in accordance with
paragraph (a)(3)(v)(A) of this section, so
long as the final destination is not a
country listed in § 740.2(a)(12); and
(7) Body armor classified under ECCN
1A613.d exported to Iraq in accordance
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Baggage (BAG).
*
*
*
*
(h) Special provisions: body armor
controlled under ECCN 1A613.d. (1)
Exports to countries not identified in
§ 740.2(a)(12). U.S. persons may
temporarily export one set of body
armor classified under ECCN 1A613.d to
countries not identified in § 740.2(a)(12)
provided that:
(i) A declaration by the U.S. person
and an inspection by a customs officer
are made;
(ii) The body armor is with the U.S.
person’s baggage or effects, whether
accompanied or unaccompanied (but
not mailed); and
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33695
(iii) The body armor is for that
person’s exclusive use and not for
reexport or other transfer of ownership.
(2) Exports to Afghanistan or Iraq.
U.S. persons may temporarily export
one set of body armor classified under
ECCN 1A613.d to Afghanistan or Iraq
provided that:
(i) A declaration by the U.S. person
and an inspection by a customs officer
are made;
(ii) The body armor is with the U.S.
person’s baggage or effects, whether
accompanied or unaccompanied (but
not mailed);
(iii) The body armor is for that
person’s exclusive use and not for
reexport or other transfer of ownership;
and
(iv) For temporary exports to Iraq
only, the U.S. person utilizing this
license exception is either a person
employed by or under contract to the
U.S. Government traveling on official
business or is a person not employed by
or under contract to the U.S.
Government but traveling to Iraq under
a direct authorization by the
Government of Iraq and engaging in
humanitarian activities for, on behalf of,
or at the request of the Government of
Iraq.
Note to paragraph (h): Body armor
controlled under ECCN 1A005 is eligible for
this License Exception under paragraph (b) of
this section.
PART 742—[AMENDED]
5. The authority citation for 15 CFR
part 742 continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.;
42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22
U.S.C. 7210; Sec 1503, Pub. L. 108–11, 117
Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR,
1978 Comp., p. 179; E.O. 12851, 58 FR 33181,
3 CFR, 1993 Comp., p. 608; E.O. 12938, 59
FR 59099, 3 CFR, 1994 Comp., p. 950; E.O.
13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
Comp., p. 783; Presidential Determination
2003–23 of May 7, 2003, 68 FR 26459, May
16, 2003; Notice of August 12, 2011, 76 FR
50661 (August 16, 2011); Notice of November
9, 2011, 76 FR 70319 (November 10, 2011).
6. Amend section 742.6 by revising
paragraph (a)(1) to read as follows:
§ 742.6
Regional stability.
(a) * * *
(1) RS Column 1 License
Requirements in General. As indicated
in the CCL and in RS column 1 of the
Commerce Country Chart (see
Supplement No. 1 to part 738 of the
EAR), a license is required to all
destinations, except Canada, for items
described on the CCL under ECCNs
0A606 (except 0A606.b and .y); 0A614
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(except 0A614.y); 0A617 (except
0A617.y); 0B606 (except 0B606.y);
0B614 (except 0B614.y); 0B617 (except
0B617.y); 0C606 (except 0C606.y);
0C617 (except 0C617.y); 0D606 (except
0D606.y); 0D614 (except 0D614.y);
0D617 (except 0D617.y); 0E606 (except
0E606.y); 0E614 (except 0E614.y); 0E617
(except 0E617.y); 1A613 (except
1A613.y); 1B608 (except 1B608.y);
1B613 (except 1B613.y); 1C608; 1D608
(except 1D608.y); 1D613 (except
1D613.y); 1E608 (except 1E608.y);
1E613 (except 1E613.y); 3A982; 3D982;
3E982; 6A002.a.1, a.2, a.3, .c, or .e;
6A003.b.3, and b.4.a; 6A008.j.1;
6A998.b; 6D001 (only ‘‘software’’ for the
‘‘development’’ or ‘‘production’’ of
items in 6A002.a.1, a.2, a.3, .c;
6A003.b.3 and .b.4; or 6A008.j.1); 6D002
(only ‘‘software’’ for the ‘‘use’’ of items
in 6A002.a.1, a.2, a.3, .c; 6A003.b.3 and
.b.4; or 6A008.j.1); 6D003.c; 6D991 (only
‘‘software’’ for the ‘‘development,’’
‘‘production,’’ or ‘‘use’’ of equipment
classified under 6A002.e or 6A998.b);
6E001 (only ‘‘technology’’ for
‘‘development’’ of items in 6A002.a.1,
a.2, a.3 (except 6A002.a.3.d.2.a and
6A002.a.3.e for lead selenide focal plane
arrays), and .c or .e, 6A003.b.3 and b.4,
or 6A008.j.1); 6E002 (only ‘‘technology’’
for ‘‘production’’ of items in 6A002.a.1,
a.2, a.3, .c, or .e, 6A003.b.3 or b.4, or
6A008.j.1); 6E991 (only ‘‘technology’’
for the ‘‘development,’’ ‘‘production,’’ or
‘‘use’’ of equipment classified under
6A998.b); 6D994; 7A994 (only QRS11–
00100–100/101 and QRS11–0050–443/
569 Micromachined Angular Rate
Sensors); 7D001 (only ‘‘software’’ for
‘‘development’’ or ‘‘production’’ of
items in 7A001, 7A002, or 7A003);
7E001 (only ‘‘technology’’ for the
‘‘development’’ of inertial navigation
systems, inertial equipment, and
specially designed components therefor
for civil aircraft); 7E002 (only
‘‘technology’’ for the ‘‘production’’ of
inertial navigation systems, inertial
equipment, and specially designed
components therefor for civil aircraft);
7E101 (only ‘‘technology’’ for the ‘‘use’’
of inertial navigation systems, inertial
equipment, and specially designed
components for civil aircraft); 8A609
(except 8A609.y); 8A620 (except
8A620.y); 8B609 (except 8B609.y);
8B620 (except 8B620.y); 8C609 (except
8C609.y); 8D609 (except software for the
‘‘development,’’ ‘‘production,’’
operation, or maintenance of
commodities controlled by 8A609.y,
8B609.y, or 8C609.y); 8D620 (except
software for the ‘‘development,’’
‘‘production,’’ operation, or
maintenance of commodities controlled
by 8A620.y or 8B620.y); 8E609 (except
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‘‘technology’’ for the ‘‘development,’’
‘‘production,’’ operation, installation,
maintenance, repair, overhaul, or
refurbishment of commodities
controlled by 8A609.y, 8B609.y, or
8C609.y); 8E620 (except ‘‘technology’’
for the ‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul, or refurbishment of
commodities controlled by 8A620.y or
8B620.y); 9A610 (except 9A610.y);
9A619 (except 9A619.y); 9B610 (except
9B610.y); 9B619 (except 9B619.y);
9C610 (except 9C610.y); 9C619 (except
9C619.y); 9D610 (except software for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, or overhaul of commodities
controlled by 9A610.y, 9B610.y, or
9C610.y); 9D619 (except software for the
‘‘development,’’ ‘‘production,’’
operation, or maintenance of
commodities controlled by 9A619.y,
9B619.y, or 9C619.y); 9E610 (except
‘‘technology’’ for the ‘‘development,’’
‘‘production,’’ operation, installation,
maintenance, repair, overhaul, or
refurbishment of commodities
controlled by ECCN 9A610.y, 9B610.y,
or 9C610.y); and 9E619 (except
‘‘technology’’ for the ‘‘development,’’
‘‘production’’ operation, installation,
maintenance, repair, overhaul, or
refurbishment of commodities
controlled by ECCN 9A619.y, 9B619.y,
or 9C619.y).
*
*
*
*
*
PART 774—[AMENDED]
7. The authority citation for part 774
continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C.
7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et
seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u);
42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C.
1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O.
13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
Comp., p. 783; Notice of August 12, 2011, 76
FR 50661 (August 16, 2011).
8. In Supplement No. 1 to part 774,
Category 0, amend Export Control
Classification Number 0A018 by:
a. Revising the ‘‘Related Controls’’
paragraph in the List of Items Controlled
section to read below;
b. Removing and reserving ‘‘Items’’
paragraph (d) in the List of Items
Controlled section; and
c. Removing the ‘‘Note’’ to ‘‘Items’’
paragraph (d) in the List of Items
Controlled section.
Supplement No. 1 to Part 774—The
Commerce Control List
*
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*
*
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*
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*
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0A018 Items on the Wassenaar
Munitions List.
*
*
*
*
*
List of Items Controlled
Unit: * * *
Related Controls: (1) See also 0A979,
0A988, and 22 CFR 121.1 Categories
I(a), III(b–d), and X(a). (2) See 0A617.a
for items formerly controlled by ECCN
0A018.a. (3) See 1A613.c for military
helmets providing less than NIJ Type IV
protection and 1A613.y.1 for
conventional military steel helmets that,
immediately prior to [Insert effective
date of final rule], were classified under
0A018.d and 0A988. (4) See 22 CFR
121.1 Category X(a)(5) and (a)(6) for
controls on other military helmets.
*
*
*
*
*
9. In Supplement No. 1 to part 774,
Category 0, amend Export Control
Classification Number 0A988 by
revising to read as follows:
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
0A988 Conventional military steel
helmets as described by 0A018.d.1.; and
machetes.
No items currently are in this ECCN.
See ECCN 1A613.y.1 for conventional
steel helmets that, immediately prior to
[Insert effective date of final rule], were
classified under 0A988. Machetes,
which were classified under ECCN
0A988 prior to [Insert effective date of
final rule], are designated as EAR99
items.
10. In Supplement No. 1 to part 774,
Category 1, amend Export Control
Classification Number 1A005 by:
a. Revising the Related Controls
paragraph; and
b. Revising paragraphs a. and b. in the
Items paragraph of the List of Items
Controlled section, to read as follows:
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
1A005 Body armor and components
therefor, as follows (see List of Items
Controlled).
*
*
*
*
*
List of Items Controlled
Unit: * * *
Related Controls: (1) Bulletproof and
bullet resistant vests (body armor)
providing NIJ Type IV protection or
greater are subject to the ITAR (see 22
CFR 121.1 Category X(a)). (2) Soft body
armor and protective garments
manufactured to military standards or
specifications that provide protection
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equal to NIJ level III or less are classified
under ECCN 1A613.d.1. (3) Hard armor
plates providing NIJ level III ballistic
protection are classified under ECCN
1A613.d.2. (4) Police helmets and
shields are classified under ECCN
0A979. (5) Other personal protective
‘‘equipment’’ ‘‘specially designed’’ for
military applications not controlled by
the USML or elsewhere in the CCL are
classified under ECCN 1A613.e. (6) For
‘‘fibrous or filamentary materials’’ used
in the manufacture of body armor, see
ECCN 1C010. (7) See § 746.8(b)(1) for
additional licensing requirements
concerning this entry.
*
*
*
*
*
Items:
a. Soft body armor not manufactured
to military standards or specifications
that provide ballistic protection equal to
or less than NIJ level III (NIJ 0101.06,
July 2008).
b. Hard body armor plates that
provide ballistic protection less than NIJ
level III (NIJ 0101.06, July 2008).
*
*
*
*
*
11. In Supplement No. 1 to part 774,
Category 1, add a new Export Control
Classification Number 1A613 between
ECCNs 1A290 and 1A984 to read as
follows:
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
1A613 Armored and protective
‘‘equipment’’ and related commodities,
as follows:
License Requirements
Reason for Control: NS, RS, AT
Control(s)
NS applies to entire entry
except 1A613.y.
RS applies to entire entry
except 1A613.y.
AT applies to entire entry ..
Country chart
NS Column 1.
RS Column 1.
AT Column 1.
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
License Exceptions
LVS: $1500.
GBS: N/A.
CIV: N/A.
STA: Paragraph (c)(1) of License
Exception STA (§ 740.20(c)(1)) may be
used for items in 1A613 without the
need for a determination described in
§ 740.20(g). Paragraph (c)(2) of License
Exception STA (§ 740.20(c)(2)) of the
EAR may not be used for any item in
1A613.
List of Items Controlled
Unit: End items in number; parts,
component, accessories and attachments
in $ value
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Related Controls: (1) Defense articles,
such as materials made from classified
information, that are controlled by
USML Category X or XIII of the ITAR,
and technical data (including software)
directly related thereto, are subject to
the ITAR. (2) See ECCN 0A919 for
foreign-made ‘‘military commodities’’
that incorporate more than 10% U.S.origin ‘‘600 series’’ items.
Related Definitions: References to
‘‘NIJ Type’’ protection are to the
National Institute of Justice
Classification guide at NIJ Standard0101.06, Ballistic Resistance of Body
Armor, and NIJ Standard 0108.01,
Ballistic Resistant Protective Materials.
Items:
a. Armored plate ‘‘specially designed’’
for military use and not controlled by
the USML.
Note: For controls on body armor plates,
see ECCN 1A613.d.2 and USML Category
X(a)(1).
b. Shelters ‘‘specially designed’’ to:
b.1. Provide ballistic protection for
military systems, or
b.2. Protect against nuclear,
biological, or chemical contamination.
c. Military helmets and helmet shells
providing less than NIJ Type IV
protection.
Note 1: See ECCN 0A979 for controls on
police helmets and ECCN 1A613.y.1 for
military steel helmets.
Note 2: See USML Category X(a)(5) and
(a)(6) for controls on other military helmets.
machined bodies, that have reached a stage
in manufacturing where they are clearly
identifiable by material composition,
geometry, or function as commodities
controlled by ECCN 1A613.x are controlled
by ECCN 1A613.x.
y. Specific ‘‘parts,’’ ‘‘components,’’
‘‘accessories and attachments’’
‘‘specially designed’’ for a commodity
subject to control in this ECCN and not
elsewhere specified in the CCL, as
follows:
y.1 Conventional military steel
helmets.
y.2 to y.98 [RESERVED]
y.99. Commodities not identified on
the CCL that (i) have been determined,
in an applicable commodity jurisdiction
determination issued by the U.S.
Department of State, to be subject to the
EAR and (ii) would otherwise be
controlled elsewhere in ECCN 1A613.
12. In Supplement No. 1 to part 774,
Category 1, add a new Export Control
Classification Number 1B613 between
ECCN 1B233 and 1B999 to read as
follows:
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
1B613 Test, inspection, and
‘‘production’’ ‘‘equipment’’ and related
commodities ‘‘specially designed’’ for
the ‘‘development’’ or ‘‘production’’ of
commodities controlled by ECCN 1A613
or USML Category X.
d. Body armor and protective
garments, as follows:
d.1. 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); or
d.2. Hard body armor plates that
provide ballistic protection equal to NIJ
level III (NIJ 0101.06, July 2008).
License Requirements
Note: See ECCN 1A005 for controls on soft
body armor and protective garments not
manufactured to military standards or
specifications and hard body armor plates
providing less than NIJ level III protection.
For body armor providing NIJ Type IV
protection or greater, see USML Category
X(a)(1).
License Exceptions
e. Other personal protective
‘‘equipment’’ ‘‘specially designed’’ for
military applications not controlled by
the USML or elsewhere in the CCL.
f. to w. [RESERVED]
x. ‘‘Parts,’’ ‘‘components,’’
‘‘accessories and attachments’’ that are
‘‘specially designed’’ for a commodity
controlled by ECCN 1A613 and not
controlled elsewhere in the USML or
CCL.
Note: Forgings, castings, and other
unfinished products, such as extrusions and
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Frm 00035
Fmt 4702
Sfmt 4702
Reason for Control: NS, RS, AT
Control(s)
NS applies to entire entry
except 1B613.y.
RS applies to entire entry
except 1B613.y.
AT applies to entire entry ..
Country chart
NS Column 1.
RS Column 1.
AT Column 1.
LVS: $1500.
GBS: N/A.
CIV: N/A.
STA: Paragraph (c)(1) of License
Exception STA (§ 740.20(c)(1)) may be
used for items in 1B613 without the
need for a determination described in
§ 740.20(g). Paragraph (c)(2) of License
Exception STA (§ 740.20(c)(2)) of the
EAR may not be used for any item in
1B613.
List of Items Controlled
Unit: N/A.
Related Controls:
Related Definitions: N/A.
Items:
a. Test, inspection, and ‘‘production’’
‘‘equipment,’’ not controlled by USML
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Category X(c), that is ‘‘specially
designed’’ for the ‘‘production’’ or
‘‘development’’ of commodities
controlled by ECCN 1A613 or USML
Category X.
b. Plasma pressure compaction (P2C)
equipment ‘‘specially designed’’ for the
production of ceramic or composite
body armor plates controlled by ECCN
1A613 or USML Category X.
c. to x. [RESERVED]
y. Specific test, inspection, and
‘‘production’’ ‘‘equipment’’ ‘‘specially
designed’’ for the ‘‘production’’ or
‘‘development’’ of commodities
controlled by ECCN 1A613 or USML
Category X, as follows:
y.1 to y.98 [RESERVED]
y.99 Commodities not identified on
the CCL that (i) have been determined,
in an applicable commodity jurisdiction
determination issued by the U.S.
Department of State, to be subject to the
EAR and (ii) would otherwise be
controlled elsewhere in ECCN 1B613.
13. In Supplement No. 1 to part 774,
Category 1, add a new Export Control
Classification Number 1D613 between
ECCN 1D390 and 1D993 to read as
follows:
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
1D613 ‘‘Software’’ ‘‘specially
designed’’ for the ‘‘development,’’
‘‘production,’’ operation, installation,
maintenance, repair, overhaul or
refurbishing of commodities controlled
by 1A613 or 1B613, as follows (see list
of items controlled).
License Requirements
Reason for Control: NS, RS, AT
Control(s)
NS applies to entire entry
except 1D613.y.
RS applies to entire entry
except 1D613.y.
AT applies to entire entry ..
Country chart
NS Column 1.
RS Column 1.
than 10% U.S.-origin ‘‘600 series’’
items.
Related Definitions: N/A.
Items:
a. ‘‘Software’’ (other than ‘‘software’’
controlled in paragraph .y of this entry)
‘‘specially designed’’ for the
‘‘development,’’ ‘‘production,’’
operation or maintenance of
commodities controlled by ECCNs
1A613 (except 1A613.y) or 1B613
(except 1B613.y).
b. to x. [RESERVED]
y. Specific ‘‘software’’ ‘‘specially
designed’’ for the ‘‘production,’’
‘‘development,’’ or operation or
maintenance of commodities controlled
by ECCNs 1A613 or 1B613, as follows:
y.1. Specific ‘‘software’’ ‘‘specially
designed’’ for the ‘‘production,’’
‘‘development,’’ operation or
maintenance of commodities controlled
by ECCNs 1A613.y or 1B613.y.
y.2 through y.98 [RESERVED]
y.99 ‘‘Software’’ not identified on the
CCL that (i) has been determined to be
subject to the EAR in a commodity
jurisdiction determination issued by the
U.S. Department of State and (ii) would
otherwise be controlled elsewhere in
ECCN 1D613.
14. In Supplement No. 1 to part 774,
Category 1, add a new Export Control
Classification Number 1E613 between
ECCN 1E355 and 1E994 to read as
follows:
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
1E613 ‘‘Technology’’ ‘‘required’’ for
the ‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul or refurbishing of
commodities controlled by 1A613 or
1B613 or ‘‘software’’ controlled by
1D613, as follows (see list of items
controlled).
License Requirements
Reason for Control: NS, RS, AT
AT Column 1.
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Control(s)
License Exceptions
CIV: N/A.
TSR: N/A.
STA: Paragraph (c)(2) of License
Exception STA (§ 740.20(c)(2)) of the
EAR may not be used for any ‘‘software’’
in 1D613.
List of Items Controlled
Unit: $ value.
Related Controls: ‘‘Software’’ directly
related to articles controlled by USML
Category X is subject to the control of
USML paragraph X(e) of the ITAR. See
ECCN 0A919 for foreign made ‘‘military
commodities’’ that incorporate more
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Jkt 226001
Country chart
NS applies to entire entry
except 1E613.y.
RS applies to entire entry
except 1E613.y.
AT applies to entire entry ..
NS Column 1.
AT Column 1.
List of Items Controlled
Unit: $ value.
Frm 00036
Fmt 4702
Dated: May 30, 2012.
Kevin J. Wolf,
Assistant Secretary of Commerce for Export
Administration.
[FR Doc. 2012–13745 Filed 6–6–12; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice 7915]
RS Column 1.
License Exceptions
CIV: N/A.
TSR: N/A.
STA: Paragraph (c)(2) of License
Exception STA (§ 740.20(c)(2)) of the
EAR may not be used for any
‘‘technology’’ in 1E613.
PO 00000
Related Controls: Technical data
directly related to articles controlled by
USML Category X is subject to the
control of USML paragraph X(e) of the
ITAR. See ECCN 0A919 for foreign
made ‘‘military commodities’’ that
incorporate more than 10% U.S.-origin
‘‘600 series’’ items.
Related Definitions: N/A
Items:
a. ‘‘Technology’’ (other than
‘‘technology’’ controlled by paragraph .y
of this entry) ‘‘required’’ for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul, or refurbishing of
commodities or ‘‘software’’ controlled
by ECCNs 1A613 (except 1A613.y),
1B613 (except 1B613.y), or 1D613
(except 1D613.y).
b. through x. [RESERVED]
y. Specific ‘‘technology’’ ‘‘required’’
for the ‘‘production,’’ ‘‘development,’’
operation, installation, maintenance,
repair, or overhaul of commodities or
software controlled by ECCNs 1A613,
1B613, or 1D613, as follows:
y.1. Specific ‘‘technology’’ ‘‘required’’
for the ‘‘production,’’ ‘‘development,’’
operation, installation, maintenance,
repair or overhaul of commodities or
software controlled by ECCNs 1A613.y,
1B613.y, or 1D613.y.
y.2. through y.98 [RESERVED]
y.99. ‘‘Technology’’ that would
otherwise be controlled elsewhere in
this entry but that (i) has been
determined to be subject to the EAR in
a commodity jurisdiction determination
issued by the U.S. Department of State
and (ii) is not otherwise identified
elsewhere on the CCL.
Sfmt 4702
RIN 1400–AD16
Amendment to the International Traffic
in Arms Regulations: Revision of U.S.
Munitions List Category X
Department of State.
Proposed rule.
AGENCY:
ACTION:
As part of the President’s
Export Control Reform effort, the
Department of State proposes to amend
the International Traffic in Arms
Regulations (ITAR) to revise Category X
SUMMARY:
E:\FR\FM\07JNP1.SGM
07JNP1
]]>Agencies
[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Proposed Rules]
[Pages 33688-33698]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13745]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 740, 742, and 774
[Docket No. 120201082-2132-01]
RIN 0694-AF58
Revisions to the Export Administration Regulations (EAR): Control
of Personal Protective Equipment, Shelters, and Related Items the
President Determines No Longer Warrant Control Under the United States
Munitions List (USML)
AGENCY: Bureau of Industry and Security, Department of Commerce.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule describes how articles the President
determines no longer warrant export control under Category X
(Protective Personnel Equipment and Shelters) of the United States
Munitions List (USML), would be controlled under the Commerce Control
List (CCL) in new Export Control Classification Numbers (ECCNs) 1A613,
1B613, 1D613, and 1E613. In conjunction with establishing these new
ECCNs, this proposed rule would control military helmets (currently
controlled under ECCNs 0A018 and 0A988) under new ECCN 1A613 and amend
ECCN 1A005 for body armor. This proposed rule also would remove
machetes from ECCN 0A988. This is one in a planned series of proposed
rules describing how various types of articles the President
determines, as part of the Administration's Export Control Reform
Initiative, no longer warrant USML control, would be controlled on the
CCL and by the EAR. This proposed rule is being published in
conjunction with a proposed rule of the Department of State,
Directorate of Defense Trade Controls (DDTC), which would amend the
list of articles controlled by USML Category X in the International
Traffic In Arms Regulations (ITAR).
DATES: Comments must be received by July 23, 2012.
ADDRESSES: You may submit comments by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
The identification number for this rulemaking is BIS-2012-0019.
By email directly to publiccomments@bis.doc.gov. Include
RIN 0694-AF58 in the subject line.
By mail or delivery to Regulatory Policy Division, Bureau
of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th
Street and Pennsylvania Avenue NW., Washington, DC 20230. Refer to RIN
0694-AF58.
FOR FURTHER INFORMATION CONTACT: Michael Rithmire, Office of National
Security and Technology Transfer Controls, Bureau of Industry and
Security, U.S. Department of Commerce, Telephone: (202) 482-6105,
Email: Michael.Rithmire@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
On July 15, 2011, as part of the Administration's ongoing Export
Control Reform Initiative, the Bureau of Industry and Security (BIS)
published a proposed rule (76 FR 41958) (herein ``the July 15 proposed
rule'') that set forth a framework for how articles, which the
President determines in accordance with section 38(f) of the Arms
Export Control Act (AECA) (22 U.S.C. 2778(f)) would no longer warrant
export control on the United States Munitions List (USML) of the ITAR,
would be controlled on the Commerce Control List (CCL) in Supplement
No. 1 to Part 774 of the Export Administration Regulations (EAR). On
November 7, 2011 (76 FR 68675) (herein ``the November 7 proposed
rule''), BIS published a rule proposing several changes to the
framework initially proposed in the July 15 rule.
Following the structure of the July 15 proposed rule, this proposed
rule describes BIS's proposal for controlling under the EAR and its CCL
personal protective equipment, shelters, and related articles now
controlled by the ITAR's USML Category X. The proposed changes
described in this proposed rule and the State Department's proposed
amendment to Category X of the USML are based on a review of Category X
by the Defense Department, which worked with the Departments of State
and Commerce in preparing the proposed amendments. The review was
focused on identifying the types of articles that are now controlled by
USML Category X in the ITAR that are either (i) inherently military and
otherwise warrant export control on the USML or (ii) if it is a type
common to non-military protective equipment, possessing parameters or
characteristics that provide a critical military or intelligence
advantage to the United States, and that are almost exclusively
available from the United States. If an article satisfied one or both
of those criteria, the article remained on the USML in the ITAR. If an
article did not satisfy either standard but was nonetheless a type of
article that is, as a result of differences in form and fit,
``specially designed'' for military
[[Page 33689]]
applications, it was identified in the new ECCNs proposed in this
notice. The licensing requirements and other EAR-specific controls for
such items also described in this notice would enhance national
security, permitting the U.S. Government to focus its resources on
controlling, monitoring, investigating, analyzing, and, if need be,
prohibiting exports and reexports of more significant items to
destinations, end uses, and end users of greater concern than our NATO
allies and other multi-regime partners.
Pursuant to section 38(f) of the AECA, the President shall review
the USML ``to determine what items, if any, no longer warrant export
controls under'' the AECA. The President must report the results of the
review to Congress and wait 30 days before removing any such items from
the USML. The report must ``describe the nature of any controls to be
imposed on that item under any other provision of law.'' 22 U.S.C.
2778(f)(1). This proposed rule describes how certain protective
equipment and related articles in USML Category X would be controlled
by the EAR and its CCL if the President determines that the articles no
longer warrant export control on the USML.
In the July 15 proposed rule, BIS proposed creating a series of new
ECCNs to control items that would be removed from the USML, or that are
items from the Wassenaar Arrangement on Export Controls for
Conventional Arms and Dual Use Goods and Technologies Munitions List
(Wassenaar Arrangement Munitions List or WAML) that are already
controlled elsewhere on the CCL. The proposed rule referred to this
series as the ``600 series'' because the third character in each of the
new ECCNs would be a ``6.'' The first two characters of the 600 series
ECCNs serve the same function as any other ECCN as described in Sec.
738.2 of the EAR. The first character is a digit in the range 0 through
9 that identifies the Category on the CCL in which the ECCN is located.
The second character is a letter in the range A through E that
identifies the product group within a CCL Category. In the 600 series,
the third character is the number 6. With few exceptions, the final two
characters identify the WAML category that covers items that are the
same or similar to items in a particular 600 series ECCN.
This proposed rule would create four such ECCNs--1A613, to control
armored and protective ``equipment,'' constructions, and
``components;'' 1B613, to control test, inspection, and ``production''
equipment, and related commodities ``specially designed'' for the
``development'' or ``production'' of commodities controlled by ECCN
1A613 or USML Category X and not identified in USML Category X; 1D613,
to control ``software'' for the ``development,'' ``production,''
operation, installation, maintenance, repair, overhaul, or refurbishing
of items controlled by ECCNs 1A613 or 1B613; and 1E613, to control
``technology'' for the ``development,'' ``production,'' operation,
installation, maintenance, repair, overhaul, or refurbishing of items
controlled by ECCNs 1A613, 1B613, or 1D613.
This proposed rule also would revise three existing ECCNs--0A018,
certain items on the Wassenaar Arrangement Munitions List; 0A988,
conventional military steel helmets and machetes; and 1A005, body armor
and specially designed components not manufactured to military
standards or specifications. Further, this rule would revise License
Exceptions Baggage (BAG) and Temporary Imports, Exports, and Reexports
(TMP) to authorize exports of certain body armor classified under new
ECCN 1A613.
BIS will publish additional Federal Register notices containing
proposed amendments to the CCL that will describe proposed controls for
additional categories of articles the President determines no longer
warrant export control under the USML. The State Department will
publish concurrently proposed amendments to the USML that correspond to
the BIS notices. BIS will also publish proposed rules to further align
the CCL with the WAML and the Missile Technology Control Regime
Equipment, Software and Technology Annex.
Detailed Description of Changes Proposed by This Rule
Proposed ECCN 1A613: Armored and Protective ``Equipment,''
Constructions, and Components
Proposed ECCN 1A613 would impose national security (NS Column 1),
regional stability (RS Column 1), and antiterrorism (AT Column 1)
controls on commodities described herein. Paragraph .a of ECCN 1A613
would control armored plate ``specially designed'' for military use and
not controlled by the USML. Paragraph .b would control shelters
``specially designed'' to provide ballistic protection or protect
against nuclear, biological, or chemical contamination. Paragraph .c
would control 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. Paragraph .d would control
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. Body armor
currently classified under ECCN 1A005 would not be reclassified under
this ECCN, as discussed below. Paragraph .e would control other
personal protective equipment, such as handheld ballistic shields,
``specially designed'' for military applications not specified in the
USML or CCL. Paragraphs .f through .w would be reserved for future use.
Paragraph .x would control ``parts,'' ``components,'' ``accessories and
attachments'' that are ``specially designed'' for a commodity
controlled by proposed ECCN 1A613 and not specified elsewhere in the
CCL or USML. Paragraph .y would control specific ``parts,''
``components,'' ``accessories and attachments'' ``specially designed''
for a commodity controlled under proposed ECCN 1A613 and not elsewhere
specified in the CCL. This proposed rule would control conventional
military steel helmets, currently classified under ECCN 0A988, under
paragraph .y.1. Paragraphs .y.2 through .y.98 would be reserved for
future classification of specific equipment.
BIS proposed to move anti-gravity suits, pressure suits, and
atmosphere diving suits, currently controlled in the USML under
Category X(a)(3), (a)(4), and (a)(5), respectively, to ECCN 9A610 in
the November 7 proposed rule.
Proposed ECCN 1B613: Test, Inspection, and ``Production'' ``Equipment''
and Related Commodities ``Specially Designed'' for the ``Development''
or ``Production'' of Commodities Controlled by ECCN 1A613 or USML
Category X
Proposed ECCN 1B613 would impose national security (NS Column 1),
regional stability (RS Column 1), and antiterrorism (AT Column 1)
controls on commodities described herein. Paragraph .a of ECCN 1B613
would control test, inspection, and ``production'' ``equipment'' that
is not specified in USML Category X(c) and is ``specially designed''
for the ``production'' or ``development'' of commodities specified in
proposed ECCN 1A613 or USML Category X. Paragraph .b would control
plasma pressure compaction (P2C) equipment ``specially designed'' for
the ``production'' of ceramic or composite body armor plates controlled
by ECCN 1A613 or USML Category X. Paragraphs .c through .x would be
reserved for
[[Page 33690]]
future use. Paragraph .y would control specific test, inspection, and
``production'' ``equipment'' ``specially designed'' for the
``production'' or ``development'' of commodities controlled by ECCN
1A613 or USML Category X. Paragraphs .y.1 through .y.98 would be
reserved for future use.
Proposed ECCN 1D613: ``Software'' ``Specially Designed'' for the
``Development,'' ``Production,'' Operation, Installation, Maintenance,
Repair, Overhaul or Refurbishing of Commodities Controlled by ECCNs
1A613 or 1B613
Proposed ECCN 1D613 would impose national security (NS Column 1),
regional stability (RS Column 1), and antiterrorism (AT Column 1)
controls on ``software'' described herein. Paragraph .a would control
``software'' (other than ``software'' controlled in paragraph .y of
ECCN 1D613) ``specially designed'' for the ``development,''
``production,'' operation or maintenance of commodities controlled by
ECCNs 1A613 (except 1A613.y) or 1B613 (except 1B613.y). Paragraphs .b
through .x would be reserved for future use. Paragraph .y would control
specific ``software'' ``specially designed'' for the ``production,''
``development,'' or operation or maintenance of commodities listed in
proposed ECCNs 1A613 or 1B613. While paragraphs .y.2 through .y.98
would be reserved, paragraph .y.1 would control specific ``software''
``specially designed'' for the ``production,'' ``development,'' or
operation or maintenance of commodities listed in proposed ECCNs
1A613.y or 1B613.y.
Proposed ECCN 1E613: ``Technology'' ``Required'' for the
``Development,'' ``Production,'' Operation, Installation, Maintenance,
Repair, Overhaul or Refurbishing of Commodities Controlled by ECCNs
1A613 or 1B613, or ``Software'' Controlled by ECCN 1D613
Proposed ECCN 1E613 would impose national security (NS Column 1),
regional stability (RS Column 1), and antiterrorism (AT Column 1)
controls on the ``technology'' described herein. Paragraph .a would
control ``technology'' (other than ``technology'' controlled under
paragraph .y) ``required'' for the ``development,'' ``production,''
operation, installation, maintenance, repair, overhaul, or refurbishing
of commodities controlled by ECCNs 1A613 (except 1A613.y) or 1B613
(except 1B613.y), or software controlled by ECCN 1D613 (except
1D613.y). Paragraphs .b through .x would be reserved for future use.
Paragraph .y would control specific ``technology'' ``required'' for the
``production,'' ``development,'' operation, installation, maintenance,
repair, or overhaul of commodities or software listed in ECCNs 1A613,
1B613, or 1D613. While paragraphs .y.2 through .y.98 would be reserved,
paragraph .y.1 would control specific ``technology'' ``required'' for
the ``production,'' ``development,'' operation, installation,
maintenance, repair, or overhaul of commodities or software listed in
ECCNs 1A613.y, 1B613.y, or 1D613.y.
Inclusion of ``.y.99'' Paragraphs in 600 Series ECCNs
Proposed new ECCNs 1A613, 1B613, 1D613 and 1E613 also would contain
a paragraph ``.y.99'' that would control any item that meets all of the
following criteria: (i) The item is not listed on the CCL; (ii) the
item was previously determined to be subject to the EAR in an
applicable commodity jurisdiction determination issued by the U.S.
Department of State; and (iii) the item would otherwise be controlled
under one of these 0x613 ECCNs because, for example, the item was
``specially designed'' for a military use.
ECCNs 0A018 and 0A988 Amended
This proposed rule would remove the references to military helmets
in ECCN 0A018.d. Conventional steel helmets described in paragraph
.d.1, which are currently controlled under ECCN 0A988, would be moved
to proposed ECCN 1A613.y.1. Military helmets described in paragraph
.d.2 are currently subject to the ITAR, and that jurisdiction would not
change under this proposed rule. Military helmets classified under ECCN
0A018.d (i.e., that are not described in paragraphs .d.1 or .d.2) would
be moved to proposed ECCN 1A613.c under this proposed rule.
Consequently, this proposed rule would amend the Related Controls
paragraph to provide references to ECCNs 1A613.c and 1A613.y.1 and the
USML for military helmets currently described in paragraph .d, and
would remove the Note referencing paragraph .d.
In addition, this proposed rule would remove references to
conventional military steel helmets from the heading and the control
paragraph of ECCN 0A988. As a result of this move, these helmets would
be subject to the de minimis limits applicable to ``600 series'' items
that were proposed in the July 15 and November 7 proposed rules, as
well as the restrictions on License Exception availability for ``600
series'' items. ECCN 0A988 would be amended to cross reference ECCN
1A613.y.1.
Under ECCN 0A018.d, military helmets are currently controlled for
national security, antiterrorism, and United Nations (UN) reasons.
Under proposed ECCN 1A613.c, they would be controlled for national
security, regional stability, and antiterrorism reasons and no longer
controlled for UN reasons. Controlling these items for UN reasons is
unnecessary in light of the November 7 proposed rule's amendment to the
RS Column 1 licensing policy, which stated that there would be a
general policy of denial for ``600 series'' items if the destination is
subject to a United States arms embargo or a United Nations Security
Council arms embargo. A list of such destinations is identified in
proposed section 740.2(a)(12), published in the November 7 proposed
rule (and amended with this proposed rule, as discussed below).
Under ECCN 0A988, conventional steel military steel helmets are
controlled for UN reasons only; under ECCN 1A613.y.1, they would be
controlled for antiterrorism reasons only. This change would remove the
CCL-based license requirement for exports or reexports of the helmets
to Rwanda and Iraq since Rwanda is no longer subject to a UN arms
embargo and since ECCN 0A988 helmets do not fit the scope of the arms
and related materiel that are subject to the current UN arms embargo on
Iraq. This change would also impose a new CCL-based license requirement
for exports or reexports of 0A988 helmets to Cuba, Iran, Sudan, and
Syria for foreign policy reasons.
Removing conventional military steel helmets from ECCN 0A988 would
leave machetes as the only items controlled under that ECCN. Machetes
do not meet the criteria of any proposed 600 series ECCN. Consequently,
BIS reviewed machetes to determine whether such items should remain in
ECCN 0A988, move to a different ECCN, or be removed from the CCL.
Currently, ECCN 0A988 imposes a CCL-based license requirement for
exports and reexports of machetes to Iraq, North Korea, and Rwanda due
to UN arms embargoes. However, machetes do not fit the scope of arms
and related materiel that are subject to UN arms embargoes. Further,
machetes do not fit the scope of any ECCNs currently controlling items
for anti-terrorism reasons. Therefore, this proposed rule would remove
machetes from the CCL and designate them as EAR99 items. This proposal
would help streamline the CCL and remove an item for which BIS believes
no national security or foreign policy concern exists to merit control
under the CCL. As EAR99 items, machetes would continue
[[Page 33691]]
to require licenses for certain countries subject to comprehensive
embargoes and sanctions under part 746 and certain end uses and end
users described in part 744 of the EAR.
ECCN 1A005 Amended
This proposed rule would revise the List of Items Controlled
section in ECCN 1A005 to more positively identify soft body armor and
hard body armor plates that are controlled under this ECCN. In
addition, this proposed rule would amend the Related Controls paragraph
of ECCN 1A005 to reference body armor controlled under ECCN 1A613 and
police helmets and shields controlled under ECCN 0A979.
License Exception BAG Amended for Body Armor Controlled Under ECCN
1A613.d
In the July 15 proposed rule, BIS proposed adding new section
740.2(a)(13) to the EAR to identify when items classified under the
``600 series'' would be eligible for license exceptions. This proposed
rule would amend proposed Sec. 740.2(a)(13)(i) and current Sec.
740.14 to authorize, under License Exception BAG, exports of body armor
classified under newly proposed ECCN 1A613.d. License Exception BAG, in
Sec. 740.14, would be amended by adding a new paragraph (h), which
generally is modeled on the exemptions in Sec. Sec. 123.17(f) and (g)
of the ITAR. In addition, to parallel Sec. 123.17(g) of the ITAR,
which authorizes exports without a license under certain circumstances
to Afghanistan and Iraq, both of which are subject to arms embargoes
under Sec. 126.1 of the ITAR, this proposed rule would revise the July
15 rule's proposed restrictions on all license exceptions set forth in
Sec. 740.2(a)(12) to authorize exports of ECCN 1A613.d body armor to
those two countries, as long as the specified conditions of license
condition availability are met. Under this proposal for License
Exception BAG, only exports, and not reexports, would be authorized for
body armor controlled under ECCN 1A613.d. BIS encourages public
comments on whether BAG should also authorize reexports of such body
armor and, if so, whether conditions should apply to such reexports.
Concurrently, this proposed rule would revise the July 15 rule's
proposed amendment to Sec. 740.2(a)(12) by updating the list of
countries currently subject to a United States or UN arms embargo by
including Fiji and removing Sierra Leone.
License Exception TMP Amended for Body Armor Controlled Under ECCN
1A613.d
As with License Exception BAG, this proposed rule would amend
License Exception TMP to authorize the export of ECCN 1A613.d body
armor as a tool of trade. Specifically, this proposed rule would add
new paragraph (a)(3)(v) to Sec. 740.9, which generally would be
modelled on the exemptions in Sec. Sec. 123.17(f) and (g) of the ITAR.
In order to authorize exports of ECCN 1A613.d body armor through TMP to
countries that are in Country Group D:1 but not subject to a United
States arms embargo, this proposed rule would add an exception in
paragraph (a)(3)(i)(B)(6) of Sec. 740.9 to the restriction on the use
of TMP for destinations in Country Group D:1. To enable exports of ECCN
1A613.d body armor under TMP to Iraq, which is in Country Group D:1 and
currently subject to a United States arms embargo, this proposed rule
would add paragraph (a)(3)(i)(B)(7), which would authorize exports of
ECCN 1A613.d body armor to Iraq under proposed paragraph (a)(3)(v)(B).
To ensure that body armor controlled under ECCN 1A005 may be
exported to the same destinations as more sensitive body armor
controlled under ECCN 1A613.d, this proposed rule would also add
paragraph (a)(3)(i)(B)(5) to Sec. 740.9 to authorize the export of
ECCN 1A005 body armor to countries in Country Group D:1. In addition,
to parallel existing License Exception TMP provisions for ECCN 1A005
body armor, reexports of such items would be permitted in addition to
exports.
Because the proposed changes to License Exception TMP for body
armor controlled under ECCN 1A613.d are modelled on the exemptions in
Sec. Sec. 123.17(f) and (g) of the ITAR, they would authorize only
exports, and not reexports. BIS encourages comments on whether TMP
should also authorize reexports of such body armor and, if so, what
conditions should apply to such reexports.
Proposed New ECCNs and License Exception STA
The July 15 proposed rule would impose certain restrictions on the
use of license exceptions for items that would be controlled under the
new ``600 series'' ECCNs on the CCL. For instance, proposed Sec.
740.20(g) describes the process for requesting License Exception STA
eligibility for ``600 series'' end items classified in an ECCN
``xA6zz'' entry. This proposed rule differs from the July 15 proposed
rule in that items described in proposed ECCN 1A613 would be eligible
for Sec. 740.20(c)(1) of License Exception STA without need for a
determination described in Sec. 740.2(g). Likewise, items described in
ECCN 1B613 would also be eligible for Sec. 740.20(c)(1) of License
Exception STA without need for a determination. No items described in
ECCNs 1A613, 1B613, 1D613, or 1E613 would be eligible for Sec.
740.20(c)(2) of License Exception STA.
Relationship to the July 15 and November 7 Proposed Rules
As referenced above, the purpose of the July 15 proposed rule was
to set up the framework to support the transfer of items from the USML
to the CCL. To facilitate that goal, the July 15 proposed rule
contained definitions and concepts that were meant to be applied across
categories. However, as BIS undertakes rulemakings to move specific
categories of items from the USML to the CCL, there may be unforeseen
issues or complications that may require BIS to reexamine those
definitions and concepts. The comment period for the July 15 proposed
rule closed on September 13, 2011. In the November 7 proposed rule, BIS
proposed several changes to those definitions and concepts. The comment
period for the November 7 proposed rule closed on December 22, 2011.
To the extent that this rule's proposals affect any provision in
either of those proposed rules or any provision in either of those
proposed rules affect this proposed rule, BIS will consider comments on
those provisions so long as they are in the context of the changes
proposed in this rule.
BIS believes that the following aspects of the July 15 and November
7 proposed rules are among those that could affect this proposed rule:
De minimis provisions in Sec. 734.4;
Restrictions on use of license exceptions in Sec. Sec.
740.2, 740.10, 740.11, and 740.20 (including restrictions proposed by
the November 7, 2011, proposed rule that would apply to items outside
the scope of that rule);
Change to national security licensing policy in Sec.
742.4;
Licensing policy in Sec. 742.4(b)(1)(ii);
Addition of 600 series items to Supplement No. 2 to Part
744--List of Items Subject to the Military End-Use Requirement of Sec.
744.21;
Addition of U.S. arms embargo policy regarding 600 series
items set forth in Sec. 742.4(b)(1)(ii) (national security) of the
July 15 proposed rule to Sec. 742.6(b)(1) (regional stability) of the
November 7 proposed rule; and
Definitions of terms in Sec. 772.1.
[[Page 33692]]
Effects of This Proposed Rule
De minimis
The July 15 proposed rule would impose certain unique de minimis
requirements on items controlled under the new 600 series ECCNs.
Section 734.3 of the EAR provides, inter alia, that under certain
conditions, items made outside the United States that incorporate items
subject to the EAR are not subject to the EAR if they do not exceed a
de minimis percentage of controlled U.S.-origin content. Depending on
the destination, the de minimis percentage can be either 10 percent or
25 percent. The personal protective equipment, shelters, and related
items that would be subject to the EAR as a result of this proposed
rule would become eligible for de minimis treatment.
Use of License Exceptions
Personal protective equipment, shelters, and related items
currently on the USML that would be classified under proposed ECCNs
1A613 and 1B613 would become eligible for several license exceptions,
including STA, which would be available for exports to certain
government agencies of NATO and other multi-regime close allies. The
exchange of information and statements required under STA is
substantially less burdensome than the license application requirements
currently required under the ITAR, as discussed in more detail in the
``Regulatory Requirements'' section of this proposed rule. None of the
personal protective equipment, shelters, or related items that would be
controlled by ECCNs 1A613 or 1B613 would be subject to the provision in
the July 15 proposed rule that proposes to preclude the use of License
Exception STA for ``600 series'' end items unless approval for such use
is sought from and granted by BIS. The items covered by this rule also
would be eligible for the following license exceptions: LVS (limited
value shipments), up to $1500 and RPL (servicing and parts
replacement). In addition, body armor classified under ECCN 1A613.d
would be eligible for License Exceptions BAG (baggage) and TMP
(temporary imports, exports, and reexports).
Alignment With the Wassenaar Arrangement Munitions List
The Administration has stated since the beginning of the Export
Control Reform Initiative that the reforms will be consistent with U.S.
obligations to the multilateral export control regimes. Accordingly,
the Administration will, in this and subsequent proposed rules,
exercise its national discretion to implement, clarify, and, to the
extent feasible, align its controls with those of the regimes. This
proposed rule would align controls on the items that it adds to the CCL
by placing them in new 600 series ECCNs ending in ``13'' to parallel
Category ML13 on the Wassenaar Arrangement Munitions List (``[Armored]
or protective equipment, constructions and components''). Items in
proposed ECCN 1A613 are covered by WAML Category ML 13.
Request for Comments
BIS seeks comments on this proposed rule. BIS will consider all
comments received on or before July 23, 2012. All comments must be in
writing and submitted via one or more of the methods listed under the
ADDRESSES caption to this notice. All comments (including any personal
identifiable information or information for which a claim of
confidentially is asserted either in those comments or their
transmittal emails) will be available for public inspection and
copying. Parties who wish to comment anonymously may do so by
submitting their comments via www.regulations.gov and, leaving the
fields for information that would identify the commenter blank, and
including no identifying information in the comment itself.
Although the Export Administration Act expired on August 20, 2001,
the President, through Executive Order 13222 of August 17, 2001, 3 CFR,
2001 Comp., p. 783 (2002), as extended by the Notice of August 12,
2011, 76 FR 50661 (August 16, 2011), has continued the Export
Administration Regulations in effect under the International Emergency
Economic Powers Act. BIS continues to carry out the provisions of the
Act, as appropriate and to the extent permitted by law, pursuant to
Executive Order 13222.
Rulemaking Requirements
1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget (OMB).
2. Notwithstanding any other provision of law, no person is
required to respond to, nor is subject to a penalty for failure to
comply with, a collection of information, subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid OMB
control number. This proposed rule would affect two approved
collections: Simplified Network Application Processing + System
(control number 0694-0088), which includes, among other things, license
applications, and License Exceptions and Exclusions (0694-0137).
As stated in the July 15 proposed rule, BIS believes that the
combined effect of all rules to be published adding items to the EAR
that would be removed from the ITAR as part of the Administration's
Export Control Reform Initiative would increase the number of license
applications submitted by approximately 16,000 annually, resulting in
an increase in burden hours of 5,067 (16,000 transactions at 17 minutes
each) under control number 0694-0088.
Some items formerly on the USML will become eligible for License
Exception STA under this rule. As specified in the STA eligibility
paragraphs for 1A613 and 1B613, such items would not need a
determination of eligibility per Sec. 740.20(g) of the EAR. As stated
in the July 15 proposed rule, BIS believes that the increased use of
License Exception STA resulting from the combined effect of all rules
to be published adding items to the EAR that would be removed from the
ITAR as part of the Administration's Export Control Reform Initiative
would increase the burden associated with control number 0694-0137 by
about 23,858 hours (20,450 transactions at 1 hour and 10 minutes each).
BIS expects that this increase in burden would be more than offset
by a reduction in burden hours associated with approved collections
related to the ITAR. This proposed rule addresses controls on personal
protective equipment and related parts, components, production
equipment, software, and technology. Because, with few exceptions, the
ITAR allows exemptions from license requirements only for exports to
Canada, most exports of such items, even when destined to NATO member
states and other close allies, require State Department authorization.
In addition, the exports of technology necessary to produce such items
in the inventories of the United
[[Page 33693]]
States and its NATO and other close allies require State Department
authorizations. Under the EAR, as proposed, such technology would
become eligible for export to NATO member states and other close allies
under License Exception STA. Use of License Exception STA imposes a
paperwork and compliance burden because, for example, exporters must
furnish information about the item being exported to the consignee and
obtain from the consignee an acknowledgement and commitment to comply
with the EAR. However, the Administration understands that complying
with the requirements of STA is likely less burdensome than applying
for licenses. For example, under License Exception STA, a single
consignee statement can apply to an unlimited number of products, need
not have an expiration date and need not be submitted to the government
in advance for approval. Suppliers with regular customers can tailor a
single statement and assurance to match their business relationship
rather than applying repeatedly for licenses with every purchase order
to supply reliable customers in countries that are close allies or
members of export control regimes or both.
Even in situations in which a license would be required under the
EAR, the burden likely will be reduced compared to the license
requirement of the ITAR. In particular, license applications for
exports of technology controlled by ECCN 1E613 are likely to be less
complex and burdensome than the authorizations required to export ITAR-
controlled technology, i.e., Manufacturing License Agreements and
Technical Assistance Agreements.
3. This rule does not contain policies with Federalism implications
as that term is defined under E.O. 13132.
4. The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare an initial
regulatory flexibility analysis (IRFA) for any rule subject to the
notice and comment rulemaking requirements under the Administrative
Procedure Act (5 U.S.C. 553) or any other statute. However, under
section 605(b) of the RFA, if the head of an agency certifies that a
rule will not have a significant impact on a substantial number of
small entities, the RFA does not require the agency to prepare a
regulatory flexibility analysis. Pursuant to section 605(b), the Chief
Counsel for Regulation, Department of Commerce, submitted a memorandum
to the Chief Counsel for Advocacy, Small Business Administration,
certifying that this proposed rule, if promulgated, will not have a
significant impact on a substantial number of small entities.
The changes proposed in this rule do not impact the original
certification for these rules in the July 15 proposed rule.
Consequently, BIS has not prepared a regulatory flexibility analysis. A
summary of the factual basis for the certification, which also takes
into consideration the changes proposed by this proposed rule, is
provided below.
Number of Small Entities
The Bureau of Industry and Security (BIS) does not collect data on
the size of entities that apply for and are issued export licenses.
Although BIS is unable to estimate the exact number of small entities
that would be affected by this rule, it acknowledges that this rule
would affect some unknown number of them.
Economic Impact
This proposed rule is part of the Administration's Export Control
Reform Initiative. Under that initiative, the USML would be revised to
be a ``positive'' list, i.e., a list that does not use generic, catch-
all controls on any part, component, accessory, attachment, or end item
that was in any way specifically modified for a defense article,
regardless of the article's military or intelligence significance or
non-military applications. At the same time, articles that the
President determines to no longer warrant export control on the USML
would become controlled on the CCL. Such items, along with certain
military items that currently are on the CCL, will be identified in
specific ECCNs known as the ``600 series'' ECCNs. In addition, some
items currently on the CCL will move from existing ECCNs to the new 600
series ECCNs.
In practice, the greatest impact of this rule on small entities
would likely be reduced administrative costs and reduced delay for
exports of items that are now on the USML but would become subject to
the EAR. As part of this proposal, parts and components that are
``specially designed'' for commodities proposed to be controlled under
ECCN 1A613 and are not controlled under proposed USML Category X(d)
would be included on the CCL. Such parts and components are more likely
to be produced by small businesses, which would benefit from this
proposed change.
Changing the jurisdictional status of the items described in this
notice from the USML to the CCL would reduce the burden on small
entities (and other entities as well) through: (i) Eliminating some
license requirements; (ii) increasing availability of license
exceptions; (iii) simplifying license application procedures; and (iv)
reducing or eliminating registration fees.
These amendments are part of the Administration's effort to make
the USML the U.S. Government's list of critical military and
intelligence items that warrant the stringent worldwide export controls
of the ITAR, while controlling all other military and intelligence
items, particularly generic parts and components, through the CCL. BIS
believes that the economic benefits for the proposed amendments include
the significant reduction in the time spent determining and addressing
issues associated with determining the jurisdictional status of such
items now.
In addition, parts and components currently controlled under the
ITAR remain under ITAR control when incorporated into foreign-made
items, regardless of the significance or insignificance of the item.
This discourages foreign buyers from incorporating such U.S. content.
The availability of de minimis treatment under the EAR, for those items
that would no longer be controlled under the ITAR, may reduce the
disincentive for foreign manufacturers to purchase U.S.-origin parts
and components.
Many exports and reexports of Category X protective equipment and
related items that would be placed on the CCL, as proposed in this
rule, would become eligible for license exceptions that apply to
shipments to U.S. Government agencies, shipments valued at less than
$1,500 (equipment, components, and production equipment only), parts
and components being exported for use as replacement parts, temporary
exports, and License Exception Strategic Trade Authorization (STA),
reducing the number of licenses that exporters of these items would
need. License Exceptions under the EAR would allow suppliers to send
routine replacement parts and low level parts to NATO member states and
other close allies and export control regime partners for use by those
governments and for use by contractors building equipment for those
governments or for the U.S. Government without having to obtain export
licenses. Under License Exception STA, the exporter would need to
furnish information about the item being exported to the consignee and
obtain a statement from the consignee that, among other things, would
commit the consignee to comply with the EAR and other applicable U.S.
laws. Because such statements and
[[Page 33694]]
obligations can apply to an unlimited number of transactions and have
no expiration date, they would create a net reduction in burden on
transactions that the government routinely approves through the license
application process that the License Exception STA statements would
replace.
Even for exports and reexports for which a license would be
required under the proposed rule, the process would be simpler and less
costly under the EAR. When a USML Category X article is moved to the
CCL, the number of destinations for which a license is required would
remain unchanged. However, the burden on the license applicant would
decrease because the licensing procedure for CCL items is simpler and
more flexible than the license procedure for USML articles.
Under the ITAR licensing procedure, an applicant must include a
purchase order or contract with its application. There is no such
requirement under the CCL licensing procedure. This difference gives
the CCL applicant at least two advantages. First, the applicant has a
way to determine whether the U.S. Government will authorize the
transaction before it enters into potentially lengthy, complex, and
expensive sales presentations or contract negotiations. Under the ITAR
procedure, the applicant must caveat all sales presentations with a
reference to the need for government approval, and is more likely to
engage in substantial effort and expense only to find that the
government will reject the application. Second, a CCL license applicant
need not limit its application to the quantity or value of one purchase
order or contract. It may apply for a license to cover all of its
expected exports or reexports to a specified consignee over the life of
a license (normally two years, but may be longer if circumstances
warrant a longer period), thus reducing the total number of licenses
for which the applicant must apply.
In addition, many applicants exporting or reexporting items that
this rule proposes to transfer from the USML to the CCL would realize
cost savings by eliminating some or all registration fees currently
assessed under the ITAR's licensing procedure. Currently, USML
applicants must pay to use DDTC's licensing procedure even if they
never actually are authorized to export. Registration fees for
manufacturers and exporters of articles on the USML start at $2,250 per
year, increase to $2,750 for organizations applying for one to ten
licenses per year and further increases to $2,750 plus $250 per license
application (subject to a maximum of three percent of total application
value) for those who need to apply for more than ten licenses per year.
Conversely, there are no registration or application processing fees
for applications to export items listed on the CCL. Once the Category X
items that are the subject to this rulemaking are moved from the USML
to the CCL, entities currently applying for licenses from the
Department of State will find their registration fees reduced if the
number of ITAR licenses those entities need declines. If an entity's
entire product line is moved to the CCL, its ITAR registration and
registration fee requirements will be eliminated.
De minimis treatment under the EAR would also become available for
all items that this rule proposes to transfer from the USML to the CCL.
Items subject to the ITAR will remain subject to the ITAR when they are
incorporated abroad into a foreign-made product, regardless of the
percentage of U.S content in that foreign-made product. However,
foreign-made products incorporating items that this rule would move to
the CCL would be subject to the EAR only if their total controlled
U.S.-origin content exceeds 10 percent. Because including small amounts
of U.S.-origin content would not subject foreign-made products to the
EAR, foreign manufacturers would have less incentive to refrain from
purchasing such U.S.-origin parts and components, a development that
potentially would mean greater sales for U.S. suppliers, including
small entities.
For items currently on the CCL that would be moved from existing
ECCNs to the new 600 series, license exception availability would be
narrowed somewhat and the applicable de minimis threshold for foreign-
made products containing those items would in some cases be reduced
from 25 percent to 10 percent. BIS is still considering comments made
in response to the July 15 rule pertaining to these proposed de minimis
levels and, as noted above, will consider de minimis-related comments
to this proposed rule provided they are in the context of this proposed
rule. However, BIS believes that any increased burden imposed by those
actions will be offset substantially by the reduction in burden
attributable to the moving of items from the USML to CCL and the
compliance benefits associated with the consolidation of all WAML items
subject to the EAR in one series of ECCNs.
Conclusion
BIS is unable to determine the precise number of small entities
that would be affected by this rule. Based on the facts and conclusions
set forth above, BIS believes that any burdens imposed by this rule
would be offset by a reduction in the number of items that would
require a license, increased opportunities for use of license
exceptions for exports to certain countries, simpler export license
applications, reduced or eliminated registration fees, and application
of a de minimis threshold for foreign-made items incorporating U.S.-
origin parts and components, which would reduce the incentive for
foreign buyers to design out or avoid U.S.-origin content. For these
reasons, the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this rule, if adopted in final form, would not have
a significant economic impact on a substantial number of small
entities. Accordingly, no IRFA is required, and none has been prepared.
List of Subjects
15 CFR Part 740
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Export Administration
Regulations (15 CFR parts 730-774) are proposed to be amended as
follows:
PART 740--[AMENDED]
1. The authority citation for part 740 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42
U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of August 12, 2011, 76 FR 50661 (August 16, 2011).
2. As proposed to be amended July 15, 2011, at 76 FR 41958, and
November 7, 2011, at 76 FR 65675, Sec. 740.2 is further amended by:
a. Revising paragraph (a)(12) introductory text;
b. Revising the last sentence of paragraph (a)(13)(i)(E); and
c. Adding paragraph (a)(13)(i)(F).
The revision and additions read as follows:
[[Page 33695]]
Sec. 740.2 Restrictions on all License Exceptions.
(a) * * *
(12) Items classified under the ``600 series'' that are destined to
a country subject to a United States arms embargo or a United Nations
Security Council arms embargo (Afghanistan, Belarus, Burma, China, Cote
d'Ivoire, Cuba, Cyprus, Democratic Republic of Congo, Eritrea, Fiji,
Haiti, Iraq, Iran, Lebanon, Liberia, Libya, North Korea, Somalia, Sri
Lanka, Sudan, Syria, Venezuela, Vietnam, Yemen, and Zimbabwe) may not
be authorized under any license exception except by License Exception
GOV under Sec. 740.11(b)(2)(ii), License Exception TMP under Sec.
740.9(a)(3)(v) for exports to Afghanistan and Iraq, and License
Exception BAG under Sec. 740.14(h)(2) for exports to Afghanistan and
Iraq.
* * * * *
(13) * * *
(i) * * *
(E) * * * Except for MT-controlled items, exports and reexports to
non-governmental end users in a country listed in Sec. 740.20(c)(1)
are authorized through License Exception STA under Sec. 740.20(c)(1)
so long as the item at issue at the time of export, reexport, or
transfer (in-country) is ultimately destined for end use by the armed
forces, police, paramilitary, law enforcement, customs, correctional,
fire, and search and rescue agencies of a government of one of the
Sec. 740.20(c)(1) countries or by the United States Government, or is
for the ``development'' or ``production'' of an item for use by one of
those agencies of those governments or a person in the United States;
or
(F) License Exception BAG (Sec. 740.14).
* * * * *
3. Amend section 740.9 by adding paragraphs (a)(3)(i)(B)(5) through
(7) and (a)(3)(v) to read as follows:
Sec. 740.9 Temporary imports, exports, and reexports (TMP).
* * * * *
(a) * * *
(3) * * *
(i) * * *
(B) * * *
(5) Body armor classified under ECCN 1A005 exported or reexported
in accordance with paragraph (a)(2)(i) of this section;
(6) Body armor classified under ECCN 1A613.d exported in accordance
with paragraph (a)(3)(v)(A) of this section, so long as the final
destination is not a country listed in Sec. 740.2(a)(12); and
(7) Body armor classified under ECCN 1A613.d exported to Iraq in
accordance with paragraph (a)(3)(v)(B) of this section.
* * * * *
(v) Restrictions specific to the export of body armor classified
under ECCN 1A613.d. (A) Exports to countries not identified in Sec.
740.2(a)(12). U.S. persons may temporarily export one set of body armor
classified under ECCN 1A613.d to countries not identified in Sec.
740.2(a)(12), provided that:
(1) A declaration by the U.S. person and an inspection by a customs
officer are made;
(2) The body armor is with the U.S. person's baggage or effects,
whether accompanied or unaccompanied (but not mailed); and
(3) The body armor is for that person's exclusive use and not for
reexport or other transfer of ownership.
(B) Exports to Afghanistan or Iraq. U.S. persons may temporarily
export one set of body armor classified under ECCN 1A613.d to
Afghanistan or Iraq, provided that:
(1) A declaration by the U.S. person and an inspection by a customs
officer are made;
(2) The body armor is with the U.S. person's baggage or effects,
whether accompanied or unaccompanied (but not mailed);
(3) The body armor is for that person's exclusive use and not for
reexport or other transfer of ownership; and
(4) For temporary exports to Iraq, the U.S. person utilizing the
license exception is either a person affiliated with the U.S.
Government traveling on official business or is a person not affiliated
with the U.S. Government but traveling to Iraq under a direct
authorization by the Government of Iraq and engaging in humanitarian
activities for, on behalf of, or at the request of the Government of
Iraq.
* * * * *
4. Amend section 740.14 by adding paragraph (h) to read as follows:
Sec. 740.14 Baggage (BAG).
* * * * *
(h) Special provisions: body armor controlled under ECCN 1A613.d.
(1) Exports to countries not identified in Sec. 740.2(a)(12). U.S.
persons may temporarily export one set of body armor classified under
ECCN 1A613.d to countries not identified in Sec. 740.2(a)(12) provided
that:
(i) A declaration by the U.S. person and an inspection by a customs
officer are made;
(ii) The body armor is with the U.S. person's baggage or effects,
whether accompanied or unaccompanied (but not mailed); and
(iii) The body armor is for that person's exclusive use and not for
reexport or other transfer of ownership.
(2) Exports to Afghanistan or Iraq. U.S. persons may temporarily
export one set of body armor classified under ECCN 1A613.d to
Afghanistan or Iraq provided that:
(i) A declaration by the U.S. person and an inspection by a customs
officer are made;
(ii) The body armor is with the U.S. person's baggage or effects,
whether accompanied or unaccompanied (but not mailed);
(iii) The body armor is for that person's exclusive use and not for
reexport or other transfer of ownership; and
(iv) For temporary exports to Iraq only, the U.S. person utilizing
this license exception is either a person employed by or under contract
to the U.S. Government traveling on official business or is a person
not employed by or under contract to the U.S. Government but traveling
to Iraq under a direct authorization by the Government of Iraq and
engaging in humanitarian activities for, on behalf of, or at the
request of the Government of Iraq.
Note to paragraph (h): Body armor controlled under ECCN 1A005 is
eligible for this License Exception under paragraph (b) of this
section.
PART 742--[AMENDED]
5. The authority citation for 15 CFR part 742 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22
U.S.C. 7210; Sec 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 43
FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR,
1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222,
66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination
2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August
12, 2011, 76 FR 50661 (August 16, 2011); Notice of November 9, 2011,
76 FR 70319 (November 10, 2011).
6. Amend section 742.6 by revising paragraph (a)(1) to read as
follows:
Sec. 742.6 Regional stability.
(a) * * *
(1) RS Column 1 License Requirements in General. As indicated in
the CCL and in RS column 1 of the Commerce Country Chart (see
Supplement No. 1 to part 738 of the EAR), a license is required to all
destinations, except Canada, for items described on the CCL under ECCNs
0A606 (except 0A606.b and .y); 0A614
[[Page 33696]]
(except 0A614.y); 0A617 (except 0A617.y); 0B606 (except 0B606.y); 0B614
(except 0B614.y); 0B617 (except 0B617.y); 0C606 (except 0C606.y); 0C617
(except 0C617.y); 0D606 (except 0D606.y); 0D614 (except 0D614.y); 0D617
(except 0D617.y); 0E606 (except 0E606.y); 0E614 (except 0E614.y); 0E617
(except 0E617.y); 1A613 (except 1A613.y); 1B608 (except 1B608.y); 1B613
(except 1B613.y); 1C608; 1D608 (except 1D608.y); 1D613 (except
1D613.y); 1E608 (except 1E608.y); 1E613 (except 1E613.y); 3A982; 3D982;
3E982; 6A002.a.1, a.2, a.3, .c, or .e; 6A003.b.3, and b.4.a; 6A008.j.1;
6A998.b; 6D001 (only ``software'' for the ``development'' or
``production'' of items in 6A002.a.1, a.2, a.3, .c; 6A003.b.3 and .b.4;
or 6A008.j.1); 6D002 (only ``software'' for the ``use'' of items in
6A002.a.1, a.2, a.3, .c; 6A003.b.3 and .b.4; or 6A008.j.1); 6D003.c;
6D991 (only ``software'' for the ``development,'' ``production,'' or
``use'' of equipment classified under 6A002.e or 6A998.b); 6E001 (only
``technology'' for ``development'' of items in 6A002.a.1, a.2, a.3
(except 6A002.a.3.d.2.a and 6A002.a.3.e for lead selenide focal plane
arrays), and .c or .e, 6A003.b.3 and b.4, or 6A008.j.1); 6E002 (only
``technology'' for ``production'' of items in 6A002.a.1, a.2, a.3, .c,
or .e, 6A003.b.3 or b.4, or 6A008.j.1); 6E991 (only ``technology'' for
the ``development,'' ``production,'' or ``use'' of equipment classified
under 6A998.b); 6D994; 7A994 (only QRS11-00100-100/101 and QRS11-0050-
443/569 Micromachined Angular Rate Sensors); 7D001 (only ``software''
for ``development'' or ``production'' of items in 7A001, 7A002, or
7A003); 7E001 (only ``technology'' for the ``development'' of inertial
navigation systems, inertial equipment, and specially designed
components therefor for civil aircraft); 7E002 (only ``technology'' for
the ``production'' of inertial navigation systems, inertial equipment,
and specially designed components therefor for civil aircraft); 7E101
(only ``technology'' for the ``use'' of inertial navigation systems,
inertial equipment, and specially designed components for civil
aircraft); 8A609 (except 8A609.y); 8A620 (except 8A620.y); 8B609
(except 8B609.y); 8B620 (except 8B620.y); 8C609 (except 8C609.y); 8D609
(except software for the ``development,'' ``production,'' operation, or
maintenance of commodities controlled by 8A609.y, 8B609.y, or 8C609.y);
8D620 (except software for the ``development,'' ``production,''
operation, or maintenance of commodities controlled by 8A620.y or
8B620.y); 8E609 (except ``technology'' for the ``development,''
``production,'' operation, installation, maintenance, repair, overhaul,
or refurbishment of commodities controlled by 8A609.y, 8B609.y, or
8C609.y); 8E620 (except ``technology'' for the ``development,''
``production,'' operation, installation, maintenance, repair, overhaul,
or refurbishment of commodities controlled by 8A620.y or 8B620.y);
9A610 (except 9A610.y); 9A619 (except 9A619.y); 9B610 (except 9B610.y);
9B619 (except 9B619.y); 9C610 (except 9C610.y); 9C619 (except 9C619.y);
9D610 (except software for the ``development,'' ``production,''
operation, installation, maintenance, repair, or overhaul of
commodities controlled by 9A610.y, 9B610.y, or 9C610.y); 9D619 (except
software for the ``development,'' ``production,'' operation, or
maintenance of commodities controlled by 9A619.y, 9B619.y, or 9C619.y);
9E610 (except ``technology'' for the ``development,'' ``production,''
operation, installation, maintenance, repair, overhaul, or
refurbishment of commodities controlled by ECCN 9A610.y, 9B610.y, or
9C610.y); and 9E619 (except ``technology'' for the ``development,''
``production'' operation, installation, maintenance, repair, overhaul,
or refurbishment of commodities controlled by ECCN 9A619.y, 9B619.y, or
9C619.y).
* * * * *
PART 774--[AMENDED]
7. The authority citation for part 774 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et
seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42
U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of August 12, 2011, 76 FR 50661 (August 16, 2011).
8. In Supplement No. 1 to part 774, Category 0, amend Export
Control Classification Number 0A018 by:
a. Revising the ``Related Controls'' paragraph in the List of Items
Controlled section to read below;
b. Removing and reserving ``Items'' paragraph (d) in the List of
Items Controlled section; and
c. Removing the ``Note'' to ``Items'' paragraph (d) in the List of
Items Controlled section.
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
0A018 Items on the Wassenaar Munitions List.
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: (1) See also 0A979, 0A988, and 22 CFR 121.1
Categories I(a), III(b-d), and X(a). (2) See 0A617.a for items formerly
controlled by ECCN 0A018.a. (3) See 1A613.c for military helmets
providing less than NIJ Type IV protection and 1A613.y.1 for
conventional military steel helmets that, immediately prior to [Insert
effective date of final rule], were classified under 0A018.d and 0A988.
(4) See 22 CFR 121.1 Category X(a)(5) and (a)(6) for controls on other
military helmets.
* * * * *
9. In Supplement No. 1 to part 774, Category 0, amend Export
Control Classification Number 0A988 by revising to read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
0A988 Conventional military steel helmets as described by 0A018.d.1.;
and machetes.
No items currently are in this ECCN. See ECCN 1A613.y.1 for
conventional steel helmets that, immediately prior to [Insert effective
date of final rule], were classified under 0A988. Machetes, which were
classified under ECCN 0A988 prior to [Insert effective date of final
rule], are designated as EAR99 items.
10. In Supplement No. 1 to part 774, Category 1, amend Export
Control Classification Number 1A005 by:
a. Revising the Related Controls paragraph; and
b. Revising paragraphs a. and b. in the Items paragraph of the List
of Items Controlled section, to read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
1A005 Body armor and components therefor, as follows (see List of Items
Controlled).
* * * * *
List of Items Controlled
Unit: * * *
Related Controls: (1) Bulletproof and bullet resistant vests (body
armor) providing NIJ Type IV protection or greater are subject to the
ITAR (see 22 CFR 121.1 Category X(a)). (2) Soft body armor and
protective garments manufactured to military standards or
specifications that provide protection
[[Page 33697]]
equal to NIJ level III or less are classified under ECCN 1A613.d.1. (3)
Hard armor plates providing NIJ level III ballistic protection are
classified under ECCN 1A613.d.2. (4) Police helmets and shields are
classified under ECCN 0A979. (5) Other personal protective
``equipment'' ``specially designed'' for military applications not
controlled by the USML or elsewhere in the CCL are classified under
ECCN 1A613.e. (6) For ``fibrous or filamentary materials'' used in the
manufacture of body armor, see ECCN 1C010. (7) See Sec. 746.8(b)(1)
for additional licensing requirements concerning this entry.
* * * * *
Items:
a. Soft body armor not manufactured to military standards or
specifications that provide ballistic protection equal to or less than
NIJ level III (NIJ 0101.06, July 2008).
b. Hard body armor plates that provide ballistic protection less
than NIJ level III (NIJ 0101.06, July 2008).
* * * * *
11. In Supplement No. 1 to part 774, Category 1, add a new Export
Control Classification Number 1A613 between ECCNs 1A290 and 1A984 to
read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
1A613 Armored and protective ``equipment'' and related commodities, as
follows:
License Requirements
Reason for Control: NS, RS, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to entire entry except NS Column 1.
1A613.y.
RS applies to entire entry except RS Column 1.
1A613.y.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1500.
GBS: N/A.
CIV: N/A.
STA: Paragraph (c)(1) of License Exception STA (Sec. 740.20(c)(1))
may be used for items in 1A613 without the need for a determination
described in Sec. 740.20(g). Paragraph (c)(2) of License Exception STA
(Sec. 740.20(c)(2)) of the EAR may not be used for any item in 1A613.
List of Items Controlled
Unit: End items in number; parts, component, accessories and
attachments in $ value
Related Controls: (1) Defense articles, such as materials made from
classified information, that are controlled by USML Category X or XIII
of the ITAR, and technical data (including software) directly related
thereto, are subject to the ITAR. (2) See ECCN 0A919 for foreign-made
``military commodities'' that incorporate more than 10% U.S.-origin
``600 series'' items.
Related Definitions: References to ``NIJ Type'' protection are to
the National Institute of Justice Classification guide at NIJ Standard-
0101.06, Ballistic Resistance of Body Armor, and NIJ Standard 0108.01,
Ballistic Resistant Protective Materials.
Items:
a. Armored plate ``specially designed'' for military use and not
controlled by the USML.
Note: For controls on body armor plates, see ECCN 1A613.d.2 and
USML Category X(a)(1).
b. Shelters ``specially designed'' to:
b.1. Provide ballistic protection for military systems, or
b.2. Protect against nuclear, biological, or chemical
contamination.
c. Military helmets and helmet shells providing less than NIJ Type
IV protection.
Note 1: See ECCN 0A979 for controls on police helmets and ECCN
1A613.y.1 for military steel helmets.
Note 2: See USML Category X(a)(5) and (a)(6) for controls on
other military helmets.
d. Body armor and protective garments, as follows:
d.1. 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); or
d.2. Hard body armor plates that provide ballistic protection equal
to NIJ level III (NIJ 0101.06, July 2008).
Note: See ECCN 1A005 for controls on soft body armor and
protective garments not manufactured to military standards or
specifications and hard body armor plates providing less than NIJ
level III protection. For body armor providing NIJ Type IV
protection or greater, see USML Category X(a)(1).
e. Other personal protective ``equipment'' ``specially designed''
for military applications not controlled by the USML or elsewhere in
the CCL.
f. to w. [RESERVED]
x. ``Parts,'' ``components,'' ``accessories and attachments'' that
are ``specially designed'' for a commodity controlled by ECCN 1A613 and
not controlled elsewhere in the USML or CCL.
Note: Forgings, castings, and other unfinished products, such as
extrusions and machined bodies, that have reached a stage in
manufacturing where they are clearly identifiable by material
composition, geometry, or function as commodities controlled by ECCN
1A613.x are controlled by ECCN 1A613.x.
y. Specific ``parts,'' ``components,'' ``accessories and
attachments'' ``specially designed'' for a commodity subject to control
in this ECCN and not elsewhere specified in the CCL, as follows:
y.1 Conventional military steel helmets.
y.2 to y.98 [RESERVED]
y.99. Commodities not identified on the CCL that (i) have been
determined, in an applicable commodity jurisdiction determination
issued by the U.S. Department of State, to be subject to the EAR and
(ii) would otherwise be controlled elsewhere in ECCN 1A613.
12. In Supplement No. 1 to part 774, Category 1, add a new Export
Control Classification Number 1B613 between ECCN 1B233 and 1B999 to
read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
1B613 Test, inspection, and ``production'' ``equipment'' and related
commodities ``specially designed'' for the ``development'' or
``production'' of commodities controlled by ECCN 1A613 or USML Category
X.
License Requirements
Reason for Control: NS, RS, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to entire entry except NS Column 1.
1B613.y.
RS applies to entire entry except RS Column 1.
1B613.y.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1500.
GBS: N/A.
CIV: N/A.
STA: Paragraph (c)(1) of License Exception STA (Sec. 740.20(c)(1))
may be used for items in 1B613 without the need for a determination
described in Sec. 740.20(g). Paragraph (c)(2) of License Exception STA
(Sec. 740.20(c)(2)) of the EAR may not be used for any item in 1B613.
List of Items Controlled
Unit: N/A.
Related Controls:
Related Definitions: N/A.
Items:
a. Test, inspection, and ``production'' ``equipment,'' not
controlled by USML
[[Page 33698]]
Category X(c), that is ``specially designed'' for the ``production'' or
``development'' of commodities controlled by ECCN 1A613 or USML
Category X.
b. Plasma pressure compaction (P2C) equipment ``specially
designed'' for the production of ceramic or composite body armor plates
controlled by ECCN 1A613 or USML Category X.
c. to x. [RESERVED]
y. Specific test, inspection, and ``production'' ``equipment''
``specially designed'' for the ``production'' or ``development'' of
commodities controlled by ECCN 1A613 or USML Category X, as follows:
y.1 to y.98 [RESERVED]
y.99 Commodities not identified on the CCL that (i) have been
determined, in an applicable commodity jurisdiction determination
issued by the U.S. Department of State, to be subject to the EAR and
(ii) would otherwise be controlled elsewhere in ECCN 1B613.
13. In Supplement No. 1 to part 774, Category 1, add a new Export
Control Classification Number 1D613 between ECCN 1D390 and 1D993 to
read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
1D613 ``Software'' ``specially designed'' for the ``development,''
``production,'' operation, installation, maintenance, repair, overhaul
or refurbishing of commodities controlled by 1A613 or 1B613, as follows
(see list of items controlled).
License Requirements
Reason for Control: NS, RS, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to entire entry except NS Column 1.
1D613.y.
RS applies to entire entry except RS Column 1.
1D613.y.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A.
TSR: N/A.
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2))
of the EAR may not be used for any ``software'' in 1D613.
List of Items Controlled
Unit: $ value.
Related Controls: ``Software'' directly related to articles
controlled by USML Category X is subject to the control of USML
paragraph X(e) of the ITAR. See ECCN 0A919 for foreign made ``military
commodities'' that incorporate more than 10% U.S.-origin ``600 series''
items.
Related Definitions: N/A.
Items:
a. ``Software'' (other than ``software'' controlled in paragraph .y
of this entry) ``specially designed'' for the ``development,''
``production,'' operation or maintenance of commodities controlled by
ECCNs 1A613 (except 1A613.y) or 1B613 (except 1B613.y).
b. to x. [RESERVED]
y. Specific ``software'' ``specially designed'' for the
``production,'' ``development,'' or operation or maintenance of
commodities controlled by ECCNs 1A613 or 1B613, as follows:
y.1. Specific ``software'' ``specially designed'' for the
``production,'' ``development,'' operation or maintenance of
commodities controlled by ECCNs 1A613.y or 1B613.y.
y.2 through y.98 [RESERVED]
y.99 ``Software'' not identified on the CCL that (i) has been
determined to be subject to the EAR in a commodity jurisdiction
determination issued by the U.S. Department of State and (ii) would
otherwise be controlled elsewhere in ECCN 1D613.
14. In Supplement No. 1 to part 774, Category 1, add a new Export
Control Classification Number 1E613 between ECCN 1E355 and 1E994 to
read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
1E613 ``Technology'' ``required'' for the ``development,''
``production,'' operation, installation, maintenance, repair, overhaul
or refurbishing of commodities controlled by 1A613 or 1B613 or
``software'' controlled by 1D613, as follows (see list of items
controlled).
License Requirements
Reason for Control: NS, RS, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to entire entry except NS Column 1.
1E613.y.
RS applies to entire entry except RS Column 1.
1E613.y.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A.
TSR: N/A.
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2))
of the EAR may not be used for any ``technology'' in 1E613.
List of Items Controlled
Unit: $ value.
Related Controls: Technical data directly related to articles
controlled by USML Category X is subject to the control of USML
paragraph X(e) of the ITAR. See ECCN 0A919 for foreign made ``military
commodities'' that incorporate more than 10% U.S.-origin ``600 series''
items.
Related Definitions: N/A
Items:
a. ``Technology'' (other than ``technology'' controlled by
paragraph .y of this entry) ``required'' for the ``development,''
``production,'' operation, installation, maintenance, repair, overhaul,
or refurbishing of commodities or ``software'' controlled by ECCNs
1A613 (except 1A613.y), 1B613 (except 1B613.y), or 1D613 (except
1D613.y).
b. through x. [RESERVED]
y. Specific ``technology'' ``required'' for the ``production,''
``development,'' operation, installation, maintenance, repair, or
overhaul of commodities or software controlled by ECCNs 1A613, 1B613,
or 1D613, as follows:
y.1. Specific ``technology'' ``required'' for the ``production,''
``development,'' operation, installation, maintenance, repair or
overhaul of commodities or software controlled by ECCNs 1A613.y,
1B613.y, or 1D613.y.
y.2. through y.98 [RESERVED]
y.99. ``Technology'' that would otherwise be controlled elsewhere
in this entry but that (i) has been determined to be subject to the EAR
in a commodity jurisdiction determination issued by the U.S. Department
of State and (ii) is not otherwise identified elsewhere on the CCL.
Dated: May 30, 2012.
Kevin J. Wolf,
Assistant Secretary of Commerce for Export Administration.
[FR Doc. 2012-13745 Filed 6-6-12; 8:45 am]
BILLING CODE 3510-33-P
