Control of Firearms, Guns, Ammunition and Related Articles the President Determines No Longer Warrant Control Under the United States Munitions List (USML), 4136-4188 [2020-00573]
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Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Rules and Regulations
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 732, 734, 736, 740, 742,
743, 744, 746, 748, 758, 762, 772, and
774
[Docket No. 191107–0079]
RIN 0694–AF47
Control of Firearms, Guns,
Ammunition and Related Articles the
President Determines No Longer
Warrant Control Under the United
States Munitions List (USML)
Bureau of Industry and
Security, Department of Commerce.
ACTION: Final rule.
AGENCY:
On May 24, 2018, the
Department of Commerce published a
proposed rule in conjunction with a
Department of State proposed rule to
revise Categories I (firearms, close
assault weapons and combat shotguns),
II (guns and armaments), and III
(ammunition/ordnance) of the USML
and transfer items that no longer
warrant control on the USML to the
Commerce Control List (CCL). This final
rule responds to and adopts changes
based on the comments received on the
Commerce proposed rule and is being
published simultaneously with a final
rule by the Department of State that will
revise Categories I, II, and III of the
USML to describe more precisely the
articles warranting continued control on
that list. These revisions complete the
initial review of the USML that the
Department of State began in 2011 and
the conforming changes made to the
EAR to control these items not
warranting control under the
International Traffic in Arms
Regulations (ITAR).
DATES: This rule is effective March 9,
2020.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Steven Clagett, Office of
Nonproliferation Controls and Treaty
Compliance, Nuclear and Missile
Technology Controls Division, tel. (202)
482–1641 or email steven.clagett@
bis.doc.gov.
SUPPLEMENTARY INFORMATION:
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Background
On May 24, 2018, the Department of
Commerce (referred to henceforth as
‘‘the Department’’) published the
proposed rule, Control of Firearms,
Guns, Ammunition and Related Articles
the President Determines No Longer
Warrant Control Under the United
States Munitions List (USML) (83 FR
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24166) (referred to henceforth as the
‘‘Commerce May 24 rule’’) in
conjunction with a Department of State
proposed rule to revise Categories I, II,
and III of the USML (referred to
henceforth as the ‘‘State May 24 rule’’).
The Department of Commerce is issuing
this final rule that describes how
articles the President determines no
longer warrant control under USML
Category I—Firearms, Close Assault
Weapons and Combat Shotguns;
Category II—Guns and Armament; and
Category III—Ammunition/Ordnance
will be controlled on the CCL of the
Export Administration Regulations
(EAR) and is being published in
conjunction with a final rule on
Categories I, II, and III from the
Department of State, Directorate of
Defense Trade Controls (DDTC),
completing the initial review of the
USML that began in 2011 and making
conforming changes to the EAR to
control these items on the Commerce
Control List (CCL).
The changes described in this final
rule and in the State Department’s
companion final rule on Categories I, II,
and III of the USML are based on a
thorough interagency review of those
categories, after which the Department
of State concluded that the items added
to the CCL in this final rule do not
provide a critical military or intelligence
advantage to the United States and, in
the case of firearms, do not have an
inherently military function. The
Departments of Defense, State, and
Commerce have, therefore, determined
that the EAR is the appropriate source
of authority to control these firearms,
ammunition, and other articles
previously controlled under Categories
I–III of the USML. There is a significant
worldwide market for items in
connection with civil and recreational
activities such as hunting,
marksmanship, competitive shooting,
and other non-military activities.
This final rule does not deregulate the
transferred items. BIS will require
authorization to export or reexport to
any country a firearm or other weapon
that is being moved from the USML to
the CCL by this final rule, including
releases of related technology and
software to foreign persons in the
United States. Rather than decontrolling
firearms and other items, in publishing
this final rule, BIS, working with the
Departments of Defense and State, is
continuing to ensure that appropriate
regulatory oversight will be exercised
over exports, reexports, and transfers
(in- country) of these items while
reducing the procedural burdens and
costs of export compliance on the U.S.
firearms industry and allowing the U.S.
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Government to make better use of its
export control resources.
Certain software and technology
capable of producing firearms when
posted on the internet under specified
circumstances is being controlled under
this final rule in order to protect
important U.S. national security and
foreign policy interests; however,
communication of ideas regarding such
software or technology is freely
permitted. Moreover, nothing in this
final rule prohibits U.S. persons within
the United States from acquiring
firearms of any type—there are other
laws and regulations that control the
acquisition of firearms in the U.S.
Structure of 600 Series
BIS has created Export Control
Classification Numbers (ECCNs),
referred to as the ‘‘600 series,’’ to control
items that will be removed from the
USML and controlled under the CCL, or
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.
These ECCNs are referred to as the
‘‘600 series’’ because the third character
in each of the new ECCNs is ‘‘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. 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. Category II of the
USML and category ML2 of the WAML
cover large caliber guns and other
military weapons such as: Howitzers,
cannon, mortars, anti-tank weapons,
projectile launchers, military flame
throwers, and recoilless rifles.
Items that are currently controlled in
Category II of the USML will be
controlled on the CCL under four new
‘‘600 series’’ ECCNs. Placement of the
items currently in USML Category II
into the CCL’s 600 series is consistent
with existing BIS practice of using 600
series ECCNs to control items of a
military nature.
Items currently controlled in
Categories I and III of the USML will be
controlled in new ECCNs in which the
third character is a ‘‘5.’’ These items are
not appropriate for 600 series control
because, for the most part, they have
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civil, recreational, law enforcement, or
other non-military applications. As with
600 series ECCNs, the first character
represents the CCL category, the second
character represents the product group,
and the final two characters represent
the WAML category that covers items
that are the same or similar to items in
the ECCN.
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Relation to USMIL
Pursuant to section 38(a)(1) of the
Arms Export Control Act (AECA), all
defense articles controlled for export or
import, or that are subject to brokering
controls, are part of the USML under the
AECA. All references to the USML in
this final rule are to the list of defense
articles that are controlled for purposes
of export, temporary import, or
brokering pursuant to the ITAR, 22 CFR
parts 120 through 130, and not to the
list of AECA defense articles on the
United States Munitions Import List
(USMIL) that are controlled by the
Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF) for purposes of
permanent import under its regulations
at 27 CFR part 447. All defense articles
described in the USMIL or the USML
are subject to the brokering controls
administered by the U.S. Department of
State in part 129 of the ITAR. The
transfer of defense articles from the
ITAR’s USML to the EAR’s CCL for
purposes of export controls does not
affect the list of defense articles
controlled on the USMIL under section
38 of the AECA, 22 U.S.C. 2778, for
purposes of permanent import or
brokering controls.
Overview
For the Commerce May 24 rule, BIS
received nearly 3,000 comments and
posted 1,540 unique comments and 135
bulk comments, which were
representative of issues raised by 1,256
commenters. BIS appreciates the
constructive comments it received to
improve the Commerce May 24 rule and
incorporated changes where
appropriate. BIS also received many
comments that were outside the scope
of the Commerce May 24 rule and thus
that are not addressed here. The
Commerce May 24 rule and this final
rule address U.S. export controls. BIS
does not regulate the domestic sale or
use of firearms in the United States, or
the transfer of firearms or related
software or technology between U.S.
persons within the United States.
BIS reviews the comments it received
in the preamble to this final rule in
three parts. First, BIS describes the
comments of general applicability.
Then, it describes the comments
received on specific proposed
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provisions included in the Commerce
May 24 rule. Finally, this final rule
describes the changes being adopted
from the proposed rule and revisions
being made to what was proposed in the
Commerce May 24 rule. As this final
rule is being published in conjunction
with the companion Department of State
rule, the preamble may also reference
the State Department’s analysis related
to these changes.
Comments of General Applicability
USML Review Criteria
Comment 1: Multiple commenters
took issue with the proposed transfer
from the USML to the CCL of weapons
that the Department of State
determined, in conjunction with its
interagency partners (including BIS), are
not inherently for military end use,
citing the fact that military and law
enforcement personnel regularly use
them. Many commenters asserted that
being commercially available is not a
good indicator of whether these
weapons merit the oversight of the
Department of State. In addition, several
commenters disputed that the U.S.
market should be the basis for assessing
the commercial availability of firearms,
as this is not the market to which the
proposed rule would be directed. Many
commenters also asserted that semiautomatic weapons should not be seen
as just another product to be promoted,
bought, and sold like washing machines
or any other consumer product.
Commenters supportive of the rule,
however, agreed that export controls of
commercial firearms and ammunition
which are not inherently military, have
no critical military or intelligence
advantage, and have predominant
commercial applications correctly
belong under the EAR.
BIS response: The fact that a military
uses a specific piece of hardware is not
a dispositive factor when determining
whether it has an inherently military
function. Given that the majority of the
items referenced in these comments that
will transfer to the CCL through this
final rule are widely available in retail
outlets in the United States and abroad,
and widely utilized by the general
public in the United States, it is
reasonable for the Department of State
to determine that they do not serve an
inherently military function, absent
specific characteristics that provide
military users with significantly
enhanced utility, such as automatic
weapons, sound suppressors, and high
capacity magazines.
With respect to revisions of Categories
I–III, the review was focused on
identifying the defense articles that are
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now controlled on the USML that are
either (i) inherently military and
otherwise warrant control on the USML
or (ii) if of a type common to nonmilitary firearms applications, possess
parameters or characteristics that
provide a critical military or intelligence
advantage to the United States. If a
defense article satisfies one or both of
those criteria, it remained on the USML.
For example, while the U.S. military
supplies some of its service members
with sidearms for military use, a
sidearm also has many uses outside of
the military, such that its function is not
inherently military and therefore a
sidearm does not warrant control on the
USML. Alternatively, squad automatic
weapons do not generally have such
non-military uses and will remain
controlled on the USML. Any single
non-military use, however, does not
negate such a weapon’s inherently
military function.
BIS notes that the scope of items
‘‘subject to the EAR,’’ includes basic
commercial items, dual-use items, and
military items not warranting ITAR
control. The EAR control structure is
well-suited to control this range of
items, and BIS has particular historical
expertise in controlling dual-use items.
The Departments of State and
Commerce also recognize that there are
variations in commercial availability of
firearms, but these variations do not
overcome the Department of State’s
assessment that the subject firearms do
not provide a critical military or
intelligence advantage such that they
warrant control under the ITAR. In
addition, all exports of firearms are
subject to the laws of the importing
country, and the U.S. Government does
not issue licenses for exporters to ship
firearms to countries where the end use
is illegal.
Comment 2: Many commenters
asserted that many semi-automatic rifles
are easily converted to fully automatic
firearms and for this reason semiautomatic firearms and the parts and
components needed to do this should be
retained on the USML.
BIS response: BIS agrees that certain
components may be used to convert a
semi-automatic firearm into a fully
automatic firearm. A fully automatic
weapon is subject to the ITAR. The
component(s) needed to turn a semiautomatic into a fully automatic are also
retained on the USML. Therefore, the
export of the component needed to turn
the semi-automatic into a fully
automatic would require an ITAR
license or other approval. In addition, if
the ITAR component was incorporated
into the semi-automatic firearm, the
now automatic weapon would be
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regulated by the ITAR as an automatic
weapon and because of the inclusion of
the ITAR component within the firearm.
To address exports of semi-automatic
firearms intended to be made automatic
with a foreign-origin component that
was not subject to the ITAR, BIS as a
result of this comment has revised
§ 740.2 in this final rule to restrict the
use of EAR license exceptions involving
these components or parts, as described
below in the regulatory changes made in
this final rule.
Commerce’s Mission and the Regulation
of Firearms
Comment 3: Many commenters
expressed concerns about the role and
function of BIS regarding the items that
are transferred from the USML to the
CCL. Some commenters expressed
concerns that BIS has neither the
appropriate resources nor the
appropriate expertise or mission to
process associated applications for
exports of firearms. Several commenters
asserted BIS is not set up for the proper
vetting of those parties in export
transactions to ensure that they are not
acting as middlemen for terrorists or
other subversive entities that will use
them against our troops or our allies or,
even worse, civilian populations.
Several other commenters asserted that
BIS’s enforcement office, with no staff
in Latin America, Africa, or many other
parts of the world, is not equipped to
take the same level of preventive
measures for end-use controls. Many
commenters asserted that the transfer of
these firearms to Commerce control is
inconsistent with the statutory
framework enacted by Congress to
regulate the export of arms.
BIS response: The mission of BIS is to
advance U.S. national security, foreign
policy, and economic objectives by
ensuring an effective export control and
treaty compliance system and
promoting continued U.S. strategic
technology leadership. BIS controls
many items on the CCL that implement
U.S. commitments to the Wassenaar
Arrangement and other multilateral
regimes related to national security.
These controls are supplemented by
U.S. controls on additional items as well
as broad catch-all controls targeting end
uses and end users of concern.
BIS licenses are subject to an
interagency review process that
includes review by the Departments of
State, Defense, and Energy, which
allows BIS to supplement its technical
expertise with that of its interagency
partners on matters of national security,
foreign policy, regional stability, and
national defense. The interagency
review process for Commerce licenses is
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specified in Executive Order 12981 and
in part 750 of the EAR. The wellestablished and transparent interagency
review process (including specifying the
timelines for each step of the review
process) ensures that a variety of
perspectives and expertise from these
U.S. Government agencies are able to
inform the Commerce license review
process to ensure only those exports
that are consistent with U.S. export
control interests will be approved. BIS
also emphasizes that it has flexibility in
how it approves licenses and can
include additional safeguards as may be
warranted. The interagency review
process also helps to inform how
licenses are approved.
BIS has decades of experience
licensing firearms and related items that
has prepared it well for licensing these
additional firearms and related items
that this final rule moves to the CCL.
BIS is also prepared because of its
experiences with licensing other items
that have moved from the USML to the
CCL, including such sensitive items as
components ‘‘specially designed’’ for
use in military aircraft, and certain
‘‘spacecraft,’’ including satellites, and
space vehicles. In addition, BIS
estimates that existing staff will be able
to manage the anticipated increased
workload of approximately 6,000
additional license applications.
In addition to its experience in the
licensing arena, BIS has substantial law
enforcement experience. BIS’s Export
Enforcement (EE) is a dedicated law
enforcement organization recognized for
its expertise, professionalism, integrity,
and accomplishments. EE accomplishes
its mission through preventive and
investigative enforcement activities and
then, pursuing appropriate criminal and
administrative sanctions against export
violators. EE works with the Department
of Justice to impose criminal sanctions
for violations, including incarceration
and fines, and with the Office of Chief
Counsel for Industry and Security to
impose civil fines and denials of export
privileges. EE also works closely with
other federal law enforcement agencies,
including the Federal Bureau of
Investigation and the Department of
Homeland Security, when conducting
investigations or preventative actions.
EE has Export Control Officers (ECOs)
in offices that cover different regions of
the world and are not limited to the
specific country in which the EE
personnel are located. The ECOs are
supplemented by other personnel who
engage in enforcement-related activities.
For example, BIS regularly sends BIS
enforcement agents on temporary duty
assignments overseas under the Sentinel
Program where they go to areas not
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easily covered by existing ECOs. BIS
also works with certain foreign
governments on enforcement as well as
transshipment issues. In conducting
pre-license checks or post shipment
verifications, BIS also uses the resources
the Department has with various
Foreign Commercial Service (FCS)
officers that are located at embassies
and consulates around the world. Upon
BIS’s request, Department of State
Foreign Service Officers at embassies
and consulates often assist BIS with prelicense checks when the FCS is not
present.
BIS has resources it and the other
agencies use to identify parties of
concern to transactions, not all of which
are public. The information BIS and
other agencies use to vet licenses and
transactions is not static and is being
continuously improved to better target
and exclude entities or individuals that
should not be receiving items subject to
the EAR.
BIS also notes that this final rule
imposes a requirement to file Electronic
Export Information (EEI) in Automated
Export System (AES) for nearly all
exports of firearms being moved to the
CCL. The EAR includes robust
recordkeeping requirements that have
been enhanced further for the firearms
being moved to the CCL. BIS can and
does on a regular basis contact parties
to a transaction to request all records
related to a particular export or reexport
or series of exports or reexports. These
record requests may also involve inperson visits from representatives of EE.
BIS does not agree that the controls
will be inconsistent with the statutory
framework enacted by Congress to
regulate the export of firearms. The
firearms that warrant ITAR control will
continue to be subject to the AECA and
its requirements as applicable. The
firearms not warranting ITAR control
that this final rule will control under the
EAR will be subject to the Export
Control Reform Act of 2018 (ECRA) (50
U.S.C. 4801–4852). For example, BIS
has regulated long barrel shotguns (a
type of firearm) under the statutory
framework enacted by Congress in the
earlier Export Administration Act (EAA)
and now under ECRA. The same will be
true for the firearms that this final rule
adds to the CCL. Congress stated that
one of the purposes of ECRA is ‘‘[t]o
control the release of items for use in—
(i) the proliferation of . . . conventional
weapons; (ii) the acquisition of
destabilizing numbers or types of
conventional weapons; (iii) acts of
terrorism . . .’’ 50 U.S.C. 4811(2)(A).
Comment 4: One commenter asserted
that BIS does not have resources to
enforce export controls, even before the
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addition of 30,000 firearms export
licenses as a result of this rule predicted
by the Commerce May 24 rule.
BIS response: BIS clarifies here that
the reference to 30,000 licenses in the
Commerce May 24 rule represented the
increase as a result of the total USML to
CCL review process, not solely the
USML Categories I–III items. The
estimate of 10,000 licenses is the
number of anticipated State licenses
that will be impacted by the transfer to
Commerce in the Commerce May 24
rule. The larger 30,000 number was
included for context for the overall
USML to CCL review process and its
implementation. As noted in the
response to Comment 3 above, BIS
estimates the transfer resulting in
approximately 6,000 license
applications. BIS has invested
considerable effort in assessing the
increased licensing and enforcement
responsibilities that will be incurred
following publication of this final rule
and has determined that it is within its
means and resources to effectively
administer the subject export controls.
The Effect of the Shift in Regulatory
Jurisdiction of Certain Firearms
Comment 5: Several commenters
asserted that reducing regulations on
firearms and ammunition is dangerous.
One commenter asserted that moving
firearms to the CCL where they would
be subject to loosened controls seems
inconsistent with enhancing national
security. Another commenter asserted
that as even the National Rifle
Association (NRA) has acknowledged,
‘‘items on the USML controlled under
ITAR are generally treated more strictly,
whereas regulation under the CCL is
more flexible.’’ Many commenters
asserted that the proposal weakens
controls over semi-automatic assault
weapons including AR–15s and AK–
47s, 50 caliber sniper rifles, and highcapacity ammunition magazines.
BIS response: The EAR control
structure is more flexible and will
reduce the burden on the regulated, but
the items will still be controlled. For
example, the EAR is a more flexible
control structure because it does not
require a purchase order for a license.
This is more efficient and flexible than
the ITAR but does not undermine U.S.
national security. The applicant still
needs to specify the parties to the
license, end use, and items to be
authorized, but not having to present a
purchase order allows a more flexible
licensing arrangement. The ability
under the EAR to create country-based
license exceptions, e.g., License
Exception Strategic Trade Authorization
(STA), is another example. License
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Exception STA will only be available for
the .x parts and components under
0A501, but this is another example of
the more flexible EAR control structure.
In other words, greater flexibility under
the EAR does not mean decontrol.
Further, having the ITAR control
items that are in commercial use and do
not have an inherent military function
does not help promote U.S. national
security, because it takes time and
resources away from the Department of
State that could be better used to focus
on items that do warrant ITAR control.
BIS has decades of experience in
regulating dual-use items, including
long barreled shotguns controlled under
0A984 and certain chemicals and toxins
that have commercial applications, but
are controlled for chemical and
biological weapons reasons, e.g., ricin
and sarin gas. See, e.g., 50 U.S.C.
4811(2)(A)(i) (stating that one of the
policies of ECRA is to control the
proliferation of weapons of mass
destruction). BIS also has a proven track
record for licensing and enforcing the
controls for other items that have moved
from USML to the CCL.
BIS further clarifies that the AK–47
automatic firearm and any other
automatic firearm are retained on the
USML. The semi-automatic firearms this
rule adds to the CCL will require a U.S.
Government authorization for export.
Comment 6: One commenter noted
that according to the State May 24 rule,
‘‘The Department of Commerce
estimates that 4,000 of the 10,000
licenses that were required by the
[State] Department will be eligible for
license exceptions or otherwise not
require a separate license under the
EAR.’’ The commenter noted that the
Commerce May 24 rule clarifies, ‘‘The
other 4,000 applicants may use license
exceptions under the EAR or the ‘‘no
license required’’ designation, so these
applicants would not be required to
submit license applications under the
EAR.’’ The commenter asserted that
‘‘while it recognizes that other forms of
oversight may be available, this
dramatic difference in the number of
licenses raises our concern.’’
BIS response: This comment on the
meaning of the 4,000 Department of
State licenses that will not require a
license under the EAR creates a good
opportunity for BIS to clarify how the
EAR controls are structured. Under the
EAR, an exporter does not have a right
to export. If the EAR does not impose
a license requirement or some other
prohibition, the exporter may proceed
under the No License Required (NLR)
designation. The NLR designation may
be available for certain 0x5zz.y exports,
but otherwise all other exports will
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require a U.S. Government
authorization. Therefore, the reference
to 6,000 being authorized under licenses
and 4,000 under license exceptions and
a small subset as NLR, is not a dramatic
change. When BIS imposes a license
requirement under the EAR, this means
the exporter will need to meet all of the
applicable requirements of a license
exception, or obtain a license from BIS
to proceed with the export. The license
exceptions or portions of license
exceptions that will be available for
these items moved to the CCL, including
some of the new requirements and
limitations added, will be sufficient to
protect U.S. export control interests.
3D Printing of Firearms
Comment 7: Three-dimensional (3D)
printing is a type of additive
manufacturing based on the principle of
combining numerous, extremely thin
layers of a physical material (including
plastics, metals, and even living cells) in
a controlled build process and joining
them to gradually build up a physical,
three-dimensional object. Computer
controlled manufacturing may be either
subtractive or additive. Subtractive
manufacturing includes traditional
manufacturing methods such as turning,
grinding or milling, where metal or
other material is removed from the base
shape to form the final product. For
example, you take a steel block and
remove material until it becomes the
final item. In additive manufacturing,
which is often referred to as 3D printing,
material such as metal or plastic is laid
down in very thin layers one upon the
other fusing together until the final net
shape is achieved. In both instances, the
adding or removing of the material is
controlled by a computer without
human intervention. 3D printers utilize
electronic digital files to process the
materials into a physical object, and
these files can be distributed over the
internet. A 3D printer or computer
numerically-controlled (CNC)
equipment uses Computer Aided
Manufacturing (CAM) files in G-code or
AMF format as executable code to
produce certain items. There are
currently technological limitations for
the effectiveness of 3D printing of
firearms, but the concept has been
demonstrated and the ability to
manufacture commercially viable
firearms is inevitable given the
increasing improvements of 3D printing
equipment and 3D printing materials.
Congress directed that the export
control system under ECRA is intended
to have ‘‘the flexibility to be adapted to
address new threats in the future,’’ and
this final rule implements that
instruction. 50 U.S.C. 4811(8).
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Technology and software are required
for 3D printing of firearms and are
critical for the 3D printing
manufacturing process. Publicly posting
such technology and software online
without restriction creates the risk that
foreign persons and countries, including
countries of concern, will be able to
obtain technology and software for 3D
printing of firearms. In the absence of
controls on the export, reexport, or incountry transfer of such technology and
software, such items could be easily
used in the proliferation of conventional
weapons, the acquisition of
destabilizing numbers of such weapons,
or for acts of terrorism. As noted earlier,
Congress expressly directed that ECRA
should be used to address these risks. 50
U.S.C. 4811(2)(A).
Like 3D printing, CNC milling or
machining is an automated
manufacturing process controlled by
technology and software. CNC milling/
turning/grinding are all subtractive
manufacturing processes in which the
computerized equipment removes layers
of material from a base—known as the
workpiece or the blank—to produce a
manufactured part or item. As with 3D
printing, the posting online of CNC
technology and software needed to
create working firearms creates export
control concerns.
Under the ITAR, the unrestricted
public dissemination of technical data
(as defined in section 120.10 of the
ITAR) in a manner that allows access by
foreign persons—including through the
internet—is an export requiring
appropriate authorization. For purposes
of the CCL, Commerce has historically
taken the approach (with limited
exceptions) that material is not subject
to export control if it has been
‘‘published’’ within the meaning of 15
CFR 734.7, including through posting
on the internet. The proposed rules
published by the Departments of State
and Commerce took these differences in
the ITAR and EAR control structures
into account, and the Commerce
proposed rule acknowledged these
differences to ensure commenters had
an opportunity to fully take these
differences into account when
submitting their comments on the
Commerce rule. See page 24167 of the
Commerce May 24 rule and 15 CFR
734.7.
Comments on the Commerce
proposed rule reflected the commenters’
understanding of these differences
between the ITAR and EAR control
structures. BIS received many
comments expressing concerns about 3D
printing of firearms and whether
appropriate controls would be in place
under the EAR. It also received a small
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number of commenters that supported
the part 734 criteria. The commenters
critical of the part 734 criteria provided
the following input:
(1) Part 734 criteria should be
changed to regulate 3D printing, even if
the information would otherwise be
publicly available. These commenters
were concerned that the application of
the part 734 criteria appears to give rise
to the possibility of widespread and
openly sanctioned circulation of open
source, non-proprietary instructions for
using computer-aided design (CAD) files
to produce operable firearms via 3Dprinting technology, or text files to
produce such firearms via CNC milling
of the firearms. Commenters requested
BIS to weigh the fact that the part 734
criteria would make posting on the
internet of ECCN 0E501 technology (e.g.,
3D printer specs) for the production of
an ECCN 0A501 firearm publicly
available information that is no longer
subject to the EAR.
(2) Allowing 3D-printed gun
technology and software to be posted
freely online for use with 3D printers
will make it easier to obtain firearms in
the U.S. and abroad. These commenters
were concerned that the combination of
internet dissemination and do-ityourself 3D production is problematic
because the government would have no
oversight of the producer, the end use
or the end user of the firearm. Other
commenters in this area were greatly
concerned about the perceived loss of
controls on 3D gun-printing plans,
which these commenters asserted has
increasingly assisted bad actors in
enhancing their capabilities to inflict
atrocities around the world. Several
commenters cited Defense Distributed v.
Department of State, a lawsuit filed in
the U.S. District Court for the Western
District of Texas and appealed to the
U.S. Court of Appeals for the Fifth
Circuit,, in support of the State
Department’s decision to restrict the 3D
printing of firearms under the ITAR (i.e.,
requiring appropriate authorization
under the ITAR prior to allowing
unrestricted posting on the internet).
(3) Unregulated 3D printing would
undermine U.S. efforts, as well as
governments overseas, to vet parties
obtaining firearms, and to track 3D
printed firearms. These commenters
noted that with access to 3D printing
machines and plans on how to build a
gun, anyone could circumvent U.S. laws
that seek to prevent known criminals
from obtaining U.S. firearms. Other
commenters in this area were
particularly concerned that these
changes would result in an increase in
the number of untraceable firearms in
circulation because as 3D printing
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technology becomes more widely
available, the likelihood that it may be
used to construct operable firearms that
are exempt from serialization
requirements would increase.
(4) The transfer of control of these
items to the CCL would undermine
longstanding U.S. efforts to counter
proliferation of small arms in the world.
Commenters in this area noted that they
couldn’t understand how allowing
untraceable 3D printing of firearms
would serve U.S.-recognized goals to
combat illicit trafficking of firearms.
Commenters in this area also noted that
the United States is the world’s largest
donor, as the commenter understands it,
to helping countries build their ability
to trace weapons, secure weapons
stockpiles, and to destroy those stocks
when warranted. However, according to
the commenter, this transfer of authority
to Commerce appears to open the door
to unfettered 3D printing of firearms,
which threatens to undermine nearly all
those efforts.
One commenter asserted that the
proposed changes may result in
increased circulation of plans for nonautomatic weapons produced by 3D
printing technology, and this may be at
odds with the Wassenaar Arrangement.
A small number of commenters
supported the application of the criteria
in part 734 and emphasized that the
information is so widely available in
various formats that trying to control it
would not be practical or warranted.
One commenter noted that America
boasts hundreds of millions of privatelyowned firearms and has produced
countless books, magazine articles,
videos, websites, and online forums that
exhaustively detail firearm technology
and use. Thus, this commenter asserted
it is difficult to imagine any information
about the design, development,
production, manufacturing, and use of
firearms that is not already within the
public domain and this same
information is commonly available
overseas. Other commenters that
supported the part 734 criteria asserted
that they had concerns generally over
their First Amendment rights being
possibly violated unless the criteria in
part 734 applied equally to information
posted online. These commenters
requested an end to any harassing or
censorship of firearm instructors within
the U.S., as well as bloggers, writers,
and those posting online guides or
tutorials discussing technology about
defense items because these activities
seem to be a clear violation of the First
Amendment right to free speech. Given
the foreign policy and national security
interests at stake, Commerce believes
that the restrictions imposed by this rule
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are appropriately tailored. Commerce is
also aware of, and has taken into
account, the constitutional and statutory
concerns raised by the plaintiffs in the
Defense Distributed case and by the
plaintiffs in Washington v. Dep’t of
State, No. 2:18–cv–01115–RSL (W.D.
Wash.). Commerce also notes that it has
received correspondence from members
of Congress concerning the issues raised
in Defense Distributed.
BIS response: The Commerce May 24
proposed rule addressed the application
of part 734, including § 734.7, for items
(specifically for certain information and
software) proposed for transfer from
USML Categories I–III (see 83 FR
24167). These criteria support the free
exchange of public information and, as
a general matter, do not warrant being
changed. However, the concerns
commenters raised about the specific
application of part 734 criteria to 3D
printing of firearms suggests that
modification to the proposed controls is
warranted.
With the transfer of certain firearms
from the USML to the CCL, rifles,
pistols, revolvers and related parts and
components will fall within ECCN
0A501, and BIS will be responsible for
their licensing. This transfer adds to
Commerce’s existing licensing
jurisdiction over most shotguns and
shotgun shells as well as optical
sighting devices. The items that remain
on the ITAR include fully automatic and
selective fire weapons, weapons for
caseless ammunitions, silencers and
certain high capacity (50 rounds or
greater) magazines, and certain militaryspecific ammunition such as tracers.
BIS recognizes that several
commenters, including a large number
of private citizens, expressed concern
over global access to 3D printing
technology and software with the
transfer of certain firearms to the CCL.
BIS also recognizes that several
commenters and plaintiffs in
Washington v. Dep’t of State raised
concerns about risks to public safety
related to domestic access to 3D printing
technology and software. BIS shares the
concerns raised over the possibility of
widespread and unchecked availability
of the software and technology
internationally, the lack of government
visibility into production and use, and
the potential damage to U.S. counter
proliferation efforts. In this final rule,
BIS addresses the concerns raised about
3D printing of firearms by making
certain technology and software capable
of producing firearms subject to the EAR
when posted on the internet under
specified circumstances. This control
will help ensure that U.S. national
security and foreign policy interests are
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not undermined by foreign persons’
access to firearms production
technology. Although the Department of
State determined that such technology
and software do not warrant continued
control under the USML, maintaining
controls over such exports under the
EAR remains in the national security
and foreign policy interests of the
United States, as described below. As
noted in other places in the Commerce
final rule, the movement of items from
the USML is not a decontrol, and
appropriate controls must be in place to
protect U.S. national security and
foreign policy interests, such as by
maintaining Commerce licensing
authority over certain technology and
software capable of producing firearms
subject to the EAR when posted on the
internet under specified circumstances
as described in this final rule. And
although the domestic transfer of
commodities is outside the purview of
BIS jurisdiction, the concerns related to
the unrestricted posting of CAD files on
the internet, more accurately described
in this final rule as CAM files, have
been addressed in this final rule and
nothing in this final rule affects existing
federal or state laws that pertain to the
manufacture, possession, use, or
commercial sale of firearms.
BIS provides more information about
the specific changes below under the
Description of Regulatory Changes
under the heading Revision of
‘‘Published.’’
BIS does not agree with the
commenter that stated that the part 734
criteria are at odds with the Wassenaar
Arrangement. As described both in the
proposed rule and this final rule, part
734 remains consistent with the
Wassenaar Arrangement. BIS’s changes
in this final rule, however, ultimately
addressed this commenter’s concern.
In response to commenters who
favored the part 734 criteria as outlined
in the proposed rule, BIS notes that
information regarding firearms,
including information for production of
firearms, is often widely available, and
nothing described below would restrict
persons from publishing books or
magazines, such as those that could be
found in a local public library, and that
the changes made to part 734 described
below are limited to addressing a
specific fact pattern (posting on the
internet of certain types of files) that
warrants U.S. Government oversight to
ensure unrestricted releases are not
being made to persons of concern
outside the United States or to foreign
persons in the United States. BIS also
took into account these commenters’
support for the part 734 criteria and
their First Amendment concerns but did
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4141
not adopt the approach that they
advocated. Given concerns regarding
First Amendment restrictions the
control is appropriately tailored to only
impact technology and software in an
electronic format, such as AMF or Gcode, that is ready for direct insertion
into a computer numerically controlled
machine tool, additive manufacturing
equipment to produce the firearm frame
or receiver or complete firearm. This
technology and software are functional
in nature, having the capability to cause
a machine to use physical materials to
produce a firearm frame or receiver or
complete firearm. Limitations on the
dissemination of such functional
technology and software do not violate
the right to free expression under the
First Amendment. Nor does the final
rule violate the right to keep and bear
arms under the Second Amendment.
The rule does not prohibit U.S. persons
within the United States from acquiring
firearms of any type; indeed, nothing in
this rule prohibits persons within the
United States from developing,
discussing, or transferring by hand or
mail (e.g., by the U.S. Postal Service or
a common carrier) CAM files related to
3D-printing technology and software.
The domestic transfer of commodities is
outside of the scope of BIS jurisdiction
and would be within the purview of
domestic law. The release of controlled
technology in the United States would
only be regulated to the extent it would
constitute a deemed export (i.e., release
to a foreign person). This means
transfers between U.S. persons within
the United States are not regulated
under the EAR so long as there is no
release to a foreign national. The ITAR
takes a similar approach. BIS’s approach
in using targeted changes is not
intended to otherwise change the other
criteria in part 734 that these
commenters assert they strongly
support.
In response to the comments received
on the proposed rule, BIS has reflected
on the need to take into account various
interests in regulating technology and
software for the 3D printing of firearms.
At the time of the proposed rule, BIS
believed that its existing framework
struck the appropriate approach in
providing for national security and
foreign policy control of firearms that
would transfer to the CCL. Since that
time, BIS has had considerable time to
review the comments related to 3D
printing of firearms. Although the
military usefulness of 3D printed
firearms is not significant, there are
other U.S. national security and foreign
policy interests, as described by
commenters, in regulating the unlimited
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access to certain files for the 3D printing
of firearms that the framework of BIS
regulations as described in the proposed
rule did not adequately address. As the
State Department noted in the Defense
Distributed litigation, unrestricted
export of such files abroad could have
a potential detrimental effect on aspects
of U.S national security and foreign
policy, including by undercutting efforts
to combat the illicit trafficking of
firearms or possession of firearms by
hostile parties or dangerous
organizations, as well as other efforts to
assist other countries in protecting
domestic and international security. BIS
believes this potential detrimental effect
on U.S. national security and foreign
policy warrants the control of the export
of certain files for the 3D printing of
firearms set forth in this rule.
At the same time, BIS recognizes that
there is a longstanding tradition to
encourage the free exchange of ideas as
already acknowledged in BIS
regulations, such as in 15 CFR 734.7.
The agency takes seriously its
responsibility to regulate judiciously,
seeking to assert jurisdiction only as
needed and consistent with its statutory
authority. As set forth in the Export
Control Reform Act of 2018, 50 U.S.C.
4801–4852, Commerce’s policy is to use
export control only to the extent
necessary to restrict the export of items
that would make a ‘‘significant
contribution to the military potential of
another country . . . which would
prove detrimental to the national
security of the United States’’ or
‘‘further significantly the foreign policy
of the United States or to fulfill its
declared international obligations.’’ 50
U.S.C. 4811(1)(A)–(B). Further,
Commerce must ensure that its controls
are ‘‘tailored to focus on those core
technologies and other items that are
capable of being used to pose a serious
national security threat to the United
States.’’ 50 U.S.C. 4811(2)(G).
Because of the national security and
foreign policy risks associated with the
unlimited access and unrestricted
production of 3D printed firearms, BIS
is offering a tailored approach,
consistent with its statutory obligations,
that places restriction on the posting on
the internet of files for the printing of
certain firearms and their critical
elements. As set forth in § 734.7(c) in
this final rule, only technology or
software for the complete firearm, its
frame, or its receiver are subject to BIS
licensing requirements, aligning BIS
controls with existing statutory concepts
set forth in the definition of ‘‘firearm’’
under the Gun Control Act (GCA), 18
U.S.C. 921(a)(3). Recognizing that
libraries and academic institutions
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within the United States may already
carry books or other materials related to
firearms manufacturing, BIS does not
seek to regulate this existing landscape
of activity for the items transferred from
the USML to CCL, consistent with its
treatment of firearms it controlled on
the CCL prior to this final rule. Instead,
since the harm identified with
unrestricted dissemination has been tied
to the easy and untraceable distribution
in electronic format that the internet
provides, BIS has crafted its rule to
regulate dissemination in this space as
it poses a significant risk to U.S.
national security and foreign policy.
As a result, Commerce has reached
the conclusion that U.S. national
security and foreign policy necessitate
that BIS maintain controls over the 3D
printing of firearms when such software
and technology is posted on the
internet. The potential for the ease of
access to the software and technology,
undetectable means of production, and
potential to inflict harm on U.S. persons
and allies abroad present a grave
concern for the United States. Without
regulatory oversight, U.S. foreign
relations and national security interests
could be seriously compromised. For
these reasons, this final rule provides
that technology and software ready for
insertion into an automated
manufacturing tool that makes use of
the software or technology to produce a
firearm frame, receiver, or complete
firearm is subject to the EAR, consistent
with the regulation of such software and
technology when previously controlled
under the USML.
Vetting Transaction Parties and
Monitoring Exports
Comment 8: Many commenters were
concerned about a possible reduction in
the monitoring of the end users of
exported firearms and publicly available
information about this monitoring.
These commenters asserted that public
reporting of Blue Lantern information is
mandatory and there are readily
available statistics about the results.
Some commenters requested that if the
proposed rules move forward, the BIS
program be strengthened to address the
need to monitor the end users of
exported firearms.
BIS response: BIS does not publish
end-user monitoring information in the
same format as the Department of State,
but the same type of information is
available publicly from BIS. The new
ECRA maintains an annual reporting
requirement to Congress that provides
an additional layer of transparency.
Specifically, under Section 1765(a)(6) of
ECRA, the Secretary of Commerce shall
submit a report to Congress that
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includes a summary of export
enforcement actions, including of
actions taken to implement end-use
monitoring of dual-use, military, and
other items subject to the EAR. BIS
already has practices in place to
continuously evaluate its end-use
monitoring program and to improve it as
opportunities to do so are identified.
BIS intends to continue those efforts for
the firearms that are moved to the CCL
with this final rule.
Registration Requirement for Screening
Comment 9: Several commenters
expressed concerns that BIS will not
have access to the same databases and
background information that the
Department of State uses to evaluate
license applications since the EAR does
not require registration. These
commenters asserted that not including
a registration requirement will deprive
regulators of an important source of
information and decrease transparency
and reporting regarding gun exports.
Some commenters recommended
removing or limiting the registration fee
for manufacturers but keeping the
requirement for registration. Another
commenter suggested waiving the fee
for manufacturers who do not, in reality,
export these items.
BIS response: BIS, along with the
Department of State, considered these
concerns and determined that the
interagency license review process
maintains appropriate oversight of the
items at issue. BIS’s export licensing
requirements and process are calibrated
both to the sensitivity of the item and
the proposed destination. Additionally,
all requests for export licenses for
firearms remain subject to interagency
review, including by the Department of
State.
BIS does not need the information
included in the ITAR registration
requirement to regulate those items
under the EAR. To apply for a license
under the EAR, the applicant is required
to create a free account in BIS’s online
submission system called SNAP–R. The
SNAP–R account includes basic
information about the exporter. In
addition, each party identified on the
license application is reviewed. The
requirements to file EEI in AES is
another important way that BIS obtains
information needed to effectively track
exports.
BIS agrees that if there were a
registration requirement, removing or
limiting the fee for registration would
ease the burden on small businesses and
individuals. However, as noted above,
BIS does not believe that the
information included in the registration
requirements is necessary for BIS to
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effectively license and enforce the EAR.
Therefore, registration requirements,
even if they are free, would impose an
unnecessary burden on individuals,
small companies, and manufacturers.
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Brokering
Comment 10: Many commenters
asserted that the proposed changes to
USML Categories I–III would mean that
brokers of semi-automatic weapons and
related ammunition will be exempt from
registration and licensing that is
currently triggered by their inclusion as
defense articles on the USML. Other
commenters correctly understood that
State would continue to impose
brokering controls for items which
moved to the CCL that are also listed on
the USMIL. One of these commenters
asserted that they are pleased to see that
the State May 24 rule attempts to
maintain effective oversight of arms
brokers by ensuring that brokers must
register with the Department of State
and seek a license. This commenter
asserted that these provisions are
critical in helping mitigate illegal arms
trafficking to major conflict zones and
transnational criminal organizations.
BIS response: BIS clarifies that the
Department of State in its May 24 rule
and its final rule retains brokering
controls for items which are now listed
on the CCL that are also listed on
USMIL. BIS directs the public to review
the State final rule for information on
the brokering controls under the ITAR.
The Department of State in its
companion rule noted it does not intend
to impose a double licensing
requirement for individuals undertaking
activities on behalf of another to
facilitate a transaction that will require
licensing by the Department of
Commerce. In practical terms, this
means the vast majority of exporters
who only export firearms on the CCL
directly from the U.S. or reexport U.S.origin firearms on the CCL are not
‘‘brokers’’ and will not have to register
with DDTC.
Congressional Oversight
Comment 11: Multiple commenters
expressed concerns that this final rule
would reduce congressional oversight of
arms transfers because BIS does not
have to notify Congress of firearms sales
in excess of $1 million, as the
Department of State does. These
commenters asserted that: (1) Congress
needs to be able to review these types
of firearms sales to ensure large risky
exports do not proceed; (2) Congress has
played an important role in stopping
several risky firearms sales because of
the congressional notification
requirement (commenters provided
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examples of sales from 2017 to Turkey
and the Philippines that they asserted
were blocked by Congress); (3)
congressional notifications are a
valuable tool for the public to be able to
see when large firearms sales are being
proposed; and (4) certain members of
Congress have asserted their concern
that not including a congressional
notification requirement under the EAR
would be counter to congressional
intent.
BIS response: The Department of State
in its companion rule also
acknowledges those concerns and notes
that those firearms that the U.S.
Government deemed through the
interagency review process to warrant
continued control under the ITAR as
defense articles will remain subject to
congressional notification requirements
in conformity with section 36 of the
AECA and Executive Order 13637. In
this response, BIS also puts the
congressional notification issue into
context under the EAR and the statutes
that the regulations implement for items
‘‘subject to the EAR.’’
BIS notes that at the time of
publication of the Commerce May 24
rule, the Export Administration Act
(EAA) did not include a congressional
notification requirement for firearms,
nor did any other statute that the EAR
implements for firearms. Therefore, BIS
did not include a congressional
notification requirement because it did
not want to prejudge congressional
intent in this area. On August 13, 2018,
the President signed the National
Defense Authorization Act for Fiscal
Year 2018, which included ECRA.
Congress did not include in ECRA any
requirements for congressional
notification for firearms and related
items exports. Therefore, BIS is not
including a congressional notification
requirement in the final rule.
Overseas Trafficking, Proliferation, and
Diversion of Firearms
Comment 12: Multiple commenters
expressed a general concern that the
transfer to the CCL increases the risk of
overseas trafficking, proliferation, or
diversion. Multiple commenters also
expressed concerns about the BIS enduse monitoring (EUM) capabilities and
the impact the companion Department
of State rule has on the Department of
State’s EUM programs. Many
commenters asserted that the decision
to relax controls on the export of
firearms will make it easier for terrorists
to obtain the same dangerous firearms
that have been used in mass shootings
in the United States. Many commenters
also asserted that these firearms are
weapons of choice for criminal
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4143
organizations, narcotics traffickers, and
gun traffickers, and making it easier for
them to get firearms will make their
activities worse and further fuel armed
conflict abroad.
BIS response: This final rule does not
deregulate the export of firearms. All
firearms and major components being
transferred to the CCL will continue to
require a U.S. Government
authorization. Further, BIS has both a
robust EUM program and a law
enforcement division sufficiently
capable of monitoring foreign recipients’
compliance with their obligations
regarding the transfer, use, and
protection of items on the CCL.
Additionally, the Federal Bureau of
Investigation and the Department of
Homeland Security will continue to
investigate and enforce civil and
criminal violations of the export control
laws as appropriate.
BIS does not agree that moving these
firearms to the CCL will mean less
oversight to prevent gun trafficking.
Exporting these firearms will require a
U.S. Government authorization. The
EAR also includes a robust set of enduse and end-user controls that will
supplement the CCL based license
requirements. Similar to the ITAR, BIS
will impose appropriate conditions as
needed on authorizations or not approve
certain transactions if there is a concern
over risk of diversion. BIS also will
maintain a robust end-use verification
program for the firearms and other items
moved to the CCL from USML
Categories I–III. In addition, most
firearms will require submission of a
license, and the license review policies
would lead to a denial for exports to
terrorists. The EAR also includes
sections in part 744, e.g., § 744.14 for
Foreign Terrorist Organizations (FTO),
that impose additional restrictive
license requirements and license review
policies for terrorists identified under
certain designations on the Department
of Treasury’s Specially Designated
Nationals (SDN) list. This is significant
because it excludes the use of any EAR
license exceptions; imposes a license
requirement for all items subject to the
EAR, including the firearms being
moved to the CCL; and acts as an
additional safeguard for transactions
involving EAR items located outside the
U.S. that the Department of Treasury
controls are not able to reach.
BIS included provisions in the
Commerce May 24 rule and in this final
rule to address this issue by including
a presumption of denial license review
policy under the regional stability
reason for control for these types of end
users. Specifically, in this final rule, the
license review policy in § 742.6(b)(1)(ii)
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is a policy of denial when there is
reason to believe the transaction
involves criminal organizations, rebel
groups, street gangs, or other similar
groups or individuals, that may be
disruptive to regional stability,
including within individual countries.
Comment 13: One commenter, a
human rights organization, asserted that
‘‘it has for many years called attention
to the risks associated with
untrammeled export of small arms and
light weapons around the world.’’ This
commenter asserted that ‘‘these arms
have been associated with the
deployment of child soldiers and the
rise of insurgent groups.’’ This
commenter also asserted that ‘‘these
firearms are easier to divert than larger
weapons and often end up in the illicit
market.’’
BIS response: BIS does not agree that
there is anything in the EAR that will
make the possibility of diversion any
greater than it was under the ITAR.
These concerns of diversion are taken
into consideration by the export control
system and underlie the basis for some
of the agency’s controls. BIS also notes
that the U.S. Government continuously
monitors the export control system to
determine where the most likely points
of diversion are and takes actions to
prevent potential diversion points by
using existing license review policies,
rescinding or revoking prior
authorizations, or imposing new license
requirements or other prohibitions.
Impact on Foreign Law Enforcement
Comment 14: One commenter
expressed concern that foreign law
enforcement personnel in particular are
at risk of having the firearms and
ammunition that would be transferred
to the CCL used against them. Another
commenter asserted that moving these
firearms to the CCL will make it hard for
foreign law enforcement to counter gun
trafficking.
BIS response: These assertions are
mitigated by the fact that, as stated
previously: (1) These articles remain
subject to BIS’s EUM programs that vet
potential end users of concern, and (2)
applications for firearms and
ammunition licenses will be approved
only if the end use is permitted under
the laws and supervision of the
importing country.
BIS notes that this final rule is
consistent with U.S. multilateral
commitments, e.g., to the Wassenaar
Arrangement and the United Nations for
conventional arms reporting. The
support documentation requirements
are consistent with Organization of
American States (OAS) requirements to
require an import certificate issued by
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the importing country. This support
document requirement applies to other
countries that also impose a
requirement for an import certificate
prior to allowing an import of a firearm,
permitting these other countries to
better control the flow of firearms
coming into their countries. In addition,
U.S. law enforcement agencies,
including BIS’s Office of Export
Enforcement, also coordinate with law
enforcement agencies outside the U.S.,
as was referenced above in the BIS
response to Comment 3. The area of
preventing illegal transshipments is a
good example of where various
countries have worked together,
including law enforcement agencies,
regulators, and policy makers, to come
up with standards and protocols to
reduce illegal transshipments, and this
work will continue.
Human Rights Issues
Comment 15: A number of
commenters suggested the proposed
rule, if made final, may have a negative
impact on human rights in foreign
countries. BIS also received many
comments asserting ‘‘it is now
recognized that rape and sexual assault
are systematically used as weapons of
war in conflicts around the world.’’ One
of these commenters asserted that ‘‘in
interviews with women and girls who
have survived sexual violence during
conflict, a very high number of their
stories include descriptions of the
torture they endured at the point of a
gun. Although the particular models of
firearms involved are seldom identified,
there is no doubt that a military-style
weapon contributed to gross violations
of their human rights.’’ Many
commenters asserted that even after a
conflict has officially ended, the
weapons left behind are used all too
often by perpetrators of domestic
violence.
BIS response: BIS will use its
resources and expertise in this area to
vet parties involved in transactions
subject to the EAR for human rights
concerns. Similarly, as part of the
aforementioned continuing interagency
review of export licenses for firearms,
the Departments of State and Defense
will remain active in the interagency
review process of determining how an
item is controlled and will review
export license applications on a case-bycase basis for national security and
foreign policy reasons, including the
prevention of human rights abuses. As
stated previously in this final rule and
in the companion rule published by the
Department of State, the Department of
State will continue vetting potential end
users when reviewing Commerce
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licenses, to help prevent human rights
abuses.
BIS does not anticipate authorizing
exports of firearms to regions involved
in active conflicts because of the
presumption of denial license review
policy for regional stability. Commerce
on its licenses as well as in its license
exceptions includes certain
requirements and conditions to ensure
subsequent disposition or use of the
item will continue to be in accordance
with U.S. export control interests. These
requirements are enhanced by the EAR
end-use controls in part 744, which in
many cases apply to transfers (incountry). Ultimately, the issue raised by
this commenter is one of the reasons
why the license review process is done
in a careful and deliberative way to
ensure as much as possible that the
items authorized for export will not
subsequently be used in ways not in
accordance with the regulations, as well
as larger U.S. national security and
foreign policy interests.
Effect on Other Countries
Comment 16: Some commenters
asserted moving these firearms to the
CCL would increase the likelihood for
greater destabilization and conflict
worldwide as well as for these weapons
to be trafficked back into the U.S. for
nefarious uses here. Some commenters
asserted that ‘‘military-style semiautomatic rifles and their ammunition,
are weapons of choice for criminal
organizations in Mexico and other Latin
American countries that are responsible
for most of the increasing and record
levels of homicides in those countries.’’
These commenters asserted that this
will only send more asylum seekers
fleeing to U.S. borders.
BIS response: BIS does not agree that
the transfer of items to the CCL would
increase the likelihood of greater
destabilization and conflict worldwide,
or specifically in Mexico or other Latin
American countries. As described
above, each foreign government decides
what firearms may be imported into its
country. In addition, as noted above,
these items will be controlled for
regional stability, so each license
application will be reviewed to evaluate
whether the export of these firearms
may contribute to destabilizing that
foreign country or other regional
stability concerns.
U.S. Nationals and Interests Overseas
Comment 17: Some commenters
asserted that this change in licensing
jurisdiction could lead to an unfortunate
future situation where our own combat
troops face troublemakers armed with
American-made weaponry.
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BIS response: The U.S. export control
system, whether that is the export
controls implemented under the EAR or
the ITAR, is focused on protecting U.S.
national security and foreign policy
interests. Effective controls are in place
under the EAR to ensure as much as
possible that items subject to EAR do
not endanger U.S. troops, U.S. nationals,
or other U.S. interests is one of the key
objectives of EAR controls. This final
rule is intended to ensure that items
being moved to the EAR will not
endanger U.S. interests. BIS, as well as
the Department of State, works to ensure
that diversions do not occur, but it is a
concern not unique to firearms moved
to the CCL, and something the U.S.
export control system is designed to
counter.
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Consistency With U.S. Multilateral
Commitments
Comment 18: Other commenters
suggested that this rule contravenes
international commitments the United
States has made through mechanisms
such as the Wassenaar Arrangement.
One commenter asserted that the U.S.
has already alienated many of our allies,
and this rule change will further
aggravate relations by pushing more
firearms into their countries.
BIS response: The transfer of the
concerned items to the CCL does not
contravene U.S. international
commitments, as the U.S. Government
will continue to apply a high level of
control to these items and require U.S.
Government authorization for all
exports of firearms and major
components. Further, the controls being
implemented under the EAR with this
final rule are consistent with U.S.
multilateral commitments, e.g., to the
Wassenaar Arrangement, the United
Nations, and the OAS. BIS notes that
foreign governments decide what items
may be imported into their countries
and how such items will be regulated
within that country. Regardless of the
U.S. export control system, an exporter
must still meet the requirements of an
importing country and if the importing
country does not allow the importation
of these items or requires certain
requirements to be met, those foreign
regulatory or other legal parameters set
the parameters and scope for what may
be imported, who may use such items,
and for what end uses.
Reporting Requirement for Political
Contributions and Fees to the EAR To
Prevent Corruption in the Arms Trade
Comment 19: One commenter
asserted that the transfer of certain
Categories I–III items from ITAR to EAR
control will mean the loss of the
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reporting requirements outlined in 22
CFR part 130. This commenter asserted
that part 130 requires exporters to report
payment of certain political
contributions, fees, and commissions
related to the sale of defense articles and
services to the armed forces of a foreign
country or international organization to
the DDTC and because the EAR does not
have the same type of reporting
requirement, this may result in
increased corruption in arms sales. The
same commenter asserted that ‘‘in many
countries around the world, corruption
is rampant within their arms
procurement systems, as foreign
officials seek to steal funds from their
national budgets for their personal
gain,’’ so not including a reporting
requirement in the EAR may make the
corruption worse. The same commenter
asserted that under the Commerce May
24 rule, BIS would limit its ability to
obtain useful information on U.S.
defense companies and prosecute
bribery.
BIS response: BIS does not agree with
these assertions. The Foreign Corrupt
Practices Act (FCPA) already prohibits
this type of corruption activity and
provides a robust regulatory scheme.
FCPA applies to all items subject to the
EAR, including items that will be
moved from the USML to the CCL.
Therefore, imposing a separate reporting
requirement is not needed under the
EAR to prevent this type of illegal
activity. BIS highlights here in the
preamble of this final rule that any party
involved in a transaction ‘‘subject to the
EAR’’ must also follow any other
applicable U.S. laws, including the
FCPA. Questions on the FCPA should
be directed to the Department of Justice
and the U.S. Securities and Exchange
Commission (SEC).
Commenters Asserting Burdens Will Be
Reduced (for Purposes of E.O. 13771)
Comment 20: A firearms trade
association commenter asserted that ‘‘it
has reviewed the proposed rule
thoroughly with its membership . . .
and most members have told it that the
final versions of the rules would
eventually be beneficial because they
would significantly reduce the overall
burden and cost of complying with
controls on the export of commercial
firearms and ammunition.’’ This trade
association noted that ‘‘[a]ll who
responded told us that there would be
an initial short-term increase in burden
and cost because of the need to reclassify thousands of commodity,
software, and technology line items and
SKUs affected by the new rules, but that
the long-term regulatory burden
reduction would significantly outweigh
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the short-term need to adjust internal
compliance programs and practices.’’
One firearms industry trade association
commenter noted that most of ‘‘its
members, particularly the small- and
medium-sized companies, believe that
the changes will be economically
beneficial for them because the eventual
regulatory simplification and cost
reductions will allow them to consider
exporting when they might not have
otherwise.’’ Additionally, many small
independent gunsmiths commented
about the disproportionate negative
impact the costs of ITAR compliance
had on their businesses. Several
commenters asserted that by moving
such items to the EAR, many domestic
manufacturers who do not export would
be relieved of the significant financial
burden of registering under the ITAR.
One trade association commenter
asserted that the costs for their members
would be reduced because under the
Commerce system, there are no fees to
apply for licenses. This commenter also
asserted that their burdens would be
reduced because the Commerce license
application forms are vastly simpler
compared to the Department of State
license application forms.
One commenter asserted that ‘‘one of
the benefits under the EAR will be that
controls on less sensitive and widely
available basic parts, components, and
technology are more tailored and allow
for less burdensome trade with close
allies through license exceptions.’’ This
same commenter also asserted that
‘‘sales with regular customers can be
combined in to fewer license
applications, thus reducing overall
paperwork to achieve the same policy
objectives.’’
One trade association commenter
asserted that these changes ‘‘will lead to
growth for U.S. companies, more jobs in
the United States, and related economic
benefits for the cities and states where
the members reside while
accomplishing the same national
security and foreign policy objectives
they have always had.’’ One commenter
asserted that the items being moved to
the CCL are manufactured in many parts
of the world and that by engaging more
with the world, U.S. firearms
manufacturers will improve their
knowledge and capability. One
commenter that identified himself as a
U.K. citizen, who often travels to the
U.S. and visits sporting goods stores,
asserted that the price of certain items,
e.g., cartridge cases and bullets, are less
than half the price charged in the U.K.
The commenter asserted, ‘‘fix this and
U.S. manufacturers will see a significant
increase in demand from U.K. based
firearms owners.’’
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BIS response: BIS agrees that the
Commerce May 24 rule would reduce
the overall regulatory burden of
complying with U.S. export controls,
including through regulatory
simplification and cost reductions that
may allow certain persons, e.g., small
independent gunsmiths, to consider
exporting when they might not have
otherwise because of the economic
burden of complying with the ITAR.
One of the strengths of the EAR control
structure is its focused approach on
exports without unduly burdening
persons that are not a party to an export
transaction. Not requiring domestic
manufacturers to register with BIS is a
good example of the more focused EAR
controls. The fact that BIS does not
charge a registration fee to be able to
apply for a Commerce license is another
financial benefit.
The EAR is a more tailored control
structure, and this more flexible control
structure will reduce burdens and create
more opportunities to export. One of the
key benefits of the more flexible
Commerce licensing processes is the
ability for applicants to combine
multiple transactions on license
applications for sales to regular
customers. Because BIS does not require
a purchase order, the overall number of
licenses an exporter may need to submit
is reduced.
The changes included in this final
rule may lead to increased sales
opportunities for U.S. exporters and
related economic benefits for the United
States, while also accomplishing the
same national security and foreign
policy objectives of the U.S. export
control system. Because of the more
flexible EAR control structure, parties
outside the U.S. may want to purchase
more items, such as ECCN 0A501.x
parts or components that were
previously avoided because of no de
minimis eligibility under the ITAR. This
rule might also lead to increased export
activity because parties outside the U.S.
may import more U.S. origin firearms
because of the more flexible Commerce
licenses that do not require a purchase
order. Importantly, any additional
exports that may occur are the same
types of exports that would have been
otherwise approved under the ITAR.
As asserted by some of the
commenters, the changes made by this
final rule may help to foster innovation
in the United States by encouraging
collaboration with companies outside
the United States, and this may lead to
better U.S. products. They may also
encourage more people to be interested
in purchasing items from the United
States.
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Commenters Asserting Burdens Will Not
Be Reduced (for Purposes of E.O. 13771)
Comment 21: One anonymous
commenter asserted that moving these
items to the CCL would create a small
cost-savings for its company in
registration and licensing fees, but the
commenter did not see a demonstrated
equivalent in terms of paperwork
reduction or real time savings. This
commenter asserted that the issue for
small companies having to pay the
registration fees due to their
manufacturing activities is better
resolved by changing the definition of
manufacturer to add a minimum size
requirement. The same commenter
asserted that the EAR does not include
a concept of defense services and the
technology controls are more narrowly
focused and apply in limited contexts as
compared to the ITAR, and this change
represents an improvement in terms of
the commenter’s ability to share
information needed for marketing
firearms and for repairing them
internationally. However, this
commenter asserted that the same result
could be achieved via amendment to the
ITAR. The same commenter asserted
that ‘‘the improvements and savings are
quantified using the 43.8 minutes for
BIS application vs. the 60 minutes for
DDTC application and that this metric
provides no meaningful data from
which to extrapolate total process
savings or if any is really generated.’’
This commenter also asserted that other
additional burdens proposed in the
Commerce May 24 rule also need to be
accounted for, e.g., increasing the
quantity and type of data elements
which will be required for AES filing.
The same commenter asserted that there
will be burdens and expenses of
transition related to reclassification of
all products, re-training of all
employees, and advanced training
needed for compliance personnel. The
commenter acknowledged that it
understands this burden is considered
short term; however, the commenter
asserted that the benefits of moving
these items to the CCL still has not been
adequately explained to justify these
short-term burdens. This same
commenter asserted that other than
utilizing a different application form
and the change in the agency receiving
applications, it has not been
demonstrated exactly what, if any,
process improvement this represents.
BIS response: While this commenter
did not anticipate significant cost or
burden reduction from the transition to
the EAR, most other commenters
addressing these issues anticipated
more significant benefits. The reform
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effort is not intended to make the ITAR
the same as the EAR; this would not be
warranted because the more restrictive
ITAR controls are needed to regulate
items such as fighter aircraft,
submarines, and intercontinental
ballistic missiles. BIS agrees that the
more focused EAR technology controls
will ease burdens, but still appropriately
control technology for these items.
BIS does not agree with the assertion
that the way the cost savings were
calculated in the Commerce May 24 rule
provided no meaningful data to
extrapolate total process savings. Many
commenters asserted that they believed
their burden would be reduced by
moving these items to the CCL. This
commenter is correct that other
commenters expressed concerns about
individuals being required to file EEI in
AES for exports under License
Exception BAG of their personally
owned firearms, and concerns about
including the serial number, make,
model number, and caliber of firearms
in the EEI in AES. However, this final
rule significantly reduces these burdens.
For example, this final rule requires the
U.S. Customs and Border Protection
(CBP) Certification of Registration Form
4457, a form already being used by
exporters. Therefore, there will be no
additional burden because BIS will be
requiring information already submitted
by exporters to CBP for other reasons.
For licensed exports, BIS also
eliminated the requirement to file those
additional data elements, except for
temporary exports or when the
Commerce license includes a condition
requiring it, similar to the approach
Department of State takes with provisos
on its licenses.
BIS acknowledges that there will be
some short-term adjustment costs. BIS
also acknowledges that the EAR is a
more complex control structure because
with greater flexibility there is a need
for additional nuances in the control
structure. BIS disagrees that the
rationale for the transition was not
clearly demonstrated in the Commerce
May 24 rule.
BIS appreciates this same commenter
highlighting a key point of
commonality. The commenter is correct
that the Commerce license applications
will continue to be reviewed by the
Departments of State and Defense. This
well-established interagency review
process specified in both Executive
Order 12981 and in the EAR helps to
protect U.S. export control interests and
ensures that a diversity of interests and
agency expertise is being used to review
license applications. BIS disagrees that
the only difference is a different
application. For example, the fact that
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an applicant does not require a purchase
order under the EAR to apply for a
license allows for more companies to
compete for business opportunities.
Licensing Costs
Comment 22: Many commenters
asserted that the Commerce May 24 rule
would transfer the cost of reviewing
applications and processing licenses
from gun manufacturers to taxpayers.
Many commenters also asserted that
with respect to firearms exports,
taxpayers and the public at large should
be concerned about pressures to cut
corners that could result in
authorization of irresponsible transfers
of firearms, because BIS will not be
charging fees for licensing.
BIS response: By statute, Congress
prohibits BIS from imposing fees for any
license application, authorization or
other requests. This prohibition applies
for submissions in connections with all
items subject the EAR and is not
specific to the firearms industry. BIS has
effectively licensed items for several
decades based on the fee free license
construct that was included in the
Commerce May 24 rule and in this final
rule.
Comments Specific to the Regulatory
Text
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Inclusion in the ‘‘600 Series’’
Comment 23: One commenter
requested BIS include semi-automatic
firearms and related items in the ‘‘600
series’’ instead of in 0x5zz ECCNs.
BIS response: BIS does not agree. As
was stated in the Commerce May 24 rule
and discussed above in response to the
comments, the semi-automatic firearms
this final rule adds to ECCN 0A501.a
have a significant worldwide market in
connection with civil and recreational
activities such as hunting,
marksmanship, competitive shooting,
and other non-military activities. For
these reasons, the movement of firearms
and ammunition from USML Category I
and III, similar to the civilian spacecraft
and related items moved from the
USML and controlled on the CCL under
0x515 ECCNs, do not warrant being
controlled under the ‘‘600 series.’’
New ECCN 0A501: Firearms and
Related Commodities
Comment 24: One commenter
identified an inconsistency between the
Commerce May 24 rule in the ‘‘Related
Controls’’ paragraph that stated
magazines with a ‘‘capacity of 50 rounds
or greater’’ are ‘‘subject to the ITAR.’’
However, the proposed USML Category
I(h)(1) referenced only magazines and
drums with a ‘‘capacity greater than 50
rounds.’’
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BIS response: This final rule corrects
the EAR text to make it clear that
magazines with a ‘‘capacity of greater
than 50 rounds’’ are subject to the ITAR.
Comment 25: One commenter
asserted there had been past issues of
interpretation under the ITAR for what
was meant by ‘‘complete breech
mechanism’’ and therefore the
commenter recommended defining the
term under the EAR.
BIS response: BIS accepts the change
to include a definition of ‘‘complete
breech mechanisms.’’ This final rule
will add a definition for ‘‘complete
breech mechanisms’’ to part 772 and
will add double quotation marks around
the term where it is used in ECCNs
0A501 and 0A502.
Comment 26: One commenter took
issue with the use of the term ‘‘assault
weapons’’ or ‘‘close assault weapons.’’
This commenter asserted that the terms
should be defined, or not used. This
commenter requested the term ‘‘semiautomatic’’ rifles, pistols, or other
firearm be used instead.
BIS response: BIS agrees and has
removed the term ‘‘assault weapons’’ in
this final rule and instead uses the term
‘‘semi-automatic,’’ which better aligns
with the terms used in the control
parameters.
Comment 27: One commenter
recommended BIS define ‘‘firearm’’ in
harmonization with the USML.
BIS response: BIS does not agree the
term ‘‘firearm’’ needs to be defined in
the EAR. The term ‘‘firearms’’ is used in
this final rule with additional technical
parameters or ECCN identifiers, e.g.,
0A501.a, that will enable identification
of these firearms. BIS does not believe
the use of the term ‘‘firearms’’ will
create confusion with the USML or the
USMIL.
Comment 28: One commenter noted
an inconsistency in the way calibers are
described in the control lists under the
Commerce May 24 rule. In USML
Categories I and II, firearms and guns
are described as ‘‘caliber .50 inclusive
(12.7 mm)’’ and ‘‘greater than .50 caliber
(12.7 mm),’’ respectively. In new ECCN
0A501, firearms are described in
‘‘items’’ paragraph .a and .b as ‘‘of
caliber less than or equal to .50 inches
(12.7 mm)’’ and ‘‘with a caliber greater
than .50 inches (12.7 mm) but less than
or equal to .72 inches (18.0 mm),’’
respectively. This commenter asserted
that the caliber terms not being aligned
between the control lists could cause
confusion and misinterpretation of the
controls between the USML and CCL,
particularly in regard to the ammunition
controls which follow the respective
firearm controls.
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BIS response: BIS notes that the intent
of this final rule is to transfer those
items previously controlled under
Categories I–III that no longer warrant
ITAR control, to the respective ECCNs
as created under this rule to the CCL by
using long-accepted industry standards
of ‘‘caliber’’ as the defining delineation
between ammunition types. BIS made
changes in this final rule to use the
appropriate text in this final rule to be
consistent with the text used in the
USML, so that .50 caliber ammunition
and .50 caliber firearms will transition
into their proper 0x5zz ECCNs. For
example ECCN 0A501, includes all nonautomatic and semi-automatic ‘‘.50
caliber (12.7mm) and less’’ firearms
under ‘‘items’’ paragraph .a.
Comment 29: One commenter was
concerned that with the proposed
description of caliber in inches in ECCN
0A501, ammunition for .50 caliber
Browning Machine Guns (‘‘50 BMG’’)
would be controlled under both 0A505
and USML Category III creating
overlapping controls.
BIS response: BIS clarifies in this final
rule that ECCN 0A501 includes all nonautomatic and semi-automatic ‘‘equal to
.50 caliber (12.7mm) and less’’ firearms
under ‘‘items’’ paragraph .a. Therefore,
this final rule also would not control the
50 BMG under ECCN 0A501.a.
However, the corresponding
ammunition which is used in a number
of non-automatic and semi-automatic
firearms will be controlled under
0A505.a, when not linked or belted.
Comment 30: Some commenters
requested BIS revise Note 3 to 0A501 so
that the definition of antique firearms is
aligned with the Wassenaar
Arrangement controls or alternatively
that the date threshold in the definition
of antique firearm in Note 3 be changed
from 1890 to 1898 to align with the
ITAR’s exemption.
BIS response: BIS does not agree.
Because this rule focuses on the export
of firearms, it uses the year 1890 so that
the United States remains consistent
with its international export control
commitments under the Wassenaar
Arrangement, which uses 1890 as the
cutoff year to identify many firearms
and armaments that are not on the
control list.
Comment 31: One commenter
requested that BIS clarify where
combination firearms would be
controlled, noting that neither ECCN
0A501 (firearms) nor ECCN 0A502
(shotguns) refer to firearms that are a
combination of shotgun and rifle, i.e.,
that have two barrels.
BIS response: BIS agrees, and in this
final rule adds a note to clarify that
combination firearms are controlled
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under ECCN 0A501.a. This final rule
also adds a note under ECCN 0A502 to
specify that all shotguns and ‘‘shotpistols’’ are controlled identically.
Comment 32: One commenter sought
clarification on the classification of
detachable magazines for ECCN 0A501
firearms with a capacity of less than or
equal to 16 rounds. The commenter
asserted that ECCN 0A501.d explicitly
lists magazines with a capacity of
greater than 16 rounds, but it was not
clear whether magazines with a lesser
capacity are designated as EAR99 or
controlled under 0A501.x.
BIS response: BIS agrees, and this
final rule adds a new note to paragraph
.d to clarify that magazines with a
capacity of 16 rounds or less are
classified under ECCN 0A501.x.
Comment 33: One commenter
asserted that as currently proposed,
paragraph .x would apply to parts and
components specially designed for a
commodity classified anywhere on the
USML. This commenter recommended
revising as follows: ‘‘Parts’’ and
‘‘components’’ that are ‘‘specially
designed’’ for a commodity classified
under paragraphs .a through .c of this
entry or USML Category I and not
elsewhere specified on the USML or
CCL.
BIS response: BIS does not agree that
a change is needed. Because some of the
parts and components controlled under
ECCN 0A501.x may be for firearms
incorporated into a fully automatic
firearm that is incorporated into a
military vehicle (a USML Category VII
commodity), the broader reference to
the USML is more appropriate. The
USML Order of Review and CCL Order
of Review will ensure that only those
parts and components intended to be
classified under ECCN 0A501.x will be
classified under this ‘‘items’’ paragraph.
Comment 34: One commenter
requested revising paragraph 0A501.y
by replacing the period at the end of the
paragraph with the phrase ‘‘including’’
or ‘‘as follows:’’ In order to clarify
whether .y is limited to the enumerated
.y paragraphs, or itself is a control
paragraph in which items can be
controlled.
BIS response: BIS clarifies that the .y
listings are exhaustive, and to be
classified in a .y paragraph, the item
needs to meet the identified description
and the definition of ‘‘specially
designed.’’
Comment 35: One commenter
requested clarification of whether the .y
paragraph itself serves as a catch-all for
‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’
and ‘‘attachments.’’ For example, a set
of fiber-optic sights for a pistol are not
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‘‘iron sights’’ as listed in .y.3, but may
be a ‘‘specially designed’’ ‘‘attachment.’’
BIS response: BIS agrees that the
introductory text of ECCN 0A501.y
needs to be revised to clarify that the
‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’
and ‘‘attachments’’ ‘‘specially designed’’
therefor for the .y items are also
controlled in the .y paragraphs. This
final rule makes this change. BIS had
previously made this same correction to
the other .y paragraphs on the CCL to
ensure, for example, that ‘‘specially
designed’’ parts used in ‘‘specially
designed’’ galleys classified under
ECCN 9A610.y for military aircraft,
would not be controlled in 9A610.x.
Comment 36: One commenter
asserted that ECCN 0A501.y contains
three types of commodities that have
been officially determined to be EAR99
for many years: (i) .y.2—scope mounts
and accessory rails; (ii) .y.3—iron sights;
and (iii) .y.4—sling swivels. This
commenter requested that the parts in .y
paragraphs .y.2, .y.3, and .y.4 be
removed from ECCN 0A501 and a note
be added to confirm that they remain
EAR99 items.
BIS response: BIS does not accept this
change because it only works if the past
CJs covered those items and all variants.
Paragraph (b)(1) of ‘‘specially designed’’
and General Order No. 5 would not be
applicable to those items not included
within the scope of a CJ—meaning an
item may get pulled up into .x.
Therefore, to address this issue
definitively this final rule keeps these
items as .y items.
License Exception LVS
Comment 37: BIS received a number
of comments on License Exception LVS
eligibility. Some commenters supported
its availability, though one commenter
suggested that wholesale value rather
than actual value should be used while
another commenter requested higher
value shipments should be authorized
to Canada. One commenter
recommended pegging the LVS dollar
value to inflation to allow for
incremental increases to match price
increases over time. One commenter
requested that Canada should have all of
its LVS eligibility specified in its own
LVS paragraph in the ECCN,
distinguishing Canada’s eligibility from
other Country Group B countries. Some
commenters raised concerns related to
License Exception LVS availability,
asserting that it would not curb risky
exports of pistol grips and magazine
clips valued at $500, that it is possible
for companies or individuals to export
many low-value items in one shipment
without a U.S. license, and that it could
fuel gun violence in Mexico and Central
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America. One commenter requested
reducing the LVS eligibility under
ECCN 0A501 from $500 to $100, and
reducing further the commodities that
would be eligible.
BIS response: BIS agrees that License
Exception LVS will be particularly
useful for the firearms industry for low
value shipments and believes that the
license exception is properly scoped in
the dollar value used and the scope of
availability for the reasons outlined in
the Commerce May 24 rule. BIS
emphasizes as specified in the name of
the license exception itself, this license
exception is limited to low value
shipments. This includes the total
quantity for consolidated shipments,
even if a shipper was consolidating
several shipments. BIS also notes that
an exporter is limited to twelve orders
per year to the same consignee. The
terms of License Exception LVS also
strictly prohibit the splitting of orders to
try to evade the applicable LVS dollar
value. In addition, if there are questions
whether an exporter has stayed within
the required scope of LVS, EE can
require exporters to hand over all the
required recordkeeping documents
related to a transaction under License
Exception LVS to identify whether there
has been a violation of the EAR. LVS is
not currently linked to inflation, but the
public may at any time make
recommendations for changes to the
regulations, including suggestions for
revising the LVS dollar values in an
ECCN.
BIS notes that only countries
identified in Country Group B are
eligible to receive commodities under
License Exception LVS. These are
countries that the U.S. Government does
not have export control concerns with
for purposes of the commodities that are
eligible to be authorized under License
Exception LVS. More sensitive
commodities, such as firearms and some
key components, are excluded from
License Exception LVS. As noted in the
Commerce May 24 rule, the ITAR has a
similar type of exemption. Relatedly,
BIS does not believe Canada-specific
provisions are necessary in the License
Exception LVS paragraph of ECCN
0A501 to specify all LVS eligibility for
Canada in one stand-alone paragraph.
First, it would deviate from how LVS is
described in other ECCNs. Second, there
is the potential that an exporter may get
confused and believe LVS is available
for other Country Group B countries
because the same commodities were
identified in more than one LVS
paragraph.
Finally, it is important to note that the
importing country will also have its
own requirements for imports and
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domestic sale and use, including for
commodities such as pistol grips. While
someone like a jeweler or other
craftsman in the U.S. (e.g., a hobbyist
who enjoys engraving pistol grips with
western cowboy motifs) could use
License Exception LVS, it would not be
available for larger transactions, such as
someone wanting to export to a retail
store in a foreign country.
New ECCN 0A502: Shotguns and
Certain Related Commodities
Comment 38: One commenter
requested revising the heading of ECCN
0A502 to specify the parts and
components enumerated in the heading
are shotgun parts and components.
BIS response: BIS agrees, and this
final rule revises the heading to specify
that parts and components enumerated
in the heading of ECCN 0A502 are
shotgun ‘‘parts’’ and ‘‘components.’’ BIS
also makes one other change to address
the issue of clarity raised by this
commenter. This final rule adds a note
to ECCN 0A501 to specify that ‘‘shotpistols’’ will be controlled as shotguns.
Comment 39: One commenter
requested that rather than having the
items controlled contained in the ECCN
heading, BIS should enumerate the
shotguns in separate ‘‘items’’ paragraphs
that track with the different reasons for
control for the different size shotguns in
the ‘‘items’’ paragraph to ease the
compliance burden for exporting these
shotguns.
BIS response: BIS does not agree. The
license requirement section in this final
rule is already consistent with the
current control text, applying CC
Column 2 and CC Column 3 as
appropriate depending on the
destination. BIS already uses this
structure for long barreled shotguns,
which this final rule moves to ECCN
0A502.
Comment 40: One commenter
requested that the final rule define
antique shotguns in ECCN 0A502 to
capture those guns made ‘‘in or before
1898,’’ consistent with the definition of
antique rifles and handguns in the Gun
Control Act of 1968.
BIS response: BIS agrees, and this
final rule adds a new Note 1 to 0A502
specifying that shotguns made in or
before 1898 are considered antique
shotguns and designated as EAR99.
Comment 41: One commenter
requested BIS clarify the control status
of accessories of optics, e.g., sunshades
or other anti-glare devices.
BIS response: BIS clarifies that
sunshades or other anti-glare devices if
not enumerated or otherwise described
in ECCN 0A502 or any other ECCN are
designated as EAR99.
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Comment 42: One commenter
requested that the description in the
‘‘Related Controls’’ paragraph of ECCN
0A502 be made consistent with how
such shotguns are referred to in the
revised USML Category I.
BIS response: BIS agrees, and this
final rule removes the phrase ‘‘combat
shotguns’’ wherever it appears in ECCN
0A502, including in the ‘‘Related
Controls’’ paragraph. BIS in this final
rule also removes references to ‘‘combat
shotguns’’ in ECCN 0A505.
Comment 43: One commenter
requested in order to have consistent
controls and exceptions for similar
commodities, that BIS allow the use of
License Exception LVS for ECCN 0A502
parts and components to the same
extent proposed for 0A501, e.g., for
shotgun trigger mechanisms, magazines,
and magazine extensions.
BIS response: BIS agrees, and in this
final rule revises the LVS paragraph in
the License Exceptions section of ECCN
0A502 to add LVS eligibility of $500 for
the same types of parts and components
for ECCN 0A502 shotguns that are
available for LVS under 0A501.
Complete shotguns will continue to be
excluded.
Comment 44: One commenter
asserted that to facilitate the use of
License Exception LVS, the ECCN
0A502 heading should be changed to
‘‘Shotguns and related commodities
(See List of Items controlled) . . .’’ and
then under the ‘‘List of Items
Controlled’’ parts and components
should be enumerated to include
‘‘complete trigger mechanisms,’’
‘‘magazines,’’ and ‘‘magazine extension
tubes.’’
BIS response: BIS does not agree. BIS
in this final rule continues to enumerate
‘‘parts’’ and ‘‘components’’ in the
heading, but in the interest of clarity it
also includes the specific eligible
commodities in the LVS paragraph.
New ECCN 0A504: Optical Sighting
Devices and Certain Related
Commodities
Comment 45: One commenter
asserted that the proposed Note 1 to
0A504.f states that ‘‘0A504.f does not
control laser boresighting devices that
must be placed in the bore or chamber
to provide a reference for aligning the
firearms sights.’’ This commenter
asserted there are a variety of
boresighting devices that are placed
over the muzzle of the barrel instead of
inside the bore or chamber and perform
the same function as those described in
the note. For these reasons, the
commenter requested that this Note be
revised to read as follows: ‘‘0A504.f
does not control laser boresighting
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devices that provide a reference for
aligning the firearms sights. This
includes any laser boresighting device,
regardless of how it attaches to the
firearm (e.g., boresights that fit over the
muzzle of the barrel), which performs
the same function.’’
BIS response: BIS does not agree.
Revising Note 1 to 0A504.f would make
it difficult to distinguish between what
the commenter is proposing and a laser
pointer. The note included in this final
rule makes it clear that those
commodities that are placed inside a
bore or chamber would preclude its
subsequent use as or with a firearm.
Comment 46: One commenter
requested License Exception LVS
should be made available for ECCN
0A504.g commodities that are similarly
insignificant as those commodities
eligible in ECCN 0A501.
BIS response: BIS agrees, and this
final rule includes License Exception
LVS eligibility for ‘‘parts’’ and
‘‘components’’ classified under ECCN
0A504.g.
New ECCN 0A505: Ammunition and
Certain Related Commodities
Comment 47: One commenter
recommended revising ECCN 0A505.a
to include ammunition for firearms
controlled in USML Category I that may
not otherwise be captured by adding the
phrase ‘‘or USML Category I’’ to clarify
that ammunition for these type of
firearms is also controlled under ECCN
0A505.a.
BIS response: BIS agrees, and this
final rule incorporates the suggested text
to clarify that ammunition for firearms
in both ECCN 0A501 and USML
Category I will be controlled under
0A505.a, provided it is not enumerated
elsewhere in 0A505 or in USML
Category III.
Comment 48: One commenter
requested BIS revise ECCN 0A505 to
include a note similar to the Note to
0A018.b to specify that dummy
ammunition is designated EAR99.
BIS response: BIS agrees, and this
final rule adds a Note 4 to 0A505 to
specify that all dummy and blank
(unless linked or belted) ammunition,
not incorporating a lethal or non-lethal
projectile(s) is designated EAR99.
Comment 49: One commenter
asserted that there are several magazine
manufacturers in the U.S. producing
magazines of greater than 50 rounds that
would benefit from also having their
magazine moved to the CCL. This
commenter asserted that limiting this
magazine capacity to 50 rounds or less
does not protect any special U.S. or
allied military advantage, but magazines
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of greater than 50 rounds are commonly
found and manufactured worldwide.
BIS response: BIS does not agree.
Magazines with a capacity of 50 rounds
or less are appropriate on the CCL, and
magazines greater than 50 rounds
warrant ITAR control.
Comment 50: One trade association
commenter noted that proposed ECCN
0A505 included an allowance for
License Exception LVS of $100 for
0A505.x ‘‘parts’’ and ‘‘components,’’ but
that firearm parts and components
under 0A501 have an LVS allowance of
$500. This commenter asserted that its
members feel this is an inconsistency in
the treatment of related commodities.
The commenter asserted that in recent
years, costs related to ammunition
components have been increasing, with
the largest increases affecting larger
caliber cartridges. This commenter
asserted that the ‘‘$100 limit on LVS
will be quickly met with small amounts
of components, making this exception
not as useful as intended.’’ Another
commenter asserted that the ITAR
allows for $500 per shipment, so $100
net under EAR would be more
restrictive than ITAR exemption.
BIS response: While the ITAR does
not have an exemption for exports of
ammunition parts and components, BIS
agrees, and this final rule raises the LVS
dollar value from $100 to $500 for ECCN
0A505.
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New ECCN 0A602: Guns and Armament
Comment 51: One commenter
suggested revising ECCN 0A606 to
clearly identify engines for selfpropelled guns and howitzers as
controlled therein rather than in 0A602.
BIS response: BIS notes that the
USML Order of Review and CCL Order
of Review would likely already address
this. However, this final rule adds a
Related Controls paragraph (3) and a
new note to ECCN 0A602.x to clarify the
appropriate classification, but it does
not add such a note to ECCN 0A606.
New ECCN 0B501: Test, Inspection and
Production Equipment for Firearms
Comment 52: One commenter
requested guidance on what is the
definition of production equipment
under ECCN 0B501.e. This commenter
asserted that it has ‘‘many hobbyist
customers who would not qualify as a
gunsmith let alone as a manufacturer
and tools and equipment designed for
hobbyists are quite different than
manufacturing equipment . . . yet we
have a concern these tools will be
included in 0B501.e because even the
hobbyist is ‘producing’ a firearms part.’’
BIS response: The term ‘‘production’’
is a defined term in part 772.
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‘‘Production’’ means all production
stages, such as: Product engineering,
manufacture, integration, assembly
(mounting), inspection, testing, and
quality assurance. Part 772 also includes
a definition of ‘‘production equipment’’
that includes tooling, templates, jigs,
mandrels, moulds, dies, fixtures,
alignment mechanisms, test equipment,
other machinery and components
therefor, limited to those specially
designed or modified for
‘‘development’’ or for one or more
phases of ‘‘production.’’ The definition
of ‘‘production equipment’’ in part 772
applies only in the Missile Technology
Control Regime context, but for
purposes of this comment, the
definition of ‘‘production’’ and the
definition of ‘‘production equipment’’
provides the needed guidance. BIS also
emphasizes that the person using the
production equipment does not change
the classification of the production
equipment. Importantly, domestic use—
that is use of production equipment in
the United States—does not implicate
export controls.
Comment 53: One commenter
requested BIS ensure there were no gaps
for the production equipment controls
on the CCL for USML Category I items
as well as Category III items.
BIS response: BIS agrees. To ensure
there are no gaps in production
equipment for USML Category I, this
final rule expands ECCN 0B501.e to
include all production equipment
‘‘specially designed’’ for USML Category
I items. It also expands ECCN 0B505.a
to include all production equipment
‘‘specially designed’’ for USML Category
III items.
New ECCN 0B602: Test, Inspection and
Production Equipment for Certain Guns
and Armament
Comment 54: One commenter
requested adding examples of specific
tooling that would be controlled under
ECCN 0B602, such as a note including
ECCN 0B602 boresights and units made
specifically for testing purposes.
BIS response: BIS does not agree to
this addition. As described above, part
772 defines ‘‘production’’ and
‘‘production equipment,’’ so these
existing definitions already address this
comment.
New ECCN 0E501: Technology for
Firearms and Certain Related Items
Comment 55: One commenter
requested BIS clarify how ‘‘technology’’
is defined for 0E501 and whether
shooting chronographs or empty brass
cartridge annealing machines are
included in the definition of
‘‘technology.’’
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BIS response: BIS clarifies that the
definition of ‘‘technology’’ in part 772
applies to ECCN 0E501 and any other
Product Group E ECCNs on the CCL,
including the other Product Group E
ECCNs this final rule adds, e.g., 0E505.
In addition, BIS clarifies that shooting
chronographs or empty brass cartridge
annealing machines are end items and
generally designated EAR99. Therefore,
the examples given fall outside the
Commerce definition of ‘‘technology.’’
Comment 56: BIS received a number
of comments on the concept of ‘‘defense
services,’’ including concerns about the
lack of defense services controls under
the EAR, the potential loss of U.S.
Government oversight on many types of
defense services, and concerns about
firearms training being provided to
foreign security forces without U.S.
Government approval. There were also
concerns raised about the ability of U.S.
companies to provide a wide range of
assistance and training to foreign
persons without sufficient U.S.
oversight and a suggestion that the
definition of ‘‘technology’’ be expanded
to capture these defense-service type
activities, such as private security
contractor training of foreign police
with firearms. One commenter asserted
that ‘‘the proposed rule could also
create an unfortunate scenario where
U.S. private security contractors are able
to provide services to foreign security
units or militias that are otherwise
prohibited from receiving training
through U.S. foreign security aid.’’
BIS response: BIS clarifies that
defense services is specific to the ITAR,
but the EAR maintains controls related
to exports, reexports, and in-country
transfers of commodities, software, and
technology in a number of ways. For
example, a U.S. person is prohibited
from engaging in exports, reexports, or
in-country transfers related to certain
end uses (as specified in § 744.6) or a
‘‘knowing’’ violation (as specified in
§§ 764.2(e) and 736.2(b)(10)). In
addition, as part of providing a service,
a person must determine whether there
will be an export, reexport, or incountry transfer of any commodities,
software, or technology requiring an
EAR authorization. Accordingly,
although the EAR generally does not
control services directly, the EAR is still
highly effective at protecting U.S. export
control interests implicated by the
supply of services in connection with
exports, reexports, or in-country
transfers. The effectiveness comes by
controlling the technology—e.g.,
‘‘technology’’ for how to produce a
firearm. The release of technology is the
key nexus where providing a service
crosses over into a transaction that is
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subject to the EAR and that merits
control. In most cases, the analysis will
focus on whether any technology that is
subject to the EAR will be released as
part of providing the service. The
release of technology moved from
USML Categories I–III will require a
U.S. Government authorization, except
for 0E602 technology being exported to
Canada which may be exported No
Licensed Required (‘‘NLR’’).
For example, providing design and
development assistance, testing, and
production assistance on firearms and
ammunition to foreign persons would
be a release of ‘‘technology’’ subject to
the EAR and require an EAR
authorization, unless the information
being released fully met the criteria in
part 734 for exclusion from the EAR.
The EAR requirements would apply if
the technology was being exported. The
EAR requirements would also apply if
the technology was being released in the
United States to a foreign national as a
deemed export, including technology
released through training.
BIS cautions against assuming that no
U.S. Government authorization is
required to provide training to foreign
security forces. Providing military
training of foreign units and forces
would still be a defense service
regulated by the ITAR. Questions on
whether a specific service may be a
defense service should be directed to
the Department of State. For purposes of
the EAR, as described above, the
question centers on whether any items
that are subject to the EAR are provided
as part of that service, and if such items
are related to firearms, then U.S.
Government authorization will be
required.
BIS notes that if an item, such as the
firearms moved to the CCL in this final
rule, is being exported under the
Foreign Military Sales (FMS) program,
those items are not ‘‘subject to the
EAR’’—meaning the EAR would not
apply and for purposes of the AECA
those items being exported under an
FMS letter of offer and acceptance are
defense articles subject to State
Department controls under 22 U.S.C.
2794(3) for the specific transaction. BIS
also notes that for non-FMS U.S. foreign
security aid, the granting U.S.
organization can include provisos as
needed as part of the aid agreement that
imposes any necessary restrictions the
aid granting U.S. agency believes is
warranted. In addition, BIS through the
licensing process can impose conditions
as warranted on licenses to ensure
consistency with other requirements as
needed. As noted above, the Department
of State is a licensing review agency for
Commerce licenses and can advise on
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Commerce export licenses as warranted
if additional conditions may be needed
in furtherance of a direct commercial
sale as part of U.S. foreign security aid.
Comment 57: One commenter
asserted that because of the narrowness
of the definition of ‘‘required,’’ it
‘‘means companies may be able to
provide a wide range of training
activities, design and development
assistance, testing, and production
assistance on firearms and ammunition
to foreign persons without sufficient
scrutiny and oversight.’’
BIS response: BIS does not agree. The
term ‘‘required’’ is an EAR defined term
and is a well understood concept used
on the control lists of the multilateral
export control regimes. The EAR has
effectively controlled ‘‘technology’’ for
various other sensitive and sometimes
lethal items using the existing definition
and concept of ‘‘required.’’
Comment 58: One commenter
asserted that ‘‘in 2016, U.S. registration
for firearms manufacturing activities
was deemed so important that DDTC
issued specific guidance providing that
a broad range of activities (e.g., use of
any special tooling or equipment
upgrading in order to improve the
capability of assembled or repaired
firearms, and rechambering firearms
through machining, cutting, or drilling)
constitute ‘‘manufacturing’’ and
required registration.’’ This commenter
asserted it was concerned because this
2016 guidance will not apply to
Category I–III items moving to the CCL.
BIS response: BIS clarifies that
individuals have been able to lawfully
make their own firearms in the United
States, but not for reselling. ATF
licenses domestic manufacturers. The
types of gunsmithing services described
by this commenter are not considered
‘‘production’’ under the EAR.
Revision to ECCN 0A018
Comment 59: Some commenters
requested removing ECCN 0A018 and
transferring those commodities to
0A505, so all commercial firearms,
ammunition, and related items could be
in one of the series of new 0x5zz ECCNs
and not be left behind in legacy xY018
entries. The commenter suggested that
once the items in the proposed ECCN
0A018.b are moved to 0A505, and
controlled in the same manner, then
0A018 could be removed. Another
commenter requested the commodities
classified in ECCN 0A018.b for
‘‘specially designed’’ components
should be controlled under 0A505.x.
The commenter also requested that the
decontrol note in ECCNs 0A018.b be
transferred to 0A505 so that the current
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EAR99 status of such items is
maintained.
BIS response: BIS agrees with these
requested changes. This final rule
removes the items controlled under
ECCN 0A018 and adds these
commodities to 0A505 but retains the
heading of ECCN 0A018 and adds a
cross reference to ECCN 0A505. This
final rule removes the commodities
controlled under ECCN 0A018, because
this final rule controls these
commodities under 0A505.d or .x. As
conforming changes, this final rule
removes ECCN 0E018, because 0E505 is
broad enough to control this technology
and revises the heading of ECCN 0A988
to remove an outdated reference to
ECCN 0A018.d.1. ECCN 0A018.d
paragraph is reserved in 0A018, so this
reference in 0A988 should have been
updated in an earlier rule.
BIS clarifies that the control
parameters of ECCN 0A505.x in this
final rule are broad enough to control
commodities classified in ECCN
0A018.b for ‘‘specially designed’’
components controlled under 0A505.x.
without further revisions. This final rule
adds a Note 4 to ECCN 0A505 to address
the commenters’ request related to the
decontrol note in 0A018.
Conforming Change to General Order
No. 5
Comment 60: One commenter
requested that licenses already granted
under the ITAR should be grandfathered
for all outstanding transactions.
BIS response: BIS clarifies here that
this was already addressed with the
revisions proposed in the Commerce
May 24 rule for General Order No. 5,
which adds 0x5zz ECCNs to General
Order No. 5 and will be adopted in this
final rule. The current General Order
No. 5 includes grandfathering
provisions and allows for applying for
Commerce licenses once a final rule is
published, but not yet effective.
Revisions to Regional Stability Licensing
Policy for Firearms and Ammunition
Comment 61: Several commenters
raised concerns that laws against the
provision of arms where certain human
rights abuses are of concern may not
apply to the 0x5zz ECCNs and that the
role of the Bureau of Democracy,
Human Rights, and Labor (DRL) at the
Department of State would be
diminished. One commenter asserted
that the Department of State would no
longer have a statutory basis for vetoing
a proposed sale on human rights
grounds for firearms, guns, ammunition,
and related parts that move to the CCL.
BIS response: As described above, BIS
disagrees with the assertion that there
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will be less focus on protecting human
rights under the EAR. This final rule
will control these items for Regional
Stability and the license review policy
specifies that human rights concerns are
considered as part of the license review
process. As referenced above, the
Department of State is a license review
agency for Commerce licenses, and the
existing E.O. 12981 and EAR provide
that other license review agencies have
30 days for review of Commerce license
applications. E.O. 12981 does not
specify what parts of those other
agencies must review a Commerce
license application, but the Department
of State has discretion to ensure that
DRL receives and reviews Commerce
licenses.
This final rule includes a license
review policy for regional stability to
indicate license applications will also
take into consideration human rights
concerns, which can be a basis for
denial. BIS also notes that there is a
presumption of denial policy for license
applications involving narcotics
traffickers, criminal organizations, and
terrorists because of their frequent
involvement in human rights abuses, as
well as other regional stability concerns.
Crime Control and Detection License
Review Policy
The Commerce May 24 rule did not
propose changes to the crime control
and detection license review policy in
part 742, but commenters made
recommendations in this area that are
described and responded to below.
Comment 62: One commenter
recommended that ‘‘in order to bring the
proposed regulations into alignment
with provisions of the Foreign
Assistance Act [22 U.S.C. 2304(a)(2),
which makes explicit reference to crime
control equipment under the aegis of the
(expired) Export Administration Act],
ECCN 0A501.a should be controlled for
crime control.’’
One commenter requested that BIS
provide the police profession a greater,
better-defined role in the evaluation of
firearm export license applications and
possibly form a technical advisory
committee (TAC). Another commenter
requested that licensing officials should
consider the effect of proposed exports
on local communities, public safety,
peace officer safety, crime control, and
control of civil disturbances to assure
that the rule of law is not impaired by
firearm exports.
One commenter asserted that highly
destructive weapons should not be
exported to civilians. This commenter
recommended ‘‘a maximum limit on
firepower exported to civilians.
Firearms with a muzzle energy higher
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than 5,000 Joules should be barred from
export to non-government end-users.’’
BIS response: BIS notes that the NS 1
and FC 1 license requirement included
in this final rule for ECCN 0A501.a, as
well as ECCN 0A501.b, will ensure U.S.
multilateral commitments are met. In
addition, the RS 1 license requirement
and license review policies is revised in
this final rule to further address the
types of human rights concerns, as well
as imposing a presumption of denial
license review policies for certain types
of end users of concern, such as
narcotics traffickers, will ensure U.S.
export control interests are protected
and that exports are not approved that
would otherwise not be consistent with
the Foreign Assistance Act. As was
discussed above, the U.S. Government
agency granting aid to a foreign country
will also have the ability to impose
certain provisos as part of that foreign
assistance agreement, and all exports
made under the FMS programs are
authorized by the Department of State.
As warranted, there is nothing that will
preclude BIS from consulting with other
agencies of the U.S. Government
regarding a particular license
application.
BIS agrees that getting regular input
from the police profession and those
with expertise from the private sector
will be beneficial but notes that this can
be accomplished through BIS’s existing
TACs rather than through the creation of
a new TAC. BIS notes that agency rules
are regularly reviewed by BIS’s EE as
well as other agencies with law
enforcement components.
BIS does not agree that an outright
prohibition is needed to protect U.S.
national security and foreign policy
interests under the EAR. Imposing such
a worldwide prohibition would be more
restrictive than how these firearms were
regulated under the ITAR and would
impose significant burdens on the U.S.
firearms industry that may result in
significant U.S. job losses in the
firearms and related industries. BIS
appreciates the time and thought that
went into the detailed suggested change,
but an outright prohibition was not
contemplated in the Commerce May 24
rule, would arbitrarily single out one
industry for more restrictive control and
is not needed to protect U.S. export
control interests, as those interests can
be served through the regulatory regime
set forth in the EAR.
License Exception TMP
Comment 63: One commenter
requested increasing the number of
items allowed for temporary export
under § 740.9(a)(5) to 100 per shipment
to more closely align with commercial
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expectations and practices. Another
commenter asserted that larger film
productions such as war movies, will
oftentimes require well beyond 75
firearms.
BIS response: BIS does not agree with
expanding § 740.9(a)(5) of TMP to allow
for 100 firearms per shipment or to
address a particular type of export. The
exhibition and demonstration
authorization under paragraph (a)(5) of
License Exception TMP is intended to
provide for a sufficient quantity of
firearms, and if an exporter needs a
larger quantity, e.g., 100 or even 1,000
firearms for exhibition or
demonstration, that the exporter may
apply for a license to authorize the
export. BIS maintains the status quo for
how large temporary shipments of
firearms are handled under the ITAR,
which is through a licensing process
that allows BIS to include any
additional conditions to ensure the
export will not be diverted.
Comment 64: BIS received comments
requesting modifications to License
Exception TMP, including to allow for
the use of License Exception TMP
(§ 740.9) under paragraph (a)(10) to
transfer firearms to affiliates, such as a
foreign parent or subsidiary; to allow
TMP paragraph (b)(1) to be used to
authorize temporary import and
subsequent export of items moving in
transit through the United States; and to
allow for temporary importation for a
period of one year. BIS also received a
comment requesting extensions of
temporary imports imported under
paragraph (b)(5) to not be more
restrictive than the ITAR.
BIS response: BIS does not accept
these changes. Under this final rule, an
exporter may apply for a license to
authorize these same types of exports of
firearms to affiliates. In addition, BIS
notes that License Exception STA is
available for parts and components, e.g.,
those that this rule will control under
ECCN 0A501.x, when the export,
reexport, or transfer (in-country) is to a
Country Group A:5 country, including
affiliates. License Exception STA is
more restrictive than paragraph (a)(10)
of License Exception TMP, but because
of the sensitivity of the items involved
it is not appropriate to allow for the
paragraph (a)(10) authorization to be
available. As for firearms transshipped
through the United States, § 740.9 (b)(3),
(4), and (5) will be available to authorize
the export and will be sufficient to
address concerns about such
authorizations.
BIS does not accept the suggested
change to the time limitation in
§ 740.9(b)(5) to lengthen it from one year
(as included in the Commerce May 24
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rule) to four years because one year will
be sufficient for these types of
temporary end uses in the U.S. For the
same reason, BIS also does not accept
the suggestion to allow for extensions of
temporary imports made under
paragraph (b)(5) as suggested by one
commenter.
Comment 65: One commenter noted
that the proposed additions to § 740.9
included an instruction directing
temporary importers and exporters to
contact CBP at the port of temporary
import or export, or at the CBP website,
for the proper procedures to provide any
data or documentation required by BIS.
The commenter suggested that BIS and
CBP coordinate to create standardized
instructions for all ports that can be
made available online, so that each
shipment does not have to be specially
coordinated.
BIS response: BIS agrees and will take
steps, in coordination with CBP, to
create standardized instructions for all
ports that can be posted online prior to
the effective date of this final rule.
Comment 66: One trade association
commenter asserted that ‘‘new
paragraph (b)(5) in License Exception
TMP and the related provisions in
§ 758.10 that detail the process for
temporary import and subsequent
export of these items is fair and
reasonable.’’ This commenter asserted
‘‘it is common practice to cite the
regulatory exception for the temporarily
imported commodities at the time of
import, then reference the import
documents at time of return export of
the goods’’ and does not believe the
process in the Commerce May 24 rule
will cause any additional burden to
exporters.
BIS response: BIS agrees and adopts
these provisions in this final rule as
proposed.
Comment 67: One commenter
requests License Exception TMP be
expanded beyond paragraphs (a)(5) and
(6) to also allow for use in film
production for subsequent permanent
return to the United States.
Alternatively, one commenter requests
that BIS should consider a procedure or
license, similar to a DSP–73, to allow for
the temporary export and re-importation
of firearms. Another commenter
asserted that BIS should provide
additional guidance on the return of
temporary exports under the new
paragraph (b)(5) under License
Exception TMP.
BIS response: BIS confirms that
License Exception TMP under
paragraphs (a)(5) and (6) will not be
available in that type of a fact pattern,
but a Commerce license could be
applied for to authorize these types of
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exports. As noted above, Commerce
licenses are flexible enough to authorize
temporary exports that are not otherwise
eligible for License Exception TMP. The
importation into the United States after
temporary export will not require a
separate EAR authorization. BIS agrees
providing guidance for the import of
items temporarily exported will be
helpful and clarifies that the import of
items temporarily exported does not
require an EAR authorization for import.
License Exception GOV
Comment 68: One commenter
asserted that the phrase ‘‘or other
sensitive end-users’’ is unclear and
recommended deleting the phrase or
enumerating the specific types of
ineligible entities.
BIS response: BIS includes a
parenthetical phrase in the final rule
under the new Note 2 to paragraph
(b)(2) to include illustrative examples of
other sensitive end-users. This final rule
adds the parenthetical phrase ‘‘(e.g.,
contractors or other governmental
parties performing functions on behalf
of military, police, or intelligence
entities)’’ after the phrase ‘‘or other
sensitive end-users’’ to provide greater
clarity on the other end-users that are
excluded.
License Exception BAG
Comment 69: Several commenters
expressed opposition to the requirement
for individuals to have to file in AES for
personally owned firearms and
ammunition exported under License
Exception BAG, that was included in
the Commerce May 24 rule. The
commenters expressed concerns that
requiring individuals to file in AES is
problematic and unduly burdensome;
that there is not a genuine need for this
information and would violate the spirit
of congressional prohibitions against
Federal firearm registries; and that
Department of State and CBP already
tried requiring AES filing for
individuals under the ITAR and it was
not workable. Commenters identified a
number of issues with the AES filing
system for individuals, including the
cost to create accounts, the
compatibility of the hardware and
software, concerns that IRS and Census
requirements are in conflict, and the
mismatch of required information for
individuals with the fields that are
currently in AES that are oriented to
commercial exports.
For these reasons described above,
several commenters requested use of
CBP Form 4457 as the permanent
solution. Some commenters asserted
that CBP Form 4457 serves an important
purpose for some foreign governments,
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but could be improved by harmonizing
CBP procedures for Form 4457 between
different CBP offices to ensure the forms
are being issued consistently. Some
commenters asserted that they would
support a simplified system that would
be based on U.S. passports, possibly
linked to an electronic version of the
CBP Form 4457.
BIS response: BIS was aware of these
types of concerns, including the recent
history of this issue under the ITAR.
The Commerce May 24 rule stated that
whether and how BIS includes this
requirement in a final rule would be
based on whether CBP is able to update
its processes, and other agencies as
needed, to allow for individuals to
easily file EEI in AES by the time a final
rule is published. The Commerce May
24 rule also noted that if CBP is not able
to do so, then the final rule may direct
exporters to continue to use CBP’s
existing process, which is the use of the
CBP Form 4457, until a workable
solution is developed or CBP suggests
an alternative simplified solution for
gathering such information for
temporary exports of personally-owned
firearms and ammunition.
At this time, BIS notes that CBP and
the U.S. Census Bureau have not made
changes to the AES system on the
Automated Commercial Environment
(ACE) that would address the concerns
expressed. Therefore, taking that into
account and the comments received on
the Commerce May 24 rule, this final
rule does not adopt the requirement for
individuals exporting their personally
owned firearms and ammunition under
License Exception BAG to file in AES.
Instead, this final rule incorporates the
requirement for individuals to file the
CBP Form 4457. BIS notes that if CBP
and the U.S. Census Bureau later adopt
changes that would address the
underlying issues, or if CBP adopts
changes to the process for submitting
the CBP Form 4457, then BIS would
make conforming changes to the EAR.
Comment 70: BIS also received
comments expressing concern over the
availability of License Exception BAG
for firearms. One commenter requested
that the provision authorizing licensefree exports of semi-automatic rifles by
citizens and legal permanent residents
should be removed, because a sufficient
justification was not provided in the
Commerce May 24 rule. Another
commenter asserted that if a firearm is
stolen or lost that is exported under
License Exception BAG, there will be
little that can be done to recover the
weapon. The commenter also asserted it
will be easier for smugglers to take
advantage of License Exception BAG to
facilitate trafficking. One commenter
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expressed concern that foreigners
temporarily in U.S. will abuse License
Exception BAG. One commenter
asserted that the May 24 rule would not
stop non-resident aliens leaving the
United States via commercial airlines
from taking firearms ‘‘accessories,’’
‘‘attachments,’’ ‘‘components,’’ ‘‘parts,’’
and ammunition with them.
BIS response: BIS acknowledges these
concerns but disagrees that additional
changes to this final rule are warranted.
The availability of License Exception
BAG will be made to be consistent with
22 CFR 123.17(c), which authorizes U.S.
persons to take up to three nonautomatic firearms and up to 1,000
cartridges therefor abroad for personal
use. As far as the potential for items to
be lost or stolen, License Exception BAG
requires the exporter to maintain control
of their personal belongings and to
return with those items unless
destroyed overseas and the
requirements are more straightforward
than a commercial transaction in which
there are multiple parties. BIS notes that
related to loss or theft the concern
applies equally if a firearm was
exported under a Commerce license.
Further, the U.S. Government maintains
oversight through the requirement in
this final rule for the CBP Form 4457 to
be filed, along with the export
requirements to present the firearm to
CBP prior to export under License
Exception BAG. In addition, this final
rule requires the serial number, make,
model, and caliber of the firearm to be
included on the CBP Form 4457. When
the U.S. citizen or permanent resident
alien returns, the U.S. Government
expects and requires that the same
firearm to be returned as included on
the CBP Form 4457. Failure to comply
with these requirements could subject a
U.S. citizen or permanent resident alien
to administrative and/or criminal
penalties depending on the specifics of
the potential violation. BIS notes that
License Exception BAG for non-resident
aliens will be limited to allowing
nonresident aliens leaving the United
States to take firearms, and ammunition
controlled by ECCN 0A501 or 0A505
that they lawfully brought into the
United States, under the provisions of
Department of Justice regulations at 27
CFR part 478. This is an important
safeguard to ensure that the items being
exported under License Exception BAG
are limited to those that were lawfully
brought into the U.S. The availability of
License Exception BAG for these nonresident aliens will also be consistent
with 22 CFR 123.17(d), which
authorizes foreign persons leaving the
United States to take firearms and
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ammunition controlled under Category
I(a) of the USML (both non-automatic
and semi-automatic) that they lawfully
brought into the United States. The
export of ‘‘accessories,’’ ‘‘attachments,’’
‘‘components,’’ and ‘‘parts’’ is not
eligible for License Exception BAG and
would require a separate U.S.
Government authorization.
Comment 71: One commenter noted
that § 740.14(c)(1) ‘‘Limits on
eligibility’’ currently states that the
items must be ‘‘owned by’’ the
individuals rather than ITAR
§ 123.17(c)(3)’s focus on the person’s
‘‘exclusive use’’ and recommended
conforming the EAR with the ITAR’s
scope.
BIS response: BIS does not agree. The
requirements in § 740.14(c)(1) apply to
all items that subject to the EAR that are
eligible, so these requirements are
intended to be broader than the
exclusive use limitation in paragraph (e)
(Special provisions for firearms and
ammunition).
Reporting Requirements
Comment 72: BIS received a number
of comments related to reporting
requirements. One commenter asserted
that it appears that requiring
conventional arms reporting for firearms
to be controlled under ECCN 0A501.a
and .b would add welcomed specificity
to reports required by the United
Nations and the Wassenaar
Arrangement while another commenter
was concerned that firearms are being
singled out for conventional arms
reporting. One commenter asserted that
exporters should not have to submit
reports under the conventional arms
reporting for the Wassenaar
Arrangement and the United Nations
because BIS already has ways to obtain
this information from other U.S.
Government sources.
BIS response: BIS agrees that the
conventional arms reporting
requirements will improve transparency
and meet U.S. Government multilateral
commitments to the Wassenaar
Arrangement and the United Nations.
BIS notes that other USML Categories
that were revised that moved items to
the CCL under ‘‘600 series’’ and 9x515
ECCNs were not identified under the
Wassenaar Arrangement or United
Nations List for requiring reporting for
conventional arms. Some of the USML
Category I items being moved to the CCL
are identified under the Wassenaar
Arrangement or United Nations List for
requiring conventional arms reporting
and thus were included to meet U.S.
Government commitments.
To ease reporting requirements on
exporters as suggested by one
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commenter and provide greater
flexibility for industry, BIS clarifies that
for the reporting required in this final
rule can be accomplished in one of two
ways. First, the exporter can follow the
process outlined in part 743 by sending
in reports to BIS with the required
information. However, because of the
EEI filing requirements in
§ 758.1(g)(4)(ii) for the firearms that
require conventional arms reporting, all
conventional arms reporting
requirements for firearms should be able
to be met by using the alternative
submission method described below in
the regulatory changes. Under the
alternative method, the U.S.
Government will rely on the EEI record
in AES for firearms classified under
0A501.a and 0A501.b, by the exporter
being required to always include as the
first text in the Commodity Description
field in AES the first six characters of
the ECCN number, i.e., ‘‘0A501.a’’ or
‘‘0A501.b.’’
Comment 73: One commenter raised
questions whether the requirements of
the Paperwork Reduction Act (PRA)
were met for imposing a new
requirement and whether this
information would be needed by BIS.
BIS response: BIS had created this
reporting requirement in the April 16,
2013, initial implementation rule,
including providing estimates for the
anticipated burden at that time in
anticipation of the full completion of
the USML to CCL review process and
these end item firearms being moved to
the CCL. BIS makes this clearer in this
final rule, as well as describing the
alternative method that will eliminate
the need for any type of additional
reporting and instead use the data that
will be reported in the EEI filing in AES.
Comment 74: One commenter
asserted that BIS reporting provides
even less data than the Department of
State 665 report and requested that BIS
improve its reporting.
BIS response: In the past, BIS has
provided similar data that is included in
the Department of State 655 report in
the BIS annual foreign policy report and
in reports on the BIS website detailing
exports by country and largest quantity
of ECCNs being exported to the
respective countries. Going forward
under ECRA, BIS will be required to
submit an annual report to Congress that
will include the information specified
in Section 1765 of ECRA, including
implementation of end-use monitoring
of military items on the EAR. BIS notes
because this final rule will require EEI
filing in AES for the firearms moved to
the CCL and CBP Form 4457 for License
Exception BAG, BIS will have data
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available on exports of firearms moved
from USML Category I to the CCL.
Serial Numbers, Make, Model, and
Caliber in AES (§ 758.1(g)(4))
Comment 75: Several commenters
asserted they were opposed to the
expanded data elements (i.e., serial
numbers, make, model, and caliber)
required as part of the EEI filing to AES
for firearms that would be transferred
from the USML to the CCL, suggesting
that the expanded data elements would
exacerbate the problems for private
travelers forced to use the system and
violate the spirit of congressional
prohibitions against Federal firearm
registries. BIS also received comments
asserting that filing in AES poses an
undue burden on exporters to file
information that is otherwise available
to U.S. Government, such as through the
Gun Control Act and ATF regulations,
and that it may violate the PRA because
the burden is redundant. Another
commenter asserted that because of AES
character limitations it may be difficult
or impossible to include the serial
number, make, model, and caliber
information. In addition, one
commenter asserted that the
manufacturer, model number, and
caliber does not assist law enforcement
verify the export because the Foreign
Trade Regulations (FTR) and EAR
already require that the item description
entered in the EEI filing in AES conform
to that shown on the license. One
commenter asserted it generally
supports strong oversight measures for
arms transfers and from that
perspective, it welcomes detailed digital
record-keeping requirements. Another
commenter recommended using the
term ‘‘model’’ or ‘‘model designation’’
rather than ‘‘model number,’’ consistent
with ATF regulations.
BIS response: BIS has included filing
requirements only when necessary to
ensure that export control concerns will
be protected, including export
enforcement and transparency concerns.
As noted above, BIS in this final rule
addresses the concerns about exports
under License Exception BAG by not
requiring an EEI filing in AES for such
exports, though CBP Form 4457 will
require information on the serial
numbers, make, model, and caliber for
the firearms being exported. This much
more focused requirement will also be
responsive to assertions that the
information proposed to be collected
was an undue paperwork burden on
exporters.
While other Federal regulations may
require similar information, BIS would
not have the legal authority to subpoena
or otherwise request the same
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information unless the records are
required to be kept under the EAR. If
different regulations require the same
information, then there should be no
additional burden on exporters or other
relevant parties for maintaining this
information to meet their various
regulatory requirements. Typically, the
EAR is flexible in how specific records
are maintained since it regulates a
variety of industries with different
norms.
For items that are exported under a
U.S. Government authorization for
temporary export, it is still warranted to
require that information to be filed as
EEI in AES. This final rule adopts a
revised requirement in § 758.1(g)(4) to
limit it to temporary exports from the
United States or when the license or
other approval contains a condition
requiring all or some of this information
to be filed as EEI in AES. This final rule
clarifies that a temporary export for
purposes of § 758.1(g)(4) is any export
whereby the EAR authorization requires
subsequent return to the United States
(e.g., License Exception TMP or a
license authorizing a temporary export).
BIS notes that this revised approach
scales back the reporting requirement
significantly, focuses it on exports of the
primary concern for ensuring the U.S.
Government can confirm what was
temporarily exported is what will be
returned, and importantly still retains
the ability of BIS to impose this
condition when warranted on a case-bycase for any particular license where
BIS and the other license review
agencies believe requiring the filing of
this information as EEI in AES is
warranted. BIS is aware that the
Department of State sometimes includes
such a requirement as a proviso on some
of its licenses or approvals for firearms,
so the requirement that is included in
this final rule that retains the ability of
BIS to impose such a condition on
Commerce licenses is consistent with
licensing practices under the ITAR.
BIS has confirmed with CBP and the
U.S. Census Bureau that AES on the
ACE platform can accommodate EEI
filers to submit the serial number, make,
model, and caliber information. Under
the current ITAR licensing practices,
sometimes provisos are included on a
State license or other approval that
requires this information to be entered
as EEI in AES, and BIS is not aware of
the current system not permitting the
proper filing of this information as EEI
in AES.
BIS generally supports strong
oversight. It also accepts the
recommendation to adopt the term
‘‘model’’ instead of the proposed
‘‘model number.’’
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Comment 76: Two commenters
asserted that the only place where the
reporting requirement of serial numbers,
make, model, and caliber may be
warranted was for License Exception
TMP. One of these commenters noted
that ‘‘such a requirement of mandatory
serial number reporting in AES might
make sense only for temporary exports
and imports under TMP in particular, to
allow re-import procedures to be
followed and verified.’’ However, the
requirements proposed in new
§§ 758.10(b)(1)(ii) and 740.9(b)(5)(iv)(B)
already cover this by requiring serial
numbers as part of a complete list to be
submitted to CBP at the time of import
and/or export.
BIS response: BIS clarifies that the
reference in License Exception TMP in
new §§ 758.10(b)(1)(ii) and
740.9(b)(5)(iv)(B) are for information to
be provided at the time of temporary
import and export of firearms
temporarily in the United States. The
proposed requirements in
§ 758.10(b)(1)(ii) in the phrase ‘‘or other
appropriate import documentation (or
electronic equivalents)’’ and the
reference to ‘‘or electronic equivalents’’
was referring to the possibility that such
information could be provided to CBP
in person or electronically by using the
ACE portal at the time of temporary
import and subsequent export, so BIS
does not see an inconsistency with the
proposed requirement and therefore will
include the requirement in this final
rule as originally proposed. BIS agrees
with the commenter’s assertion that for
firearms temporarily exported under
License Exception TMP under
paragraph (a)(6), there is a possibility
that in certain cases the returned firearm
may not be the same. This final rule
includes a Note 3 to paragraph (g)(4) in
§ 758.1 to provide guidance on that
issue.
Entry Clearance Requirements for
Temporary Imports
Comment 77: BIS received comments
asserting that foreign visitors exporting
personal firearms after temporary
import should not have to file in AES
for many of the same reasons why filing
in AES for exports authorized under
License Exception BAG is not
appropriate. Another commenter
asserted that such AES declaration
requirement would discourage foreign
participants from coming to the U.S. for
hunting and competitive shooting.
BIS response: BIS does not agree with
these assertions. As noted above, one of
the permissible identifiers in filing in
AES is a foreign passport, so the most
substantive concern for individuals
filing in AES does not apply for these
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filings. In addition, those using License
Exception TMP will generally be
companies, so the concerns expressed
about AES being more oriented to
companies compared to individuals also
does not apply. For these reasons, BIS
in this final rule publishes the changes
as proposed. In addition, as noted
above, each country, including the
United States, imposes requirements
that it believes are warranted to regulate
the importation and use of firearms in
its country. U.S. hunters and
competitive shooters that travel overseas
and foreign hunters and competitive
shooters who come to the United States
understand that firearms are regulated.
Comment 78: One commenter
asserted that the ATF Form 6NIA can
confirm that the individual is returning
with the same firearm that was brought
to the U.S., so there is no need to
require EEI filing in AES.
BIS response: BIS does not accept this
change. To properly administer and
enforce export controls, BIS must have
access to basic information about an
item and cannot solely rely on
information collected by another
agency, though this information, as
appropriate, could supplement
information collected by BIS.
Comment 79: One commenter
asserted that the ITAR does not have the
same type of EEI filing in AES
requirement, so including this under the
EAR would be more restrictive.
BIS response: BIS clarifies here that
under the ITAR, the Department of State
is licensing the temporary import and
export, which required much of the
same information requirements. The
Commerce May 24 rule did not change
the basic construct for how the EAR
regulates imports, but BIS needed a
means to track firearms temporarily
entering the U.S. for subsequent export.
Comment 80: One commenter
requested text be added to § 758.10(a)(2)
to exempt from the entry clearance
requirements temporary imports by
nonresident aliens who temporarily
import firearms under the provisions of
27 CFR 478.115(d).
BIS response: BIS clarifies here the
purpose of § 758.10. Because a
nonresident alien, e.g., a foreign hunter,
will need an approved Form 6NIA (ATF
Form 5330.3D Application/Permit for
Temporary Importation of Firearms and
Ammunition by Nonimmigrant Aliens)
from ATF prior to bringing the USMIL
firearm or ammunition into the U.S., the
ATF controls will account for the
temporary import. Therefore, License
Exception BAG does not need to be
referenced in § 758.10. The subsequent
export out of the U.S. will require an
EAR authorization and would need to
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be done in accordance with License
Exception BAG, or some other U.S.
Government authorization if License
Exception BAG was not available.
Comment 81: One commenter
asserted that the new § 758.10 ‘‘Entry
clearance requirements for temporary
imports’’ appears to apply to all
temporary imports at the time of
temporary import. This commenter
asserted that as the requirements of
§ 758.10 should not apply to
nonresident aliens temporarily
importing firearms under the separate
provisions of the ATF, and
recommended clarifying this in the final
rule.
BIS response: BIS agrees. This final
rule clarifies that the requirements of
§ 758.10 do not apply to temporary
imports for nonimmigrant aliens under
the provisions of the Gun Control Act of
1968 and administered in part with the
ATF Form 6NIA.
Comment 82: One commenter was
concerned that the new § 758.10 ‘‘Entry
clearance requirements for temporary
imports’’ does not address the potential
use of License Exception RPL.
Specifically, proposed § 758.10(b)(1)(i)
requires a statement to CBP certifying
‘‘. . . This shipment will be exported in
accordance with and under the
authority of License Exception TMP,’’
which would be a false certification if
RPL were being used.
BIS response: BIS agrees and accepts
adding License Exception RPL as a valid
purpose for a temporary import under
§ 758.10. For the same reason, this final
rule adds BIS licenses as a valid
purpose for a temporary import under
§ 758.10. In addition, this final rule
clarifies that a temporary import for
repair or servicing in the United States
does not require an EAR authorization,
but the subsequent export must be
authorized either as eligible for License
Exception RPL or authorized under a
BIS license at the time of entry. For
example, a BIS license would be
required at the time of entry if the repair
or servicing of a temporarily imported
firearm would result in enhanced
capability of the item because License
Exception RPL is not available for such
enhancements. Instead, under this final
rule, the exporter could obtain a BIS
license to authorize such an export that
was brought into the United States as a
temporary import. Section 758.10(a)(1)
addresses these types of imports for
repair and servicing. For additional
information, please see section Entry
clearance requirements for temporary
imports (§ 758.10) below that details the
requirements for use of these
authorizations.
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Relationship Between EAR and ATF
Regulations
Comment 83: One commenter
requested the ATF Ruling 2004–2 be
amended to account for this USML to
CCL transition, in order to not be more
restrictive under the EAR compared to
the ITAR. The commenter asserted that
the ITAR draws a clear distinction
between permanent and temporary
import jurisdiction in 22 CFR 120.18,
although certain items regulated under
the Gun Control Act or National
Firearms Act, if authorized for import
under those laws, continue to require
transactional import approval from ATF
for temporary imports unless ATF
Ruling 2004–2 (April 7, 2004) permits
the DSP–61 or ITAR exemption to
substitute for this approval.
BIS response: The changes included
in the Commerce May 24 rule under
§§ 740.9 and 758.10 were intended to
address issues related to temporary
importation under the EAR. As noted
above, this final rule adds License
Exception RPL and BIS licenses to
§ 758.10 to further address issues related
to temporary imports under the EAR.
Other agencies will review, and if
necessary, address, any effects of these
final rules.
Comment 84: One commenter
recommended coordinating proposed
changes with ATF so that the
corresponding changes are made to the
USMIL at the same time, which would
prevent businesses from having to
consult both the USML and USMIL
when deciding whether a transaction
involves brokering.
BIS response: The USML and the
USMIL are separate lists of AECA
defense articles with both shared as well
as different AECA objectives, and as
such warrant the retention as separate
lists.
Comment 85: One commenter was
concerned that removing license
requirements for temporary imports of
the items removed from the USML
would create another channel for
criminal elements to obtain weapons in
the U.S.
BIS response: BIS disagrees.
Temporary imports will be addressed by
BIS, and the same type of U.S.
Government authorization requirement
will apply for exports of items
temporarily imported as other exports
under the EAR.
Comment 86: One commenter was
concerned that the Commerce May 24
rule did not provide a mechanism, such
as a DSP–73, for certain firearms to be
temporarily exported and subsequently
returned to the U.S., given the firearm
importation prohibitions under 18
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U.S.C. 922(l) and 925(d)(3). This
commenter asserted that unlike many
other items that have transitioned from
the USML to the CCL, firearms are
subject to unique restrictions on the
permanent import side under the
jurisdiction of the ATF. This commenter
asserted that the Department of State’s
jurisdiction over temporary exports and
temporary imports has played an
important role by providing companies
with a viable method of bringing their
guns back into the U.S. without running
afoul of ATF’s strict importation
prohibitions and similar treatment
should be retained under the EAR.
BIS response: BIS clarifies that BIS
will require a U.S. Government
authorization for temporary exports.
The EAR authorizations most likely to
be used to authorize temporary exports
include License Exceptions BAG and
TMP, as well as Commerce licenses.
Therefore, BIS does have similar
authorization requirements and
approval mechanisms as under the
ITAR. BIS notes that the import back
into the U.S. will not require an EAR
authorization.
Comment 87: One commenter
asserted that a DSP–73 license is vital
because it covers both the U.S. export
and U.S. import requirements and the
commenter is concerned without adding
a similar type of authorization under the
EAR that certain temporary exports for
use in filming will not be possible
because the return of the exported
firearms would be subject to ATF’s
permanent import process which
restricts many types of firearms
pursuant to Federal law, e.g., short
barreled shotguns. This commenter
asserted that because most firearms
temporarily exported for the movie
industry are either military surplus,
non-sporting, or National Firearms Act
weapons, of which importation is
prohibited under the ATF regulations,
that this is an importation issue to be
addressed to ensure these types of
temporary exports can still proceed
under the EAR and ATF construct,
similar to the ITAR and ATF construct.
BIS response: A Commerce license to
authorize a temporary export would
authorize the temporary export and
require the item’s return. A separate
EAR authorization is not required for
the import back into the United States
after the temporary export since this
would be covered under the scope of the
authorizing export license.
Comment 88: One commenter
requested clarification for permanent
import after temporary export for repair
or servicing under License Exception
TMP under paragraph (a)(6). This
commenter asserted it agreed with the
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proposed changes but requested that the
subject of temporary export of firearms,
specifically vintage shotguns with barrel
lengths over 18 to Canada, be clearly
addressed.
BIS response: BIS notes that the long
barrel shotguns this final rule will move
from ECCN 0A984 to 0A502 may require
a U.S. Government authorization
depending on the specifics of the
export, in particular the destination for
the export. Regardless of the EAR
authorization used to authorize the
export, a separate EAR authorization
will not be required for the subsequent
import into the United States.
Comment 89: One commenter
asserted that ATF 27 CFR 478.92
includes a requirement to mark firearms
being imported with the importer’s
name and address. This commenter was
concerned that this destroys the
originality and affects the value of the
firearm that was temporarily exported.
This commenter asserts because these
long barreled shotguns fall under the
EAR, the ATF will not clarify the
requirement on shotguns and it creates
confusion. This commenter requests the
final rule to clarify this issue regarding
markings for shotguns being moved
from ECCN 0A984 to ECCN 0A502, as
well as for the other firearms being
moved from the USML to the CCL.
BIS response: BIS clarifies here that
the EAR does not require any types of
physical markings to be made on a
firearm or any other commodity being
temporarily exported for repair or
servicing for return to the United States.
For a licensed transaction in an
exceptional case, a condition could
potentially be placed on a Commerce
license that required the exporter to
make some type of physical marking on
the commodity, but this would be
extremely rare under BIS licensing. If
additional safeguards were needed, BIS
licenses would typically require
additional documentation to confirm
delivery verification or to require the
exporter to get other written
affirmations from the other parties to the
transaction.
EAR Recordkeeping Requirements
Comment 90: One commenter
asserted that the GCA requires all
Federal Firearm Licensees to maintain
firearm records for 20 years after the
date of disposition and that the
proposed change requiring records
under the EAR is redundant and may
cause confusion because of the different
record retention periods. This
commenter asserted in complying with
the EAR, companies may inadvertently
violate the GCA.
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BIS response: BIS does not agree. The
EAR does not require records to be
destroyed after five years, just that the
records be kept for at least that long.
Nothing in the EAR prohibits
maintaining the records for longer
periods.
Comment 91: One commenter
asserted that the recordkeeping
requirement for warranty certificates for
people outside the U.S. would be more
restrictive than the ITAR. The
commenter asserted that BIS has not
provided a coherent explanation for
why the new recordkeeping burden
makes sense, is related to exports, or
would be of benefit to the enforcement
of the export control laws.
BIS response: BIS does not agree with
the requested change to remove the
warranty certificate requirement as a
recordkeeping requirement. As noted
above by many commenters, BIS has an
interest in ensuring the firearms and
related items on the CCL are used by the
intended end user for the intended end
use, and BIS needs any information that
may be relevant to the ultimate
disposition of those firearms to
safeguard U.S. national security. The
recordkeeping requirements for the
warranty certificates included in the
Commerce May 24 rule and in this final
rule will be an additional safeguard for
EE to have further insights into where
a firearm exported under a U.S.
Government authorization may have
ultimately ended up after export. A
warranty certificate that is submitted by
a person located outside the United
States to a U.S. exporter is relevant to
the U.S. Government for export control
enforcement purposes. The ITAR and
EAR control structures are not the same,
so in certain cases a restriction may be
more restrictive under the EAR
compared to the ITAR and this is an
example of where the EAR will be more
restrictive, but it is still warranted in the
context of the EAR.
Comment 92: One commenter
asserted that warranties are issued by
the manufacturer, not the exporter and
that many manufacturers do not always
issue specific ‘‘warranty certificates’’ to
individuals. This commenter asserted
that most manufacturers provide
warranty statements in a broad
boilerplate statement included in an
instruction manual, or on their website.
This commenter also asserted that there
is thus no way to know when that
information is accessed by a foreign
person or sent to an address outside the
U.S. One commenter asserted that a
potential issue is with the
recordkeeping requirement of warranty
certificates is that an exporter may not
have a manufacturer’s (or any other)
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warranty certificate as part of the
transaction. This commenter requested
some clarification on the requirements.
BIS response: BIS clarifies here that
the EAR recordkeeping requirements
generally do not impose an affirmative
duty to create a record. The
recordkeeping requirements typically
apply if in the normal course of your
business activities related to an export,
reexport, or transfer (in-country) a
record is created or received that is
within the scope of records that must be
retained for purposes of the EAR
recordkeeping requirements.
BIS confirms here that if the
manufacturer is not the exporter, it is
not required to keep the warranty
certificate for purposes of part 762.
Section 762.1(b) (Persons subject to the
part) identifies the persons that are
required to keep records for purposes of
part 762 of the EAR.
Comment 93: One commenter
asserted that there is the possibility that
retaining such information that would
be contained in a warranty certificate
may violate the privacy laws of other
countries, such as the General Data
Protection Regulation (GDPR) (European
Union (EU)).
BIS response: BIS is not in a position
to opine on the applicability of the
GDPR here but notes that parties
transacting in items subject to the EAR
are subject to U.S. laws and regulations,
including recordkeeping requirements.
Alignment With the Wassenaar
Arrangement Munitions List
Comment 94: One commenter
asserted that the proposed changes do
not appear to be in line with established
WAML I–III, suggesting that the
inclusion of semi-automatic weapons in
WAML1 explicitly as munitions
demonstrates an intentional
differentiation between military and
security items, on one hand, and dualuse items on the other.
BIS response: On the general question
of whether the changes included in the
Commerce May 24 rule align with the
WAML, BIS notes that Wassenaar
Arrangement member countries
implement the WA control lists in
accordance with their own national
export controls. The items being moved
from USML Category II are controlled
under four new ‘‘600 series’’ ECCNs.
The items moved from USML Categories
I and III are not controlled in the ‘‘600
series,’’ but importantly are still subject
to the same NS 1 license requirement
that would apply if these WAML items
were added to the ‘‘600 series.’’ In
addition, although not derived from the
Wassenaar Arrangement, the end item
firearms are subject to a license
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requirement for the Firearms
Convention (FC)—meaning that the end
item firearms are subject to an even
more restrictive license requirement
under the EAR compared to the ‘‘600
series,’’ 9x515 items, and other items
controlled for NS reasons on the CCL. In
addition, the final rule also includes
other provisions, such as requiring
conventional arms reporting, that
reflects U.S. Government commitments
to the Wassenaar Arrangement and to
the United Nations. Thus, the changes
are consistent with the U.S.
Government’s commitments to the
Wassenaar Arrangement.
Comment 95: One commenter
asserted semi-automatic weapons used
by peacekeepers, military, and police
are intended to be controlled as
munitions. The proposal to move semiautomatic firearms and large caliber
rifles to ECCN 0A501 on the CCL does
not appear to be in line with this
designation.
BIS response: For the reasons noted
above in the BIS response to Comment
1, BIS does not agree. BIS notes that the
export of semi-automatic weapons used
by peacekeepers, military, and police
will still require U.S. Government
authorization and in most cases will
require an approved license under the
EAR, except when destined to the U.S.
Government or it is a semi-automatic
weapon that was legally exported or
reexported under U.S. export controls
that is being returned after servicing or
repair under License Exception RPL.
Comment 96: One commenter
provided several comments related to
the combined ITAR and EAR
amendments to U.S. Government
commitments to multilateral controls,
that included 33 numbered topics listed
in the order that topic appears in the
WAML and then subdivided into three
parts, with the following number of
examples: 27 U.S. and multilateral texts
are either identical or substantially
equivalent; 74 US controls omit what
WAML controls (or WAML omits U.S.
decontrols); and 165 WAML omits what
U.S. controls (or U.S. omits WAML
decontrols).
BIS response: BIS notes that this one
commenter submitted a large number of
comments regarding the alignment with
the WAML. For the comments where
BIS does not believe any changes are
needed to align with the WAML, BIS
has not summarized each of those
comments in this final rule because of
the length of the comments, but does
confirm that BIS did review each of the
comments. For many of these
comments, the items were already
controlled prior to the effective date of
this final rule or will be controlled for
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NS reasons on the CCL on the effective
date of this final rule, and for certain
comments the ITAR retains control of
the items that the commenter thought
would not be adequately controlled
under the USML. For the alignment
with the WAML comments where the
commenter has raised an issue that BIS
believes warranted a change to ensure
the changes in the final rule align with
the WAML, those suggested changes,
e.g., the revisions described above to
ECCN 0A018 and 0A505, are described
above in greater detail, along with the
BIS responses.
Delayed Effective Date for a Final Rule
Comment 97: BIS received a number
of recommendations on the appropriate
length for the delayed effective date for
the final rule, ranging from 90 to 180
days for delayed effective dates. The
rationale for the shorter length was to
allow small businesses to immediately
benefit while those recommending
longer or split effective dates suggested
the time period would allow time for
updates to IT systems, policies, and
processes. Other commenters asserted
that they supported a split
implementation period (180 days for
certain provisions, effective
immediately or short as possible for
other provisions).
BIS response: BIS has determined that
a 45-day delayed effective date is
appropriate. To address concerns that a
longer delayed effective date and
transition period may be warranted, BIS
highlights here the importance of the
various grandfathering provisions
included in General Order No. 5 in
Supplement No. 1 to part 736 of the
EAR and in the previously published
State transition guidance, that is
supplemented with information on the
DDTC website.
Comment 98: One commenter
requested that BIS delay publishing a
final rule until the Government
Accounting Office (GAO) or the Library
of Congress has publicly reported to the
Congress their impact on numerous
statutes referring to ‘‘defense articles,’’
because of the potential loss of so many
U.S. arms export controls and likely
negative impact on curbing
irresponsible and illegal arms transfers.
BIS response: BIS welcomes the
publication of the GAO report.
However, the timing of the publication
of a final rule and its effective date are
not contingent on the publication of the
GAO report.
Description of Regulatory Changes
This final rule creates 17 new ECCNs
on the CCL to control items that are
being removed from the USML as
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described in a final rule issued
concurrently by the Department of State.
BIS did not receive any comments on
the proposed addition of ECCNs 0A503,
0B602, 0D501, 0D505, 0D602, 0E502,
0E504, 0E505, and 0E602 in the
Commerce May 24 rule, so this final
rule adopts these ECCNs as proposed,
except for one clarification made to
ECCN 0B602.a.8 and minor
clarifications to the Related Controls
paragraphs to ECCNs 0D501, 0D505,
0D602, 0E502, and 0E505. In ECCN
0B602, this final rule replaces ‘‘gun
straightening presses’’ with the more
specific control parameter ‘‘barrel
straightening presses.’’ This change is
made to clarify that the straightening
presses controlled under ECCN
0B602.a.8 are those for barrels. In the
Related Controls paragraphs for ECCNs
0D501, 0D505, 0D602, and 0E505, this
final rule removes the parenthetical
phrase that references 22 CFR 121.1 and
the related USML category because this
information is duplicative of existing
text in these Related Controls
paragraphs. This final rule also revises
the Related Controls paragraph in ECCN
0E502 by removing ‘‘N/A’’ and adding
that ‘‘[t]echnical data required for and
directly related to articles enumerated
in USML Category I are ‘subject to the
ITAR.’ ’’ This clarification does not
change the scope of ECCN 0E502 and
simply alerts the public to review the
ITAR for such technical data. BIS does
not make any additional changes to
proposed ECCN 0E501 and adopts it as
proposed. See the Commerce May 24
rule for additional background on these
provisions. BIS received comments on
seven proposed ECCNs for which the
agency is adopting additional changes:
0A501, 0A502, 0A504, 0A505, 0A602,
0B501, and 0B505. The summary below
describes each of these ECCNs and the
controls that apply to them.
New ECCN 0A501: Firearms and
Related Commodities
This final rule adds new ECCN 0A501
and applies national security (NS
Column 1), regional stability (RS
Column 1), Firearms Convention (FC
Column 1), United Nations (UN), and
anti-terrorism (AT Column 1) reasons
for control to the non-automatic and
semi-automatic firearms, including
rifles, carbines, revolvers or pistols
listed in the ECCN entry in the
regulatory text to this final rule,
enumerated parts and components and
to ‘‘specially designed’’ ‘‘parts,’’
‘‘components,’’ ‘‘accessories’’ and
‘‘attachments’’ for those firearms and
‘‘parts’’ and ‘‘components.’’
This final rule adds ECCN 0A501.y
and only imposes an anti-terrorism (AT
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Column 1) and United Nations (UN)
reasons for control and covers such
items as scope mounts or accessory
rails, iron sights, sling swivels, butt
plates, recoil pads, bayonets, and stocks
or grips that do not contain any fire
control ‘‘parts’’ or ‘‘components.’’
This final rule adds a technical note
to ECCN 0A501 stating that ‘‘parts’’ and
‘‘components’’ include ‘‘parts’’ and
‘‘components’’ that are common to
firearms described in ECCN 0A501 and
to firearms ‘‘subject to the ITAR.’’
It also adds another note to ECCN
0A501 to state that certain firearms and
similar items are EAR99. Those items
are: Antique firearms (i.e., those
manufactured before 1890) and
reproductions thereof, muzzle loading
black powder firearms except those
designs based on centerfire weapons of
a post 1937 design, BB guns, pellet
rifles, paint ball, and all other air rifles.
In addition, for purposes of new
ECCN 0A501 and the rest of the new
ECCNs described below, items
previously determined to be ‘‘subject to
the EAR’’ under a commodity
jurisdiction determination issued by the
U.S. Department of State that were
designated as EAR99 will generally not
be classified in any of the new ECCNs
that are being created with this final
rule. As a conforming change, this final
rule revises paragraph (e)(3) of General
Order No. 5 to add a reference to the
‘‘0x5zz’’ ECCNs this final rule adds to
the CCL.
This final rule adopts the following
additional changes to ECCN 0A501 to
respond to the comments received on
the Commerce May 24 rule:
This final rule revises Related
Controls paragraph (1) to clarify that the
magazines that are ‘‘subject to the
ITAR’’ are those with a capacity ‘‘greater
than 50 rounds.’’ The Commerce May 24
rule used terminology in the control
parameter that created ambiguity
because it was slightly different than as
proposed in the State May 24 rule, so
this final rule revises the EAR text based
on the comments received to align with
the terminology used on the ITAR.
This final rule revises ‘‘items’’
paragraph (a) to remove the phrase ‘‘of
caliber less than or equal to .50 inches
(12.7 mm)’’ and add in its place the
phrase ‘‘equal to .50 caliber (12.7 mm)
or less.’’ In making this change, BIS uses
the same control text of ‘‘.50 caliber
(12.7 mm)’’ as used in the Department
of State companion rule.
This final rule adds a Note 1 to
paragraph 0A501.a. This note clarifies
that combination pistols are controlled
under items paragraph .a. The note also
defines the term ‘combination pistol’ for
purposes of this ECCN. A combination
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pistol has at least one rifled barrel and
at least one smoothbore barrel. Because
of the hybrid nature of these firearms,
commenters requested that this type of
clarifying note be added.
This final rule adds a Note 2 to
0A501.d to address a question, raised by
the commenters, whether magazines
with a capacity of 16 rounds or less are
controlled under 0A501.x or designated
EAR99. The new note specifies that
magazines with a capacity of 16 rounds
or less are controlled under 0A501.x.
BIS notes this was the intent of the
Commerce May 24 rule, but because
commenters were not sure, this rule
specifies where these magazines are
controlled.
This final rule revises ‘‘items’’
paragraph (e) to add the phrase ‘‘or
machined items’’ to specify that ECCN
0A501.e includes those machined items
even if they are not casted, forged, or
stamped.
This final rule revises the
introductory text of 0A501.y to add the
phrase ‘‘as follows, and ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ and
‘‘attachments’’ ‘‘specially designed’’
therefor’’ to clarify, consistent with the
other .y paragraphs on the CCL, that the
‘‘specially designed’’ ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ and
‘‘attachments’’ for .y items will also be
controlled under this .y paragraph and
not controlled under 0A501.x.
This final rule adds a new paragraph
y.7 to control firearms manufactured
from 1890 to 1898 and reproductions
thereof. This final rule makes this
change to address commenters that
asserted that the year 1890 should be
changed to 1898 in Note 3 to 0A501 for
defining antique firearms. BIS did not
accept the change because the year 1890
is based on the Wassenaar Arrangement,
but does address this concern by
controlling these firearms under a new
.y paragraph. As a conforming change,
this final rule adds a new License
Requirement Note to ECCN 0A501 to
specify that a license is required for
exports and reexports to China of
0A501.y.7 firearms.
This final rule adds a new Note 4 to
0A501, to clarify the classification of
certain muzzle loading (black powder)
firearms. This is a conforming change as
part of the removal of the control text
of ECCN 0A018 in this final rule.
New ECCN 0A502: Shotguns and
Certain Related Commodities
This final rule adds new ECCN 0A502
to control both the shotguns being
moved from the USML that are being
added to the CCL (barrel length less
than 18 inches) and the shotguns and
the enumerated ‘‘parts’’ and
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‘‘components’’ controlled in ECCN
0A984 (barrel length 18 inches or
greater) prior to this final rule. This final
rule controls shotguns with a barrel
length less than 18 inches under NS
Column 1, CC Column 1, FC, UN, and
AT Column 1 plus regional stability (RS
Column 1). Shotguns controlled in
ECCN 0A984 that are transferred to
ECCN 0A502 by this final rule will
retain Firearms Convention (FC), crime
control (CC Column 1, 2, or 3 depending
on barrel length and end user), and
United Nations (UN) reasons for control.
Such shotguns will not be controlled for
national security reasons because they
are not on the WAML.
This final rule adopts the following
additional changes to ECCN 0A502 to
respond to the comments received on
the Commerce May 24 rule:
This final rule revises the heading of
ECCN 0A502 to add the phrase
‘‘shotguns ‘‘parts’’ and ‘‘components,’’
consisting of’’ to clarify that the parts
and components controlled under
0A502 are for shotguns in response to
one commenter’s request.
This final rule revises the LVS
paragraph in the License Exception
section to add License Exception LVS
eligibility of $500 for certain parts and
components under ECCN 0A502. The
Commerce May 24 rule proposed N/A
for LVS for ECCN 0A502. This final rule
makes this change to create equivalent
treatment for License Exception LVS for
purposes of ECCNs 0A501 and 0A502.
Similar to LVS eligibility in ECCN
0A501, the LVS eligibility will include
all Country Group B countries and an
additional paragraph that identifies
other parts and components that are
eligible for LVS if the ultimate
destination is Canada.
This final rule revises the Related
Controls paragraph to remove the phrase
‘‘combat shotguns and’’ because it is not
needed as a modifier of fully automatic
shotguns and the phrase is not used on
the USML. This final rule also
simplifies the Related Controls
paragraph to use a single sentence to
identify shotguns that are fully
automatic as ‘‘subject to the ITAR.’’
This final rule adds a Note 1 to 0A502
to clarify that shotguns made in or
before 1898 are considered antique
shotguns. This note clarifies that these
antique shotguns are designated as
EAR99.
Lastly, in ECCN 0A502, this final rule
adds a Technical Note to specify the
classification of shot pistols or shotguns
that have had the shoulder stock
removed and a pistol grip attached. The
technical note specifies these are
controlled by ECCN 0A502. The
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technical note also specifies that slug
guns are controlled under ECCN 0A502.
New ECCN 0A504: Optical Sighting
Devices and Certain Related
Commodities
This final rule adds new ECCN 0A504
to replace ECCN 0A987, which
controlled optical sighting devices for
firearms. This final rule revises the
reasons for control table to state
specifically that the Firearms
Convention (FC) reason for control
applies to all paragraphs in the ECCN
except 0A504.f, which controls laser
pointing devices. In addition, BIS adds
an RS control for certain riflescopes,
which are identified in their own
paragraph in the ECCN under 0A504.i in
this final rule. The riflescopes in this
paragraph are limited to those
‘‘specially designed’’ for use in firearms
that are ‘‘subject to the ITAR.’’ This final
rule includes an exclusion in the criteria
of this paragraph to ensure less sensitive
riflescopes that are being moved from
ECCN 0A987 to 0A504 on the effective
date of this final rule, that currently are
not RS controlled under the EAR, will
not be controlled under this paragraph.
This final rule also adds a note to this
paragraph (i) to specify that paragraph
(a)(1) of the definition of ‘‘specially
designed’’ in § 772.1 of the EAR is what
is used to determine whether a
riflescope is ‘‘specially designed’’ for
purposes of this paragraph of ECCN
0A504.i—meaning paragraph (a)(2) and
the paragraph (b) releases are not
reviewed to make the ‘‘specially
designed’’ determination.
This change makes clear, consistent
with BIS’s existing interpretation, that
such devices are not optical sights and
are not subject to the FC reason for
control. The new number is intended to
make identifying items on the CCL
easier by grouping similar or related
items closer to each other.
This final rule adopts the following
additional changes to ECCN 0A504 to
respond to the comments received on
the Commerce May 24 rule:
This final rule revises the LVS
paragraph in the License Exceptions
section of ECCN 0A504 to add LVS
eligibility of $500 for 0A504.g.
Commenters requested that LVS
eligibility be added for these less
sensitive lenses and other optical
elements controlled under 0A504.g.
These commenters also requested
adding LVS eligibility for consistency
with the types of parts and components
eligible for LVS under ECCN 0A501 in
the Commerce May 24 rule. BIS agrees
and adds LVS eligibility of $500 for
0A504.g in this final rule.
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New ECCN 0A505: Ammunition and
Certain Related Commodities
This final rule adds new ECCN 0A505
and imposes national security (NS
Column 1), regional stability (RS
Column 1), Firearms Convention (FC),
United Nations (UN), and anti-terrorism
(AT Column 1) controls on ammunition
not enumerated on the USML, for
firearms that will be classified under
ECCN 0A501, and for most ‘‘parts’’ and
‘‘components’’ of such ammunition.
Such ammunition included in this final
rule are for small arms, in most cases,
firearms of caliber not exceeding 0.50
inches, although some ammunition for
firearms of caliber up to 0.72 inches is
included. This final rule retains the CCL
reasons for control currently found in
ECCNs 0A984 and 0A986 for shotgun
shells. Buckshot shotgun shells will be
subject to the CC Column 1, FC Column
1, and UN reasons for control under this
final rule. Other shotgun shells are
subject to the FC, UN, and AT (North
Korea only) reasons for control in this
final rule. Only ‘‘parts’’ and
‘‘components’’ will be eligible for
License Exception LVS. Ammunition for
larger caliber weapons such as
howitzers, artillery, cannon, mortars,
and recoilless rifles will remain in
USML Category III in this final rule.
Ammunition that has little or no civil
use or that is inherently military such as
ammunition that is preassembled into
links or belts, caseless ammunition,
tracer ammunition, ammunition with a
depleted uranium projectile or a
projectile with a hardened tip or core
and ammunition with an explosive
projectile also remains in USML
Category III. Blank ammunition for
firearms controlled by ECCN 0A501 and
not enumerated in Category III of the
USML will be controlled for United
Nations and anti-terrorism reasons only
in this final rule.
This final rule adds three notes to
clarify the scope of ‘‘parts’’ and
‘‘components’’ for ammunition
classified under ECCN 0A505. Note 1 to
0A505.c clarifies the relationship
between ECCNs 0A505 and 1A984 for
shotgun shells, stating that shotgun
shells that contain only chemical
irritants are controlled under 1A984 and
not 0A505. Separately, Note 2 to
0A505.x includes an illustrative list of
the controls on ‘‘parts’’ and
‘‘components’’ in this entry, such as
Berdan and boxer primers. Note 3 to
0A505.x clarifies that the controls in
ECCN 0A505 include ‘‘parts’’ and
‘‘components’’ that are common to
ammunition and ordnance described in
this entry and to those enumerated in
USML Category III.
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This final rule adopts the following
additional changes to ECCN 0A505 to
respond to the comments received on
the Commerce May 24 rule:
This final rule revises the LVS
paragraph in the License Exceptions
section of ECCN 0A505 to increase the
LVS eligibility from $100 to $500. The
Commerce May 24 rule had proposed
$100, but commenters noted that the
cost of these parts and components
would undermine the usefulness of LVS
eligibility if the $100 limitation was
maintained. Some commenters provided
detailed price lists to support their
position that $100 of LVS eligibility
would be of limited usefulness. BIS took
this into account and in this final rule
increases the LVS eligibility to $500 for
ECCN 0A505.x. As a conforming
change, because this final rule moves
ECCN 0A018.b to 0A505, this final rule
adds grandfathering provisions to retain
LVS eligibility of $3,000 for any
commodity that was classified under
0A018.b prior the effective date of this
final rule.
This final rule revises ECCN 0A505.a
to add the phrase ‘‘or USML Category I’’
to clarify that ammunition for firearms
controlled under USML Category I is
also controlled under 0A501.a, provided
the ammunition is not otherwise
excluded by the control parameters in
0A501.a, i.e., being enumerated in
0A505.b, .c, .d, or in USML Category III.
This final rule adds a Note 4 to 0A505
to specify that certain types of
ammunition (i.e., Lead shot smaller than
No. 4 Buckshot, empty and unprimed
shotgun shells, shotgun wads,
smokeless gunpowder, ‘Dummy rounds’
and blank rounds (unless linked or
belted)), not incorporating a lethal or
non-lethal projectile(s) are designated
EAR99. This final rule also defines the
terms ‘dummy round or drill round.’
The new note clarifies that these rounds
are completely inert—meaning they
contain no primer, propellant, or
explosive charge. The note specifies that
these types of rounds are typically used
to check weapon function and for crew
training.
New ECCN 0A602: Guns and Armament
This final rule adds new ECCN 0A602
and imposes national security (NS
Column 1), regional stability (RS
Column 1), United Nations (UN) and
anti-terrorism (AT Column 1) controls
on guns and armament manufactured
between 1890 and 1919 and for military
flame throwers with an effective range
less than 20 meters. It imposes those
same reasons for control on parts and
components for those commodities and
for defense articles in USML Category II
if such parts or components are not
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specified elsewhere on the CCL or
USML. Note 3 to 0A602 confirms that
black powder guns and armament
manufactured in or prior to 1890 and
replicas thereof designed for use with
black powder propellants are designated
EAR99. The guns controlled in this
ECCN are between 99 and 128 years old.
The parts, components, accessories, and
attachments controlled in this ECCN
include some that are for modern
artillery. Modern artillery remains on
the USML, along with the most sensitive
‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’
and ‘‘attachments’’ for these USML
items. This final rule adds a note to
clarify that ‘‘parts,’’ ‘‘components,’’
‘‘accessories,’’ and ‘‘attachments’’
specified in USML subcategory II(j) are
not subject to the EAR. The USML
Order of Review and CCL Order of
Review already provide guidance for
making such a jurisdictional and
classification determination, but to
highlight that these ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ and
‘‘attachments’’ are not classified under
paragraph .x of 0A602, this final rule
adds a note.
This final rule adopts the following
additional changes to ECCN 0A602 to
respond to the comments received on
the Commerce May 24 rule:
This final rule revises the Related
Controls paragraph of ECCN 0A602 to
add a Related Controls paragraph (3).
This new Related Controls paragraph
provides a cross reference to ECCN
0A606 for engines that are ‘‘specially
designed’’ for a self-propelled gun or
howitzer subject to control under
0A606.a or USML Category VII. The
Department of State final rule includes
a similar cross reference for purposes of
the USML and commenters requested
the same type of note or related control
pointer be added to the EAR. The
Department agrees and adds Related
Controls paragraph (3). As a conforming
change, this final rule redesignates Note
1 to 0A602 and Note 2 to 0A602 as
Notes 2 and 3, respectively.
New ECCN 0B501: Test, Inspection, and
Production Equipment for Firearms
This final rule adds new ECCN 0B501
to cover ‘‘Test, inspection, and
production ‘equipment’ and related
commodities for the ‘development’ or
‘production’ of commodities
enumerated or otherwise described in
ECCN 0A501 or USML Category I.’’ This
new ECCN applies the national security
(NS Column 1), regional stability (RS
Column 1), United Nations (UN), and
anti-terrorism (AT Column 1) reasons
for control to four specific types of
machinery and to one class of items as
proposed in the Commerce May 24 rule.
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The four specific types of machinery
are: small arms chambering machines,
small arms deep hole drilling machines
and drills therefor, small arms rifling
machines, and small arms spill boring
machines. The class of items covers
dies, fixtures, and other tooling
‘‘specially designed’’ for the
‘‘production’’ of items in the State
Department final rule for USML
Category I or ECCN 0A501. In addition,
as described below, this final rule also
expands the scope of 0B501.e to include
all production equipment ‘‘specially
designed’’ for USML Category I items.
The NS and RS reasons for control do
not apply to equipment for the
‘‘development’’ or ‘‘production’’ of
commodities in ECCN 0A501.y because
those reasons for control do not apply
to the commodities in ECCN 0A501.y
themselves.
The first four specific items noted
above were listed in paragraphs .o, .p,
.q, and .r of ECCN 2B018 prior to the
effective date of this final rule, and are
being listed in paragraphs .a, .b, .c, and
.d of ECCN 0B501 in this final rule. In
addition, the class of items in new
0B501 that was included within ECCN
2B018, paragraph .n (jigs and fixtures
and other metal-working implements or
‘‘accessories’’ of the kinds exclusively
designed for use in the manufacture of
firearms, ordnance, and other stores and
appliances for land, sea or aerial
warfare) prior to the effective date of
this final rule, will, if applicable to
firearms controlled in 0A501, be
subsumed in paragraph .e. Jigs, fixtures,
and metal working implements
currently in 2B018 that are applicable to
larger guns will be controlled in ECCN
0B602 in this final rule and are
discussed below.
Moving these items from 2B018 to
0B501 in this final rule retains the
national security (NS Column 1), antiterrorism (AT Column 1), and United
Nations (UN) reasons for control and
raises the regional stability (RS) reason
for control from RS Column 2 to RS
Column 1. This causes no change in
destination-based license requirements,
but allows consideration of whether the
export or reexport could contribute to
instability in any region, not just the
region to which the item is exported or
reexported in considering whether to
approve a license.
This final rule adopts the following
additional changes to ECCN 0B501 to
respond to the comments received on
the Commerce May 24 rule:
This final rule expands ECCN 0B501.e
to include all production equipment
‘‘specially designed’’ for USML Category
I items. This final rule adds the term
production equipment to the beginning
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of the control text of ECCN 0B501.e and
revises the phrase ‘‘dies, fixtures, and
other tooling’’ included in the
Commerce May 24 rule to ‘‘including
dies, fixtures, and other tooling’’ to
indicate that these items are illustrative
and that other types of production
equipment that meet the control
parameters are also controlled under
ECCN 0B501.
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New ECCN 0B505: Test, Inspection, and
Production Equipment for Ammunition
This final rule adds new ECCN 0B505
to impose national security (NS Column
1), regional stability (RS Column 1),
United Nations (UN), and anti-terrorism
(AT Column 1) controls on tooling,
templates, jigs, mandrels, molds, dies,
fixtures, alignment mechanisms, and
test equipment, not enumerated in
USML Category III, and ‘‘specially
designed’’ ‘‘parts’’ and ‘‘components’’
therefor, that are ‘‘specially designed’’
for the ‘‘production’’ of ammunition
other than for the ammunition specified
in 0A505.b, .c, or .d (certain shotgun
shells with buckshot and without
buckshot and certain blank
ammunition). In addition, as described
below, this final rule also expands the
scope of 0B505.a to include all
production equipment ‘‘specially
designed’’ for USML Category III items.
Equipment for manufacturing shotgun
shells that do not contain buckshot will
be controlled for the AT (North Korea
only) and UN reasons for control, which
are the reasons for control that applied
to this equipment in ECCN 0B986 prior
to this final rule. ECCN 0B505 in this
final rule does not include equipment
for the hand loading of cartridges and
shotgun shells, so this final rule
specifies this in the heading.
This final rule adopts the following
additional changes to ECCN 0B505 to
respond to the comments received on
the Commerce May 24 rule:
This final rule expands ECCN 0B505.a
to include all production equipment
‘‘specially designed’’ for USML Category
III items. This final rule adds the term
production equipment to the beginning
of the control text of ECCN 0B505.a and
revises the phrase ‘‘tooling, templates,
jigs, mandrels, molds, dies, fixtures,
alignment mechanisms, and test
equipment’’ included in the Commerce
May 24 rule to ‘‘including tooling,
templates, jigs, mandrels, molds, dies,
fixtures, alignment mechanisms, and
test equipment’’ to indicate that these
items are illustrative and other types of
production equipment that meet the
control parameters are also controlled
under ECCN 0B505.
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Revisions to Eight ECCNs
To conform to new Federal Register
Drafting Handbook requirements, the
amendatory instructions in this final
rule sets forth the entire text of eight
ECCNs to be revised. BIS did not receive
any comments on the proposed
revisions to the following six ECCNs
0E982, 1A984, 2B004, 2B018, 2D018,
and 7A611 in the Commerce May 24
rule, so this final rule revises those
ECCNs as proposed. See the Commerce
May 24 rule for additional background
on these revisions.
To help the public understand what
specific parts of ECCN 0A018 will be
different as a result of the changes in
this final rule, the narrative below
describes the amendment in detail,
including a conforming change made to
ECCN 0A988.
Revision to ECCN 0A018, and
Conforming Change to ECCN 0A988
With the removal of ECCN 0A984 and
the addition of 0A502 described above,
the Commerce May 24 rule proposed to
make the conforming change of
removing and reserving 0A018.c since
all the items classified in 0A018.c
would be classified under other entries
on the CCL once a final rule was
published.
This final rule adopts the following
additional changes to ECCN 0A018 to
respond to the comments received on
the Commerce May 24 rule:
This final rule still revises ECCN
0A018, but instead of retaining the
commodities under 0A018.b as was
proposed in the Commerce May 24 rule,
these commodities are being moved to
ECCN 0A505. As a conforming change,
this final rule replaces the control text
of ECCN 0A018 with a statement
referring readers to ECCN 0A505.
This final rule adopts the following
additional changes to ECCN 0A988 to
respond to the comments received on
the Commerce May 24 rule:
This final rule as a conforming change
revises the heading of ECCN 0A988 to
remove an outdated reference to
0A018.d. ECCN 0A018.d had been
previously removed and reserved, but
the cross reference in 0A988 was not
updated. This final rule makes that
correction.
Removal of Nine ECCNs
The Commerce May 24 rule proposed
removing nine ECCNs. BIS did not
receive any comments on proposed
removals of ECCNs 0A918, 0A984,
0A985, 0A986, 0A987, 0B986, 0E918,
0E984, and 0E987 in the Commerce May
24 rule, so this final rule removes those
ECCNs as proposed. See the Commerce
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May 24 rule for additional background
on these removals.
Revision of ‘‘Published’’
This final rule adopts the following
changes to part 734, and one conforming
change to part 732, to respond to the
comments received on the Commerce
May 24 rule:
Specifically, this final rule adds a
paragraph (c) to § 734.7 stating that
‘‘software’’ or ‘‘technology’’ for the
production of a firearm, or firearm frame
or receiver, controlled under ECCN
0A501, that is made available by posting
on the internet in an electronic format
and that may be directly loaded without
further modification by the machine
operator into a computer numerically
controlled machine tool, additive
manufacturing equipment, or any other
equipment that makes use of the
‘‘software’’ or ‘‘technology’’ to produce
the firearm frame or receiver or
complete firearm, remains ‘‘subject to
the EAR.’’ Also in § 734.7, this final rule
as a conforming change revises the
paragraph (a) introductory text to add a
reference to new paragraph (c) for the
exclusions that apply to paragraph (a)
for what is considered ‘‘published.’’ In
§ 732.2 (Steps regarding scope of the
EAR), under the paragraph (b)
introductory text for step 2 for publicly
available technology and software, this
final rule also adds a reference to
§ 734.7(c) to specify such ‘‘software’’ or
‘‘technology’’ for the production of a
firearm, or firearm frame or receiver,
controlled under ECCN 0A501, as
referenced in § 734.7(c)), is ‘‘subject to
the EAR.’’
Conforming Change to General Order
No. 5
BIS does not make any additional
changes in this final rule to what was
proposed in the Commerce May 24 rule
as a result of the comments received, so
these changes are adopted as proposed.
This final rule amends General Order
No. 5, paragraph (e)(3) (Prior commodity
jurisdiction determinations), in
Supplement No. 1 to part 736, to add a
reference in two places to the new 0x5zz
ECCNs that are being created by this
rule. This change to paragraph (e)(3) is
a conforming change and is needed
because paragraph (e)(3) now only
references the ‘‘600 series’’ and 9x515
ECCNs. 0x5zz ECCNs will include new
ECCNs 0A501, 0A502, 0A504, 0A505,
0B501, 0B505, 0D501, 0D505, 0E501,
0E502, and 0E505.
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requirements of the license exceptions
are met.
Revisions to Regional Stability
Licensing Policy for Firearms and
Ammunition
BIS does not make any additional
changes in this final rule to what was
proposed in the Commerce May 24 rule
as a result of the comments received, so
these changes are adopted as proposed.
This final rule applies the regional
stability licensing policy set forth in
§ 742.6(b)(1)(i) of the EAR to the items
controlled for regional stability reasons
in ECCNs 0A501, 0A504, 0A505, 0B501,
0B505, 0D501, 0D505, 0E501, 0E504,
and 0E505. That policy, which also
applies to ‘‘600 series’’ and 9x515 items
is case-by-case review ‘‘to determine
whether the transaction is contrary to
the national security or foreign policy
interests of the United States, including
the foreign policy interest of promoting
the observance of human rights
throughout the world.’’ This final rule
also revises the regional stability
licensing policy set forth in paragraph
(b)(1)(i) that is specific to the People’s
Republic of China for 9x515 items. This
final rule adds ECCNs 0A501, 0A505,
0B501, 0B505, 0D501, 0D505, 0E501,
0E504, and 0E505 to this sentence to
specify that these firearms and related
items are to be subject to a policy of
denial when destined to the People’s
Republic of China or a country listed in
Country Group E:1. Lastly, this final
rule adds a sentence to the end of
paragraph (b)(1)(i) to make it explicit
that applications for exports and
reexports of ECCN 0A501, 0A505,
0B501, 0B505, 0D501, 0D505, 0E501,
0E504, and 0E505 items are subject to a
policy of denial when there is reason to
believe the transaction involves certain
parties of concern, such as criminal
organizations, rebel groups, street gangs,
or other similar groups or individuals,
that may be disruptive to regional
stability.
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Availability of License Exceptions
Many of the items in the new ‘‘600
series’’ ECCNs generally will be eligible
for the same license exceptions and
subject to the same restrictions on use
of license exceptions as other ‘‘600
series’’ ECCNs in this final rule. For the
ECCNs on the CCL prior to the effective
date of this final rule that are being
renumbered and placed in closer
proximity to the firearms-related items
that are being removed from the USML
and added to the CCL, these existing
firearms-related items will continue to
be eligible for the same EAR license
exceptions as they were prior to the
effective date of this final rule, unless
otherwise restricted under § 740.2, if the
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Restrictions on All License Exceptions
This final rule also makes the
following additional changes to part 740
to respond to the comments received on
the Commerce May 24 rule by adding
two new general restrictions.
In § 740.2 (Restriction on all license
exceptions), this final rule adds two
additional restrictions for when license
exceptions may not be used. This final
rule adds new paragraph (a)(21) to
restrict the use of license exceptions,
except for License Exception GOV
under § 740.11(b)(2)(ii) for the reexport
or transfer (in-country) of certain
firearms classified under ECCNs 0A501
or 0A502. The restriction on the use of
license exceptions applies if a part or
component that is not ‘‘subject to the
ITAR,’’ but would otherwise meet the
criteria in USML Category I(h)(2) is
incorporated into the firearm or is to be
reexported or transferred (in-country)
with the firearm with ‘‘knowledge’’ the
part or component will be subsequently
incorporated into the firearm. Because
these parts or components that would
otherwise meet the criteria in USML
Category I(h)(2) could be used for
conversion of a semi-automatic firearm
to a fully automatic firearm, this final
rule excludes those firearms from
license exception eligibility.
In § 740.2 this final rule also adds a
new paragraph (a)(22) to restrict the use
of license exceptions for the export,
reexport, or transfer (in-country) of any
item classified under a 0x5zz ECCN
when a party to the transaction is
designated on the Department of the
Treasury, Office of Foreign Assets
Control (OFAC), Specially Designated
Nationals and Blocked Persons (SDN)
list under the designation [SDNT], or
under the designation [SDNTK]. OFAC
makes SDNT designations pursuant to
the Narcotics Trafficking Sanctions
Regulations, 31 CFR part 536, and
SDNTK designations are made, pursuant
to the Foreign Narcotics Kingpin
Sanctions Regulations, 31 CFR part 598.
This restriction on the use of license
exceptions for these 0x5zz items will
ensure that such parties designated on
the SDN list will not be able to receive
these 0x5zz items without a BIS license.
License Exception: Shipments of
Limited Value (LVS)
Under this final rule, complete
firearms controlled under ECCN 0A501
are not eligible for License Exception
LVS, 15 CFR 740.3. Firearms ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ and
‘‘attachments’’ controlled under ECCN
0A501, other than receivers (frames),
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4163
and ‘‘complete breech mechanisms,’’
including castings, forgings or
stampings thereof, are eligible for
License Exception LVS, with a limit of
$500 on net value per shipment. In
addition, receivers (frames), and
‘‘complete breech mechanisms,’’
including castings, forgings or
stampings thereof, are eligible for
License Exception LVS if the ultimate
destination is Canada. This final rule
states these limits in the License
Exceptions paragraph of ECCN 0A501,
and no revisions to the text of the
license exception itself are needed to
implement them. BIS believes that this
provision is generally consistent with
the license exemption for limited value
shipments of firearms formerly found in
ITAR (22 CFR 123.17(a)) (removed and
reserved by the companion rule). This
LVS eligibility included in this final
rule is less restrictive than the former
ITAR provision in two respects. First,
the value limit per shipment will be
$500 compared to $100 in the ITAR.
Second, the LVS eligibility in the final
rule allows exports of receivers and
‘‘complete breech mechanisms’’ to
Canada whereas § 123.17(a) did not.
However, the $500 LVS limit is based
on the actual selling price or fair market
value, whereas the ITAR $100 limit is
based on ‘‘wholesale’’ value. In
addition, with respect to Canada, an
LVS limit of $500 per shipment is
needed to comply with the Section 517
of the Commerce, Justice, Science, and
Related Agencies Appropriations Act of
2015, which prohibits expending any
appropriated funds to require licenses
for the export of certain non-automatic
firearms parts, components, accessories
and attachments to Canada when valued
at under $500.
Guns and armament and related items
controlled under ECCN 0A602 are
eligible for License Exception LVS, with
a limit of $500 net value per shipment
in this final rule.
Ammunition controlled under ECCN
0A505 are eligible for License Exception
LVS; however, ammunition parts and
components will be eligible with a limit
of $500 (Commerce May 24 rule
proposed $100, but as described below
in the changes to ECCN 0A505, this
final rule increases the limit of $500) net
value per shipment in this final rule.
Test, inspection, and production
equipment controlled under ECCNs
0B501, 0B505, and 0B602 for firearms,
guns and armament, and ammunition/
ordnance are eligible for License
Exception LVS with a limit of $3,000
net value per shipment, which is
consistent with LVS eligibility for most
600 series ECCNs in this final rule.
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License Exception: Temporary Imports,
Exports, Reexports, and Transfers (InCountry) (TMP)
This final rule amends § 740.9 to state
that License Exception TMP is not
available to export or reexport the items
that are the subject of this rule to
destinations in Country Group D:5 (See
Supplement No. 1 to part 740), or to
Russia (Russian Federation). License
Exception TMP is also not available to
export or reexport some firearms and
ammunition shipped from or
manufactured in Russia (Russian
Federation), Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Turkmenistan,
Ukraine, or Uzbekistan. In addition, this
final rule will prohibit the use of
License Exception TMP to export or
reexport any item controlled by ECCN
0A501 and any shotgun with a barrel
length less than 18 inches controlled
under ECCN 0A502 that was shipped
from or manufactured in Country Group
D:5. This final rule also prohibits use of
License Exception TMP to export or
reexport any item controlled by ECCN
0A501 that is shipped from or
manufactured in Russia, Georgia,
Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan,
except for any firearm model controlled
by 0A501 that is also excluded under
Annex A in Supplement No. 4 to part
740 (the prohibition will not apply to
such firearms;); and any shotgun with a
barrel length less than 18 inches
controlled under 0A502 that was
shipped from or manufactured in
Russia, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Turkmenistan,
Ukraine, or Uzbekistan. These
prohibitions will apply to temporary
exports of firearms from the United
States, and the export of firearms
temporarily in the United States. This
final rule for consistency with the ITAR
requirements for exports of firearms to
Georgia, Kazakhstan, Kyrgyzstan,
Moldova, Turkmenistan, Ukraine, and
Uzbekistan, removes the restriction
included in the Commerce May 24 rule
in paragraph (b)(5)(iii) that the firearms
may not ultimately be destined to one
of these seven countries from the
restriction in paragraph (b)(5)(iii), but
retains the restriction for Russia. This
final rule makes one correction in
Annex A in Supplement No. 4 to part
740 for the rifle ‘‘VEPR Pioner’’ under
paragraph (b)(90) to correctly spell it as
‘‘VEPR Pioneer.’’
This final rule limits temporary
exports of firearms controlled under
ECCN 0A501 and any shotgun with a
barrel length less than 18 inches
controlled under ECCN 0A502 pursuant
to License Exception TMP to exhibition
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and demonstration (§ 740.9(a)(5) of the
EAR) and inspection, test, calibration,
and repair (§ 740.9(a)(6) of the EAR).
Consistent with the ITAR requirements
previously applicable to temporary
exports of the firearms covered by this
rule (see 22 CFR 123.17(c), 123.22),
exporters will continue to be required to
file EEI in AES for transactions
involving such firearms that are
authorized pursuant to License
Exception TMP (See § 758.1(a)(10) of the
EAR).
This final rule authorizes the use of
License Exception TMP for the export of
ECCN 0A501 firearms temporarily in the
United States for a period of not more
than one year subject to the requirement
that the firearms not be imported from
or ultimately destined for certain
proscribed or restricted countries.
Certain information as described in the
regulatory text will also be collected by
CBP on behalf of BIS under existing or
new Commerce paperwork collections.
This final rule also makes eligibility to
export under License Exception TMP for
ECCN 0A501.a or .b or shotguns with a
barrel length less than 18 inches
controlled in ECCN 0A502 subject to the
following conditions:
At the time of entry for a temporary
import, the temporary importer is
required to provide the required
statement to CBP, as specified in
paragraph (b)(5)(iv)(A).
The temporary importer is required to
include on the invoice or other
appropriate import-related
documentation (or electronic
equivalents) provided to CBP a
complete list and description of the
0A501 firearms being imported,
including their serial numbers, model,
make, caliber, quantity, and U.S. dollar
value, as specified in paragraph
(b)(5)(iv)(B).
If the firearms are temporarily
imported for a trade show, exhibition,
demonstration, or testing, the temporary
importer must provide to CBP the
relevant invitation or registration
documentation for the event and an
accompanying letter that details the
arrangements to maintain effective
control of the firearms while they are in
the United States, as specified in
paragraph (b)(5)(iv)(C).
At the time of export, the temporary
importer or its agent as specified in
paragraph (b)(5)(v) are required to
provide the temporary import
documentation (i.e., the invoice used at
the time of entry for the temporary
importation or other appropriate
temporary import-related
documentation (or electronic
equivalents)) related to paragraph
(b)(5)(iv)(B) to CBP. This information
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will be used by CBP to confirm that
such firearms were in fact temporarily
imported under the EAR for subsequent
export under License Exception TMP.
This final rule adds a note to License
Exception TMP to direct temporary
importers and exporters to contact CBP
at the port of import or export for the
proper procedures to provide any data
or documentation required by BIS.
License Exception: Governments,
International Organizations,
International Inspections Under the
Chemical Weapons Convention, and the
International Space Station (GOV)
This final rule revises § 740.11 to
limit the applicability of License
Exception GOV for firearms, ‘‘parts’’ and
‘‘components’’ controlled by ECCN
0A501 and ammunition controlled by
0A505 to exports, reexports, and
transfers for official use by U.S
government agencies and official and
personal use by U.S. Government
employees (and the immediate families
and household employees of those
government employees)
(§ 740.11(b)(2)(i) and (ii) of the EAR).
This authorization under License
Exception GOV treats 0A501 firearms in
the same manner that other items that
are subject to the EAR may be exported
to U.S. Government employees under
License Exception GOV. It does not
impose certain restrictions that are
imposed by the former ITAR license
exemption (22 CFR 123.18) (removed
and reserved by companion rule) that
authorized shipments consigned to and
for the use of servicemen’s clubs, and
for service members or civilian
employees if the firearms are for
personal use and the shipment is
accompanied by a written authorization
from the commanding officer
concerned. See the Commerce May 24
rule for additional background. License
Exception GOV authorizes nonautomatic and semi-automatic firearms
and related ‘‘parts’’ and ‘‘components.’’
All other items that are the subject of
this final rule will be subject to the
limits on use of License Exception GOV
that apply to 600 series items generally,
i.e., § 740.11(b)—to, for, or on behalf of
the U.S. Government (including
contractors, government employees,
their families and household
employees) or § 740.11(c) to a
government in Country Group A:1
cooperating governments or an agency
of NATO. However, this rule will add
some additional restrictions for E:1 and
E:2 countries. This final rule will
exclude the use of License Exception
GOV for any item listed in a 0x5zz
ECCN for E:1 countries, unless
authorized under paragraph (b)(2)(i) or
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(ii) when the items are solely for U.S.
Government official use. In addition, to
better ensure compliance with section
1754(c) of the ECRA and address
concerns with certain end users and
uses in Country Group E:1 and E:2
countries, this final rule adds a new
Note 2 to paragraph (b)(2), which
restricts the use of License Exception
GOV for E:1 and E:2 countries for
multilaterally controlled items and antiterrorism (AT) controlled items when
destined to certain end users or end
uses of concern.
This final rule also makes the
following additional change to License
Exception GOV to respond to the
comments received on the Commerce
May 24 rule:
In § 740.11 of License Exception GOV,
this final rule revises Note 2 to
paragraph (b)(2) to include illustrative
examples of other sensitive end-users.
This final rule adds the parenthetical
phrase ‘‘(e.g., contractors or other
governmental parties performing
functions on behalf of military, police,
or intelligence entities)’’ after the phrase
‘‘or other sensitive end-users’’ to
provide greater clarity on the other endusers that are excluded.
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License Exception: Baggage (BAG)
This final rule revises License
Exception BAG, § 740.14, to allow
United States citizens and permanent
resident aliens leaving the United States
temporarily to take up to three firearms
controlled by proposed ECCN 0A501
and up to 1,000 rounds of ammunition
for such firearms controlled under
ECCN 0A505.a for personal use while
abroad. This change to License
Exception BAG is made to be consistent
with former 22 CFR 123.17(c) (removed
and reserved by companion rule), which
authorized U.S. persons to take up to
three non-automatic firearms and up to
1,000 cartridges therefor abroad for
personal use. This amendment to
License Exception BAG applies to both
non-automatic and semi-automatic
firearms.
Travelers leaving the United States
temporarily are required to declare the
0A501 and 0A505 items to a CBP officer
prior to departure from the United
States and present the firearms, ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’
‘‘attachments,’’ and ammunition they
are exporting to the CBP officer for
inspection, confirming that the
authority for the export is License
Exception BAG, that the exporter is
compliant with its terms. Should
exporters desire to contact CBP prior to
departure, contact information and a list
of U.S. air, land and sea ports of entry
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can be found at: https://www.cbp.gov/
contact/ports.
This final rule also revises License
Exception BAG to allow nonresident
aliens leaving the United States to take
firearms, ‘‘accessories,’’ ‘‘attachments,’’
‘‘components,’’ ‘‘parts,’’ and
ammunition controlled by ECCN 0A501
or 0A505 that they lawfully brought into
the United States. This change is
consistent with former 22 CFR 123.17(d)
(removed and reserved by companion
rule), which authorized foreign persons
leaving the United States to take
firearms and ammunition controlled
under Category I(a) of the USML (both
non-automatic and semi-automatic) that
they lawfully brought into the United
States. This final rule does not adopt
any changes to the availability of
License Exception BAG for shotguns
and shotgun shells authorized under
paragraph (e)(1) or (2).
As a clarification to License Exception
BAG, this final rule adds one sentence
to the introductory text of paragraph
(b)(4) to highlight the special provisions
that apply in paragraph (e) for firearms
and ammunition and in paragraph (h)
for personal protective equipment under
ECCN 1A613.c or .d. This one sentence
does not change the existing
requirement and has been included to
assist the public in better identifying
these special provisions.
Consistent with the ITAR
requirements previously applicable to
temporary exports of the firearms and
associated ammunition covered by the
May 24 proposed rule, BIS proposed in
the Commerce May 24 rule to modify
§ 758.1 of the EAR to make clear that
exporters would continue to be required
to file EEI in AES for transactions
involving such firearms and associated
ammunition that are otherwise
authorized pursuant to License
Exception BAG. However, for the
reasons described above in the
description of the comments and BIS
responses, this final rule adopts an
alternative approach with the addition
of the new § 758.11 described
immediately below.
This final rule makes the following
additional changes in response to the
public comments received on the
Commerce May 24 rule:
As described above, this final rule
removes the EEI filing requirement in
AES as set forth in § 758.1(b)(9) for
firearms authorized under License
Exception BAG.
In response to public comments as
described above, this final rule instead
adds a new § 758.11 (Export clearance
requirements for firearms and related
items) and incorporates a requirement to
use the Department of Homeland
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4165
Security, CBP Form 4457, Certificate of
Registration for Personal Effects Taken
Abroad) (OMB Control Number 1651–
0010) for all exports of commodities
controlled under ECCNs 0A501.a or .b,
shotguns with a barrel length less than
18 inches controlled under ECCN
0A502, or ammunition controlled under
ECCN 0A505 except for .c, regardless of
value or destination, including exports
to Canada, that are authorized under
License Exception BAG, as set forth in
§ 740.14. Section 758.11 includes four
paragraphs: Paragraph (a) (Scope)
specifies when these export clearance
requirements apply; paragraph (b)
(Required form) identifies the required
form that needs to be used in
connection with these exports
authorized under License Exception
BAG, including paragraph (b)(1) that
includes a website for where to find the
form, and paragraph (b)(2) that specifies
the ‘‘description of articles’’ for firearms
to be included on the CBP Form 4457;
paragraph (c) provides a link for where
to find additional information on the
CBP Form 4457; and paragraph (d)
(Return of items exported pursuant to
this section) specifies the requirements
for the return of items exported under
License Exception BAG when the export
clearance requirements in § 758.11
apply.
License Exception: Servicing and
Replacement of Parts and Equipment
(RPL)
This final rule also adopts the
following changes to License Exception
RPL to respond to the comments
received on the Commerce May 24 rule,
that requested License Exception RPL be
included as a valid purpose for a
temporary import under § 758.10. As
described above, BIS agreed to include
License Exception RPL in § 758.10, and
these changes are described below.
In § 740.10(b) (Servicing and
replacement of parts and equipment),
this final rule makes needed conforming
changes for the addition of License
Exception RPL to § 758.10 and to
include similar changes as were made to
License Exception TMP under
§ 740.9(b)(5) in the Commerce May 24
rule. This final rule adds one sentence
to the end of the introductory text of
§ 740.10(b)(1) to specify that that
additional requirements in new
paragraph (b)(4) must be met in order to
use License Exception RPL to authorize
under paragraph (b)(2) or (3) the export
of firearms controlled by ECCN 0A501.a
or .b, or shotguns with a barrel length
less than 18 inches controlled in ECCN
0A502 temporarily in the United State
for servicing and replacement. This final
rule adds new paragraph (b)(4) (Exports
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of firearms and certain shotguns
temporarily in the United States for
servicing and replacement). Under the
introductory text of paragraph (b)(4),
this final rule imposes a requirement
that the firearms and certain shotguns
must be temporarily in the United States
for servicing or replacement for a period
not exceeding one year or the time it
takes to service or replace the
commodity, whichever is shorter in
order to use License Exception RPL to
authorize the export. This final rule
adds paragraphs (b)(4)(i) and (ii) to
impose restrictions for firearms shipped
from or manufactured in Russia,
Georgia, Kazakhstan, Kyrgyzstan,
Moldova, Turkmenistan, Ukraine, or
Uzbekistan, except for any firearm
model controlled by 0A501 that is
specified under Annex A in Supplement
No. 4 to part 740, to impose the same
types of restrictions and impose the
same type of information requirements
for providing information to CBP as this
final rule includes for License Exception
TMP under paragraph (b)(5).
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License Exception: Additional
Permissive Reexports (APR)
This final rule also adopts the
following change to License Exception
APR to respond to the comments
received on the Commerce May 24 rule:
In § 740.16 of License Exception APR,
this final rule adds commodities
classified under a 0x5zz ECCN to the list
of commodities excluded under
paragraph (a) of License Exception APR.
This final rule also adds a new
paragraph (b)(2)(vi) to exclude
commodities classified under a 0x5zz
ECCN under paragraph (b) of License
Exception APR. The Commerce May 24
rule did not propose these exclusions
from License Exception APR, but BIS
identified these two paragraphs of
License Exception APR as two
authorizations that were not intended to
be available under the Commerce May
24 rule, but based on the stated criteria
prior to the effective date of this final
rule would have been available.
Therefore, this final rule makes these
changes to ensure the authorizations
available for reexports and transfers (incountry) will be equivalent to those
available for exports.
License Exception STA
BIS did not receive any comments on
the proposed changes to License
Exception STA, § 740.20, in the
Commerce May 24 rule, so this final
rule adopts those changes as proposed.
This final rule revises the regulations at
§ 740.20 to make firearms controlled
under ECCN 0A501 and most ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ and
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‘‘attachments’’ controlled under ECCN
0A501 ineligible for License Exception
STA. Only those ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ and
‘‘attachments’’ that are controlled under
paragraph .x are eligible for export
under License Exception STA. Items
controlled under ECCNs 0A502 and
0A503 are also excluded from STA
eligibility.
Support Documentation for Firearms,
Parts, Components, Accessories, and
Attachments Controlled by ECCN
0A501
BIS did not receive any comments on
this proposed change to § 748.12 in the
Commerce May 24 rule, so the change
is published in this final rule as
proposed. This final rule requires that
for commodities controlled by ECCN
0A501 that are the subject of export or
reexport transactions for which a license
is required, the exporter or reexporter
must obtain, prior to submitting an
application, an import permit (or copy
thereof) if the importing country
requires such permits for import of
firearms. That import permit is a record
that must be kept by the exporter or
reexporter as required by part 762 of the
EAR. The purpose of this requirement is
to assure foreign governments that their
regulations concerning the importation
of firearms are not circumvented. To
implement this change, this final rule
revises § 748.12 to include the
commodities controlled under ECCNs
0A501 (except 0A501.y), 0A502, 0A504
(except 0A504.f), and 0A505 (except
0A505.d) within the list of commodities
that are subject to the requirement and
adds a new paragraph (e) requiring that
import certificates or permits be
obtained from countries other than OAS
member states if those states require
such a certificate or permit.
Licenses for Firearms and Ammunition
Will Be Limited to the Authorized End
Use and End Users
BIS did not receive any comments on
these statements of EAR licensing policy
in the Commerce May 24 rule but
restates them here to assist the public.
Consistent with other BIS licenses,
including ‘‘600 series’’ and 9x515 items,
licenses for firearms and ammunition
that move from the USML to the CCL
are limited to the authorized end use
and end users specified on the license
and supporting documentation
submitted as part of the license
application. This means any change in
the authorized end use or end user for
a licensed transaction will require a BIS
authorization. This existing requirement
of BIS licenses is specified in § 750.7(a)
and on the boiler plate text included on
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all BIS licenses. These requirements are
also applied to firearms and
ammunition licenses. A change in end
use or end user, including a change of
authorized end use or end user within
a single foreign country for a firearm or
ammunition authorized under a BIS
license, requires a BIS authorization.
BIS does not adopt any changes in this
final rule to these well-established and
understood requirements on using BIS
licenses. Applicants for firearms and
ammunition licenses are also advised
that BIS continues to exercise its
authority, as specified in § 748.11 in the
Note 2 to paragraph (a), on a case-bycase basis to require a Statement by
Ultimate Consignee and Purchaser as
warranted.
The exporter, reexporter, or transferor
using a BIS license, including for
firearms and ammunition licenses, is
also required, pursuant to § 750.7(a), to
inform the other parties identified on
the license, such as the ultimate
consignees and end users of the
license’s scope and of the specific
conditions applicable to them. As an
additional safeguard for firearms and
ammunition licenses, BIS will include,
when warranted, a license condition
requiring the exporter, reexporter, or
transferor to obtain from the other
parties identified on the license a
written confirmation that those other
parties have received and agree to the
terms and conditions of the license. For
example, the condition may state ‘‘Prior
to using this license, the exporter
(reexporter or transferor) and other
parties to the license must agree to the
conditions in writing and the exporter
(reexporter or transferor) must keep this
on file with their other records.’’ The
documents described in this paragraph
are required to be kept for EAR
recordkeeping purposes under part 762
of the EAR.
Conventional Arms Reporting for
Certain Exports of ECCN 0A501.a and
.b Commodities
In § 743.4 (Conventional arms
reporting), this final rule revises
paragraphs (c)(1)(i) and (c)(2)(i) to add
ECCN 0A501.a and .b as commodities
that require Wassenaar Arrangement
reporting and United Nations reporting
under this conventional arms reporting
section of the EAR. This requirement
assists the U.S. Government to meet its
multilateral commitments for the
special reporting requirements for
exports of certain items listed on the
WAML and the United Nations Register
of Conventional Arms when these items
are authorized for export under License
Exceptions LVS, TMP, RPL, STA, or
GOV (see part 740 of the EAR) or the
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Validated End-User authorization (see
§ 748.15 of the EAR) and for United
Nations reporting. License Exceptions
LVS and STA are identified in
§ 743.4(b)(1), but because ECCN 0A501.a
and .b commodities are not eligible for
those two license exceptions, the
reporting requirements under
§ 743.4(c)(1)(i) and (c)(2)(i) are limited
to exports authorized License
Exceptions TMP, GOV, and RPL or the
Validated End-User authorization. This
final rule also adds contact information
for these reports.
This final rule also makes the
following additional change to § 743.4
to respond to the comments received on
the Commerce May 24 rule:
Commenters requested that BIS use
information required to be submitted in
the EEI filing in AES to pull the
conventional arms reporting data
directly in order to eliminate the need
for exporters to submit separate reports
to BIS. BIS agreed and this final rule
revises three paragraphs in § 743.4 to
adopt an alternative method for BIS to
receive the information that is required
for conventional arms reporting. This
rule revises paragraph (a) to add four
sentences at the end of the paragraph.
These four sentences specify that if the
exporter follows the requirements
specified in this section for the
alternative submission method
described in new paragraph (h)
(Alternative submission method), that
separate reporting does not need to be
made to BIS for purposes of § 743.4.
Because of the EEI filing requirements
in AES in new § 758.1(g)(4)(ii) for the
firearms that require conventional arms
reporting, all conventional arms
reporting requirements for firearms
should be able to be met by using the
alternative submission method. Under
paragraph (b) (Requirements), this final
rule adds a reference to meeting the
reporting requirement by using the
alternative submission method in new
paragraph (h).
This final rule adds paragraph (h) that
describes the requirements for the
alternative submission method. To use
the alternative reporting method, each
time the exporter files an EEI record in
AES, the exporter must include as the
first text in the Commodity Description
field in AES the first six characters of
the ECCN number, i.e., ‘‘0A501.a’’ or
‘‘0A501.b.’’ In addition, the exporter
must document for recordkeeping
requirements under the EAR that for
purposes of the conventional arms
reporting requirements under part 743,
it has decided to use the alternate
submission method by taking steps to
identify the end item firearms in the EEI
filing in AES that will enable the U.S.
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Government to pull the data and meet
national reporting commitments to the
Wassenaar Arrangement and the United
Nations.
As a conforming change, in § 758.1
(The Electronic Export Enforcement
(EEI) filing to the Automated Export
System (AES)), this final rule adds a
new paragraph (g)(4)(ii) (Identifying end
item firearms by ‘‘items’’ level
classification or other control descriptor
in the EEI filing in AES). Exporters must
include the six character ECCN
classification (i.e., 0A501.a or 0A501.b),
as the first text to appear in the
Commodity description block in the EEI
filing in AES. Exporters for shotguns
controlled under 0A502 must include
the phrase ‘‘0A502 barrel length less
than 18 inches’’ as the first text to
appear in the Commodity description
block in the EEI filing in AES. This
information will be used by BIS as
referenced in § 743.4(h) for conventional
arms reporting.
Changes to Export Clearance
Requirements for Firearms Being
Moved to the CCL (Part 758)
In § 758.1, this final rule adopts
changes to clarify that a filing of EEI in
AES will be required for exports of the
firearms transferred from the USML
pursuant to this rule regardless of value
or destination, including exports to
Canada. As noted above, this
requirement applies, as was the case
under the ITAR prior to the effective
date of this final rule, for temporary
exports of such items pursuant to
License Exception TMP, but not for
License Exception BAG.
In addition, this final rule expands
the data elements required as part of an
EEI filing to AES filing for these
firearms to include serial numbers,
make, model and caliber. This
requirement will ensure law
enforcement officials are able to
effectively verify that firearms exports
are properly authorized and in
conformance with all applicable
regulations, including those associated
with the temporary export and
subsequent return of controlled firearms
and unused ammunition.
This final rule also makes the
following additional changes to
§ 758.1(b)(10) and (c)(1) to respond to
the comments received on the
Commerce May 24 rule regarding the
concerns for individuals having to file
EEI in AES:
In § 758.1, this final rule revises new
paragraph (b)(10) that was included in
the Commerce May 24 rule, but adds it
as new paragraph (b)(9). This final rule
excludes exports authorized under
License Exception BAG from the EEI
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filing requirement in AES. As a
conforming change, this final rule
revises paragraph (c)(1) to eliminate the
restriction from the exemption for
License Exception BAG. This final rule
makes this change because of excluding
License Exception BAG from paragraph
(b)(9) means the general exemption for
not filing EEI in AES for these firearms
authorized under License Exception
BAG, should be available, so this final
rule makes this conforming change. This
final rule adds a new Note to paragraph
(c)(1) to add a cross reference to the
export clearance requirements that are
specific to firearms exported under
License Exception BAG.
This final rule also makes the
following additional changes to
§ 758.1(g)(4) to respond to the comments
received on the Commerce May 24 rule
regarding concerns for having to include
the manufacture, model, caliber, and
serial number in the EEI filing in AES:
In § 758.1(g)(4) (Exports of Firearms
and Related Items), this final rule adds
a new paragraph (g)(4)(i) (Identifying
end item firearms by manufacturer,
model, caliber, and serial number in the
EEI filing in AES) to narrow the
requirement for when firearms must be
identified by manufacture, model,
caliber, and serial number in the EEI
filing in AES to License Exception TMP
or a BIS license that contains a
condition requiring all or some of this
information to be filed as EEI in AES.
Entry Clearance Requirements for
Temporary Imports (§ 758.10)
Temporary imports are transactions
that involve both the temporary entry of
an item into the U.S. from a foreign
country and the subsequent export of
that item from the U.S. To preserve the
treatment of temporary import
transactions for items in this rule that
will transfer from the USML in the ITAR
to become subject to the EAR, BIS
imposes a temporary imports entry
clearance requirement in this final rule
by adding new § 758.10. This new
section is limited to items in this rule
that are both ‘‘subject to the EAR’’ and
on the USMIL in 27 CFR 447.21. To
allow such items to temporarily enter
the U.S., this final rule imposes a
process to collect identifying
information for the sole purpose of
tracking items being temporarily
imported for subsequent export. BIS
does not impose a license requirement
for such imports, but this information is
necessary to facilitate the export after a
temporary import. The entry clearance
requirement is an EAR requirement and
any false representation made under the
new § 758.10 will be a violation of the
EAR.
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This final rule also makes the
following additional change to § 758.10
to respond to the comments received on
the Commerce May 24 rule:
In § 758.10, this final rule adds an
exclusion to the entry clearance
requirements proposed in the
Commerce May 24 rule to clarify that
firearms ‘‘subject to the EAR’’ brought
into the United States by nonimmigrant
aliens under the provisions of
Department of Justice regulations at 27
CFR part 478 are not subject to these
same entry clearance requirements for
temporary imports. This final rule
makes this change for consistency with
License Exception BAG under
paragraph (e) and because ATF
regulations address nonimmigrant
aliens temporarily bringing these types
of firearms into the United States, so the
requirements in § 758.10 do not need to
apply.
In § 758.10, this final rule clarifies the
penultimate sentence and the last
sentence of paragraph (a) by removing
references to ‘‘permanent return’’ and
‘‘permanent import’’ after items are
temporarily exported under an EAR
authorization, e.g., License Exception
TMP or a Commerce license. This
clarification is made because the
inbound portion of a temporary export
is covered by the temporary export
authorization, so it not accurate to
describe those as a ‘‘permanent return’’
or as a ‘‘permanent import.’’
Also in § 758.10, this final rule
clarifies the introductory text of
paragraph (b) by deleting the title ‘‘the
Port Directors’’ before U.S. Customs and
Border Protection. This change is made
because U.S. Customs and Border
Protection Center Directors may also
have an enforcement role in addition to
Port Directors, so referencing U.S.
Customs and Border Protection is
sufficient. In paragraph (b)(2), this final
rule revises the phrase ‘‘as requested by
CBP’’ with the phrase ‘‘upon request by
CBP.’’ In the last sentence of paragraph
(b)(2), this final rule removes the word
‘‘inspection’’ after the phrase
‘‘additional requirements,’’ because the
word was not intended to be included
in the cross reference to § 758.1(g)(4).
This final rule also revises § 758.10 to
add references to License Exception RPL
and BIS licenses as two additional EAR
authorizations as valid purposes for a
temporary import under this section.
This final rule does this by revising
paragraph (b)(1)(i) to broaden the
number of permissible statements to
allow for three statements (instead of
the single statement that was included
in the Commerce May 24 rule). This
final rule adds new paragraphs
(b)(1)(i)(A) (to account for License
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Exception TMP under 15 CFR
740.9(b)(5)), (b)(1)(i)(B) (to account for
the addition of License Exception RPL
under 15 CFR 740.10(b)), and (b)(1)(i)(C)
(to account for BIS licenses) to add the
three statements. The three statements
are substantively the same, and the only
difference is the EAR authorization
being referenced in the statement. As a
conforming change, this final rule adds
a new paragraph (b)(1)(iv) that applies if
the item being temporarily imported
under § 758.10 is for servicing or
replacement. Under this new paragraph
(b)(1)(iv) at the time of temporary
import, the name, address and contact
information of the organization or
individual in the U.S. that will be
receiving the item for servicing or
replacement must be provided to CBP.
Lastly, as an additional conforming
change, this final rule adds a new Note
2 to paragraph (b)(1) to impose
exclusions, similar to those imposed on
License Exception TMP that limit the
availability of License Exception RPL
for temporary imports of certain
firearms shipped from or manufactured
in listed countries.
Unique Application and Submission
Requirements for Licenses
This final rule also adopts the
following changes for BIS license
applications in response to comments
received. As described above, BIS
agreed to include changes in § 758.10 to
account for temporary imports that
would require a BIS license for
subsequent export.
In Supplement No. 2 to part 748—
Unique Application and Submission
Requirements, this final rule adds a new
paragraph (z) (Exports of firearms and
certain shotguns temporarily in the
United States) describing a certification
requirement for applicants to include in
Block 24 of the BIS license application.
The certification requirement is an
acknowledgement by the applicant that
the firearms in the application will not
be shipped from or manufactured in
Russia, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Turkmenistan,
Ukraine, or Uzbekistan, except for any
firearm model controlled by 0A501 that
is specified under Annex A in
Supplement No. 4 to part 740. The
certification also requires that the
applicant and other parties to the
transaction will comply with the
requirements in paragraphs (z)(2)(i) and
(ii) of Supplement No. 2 to part 748.
This final rule adds paragraph (z)(2)
(Requirements) to describe the
requirements that will be applicable for
any license for the export of firearms
controlled by ECCN 0A501.a or .b, or
shotguns with a barrel length less than
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18 inches controlled in ECCN 0A502
that will be temporarily imported to the
United States. These requirements
impose the same type of requirements as
this final rule includes for License
Exception TMP under paragraph (b)(5)
and License Exception RPL under
paragraph (b)(4), but does so by
imposing the certification requirement
in paragraph (z)(1). BIS will include a
standard condition that will require
compliance with the requirements in
paragraphs (z)(2)(i) and (ii).
Changes to EAR Recordkeeping
Requirements for Firearms Being
Moved to the CCL (Part 762)
BIS does not make any additional
changes in this final rule to what was
proposed in the Commerce May 24 rule
as a result of the comments received, so
these changes are adopted as proposed.
In part 762 (Recordkeeping), this final
rule adopts two changes to the
recordkeeping requirements under the
EAR. These changes specify that certain
records, that are already created and
kept in the normal course of business,
must be kept by the ‘‘exporter’’ or any
other party to the transaction (see
§ 758.3 of the EAR), that creates or
receives such records.
Specifically, in § 762.2 (Records to be
retained), this final rule redesignates
paragraph (a)(11) as (a)(12) and adds a
new paragraph (a)(11) to specify the
following information must be kept as
an EAR record: Serial number, make,
model, and caliber for any firearm
controlled in ECCN 0A501.a and for
shotguns with barrel length less than 18
inches controlled in 0A502. The
‘‘exporter’’ or any other ‘‘party to the
transaction’’ that creates or receives
such records is the person responsible
for retaining this record.
In § 762.3 (Records exempt from
recordkeeping requirements), this final
rule narrows the scope of an exemption
from the EAR recordkeeping
requirements for warranty certificates.
This final rule narrows this exclusion to
specify the exclusion from the
recordkeeping requirements does not
apply (meaning the record will need to
be kept under the recordkeeping
requirements) for warranty certificates
for any firearm controlled in ECCN
0A501.a and for shotguns with barrel
length less than 18 inches controlled in
0A502, when the certificate issued is for
an address located outside the United
States. This is an expansion of the EAR
recordkeeping requirements, but
because warranty certificates are already
created and kept as part of normal
business recordkeeping purposes, this
expansion is not anticipated to create
any new or increased burden under the
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EAR, because it is a document that is
created in the normal course of business
and should be easily accessible. These
recordkeeping requirements will assist
the United States Government because it
is important for law enforcement to
have access to this information.
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Conforming Change To Add a New
Definition for Use in ECCNs 0A501 and
0A502 (§ 772.1)
This final rule also adds a new
definition to the definition part of the
EAR to respond to the comments
received on the Commerce May 24 rule:
In § 772.1 (Definitions of terms as
used in the Export Administration
Regulations), this final rule adds a
definition of ‘‘complete breech
mechanisms.’’ The new definition
specifies that this is a mechanism for
opening and closing the breech of a
breech-loading firearm, especially of a
heavy-caliber weapon. As a conforming
change, this final rule also adds double
quotation marks around the term where
it is used in ECCNs 0A501 and 0A502.
Export Control Reform Act of 2018
On August 13, 2018, the President
signed into law the John S. McCain
National Defense Authorization Act for
Fiscal Year 2019, which included the
Export Control Reform Act of 2018
(ECRA) (50 U.S.C. 4801–4852) that
provides the legal basis for BIS’s
principal authorities and serves as the
authority under which BIS issues this
rule. As set forth in Section 1768 of
ECRA, all delegations, rules,
regulations, orders, determinations,
licenses, or other forms of
administrative action that have been
made, issued, conducted, or allowed to
become effective under the Export
Administration Act of 1979 (50 U.S.C.
4601 et seq.) (as in effect prior to August
13, 2018 and as continued in effect
pursuant to the International Emergency
Economic Powers Act (50 U.S.C. 1701 et
seq.) and Executive Order 13222 of
August 17, 2001, 3 CFR, 2001 Comp., p.
783 (2002), as amended by Executive
Order 13637 of March 8, 2013, 78 FR
16129 (March 13, 2013), and as
extended by the Notice of August 8,
2018, 83 FR 39871 (August 13, 2018)),
or the Export Administration
Regulations, and are in effect as of
August 13, 2018, shall continue in effect
according to their terms until modified,
superseded, set aside, or revoked under
the authority of ECRA.
Executive Order Requirements
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
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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 final rule has been
designated a ‘‘significant regulatory
action,’’ although not economically
significant, under section 3(f) of
Executive Order 12866. Although the
items identified in this final rule have
been determined to no longer warrant
ITAR control by the President, the
proliferation of such items has been
identified as a threat to domestic and
international security if not classified
and controlled at the appropriate level
under the EAR. Commerce estimates
that the combined effect of all rules to
be published adding items removed
from the ITAR to the EAR will increase
the number of license applications to be
submitted to BIS by approximately
30,000 annually.
This final rule does not contain
policies with Federalism implications as
that term is defined under E.O. 13132.
To control these items under the EAR
that no longer warrant ITAR control,
appropriate controls on the CCL needed
to be included in the Department of
Commerce final rule. This includes
creating new ECCNs and revising
certain existing ECCNs, as well as
making other changes to the EAR to
control items that will be moved from
these three USML categories to the CCL
once the section 38(f) notification
process is completed and a final rule is
published and becomes effective.
Adding new controls and other
requirements to the EAR imposes
regulatory burdens on exporters and
some other parties involved with those
items, but compared to the burdens
these exporters and other parties faced
under the ITAR, these regulatory
burdens, including financial costs, will
be reduced significantly. The EAR is a
more flexible regulatory structure
whereby the items can still be
controlled appropriately, but in a much
more efficient way that will
significantly reduce the burdens on
exporters and other parties compared to
the regulatory burdens they faced when
the items were ‘‘subject to the ITAR.’’
Deregulatory does not mean a decontrol
of these items.
For those items in USML Categories I,
II, and III that will move by this rule to
the CCL, BIS will be collecting the
necessary information using the form
associated with OMB Control No. 0694–
0088. BIS estimates that this form takes
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4169
approximately 43.8 minutes for a
manual or electronic submission. Using
the State Department’s estimate that
10,000 license applications annually
will move from the USML to the CCL
and BIS’s estimate in this final rule that
6,000 of the 10,000 license applications
will require licenses under the EAR,
that constitutes a burden of 4,380 hours
for this collection under the EAR. Those
companies are currently using the State
Department’s forms associated with
OMB Control No. 1405–0003 for which
the burden estimate is 1 hour per
submission, which for 10,000
applications results in a burden of
10,000 hours. Thus, subtracting the BIS
burden hours of 4,380 from the State
Department burden hours of 10,000, the
burden is reduced by 5,620 hours. The
other 4,000 applicants may use license
exceptions under the EAR or the ‘‘no
license required’’ designation, so these
applicants will not be required to
submit license applications under the
EAR.
In addition to the reduced burden
hours of 5,620 hours, there will also be
direct cost savings to the State
Department that will result from the
10,000 license applications no longer
being required under the ITAR once
these items are moved to the EAR. The
Department of State charges a
registration fee to apply for a license
under the ITAR. Pursuant to the AECA,
ITAR, and associated delegations of
authority, every person who engages in
the business of brokering activities,
manufacturing, exporting, or
temporarily importing any defense
articles or defense services must register
with the Department of State and pay a
registration fee. The Department of State
adopted the current fee schedule to
align the registration fees with the cost
of licensing, compliance, and other
related activities. The Department of
Commerce will incur additional costs to
administer these controls and process
license applications. However, the
Department of Commerce does not
charge a registration fee to apply for a
license under the EAR, and we are
unable to estimate the increase in costs
to the Department of Commerce to
process the new license applications.
Therefore, we are unable to provide an
estimate of the net change in resource
costs to the government from moving
these items from the ITAR to the EAR.
It is the case, however, that the
movement of these items from the ITAR
will result in a permanent and recurring
direct transfer of $2,500,000 per year
from the government to the exporting
public, less the increased cost to
taxpayers, because they will no longer
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pay fees to the State Department for
licenses and there is no fee charged by
the Department of Commerce to apply
for a license.
Estimated Cost Savings
For purposes of E.O. 13771 of January
30, 2017 (82 FR 9339), the Department
of State and Department of Commerce
final rules are expected to be ‘‘net
deregulatory actions.’’ The Department
of Commerce has conducted this
analysis in close consultation with the
Department of State, because of how
closely linked the two final rules are for
the regulated public and the burdens
imposed under the U.S. export control
system.
E.O. 13771 and guidance provided to
the agencies on interpreting the
intended scope of the E.O. do not use
the term ‘‘net deregulatory action,’’ but
rather refer to deregulatory actions. As
outlined above, the Departments of State
and Commerce final rules are closely
linked and are best viewed as a
consolidated deregulatory action
although being implemented by two
different agencies. Also, as noted above,
items may not be subject to both sets of
regulations. Therefore, the movement of
a substantial number of items from the
USML determined to no longer warrant
ITAR control to the CCL will result in
a significant reduction of regulatory
burden for exporters and other persons
involved with such items that were
previously ‘‘subject to the ITAR.’’
For purposes of E.O. 13771, the
Departments of State and Commerce
have agreed to equally share the cost
burden reductions that will result from
the publication of these two integral
deregulatory actions. The Department of
State will receive 50% and the
Department of Commerce will receive
50% for purposes of calculating the
deregulatory benefit of these two
integral actions.
Under this agreed formulation, the
burden reductions will be calculated as
follows:
For purposes of the Department of
Commerce, the ‘‘net deregulatory
actions’’ will result in a permanent and
recurring cost savings of $1,250,000 per
year, and a reduction in burden hours
by 2,810 hours. The reduction in burden
hours by 2,810 will result in an
additional cost savings of 1 $126,281 to
the exporting public. The total cost
savings will be $1,376,281 in present
(2017) dollars. To allow for cost
1 The Department of Commerce used the
Department of State’s estimate that the burden hour
cost for completing a license application is $44.94
per hour. Multiplied by the estimated burden hour
savings of 2,810 equals a cost savings to the public
of $126,281.
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comparisons under E.O. 13771, the
value of these costs savings in 2016
dollars is $1,353,574. Assuming a 7%
discount rate, the present value of these
cost savings in perpetuity is
$19,336,771. Since the costs savings of
this rule are expected to be permanent
and recurring, the annualized value of
these cost savings is also $1,353,574 in
2016 dollars.
For purposes of the Department of
State, the ‘‘net deregulatory actions’’
will result in a permanent and recurring
cost savings of $1,250,000 per year, and
a reduction in burden hours by 2,810
hours. The reduction in burden hours
by 2,810 will result in an additional cost
savings of $126,281 to the exporting
public. The total cost savings will be
$1,376,281 in present (2017) dollars. To
allow for cost comparisons under E.O.
13771, the value of these costs savings
in 2016 dollars is $1,353,574. Assuming
a 7% discount rate, the present value of
these cost savings in perpetuity is
$19,336,771. Since the costs savings of
this rule are expected to be permanent
and recurring, the annualized value of
these cost savings is also $1,353,574 in
2016 dollars.
The Department of Commerce in the
Commerce May 24 rule welcomed
comments from the public on the
analysis under E.O. 13771 described
here. The Commerce May 24 rule noted
that it would be helpful to receive
comments from companies that will no
longer need to register with the
Department of State because the
company only deals with items under
USML Category I, II, and/or III that will
move to the CCL. Comments were also
encouraged on any of the other
collections that may be relevant for the
items that will move from the USML to
the CCL. The Commerce May 24 rule
also noted that it would be helpful to
receive data on Department of State
forms that will no longer need to be
submitted.
Paperwork Reduction Act
Requirements
Notwithstanding any other provision
of law, no person may be required to
respond to or be 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 final regulation involves four
collections currently approved by OMB
under these BIS collections and control
numbers: Simplified Network
Application Processing System (control
number 0694–0088), which includes,
among other things, license
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applications; License Exceptions and
Exclusions (control number 0694–0137);
Import Certificates and End-User
Certificates (control number 0694–
0093); Five Year Records Retention
Period (control number 0694–0096); and
the U.S. Census Bureau collection for
the Automated Export System (AES)
Program (control number 0607–0152).
This final rule will affect the
information collection, under control
number 0694–0088, associated with the
multi-purpose application for export
licenses. This collection carries a
burden estimate of 43.8 minutes for a
manual or electronic submission for a
burden of 31,833 hours. BIS believes
that the combined effect of all rules to
be published adding items removed
from the ITAR to the EAR will be an
increase in the number of license
applications to be submitted by
approximately 30,000 annually,
resulting in an increase in burden hours
of 21,900 (30,000 transactions at 43.8
minutes each) under this control
number. For those items in USML
Categories I, II, and III that will move by
this rule to the CCL, the State
Department estimates that 10,000
applicants annually will move from the
USML to the CCL. BIS estimates that
6,000 of the 10,000 applicants will
require licenses under the EAR,
resulting in a burden of 4,380 hours
under this control number. Those
companies are currently using the State
Department’s forms associated with
OMB Control No. 1405–0003 for which
the burden estimate is 1 hour per
submission, which for 10,000
applications results in a burden of
10,000 hours. Thus, subtracting the BIS
burden hours of 4,380 from the State
Department burden hours of 10,000, the
burden will be reduced by 5,620 hours.
(See the description above for the E.O.
13771 analysis for additional
information on the cost benefit savings
and designation of the two rules as ‘‘net
deregulatory actions’’.)
This final rule will also affect the
information collection under control
number 0694–0137, addressing the use
of license exceptions and exclusions.
Some parts and components formerly on
the USML, and ‘‘software’’ and
‘‘technology’’ for firearms and their
parts and components formerly on the
USML, will become eligible for License
Exception STA under this final rule.
Additionally, test, inspection and
production equipment, and ‘‘software’’
and ‘‘technology’’ related to those
firearms and ‘‘parts’’ may become
eligible for License Exception STA. BIS
believes that the increased use of
License Exception STA resulting from
the combined effect of all rules to be
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published adding items removed from
the ITAR to the EAR will 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 as a result of the increased use
of License Exception STA will be more
than offset by a reduction in burden
hours associated with approved
collections related to the ITAR. This
final rule addresses controls on firearms
and ‘‘parts,’’ production equipment and
‘‘parts’’ and related ‘‘software’’ and
‘‘technology’’ and specifically nonautomatic and semi-automatic firearms
and their ‘‘parts’’ and ‘‘parts,’’
‘‘components,’’ ‘‘attachments,’’ and
‘‘accessories’’ that are used in both
semi-automatic and fully automatic
firearms. BIS has made this
determination on the basis that with few
exceptions, the ITAR allows exemptions
from license requirements only for
exports to Canada, and requires a
specific State Department authorization
for most exports of firearms used for
hunting and recreational purposes and
exports of ‘‘parts,’’ ‘‘components,’’
‘‘attachments,’’ and ‘‘accessories’’ that
are common to military fully automatic
firearms and their semi-automatic
civilian counterparts, even when
destined to NATO and other close allies
and also requires State Department
authorization for the exports necessary
to produce ‘‘parts’’ and ‘‘components’’
for defense articles in the inventories of
the United States and its NATO and
other close allies. However, under the
EAR, as specified in this final rule, a
number of low-level parts will be
eligible for export under License
Exception STA and will therefore not
require a license to such destinations.
This final rule will also affect the
information collection under control
number 0694–0096, for the five-year
recordkeeping retention because of two
changes this rule will make to part 762
of the EAR. This rule adds a new
paragraph (a)(11) to § 762.2 to specify
the following information must be kept
as an EAR record: Serial number, make,
model, and caliber for any firearm
controlled in ECCN 0A501.a and for
shotguns with barrel length less than 18
inches controlled in 0A502. This rule
will also require warranty certificates
for these items to be retained for EAR
recordkeeping. However, because these
records are already created and kept as
part of normal business recordkeeping,
this expansion is not anticipated to
create any new or increased burden
under the EAR.
Even in situations in which a license
will be required under the EAR, the
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burden will likely be reduced compared
to a license requirement under the
ITAR. In particular, license applications
for exports of ‘‘technology’’ controlled
by ECCN 0E501 will likely be less
complex and burdensome than the
authorizations required to export ITARcontrolled technology, i.e.,
Manufacturing License Agreements and
Technical Assistance Agreements (as a
result of the differences in the scope of
the ITAR’s and the EAR’s technology
controls).
This final rule will affect the
information collection under control
number 0694–0093, import certificates
and end-user certificates because of the
changes included in this final rule.
First, this regulation will require that for
shipments requiring a license of
firearms, ‘‘parts,’’ ‘‘components,’’
‘‘accessories,’’ and ‘‘attachments’’
controlled under ECCN 0A501, the
exporter must obtain a copy of the
import certificate or permit if the
importing country requires one for
importing firearms. License applications
for which an import or end-user
certificate is already required under
§ 748.12 of the EAR will not be subject
to this new requirement. BIS expects
that this requirement will result in no
change in the burden under control
number 0694–0093. Second, this final
rule also will require that prior to
departure, travelers leaving the United
States and intending to temporarily
export firearms, parts, and components
controlled under ECCN 0A501 under
License Exception BAG declare the
firearms and parts to a CBP officer and
present the firearms and parts to the
CBP officer for inspection. As the State
Department also requires that persons
temporarily exporting firearms, parts,
and components declare the items to
CBP, BIS does not expect that the
requirement in this final rule will result
in a change in burden under control
number 0694–0093.
Third, this final rule will affect the
information collection under control
number 0694–0093 by creating a new
temporary import entry clearance
requirement by adding § 758.10. This
new section will be limited to items in
this rule that are both ‘‘subject to the
EAR’’ and on the United States
Munitions Import List (USMIL) in 27
CFR 447.21. To allow such items to
temporarily enter the U.S., this rule
implements a process to collect
identifying information for the sole
purpose of tracking items being
temporarily imported for subsequent
export under License Exceptions TMP,
RPL, and BIS licenses. BIS will not
impose a license requirement for such
imports, but collecting this information
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4171
will be necessary to facilitate the export
after a temporary import. The temporary
import entry clearance requirement in
§ 758.10 will also conform to the
requirements in License Exception TMP
under § 740.9(b)(5), License Exception
RPL under § 740.9(b)(4), and for BIS
licenses under paragraph (z) in
Supplement No. 2 to part 748, so
providing this information to CBP at
entry after a temporary import will
facilitate the export phase of a
temporary import under License
Exceptions TMP, RPL and BIS licenses.
At the time of entry for a temporary
import, the importer will need to
provide a statement to CBP indicating
that this shipment was being
temporarily imported in accordance
with the EAR for subsequent export in
accordance with and under the
authority of License Exceptions TMP,
RPL, or a BIS license. The entry
clearance requirement will be an EAR
requirement and any false
representation made under the new
§ 758.10 will be a violation of the EAR.
The importer will also need to provide
CBP an invoice or other appropriate
import-related documentation (or
electronic equivalents) that includes a
complete list and description of the
items being imported, including their
model, make, caliber, serial numbers,
quantity, and U.S. dollar value. If
imported for a trade show, exhibition,
demonstration, or testing, the temporary
importer will need to provide CBP with
the relevant invitation or registration
documentation for the event and an
accompanying letter that details the
arrangements to maintain effective
control of the firearms while they are
temporarily in the United States. If
imported for servicing or replacement,
the temporary importer will need to
provide CBP with the name, address
and contact information (telephone
number and/or email) of the
organization or individual in the U.S.
that will be receiving the item for
servicing or replacement. Lastly, at the
time of exportation, upon request by
CBP, the exporter, or an agent acting on
his or her behalf, will have to provide
the entry document number or a copy of
the CBP document under which the
‘‘item’’ ‘‘subject to the EAR’’ on the
USMIL was temporarily imported under
this entry clearance requirement. As the
State Department also requires that
persons temporarily importing items in
this rule provide the same type of
information to CBP, BIS expects that the
requirement in this final rule will result
in a change in burden under control
number 0694–0093, but because of the
decrease under the burden imposed
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under the State collection, the burden
on the public will not change.
This final rule will also affect the
information collection under control
number 0607–0152, for filing EEI in
AES because of one change this final
rule makes to part 758 of the EAR.
Under new § 758.1(b)(9), EEI will be
required for all exports of items
controlled under ECCNs 0A501.a or .b,
shotguns with a barrel length less than
18 inches controlled under ECCN
0A502, or ammunition controlled under
ECCN 0A505 except for .c, regardless of
value or destination, including exports
to Canada. Exports of these USML
firearms and ammunition prior to
moving to the CCL required filing EEI in
AES for all items ‘‘subject to the ITAR,’’
so the burden in this collection will not
change for the exporter.
This final rule includes a requirement
that, for all exports of temporary exports
from the United States or when the
license or other approval contains a
condition requiring all or some of this
information to be filed as EEI in AES of
items controlled under ECCNs 0A501.a
or .b, or shotguns with a barrel length
less than 18 inches controlled under
ECCN 0A502, in addition to any other
required data for the associated EEI
filing requirements, the exporter must
provide to CBP the serial number, make,
model, and caliber for each firearm
being exported. The Department of
Commerce is carrying over the existing
CBP filing requirements for items
transferred from the USML to the CCL.
The Department of Homeland Security
currently is collecting these data
elements for firearms ‘‘subject to the
ITAR’’ under OMB Control Number
1651–0010 (CBP Form 4457, Certificate
of Registration for Personal Effects
Taken Abroad). There is no change to
the information being collected or to the
burden hours as a result of this rule.
Separate from this rule, CBP will update
the information collection to reflect the
use of AES or some other simplified
electronic alternative to CBP Form 4457.
Any comments regarding the
collection of information associated
with this final rule, including
suggestions for reducing the burden,
may be sent to Jasmeet K. Seehra, Office
of Management and Budget (OMB), by
email to Jasmeet_K._Seehra@
omb.eop.gov, or by fax to (202) 395–
7285.
Administrative Procedure Act and
Regulatory Flexibility Act
Requirements
Pursuant to section 1762 of the Export
Control Reform Act of 2018 (Title XVII,
Subtitle B of Pub. L. 115–232), which
was included in the John S. McCain
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19:01 Jan 22, 2020
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National Defense Authorization Act for
Fiscal Year 2019, this action is exempt
from the Administrative Procedure Act
(APA) (5 U.S.C. 553) requirements for
notice of proposed rulemaking,
opportunity for public participation,
and delay in effective date.
Because a notice of proposed
rulemaking and an opportunity for
public comment are not required to be
given for this rule by the APA or any
other law, the analytical requirements of
the Regulatory Flexibility Act, 5 U.S.C.
601, et seq., are not applicable.
Accordingly, no regulatory flexibility
analysis is required and none has been
prepared.
List of Subjects
15 CFR Parts 732, 740, and 748
Administrative practice and
procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 734
Administrative practice and
procedure, Exports, Inventions and
patents, Research, Science and
technology.
15 CFR Parts 736 and 772
Exports.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 743
Administrative practice and
procedure, Reporting and recordkeeping
requirements.
15 CFR Part 744
Exports, Reporting and recordkeeping
requirements, Terrorism.
15 CFR Parts 746 and 774
Exports, Reporting and recordkeeping
requirements.
15 CFR Part 758
Administrative practice and
procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 762
Administrative practice and
procedure, Business and industry,
Confidential business information,
Exports, Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, parts 732, 734, 736, 740, 742,
743, 744, 746, 748, 758, 762, 772, and
774 of the Export Administration
Regulations (15 CFR parts 730–774) are
amended as follows:
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PART 732—STEPS FOR USING THE
EAR
1. The authority citation for 15 CFR
part 732 is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
Comp., p. 783.
2. Section 732.2 is amended by adding
one sentence to the end of paragraph (b)
introductory text to read as follows:
■
§ 732.2
Steps regarding scope of the EAR.
*
*
*
*
*
(b) * * * The following also remains
subject to the EAR: ‘‘Software’’ or
‘‘technology’’ for the production of a
firearm, or firearm frame or receiver,
controlled under ECCN 0A501, as
referenced in § 734.7(c) of the EAR).
*
*
*
*
*
PART 734—SCOPE OF THE EXPORT
ADMINISTRATION REGULATIONS
3. The authority citation for 15 CFR
part 734 is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996
Comp., p. 219; E.O. 13026, 61 FR 58767, 3
CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR
44025, 3 CFR, 2001 Comp., p. 783; E.O.
13637, 78 FR 16129, 3 CFR, 2014 Comp., p.
223; Notice of November 12, 2019, 84 FR
61817 (November 13, 2019).
4. Section 734.7 is amended by
revising paragraph (a) introductory text
and adding paragraph (c) to read as
follows:
■
§ 734.7
Published.
(a) Except as set forth in paragraphs
(b) and (c) of this section, unclassified
‘‘technology’’ or ‘‘software’’ is
‘‘published,’’ and is thus not
‘‘technology’’ or ‘‘software’’ subject to
the EAR, when it has been made
available to the public without
restrictions upon its further
dissemination such as through any of
the following:
*
*
*
*
*
(c) The following remains subject to
the EAR: ‘‘software’’ or ‘‘technology’’ for
the production of a firearm, or firearm
frame or receiver, controlled under
ECCN 0A501, that is made available by
posting on the internet in an electronic
format, such as AMF or G-code, and is
ready for insertion into a computer
numerically controlled machine tool,
additive manufacturing equipment, or
any other equipment that makes use of
the ‘‘software’’ or ‘‘technology’’ to
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produce the firearm frame or receiver or
complete firearm.
PART 736—GENERAL PROHIBITIONS
5. The authority citation for 15 CFR
part 736 is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996
Comp., p. 219; E.O. 13026, 61 FR 58767, 3
CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR
44025, 3 CFR, 2001 Comp., p. 783; E.O.
13338, 69 FR 26751, 3 CFR, 2004 Comp., p.
168; Notice of May 8, 2019, 84 FR 20537
(May 10, 2019); Notice of November 12, 2019,
84 FR 61817 (November 13, 2019).
6. Supplement No. 1 to part 736 is
amended by revising paragraph (e)(3) to
read as follows:
■
Supplement No. 1 to Part 736—General
Orders
*
*
*
*
*
(e) * * *
(3) Prior commodity jurisdiction
determinations. If the U.S. State Department
has previously determined that an item is not
subject to the jurisdiction of the ITAR and
the item was not listed in a then existing
‘‘018’’ series ECCN (for purposes of the ‘‘600
series’’ ECCNs, or the 0x5zz ECCNs) or in a
then existing ECCN 9A004.b or related
software or technology ECCN (for purposes of
the 9x515 ECCNs), then the item is per se not
within the scope of a ‘‘600 series’’ ECCN, a
0x5zz ECCN, or a 9x515 ECCN. If the item
was not listed elsewhere on the CCL at the
time of such determination (i.e., the item was
designated EAR99), the item shall remain
designated as EAR99 unless specifically
enumerated by BIS or DDTC in an
amendment to the CCL or to the USML,
respectively.
*
*
*
*
*
PART 740—LICENSE EXCEPTIONS
7. The authority citation for 15 CFR
part 740 continues to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C.
7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025,
3 CFR, 2001 Comp., p. 783.
8. Section 740.2 is amended by adding
paragraphs (a)(21) and (22) to read as
follows:
■
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§ 740.2 Restrictions on all License
Exceptions.
(a) * * *
(21) The reexport or transfer (incountry) of firearms classified under
ECCNs 0A501 or 0A502 if a part or
component that is not ‘‘subject to the
ITAR,’’ but would otherwise meet the
criteria in USML Category I(h)(2) (i.e.,
parts and components specially
designed for conversion of a
semiautomatic firearm to a fully
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automatic firearm) is incorporated into
the firearm or is to be reexported or
transferred (in-country) with the firearm
with ‘‘knowledge’’ the part or
component will be subsequently
incorporated into the firearm. (See
USML Category I(h)(2)). In such
instances, no license exceptions are
available except for License Exception
GOV (§ 740.11(b)(2)(ii)).
(22) The export, reexport, or transfer
(in-country) of any item classified under
a 0x5zz ECCN when a party to the
transaction is designated on the
Department of the Treasury, Office of
Foreign Assets Control (OFAC),
Specially Designated Nationals and
Blocked Persons (SDN) list under the
designation [SDNT], pursuant to the
Narcotics Trafficking Sanctions
Regulations, 31 CFR part 536, or under
the designation [SDNTK], pursuant to
the Foreign Narcotics Kingpin Sanctions
Regulations, 31 CFR part 598.
*
*
*
*
*
■ 9. Section 740.9 is amended by:
■ a. Adding five sentences at the end of
paragraph (a) introductory text;
■ b. Adding one sentence at the end of
paragraph (b)(1) introductory text;
■ c. Adding paragraph (b)(5); and
■ d. Redesignating notes 1 through 3 to
paragraph (b) as notes 2 through 4 to
paragraph (b).
The additions read as follows:
§ 740.9 Temporary imports, exports,
reexports, and transfers (in-country) (TMP).
*
*
*
*
*
(a) * * * This paragraph (a) does not
authorize any export of a commodity
controlled under ECCNs 0A501.a or .b,
or shotguns with a barrel length less
than 18 inches controlled under ECCN
0A502 to, or any export of such an item
that was imported into the United States
from, a country in Country Group D:5
(Supplement No. 1 to this part), or from
Russia, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Turkmenistan,
Ukraine, or Uzbekistan. The only
provisions of this paragraph (a) that are
eligible for use to export such items are
paragraph (a)(5) of this section
(‘‘Exhibition and demonstration’’) and
paragraph (a)(6) of this section
(‘‘Inspection, test, calibration, and
repair’’). In addition, this paragraph (a)
may not be used to export more than 75
firearms per shipment. In accordance
with the requirements in § 758.1(b)(9)
and (g)(4) of the EAR, the exporter or its
agent must provide documentation that
includes the serial number, make,
model, and caliber of each firearm being
exported by filing these data elements in
an EEI filing in AES. In accordance with
the exclusions in License Exception
TMP under paragraph (b)(5) of this
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4173
section, the entry clearance
requirements in § 758.1(b)(9) do not
permit the temporary import of:
Firearms controlled in ECCN 0A501.a or
.b that are shipped from or
manufactured in a Country Group D:5
country, or that are shipped from or
manufactured in Russia, Georgia,
Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan
(except for any firearm model
designation (if assigned) controlled by
0A501 that is specified under Annex A
in Supplement No. 4 to this part); or
shotguns with a barrel length less than
18 inches controlled in ECCN 0A502
that are shipped from or manufactured
in a Country Group D:5 country, or from
Russia, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Turkmenistan,
Ukraine, or Uzbekistan, because of the
exclusions in License Exception TMP
under paragraph (b)(5) of this section.
*
*
*
*
*
(b) * * *
(1) * * * No provision of paragraph
(b) of this section, other than paragraph
(b)(3), (4), or (5), may be used to export
firearms controlled by ECCN 0A501.a,
.b, or shotguns with a barrel length less
than 18 inches controlled in ECCN
0A502.
*
*
*
*
*
(5) Exports of firearms and certain
shotguns temporarily in the United
States. This paragraph (b)(5) authorizes
the export of no more than 75 end item
firearms per shipment controlled by
ECCN 0A501.a or .b, or shotguns with
a barrel length less than 18 inches
controlled in ECCN 0A502 that are
temporarily in the United States for a
period not exceeding one year, provided
that:
(i) The firearms were not shipped
from or manufactured in a U.S. arms
embargoed country, i.e., destination
listed in Country Group D:5 in
Supplement No. 1 to this part;
(ii) The firearms were not shipped
from or manufactured in Russia,
Georgia, Kazakhstan, Kyrgyzstan,
Moldova, Turkmenistan, Ukraine, or
Uzbekistan, except for any firearm
model controlled by 0A501 that is
specified under Annex A in Supplement
No. 4 to this part; and
(iii) The firearms are not ultimately
destined to a U.S. arms embargoed
country, i.e., destination listed in
Country Group D:5 in Supplement No.
1 to this part, or to Russia;
(iv) When the firearms entered the
U.S. as a temporary import, the
temporary importer or its agent:
(A) Provided the following statement
to U.S. Customs and Border Protection:
‘‘This shipment will be exported in
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accordance with and under the
authority of License Exception TMP (15
CFR 740.9(b)(5))’’;
(B) Provided to U.S. Customs and
Border Protection an invoice or other
appropriate import-related
documentation (or electronic
equivalents) that includes a complete
list and description of the firearms being
temporarily imported, including their
model, make, caliber, serial numbers,
quantity, and U.S. dollar value; and
(C) Provided (if temporarily imported
for a trade show, exhibition,
demonstration, or testing) to U.S.
Customs and Border Protection the
relevant invitation or registration
documentation for the event and an
accompanying letter that details the
arrangements to maintain effective
control of the firearms while they are in
the United States; and
(v) In addition to the export clearance
requirements of part 758 of the EAR, the
exporter or its agent must provide the
import documentation related to
paragraph (b)(5)(iv)(B) of this section to
U.S. Customs and Border Protection at
the time of export.
Note 1 to paragraph (b)(5): In addition to
complying with all applicable EAR
requirements for the export of commodities
described in paragraph (b)(5) of this section,
exporters and temporary importers should
contact U.S. Customs and Border Protection
(CBP) at the port of temporary import or
export, or at the CBP website, for the proper
procedures for temporarily importing or
exporting firearms controlled in ECCN
0A501.a or .b or shotguns with a barrel length
less than 18 inches controlled in ECCN
0A502, including regarding how to provide
any data or documentation required by BIS.
*
*
*
*
*
10. Section 740.10 is amended by:
a. Adding one sentence at the end of
paragraph (b)(1); and
■ b. Adding paragraph (b)(4).
The additions read as follows:
■
■
§ 740.10 License Exception Servicing and
replacement of parts and equipment (RPL).
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*
*
*
*
*
(b) * * *
(1) * * * The export of firearms
controlled by ECCN 0A501.a or .b, or
shotguns with a barrel length less than
18 inches controlled in ECCN 0A502
temporarily in the United States for
servicing and replacement may be
exported under paragraph (b)(2) or (3) of
this section only if the additional
requirements in paragraph (b)(4) of this
section are also met.
*
*
*
*
*
(4) This paragraph (b)(4) authorizes
the export of firearms controlled by
ECCN 0A501.a or .b, or shotguns with
a barrel length less than 18 inches
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controlled in ECCN 0A502 that are
temporarily in the United States for
servicing or replacement for a period
not exceeding one year or the time it
takes to service or replace the
commodity, whichever is shorter,
provided that the requirements of
paragraph (b)(2) or (3) of this section are
met and:
(i) The firearms were not shipped
from or manufactured in Russia,
Georgia, Kazakhstan, Kyrgyzstan,
Moldova, Turkmenistan, Ukraine, or
Uzbekistan, except for any firearm
model controlled by 0A501 that is
specified under Annex A in Supplement
No. 4 to this part;
(ii) When the firearms entered the
U.S. as a temporary import, the
temporary importer or its agent:
(A) Provided the following statement
to U.S. Customs and Border Protection:
‘‘This shipment will be exported in
accordance with and under the
authority of License Exception RPL (15
CFR 740.10(b))’’;
(B) Provided to U.S. Customs and
Border Protection an invoice or other
appropriate import-related
documentation (or electronic
equivalents) that includes a complete
list and description of the firearms being
temporarily imported, including their
model, make, caliber, serial numbers,
quantity, and U.S. dollar value; and
(C) Provided (if temporarily imported
for servicing or replacement) to U.S.
Customs and Border Protection the
name, address and contact information
(telephone number and/or email) of the
organization or individual in the U.S.
that will be receiving the item for
servicing or replacement; and
(iii) In addition to the export
clearance requirements of part 758 of
the EAR, the exporter or its agent must
provide the import documentation
related to paragraph (b)(4)(iii)(B) of this
section to U.S. Customs and Border
Protection at the time of export.
Note 1 to paragraph (b)(4): In addition to
complying with all applicable EAR
requirements for the export of commodities
described in paragraph (b)(4) of this section,
exporters and temporary importers should
contact U.S. Customs and Border Protection
(CBP) at the port of temporary import or
export, or at the CBP website, for the proper
procedures for temporarily importing or
exporting firearms controlled in ECCN
0A501.a or .b or shotguns with a barrel length
less than 18 inches controlled in ECCN
0A502, including regarding how to provide
any data or documentation required by BIS.
*
*
*
*
*
11. Section 740.11 is amended by:
a. Adding two sentences at the end of
the introductory text;
■
■
PO 00000
Frm 00040
Fmt 4701
Sfmt 4700
b. Adding note 2 to paragraph (b)(2);
and
■ c. Redesignating note 1 to paragraph
(c)(1) as note 3 to paragraph (c)(1) and
notes 1 and 2 to paragraph (e) as notes
4 and 5 to paragraph (e).
The additions read as follows:
■
§ 740.11 Governments, international
organizations, international inspections
under the Chemical Weapons Convention,
and the International Space Station (GOV).
* * * Commodities listed in ECCN
0A501 are eligible only for transactions
described in paragraphs (b)(2)(i) and (ii)
of this section. Any item listed in a
0x5zz ECCN for export, reexport, or
transfer (in-country) to an E:1 country is
eligible only for transactions described
in paragraphs (b)(2)(i) and (ii) solely for
U.S. Government official use of this
section.
*
*
*
*
*
Note 2 to paragraph (b)(2): Items
controlled for NS, MT, CB, NP, FC, or AT
reasons may not be exported, reexported, or
transferred (in-country) to, or for the use of
military, police, intelligence entities, or other
sensitive end users (e.g., contractors or other
governmental parties performing functions
on behalf of military, police, or intelligence
entities) of a government in a Country Group
E:1 or E:2 country.
*
*
*
*
*
12. Section 740.14 is amended by
revising paragraph (b)(4) introductory
text and paragraph (e) heading and
adding paragraphs (e)(3) and (4) to read
as follows:
■
§ 740.14
Baggage (BAG).
*
*
*
*
*
(b) * * *
(4) Tools of trade. Usual and
reasonable kinds and quantities of tools,
instruments, or equipment and their
containers and also technology for use
in the trade, occupation, employment,
vocation, or hobby of the traveler or
members of the household who are
traveling or moving. For special
provisions regarding firearms and
ammunition, see paragraph (e) of this
section. For special provisions regarding
encryption commodities and software
subject to EI controls, see paragraph (f)
of this section. For a special provision
that specifies restrictions regarding the
export or reexport of technology under
this paragraph (b)(4), see paragraph (g)
of this section. For special provisions
regarding personal protective equipment
under ECCN 1A613.c or .d, see
paragraph (h) of this section.
*
*
*
*
*
(e) Special provisions for firearms and
ammunition. * * *
(3) A United States citizen or a
permanent resident alien leaving the
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United States may export under this
License Exception firearms, ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ or
‘‘attachments’’ controlled under ECCN
0A501 and ammunition controlled
under ECCN 0A505.a, subject to the
following limitations:
(i) Not more than three firearms and
1,000 rounds of ammunition may be
taken on any one trip.
(ii) ‘‘Parts,’’ ‘‘components,’’
‘‘accessories,’’ and ‘‘attachments’’
exported pursuant to this paragraph
(e)(3) must be of a kind and limited to
quantities that are reasonable for the
activities described in paragraph
(e)(3)(iv) of this section or that are
necessary for routine maintenance of the
firearms being exported.
(iii) The commodities must be with
the person’s baggage.
(iv) The commodities must be for the
person’s exclusive use and not for resale
or other transfer of ownership or
control. Accordingly, except as
provided in paragraph (e)(4) of this
section, firearms, ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’
‘‘attachments,’’ and ammunition, may
not be exported permanently under this
License Exception. All firearms, ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ or
‘‘attachments’’ controlled under ECCN
0A501 and all unused ammunition
controlled under ECCN 0A505.a
exported under this License Exception
must be returned to the United States.
(v) Travelers leaving the United States
temporarily are required to declare the
firearms, ‘‘parts,’’ ‘‘components,’’
‘‘accessories,’’ ‘‘attachments,’’ and
ammunition being exported under this
License Exception to a Customs and
Border Protection (CBP) officer prior to
departure from the United States and
present such items to the CBP officer for
inspection, confirming that the
authority for the export is License
Exception BAG and that the exporter is
compliant with its terms.
(4) A nonimmigrant alien leaving the
United States may export or reexport
under this License Exception only such
firearms controlled under ECCN 0A501
and ammunition controlled under ECCN
0A505 as he or she brought into the
United States under the relevant
provisions of Department of Justice
regulations at 27 CFR part 478.
*
*
*
*
*
■ 13. Section 740.16 is amended by
revising paragraphs (a)(2) and (b)(2)(iv)
and (v) and adding paragraph (b)(2)(vi)
to read as follows:
§ 740.16
(APR).
*
Additional permissive reexports
*
*
(a) * * *
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*
*
19:01 Jan 22, 2020
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(2) The commodities being reexported
are not controlled for NP, CB, MT, SI,
or CC reasons or described in ECCNs
0A919, 3A001.b.2 or b.3 (except those
that are being reexported for use in civil
telecommunications applications),
6A002, 6A003; or commodities
classified under a 0x5zz ECCN; and
*
*
*
*
*
(b) * * *
(2) * * *
(iv) Commodities described in ECCN
0A504 that incorporate an image
intensifier tube;
(v) Commodities described in ECCN
6A002; or
(vi) Commodities classified under a
0x5zz ECCN.
*
*
*
*
*
■ 14. Section 740.20 is amended by
revising paragraph (b)(2)(ii) to read as
follows:
§ 740.20 License Exception Strategic
Trade Authorization (STA).
*
*
*
*
*
(b) * * *
(2) * * *
(ii) License Exception STA may not be
used for:
(A) Any item controlled in ECCNs
0A501.a, .b, .c, .d, or .e; 0A981; 0A982;
0A983; 0A503; 0E504; 0E982; or
(B) Shotguns with barrel length less
than 18 inches controlled in 0A502.
*
*
*
*
*
■ 15. Add Supplement No. 4 to part 740
to read as follows:
Supplement No. 4 to Part 740—Annex
A Firearm Models
(a) Pistols/revolvers.
(1) German Model P08 Pistol = SMCR.
(2) IZH 34M, .22 Target pistol.
(3) IZH 35M, .22 caliber Target pistol.
(4) Mauser Model 1896 pistol = SMCR.
(5) MC–57–1 pistol.
(6) MC–1–5 pistol.
(7) Polish Vis Model 35 pistol = SMCR.
(8) Soviet Nagant revolver = SMCR.
(9) TOZ 35, .22 caliber Target pistol.
(10) MTs 440.
(11) MTs 57–1.
(12) MTs 59–1.
(13) MTs 1–5.
(14) TOZ–35M (starter pistol).
(15) Biathlon–7K.
(b) Rifles.
(1) BARS–4 Bolt Action carbine.
(2) Biathlon target rifle, .22.
(3) British Enfield rifle = SMCR.
(4) CM2, .22 target rifle (also known as
SM2, .22).
(5) German model 98K = SMCR.
(6) German model G41 = SMCR.
(7) German model G43 = SMCR.
(8) IZH–94.
(9) LOS–7, bolt action.
(10) MC–7–07.
(11) MC–18–3.
(12) MC–19–07.
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Fmt 4701
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4175
(13) MC–105–01.
(14) MC–112–02.
(15) MC–113–02.
(16) MC–115–1.
(17) MC–125/127.
(18) MC–126.
(19) MC–128.
(20) Saiga.
(21) Soviet Model 38 carbine = SMCR.
(22) Soviet Model 44 carbine = SMCR.
(23) Soviet Model 91/30 rifle = SMCR.
(24) TOZ 18, .22 bolt action.
(25) TOZ 55.
(26) TOZ 78.
(27) Ural Target, .22lr.
(28) VEPR rifle.
(29) Winchester Model 1895, Russian
Model rifle = SMCR.
(30) Sever—double barrel.
(31) IZH18MH single barrel break action.
(32) MP–251 over/under rifle.
(33) MP–221 double barrel rifle.
(34) MP–141K.
(35) MP–161K.
(36) MTs 116–1.
(37) MTs 116M.
(38) MTs 112–02.
(39) MTs 115–1.
(40) MTs 113–02.
(41) MTs 105–01.
(42) MTs 105–05.
(43) MTs 7–17 combination gun.
(44) MTs 7–12–07 rifle/shotgun.
(45) MTs 7–07.
(46) MTs 109–12–07 rifle.
(47) MTs 109–07 rifle.
(48) MTs 106–07 combination.
(49) MTs 19–97.
(50) MTs 19–09.
(51) MTs 18–3M.
(52) MTs 125.
(53) MTs 126.
(54) MTs 127.
(55) Berkut–2.
(56) Berkut–2M1.
(57) Berkut–3.
(58) Berkut–2–1.
(59) Berkut–2M2.
(60) Berkut–3–1.
(61) Ots–25.
(62) MTs 20–07.
(63) LOS–7–1.
(64) LOS–7–2.
(65) LOS–9–1.
(66) Sobol (Sable).
(67) Rekord.
(68) Bars–4–1.
(69) Saiga.
(70) Saiga–M.
(71) Saiga 308.
(72) Saiga–308–1.
(73) Saiga 308–2.
(74) Saiga–9.
(75) Korshun.
(76) Ural–5–1.
(77) Ural 6–1.
(78) Ural–6–2.
(79) SM–2.
(80) Biatlon–7–3.
(81) Biatlon–7–4.
(82) Rekord–1.
(83) Rekord–2.
(84) Rekord–CISM.
(85) Rekord–1–308.
(86) Rekord–2–308.
(87) Rekord–1–308–CISM.
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(88) VEPR.
(89) VEPR Super.
(90) VEPR Pioneer.
(91) VEPR Safari.
(92) TOZ 109.
(93) KO 44–1.
(94) TOZ 78–01.
(95) KO 44.
(96) TOZ 99.
(97) TOZ 99–01.
(98) TOZ 55–01 Zubr.
(99) TOZ 55–2 Zubr.
(100) TOZ 120 Zubr.
(101) MTs 111.
(102) MTs 109.
(103) TOZ 122.
(104) TOZ 125.
(105) TOZ 28.
(106) TOZ 300.
0D501, 0D505, 0E501, 0E504, and 0E505
items when there is reason to believe
the transaction involves criminal
organizations, rebel groups, street gangs,
or other similar groups or individuals,
that may be disruptive to regional
stability, including within individual
countries, will be subject to a policy of
denial.
*
*
*
*
*
18. Section 742.7 is amended by
revising paragraphs (a)(1) through (4)
and (c) to read as follows:
■
§ 742.7
PART 742—CONTROL POLICY—CCL
BASED CONTROLS
16. The authority citation for part 742
is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 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, 68 FR
26459, 3 CFR, 2004 Comp., p. 320; Notice of
November 12, 2019, 84 FR 61817 (November
13, 2019).
17. Section 742.6 is amended by
revising the first and sixth sentences of
paragraph (b)(1)(i) and adding a seventh
sentence at the end of paragraph (b)(1)(i)
to read as follows:
■
§ 742.6
Regional stability.
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*
*
*
*
*
(b) * * *
(1) * * *
(i) Applications for exports and
reexports of ECCN 0A501, 0A504,
0A505, 0B501, 0B505, 0D501, 0D505,
0E501, 0E504, and 0E505 items; 9x515
items and ‘‘600 series’’ items and will be
reviewed on a case-by-case basis to
determine whether the transaction is
contrary to the national security or
foreign policy interests of the United
States, including the foreign policy
interest of promoting the observance of
human rights throughout the world.
* * * When destined to the People’s
Republic of China or a country listed in
Country Group E:1 in Supplement No.
1 to part 740 of the EAR, items classified
under ECCN 0A501, 0A505, 0B501,
0B505, 0D501, 0D505, 0E501, 0E504,
and 0E505 or any 9x515 ECCN will be
subject to a policy of denial. In addition,
applications for exports and reexports of
ECCN 0A501, 0A505, 0B501, 0B505,
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Crime control and detection.
(a) * * *
(1) Crime control and detection
instruments and equipment and related
‘‘technology’’ and ‘‘software’’ identified
in the appropriate ECCNs on the CCL
under CC Column 1 in the Country
Chart column of the ‘‘License
Requirements’’ section. A license is
required to countries listed in CC
Column 1 (Supplement No. 1 to part 738
of the EAR). Items affected by this
requirement are identified on the CCL
under the following ECCNs: 0A502,
0A504, 0A505.b, 0A978, 0A979 0E502,
0E505 (‘‘technology’’ for ‘‘development’’
or for ‘‘production’’ of buckshot shotgun
shells controlled under ECCN 0A505.b),
1A984, 1A985, 3A980, 3A981, 3D980,
3E980, 4A003 (for fingerprint computers
only), 4A980, 4D001 (for fingerprint
computers only), 4D980, 4E001 (for
fingerprint computers only), 4E980,
6A002 (for police-model infrared
viewers only), 6E001 (for police-model
infrared viewers only), 6E002 (for
police-model infrared viewers only),
and 9A980.
(2) Shotguns with a barrel length
greater than or equal to 24 inches,
identified in ECCN 0A502 on the CCL
under CC Column 2 in the Country
Chart column of the ‘‘License
Requirements’’ section regardless of end
user to countries listed in CC Column 2
(Supplement No. 1 to part 738 of the
EAR).
(3) Shotguns with barrel length greater
than or equal to 24 inches, identified in
ECCN 0A502 on the CCL under CC
Column 3 in the Country Chart column
of the ‘‘License Requirements’’ section
only if for sale or resale to police or law
enforcement entities in countries listed
in CC Column 3 (Supplement No. 1 to
part 738 of the EAR).
(4) Certain crime control items require
a license to all destinations, except
Canada. These items are identified
under ECCNs 0A982, 0A503, and 0E982.
Controls for these items appear in each
ECCN; a column specific to these
controls does not appear in the Country
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Chart (Supplement No. 1 to part 738 of
the EAR).
*
*
*
*
*
(c) Contract sanctity. Contract sanctity
date: August 22, 2000. Contract sanctity
applies only to items controlled under
ECCNs 0A982, 0A503, and 0E982
destined for countries not listed in CC
Column 1 of the Country Chart
(Supplement No. 1 to part 738 of the
EAR).
*
*
*
*
*
■ 19. Section 742.17 is amended by
revising the first sentence of paragraph
(a) and paragraph (f) to read as follows:
§ 742.17 Exports of firearms to OAS
member countries.
(a) License requirements. BIS
maintains a licensing system for the
export of firearms and related items to
all OAS member countries. * * *
*
*
*
*
*
(f) Items/Commodities. Items
requiring a license under this section
are ECCNs 0A501 (except 0A501.y),
0A502, 0A504 (except 0A504.f), and
0A505 (except 0A505.d). (See
Supplement No. 1 to part 774 of the
EAR).
*
*
*
*
*
§ 742.19
[Amended]
20. Section 742.19(a)(1) is amended
by:
■ a. Removing ‘‘0A986’’ and adding in
its place ‘‘0A505.c’’; and
■ b. Removing ‘‘0B986’’ and adding in
its place ‘‘0B505.c’’.
■
PART 743—SPECIAL REPORTING AND
NOTIFICATION
21. The authority citation for 15 CFR
part 743 is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; E.O. 13637, 78 FR 16129, 3 CFR, 2014
Comp., p. 223.
22. Section 743.4 is amended by:
a. In paragraph (a):
i. Removing ‘‘(c)(1)’’ and ‘‘(c)(2)’’ and
adding in their places ‘‘(c)(1) of this
section’’ and ‘‘(c)(2) of this section,’’
respectively; and
■ ii. Adding four sentences to the end of
the paragraph;
■ b. Redesignating the note to paragraph
(a) as note 1 to paragraph (a) and
removing ‘‘§ 743.4’’ in newly
redesignated note 1 and adding ‘‘this
section’’ in its place;
■ c. Revising paragraph (b) introductory
text;
■ d. Adding paragraphs (c)(1)(i) and
(c)(2)(i);
■ e. Redesignating the note to paragraph
(e)(1)(ii) as note 2 to paragraph (e)(1)(ii);
■
■
■
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e. Revising paragraph (h); and
f. Adding paragraph (i).
The additions and revisions read as
follows:
■
■
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§ 743.4
Conventional arms reporting.
(a) * * * This section does not
require reports when the exporter uses
the alternative submission method
described under paragraph (h) of this
section. The alternative submission
method under paragraph (h) requires the
exporter to submit the information
required for conventional arms
reporting in this section as part of the
required EEI submission in AES,
pursuant to § 758.1(b)(9) of the EAR.
Because of the requirements in
§ 758.1(g)(4)(ii) of the EAR for the
firearms that require conventional arms
reporting of all conventional arms, the
Department of Commerce believes all
conventional arms reporting
requirements for firearms will be met by
using the alternative submission
method. The Department of Commerce
leaves standard method for submitting
reports in place in case any additional
items are moved from the USML to the
CCL, that may require conventional
arms reporting.
*
*
*
*
*
(b) Requirements. You must submit
one electronic copy of each report
required under the provisions of this
section, or submit this information
using the alternative submission method
specified in paragraph (h) of this
section, and maintain accurate
supporting records (see § 762.2(b) of the
EAR) for all exports of items specified
in paragraph (c) of this section for the
following:
*
*
*
*
*
(c) * * *
(1) * * *
(i) ECCN 0A501.a and .b.
*
*
*
*
*
(2) * * *
(i) ECCN 0A501.a and .b.
*
*
*
*
*
(h) Alternative submission method.
This paragraph (h) describes an
alternative submission method for
meeting the conventional arms reporting
requirements of this section. The
alternative submission method requires
the exporter, when filing the required
EEI submission in AES, pursuant to
§ 758.1(b)(9) of the EAR, to include the
six character ECCN classification (i.e.,
0A501.a or 0A501.b) as the first text to
appear in the Commodity description
block. If the exporter properly includes
this information in the EEI filing in
AES, the Department of Commerce will
be able to obtain that export information
directly from AES to meet the U.S.
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Government’s commitments to the
Wassenaar Arrangement and United
Nations for conventional arms reporting.
An exporter that complies with the
requirements in § 758.1(g)(4)(ii) of the
EAR does not have to submit separate
annual and semi-annual reports to the
Department of Commerce pursuant to
this section.
(i) Contacts. General information
concerning the Wassenaar Arrangement
and reporting obligations thereof is
available from the Office of National
Security and Technology Transfer
Controls, Tel.: (202) 482–0092, Fax:
(202) 482–4094. Information concerning
the reporting requirements for items
identified in paragraphs (c)(1) and (2) of
this section is available from the Office
of Nonproliferation and Treaty
Compliance (NPTC), Tel.: (202) 482–
4188, Fax: (202) 482–4145.
PART 744—CONTROL POLICY: ENDUSER AND END-USE BASED
23. The authority citation for 15 CFR
part 744 is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 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; 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. 13099, 63 FR
45167, 3 CFR, 1998 Comp., p. 208; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; E.O. 13224, 66 FR 49079, 3 CFR, 2001
Comp., p. 786; Notice of September 19, 2019,
83 FR 49633 (September 20, 2019); Notice of
November 12, 2019, 84 FR 61817 (November
13, 2019).
§ 744.9
[Amended]
24. Section 744.9 is amended by
removing ‘‘0A987’’ from paragraphs
(a)(1) introductory text and (b) and
adding in its place ‘‘0A504’’.
■
PART 746—EMBARGOES AND OTHER
SPECIAL CONTROLS
25. The authority citation for 15 CFR
part 746 continues to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C.
287c; Sec 1503, Pub. L. 108–11, 117 Stat. 559;
22 U.S.C. 2151 note; 22 U.S.C. 6004; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O.
12854, 58 FR 36587, 3 CFR, 1993 Comp., p.
614; E.O. 12918, 59 FR 28205, 3 CFR, 1994
Comp., p. 899; E.O. 13222, 66 FR 44025, 3
CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR
26751, 3 CFR, 2004 Comp., p 168;
Presidential Determination 2003–23, 68 FR
26459, 3 CFR, 2004 Comp., p. 320;
Presidential Determination 2007–7, 72 FR
1899, 3 CFR, 2006 Comp., p. 325; Notice of
May 8, 2019, 84 FR 20537 (May 10, 2019).
PO 00000
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§ 746.3
4177
[Amended]
26. Section 746.3 is amended by
removing ‘‘0A986’’ from paragraph
(b)(2) and adding in its place ‘‘0A505.c’’.
■
§ 746.7
[Amended]
27. Section 746.7(a)(1) is amended by:
a. Adding ‘‘0A503,’’ immediately
before ‘‘0A980’’; and
■ b. Removing ‘‘0A985,’’.
■
■
PART 748—APPLICATIONS
(CLASSIFICATION, ADVISORY, AND
LICENSE) AND DOCUMENTATION
28. The authority citation for 15 CFR
part 748 is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
Comp., p. 783.
29. Section 748.12 is amended by:
a. Revising the section heading;
b. Adding introductory text;
c. Revising paragraphs (a)
introductory text and (a)(1);
■ d. Redesignating the note to paragraph
(c)(8) as note 1 to paragraph (c)(8); and
■ e. Adding paragraph (e).
The revisions and additions read as
follows.
■
■
■
■
§ 748.12 Firearms import certificate or
import permit.
License applications for certain
firearms and related commodities
require support documents in
accordance with this section. For
destinations that are members of the
Organization of American States (OAS),
an FC Import Certificate or equivalent
official document is required in
accordance with paragraphs (a) through
(d) of this section. For other destinations
that require a firearms import or permit,
the firearms import certificate or permit
is required in accordance with
paragraph (e) of this section.
(a) Requirement to obtain document
for OAS member states. Unless an
exception in § 748.9(c) applies, an FC
Import Certificate is required for license
applications for firearms and related
commodities, regardless of value, that
are destined for member countries of the
OAS. This requirement is consistent
with the OAS Model Regulations
described in § 742.17 of the EAR.
(1) Items subject to requirement.
Firearms and related commodities are
those commodities controlled for ‘‘FC
Column 1’’ reasons under ECCNs 0A501
(except 0A501.y), 0A502, 0A504 (except
0A504.f), or 0A505 (except 0A505.d).
*
*
*
*
*
(e) Requirement to obtain an import
certificate or permit for other than OAS
member states. If the country to which
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firearms, parts, components,
accessories, and attachments controlled
under ECCN 0A501, or ammunition
controlled under ECCN 0A505, are
being exported or reexported requires
that a government-issued certificate or
permit be obtained prior to importing
the commodity, the exporter or
reexporter must obtain and retain on file
the original or a copy of that certificate
or permit before applying for an export
or reexport license unless:
(1) A license is not required for the
export or reexport; or
(2) The exporter is required to obtain
an import or end-user certificate or
other equivalent official document
pursuant to paragraphs (a) thorough (d)
of this section and has, in fact, complied
with that requirement.
(3)(i) The number or other identifying
information of the import certificate or
permit must be stated on the license
application.
(ii) If the country to which the
commodities are being exported does
not require an import certificate or
permit for firearms imports, that fact
must be noted on any license
application for ECCN 0A501 or 0A505
commodities.
Note 2 to paragraph (e). Obtaining a BIS
Statement by Ultimate Consignee and
Purchaser pursuant to § 748.11 does not
exempt the exporter or reexporter from the
requirement to obtain a certification pursuant
to paragraph (a) of this section because that
statement is not issued by a government.
30. Supplement No. 2 to part 748 is
amended by adding paragraph (z) to
read as follows:
■
Supplement No. 2 to Part 748—Unique
Application and Submission
Requirements
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*
*
*
*
*
(z) Exports of firearms and certain
shotguns temporarily in the United States—
(1) Certification. If you are submitting a
license application for the export of firearms
controlled by ECCN 0A501.a or .b, or
shotguns with a barrel length less than 18
inches controlled in ECCN 0A502 that will be
temporarily in the United States, e.g., for
servicing and repair or for intransit
shipments, you must include the following
certification in Block 24:
The firearms in this license application
will not be shipped from or manufactured in
Russia, Georgia, Kazakhstan, Kyrgyzstan,
Moldova, Turkmenistan, Ukraine, or
Uzbekistan, except for any firearm model
controlled by 0A501 that is specified under
Annex A in Supplement No. 4 to part 740.
I and the parties to this transaction will
comply with the requirements specified in
paragraphs (z)(2)(i) and (ii) of Supplement
No. 2 to part 748.
(2) Requirements. Each approved license
for commodities described under this
paragraph (z) must comply with the
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19:01 Jan 22, 2020
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requirements specified in paragraphs (z)(2)(i)
and (ii) of this supplement.
(i) When the firearms enter the U.S. as a
temporary import, the temporary importer or
its agent must:
(A) Provide the following statement to U.S.
Customs and Border Protection: ‘‘This
shipment is being temporarily imported in
accordance with the EAR. This shipment will
be exported in accordance with and under
the authority of BIS license number (provide
the license number) (15 CFR 750.7(a) and
758.4);’’
(B) Provide to U.S. Customs and Border
Protection an invoice or other appropriate
import-related documentation (or electronic
equivalents) that includes a complete list and
description of the firearms being temporarily
imported, including their model, make,
caliber, serial numbers, quantity, and U.S.
dollar value; and
(C) Provide (if temporarily imported for
servicing or replacement) to U.S. Customs
and Border Protection the name, address, and
contact information (telephone number and/
or email) of the organization or individual in
the U.S. that will be receiving the item for
servicing or replacement); and
(ii) In addition to the export clearance
requirements of part 758 of the EAR, the
exporter or its agent must provide the import
documentation related to paragraph
(z)(2)(i)(B) of this supplement to U.S.
Customs and Border Protection at the time of
export.
Note 1 to paragraph (z): In addition to
complying with all applicable EAR
requirements for the export of commodities
described in paragraph (z) of this
supplement, exporters and temporary
importers should contact U.S. Customs and
Border Protection (CBP) at the port of
temporary import or export, or at the CBP
website, for the proper procedures for
temporarily importing or exporting firearms
controlled in ECCN 0A501.a or .b or shotguns
with a barrel length less than 18 inches
controlled in ECCN 0A502, including
regarding how to provide any data or
documentation required by BIS.
PART 758—EXPORT CLEARANCE
REQUIREMENTS
31. The authority citation for part 758
is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
32. Section 758.1 is amended by:
a. Revising paragraphs (b)(7) and (8);
b. Adding paragraph (b)(9);
c. Revising paragraph (c)(1);
d. Adding paragraph (g)(4); and
e. Redesignating note to paragraph
(h)(1) as note 3 to paragraph (h)(1).
The revisions and additions read as
follows:
■
■
■
■
■
■
§ 758.1 The Electronic Export Enforcement
(EEI) filing to the Automated Export System
(AES).
*
PO 00000
*
*
Frm 00044
*
Fmt 4701
*
Sfmt 4700
(b) * * *
(7) For all items exported under
authorization Validated End-User
(VEU);
(8) For all exports of tangible items
subject to the EAR where parties to the
transaction, as described in § 748.5(d)
through (f) of the EAR, are listed on the
Unverified List (Supplement No. 6 to
part 744 of the EAR), regardless of value
or destination; or
(9) For all exports, except for exports
authorized under License Exception
BAG, as set forth in § 740.14 of the EAR,
of items controlled under ECCNs
0A501.a or .b, shotguns with a barrel
length less than 18 inches controlled
under ECCN 0A502, or ammunition
controlled under ECCN 0A505 except
for .c, regardless of value or destination,
including exports to Canada.
(c) * * *
(1) License Exception Baggage (BAG),
as set forth in § 740.14 of the EAR. See
15 CFR 30.37(x) of the FTR;
Note 1 to paragraph (c)(1): See the export
clearance requirements for exports of
firearms controlled under ECCNs 0A501.a or
.b, shotguns with a barrel length less than 18
inches controlled under ECCN 0A502, or
ammunition controlled under ECCN 0A505,
authorized under License Exception BAG, as
set forth in § 740.14 of the EAR.
*
*
*
*
*
(g) * * *
(4) Exports of firearms and related
items. This paragraph (g)(4) includes
two separate requirements under
paragraphs (g)(4)(i) and (ii) of this
section that are used to better identify
exports of certain end item firearms
under the EAR. Paragraph (g)(4)(i) of
this section is limited to certain EAR
authorizations. Paragraph (g)(4)(ii) of
this section applies to all EAR
authorizations that require EEI filing in
AES.
(i) Identifying end item firearms by
manufacturer, model, caliber, and serial
number in the EEI filing in AES. For any
export authorized under License
Exception TMP or a BIS license
authorizing a temporary export of items
controlled under ECCNs 0A501.a or .b,
or shotguns with a barrel length less
than 18 inches controlled under ECCN
0A502, in addition to any other required
data for the associated EEI filing, you
must report the manufacturer, model,
caliber, and serial number of the
exported items. The requirements of this
paragraph (g)(4)(i) also apply to any
other export authorized under a BIS
license that includes a condition or
proviso on the license requiring the
submission of this information specified
in paragraph (g) of this section when the
EEI is filed in AES.
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(ii) Identifying end item firearms by
‘‘items’’ level classification or other
control descriptor in the EEI filing in
AES. For any export of items controlled
under ECCNs 0A501.a or .b, or shotguns
with a barrel length less than 18 inches
controlled under ECCN 0A502, in
addition to any other required data for
the associated EEI filing, you must
include the six character ECCN
classification (i.e., 0A501.a, or 0A501.b),
or for shotguns controlled under 0A502
the phrase ‘‘0A501 barrel length less
than 18 inches’’ as the first text to
appear in the Commodity description
block in the EEI filing in AES. (See
§ 743.4(h) of the EAR for the use of this
information for conventional arms
reporting).
Note 2 to paragraph (g)(4): If a commodity
described in paragraph (g)(4) of this section
is exported under License Exception TMP
under § 740.9(a)(6) of the EAR for inspection,
test, calibration, or repair is not consumed or
destroyed in the normal course of authorized
temporary use abroad, the commodity must
be disposed of or retained in one of the ways
specified in § 740.9(a)(14)(i), (ii), or (iii) of
the EAR. For example, if a commodity
described in paragraph (g)(4) was destroyed
while being repaired after being exported
under § 740.9(a)(6), the commodity described
in paragraph (g)(4) would not be required to
be returned. If the entity doing the repair
returned a replacement of the commodity to
the exporter from the United States, the
import would not require an EAR
authorization. The entity that exported the
commodity described in paragraph (g)(4) and
the entity that received the commodity
would need to document this as part of their
recordkeeping related to this export and
subsequent import to the United States.
*
■
*
*
*
*
33. Add § 758.10 to read as follows:
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§ 758.10 Entry clearance requirements for
temporary imports.
(a) Scope. This section specifies the
temporary import entry clearance
requirements for firearms ‘‘subject to the
EAR’’ that are on the United States
Munitions Import List (USMIL, 27 CFR
447.21), except for firearms ‘‘subject to
the EAR’’ that are temporarily brought
into the United States by nonimmigrant
aliens under the provisions of
Department of Justice regulations at 27
CFR part 478 (See § 740.14(e) of the EAR
for information on the export of these
firearms ‘‘subject to the EAR’’). These
firearms are controlled in ECCN
0A501.a or .b or shotguns with a barrel
length less than 18 inches controlled in
ECCN 0A502. Items that are temporarily
exported under the EAR must have met
the export clearance requirements
specified in § 758.1.
(1) An authorization under the EAR is
not required for the temporary import of
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19:01 Jan 22, 2020
Jkt 250001
‘‘items’’ that are ‘‘subject to the EAR,’’
including for ‘‘items’’ ‘‘subject to the
EAR’’ that are on the USMIL. Temporary
imports of firearms described in this
section must meet the entry clearance
requirements specified in paragraph (b)
of this section.
(2) Permanent imports are regulated
by the Attorney General under the
direction of the Department of Justice’s
Bureau of Alcohol, Tobacco, Firearms
and Explosives (see 27 CFR parts 447,
478, 479, and 555).
(b) EAR procedures for temporary
imports and subsequent exports. To the
satisfaction of U.S. Customs and Border
Protection, the temporary importer must
comply with the following procedures:
(1) At the time of entry into the U.S.
of the temporary import:
(i) Provide one of the following
statements specified in paragraph
(b)(1)(i)(A), (B), or (C) of this section to
U.S. Customs and Border Protection:
(A) ‘‘This shipment is being
temporarily imported in accordance
with the EAR. This shipment will be
exported in accordance with and under
the authority of License Exception TMP
(15 CFR 740.9(b)(5));’’
(B) ‘‘This shipment is being
temporarily imported in accordance
with the EAR. This shipment will be
exported in accordance with and under
the authority of License Exception RPL
(15 CFR 740.10(b));’’ or
(C) ‘‘This shipment is being
temporarily imported in accordance
with the EAR. This shipment will be
exported in accordance with and under
the authority of BIS license number
(provide the license number) (15 CFR
750.7(a) and 758.4);’’
(ii) Provide to U.S. Customs and
Border Protection an invoice or other
appropriate import-related
documentation (or electronic
equivalents) that includes a complete
list and description of the firearms being
temporarily imported, including their
model, make, caliber, serial numbers,
quantity, and U.S. dollar value;
(iii) Provide (if temporarily imported
for a trade show, exhibition,
demonstration, or testing) to U.S.
Customs and Border Protection the
relevant invitation or registration
documentation for the event and an
accompanying letter that details the
arrangements to maintain effective
control of the firearms while they are in
the United States; or
(iv) Provide (if temporarily imported
for servicing or replacement) to U.S.
Customs and Border Protection the
name, address and contact information
(telephone number and/or email) of the
organization or individual in the U.S.
PO 00000
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4179
that will be receiving the item for
servicing or replacement).
Note 1 to paragraph (b)(1): In accordance
with the exclusions in License Exception
TMP under § 740.9(b)(5) of the EAR, the
entry clearance requirements in § 758.1(b)(9)
do not permit the temporary import of:
Firearms controlled in ECCN 0A501.a or .b
that are shipped from or manufactured in a
Country Group D:5 country; or that are
shipped from or manufactured in Russia,
Georgia, Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan
(except for any firearm model controlled by
0A501 that is specified under Annex A in
Supplement No. 4 to part 740 of the EAR);
or shotguns with a barrel length less than 18
inches controlled in ECCN 0A502 that are
shipped from or manufactured in a Country
Group D:5 country, or from Russia, Georgia,
Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan,
because of the exclusions in License
Exception TMP under § 740.9(b)(5).
Note 2 to paragraph (b)(1): In accordance
with the exclusions in License Exception
RPL under § 740.10(b)(4) and Supplement
No. 2 to part 748, paragraph (z), of the EAR,
the entry clearance requirements in
§ 758.1(b)(9) do not permit the temporary
import of: Firearms controlled in ECCN
0A501.a or .b that are shipped from or
manufactured in Russia, Georgia,
Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan
(except for any firearm model controlled by
0A501 that is specified under Annex A in
Supplement No. 4 to part 740 of the EAR);
or shotguns with a barrel length less than 18
inches controlled in ECCN 0A502 that are
shipped from or manufactured in Russia,
Georgia, Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan,
because of the exclusions in License
Exception RPL under § 740.10(b)(4) and
Supplement No. 2 to part 748, paragraph (z),
of the EAR.
(2) At the time of export, in
accordance with the U.S. Customs and
Border Protection procedures, the
eligible exporter, or an agent acting on
the filer’s behalf, must as required under
§ 758.1(b)(9) file the export information
with CBP by filing EEI in AES, noting
the applicable EAR authorization as the
authority for the export, and provide,
upon request by CBP, the entry
document number or a copy of the CBP
document under which the ‘‘item’’
subject to the EAR’’ on the USMIL was
temporarily imported. See also the
additional requirements in § 758.1(g)(4).
■ 34. Add § 758.11 to read as follows:
§ 758.11 Export clearance requirements
for firearms and related items.
(a) Scope. The export clearance
requirements of this section apply to all
exports of commodities controlled
under ECCNs 0A501.a or .b, shotguns
with a barrel length less than 18 inches
controlled under ECCN 0A502, or
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ammunition controlled under ECCN
0A505 except for .c, regardless of value
or destination, including exports to
Canada, that are authorized under
License Exception BAG, as set forth in
§ 740.14 of the EAR.
(b) Required form. Prior to making
any export described in paragraph (a) of
this section, the exporter is required to
submit a properly completed
Department of Homeland Security, CBP
Form 4457, (Certificate of Registration
for Personal Effects Taken Abroad)
(OMB Control Number 1651–0010), to
the U.S. Customs and Border Protection
(CBP), pursuant to 19 CFR 148.1, and as
required by this section.
(1) Where to obtain the form? The CBP
Certification of Registration Form 4457
can be found on the following CBP
website: https://www.cbp.gov/
document/forms/form-4457-certificateregistration-personal-effects-takenabroad.
(2) Required ‘‘description of articles’’
for firearms to be included on the CBP
Form 4457. For all exports of firearms
controlled under ECCNs 0A501.a or .b,
or shotguns with a barrel length less
than 18 inches controlled under ECCN
0A502, the exporter must provide to
CBP the serial number, make, model,
and caliber for each firearm being
exported by entering this information
under the ‘‘Description of Articles’’ field
of the CBP Form 4457, Certificate of
Registration for Personal Effects Taken
Abroad.
(c) Where to find additional
information on the CBP Form 4457? See
the following CBP website page for
additional information: https://
help.cbp.gov/app/answers/detail/a_id/
323/∼/traveling-outside-of-the-u.s.temporarily-taking-a-firearm%2C-rifle
%2C-gun%2C.
(d) Return of items exported pursuant
to this section. The exporter when
returning with a commodity authorized
under License Exception BAG and
exported pursuant this section, is
required to present a copy of the CBP
Form 4457, Certificate of Registration
for Personal Effects Taken Abroad)
(OMB Control Number 1651–0010), to
CBP, pursuant to 19 CFR 148.1, and as
required by this section.
PART 762—RECORDKEEPING
35. The authority citation for part 762
is revised to read as follows:
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■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
36. Section 762.2 is amended by
removing ‘‘and,’’ at the end of paragraph
(a)(10), redesignating paragraph (a)(11)
■
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19:01 Jan 22, 2020
Jkt 250001
as paragraph (a)(12), and adding a new
paragraph (a)(11) to read as follows:
§ 762.2
Records to be retained.
(a) * * *
(11) The serial number, make, model,
and caliber for any firearm controlled in
ECCN 0A501.a and for shotguns with
barrel length less than 18 inches
controlled in 0A502 that have been
exported. The ‘‘exporter’’ or any other
party to the transaction (see § 758.3 of
the EAR), that creates or receives such
records is a person responsible for
retaining this record; and
*
*
*
*
*
■ 37. Section 762.3 is amended by
revising paragraph (a)(5) to read as
follows:
§ 762.3 Records exempt from
recordkeeping requirements.
(a) * * *
(5) Warranty certificate, except for a
warranty certificate issued for an
address located outside the United
States for any firearm controlled in
ECCN 0A501.a and for shotguns with
barrel length less than 18 inches
controlled in 0A502;
*
*
*
*
*
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.
41. In Supplement No. 1 to part 774,
Category 0, revise Export Control
Classification Number (ECCN) 0A018 to
read as follows:
■
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
42. In Supplement No. 1 to part 774,
Category 0, add, between entries for
ECCNs 0A018 and 0A521, entries for
ECCNs 0A501, 0A502, 0A503, 0A504,
and 0A505 to read as follows:
■
0A501 Firearms (except 0A502 shotguns)
and related commodities as follows (see
List of Items Controlled)
License Requirements
Reason for Control: NS, RS, FC, UN, AT
Control(s)
PART 772—DEFINITIONS OF TERMS
38. The authority citation for part 772
is revised to read as follows:
■
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
39. In § 772.1:
a. The definition of ‘‘Complete breech
mechanisms’’ is added in alphabetical
order; and
■ b. In the definition of ‘‘Specially
designed,’’ note 1 is amended by
removing ‘‘0B986’’ and adding in its
place ‘‘0B505.c’’.
The addition reads as follows:
■
■
§ 772.1 Definitions of terms as used in the
Export Administration Regulations (EAR).
*
*
*
*
*
Complete breech mechanisms. The
mechanism for opening and closing the
breech of a breech-loading firearm,
especially of a heavy-caliber weapon.
*
*
*
*
*
PART 774—THE COMMERCE
CONTROL LIST
*
0A018 Items on the Wassenaar Munitions
List (see List of Items Controlled)
No items currently are in this ECCN. See
ECCN 0A505 for ‘‘parts’’ and ‘‘components’’
for ammunition that, immediately prior to
March 9, 2020, were classified under
0A018.b.
NS applies to entire
entry except
0A501.y.
RS applies to entire
entry except
0A501.y.
FC applies to entire
entry except
0A501.y.
UN applies to entire
entry.
AT applies to entire
entry.
Country chart
(see supp. No. 1 to
part 738)
NS Column 1
RS Column 1
FC Column 1
See § 746.1 of the
EAR for UN controls.
AT Column 1
License Requirement Note: In addition to
using the Commerce Country Chart to
determine license requirements, a license
is required for exports and reexports of
ECCN 0A501.y.7 firearms to the People’s
Republic of China.
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $500 for 0A501.c, .d, and .x.
$500 for 0A501.c, .d, .e, and .x if the ultimate
destination is Canada.
GBS: N/A
CIV: N/A
40. The authority citation for 15 CFR
part 774 is revised to read as follows:
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any item in this entry.
Authority: 50 U.S.C. 4801–4852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C.
8720; 10 U.S.C. 8730(e); 22 U.S.C. 287c, 22
U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C.
2139a; 15 U.S.C. 1824; 50 U.S.C. 4305; 22
List of Items Controlled
Related Controls: (1) Firearms that are fully
automatic, and magazines with a capacity
of greater than 50 rounds, are ‘‘subject to
the ITAR.’’ (2) See ECCN 0A502 for
■
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Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Rules and Regulations
shotguns and their ‘‘parts’’ and
‘‘components’’ that are subject to the EAR.
Also see ECCN 0A502 for shot-pistols. (3)
See ECCN 0A504 and USML Category XII
for controls on optical sighting devices.
Related Definitions: N/A.
Items:
a. Non-automatic and semi-automatic
firearms equal to .50 caliber (12.7 mm) or
less.
Note 1 to paragraph 0A501.a:
‘Combination pistols’ are controlled under
ECCN 0A501.a. A ‘combination pistol’ (a.k.a.,
a combination gun) has at least one rifled
barrel and at least one smoothbore barrel
(generally a shotgun style barrel).
b. Non-automatic and non-semi-automatic
rifles, carbines, revolvers or pistols with a
caliber greater than .50 inches (12.7 mm) but
less than or equal to .72 inches (18.0 mm).
c. The following types of ‘‘parts’’ and
‘‘components’’ if ‘‘specially designed’’ for a
commodity controlled by paragraph .a or .b
of this entry, or USML Category I (unless
listed in USML Category I(g) or (h)): Barrels,
cylinders, barrel extensions, mounting blocks
(trunnions), bolts, bolt carriers, operating
rods, gas pistons, trigger housings, triggers,
hammers, sears, disconnectors, pistol grips
that contain fire control ‘‘parts’’ or
‘‘components’’ (e.g., triggers, hammers, sears,
disconnectors) and buttstocks that contain
fire control ‘‘parts’’ or ‘‘components.’’
d. Detachable magazines with a capacity of
greater than 16 rounds ‘‘specially designed’’
for a commodity controlled by paragraph .a
or .b of this entry.
Note 2 to paragraph 0A501.d: Magazines
with a capacity of 16 rounds or less are
controlled under 0A501.x.
e. Receivers (frames) and ‘‘complete breech
mechanisms,’’ including castings, forgings
stampings, or machined items thereof,
‘‘specially designed’’ for a commodity
controlled by paragraph .a or .b of this entry.
f. through w. [Reserved]
x. ‘‘Parts’’ and ‘‘components’’ that are
‘‘specially designed’’ for a commodity
classified under paragraphs .a through .c of
this entry or the USML and not elsewhere
specified on the USML or CCL.
y. Specific ‘‘parts,’’ ‘‘components,’’
‘‘accessories’’ and ‘‘attachments’’ ‘‘specially
designed’’ for a commodity subject to control
in this ECCN or common to a defense article
in USML Category I and not elsewhere
specified in the USML or CCL as follows, and
‘‘parts,’’ ‘‘components,’’ ‘‘accessories,’’ and
‘‘attachments’’ ‘‘specially designed’’ therefor.
y.1. Stocks or grips, that do not contain any
fire control ‘‘parts’’ or ‘‘components’’ (e.g.,
triggers, hammers, sears, disconnectors);’’
y.2. Scope mounts or accessory rails;
y.3. Iron sights;
y.4. Sling swivels;
y.5. Butt plates or recoil pads;
y.6. Bayonets; and
y.7. Firearms manufactured from 1890 to
1898 and reproductions thereof.
Technical Note 1 to 0A501: The controls
on ‘‘parts’’ and ‘‘components’’ in ECCN
0A501 include those ‘‘parts’’ and
‘‘components’’ that are common to firearms
described in ECCN 0A501 and to those
firearms ‘‘subject to the ITAR.’’
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Note 3 to 0A501: Antique firearms (i.e.,
those manufactured before 1890) and
reproductions thereof, muzzle loading black
powder firearms except those designs based
on centerfire weapons of a post 1937 design,
BB guns, pellet rifles, paint ball, and all other
air rifles are EAR99 commodities.
Note 4 to 0A501: Muzzle loading (black
powder) firearms with a caliber less than 20
mm that were manufactured later than 1937
that are used for hunting or sporting
purposes that were not ‘‘specially designed’’
for military use and are not ‘‘subject to the
ITAR’’ nor controlled as shotguns under
ECCN 0A502 are EAR99 commodities.
0A502 Shotguns; shotguns ‘‘parts’’ and
‘‘components,’’ consisting of complete
trigger mechanisms; magazines and
magazine extension tubes; ‘‘complete
breech mechanisms;’’ except equipment
used exclusively to treat or tranquilize
animals, and except arms designed
solely for signal, flare, or saluting use.
License Requirements
Reason for Control: RS, CC, FC, UN, AT, NS
Control(s)
NS applies to shotguns with a barrel
length less than 18
inches (45.72 cm).
RS applies to shotguns with a barrel
length less than 18
inches (45.72 cm).
FC applies to entire
entry.
CC applies to shotguns with a barrel
length less than 24
in. (60.96 cm) and
shotgun ‘‘components’’ controlled by
this entry regardless of end user.
CC applies to shotguns with a barrel
length greater than
or equal to 24 in.
(60.96 cm), regardless of end user.
CC applies to shotguns with a barrel
length greater than
or equal to 24 in..
(60.96 cm) if for sale
or resale to police
or law enforcement.
UN applies to entire
entry.
AT applies to shotguns with a barrel
length less than 18
inches (45.72 cm).
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
RS Column 1
FC Column 1
Frm 00047
Fmt 4701
List of Items Controlled
Related Controls: Shotguns that are fully
automatic are ‘‘subject to the ITAR.’’
Related Definitions: N/A
Items: The list of items controlled is
contained in the ECCN heading.
Note 1 to 0A502: Shotguns made in or
before 1898 are considered antique shotguns
and designated as EAR99.
Technical Note: Shot pistols or shotguns
that have had the shoulder stock removed
and a pistol grip attached are controlled by
ECCN 0A502. Slug guns are also controlled
under ECCN 0A502.
0A503 Discharge type arms; non-lethal or
less-lethal grenades and projectiles, and
‘‘specially designed’’ ‘‘parts’’ and
‘‘components’’ of those projectiles; and
devices to administer electric shock, for
example, stun guns, shock batons, shock
shields, electric cattle prods,
immobilization guns and projectiles;
except equipment used exclusively to
treat or tranquilize animals, and except
arms designed solely for signal, flare, or
saluting use; and ‘‘specially designed’’
‘‘parts’’ and ‘‘components,’’ n.e.s.
License Requirements
Reason for Control: CC, UN
Control(s)
CC applies to entire
entry.
CC Column 2
CC Column 3
UN applies to entire
entry.
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $500 for 0A502 shotgun ‘‘parts’’ and
‘‘components,’’ consisting of complete
trigger mechanisms; magazines and
magazine extension tubes.
PO 00000
$500 for 0A502 shotgun ‘‘parts’’ and
‘‘components,’’ consisting of complete
trigger mechanisms; magazines and
magazine extension tubes, ‘‘complete
breech mechanisms’’ if the ultimate
destination is Canada.
GBS: N/A
CIV: N/A
CC Column 1
See § 746.1(b) of the
EAR for UN controls
AT Column 1
Sfmt 4700
4181
Country chart
(see Supp. No. 1 to
part 738)
A license is required
for ALL destinations, except Canada, regardless of
end use. Accordingly, a column
specific to this control does not appear on the Commerce Country
Chart. (See part
742 of the EAR for
additional information)
See § 746.1(b) of the
EAR for UN controls
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: Law enforcement restraint
devices that administer an electric shock
are controlled under ECCN 0A982.
Electronic devices that monitor and report
a person’s location to enforce restrictions
on movement for law enforcement or penal
reasons are controlled under ECCN 3A981.
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Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Rules and Regulations
Related Definitions: N/A
Items: The list of items controlled is
contained in the ECCN heading.
0A504 Optical sighting devices for firearms
(including shotguns controlled by
0A502); and ‘‘components’’ as follows
(see List of Items Controlled).
riflescopes controlled under 0A504.i,
paragraph (a)(1) of the definition of
‘‘specially designed’’ in § 772.1 of the EAR is
what is used to determine whether the
riflescope is ‘‘specially designed.’’
0A505 Ammunition as follows (see List of
Items Controlled).
License Requirements
Reason for Control: FC, RS, CC, UN
License Requirements
Reason for Control: NS, RS, CC, FC, UN, AT
Control(s)
RS applies to paragraph .i.
FC applies to paragraphs .a, .b, .c, .d,
.e, .g, and .i of this
entry.
CC applies to entire
entry.
UN applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
RS Column 1
FC Column 1
CC Column 1
See § 746.1(b) of the
EAR for UN controls
jbell on DSKJLSW7X2PROD with RULES2
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $500 for 0A504.g.
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: (1) See USML Category
XII(c) for sighting devices using second
generation image intensifier tubes having
luminous sensitivity greater than 350 mA/
lm, or third generation or higher image
intensifier tubes, that are ‘‘subject to the
ITAR.’’ (2) See USML Category XII(b) for
laser aiming or laser illumination systems
‘‘subject to the ITAR.’’ (3) Section 744.9 of
the EAR imposes a license requirement on
certain commodities described in 0A504 if
being exported, reexported, or transferred
(in-country) for use by a military end-user
or for incorporation into an item controlled
by ECCN 0A919.
Related Definitions: N/A
Items:
a. Telescopic sights.
b. Holographic sights.
c. Reflex or ‘‘red dot’’ sights.
d. Reticle sights.
e. Other sighting devices that contain
optical elements.
f. Laser aiming devices or laser
illuminators ‘‘specially designed’’ for use on
firearms, and having an operational
wavelength exceeding 400 nm but not
exceeding 710 nm.
Note 1 to 0A504.f: 0A504.f does not control
laser boresighting devices that must be
placed in the bore or chamber to provide a
reference for aligning the firearms sights.
g. Lenses, other optical elements and
adjustment mechanisms for articles in
paragraphs .a, .b, .c, .d, .e, or .i.
h. [Reserved]
i. Riflescopes that were not ‘‘subject to the
EAR’’ as of March 8, 2020 and are ‘‘specially
designed’’ for use in firearms that are
‘‘subject to the ITAR.’’
Note 2 to paragraph i: For purpose of the
application of ‘‘specially designed’’ for the
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19:01 Jan 22, 2020
Jkt 250001
Control(s)
NS applies to
0A505.a and .x.
RS applies to
0A505.a and .x.
CC applies to
0A505.b.
FC applies to entire
entry except
0A505.d.
UN applies to entire
entry.
AT applies to
0A505.a, .d, and .x.
AT applies to 0A505.c
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
RS Column 1
CC Column 1
FC Column 1
See § 746.1 of the
EAR for UN controls
AT Column 1
A license is required
for items controlled
by paragraph .c of
this entry to North
Korea for anti-terrorism reasons.
The Commerce
Country Chart is
not designed to determine AT licensing requirements
for this entry. See
§ 742.19 of the
EAR for additional
information.
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $500 for items in 0A505.x, except
$3,000 for items in 0A505.x that,
immediately prior to March 9, 2020, were
classified under 0A018.b. (i.e., ‘‘Specially
designed’’ components and parts for
ammunition, except cartridge cases,
powder bags, bullets, jackets, cores, shells,
projectiles, boosters, fuses and
components, primers, and other detonating
devices and ammunition belting and
linking machines (all of which are ‘‘subject
to the ITAR’’). (See 22 CFR parts 120
through 130))
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any item in 0A505.
List of Items Controlled
Related Controls: (1) Ammunition for modern
heavy weapons such as howitzers, artillery,
cannon, mortars and recoilless rifles as
well as inherently military ammunition
types such as ammunition preassembled
into links or belts, caseless ammunition,
tracer ammunition, ammunition with a
depleted uranium projectile or a projectile
PO 00000
Frm 00048
Fmt 4701
Sfmt 4700
with a hardened tip or core and
ammunition with an explosive projectile
are ‘‘subject to the ITAR.’’ (2) Percussion
caps, and lead balls and bullets, for use
with muzzle-loading firearms are EAR99
items.
Related Definitions: N/A
Items:
a. Ammunition for firearms controlled by
ECCN 0A501 or USML Category I and not
enumerated in paragraph .b, .c, or .d of this
entry or in USML Category III.
b. Buckshot (No. 4 .24’’ diameter and
larger) shotgun shells.
c. Shotgun shells (including less than
lethal rounds) that do not contain buckshot;
and ‘‘specially designed’’ ‘‘parts’’ and
‘‘components’’ of shotgun shells.
Note 1 to 0A505.c: Shotgun shells that
contain only chemical irritants are controlled
under ECCN 1A984.
d. Blank ammunition for firearms
controlled by ECCN 0A501 and not
enumerated in USML Category III.
e. through w. [Reserved]
x. ‘‘Parts’’ and ‘‘components’’ that are
‘‘specially designed’’ for a commodity subject
to control in this ECCN or a defense article
in USML Category III and not elsewhere
specified on the USML, the CCL or paragraph
.d of this entry.
Note 2 to 0A505.x: The controls on ‘‘parts’’
and ‘‘components’’ in this entry include
Berdan and boxer primers, metallic cartridge
cases, and standard metallic projectiles such
as full metal jacket, lead core, and copper
projectiles.
Note 3 to 0A505.x: The controls on ‘‘parts’’
and ‘‘components’’ in this entry include
those ‘‘parts’’ and ‘‘components’’ that are
common to ammunition and ordnance
described in this entry and to those
enumerated in USML Category III.
Note 4 to 0A505: Lead shot smaller than
No. 4 Buckshot, empty and unprimed
shotgun shells, shotgun wads, smokeless
gunpowder, ‘Dummy rounds’ and blank
rounds (unless linked or belted), not
incorporating a lethal or non-lethal
projectile(s) are designated EAR99. A
‘dummy round or drill round’ is a round that
is completely inert, i.e., contains no primer,
propellant, or explosive charge. It is typically
used to check weapon function and for crew
training.
43. In Supplement No. 1 to part 774,
Category 0, add, between entries for
ECCNs 0A521 and 0A604, an entry for
ECCN 0A602 to read as follows:
■
0A602 Guns and Armament as follows (see
List of Items Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
Control(s)
NS applies to entire
entry.
RS applies to entire
entry.
E:\FR\FM\23JAR2.SGM
23JAR2
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
RS Column 1
Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Rules and Regulations
Control(s)
Country chart
(see Supp. No. 1 to
part 738)
helmets that, immediately prior to July 1,
2014, were classified under 0A988.
46. In Supplement No. 1 to part 774,
Category 0, add, before the entry for
ECCN 0B521, entries for ECCNs 0B501
and 0B505 to read as follows:
Control(s)
4183
Country chart
(see Supp. No. 1 to
part 738)
■
UN applies to entire
entry.
AT applies to entire
entry.
See § 746.1 of the
EAR for UN controls
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $500
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any item in 0A602.
License Requirements
List of Items Controlled
Related Controls: (1) Modern heavy weapons
such as howitzers, artillery, cannon,
mortars, and recoilless rifles are ‘‘subject to
the ITAR.’’ (2) See ECCN 0A919 for
foreign-made ‘‘military commodities’’ that
incorporate more than a de minimis
amount of U.S.-origin ‘‘600 series’’ items.
(3) See ECCN 0A606 for engines that are
‘‘specially designed’’ for a self-propelled
gun or howitzer subject to control under
paragraph .a of this ECCN or USML
Category VII.
Related Definitions: N/A
Items:
a. Guns and armament manufactured
between 1890 and 1919.
b. Military flame throwers with an effective
range less than 20 meters.
c. through w. [Reserved]
x. ‘‘Parts’’ and ‘‘components’’ that are
‘‘specially designed’’ for a commodity subject
to control in paragraphs .a or .b of this ECCN
or a defense article in USML Category II and
not elsewhere specified on the USML or the
CCL.
Note 1 to 0A602.x: Engines that are
‘‘specially designed’’ for a self-propelled gun
or howitzer subject to control under
paragraph .a of this ECCN or a defense article
in USML Category VII are controlled under
ECCN 0A606.x.
Control(s)
Note 2 to 0A602: ‘‘Parts,’’ ‘‘components,’’
‘‘accessories,’’ and ‘‘attachments’’ specified
in USML subcategory II(j) are subject to the
controls of that paragraph.
Note 3 to 0A602: Black powder guns and
armament manufactured in or prior to 1890
and replicas thereof designed for use with
black powder propellants are designated
EAR99.
Supplement No. 1 to Part 774—
[Amended]
44. In Supplement No. 1 to part 774,
Category 0, remove ECCNs 0A918,
0A984, 0A985, 0A986, and 0A987.
■ 45. In Supplement No. 1 to part 774,
Category 0, revise ECCN 0A988 to read
as follows:
■
jbell on DSKJLSW7X2PROD with RULES2
0B501 Test, inspection, and production
‘‘equipment’’ and related commodities
for the ‘‘development’’ or ‘‘production’’
of commodities enumerated or
otherwise described in ECCN 0A501 or
USML Category I as follows (see List of
Items Controlled).
0A988 Conventional military steel helmets.
No items currently are in this ECCN. See
ECCN 1A613.y.1 for conventional steel
VerDate Sep<11>2014
19:01 Jan 22, 2020
Jkt 250001
NS applies to paragraphs .a and .x.
RS applies to paragraphs .a and .x.
UN applies to entire
entry.
AT applies to paragraphs .a, .d, and
.x.
AT applies to paragraph .c.
Reason for Control: NS, RS, UN, AT
NS applies to entire
entry except equipment for ECCN
0A501.y.
RS applies to entire
entry except equipment for ECCN
0A501.y.
UN applies to entire
entry.
AT applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
RS Column 1
See § 746.1 of the
EAR for UN controls
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $3000
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used to ship any item in this entry.
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
a. Small arms chambering machines.
b. Small arms deep hole drilling machines
and drills therefor.
c. Small arms rifling machines.
d. Small arms spill boring machines.
e. Production equipment (including dies,
fixtures, and other tooling) ‘‘specially
designed’’ for the ‘‘production’’ of the items
controlled in 0A501.a through .x. or USML
Category I.
0B505 Test, inspection, and production
‘‘equipment’’ and related commodities
‘‘specially designed’’ for the
‘‘development’’ or ‘‘production’’ of
commodities enumerated or otherwise
described in ECCN 0A505 or USML
Category III, except equipment for the
hand loading of cartridges and shotgun
shells, as follows (see List of Items
Controlled).
NS Column 1
RS Column 1
See § 746.1 of the
EAR for UN controls
AT Column 1
A license is required
for export or reexport of these items
to North Korea for
anti-terrorism reasons
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $3000
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any item in 0B505.
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
a. Production equipment (including
tooling, templates, jigs, mandrels, molds,
dies, fixtures, alignment mechanisms, and
test equipment), not enumerated in USML
Category III that are ‘‘specially designed’’ for
the ‘‘production’’ of commodities controlled
by ECCN 0A505.a or .x or USML Category III.
b. Equipment ‘‘specially designed’’ for the
‘‘production’’ of commodities in ECCN
0A505.b.
c. Equipment ‘‘specially designed’’ for the
‘‘production’’ of commodities in ECCN
0A505.c.
d. Equipment ‘‘specially designed’’ for the
‘‘production’’ of commodities in ECCN
0A505.d.
e. through .w [Reserved]
x. ‘‘Parts’’ and ‘‘components’’ ‘‘specially
designed’’ for a commodity subject to control
in paragraph .a of this entry.
47. In Supplement No. 1 to part 774,
Category 0, add, between entries for
ECCNs 0B521 and 0B604, an entry for
ECCN 0B602 to read as follows:
■
0B602 Test, inspection, and production
‘‘equipment’’ and related commodities
‘‘specially designed’’ for the
‘‘development’’ or ‘‘production’’ of
commodities enumerated or otherwise
described in ECCN 0A602 or USML
Category II as follows (see List of Items
Controlled).
License Requirements
License Requirements
Reason for Control: NS, RS, UN, AT
Reason for Control: NS, RS, UN, AT
PO 00000
Frm 00049
Fmt 4701
Sfmt 4700
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Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Rules and Regulations
Control(s)
NS applies to entire
entry.
RS applies to entire
entry.
UN applies to entire
entry.
AT applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
RS Column 1
See § 746.1 of the
EAR for UN controls
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $3000
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any item in 0B602.
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
a. The following commodities if ‘‘specially
designed’’ for the ‘‘development’’ or
‘‘production’’ of commodities enumerated in
ECCN 0A602.a or USML Category II:
a.1. Gun barrel rifling and broaching
machines and tools therefor;
a.2. Gun barrel rifling machines;
a.3. Gun barrel trepanning machines;
a.4. Gun boring and turning machines;
a.5. Gun honing machines of 6 feet (183
cm) stroke or more;
a.6. Gun jump screw lathes;
a.7. Gun rifling machines; and
a.8. Barrel straightening presses.
b. Jigs and fixtures and other metalworking implements or accessories of the
kinds exclusively designed for use in the
manufacture of items in ECCN 0A602 or
USML Category II.
c. Other tooling and equipment, ‘‘specially
designed’’ for the ‘‘production’’ of items in
ECCN 0A602 or USML Category II.
d. Test and evaluation equipment and test
models, including diagnostic instrumentation
and physical test models, ‘‘specially
designed’’ for items in ECCN 0A602 or USML
Category II.
Control(s)
NS applies to entire
entry except ‘‘software’’ for commodities in ECCN
0A501.y or equipment in ECCN
0B501 for commodities in ECCN
0A501.y.
RS applies to entire
entry except ‘‘software’’ for commodities in ECCN
0A501.y or equipment in ECCN
0B501 for commodities in ECCN
0A501.y.
UN applies to entire
entry.
AT applies to entire
entry.
jbell on DSKJLSW7X2PROD with RULES2
0D501 ‘‘Software’’ ‘‘specially designed’’ for
the ‘‘development,’’ ‘‘production,’’
operation, or maintenance of
commodities controlled by 0A501 or
0B501.
License Requirements
Reason for Control: NS, RS, UN, AT
VerDate Sep<11>2014
19:01 Jan 22, 2020
Jkt 250001
See § 746.1 of the
EAR for UN controls
AT Column 1
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
CIV: N/A
TSR: N/A
List of Items Controlled
Related Controls: ‘‘Software’’ required for
and directly related to articles enumerated
in USML Category III is ‘‘subject to the
ITAR’’.
Related Definitions: N/A
Items: The list of items controlled is
contained in this ECCN heading.
50. In Supplement No. 1 to part 774,
Category 0, add, between the entries for
ECCNs 0D521 and 0D604, an entry for
ECCN 0D602 to read as follows:
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any ‘‘software’’ in 0D501.
List of Items Controlled
Related Controls: ‘‘Software’’ required for
and directly related to articles enumerated
in USML Category I is ‘‘subject to the
ITAR’’.
Related Definitions: N/A
Items: The list of items controlled is
contained in this ECCN heading.
0D505 ‘‘Software’’ ‘‘specially designed’’ for
the ‘‘development,’’ ‘‘production,’’
operation, or maintenance of
commodities controlled by 0A505 or
0B505.
License Requirements
Reason for Control: NS, RS, UN, AT
NS applies to ‘‘software’’ for commodities in ECCN
0A505.a and .x and
equipment in ECCN
0B505.a .and .x.
RS applies to ‘‘software’’ for commodities in ECCN
0A505.a and .x and
equipment in ECCN
0B505.a and .x.
UN applies to entire
entry.
Frm 00050
AT applies to ‘‘software’’ for commodities in ECCN
0A505.a, .d, or .x
and equipment in
ECCN 0B505.a, .d,
or .x.
Country chart
(see Supp. No. 1 to
part 738)
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any ‘‘software’’ in 0D505.
Special Conditions for STA
PO 00000
Control(s)
■
■
49. In Supplement No. 1 to part 774,
Category 0, add, between the entries for
ECCNs 0D001 and 0D521, entries for
ECCNs 0D501 and 0D505 to read as
follows:
RS Column 1
CIV: N/A
TSR: N/A
Control(s)
■
NS Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
Supplement No. 1 to Part 774—
[Amended]
48. In Supplement No. 1 to part 774,
Category 0, remove ECCN 0B986.
Country chart
(see Supp. No. 1 to
part 738)
Fmt 4701
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
RS Column 1
See § 746.1 of the
EAR for UN controls
Sfmt 4700
0D602 ‘‘Software’’ ‘‘specially designed’’ for
the ‘‘development,’’ ‘‘production,’’
operation or maintenance of
commodities controlled by 0A602 or
0B602 as follows (see List of Items
Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
Control(s)
NS applies to entire
entry.
RS applies to entire
entry.
UN applies to entire
entry.
AT applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
RS Column 1
See § 746.1 of the
EAR for UN controls
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any item in 0D602.
List of Items Controlled
Related Controls: (1) ‘‘Software’’ required for
and directly related to articles enumerated
in USML Category II is ‘‘subject to the
ITAR’’. (2) See ECCN 0A919 for foreignmade ‘‘military commodities’’ that
incorporate more than a de minimis
amount of U.S.-origin ‘‘600 series’’ items.
E:\FR\FM\23JAR2.SGM
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Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Rules and Regulations
Related Definitions: N/A
Items: ‘‘Software’’ ‘‘specially designed’’ for
the ‘‘development,’’ ‘‘production,’’
operation, or maintenance of commodities
controlled by ECCN 0A602 and ECCN
0B602.
Supplement No. 1 to Part 774—
[Amended]
52. In Supplement No. 1 to part 774,
Category 0, add, between the entries for
ECCNs 0E001 and 0E521, entries for
ECCNs 0E501, 0E502, 0E504, and 0E505
to read as follows:
■
0E501 ‘‘Technology’’ ‘‘required’’ for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, or overhaul of commodities
controlled by 0A501 or 0B501 as follows
(see List of Items Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
NS applies to entire
entry.
RS applies to entire
entry.
UN applies to entire
entry.
AT applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
CC Column 1
See § 746.1(b) of the
EAR for UN controls
CIV: N/A
TSR: N/A
List of Items Controlled
Related Controls: Technical data required for
and directly related to articles enumerated
in USML Category I are ‘‘subject to the
ITAR’’.
Related Definitions: N/A
Items: The list of items controlled is
contained in the ECCN heading.
0E504 ‘‘Technology’’ ‘‘required’’ for the
‘‘development’’ or ‘‘production’’ of
commodities controlled by 0A504 that
incorporate a focal plane array or image
intensifier tube.
License Requirements
Reason for Control: RS, UN, AT
NS Column 1
Control(s)
RS Column 1
See § 746.1 of the
EAR for UN controls
AT Column 1
RS applies to entire
entry.
UN applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
RS Column 1
See § 746.1(b) of the
EAR for UN controls
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
AT applies to entire
entry.
CIV: N/A
TSR: N/A
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
Special Conditions for STA
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 ECCN 0E501.
List of Items Controlled
jbell on DSKJLSW7X2PROD with RULES2
CC applies to entire
entry.
UN applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
51. In Supplement No. 1 to part 774,
Category 0, remove ECCN 0E018.
■
Control(s)
Control(s)
Related Controls: Technical data required for
and directly related to articles
enumerated in USML Category I are
‘‘subject to the ITAR.’’
Related Definitions: N/A
Items:
a. ‘‘Technology’’ ‘‘required’’ for the
‘‘development’’ or ‘‘production’’ of
commodities controlled by ECCN 0A501
(other than 0A501.y) or 0B501.
b. ‘‘Technology’’ ‘‘required’’ for the
operation, installation, maintenance, repair,
or overhaul of commodities controlled by
ECCN 0A501 (other than 0A501.y) or 0B501.
0E502 ‘‘Technology’’ ‘‘required’’ for the
‘‘development’’ or ‘‘production’’ of
commodities controlled by 0A502.
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is
contained in the ECCN heading.
0E505 ‘‘Technology’’ ‘‘required’’ for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul, or refurbishing of
commodities controlled by 0A505.
License Requirements
Reason for Control: NS, RS, UN, CC, AT
CC applies to ‘‘technology’’ for the
‘‘development’’ or
‘‘production’’ of
commodities in
0A505.b.
AT applies to ‘‘technology’’ for ‘‘development,’’ ‘‘production,’’ operation, installation, maintenance, repair, overhaul, or refurbishing
commodities in
0A505.a, .d, and .x.
NS Column 1
RS Column 1
See § 746.1 of the
EAR for UN controls
CC Column 1
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any ‘‘technology’’ in 0E505.
53. In Supplement No. 1 to part 774,
Category 0, add, between the entries for
■
Reason for Control: CC, UN
19:01 Jan 22, 2020
NS applies to ‘‘technology’’ for ‘‘development,’’ ‘‘production,’’ operation, installation, maintenance, repair, overhaul, or refurbishing
commodities in
0A505.a and .x; for
equipment for those
commodities in
0B505; and for
‘‘software’’ for that
equipment and
those commodities
in 0D505.
RS applies to entire
entry except ‘‘technology’’ for ‘‘development,’’ ‘‘production,’’ operation, installation, maintenance, repair, overhaul, or refurbishing
commodities in
0A505.a and .x; for
equipment for those
commodities in
0B505 and for
‘‘software’’ for those
commodities and
that equipment in
0D505.
UN applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
List of Items Controlled
Related Controls: Technical data required for
and directly related to articles enumerated
in USML Category III are ‘‘subject to the
ITAR’’.
Related Definitions: N/A
Items: The list of items controlled is
contained in this ECCN heading.
License Requirements
VerDate Sep<11>2014
Control(s)
4185
Jkt 250001
PO 00000
Frm 00051
Fmt 4701
Sfmt 4700
E:\FR\FM\23JAR2.SGM
23JAR2
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Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Rules and Regulations
ECCNs 0E521 and 0E604, an entry for
ECCN 0E602:
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
0E602 ‘‘Technology’’ ‘‘required’’ for the
‘‘development,’’ ‘‘production,’’
operation, installation, maintenance,
repair, overhaul, or refurbishing of
commodities controlled by 0A602 or
0B602, or ‘‘software’’ controlled by
0D602 as follows (see List of Items
Controlled).
CIV: N/A
TSR: N/A
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
The list of items controlled is contained in
the ECCN heading.
License Requirements
Reason for Control: NS, RS, UN, AT
Supplement No. 1 to Part 774—
[Amended]
Country chart
(see Supp. No. 1 to
part 738)
Control(s)
NS applies to entire
entry.
RS applies to entire
entry.
UN applies to entire
entry.
AT applies to entire
entry.
NS Column 1
57. In Supplement No. 1 to part 774,
Category 1, revise ECCN 1A984 to read
as follows:
■
RS Column 1
See § 746.1 of the
EAR for UN controls
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any item in 0E602.
List of Items Controlled
Related Controls: Technical data directly
related to articles enumerated in USML
Category II are ‘‘subject to the ITAR.’’
Related Definitions: N/A
Items: ‘‘Technology’’ ‘‘required’’ for the
‘‘development,’’ ‘‘production,’’ operation,
installation, maintenance, repair, or
overhaul of commodities controlled by
ECCN 0A602 or 0B602, or ‘‘software’’
controlled by ECCN 0D602.
Supplement No. 1 to Part 774—
[Amended]
54. In Supplement No. 1 to part 774,
Category 0, remove ECCN 0E918.
■
55. In Supplement No. 1 to part 774,
Category 0, revise ECCN 0E982 to read
as follows.
■
0E982 ‘‘Technology’’ exclusively for the
‘‘development’’ or ‘‘production’’ of
equipment controlled by 0A982 or 0A503.
License Requirements
Reason for Control: CC
jbell on DSKJLSW7X2PROD with RULES2
License Requirements
Reason for Control: CC
Control(s)
CC applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
CC Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
The list of items controlled is contained in
the ECCN heading.
58. In Supplement No. 1 to part 774,
Category 2, revise ECCN 2B004 to read
as follows:
CC applies to ‘‘technology’’ for items controlled by 0A982 or 0A503. A license is required for ALL destinations, except Canada, regardless of end use. Accordingly, a
column specific to this control does not appear on the Commerce Country Chart.
(See part 742 of the EAR for additional information.)
19:01 Jan 22, 2020
1A984 Chemical agents, including tear gas
formulation containing 1 percent or less
of orthochlorobenzalmalononitrile (CS),
or 1 percent or less of
chloroacetophenone (CN), except in
individual containers with a net weight
of 20 grams or less; liquid pepper except
when packaged in individual containers
with a net weight of 3 ounces (85.05
grams) or less; smoke bombs; nonirritant smoke flares, canisters, grenades
and charges; and other pyrotechnic
articles (excluding shotgun shells, unless
the shotgun shells contain only chemical
irritants) having dual military and
commercial use, and ‘‘parts’’ and
‘‘components’’ ‘‘specially designed’’
therefor, n.e.s.
■
Control(s)
VerDate Sep<11>2014
56. In Supplement No. 1 to part 774,
Category 0, remove ECCNs 0E984 and
0E987.
■
Jkt 250001
2B004 Hot ‘‘isostatic presses’’ having all of
the characteristics described in the list
of items controlled, and ‘‘specially
designed’’ ‘‘components’’ and
‘‘accessories’’ therefor.
License Requirements
Reason for Control: NS, MT NP, AT
PO 00000
Frm 00052
Fmt 4701
Sfmt 4700
Control(s)
NS applies to entire
entry.
MT applies to entire
entry.
NP applies to entire
entry, except
2B004.b.3 and
presses with maximum working pressures below 69
MPa.
AT applies to entire
entry.
Country chart
(see Supp. No. 1 to
part 738)
NS Column 2
MT Column 1
NP Column 1
AT Column 1
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: (1) See ECCN 2D001 for
software for items controlled under this
entry. (2) See ECCNs 2E001
(‘‘development’’), 2E002 (‘‘production’’),
and 2E101 (‘‘use’’) for technology for items
controlled under this entry. (3) For
‘‘specially designed’’ dies, molds and
tooling, see ECCNs 0B501, 0B602, 0B606,
1B003, 9B004, and 9B009. (4) For
additional controls on dies, molds and
tooling, see ECCNs 1B101.d, 2B104, and
2B204. (5) Also see ECCNs 2B117 and
2B999.a.
Related Definitions: N/A
Items:
a. A controlled thermal environment
within the closed cavity and possessing a
chamber cavity with an inside diameter of
406 mm or more; and
b. Having any of the following:
b.1. A maximum working pressure
exceeding 207 MPa;
b.2. A controlled thermal environment
exceeding 1,773 K (1,500 °C); or
b.3. A facility for hydrocarbon
impregnation and removal of resultant
gaseous degradation products.
Technical Note: The inside chamber
dimension is that of the chamber in which
both the working temperature and the
working pressure are achieved and does not
include fixtures. That dimension will be the
smaller of either the inside diameter of the
pressure chamber or the inside diameter of
the insulated furnace chamber, depending on
which of the two chambers is located inside
the other.
59. In Supplement No. 1 to part 774,
Category 2, revise ECCN 2B018 to read
as follows:
■
2B018 Equipment on the Wassenaar
Arrangement Munitions List.
No commodities currently are controlled
by this entry. Commodities formerly
controlled by paragraphs .a through .d, .m,
and .s of this entry are controlled in ECCN
0B606. Commodities formerly controlled by
paragraphs .e through .l of this entry are
controlled by ECCN 0B602. Commodities
formerly controlled by paragraphs .o through
E:\FR\FM\23JAR2.SGM
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Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Rules and Regulations
.r of this entry are controlled by ECCN 0B501.
Commodities formerly controlled by
paragraph .n of this entry are controlled in
ECCN 0B501 if they are ‘‘specially designed’’
for the ‘‘production’’ of the items controlled
in ECCN 0A501.a through .x or USML
Category I and controlled in ECCN 0B602 if
they are of the kind exclusively designed for
use in the manufacture of items in ECCN
0A602 or USML Category II.
60. In Supplement No. 1 to part 774,
Category 2, revise ECCN 2D018 to read
as follows:
■
2D018 ‘‘Software’’ for the ‘‘development,’’
‘‘production,’’ or ‘‘use’’ of equipment
controlled by 2B018.
No software is currently controlled under
this entry. See ECCNs 0D501, 0D602, and
0D606 for software formerly controlled under
this entry.
61. In Supplement No. 1 to part 774,
Category 2, revise ECCN 2E001 to read
as follows:
■
2E001 ‘‘Technology’’ according to the
General Technology Note for the
‘‘development’’ of equipment or
‘‘software’’ controlled by 2A (except
2A983, 2A984, 2A991, or 2A994), 2B
(except 2B991, 2B993, 2B996, 2B997,
2B998, or 2B999), or 2D (except 2D983,
2D984, 2D991, 2D992, or 2D994).
License Requirements
Reason for Control: NS, MT, NP, CB, AT
jbell on DSKJLSW7X2PROD with RULES2
Control(s)
NS applies to ‘‘technology’’ for items
controlled by
2A001, 2B001 to
2B009, 2D001 or
2D002.
MT applies to ‘‘technology’’ for items
controlled by
2B004, 2B009,
2B104, 2B105,
2B109, 2B116,
2B117, 2B119 to
2B122, 2D001, or
2D101 for MT reasons.
NP applies to ‘‘technology’’ for items
controlled by
2A225, 2A226,
2B001, 2B004,
2B006, 2B007,
2B009, 2B104,
2B109, 2B116,
2B201, 2B204,
2B206, 2B207,
2B209, 2B225 to
2B233, 2D001,
2D002, 2D101,
2D201, or 2D202
for NP reasons.
VerDate Sep<11>2014
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
MT Column 1
NP Column 1
19:01 Jan 22, 2020
Country chart
(see Supp. No. 1 to
part 738)
Control(s)
NP applies to ‘‘technology’’ for items
controlled by
2A290, 2A291, or
2D290 for NP reasons.
CB applies to ‘‘technology’’ for equipment controlled by
2B350 to 2B352,
valves controlled by
2A226 having the
characteristics of
those controlled by
2B350.g, and software controlled by
2D351.
AT applies to entire
entry.
NP Column 2
CB Column 2
AT Column 1
Reporting Requirements
See § 743.1 of the EAR for reporting
requirements for exports under License
Exceptions, and Validated End-User
authorizations.
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
CIV: N/A
TSR: Yes, except N/A for MT
Special Conditions for STA
STA: License Exception STA may not be
used to ship or transmit ‘‘technology’’
according to the General Technology Note
for the ‘‘development’’ of ‘‘software’’
specified in the License Exception STA
paragraph in the License Exception section
of ECCN 2D001 or for the ‘‘development’’
of equipment as follows: ECCN 2B001
entire entry; or ‘‘Numerically controlled’’
or manual machine tools as specified in
2B003 to any of the destinations listed in
Country Group A:6 (See Supplement No. 1
to part 740 of the EAR).
List of Items Controlled
Related Controls: See also 2E101, 2E201, and
2E301
Related Definitions: N/A
Items:
The list of items controlled is contained in
the ECCN heading.
Note 1 to 2E001: ECCN 2E001 includes
‘‘technology’’ for the integration of probe
systems into coordinate measurement
machines specified by 2B006.a.
62. In Supplement No. 1 to part 774,
Category 2, revise ECCN 2E002 to read
as follows:
■
2E002 ‘‘Technology’’ according to the
General Technology Note for the
‘‘production’’ of equipment controlled
by 2A (except 2A983, 2A984, 2A991, or
2A994), or 2B (except 2B991, 2B993,
2B996, 2B997, 2B998, or 2B999).
License Requirements
Reason for Control: NS, MT, NP, CB, AT
Jkt 250001
PO 00000
Frm 00053
Fmt 4701
Sfmt 4700
Country chart
(see Supp. No. 1 to
part 738)
Control(s)
NS applies to ‘‘technology’’ for equipment controlled by
2A001, 2B001 to
2B009.
MT applies to ‘‘technology’’ for equipment controlled by
2B004, 2B009,
2B104, 2B105,
2B109, 2B116,
2B117, or 2B119 to
2B122 for MT reasons.
NP applies to ‘‘technology’’ for equipment controlled by
2A225, 2A226,
2B001, 2B004,
2B006, 2B007,
2B009, 2B104,
2B109, 2B116,
2B201, 2B204,
2B206, 2B207,
2B209, 2B225 to
2B233 for NP reasons.
NP applies to ‘‘technology’’ for equipment controlled by
2A290 or 2A291 for
NP reasons.
CB applies to ‘‘technology’’ for equipment Controlled by
2B350 to 2B352
and for valves controlled by 2A226
having the characteristics of those
controlled by
2B350.g.
AT applies to entire
entry.
4187
NS Column 1
MT Column 1
NP Column 1
NP Column 2
CB Column 2
AT Column 1
Reporting Requirements
See § 743.1 of the EAR for reporting
requirements for exports under License
Exceptions, and Validated End-User
authorizations.
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
CIV: N/A
TSR: Yes, except N/A for MT
Special Conditions for STA
STA: License Exception STA may not be
used to ship or transmit ‘‘technology’’
according to the General Technology Note
for the ‘‘production’’ of equipment as
follows: ECCN 2B001 entire entry; or
‘‘Numerically controlled’’ or manual
machine tools as specified in 2B003 to any
of the destinations listed in Country Group
A:6 (See Supplement No. 1 to part 740 of
the EAR).
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
E:\FR\FM\23JAR2.SGM
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The list of items controlled is contained in
the ECCN heading.
63. In Supplement No. 1 to part 774,
Category 7, revise ECCN 7A611 to read
as follows:
■
7A611 Military fire control, laser, imaging,
and guidance equipment, as follows (see
List of Items Controlled).
License Requirements
Reason for Control: NS, MT, RS, AT, UN
Control(s)
jbell on DSKJLSW7X2PROD with RULES2
NS applies to entire
entry except
7A611.y.
MT applies to commodities in 7A611.a
that meet or exceed
the parameters in
7A103.b or .c.
RS applies to entire
entry except
7A611.y.
AT applies to entire
entry.
UN applies to entire
entry except
7A611.y.
VerDate Sep<11>2014
Country chart
(see Supp. No. 1 to
part 738)
NS Column 1
MT Column 1
RS Column 1
AT Column 1
See § 746.1(b) of the
EAR for UN controls
19:01 Jan 22, 2020
Jkt 250001
List Based License Exceptions (See Part 740
for a Description of All License Exceptions)
LVS: $1500
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception
STA (§ 740.20(c)(2) of the EAR) may not be
used for any item in 7A611.
List of Items Controlled
Related Controls: (1) Military fire control,
laser, imaging, and guidance equipment
that are enumerated in USML Category XII,
and technical data (including software)
directly related thereto, are subject to the
ITAR. (2) See Related Controls in ECCNs
0A504, 2A984, 6A002, 6A003, 6A004,
6A005, 6A007, 6A008, 6A107, 7A001,
7A002, 7A003, 7A005, 7A101, 7A102, and
7A103. (3) See ECCN 3A611 and USML
Category XI for controls on countermeasure
equipment. (4) See ECCN 0A919 for
foreign-made ‘‘military commodities’’ that
incorporate more than a de minimis
amount of U.S. origin ‘‘600 series’’
controlled content.
Related Definitions: N/A
Items:
a. Guidance or navigation systems, not
elsewhere specified on the USML, that are
‘‘specially designed’’ for a defense article on
the USML or for a 600 series item.
PO 00000
Frm 00054
Fmt 4701
Sfmt 9990
b. to w. [RESERVED]
x. ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories,’’
and ‘‘attachments,’’ including
accelerometers, gyros, angular rate sensors,
gravity meters (gravimeters), and inertial
measurement units (IMUs), that are
‘‘specially designed’’ for defense articles
controlled by USML Category XII or items
controlled by 7A611, and that are NOT:
1. Enumerated or controlled in the USML
or elsewhere within ECCN 7A611;
2. Described in ECCNs 6A007, 6A107,
7A001, 7A002, 7A003, 7A101, 7A102, or
7A103; or
3. Elsewhere specified in ECCN 7A611.y or
3A611.y.
y. Specific ‘‘parts,’’ ‘‘components,’’
‘‘accessories,’’ and ‘‘attachments’’ ‘‘specially
designed’’ for a commodity subject to control
in this ECCN or a defense article in Category
XII and not elsewhere specified on the USML
or in the CCL, as follows, and ‘‘parts,’’
‘‘components,’’ ‘‘accessories,’’ and
‘‘attachments’’ ‘‘specially designed’’ therefor:
y.1 [RESERVED]
Dated: January 10, 2020.
Richard E. Ashooh,
Assistant Secretary for Export
Administration.
[FR Doc. 2020–00573 Filed 1–17–20; 11:15 am]
BILLING CODE 3510–33–P
E:\FR\FM\23JAR2.SGM
23JAR2
Agencies
[Federal Register Volume 85, Number 15 (Thursday, January 23, 2020)]
[Rules and Regulations]
[Pages 4136-4188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00573]
[[Page 4135]]
Vol. 85
Thursday,
No. 15
January 23, 2020
Part IV
Department of Commerce
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Bureau of Industry and Security
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15 CFR Parts 732, 734, 736, et al.
Control of Firearms, Guns, Ammunition and Related Articles the
President Determines No Longer Warrant Control Under the United States
Munitions List (USML); Final Rule
Federal Register / Vol. 85 , No. 15 / Thursday, January 23, 2020 /
Rules and Regulations
[[Page 4136]]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 732, 734, 736, 740, 742, 743, 744, 746, 748, 758, 762,
772, and 774
[Docket No. 191107-0079]
RIN 0694-AF47
Control of Firearms, Guns, Ammunition and Related Articles the
President Determines No Longer Warrant Control Under the United States
Munitions List (USML)
AGENCY: Bureau of Industry and Security, Department of Commerce.
ACTION: Final rule.
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SUMMARY: On May 24, 2018, the Department of Commerce published a
proposed rule in conjunction with a Department of State proposed rule
to revise Categories I (firearms, close assault weapons and combat
shotguns), II (guns and armaments), and III (ammunition/ordnance) of
the USML and transfer items that no longer warrant control on the USML
to the Commerce Control List (CCL). This final rule responds to and
adopts changes based on the comments received on the Commerce proposed
rule and is being published simultaneously with a final rule by the
Department of State that will revise Categories I, II, and III of the
USML to describe more precisely the articles warranting continued
control on that list. These revisions complete the initial review of
the USML that the Department of State began in 2011 and the conforming
changes made to the EAR to control these items not warranting control
under the International Traffic in Arms Regulations (ITAR).
DATES: This rule is effective March 9, 2020.
FOR FURTHER INFORMATION CONTACT: Steven Clagett, Office of
Nonproliferation Controls and Treaty Compliance, Nuclear and Missile
Technology Controls Division, tel. (202) 482-1641 or email
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On May 24, 2018, the Department of Commerce (referred to henceforth
as ``the Department'') published the proposed rule, Control of
Firearms, Guns, Ammunition and Related Articles the President
Determines No Longer Warrant Control Under the United States Munitions
List (USML) (83 FR 24166) (referred to henceforth as the ``Commerce May
24 rule'') in conjunction with a Department of State proposed rule to
revise Categories I, II, and III of the USML (referred to henceforth as
the ``State May 24 rule''). The Department of Commerce is issuing this
final rule that describes how articles the President determines no
longer warrant control under USML Category I--Firearms, Close Assault
Weapons and Combat Shotguns; Category II--Guns and Armament; and
Category III--Ammunition/Ordnance will be controlled on the CCL of the
Export Administration Regulations (EAR) and is being published in
conjunction with a final rule on Categories I, II, and III from the
Department of State, Directorate of Defense Trade Controls (DDTC),
completing the initial review of the USML that began in 2011 and making
conforming changes to the EAR to control these items on the Commerce
Control List (CCL).
The changes described in this final rule and in the State
Department's companion final rule on Categories I, II, and III of the
USML are based on a thorough interagency review of those categories,
after which the Department of State concluded that the items added to
the CCL in this final rule do not provide a critical military or
intelligence advantage to the United States and, in the case of
firearms, do not have an inherently military function. The Departments
of Defense, State, and Commerce have, therefore, determined that the
EAR is the appropriate source of authority to control these firearms,
ammunition, and other articles previously controlled under Categories
I-III of the USML. There is a significant worldwide market for items in
connection with civil and recreational activities such as hunting,
marksmanship, competitive shooting, and other non-military activities.
This final rule does not deregulate the transferred items. BIS will
require authorization to export or reexport to any country a firearm or
other weapon that is being moved from the USML to the CCL by this final
rule, including releases of related technology and software to foreign
persons in the United States. Rather than decontrolling firearms and
other items, in publishing this final rule, BIS, working with the
Departments of Defense and State, is continuing to ensure that
appropriate regulatory oversight will be exercised over exports,
reexports, and transfers (in- country) of these items while reducing
the procedural burdens and costs of export compliance on the U.S.
firearms industry and allowing the U.S. Government to make better use
of its export control resources.
Certain software and technology capable of producing firearms when
posted on the internet under specified circumstances is being
controlled under this final rule in order to protect important U.S.
national security and foreign policy interests; however, communication
of ideas regarding such software or technology is freely permitted.
Moreover, nothing in this final rule prohibits U.S. persons within the
United States from acquiring firearms of any type--there are other laws
and regulations that control the acquisition of firearms in the U.S.
Structure of 600 Series
BIS has created Export Control Classification Numbers (ECCNs),
referred to as the ``600 series,'' to control items that will be
removed from the USML and controlled under the CCL, or 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.
These ECCNs are referred to as the ``600 series'' because the third
character in each of the new ECCNs is ``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. 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. Category II of the USML and
category ML2 of the WAML cover large caliber guns and other military
weapons such as: Howitzers, cannon, mortars, anti-tank weapons,
projectile launchers, military flame throwers, and recoilless rifles.
Items that are currently controlled in Category II of the USML will
be controlled on the CCL under four new ``600 series'' ECCNs. Placement
of the items currently in USML Category II into the CCL's 600 series is
consistent with existing BIS practice of using 600 series ECCNs to
control items of a military nature.
Items currently controlled in Categories I and III of the USML will
be controlled in new ECCNs in which the third character is a ``5.''
These items are not appropriate for 600 series control because, for the
most part, they have
[[Page 4137]]
civil, recreational, law enforcement, or other non-military
applications. As with 600 series ECCNs, the first character represents
the CCL category, the second character represents the product group,
and the final two characters represent the WAML category that covers
items that are the same or similar to items in the ECCN.
Relation to USMIL
Pursuant to section 38(a)(1) of the Arms Export Control Act (AECA),
all defense articles controlled for export or import, or that are
subject to brokering controls, are part of the USML under the AECA. All
references to the USML in this final rule are to the list of defense
articles that are controlled for purposes of export, temporary import,
or brokering pursuant to the ITAR, 22 CFR parts 120 through 130, and
not to the list of AECA defense articles on the United States Munitions
Import List (USMIL) that are controlled by the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) for purposes of permanent import
under its regulations at 27 CFR part 447. All defense articles
described in the USMIL or the USML are subject to the brokering
controls administered by the U.S. Department of State in part 129 of
the ITAR. The transfer of defense articles from the ITAR's USML to the
EAR's CCL for purposes of export controls does not affect the list of
defense articles controlled on the USMIL under section 38 of the AECA,
22 U.S.C. 2778, for purposes of permanent import or brokering controls.
Overview
For the Commerce May 24 rule, BIS received nearly 3,000 comments
and posted 1,540 unique comments and 135 bulk comments, which were
representative of issues raised by 1,256 commenters. BIS appreciates
the constructive comments it received to improve the Commerce May 24
rule and incorporated changes where appropriate. BIS also received many
comments that were outside the scope of the Commerce May 24 rule and
thus that are not addressed here. The Commerce May 24 rule and this
final rule address U.S. export controls. BIS does not regulate the
domestic sale or use of firearms in the United States, or the transfer
of firearms or related software or technology between U.S. persons
within the United States.
BIS reviews the comments it received in the preamble to this final
rule in three parts. First, BIS describes the comments of general
applicability. Then, it describes the comments received on specific
proposed provisions included in the Commerce May 24 rule. Finally, this
final rule describes the changes being adopted from the proposed rule
and revisions being made to what was proposed in the Commerce May 24
rule. As this final rule is being published in conjunction with the
companion Department of State rule, the preamble may also reference the
State Department's analysis related to these changes.
Comments of General Applicability
USML Review Criteria
Comment 1: Multiple commenters took issue with the proposed
transfer from the USML to the CCL of weapons that the Department of
State determined, in conjunction with its interagency partners
(including BIS), are not inherently for military end use, citing the
fact that military and law enforcement personnel regularly use them.
Many commenters asserted that being commercially available is not a
good indicator of whether these weapons merit the oversight of the
Department of State. In addition, several commenters disputed that the
U.S. market should be the basis for assessing the commercial
availability of firearms, as this is not the market to which the
proposed rule would be directed. Many commenters also asserted that
semi-automatic weapons should not be seen as just another product to be
promoted, bought, and sold like washing machines or any other consumer
product. Commenters supportive of the rule, however, agreed that export
controls of commercial firearms and ammunition which are not inherently
military, have no critical military or intelligence advantage, and have
predominant commercial applications correctly belong under the EAR.
BIS response: The fact that a military uses a specific piece of
hardware is not a dispositive factor when determining whether it has an
inherently military function. Given that the majority of the items
referenced in these comments that will transfer to the CCL through this
final rule are widely available in retail outlets in the United States
and abroad, and widely utilized by the general public in the United
States, it is reasonable for the Department of State to determine that
they do not serve an inherently military function, absent specific
characteristics that provide military users with significantly enhanced
utility, such as automatic weapons, sound suppressors, and high
capacity magazines.
With respect to revisions of Categories I-III, the review was
focused on identifying the defense articles that are now controlled on
the USML that are either (i) inherently military and otherwise warrant
control on the USML or (ii) if of a type common to non-military
firearms applications, possess parameters or characteristics that
provide a critical military or intelligence advantage to the United
States. If a defense article satisfies one or both of those criteria,
it remained on the USML. For example, while the U.S. military supplies
some of its service members with sidearms for military use, a sidearm
also has many uses outside of the military, such that its function is
not inherently military and therefore a sidearm does not warrant
control on the USML. Alternatively, squad automatic weapons do not
generally have such non-military uses and will remain controlled on the
USML. Any single non-military use, however, does not negate such a
weapon's inherently military function.
BIS notes that the scope of items ``subject to the EAR,'' includes
basic commercial items, dual-use items, and military items not
warranting ITAR control. The EAR control structure is well-suited to
control this range of items, and BIS has particular historical
expertise in controlling dual-use items. The Departments of State and
Commerce also recognize that there are variations in commercial
availability of firearms, but these variations do not overcome the
Department of State's assessment that the subject firearms do not
provide a critical military or intelligence advantage such that they
warrant control under the ITAR. In addition, all exports of firearms
are subject to the laws of the importing country, and the U.S.
Government does not issue licenses for exporters to ship firearms to
countries where the end use is illegal.
Comment 2: Many commenters asserted that many semi-automatic rifles
are easily converted to fully automatic firearms and for this reason
semi-automatic firearms and the parts and components needed to do this
should be retained on the USML.
BIS response: BIS agrees that certain components may be used to
convert a semi-automatic firearm into a fully automatic firearm. A
fully automatic weapon is subject to the ITAR. The component(s) needed
to turn a semi-automatic into a fully automatic are also retained on
the USML. Therefore, the export of the component needed to turn the
semi-automatic into a fully automatic would require an ITAR license or
other approval. In addition, if the ITAR component was incorporated
into the semi-automatic firearm, the now automatic weapon would be
[[Page 4138]]
regulated by the ITAR as an automatic weapon and because of the
inclusion of the ITAR component within the firearm. To address exports
of semi-automatic firearms intended to be made automatic with a
foreign-origin component that was not subject to the ITAR, BIS as a
result of this comment has revised Sec. 740.2 in this final rule to
restrict the use of EAR license exceptions involving these components
or parts, as described below in the regulatory changes made in this
final rule.
Commerce's Mission and the Regulation of Firearms
Comment 3: Many commenters expressed concerns about the role and
function of BIS regarding the items that are transferred from the USML
to the CCL. Some commenters expressed concerns that BIS has neither the
appropriate resources nor the appropriate expertise or mission to
process associated applications for exports of firearms. Several
commenters asserted BIS is not set up for the proper vetting of those
parties in export transactions to ensure that they are not acting as
middlemen for terrorists or other subversive entities that will use
them against our troops or our allies or, even worse, civilian
populations. Several other commenters asserted that BIS's enforcement
office, with no staff in Latin America, Africa, or many other parts of
the world, is not equipped to take the same level of preventive
measures for end-use controls. Many commenters asserted that the
transfer of these firearms to Commerce control is inconsistent with the
statutory framework enacted by Congress to regulate the export of arms.
BIS response: The mission of BIS is to advance U.S. national
security, foreign policy, and economic objectives by ensuring an
effective export control and treaty compliance system and promoting
continued U.S. strategic technology leadership. BIS controls many items
on the CCL that implement U.S. commitments to the Wassenaar Arrangement
and other multilateral regimes related to national security. These
controls are supplemented by U.S. controls on additional items as well
as broad catch-all controls targeting end uses and end users of
concern.
BIS licenses are subject to an interagency review process that
includes review by the Departments of State, Defense, and Energy, which
allows BIS to supplement its technical expertise with that of its
interagency partners on matters of national security, foreign policy,
regional stability, and national defense. The interagency review
process for Commerce licenses is specified in Executive Order 12981 and
in part 750 of the EAR. The well-established and transparent
interagency review process (including specifying the timelines for each
step of the review process) ensures that a variety of perspectives and
expertise from these U.S. Government agencies are able to inform the
Commerce license review process to ensure only those exports that are
consistent with U.S. export control interests will be approved. BIS
also emphasizes that it has flexibility in how it approves licenses and
can include additional safeguards as may be warranted. The interagency
review process also helps to inform how licenses are approved.
BIS has decades of experience licensing firearms and related items
that has prepared it well for licensing these additional firearms and
related items that this final rule moves to the CCL. BIS is also
prepared because of its experiences with licensing other items that
have moved from the USML to the CCL, including such sensitive items as
components ``specially designed'' for use in military aircraft, and
certain ``spacecraft,'' including satellites, and space vehicles. In
addition, BIS estimates that existing staff will be able to manage the
anticipated increased workload of approximately 6,000 additional
license applications.
In addition to its experience in the licensing arena, BIS has
substantial law enforcement experience. BIS's Export Enforcement (EE)
is a dedicated law enforcement organization recognized for its
expertise, professionalism, integrity, and accomplishments. EE
accomplishes its mission through preventive and investigative
enforcement activities and then, pursuing appropriate criminal and
administrative sanctions against export violators. EE works with the
Department of Justice to impose criminal sanctions for violations,
including incarceration and fines, and with the Office of Chief Counsel
for Industry and Security to impose civil fines and denials of export
privileges. EE also works closely with other federal law enforcement
agencies, including the Federal Bureau of Investigation and the
Department of Homeland Security, when conducting investigations or
preventative actions.
EE has Export Control Officers (ECOs) in offices that cover
different regions of the world and are not limited to the specific
country in which the EE personnel are located. The ECOs are
supplemented by other personnel who engage in enforcement-related
activities. For example, BIS regularly sends BIS enforcement agents on
temporary duty assignments overseas under the Sentinel Program where
they go to areas not easily covered by existing ECOs. BIS also works
with certain foreign governments on enforcement as well as
transshipment issues. In conducting pre-license checks or post shipment
verifications, BIS also uses the resources the Department has with
various Foreign Commercial Service (FCS) officers that are located at
embassies and consulates around the world. Upon BIS's request,
Department of State Foreign Service Officers at embassies and
consulates often assist BIS with pre-license checks when the FCS is not
present.
BIS has resources it and the other agencies use to identify parties
of concern to transactions, not all of which are public. The
information BIS and other agencies use to vet licenses and transactions
is not static and is being continuously improved to better target and
exclude entities or individuals that should not be receiving items
subject to the EAR.
BIS also notes that this final rule imposes a requirement to file
Electronic Export Information (EEI) in Automated Export System (AES)
for nearly all exports of firearms being moved to the CCL. The EAR
includes robust recordkeeping requirements that have been enhanced
further for the firearms being moved to the CCL. BIS can and does on a
regular basis contact parties to a transaction to request all records
related to a particular export or reexport or series of exports or
reexports. These record requests may also involve in-person visits from
representatives of EE.
BIS does not agree that the controls will be inconsistent with the
statutory framework enacted by Congress to regulate the export of
firearms. The firearms that warrant ITAR control will continue to be
subject to the AECA and its requirements as applicable. The firearms
not warranting ITAR control that this final rule will control under the
EAR will be subject to the Export Control Reform Act of 2018 (ECRA) (50
U.S.C. 4801-4852). For example, BIS has regulated long barrel shotguns
(a type of firearm) under the statutory framework enacted by Congress
in the earlier Export Administration Act (EAA) and now under ECRA. The
same will be true for the firearms that this final rule adds to the
CCL. Congress stated that one of the purposes of ECRA is ``[t]o control
the release of items for use in--(i) the proliferation of . . .
conventional weapons; (ii) the acquisition of destabilizing numbers or
types of conventional weapons; (iii) acts of terrorism . . .'' 50
U.S.C. 4811(2)(A).
Comment 4: One commenter asserted that BIS does not have resources
to enforce export controls, even before the
[[Page 4139]]
addition of 30,000 firearms export licenses as a result of this rule
predicted by the Commerce May 24 rule.
BIS response: BIS clarifies here that the reference to 30,000
licenses in the Commerce May 24 rule represented the increase as a
result of the total USML to CCL review process, not solely the USML
Categories I-III items. The estimate of 10,000 licenses is the number
of anticipated State licenses that will be impacted by the transfer to
Commerce in the Commerce May 24 rule. The larger 30,000 number was
included for context for the overall USML to CCL review process and its
implementation. As noted in the response to Comment 3 above, BIS
estimates the transfer resulting in approximately 6,000 license
applications. BIS has invested considerable effort in assessing the
increased licensing and enforcement responsibilities that will be
incurred following publication of this final rule and has determined
that it is within its means and resources to effectively administer the
subject export controls.
The Effect of the Shift in Regulatory Jurisdiction of Certain Firearms
Comment 5: Several commenters asserted that reducing regulations on
firearms and ammunition is dangerous. One commenter asserted that
moving firearms to the CCL where they would be subject to loosened
controls seems inconsistent with enhancing national security. Another
commenter asserted that as even the National Rifle Association (NRA)
has acknowledged, ``items on the USML controlled under ITAR are
generally treated more strictly, whereas regulation under the CCL is
more flexible.'' Many commenters asserted that the proposal weakens
controls over semi-automatic assault weapons including AR-15s and AK-
47s, 50 caliber sniper rifles, and high-capacity ammunition magazines.
BIS response: The EAR control structure is more flexible and will
reduce the burden on the regulated, but the items will still be
controlled. For example, the EAR is a more flexible control structure
because it does not require a purchase order for a license. This is
more efficient and flexible than the ITAR but does not undermine U.S.
national security. The applicant still needs to specify the parties to
the license, end use, and items to be authorized, but not having to
present a purchase order allows a more flexible licensing arrangement.
The ability under the EAR to create country-based license exceptions,
e.g., License Exception Strategic Trade Authorization (STA), is another
example. License Exception STA will only be available for the .x parts
and components under 0A501, but this is another example of the more
flexible EAR control structure. In other words, greater flexibility
under the EAR does not mean decontrol.
Further, having the ITAR control items that are in commercial use
and do not have an inherent military function does not help promote
U.S. national security, because it takes time and resources away from
the Department of State that could be better used to focus on items
that do warrant ITAR control. BIS has decades of experience in
regulating dual-use items, including long barreled shotguns controlled
under 0A984 and certain chemicals and toxins that have commercial
applications, but are controlled for chemical and biological weapons
reasons, e.g., ricin and sarin gas. See, e.g., 50 U.S.C. 4811(2)(A)(i)
(stating that one of the policies of ECRA is to control the
proliferation of weapons of mass destruction). BIS also has a proven
track record for licensing and enforcing the controls for other items
that have moved from USML to the CCL.
BIS further clarifies that the AK-47 automatic firearm and any
other automatic firearm are retained on the USML. The semi-automatic
firearms this rule adds to the CCL will require a U.S. Government
authorization for export.
Comment 6: One commenter noted that according to the State May 24
rule, ``The Department of Commerce estimates that 4,000 of the 10,000
licenses that were required by the [State] Department will be eligible
for license exceptions or otherwise not require a separate license
under the EAR.'' The commenter noted that the Commerce May 24 rule
clarifies, ``The other 4,000 applicants may use license exceptions
under the EAR or the ``no license required'' designation, so these
applicants would not be required to submit license applications under
the EAR.'' The commenter asserted that ``while it recognizes that other
forms of oversight may be available, this dramatic difference in the
number of licenses raises our concern.''
BIS response: This comment on the meaning of the 4,000 Department
of State licenses that will not require a license under the EAR creates
a good opportunity for BIS to clarify how the EAR controls are
structured. Under the EAR, an exporter does not have a right to export.
If the EAR does not impose a license requirement or some other
prohibition, the exporter may proceed under the No License Required
(NLR) designation. The NLR designation may be available for certain
0x5zz.y exports, but otherwise all other exports will require a U.S.
Government authorization. Therefore, the reference to 6,000 being
authorized under licenses and 4,000 under license exceptions and a
small subset as NLR, is not a dramatic change. When BIS imposes a
license requirement under the EAR, this means the exporter will need to
meet all of the applicable requirements of a license exception, or
obtain a license from BIS to proceed with the export. The license
exceptions or portions of license exceptions that will be available for
these items moved to the CCL, including some of the new requirements
and limitations added, will be sufficient to protect U.S. export
control interests.
3D Printing of Firearms
Comment 7: Three-dimensional (3D) printing is a type of additive
manufacturing based on the principle of combining numerous, extremely
thin layers of a physical material (including plastics, metals, and
even living cells) in a controlled build process and joining them to
gradually build up a physical, three-dimensional object. Computer
controlled manufacturing may be either subtractive or additive.
Subtractive manufacturing includes traditional manufacturing methods
such as turning, grinding or milling, where metal or other material is
removed from the base shape to form the final product. For example, you
take a steel block and remove material until it becomes the final item.
In additive manufacturing, which is often referred to as 3D printing,
material such as metal or plastic is laid down in very thin layers one
upon the other fusing together until the final net shape is achieved.
In both instances, the adding or removing of the material is controlled
by a computer without human intervention. 3D printers utilize
electronic digital files to process the materials into a physical
object, and these files can be distributed over the internet. A 3D
printer or computer numerically-controlled (CNC) equipment uses
Computer Aided Manufacturing (CAM) files in G-code or AMF format as
executable code to produce certain items. There are currently
technological limitations for the effectiveness of 3D printing of
firearms, but the concept has been demonstrated and the ability to
manufacture commercially viable firearms is inevitable given the
increasing improvements of 3D printing equipment and 3D printing
materials. Congress directed that the export control system under ECRA
is intended to have ``the flexibility to be adapted to address new
threats in the future,'' and this final rule implements that
instruction. 50 U.S.C. 4811(8).
[[Page 4140]]
Technology and software are required for 3D printing of firearms
and are critical for the 3D printing manufacturing process. Publicly
posting such technology and software online without restriction creates
the risk that foreign persons and countries, including countries of
concern, will be able to obtain technology and software for 3D printing
of firearms. In the absence of controls on the export, reexport, or in-
country transfer of such technology and software, such items could be
easily used in the proliferation of conventional weapons, the
acquisition of destabilizing numbers of such weapons, or for acts of
terrorism. As noted earlier, Congress expressly directed that ECRA
should be used to address these risks. 50 U.S.C. 4811(2)(A).
Like 3D printing, CNC milling or machining is an automated
manufacturing process controlled by technology and software. CNC
milling/turning/grinding are all subtractive manufacturing processes in
which the computerized equipment removes layers of material from a
base--known as the workpiece or the blank--to produce a manufactured
part or item. As with 3D printing, the posting online of CNC technology
and software needed to create working firearms creates export control
concerns.
Under the ITAR, the unrestricted public dissemination of technical
data (as defined in section 120.10 of the ITAR) in a manner that allows
access by foreign persons--including through the internet--is an export
requiring appropriate authorization. For purposes of the CCL, Commerce
has historically taken the approach (with limited exceptions) that
material is not subject to export control if it has been ``published''
within the meaning of 15 CFR 734.7, including through posting on the
internet. The proposed rules published by the Departments of State and
Commerce took these differences in the ITAR and EAR control structures
into account, and the Commerce proposed rule acknowledged these
differences to ensure commenters had an opportunity to fully take these
differences into account when submitting their comments on the Commerce
rule. See page 24167 of the Commerce May 24 rule and 15 CFR 734.7.
Comments on the Commerce proposed rule reflected the commenters'
understanding of these differences between the ITAR and EAR control
structures. BIS received many comments expressing concerns about 3D
printing of firearms and whether appropriate controls would be in place
under the EAR. It also received a small number of commenters that
supported the part 734 criteria. The commenters critical of the part
734 criteria provided the following input:
(1) Part 734 criteria should be changed to regulate 3D printing,
even if the information would otherwise be publicly available. These
commenters were concerned that the application of the part 734 criteria
appears to give rise to the possibility of widespread and openly
sanctioned circulation of open source, non-proprietary instructions for
using computer-aided design (CAD) files to produce operable firearms
via 3D-printing technology, or text files to produce such firearms via
CNC milling of the firearms. Commenters requested BIS to weigh the fact
that the part 734 criteria would make posting on the internet of ECCN
0E501 technology (e.g., 3D printer specs) for the production of an ECCN
0A501 firearm publicly available information that is no longer subject
to the EAR.
(2) Allowing 3D-printed gun technology and software to be posted
freely online for use with 3D printers will make it easier to obtain
firearms in the U.S. and abroad. These commenters were concerned that
the combination of internet dissemination and do-it-yourself 3D
production is problematic because the government would have no
oversight of the producer, the end use or the end user of the firearm.
Other commenters in this area were greatly concerned about the
perceived loss of controls on 3D gun-printing plans, which these
commenters asserted has increasingly assisted bad actors in enhancing
their capabilities to inflict atrocities around the world. Several
commenters cited Defense Distributed v. Department of State, a lawsuit
filed in the U.S. District Court for the Western District of Texas and
appealed to the U.S. Court of Appeals for the Fifth Circuit,, in
support of the State Department's decision to restrict the 3D printing
of firearms under the ITAR (i.e., requiring appropriate authorization
under the ITAR prior to allowing unrestricted posting on the internet).
(3) Unregulated 3D printing would undermine U.S. efforts, as well
as governments overseas, to vet parties obtaining firearms, and to
track 3D printed firearms. These commenters noted that with access to
3D printing machines and plans on how to build a gun, anyone could
circumvent U.S. laws that seek to prevent known criminals from
obtaining U.S. firearms. Other commenters in this area were
particularly concerned that these changes would result in an increase
in the number of untraceable firearms in circulation because as 3D
printing technology becomes more widely available, the likelihood that
it may be used to construct operable firearms that are exempt from
serialization requirements would increase.
(4) The transfer of control of these items to the CCL would
undermine longstanding U.S. efforts to counter proliferation of small
arms in the world. Commenters in this area noted that they couldn't
understand how allowing untraceable 3D printing of firearms would serve
U.S.-recognized goals to combat illicit trafficking of firearms.
Commenters in this area also noted that the United States is the
world's largest donor, as the commenter understands it, to helping
countries build their ability to trace weapons, secure weapons
stockpiles, and to destroy those stocks when warranted. However,
according to the commenter, this transfer of authority to Commerce
appears to open the door to unfettered 3D printing of firearms, which
threatens to undermine nearly all those efforts.
One commenter asserted that the proposed changes may result in
increased circulation of plans for non-automatic weapons produced by 3D
printing technology, and this may be at odds with the Wassenaar
Arrangement.
A small number of commenters supported the application of the
criteria in part 734 and emphasized that the information is so widely
available in various formats that trying to control it would not be
practical or warranted. One commenter noted that America boasts
hundreds of millions of privately-owned firearms and has produced
countless books, magazine articles, videos, websites, and online forums
that exhaustively detail firearm technology and use. Thus, this
commenter asserted it is difficult to imagine any information about the
design, development, production, manufacturing, and use of firearms
that is not already within the public domain and this same information
is commonly available overseas. Other commenters that supported the
part 734 criteria asserted that they had concerns generally over their
First Amendment rights being possibly violated unless the criteria in
part 734 applied equally to information posted online. These commenters
requested an end to any harassing or censorship of firearm instructors
within the U.S., as well as bloggers, writers, and those posting online
guides or tutorials discussing technology about defense items because
these activities seem to be a clear violation of the First Amendment
right to free speech. Given the foreign policy and national security
interests at stake, Commerce believes that the restrictions imposed by
this rule
[[Page 4141]]
are appropriately tailored. Commerce is also aware of, and has taken
into account, the constitutional and statutory concerns raised by the
plaintiffs in the Defense Distributed case and by the plaintiffs in
Washington v. Dep't of State, No. 2:18-cv-01115-RSL (W.D. Wash.).
Commerce also notes that it has received correspondence from members of
Congress concerning the issues raised in Defense Distributed.
BIS response: The Commerce May 24 proposed rule addressed the
application of part 734, including Sec. 734.7, for items (specifically
for certain information and software) proposed for transfer from USML
Categories I-III (see 83 FR 24167). These criteria support the free
exchange of public information and, as a general matter, do not warrant
being changed. However, the concerns commenters raised about the
specific application of part 734 criteria to 3D printing of firearms
suggests that modification to the proposed controls is warranted.
With the transfer of certain firearms from the USML to the CCL,
rifles, pistols, revolvers and related parts and components will fall
within ECCN 0A501, and BIS will be responsible for their licensing.
This transfer adds to Commerce's existing licensing jurisdiction over
most shotguns and shotgun shells as well as optical sighting devices.
The items that remain on the ITAR include fully automatic and selective
fire weapons, weapons for caseless ammunitions, silencers and certain
high capacity (50 rounds or greater) magazines, and certain military-
specific ammunition such as tracers.
BIS recognizes that several commenters, including a large number of
private citizens, expressed concern over global access to 3D printing
technology and software with the transfer of certain firearms to the
CCL. BIS also recognizes that several commenters and plaintiffs in
Washington v. Dep't of State raised concerns about risks to public
safety related to domestic access to 3D printing technology and
software. BIS shares the concerns raised over the possibility of
widespread and unchecked availability of the software and technology
internationally, the lack of government visibility into production and
use, and the potential damage to U.S. counter proliferation efforts. In
this final rule, BIS addresses the concerns raised about 3D printing of
firearms by making certain technology and software capable of producing
firearms subject to the EAR when posted on the internet under specified
circumstances. This control will help ensure that U.S. national
security and foreign policy interests are not undermined by foreign
persons' access to firearms production technology. Although the
Department of State determined that such technology and software do not
warrant continued control under the USML, maintaining controls over
such exports under the EAR remains in the national security and foreign
policy interests of the United States, as described below. As noted in
other places in the Commerce final rule, the movement of items from the
USML is not a decontrol, and appropriate controls must be in place to
protect U.S. national security and foreign policy interests, such as by
maintaining Commerce licensing authority over certain technology and
software capable of producing firearms subject to the EAR when posted
on the internet under specified circumstances as described in this
final rule. And although the domestic transfer of commodities is
outside the purview of BIS jurisdiction, the concerns related to the
unrestricted posting of CAD files on the internet, more accurately
described in this final rule as CAM files, have been addressed in this
final rule and nothing in this final rule affects existing federal or
state laws that pertain to the manufacture, possession, use, or
commercial sale of firearms.
BIS provides more information about the specific changes below
under the Description of Regulatory Changes under the heading Revision
of ``Published.''
BIS does not agree with the commenter that stated that the part 734
criteria are at odds with the Wassenaar Arrangement. As described both
in the proposed rule and this final rule, part 734 remains consistent
with the Wassenaar Arrangement. BIS's changes in this final rule,
however, ultimately addressed this commenter's concern.
In response to commenters who favored the part 734 criteria as
outlined in the proposed rule, BIS notes that information regarding
firearms, including information for production of firearms, is often
widely available, and nothing described below would restrict persons
from publishing books or magazines, such as those that could be found
in a local public library, and that the changes made to part 734
described below are limited to addressing a specific fact pattern
(posting on the internet of certain types of files) that warrants U.S.
Government oversight to ensure unrestricted releases are not being made
to persons of concern outside the United States or to foreign persons
in the United States. BIS also took into account these commenters'
support for the part 734 criteria and their First Amendment concerns
but did not adopt the approach that they advocated. Given concerns
regarding First Amendment restrictions the control is appropriately
tailored to only impact technology and software in an electronic
format, such as AMF or G-code, that is ready for direct insertion into
a computer numerically controlled machine tool, additive manufacturing
equipment to produce the firearm frame or receiver or complete firearm.
This technology and software are functional in nature, having the
capability to cause a machine to use physical materials to produce a
firearm frame or receiver or complete firearm. Limitations on the
dissemination of such functional technology and software do not violate
the right to free expression under the First Amendment. Nor does the
final rule violate the right to keep and bear arms under the Second
Amendment. The rule does not prohibit U.S. persons within the United
States from acquiring firearms of any type; indeed, nothing in this
rule prohibits persons within the United States from developing,
discussing, or transferring by hand or mail (e.g., by the U.S. Postal
Service or a common carrier) CAM files related to 3D-printing
technology and software. The domestic transfer of commodities is
outside of the scope of BIS jurisdiction and would be within the
purview of domestic law. The release of controlled technology in the
United States would only be regulated to the extent it would constitute
a deemed export (i.e., release to a foreign person). This means
transfers between U.S. persons within the United States are not
regulated under the EAR so long as there is no release to a foreign
national. The ITAR takes a similar approach. BIS's approach in using
targeted changes is not intended to otherwise change the other criteria
in part 734 that these commenters assert they strongly support.
In response to the comments received on the proposed rule, BIS has
reflected on the need to take into account various interests in
regulating technology and software for the 3D printing of firearms. At
the time of the proposed rule, BIS believed that its existing framework
struck the appropriate approach in providing for national security and
foreign policy control of firearms that would transfer to the CCL.
Since that time, BIS has had considerable time to review the comments
related to 3D printing of firearms. Although the military usefulness of
3D printed firearms is not significant, there are other U.S. national
security and foreign policy interests, as described by commenters, in
regulating the unlimited
[[Page 4142]]
access to certain files for the 3D printing of firearms that the
framework of BIS regulations as described in the proposed rule did not
adequately address. As the State Department noted in the Defense
Distributed litigation, unrestricted export of such files abroad could
have a potential detrimental effect on aspects of U.S national security
and foreign policy, including by undercutting efforts to combat the
illicit trafficking of firearms or possession of firearms by hostile
parties or dangerous organizations, as well as other efforts to assist
other countries in protecting domestic and international security. BIS
believes this potential detrimental effect on U.S. national security
and foreign policy warrants the control of the export of certain files
for the 3D printing of firearms set forth in this rule.
At the same time, BIS recognizes that there is a longstanding
tradition to encourage the free exchange of ideas as already
acknowledged in BIS regulations, such as in 15 CFR 734.7. The agency
takes seriously its responsibility to regulate judiciously, seeking to
assert jurisdiction only as needed and consistent with its statutory
authority. As set forth in the Export Control Reform Act of 2018, 50
U.S.C. 4801-4852, Commerce's policy is to use export control only to
the extent necessary to restrict the export of items that would make a
``significant contribution to the military potential of another country
. . . which would prove detrimental to the national security of the
United States'' or ``further significantly the foreign policy of the
United States or to fulfill its declared international obligations.''
50 U.S.C. 4811(1)(A)-(B). Further, Commerce must ensure that its
controls are ``tailored to focus on those core technologies and other
items that are capable of being used to pose a serious national
security threat to the United States.'' 50 U.S.C. 4811(2)(G).
Because of the national security and foreign policy risks
associated with the unlimited access and unrestricted production of 3D
printed firearms, BIS is offering a tailored approach, consistent with
its statutory obligations, that places restriction on the posting on
the internet of files for the printing of certain firearms and their
critical elements. As set forth in Sec. 734.7(c) in this final rule,
only technology or software for the complete firearm, its frame, or its
receiver are subject to BIS licensing requirements, aligning BIS
controls with existing statutory concepts set forth in the definition
of ``firearm'' under the Gun Control Act (GCA), 18 U.S.C. 921(a)(3).
Recognizing that libraries and academic institutions within the United
States may already carry books or other materials related to firearms
manufacturing, BIS does not seek to regulate this existing landscape of
activity for the items transferred from the USML to CCL, consistent
with its treatment of firearms it controlled on the CCL prior to this
final rule. Instead, since the harm identified with unrestricted
dissemination has been tied to the easy and untraceable distribution in
electronic format that the internet provides, BIS has crafted its rule
to regulate dissemination in this space as it poses a significant risk
to U.S. national security and foreign policy.
As a result, Commerce has reached the conclusion that U.S. national
security and foreign policy necessitate that BIS maintain controls over
the 3D printing of firearms when such software and technology is posted
on the internet. The potential for the ease of access to the software
and technology, undetectable means of production, and potential to
inflict harm on U.S. persons and allies abroad present a grave concern
for the United States. Without regulatory oversight, U.S. foreign
relations and national security interests could be seriously
compromised. For these reasons, this final rule provides that
technology and software ready for insertion into an automated
manufacturing tool that makes use of the software or technology to
produce a firearm frame, receiver, or complete firearm is subject to
the EAR, consistent with the regulation of such software and technology
when previously controlled under the USML.
Vetting Transaction Parties and Monitoring Exports
Comment 8: Many commenters were concerned about a possible
reduction in the monitoring of the end users of exported firearms and
publicly available information about this monitoring. These commenters
asserted that public reporting of Blue Lantern information is mandatory
and there are readily available statistics about the results. Some
commenters requested that if the proposed rules move forward, the BIS
program be strengthened to address the need to monitor the end users of
exported firearms.
BIS response: BIS does not publish end-user monitoring information
in the same format as the Department of State, but the same type of
information is available publicly from BIS. The new ECRA maintains an
annual reporting requirement to Congress that provides an additional
layer of transparency. Specifically, under Section 1765(a)(6) of ECRA,
the Secretary of Commerce shall submit a report to Congress that
includes a summary of export enforcement actions, including of actions
taken to implement end-use monitoring of dual-use, military, and other
items subject to the EAR. BIS already has practices in place to
continuously evaluate its end-use monitoring program and to improve it
as opportunities to do so are identified. BIS intends to continue those
efforts for the firearms that are moved to the CCL with this final
rule.
Registration Requirement for Screening
Comment 9: Several commenters expressed concerns that BIS will not
have access to the same databases and background information that the
Department of State uses to evaluate license applications since the EAR
does not require registration. These commenters asserted that not
including a registration requirement will deprive regulators of an
important source of information and decrease transparency and reporting
regarding gun exports. Some commenters recommended removing or limiting
the registration fee for manufacturers but keeping the requirement for
registration. Another commenter suggested waiving the fee for
manufacturers who do not, in reality, export these items.
BIS response: BIS, along with the Department of State, considered
these concerns and determined that the interagency license review
process maintains appropriate oversight of the items at issue. BIS's
export licensing requirements and process are calibrated both to the
sensitivity of the item and the proposed destination. Additionally, all
requests for export licenses for firearms remain subject to interagency
review, including by the Department of State.
BIS does not need the information included in the ITAR registration
requirement to regulate those items under the EAR. To apply for a
license under the EAR, the applicant is required to create a free
account in BIS's online submission system called SNAP-R. The SNAP-R
account includes basic information about the exporter. In addition,
each party identified on the license application is reviewed. The
requirements to file EEI in AES is another important way that BIS
obtains information needed to effectively track exports.
BIS agrees that if there were a registration requirement, removing
or limiting the fee for registration would ease the burden on small
businesses and individuals. However, as noted above, BIS does not
believe that the information included in the registration requirements
is necessary for BIS to
[[Page 4143]]
effectively license and enforce the EAR. Therefore, registration
requirements, even if they are free, would impose an unnecessary burden
on individuals, small companies, and manufacturers.
Brokering
Comment 10: Many commenters asserted that the proposed changes to
USML Categories I-III would mean that brokers of semi-automatic weapons
and related ammunition will be exempt from registration and licensing
that is currently triggered by their inclusion as defense articles on
the USML. Other commenters correctly understood that State would
continue to impose brokering controls for items which moved to the CCL
that are also listed on the USMIL. One of these commenters asserted
that they are pleased to see that the State May 24 rule attempts to
maintain effective oversight of arms brokers by ensuring that brokers
must register with the Department of State and seek a license. This
commenter asserted that these provisions are critical in helping
mitigate illegal arms trafficking to major conflict zones and
transnational criminal organizations.
BIS response: BIS clarifies that the Department of State in its May
24 rule and its final rule retains brokering controls for items which
are now listed on the CCL that are also listed on USMIL. BIS directs
the public to review the State final rule for information on the
brokering controls under the ITAR. The Department of State in its
companion rule noted it does not intend to impose a double licensing
requirement for individuals undertaking activities on behalf of another
to facilitate a transaction that will require licensing by the
Department of Commerce. In practical terms, this means the vast
majority of exporters who only export firearms on the CCL directly from
the U.S. or reexport U.S.-origin firearms on the CCL are not
``brokers'' and will not have to register with DDTC.
Congressional Oversight
Comment 11: Multiple commenters expressed concerns that this final
rule would reduce congressional oversight of arms transfers because BIS
does not have to notify Congress of firearms sales in excess of $1
million, as the Department of State does. These commenters asserted
that: (1) Congress needs to be able to review these types of firearms
sales to ensure large risky exports do not proceed; (2) Congress has
played an important role in stopping several risky firearms sales
because of the congressional notification requirement (commenters
provided examples of sales from 2017 to Turkey and the Philippines that
they asserted were blocked by Congress); (3) congressional
notifications are a valuable tool for the public to be able to see when
large firearms sales are being proposed; and (4) certain members of
Congress have asserted their concern that not including a congressional
notification requirement under the EAR would be counter to
congressional intent.
BIS response: The Department of State in its companion rule also
acknowledges those concerns and notes that those firearms that the U.S.
Government deemed through the interagency review process to warrant
continued control under the ITAR as defense articles will remain
subject to congressional notification requirements in conformity with
section 36 of the AECA and Executive Order 13637. In this response, BIS
also puts the congressional notification issue into context under the
EAR and the statutes that the regulations implement for items ``subject
to the EAR.''
BIS notes that at the time of publication of the Commerce May 24
rule, the Export Administration Act (EAA) did not include a
congressional notification requirement for firearms, nor did any other
statute that the EAR implements for firearms. Therefore, BIS did not
include a congressional notification requirement because it did not
want to prejudge congressional intent in this area. On August 13, 2018,
the President signed the National Defense Authorization Act for Fiscal
Year 2018, which included ECRA. Congress did not include in ECRA any
requirements for congressional notification for firearms and related
items exports. Therefore, BIS is not including a congressional
notification requirement in the final rule.
Overseas Trafficking, Proliferation, and Diversion of Firearms
Comment 12: Multiple commenters expressed a general concern that
the transfer to the CCL increases the risk of overseas trafficking,
proliferation, or diversion. Multiple commenters also expressed
concerns about the BIS end-use monitoring (EUM) capabilities and the
impact the companion Department of State rule has on the Department of
State's EUM programs. Many commenters asserted that the decision to
relax controls on the export of firearms will make it easier for
terrorists to obtain the same dangerous firearms that have been used in
mass shootings in the United States. Many commenters also asserted that
these firearms are weapons of choice for criminal organizations,
narcotics traffickers, and gun traffickers, and making it easier for
them to get firearms will make their activities worse and further fuel
armed conflict abroad.
BIS response: This final rule does not deregulate the export of
firearms. All firearms and major components being transferred to the
CCL will continue to require a U.S. Government authorization. Further,
BIS has both a robust EUM program and a law enforcement division
sufficiently capable of monitoring foreign recipients' compliance with
their obligations regarding the transfer, use, and protection of items
on the CCL. Additionally, the Federal Bureau of Investigation and the
Department of Homeland Security will continue to investigate and
enforce civil and criminal violations of the export control laws as
appropriate.
BIS does not agree that moving these firearms to the CCL will mean
less oversight to prevent gun trafficking. Exporting these firearms
will require a U.S. Government authorization. The EAR also includes a
robust set of end-use and end-user controls that will supplement the
CCL based license requirements. Similar to the ITAR, BIS will impose
appropriate conditions as needed on authorizations or not approve
certain transactions if there is a concern over risk of diversion. BIS
also will maintain a robust end-use verification program for the
firearms and other items moved to the CCL from USML Categories I-III.
In addition, most firearms will require submission of a license, and
the license review policies would lead to a denial for exports to
terrorists. The EAR also includes sections in part 744, e.g., Sec.
744.14 for Foreign Terrorist Organizations (FTO), that impose
additional restrictive license requirements and license review policies
for terrorists identified under certain designations on the Department
of Treasury's Specially Designated Nationals (SDN) list. This is
significant because it excludes the use of any EAR license exceptions;
imposes a license requirement for all items subject to the EAR,
including the firearms being moved to the CCL; and acts as an
additional safeguard for transactions involving EAR items located
outside the U.S. that the Department of Treasury controls are not able
to reach.
BIS included provisions in the Commerce May 24 rule and in this
final rule to address this issue by including a presumption of denial
license review policy under the regional stability reason for control
for these types of end users. Specifically, in this final rule, the
license review policy in Sec. 742.6(b)(1)(ii)
[[Page 4144]]
is a policy of denial when there is reason to believe the transaction
involves criminal organizations, rebel groups, street gangs, or other
similar groups or individuals, that may be disruptive to regional
stability, including within individual countries.
Comment 13: One commenter, a human rights organization, asserted
that ``it has for many years called attention to the risks associated
with untrammeled export of small arms and light weapons around the
world.'' This commenter asserted that ``these arms have been associated
with the deployment of child soldiers and the rise of insurgent
groups.'' This commenter also asserted that ``these firearms are easier
to divert than larger weapons and often end up in the illicit market.''
BIS response: BIS does not agree that there is anything in the EAR
that will make the possibility of diversion any greater than it was
under the ITAR. These concerns of diversion are taken into
consideration by the export control system and underlie the basis for
some of the agency's controls. BIS also notes that the U.S. Government
continuously monitors the export control system to determine where the
most likely points of diversion are and takes actions to prevent
potential diversion points by using existing license review policies,
rescinding or revoking prior authorizations, or imposing new license
requirements or other prohibitions.
Impact on Foreign Law Enforcement
Comment 14: One commenter expressed concern that foreign law
enforcement personnel in particular are at risk of having the firearms
and ammunition that would be transferred to the CCL used against them.
Another commenter asserted that moving these firearms to the CCL will
make it hard for foreign law enforcement to counter gun trafficking.
BIS response: These assertions are mitigated by the fact that, as
stated previously: (1) These articles remain subject to BIS's EUM
programs that vet potential end users of concern, and (2) applications
for firearms and ammunition licenses will be approved only if the end
use is permitted under the laws and supervision of the importing
country.
BIS notes that this final rule is consistent with U.S. multilateral
commitments, e.g., to the Wassenaar Arrangement and the United Nations
for conventional arms reporting. The support documentation requirements
are consistent with Organization of American States (OAS) requirements
to require an import certificate issued by the importing country. This
support document requirement applies to other countries that also
impose a requirement for an import certificate prior to allowing an
import of a firearm, permitting these other countries to better control
the flow of firearms coming into their countries. In addition, U.S. law
enforcement agencies, including BIS's Office of Export Enforcement,
also coordinate with law enforcement agencies outside the U.S., as was
referenced above in the BIS response to Comment 3. The area of
preventing illegal transshipments is a good example of where various
countries have worked together, including law enforcement agencies,
regulators, and policy makers, to come up with standards and protocols
to reduce illegal transshipments, and this work will continue.
Human Rights Issues
Comment 15: A number of commenters suggested the proposed rule, if
made final, may have a negative impact on human rights in foreign
countries. BIS also received many comments asserting ``it is now
recognized that rape and sexual assault are systematically used as
weapons of war in conflicts around the world.'' One of these commenters
asserted that ``in interviews with women and girls who have survived
sexual violence during conflict, a very high number of their stories
include descriptions of the torture they endured at the point of a gun.
Although the particular models of firearms involved are seldom
identified, there is no doubt that a military-style weapon contributed
to gross violations of their human rights.'' Many commenters asserted
that even after a conflict has officially ended, the weapons left
behind are used all too often by perpetrators of domestic violence.
BIS response: BIS will use its resources and expertise in this area
to vet parties involved in transactions subject to the EAR for human
rights concerns. Similarly, as part of the aforementioned continuing
interagency review of export licenses for firearms, the Departments of
State and Defense will remain active in the interagency review process
of determining how an item is controlled and will review export license
applications on a case-by-case basis for national security and foreign
policy reasons, including the prevention of human rights abuses. As
stated previously in this final rule and in the companion rule
published by the Department of State, the Department of State will
continue vetting potential end users when reviewing Commerce licenses,
to help prevent human rights abuses.
BIS does not anticipate authorizing exports of firearms to regions
involved in active conflicts because of the presumption of denial
license review policy for regional stability. Commerce on its licenses
as well as in its license exceptions includes certain requirements and
conditions to ensure subsequent disposition or use of the item will
continue to be in accordance with U.S. export control interests. These
requirements are enhanced by the EAR end-use controls in part 744,
which in many cases apply to transfers (in-country). Ultimately, the
issue raised by this commenter is one of the reasons why the license
review process is done in a careful and deliberative way to ensure as
much as possible that the items authorized for export will not
subsequently be used in ways not in accordance with the regulations, as
well as larger U.S. national security and foreign policy interests.
Effect on Other Countries
Comment 16: Some commenters asserted moving these firearms to the
CCL would increase the likelihood for greater destabilization and
conflict worldwide as well as for these weapons to be trafficked back
into the U.S. for nefarious uses here. Some commenters asserted that
``military-style semi-automatic rifles and their ammunition, are
weapons of choice for criminal organizations in Mexico and other Latin
American countries that are responsible for most of the increasing and
record levels of homicides in those countries.'' These commenters
asserted that this will only send more asylum seekers fleeing to U.S.
borders.
BIS response: BIS does not agree that the transfer of items to the
CCL would increase the likelihood of greater destabilization and
conflict worldwide, or specifically in Mexico or other Latin American
countries. As described above, each foreign government decides what
firearms may be imported into its country. In addition, as noted above,
these items will be controlled for regional stability, so each license
application will be reviewed to evaluate whether the export of these
firearms may contribute to destabilizing that foreign country or other
regional stability concerns.
U.S. Nationals and Interests Overseas
Comment 17: Some commenters asserted that this change in licensing
jurisdiction could lead to an unfortunate future situation where our
own combat troops face troublemakers armed with American-made weaponry.
[[Page 4145]]
BIS response: The U.S. export control system, whether that is the
export controls implemented under the EAR or the ITAR, is focused on
protecting U.S. national security and foreign policy interests.
Effective controls are in place under the EAR to ensure as much as
possible that items subject to EAR do not endanger U.S. troops, U.S.
nationals, or other U.S. interests is one of the key objectives of EAR
controls. This final rule is intended to ensure that items being moved
to the EAR will not endanger U.S. interests. BIS, as well as the
Department of State, works to ensure that diversions do not occur, but
it is a concern not unique to firearms moved to the CCL, and something
the U.S. export control system is designed to counter.
Consistency With U.S. Multilateral Commitments
Comment 18: Other commenters suggested that this rule contravenes
international commitments the United States has made through mechanisms
such as the Wassenaar Arrangement. One commenter asserted that the U.S.
has already alienated many of our allies, and this rule change will
further aggravate relations by pushing more firearms into their
countries.
BIS response: The transfer of the concerned items to the CCL does
not contravene U.S. international commitments, as the U.S. Government
will continue to apply a high level of control to these items and
require U.S. Government authorization for all exports of firearms and
major components. Further, the controls being implemented under the EAR
with this final rule are consistent with U.S. multilateral commitments,
e.g., to the Wassenaar Arrangement, the United Nations, and the OAS.
BIS notes that foreign governments decide what items may be imported
into their countries and how such items will be regulated within that
country. Regardless of the U.S. export control system, an exporter must
still meet the requirements of an importing country and if the
importing country does not allow the importation of these items or
requires certain requirements to be met, those foreign regulatory or
other legal parameters set the parameters and scope for what may be
imported, who may use such items, and for what end uses.
Reporting Requirement for Political Contributions and Fees to the EAR
To Prevent Corruption in the Arms Trade
Comment 19: One commenter asserted that the transfer of certain
Categories I-III items from ITAR to EAR control will mean the loss of
the reporting requirements outlined in 22 CFR part 130. This commenter
asserted that part 130 requires exporters to report payment of certain
political contributions, fees, and commissions related to the sale of
defense articles and services to the armed forces of a foreign country
or international organization to the DDTC and because the EAR does not
have the same type of reporting requirement, this may result in
increased corruption in arms sales. The same commenter asserted that
``in many countries around the world, corruption is rampant within
their arms procurement systems, as foreign officials seek to steal
funds from their national budgets for their personal gain,'' so not
including a reporting requirement in the EAR may make the corruption
worse. The same commenter asserted that under the Commerce May 24 rule,
BIS would limit its ability to obtain useful information on U.S.
defense companies and prosecute bribery.
BIS response: BIS does not agree with these assertions. The Foreign
Corrupt Practices Act (FCPA) already prohibits this type of corruption
activity and provides a robust regulatory scheme. FCPA applies to all
items subject to the EAR, including items that will be moved from the
USML to the CCL. Therefore, imposing a separate reporting requirement
is not needed under the EAR to prevent this type of illegal activity.
BIS highlights here in the preamble of this final rule that any party
involved in a transaction ``subject to the EAR'' must also follow any
other applicable U.S. laws, including the FCPA. Questions on the FCPA
should be directed to the Department of Justice and the U.S. Securities
and Exchange Commission (SEC).
Commenters Asserting Burdens Will Be Reduced (for Purposes of E.O.
13771)
Comment 20: A firearms trade association commenter asserted that
``it has reviewed the proposed rule thoroughly with its membership . .
. and most members have told it that the final versions of the rules
would eventually be beneficial because they would significantly reduce
the overall burden and cost of complying with controls on the export of
commercial firearms and ammunition.'' This trade association noted that
``[a]ll who responded told us that there would be an initial short-term
increase in burden and cost because of the need to re-classify
thousands of commodity, software, and technology line items and SKUs
affected by the new rules, but that the long-term regulatory burden
reduction would significantly outweigh the short-term need to adjust
internal compliance programs and practices.'' One firearms industry
trade association commenter noted that most of ``its members,
particularly the small- and medium-sized companies, believe that the
changes will be economically beneficial for them because the eventual
regulatory simplification and cost reductions will allow them to
consider exporting when they might not have otherwise.'' Additionally,
many small independent gunsmiths commented about the disproportionate
negative impact the costs of ITAR compliance had on their businesses.
Several commenters asserted that by moving such items to the EAR, many
domestic manufacturers who do not export would be relieved of the
significant financial burden of registering under the ITAR. One trade
association commenter asserted that the costs for their members would
be reduced because under the Commerce system, there are no fees to
apply for licenses. This commenter also asserted that their burdens
would be reduced because the Commerce license application forms are
vastly simpler compared to the Department of State license application
forms.
One commenter asserted that ``one of the benefits under the EAR
will be that controls on less sensitive and widely available basic
parts, components, and technology are more tailored and allow for less
burdensome trade with close allies through license exceptions.'' This
same commenter also asserted that ``sales with regular customers can be
combined in to fewer license applications, thus reducing overall
paperwork to achieve the same policy objectives.''
One trade association commenter asserted that these changes ``will
lead to growth for U.S. companies, more jobs in the United States, and
related economic benefits for the cities and states where the members
reside while accomplishing the same national security and foreign
policy objectives they have always had.'' One commenter asserted that
the items being moved to the CCL are manufactured in many parts of the
world and that by engaging more with the world, U.S. firearms
manufacturers will improve their knowledge and capability. One
commenter that identified himself as a U.K. citizen, who often travels
to the U.S. and visits sporting goods stores, asserted that the price
of certain items, e.g., cartridge cases and bullets, are less than half
the price charged in the U.K. The commenter asserted, ``fix this and
U.S. manufacturers will see a significant increase in demand from U.K.
based firearms owners.''
[[Page 4146]]
BIS response: BIS agrees that the Commerce May 24 rule would reduce
the overall regulatory burden of complying with U.S. export controls,
including through regulatory simplification and cost reductions that
may allow certain persons, e.g., small independent gunsmiths, to
consider exporting when they might not have otherwise because of the
economic burden of complying with the ITAR. One of the strengths of the
EAR control structure is its focused approach on exports without unduly
burdening persons that are not a party to an export transaction. Not
requiring domestic manufacturers to register with BIS is a good example
of the more focused EAR controls. The fact that BIS does not charge a
registration fee to be able to apply for a Commerce license is another
financial benefit.
The EAR is a more tailored control structure, and this more
flexible control structure will reduce burdens and create more
opportunities to export. One of the key benefits of the more flexible
Commerce licensing processes is the ability for applicants to combine
multiple transactions on license applications for sales to regular
customers. Because BIS does not require a purchase order, the overall
number of licenses an exporter may need to submit is reduced.
The changes included in this final rule may lead to increased sales
opportunities for U.S. exporters and related economic benefits for the
United States, while also accomplishing the same national security and
foreign policy objectives of the U.S. export control system. Because of
the more flexible EAR control structure, parties outside the U.S. may
want to purchase more items, such as ECCN 0A501.x parts or components
that were previously avoided because of no de minimis eligibility under
the ITAR. This rule might also lead to increased export activity
because parties outside the U.S. may import more U.S. origin firearms
because of the more flexible Commerce licenses that do not require a
purchase order. Importantly, any additional exports that may occur are
the same types of exports that would have been otherwise approved under
the ITAR.
As asserted by some of the commenters, the changes made by this
final rule may help to foster innovation in the United States by
encouraging collaboration with companies outside the United States, and
this may lead to better U.S. products. They may also encourage more
people to be interested in purchasing items from the United States.
Commenters Asserting Burdens Will Not Be Reduced (for Purposes of E.O.
13771)
Comment 21: One anonymous commenter asserted that moving these
items to the CCL would create a small cost-savings for its company in
registration and licensing fees, but the commenter did not see a
demonstrated equivalent in terms of paperwork reduction or real time
savings. This commenter asserted that the issue for small companies
having to pay the registration fees due to their manufacturing
activities is better resolved by changing the definition of
manufacturer to add a minimum size requirement. The same commenter
asserted that the EAR does not include a concept of defense services
and the technology controls are more narrowly focused and apply in
limited contexts as compared to the ITAR, and this change represents an
improvement in terms of the commenter's ability to share information
needed for marketing firearms and for repairing them internationally.
However, this commenter asserted that the same result could be achieved
via amendment to the ITAR. The same commenter asserted that ``the
improvements and savings are quantified using the 43.8 minutes for BIS
application vs. the 60 minutes for DDTC application and that this
metric provides no meaningful data from which to extrapolate total
process savings or if any is really generated.'' This commenter also
asserted that other additional burdens proposed in the Commerce May 24
rule also need to be accounted for, e.g., increasing the quantity and
type of data elements which will be required for AES filing. The same
commenter asserted that there will be burdens and expenses of
transition related to reclassification of all products, re-training of
all employees, and advanced training needed for compliance personnel.
The commenter acknowledged that it understands this burden is
considered short term; however, the commenter asserted that the
benefits of moving these items to the CCL still has not been adequately
explained to justify these short-term burdens. This same commenter
asserted that other than utilizing a different application form and the
change in the agency receiving applications, it has not been
demonstrated exactly what, if any, process improvement this represents.
BIS response: While this commenter did not anticipate significant
cost or burden reduction from the transition to the EAR, most other
commenters addressing these issues anticipated more significant
benefits. The reform effort is not intended to make the ITAR the same
as the EAR; this would not be warranted because the more restrictive
ITAR controls are needed to regulate items such as fighter aircraft,
submarines, and intercontinental ballistic missiles. BIS agrees that
the more focused EAR technology controls will ease burdens, but still
appropriately control technology for these items.
BIS does not agree with the assertion that the way the cost savings
were calculated in the Commerce May 24 rule provided no meaningful data
to extrapolate total process savings. Many commenters asserted that
they believed their burden would be reduced by moving these items to
the CCL. This commenter is correct that other commenters expressed
concerns about individuals being required to file EEI in AES for
exports under License Exception BAG of their personally owned firearms,
and concerns about including the serial number, make, model number, and
caliber of firearms in the EEI in AES. However, this final rule
significantly reduces these burdens. For example, this final rule
requires the U.S. Customs and Border Protection (CBP) Certification of
Registration Form 4457, a form already being used by exporters.
Therefore, there will be no additional burden because BIS will be
requiring information already submitted by exporters to CBP for other
reasons. For licensed exports, BIS also eliminated the requirement to
file those additional data elements, except for temporary exports or
when the Commerce license includes a condition requiring it, similar to
the approach Department of State takes with provisos on its licenses.
BIS acknowledges that there will be some short-term adjustment
costs. BIS also acknowledges that the EAR is a more complex control
structure because with greater flexibility there is a need for
additional nuances in the control structure. BIS disagrees that the
rationale for the transition was not clearly demonstrated in the
Commerce May 24 rule.
BIS appreciates this same commenter highlighting a key point of
commonality. The commenter is correct that the Commerce license
applications will continue to be reviewed by the Departments of State
and Defense. This well-established interagency review process specified
in both Executive Order 12981 and in the EAR helps to protect U.S.
export control interests and ensures that a diversity of interests and
agency expertise is being used to review license applications. BIS
disagrees that the only difference is a different application. For
example, the fact that
[[Page 4147]]
an applicant does not require a purchase order under the EAR to apply
for a license allows for more companies to compete for business
opportunities.
Licensing Costs
Comment 22: Many commenters asserted that the Commerce May 24 rule
would transfer the cost of reviewing applications and processing
licenses from gun manufacturers to taxpayers. Many commenters also
asserted that with respect to firearms exports, taxpayers and the
public at large should be concerned about pressures to cut corners that
could result in authorization of irresponsible transfers of firearms,
because BIS will not be charging fees for licensing.
BIS response: By statute, Congress prohibits BIS from imposing fees
for any license application, authorization or other requests. This
prohibition applies for submissions in connections with all items
subject the EAR and is not specific to the firearms industry. BIS has
effectively licensed items for several decades based on the fee free
license construct that was included in the Commerce May 24 rule and in
this final rule.
Comments Specific to the Regulatory Text
Inclusion in the ``600 Series''
Comment 23: One commenter requested BIS include semi-automatic
firearms and related items in the ``600 series'' instead of in 0x5zz
ECCNs.
BIS response: BIS does not agree. As was stated in the Commerce May
24 rule and discussed above in response to the comments, the semi-
automatic firearms this final rule adds to ECCN 0A501.a have a
significant worldwide market in connection with civil and recreational
activities such as hunting, marksmanship, competitive shooting, and
other non-military activities. For these reasons, the movement of
firearms and ammunition from USML Category I and III, similar to the
civilian spacecraft and related items moved from the USML and
controlled on the CCL under 0x515 ECCNs, do not warrant being
controlled under the ``600 series.''
New ECCN 0A501: Firearms and Related Commodities
Comment 24: One commenter identified an inconsistency between the
Commerce May 24 rule in the ``Related Controls'' paragraph that stated
magazines with a ``capacity of 50 rounds or greater'' are ``subject to
the ITAR.'' However, the proposed USML Category I(h)(1) referenced only
magazines and drums with a ``capacity greater than 50 rounds.''
BIS response: This final rule corrects the EAR text to make it
clear that magazines with a ``capacity of greater than 50 rounds'' are
subject to the ITAR.
Comment 25: One commenter asserted there had been past issues of
interpretation under the ITAR for what was meant by ``complete breech
mechanism'' and therefore the commenter recommended defining the term
under the EAR.
BIS response: BIS accepts the change to include a definition of
``complete breech mechanisms.'' This final rule will add a definition
for ``complete breech mechanisms'' to part 772 and will add double
quotation marks around the term where it is used in ECCNs 0A501 and
0A502.
Comment 26: One commenter took issue with the use of the term
``assault weapons'' or ``close assault weapons.'' This commenter
asserted that the terms should be defined, or not used. This commenter
requested the term ``semi-automatic'' rifles, pistols, or other firearm
be used instead.
BIS response: BIS agrees and has removed the term ``assault
weapons'' in this final rule and instead uses the term ``semi-
automatic,'' which better aligns with the terms used in the control
parameters.
Comment 27: One commenter recommended BIS define ``firearm'' in
harmonization with the USML.
BIS response: BIS does not agree the term ``firearm'' needs to be
defined in the EAR. The term ``firearms'' is used in this final rule
with additional technical parameters or ECCN identifiers, e.g.,
0A501.a, that will enable identification of these firearms. BIS does
not believe the use of the term ``firearms'' will create confusion with
the USML or the USMIL.
Comment 28: One commenter noted an inconsistency in the way
calibers are described in the control lists under the Commerce May 24
rule. In USML Categories I and II, firearms and guns are described as
``caliber .50 inclusive (12.7 mm)'' and ``greater than .50 caliber
(12.7 mm),'' respectively. In new ECCN 0A501, firearms are described in
``items'' paragraph .a and .b as ``of caliber less than or equal to .50
inches (12.7 mm)'' and ``with a caliber greater than .50 inches (12.7
mm) but less than or equal to .72 inches (18.0 mm),'' respectively.
This commenter asserted that the caliber terms not being aligned
between the control lists could cause confusion and misinterpretation
of the controls between the USML and CCL, particularly in regard to the
ammunition controls which follow the respective firearm controls.
BIS response: BIS notes that the intent of this final rule is to
transfer those items previously controlled under Categories I-III that
no longer warrant ITAR control, to the respective ECCNs as created
under this rule to the CCL by using long-accepted industry standards of
``caliber'' as the defining delineation between ammunition types. BIS
made changes in this final rule to use the appropriate text in this
final rule to be consistent with the text used in the USML, so that .50
caliber ammunition and .50 caliber firearms will transition into their
proper 0x5zz ECCNs. For example ECCN 0A501, includes all non-automatic
and semi-automatic ``.50 caliber (12.7mm) and less'' firearms under
``items'' paragraph .a.
Comment 29: One commenter was concerned that with the proposed
description of caliber in inches in ECCN 0A501, ammunition for .50
caliber Browning Machine Guns (``50 BMG'') would be controlled under
both 0A505 and USML Category III creating overlapping controls.
BIS response: BIS clarifies in this final rule that ECCN 0A501
includes all non-automatic and semi-automatic ``equal to .50 caliber
(12.7mm) and less'' firearms under ``items'' paragraph .a. Therefore,
this final rule also would not control the 50 BMG under ECCN 0A501.a.
However, the corresponding ammunition which is used in a number of non-
automatic and semi-automatic firearms will be controlled under 0A505.a,
when not linked or belted.
Comment 30: Some commenters requested BIS revise Note 3 to 0A501 so
that the definition of antique firearms is aligned with the Wassenaar
Arrangement controls or alternatively that the date threshold in the
definition of antique firearm in Note 3 be changed from 1890 to 1898 to
align with the ITAR's exemption.
BIS response: BIS does not agree. Because this rule focuses on the
export of firearms, it uses the year 1890 so that the United States
remains consistent with its international export control commitments
under the Wassenaar Arrangement, which uses 1890 as the cutoff year to
identify many firearms and armaments that are not on the control list.
Comment 31: One commenter requested that BIS clarify where
combination firearms would be controlled, noting that neither ECCN
0A501 (firearms) nor ECCN 0A502 (shotguns) refer to firearms that are a
combination of shotgun and rifle, i.e., that have two barrels.
BIS response: BIS agrees, and in this final rule adds a note to
clarify that combination firearms are controlled
[[Page 4148]]
under ECCN 0A501.a. This final rule also adds a note under ECCN 0A502
to specify that all shotguns and ``shot-pistols'' are controlled
identically.
Comment 32: One commenter sought clarification on the
classification of detachable magazines for ECCN 0A501 firearms with a
capacity of less than or equal to 16 rounds. The commenter asserted
that ECCN 0A501.d explicitly lists magazines with a capacity of greater
than 16 rounds, but it was not clear whether magazines with a lesser
capacity are designated as EAR99 or controlled under 0A501.x.
BIS response: BIS agrees, and this final rule adds a new note to
paragraph .d to clarify that magazines with a capacity of 16 rounds or
less are classified under ECCN 0A501.x.
Comment 33: One commenter asserted that as currently proposed,
paragraph .x would apply to parts and components specially designed for
a commodity classified anywhere on the USML. This commenter recommended
revising as follows: ``Parts'' and ``components'' that are ``specially
designed'' for a commodity classified under paragraphs .a through .c of
this entry or USML Category I and not elsewhere specified on the USML
or CCL.
BIS response: BIS does not agree that a change is needed. Because
some of the parts and components controlled under ECCN 0A501.x may be
for firearms incorporated into a fully automatic firearm that is
incorporated into a military vehicle (a USML Category VII commodity),
the broader reference to the USML is more appropriate. The USML Order
of Review and CCL Order of Review will ensure that only those parts and
components intended to be classified under ECCN 0A501.x will be
classified under this ``items'' paragraph.
Comment 34: One commenter requested revising paragraph 0A501.y by
replacing the period at the end of the paragraph with the phrase
``including'' or ``as follows:'' In order to clarify whether .y is
limited to the enumerated .y paragraphs, or itself is a control
paragraph in which items can be controlled.
BIS response: BIS clarifies that the .y listings are exhaustive,
and to be classified in a .y paragraph, the item needs to meet the
identified description and the definition of ``specially designed.''
Comment 35: One commenter requested clarification of whether the .y
paragraph itself serves as a catch-all for ``parts,'' ``components,''
``accessories,'' and ``attachments.'' For example, a set of fiber-optic
sights for a pistol are not ``iron sights'' as listed in .y.3, but may
be a ``specially designed'' ``attachment.''
BIS response: BIS agrees that the introductory text of ECCN 0A501.y
needs to be revised to clarify that the ``parts,'' ``components,''
``accessories,'' and ``attachments'' ``specially designed'' therefor
for the .y items are also controlled in the .y paragraphs. This final
rule makes this change. BIS had previously made this same correction to
the other .y paragraphs on the CCL to ensure, for example, that
``specially designed'' parts used in ``specially designed'' galleys
classified under ECCN 9A610.y for military aircraft, would not be
controlled in 9A610.x.
Comment 36: One commenter asserted that ECCN 0A501.y contains three
types of commodities that have been officially determined to be EAR99
for many years: (i) .y.2--scope mounts and accessory rails; (ii) .y.3--
iron sights; and (iii) .y.4--sling swivels. This commenter requested
that the parts in .y paragraphs .y.2, .y.3, and .y.4 be removed from
ECCN 0A501 and a note be added to confirm that they remain EAR99 items.
BIS response: BIS does not accept this change because it only works
if the past CJs covered those items and all variants. Paragraph (b)(1)
of ``specially designed'' and General Order No. 5 would not be
applicable to those items not included within the scope of a CJ--
meaning an item may get pulled up into .x. Therefore, to address this
issue definitively this final rule keeps these items as .y items.
License Exception LVS
Comment 37: BIS received a number of comments on License Exception
LVS eligibility. Some commenters supported its availability, though one
commenter suggested that wholesale value rather than actual value
should be used while another commenter requested higher value shipments
should be authorized to Canada. One commenter recommended pegging the
LVS dollar value to inflation to allow for incremental increases to
match price increases over time. One commenter requested that Canada
should have all of its LVS eligibility specified in its own LVS
paragraph in the ECCN, distinguishing Canada's eligibility from other
Country Group B countries. Some commenters raised concerns related to
License Exception LVS availability, asserting that it would not curb
risky exports of pistol grips and magazine clips valued at $500, that
it is possible for companies or individuals to export many low-value
items in one shipment without a U.S. license, and that it could fuel
gun violence in Mexico and Central America. One commenter requested
reducing the LVS eligibility under ECCN 0A501 from $500 to $100, and
reducing further the commodities that would be eligible.
BIS response: BIS agrees that License Exception LVS will be
particularly useful for the firearms industry for low value shipments
and believes that the license exception is properly scoped in the
dollar value used and the scope of availability for the reasons
outlined in the Commerce May 24 rule. BIS emphasizes as specified in
the name of the license exception itself, this license exception is
limited to low value shipments. This includes the total quantity for
consolidated shipments, even if a shipper was consolidating several
shipments. BIS also notes that an exporter is limited to twelve orders
per year to the same consignee. The terms of License Exception LVS also
strictly prohibit the splitting of orders to try to evade the
applicable LVS dollar value. In addition, if there are questions
whether an exporter has stayed within the required scope of LVS, EE can
require exporters to hand over all the required recordkeeping documents
related to a transaction under License Exception LVS to identify
whether there has been a violation of the EAR. LVS is not currently
linked to inflation, but the public may at any time make
recommendations for changes to the regulations, including suggestions
for revising the LVS dollar values in an ECCN.
BIS notes that only countries identified in Country Group B are
eligible to receive commodities under License Exception LVS. These are
countries that the U.S. Government does not have export control
concerns with for purposes of the commodities that are eligible to be
authorized under License Exception LVS. More sensitive commodities,
such as firearms and some key components, are excluded from License
Exception LVS. As noted in the Commerce May 24 rule, the ITAR has a
similar type of exemption. Relatedly, BIS does not believe Canada-
specific provisions are necessary in the License Exception LVS
paragraph of ECCN 0A501 to specify all LVS eligibility for Canada in
one stand-alone paragraph. First, it would deviate from how LVS is
described in other ECCNs. Second, there is the potential that an
exporter may get confused and believe LVS is available for other
Country Group B countries because the same commodities were identified
in more than one LVS paragraph.
Finally, it is important to note that the importing country will
also have its own requirements for imports and
[[Page 4149]]
domestic sale and use, including for commodities such as pistol grips.
While someone like a jeweler or other craftsman in the U.S. (e.g., a
hobbyist who enjoys engraving pistol grips with western cowboy motifs)
could use License Exception LVS, it would not be available for larger
transactions, such as someone wanting to export to a retail store in a
foreign country.
New ECCN 0A502: Shotguns and Certain Related Commodities
Comment 38: One commenter requested revising the heading of ECCN
0A502 to specify the parts and components enumerated in the heading are
shotgun parts and components.
BIS response: BIS agrees, and this final rule revises the heading
to specify that parts and components enumerated in the heading of ECCN
0A502 are shotgun ``parts'' and ``components.'' BIS also makes one
other change to address the issue of clarity raised by this commenter.
This final rule adds a note to ECCN 0A501 to specify that ``shot-
pistols'' will be controlled as shotguns.
Comment 39: One commenter requested that rather than having the
items controlled contained in the ECCN heading, BIS should enumerate
the shotguns in separate ``items'' paragraphs that track with the
different reasons for control for the different size shotguns in the
``items'' paragraph to ease the compliance burden for exporting these
shotguns.
BIS response: BIS does not agree. The license requirement section
in this final rule is already consistent with the current control text,
applying CC Column 2 and CC Column 3 as appropriate depending on the
destination. BIS already uses this structure for long barreled
shotguns, which this final rule moves to ECCN 0A502.
Comment 40: One commenter requested that the final rule define
antique shotguns in ECCN 0A502 to capture those guns made ``in or
before 1898,'' consistent with the definition of antique rifles and
handguns in the Gun Control Act of 1968.
BIS response: BIS agrees, and this final rule adds a new Note 1 to
0A502 specifying that shotguns made in or before 1898 are considered
antique shotguns and designated as EAR99.
Comment 41: One commenter requested BIS clarify the control status
of accessories of optics, e.g., sunshades or other anti[hyphen]glare
devices.
BIS response: BIS clarifies that sunshades or other anti-glare
devices if not enumerated or otherwise described in ECCN 0A502 or any
other ECCN are designated as EAR99.
Comment 42: One commenter requested that the description in the
``Related Controls'' paragraph of ECCN 0A502 be made consistent with
how such shotguns are referred to in the revised USML Category I.
BIS response: BIS agrees, and this final rule removes the phrase
``combat shotguns'' wherever it appears in ECCN 0A502, including in the
``Related Controls'' paragraph. BIS in this final rule also removes
references to ``combat shotguns'' in ECCN 0A505.
Comment 43: One commenter requested in order to have consistent
controls and exceptions for similar commodities, that BIS allow the use
of License Exception LVS for ECCN 0A502 parts and components to the
same extent proposed for 0A501, e.g., for shotgun trigger mechanisms,
magazines, and magazine extensions.
BIS response: BIS agrees, and in this final rule revises the LVS
paragraph in the License Exceptions section of ECCN 0A502 to add LVS
eligibility of $500 for the same types of parts and components for ECCN
0A502 shotguns that are available for LVS under 0A501. Complete
shotguns will continue to be excluded.
Comment 44: One commenter asserted that to facilitate the use of
License Exception LVS, the ECCN 0A502 heading should be changed to
``Shotguns and related commodities (See List of Items controlled) . .
.'' and then under the ``List of Items Controlled'' parts and
components should be enumerated to include ``complete trigger
mechanisms,'' ``magazines,'' and ``magazine extension tubes.''
BIS response: BIS does not agree. BIS in this final rule continues
to enumerate ``parts'' and ``components'' in the heading, but in the
interest of clarity it also includes the specific eligible commodities
in the LVS paragraph.
New ECCN 0A504: Optical Sighting Devices and Certain Related
Commodities
Comment 45: One commenter asserted that the proposed Note 1 to
0A504.f states that ``0A504.f does not control laser boresighting
devices that must be placed in the bore or chamber to provide a
reference for aligning the firearms sights.'' This commenter asserted
there are a variety of boresighting devices that are placed over the
muzzle of the barrel instead of inside the bore or chamber and perform
the same function as those described in the note. For these reasons,
the commenter requested that this Note be revised to read as follows:
``0A504.f does not control laser boresighting devices that provide a
reference for aligning the firearms sights. This includes any laser
boresighting device, regardless of how it attaches to the firearm
(e.g., boresights that fit over the muzzle of the barrel), which
performs the same function.''
BIS response: BIS does not agree. Revising Note 1 to 0A504.f would
make it difficult to distinguish between what the commenter is
proposing and a laser pointer. The note included in this final rule
makes it clear that those commodities that are placed inside a bore or
chamber would preclude its subsequent use as or with a firearm.
Comment 46: One commenter requested License Exception LVS should be
made available for ECCN 0A504.g commodities that are similarly
insignificant as those commodities eligible in ECCN 0A501.
BIS response: BIS agrees, and this final rule includes License
Exception LVS eligibility for ``parts'' and ``components'' classified
under ECCN 0A504.g.
New ECCN 0A505: Ammunition and Certain Related Commodities
Comment 47: One commenter recommended revising ECCN 0A505.a to
include ammunition for firearms controlled in USML Category I that may
not otherwise be captured by adding the phrase ``or USML Category I''
to clarify that ammunition for these type of firearms is also
controlled under ECCN 0A505.a.
BIS response: BIS agrees, and this final rule incorporates the
suggested text to clarify that ammunition for firearms in both ECCN
0A501 and USML Category I will be controlled under 0A505.a, provided it
is not enumerated elsewhere in 0A505 or in USML Category III.
Comment 48: One commenter requested BIS revise ECCN 0A505 to
include a note similar to the Note to 0A018.b to specify that dummy
ammunition is designated EAR99.
BIS response: BIS agrees, and this final rule adds a Note 4 to
0A505 to specify that all dummy and blank (unless linked or belted)
ammunition, not incorporating a lethal or non-lethal projectile(s) is
designated EAR99.
Comment 49: One commenter asserted that there are several magazine
manufacturers in the U.S. producing magazines of greater than 50 rounds
that would benefit from also having their magazine moved to the CCL.
This commenter asserted that limiting this magazine capacity to 50
rounds or less does not protect any special U.S. or allied military
advantage, but magazines
[[Page 4150]]
of greater than 50 rounds are commonly found and manufactured
worldwide.
BIS response: BIS does not agree. Magazines with a capacity of 50
rounds or less are appropriate on the CCL, and magazines greater than
50 rounds warrant ITAR control.
Comment 50: One trade association commenter noted that proposed
ECCN 0A505 included an allowance for License Exception LVS of $100 for
0A505.x ``parts'' and ``components,'' but that firearm parts and
components under 0A501 have an LVS allowance of $500. This commenter
asserted that its members feel this is an inconsistency in the
treatment of related commodities. The commenter asserted that in recent
years, costs related to ammunition components have been increasing,
with the largest increases affecting larger caliber cartridges. This
commenter asserted that the ``$100 limit on LVS will be quickly met
with small amounts of components, making this exception not as useful
as intended.'' Another commenter asserted that the ITAR allows for $500
per shipment, so $100 net under EAR would be more restrictive than ITAR
exemption.
BIS response: While the ITAR does not have an exemption for exports
of ammunition parts and components, BIS agrees, and this final rule
raises the LVS dollar value from $100 to $500 for ECCN 0A505.
New ECCN 0A602: Guns and Armament
Comment 51: One commenter suggested revising ECCN 0A606 to clearly
identify engines for self-propelled guns and howitzers as controlled
therein rather than in 0A602.
BIS response: BIS notes that the USML Order of Review and CCL Order
of Review would likely already address this. However, this final rule
adds a Related Controls paragraph (3) and a new note to ECCN 0A602.x to
clarify the appropriate classification, but it does not add such a note
to ECCN 0A606.
New ECCN 0B501: Test, Inspection and Production Equipment for Firearms
Comment 52: One commenter requested guidance on what is the
definition of production equipment under ECCN 0B501.e. This commenter
asserted that it has ``many hobbyist customers who would not qualify as
a gunsmith let alone as a manufacturer and tools and equipment designed
for hobbyists are quite different than manufacturing equipment . . .
yet we have a concern these tools will be included in 0B501.e because
even the hobbyist is `producing' a firearms part.''
BIS response: The term ``production'' is a defined term in part
772. ``Production'' means all production stages, such as: Product
engineering, manufacture, integration, assembly (mounting), inspection,
testing, and quality assurance. Part 772 also includes a definition of
``production equipment'' that includes tooling, templates, jigs,
mandrels, moulds, dies, fixtures, alignment mechanisms, test equipment,
other machinery and components therefor, limited to those specially
designed or modified for ``development'' or for one or more phases of
``production.'' The definition of ``production equipment'' in part 772
applies only in the Missile Technology Control Regime context, but for
purposes of this comment, the definition of ``production'' and the
definition of ``production equipment'' provides the needed guidance.
BIS also emphasizes that the person using the production equipment does
not change the classification of the production equipment. Importantly,
domestic use--that is use of production equipment in the United
States--does not implicate export controls.
Comment 53: One commenter requested BIS ensure there were no gaps
for the production equipment controls on the CCL for USML Category I
items as well as Category III items.
BIS response: BIS agrees. To ensure there are no gaps in production
equipment for USML Category I, this final rule expands ECCN 0B501.e to
include all production equipment ``specially designed'' for USML
Category I items. It also expands ECCN 0B505.a to include all
production equipment ``specially designed'' for USML Category III
items.
New ECCN 0B602: Test, Inspection and Production Equipment for Certain
Guns and Armament
Comment 54: One commenter requested adding examples of specific
tooling that would be controlled under ECCN 0B602, such as a note
including ECCN 0B602 boresights and units made specifically for testing
purposes.
BIS response: BIS does not agree to this addition. As described
above, part 772 defines ``production'' and ``production equipment,'' so
these existing definitions already address this comment.
New ECCN 0E501: Technology for Firearms and Certain Related Items
Comment 55: One commenter requested BIS clarify how ``technology''
is defined for 0E501 and whether shooting chronographs or empty brass
cartridge annealing machines are included in the definition of
``technology.''
BIS response: BIS clarifies that the definition of ``technology''
in part 772 applies to ECCN 0E501 and any other Product Group E ECCNs
on the CCL, including the other Product Group E ECCNs this final rule
adds, e.g., 0E505. In addition, BIS clarifies that shooting
chronographs or empty brass cartridge annealing machines are end items
and generally designated EAR99. Therefore, the examples given fall
outside the Commerce definition of ``technology.''
Comment 56: BIS received a number of comments on the concept of
``defense services,'' including concerns about the lack of defense
services controls under the EAR, the potential loss of U.S. Government
oversight on many types of defense services, and concerns about
firearms training being provided to foreign security forces without
U.S. Government approval. There were also concerns raised about the
ability of U.S. companies to provide a wide range of assistance and
training to foreign persons without sufficient U.S. oversight and a
suggestion that the definition of ``technology'' be expanded to capture
these defense-service type activities, such as private security
contractor training of foreign police with firearms. One commenter
asserted that ``the proposed rule could also create an unfortunate
scenario where U.S. private security contractors are able to provide
services to foreign security units or militias that are otherwise
prohibited from receiving training through U.S. foreign security aid.''
BIS response: BIS clarifies that defense services is specific to
the ITAR, but the EAR maintains controls related to exports, reexports,
and in-country transfers of commodities, software, and technology in a
number of ways. For example, a U.S. person is prohibited from engaging
in exports, reexports, or in-country transfers related to certain end
uses (as specified in Sec. 744.6) or a ``knowing'' violation (as
specified in Sec. Sec. 764.2(e) and 736.2(b)(10)). In addition, as
part of providing a service, a person must determine whether there will
be an export, reexport, or in-country transfer of any commodities,
software, or technology requiring an EAR authorization. Accordingly,
although the EAR generally does not control services directly, the EAR
is still highly effective at protecting U.S. export control interests
implicated by the supply of services in connection with exports,
reexports, or in-country transfers. The effectiveness comes by
controlling the technology--e.g., ``technology'' for how to produce a
firearm. The release of technology is the key nexus where providing a
service crosses over into a transaction that is
[[Page 4151]]
subject to the EAR and that merits control. In most cases, the analysis
will focus on whether any technology that is subject to the EAR will be
released as part of providing the service. The release of technology
moved from USML Categories I-III will require a U.S. Government
authorization, except for 0E602 technology being exported to Canada
which may be exported No Licensed Required (``NLR'').
For example, providing design and development assistance, testing,
and production assistance on firearms and ammunition to foreign persons
would be a release of ``technology'' subject to the EAR and require an
EAR authorization, unless the information being released fully met the
criteria in part 734 for exclusion from the EAR. The EAR requirements
would apply if the technology was being exported. The EAR requirements
would also apply if the technology was being released in the United
States to a foreign national as a deemed export, including technology
released through training.
BIS cautions against assuming that no U.S. Government authorization
is required to provide training to foreign security forces. Providing
military training of foreign units and forces would still be a defense
service regulated by the ITAR. Questions on whether a specific service
may be a defense service should be directed to the Department of State.
For purposes of the EAR, as described above, the question centers on
whether any items that are subject to the EAR are provided as part of
that service, and if such items are related to firearms, then U.S.
Government authorization will be required.
BIS notes that if an item, such as the firearms moved to the CCL in
this final rule, is being exported under the Foreign Military Sales
(FMS) program, those items are not ``subject to the EAR''--meaning the
EAR would not apply and for purposes of the AECA those items being
exported under an FMS letter of offer and acceptance are defense
articles subject to State Department controls under 22 U.S.C. 2794(3)
for the specific transaction. BIS also notes that for non-FMS U.S.
foreign security aid, the granting U.S. organization can include
provisos as needed as part of the aid agreement that imposes any
necessary restrictions the aid granting U.S. agency believes is
warranted. In addition, BIS through the licensing process can impose
conditions as warranted on licenses to ensure consistency with other
requirements as needed. As noted above, the Department of State is a
licensing review agency for Commerce licenses and can advise on
Commerce export licenses as warranted if additional conditions may be
needed in furtherance of a direct commercial sale as part of U.S.
foreign security aid.
Comment 57: One commenter asserted that because of the narrowness
of the definition of ``required,'' it ``means companies may be able to
provide a wide range of training activities, design and development
assistance, testing, and production assistance on firearms and
ammunition to foreign persons without sufficient scrutiny and
oversight.''
BIS response: BIS does not agree. The term ``required'' is an EAR
defined term and is a well understood concept used on the control lists
of the multilateral export control regimes. The EAR has effectively
controlled ``technology'' for various other sensitive and sometimes
lethal items using the existing definition and concept of ``required.''
Comment 58: One commenter asserted that ``in 2016, U.S.
registration for firearms manufacturing activities was deemed so
important that DDTC issued specific guidance providing that a broad
range of activities (e.g., use of any special tooling or equipment
upgrading in order to improve the capability of assembled or repaired
firearms, and rechambering firearms through machining, cutting, or
drilling) constitute ``manufacturing'' and required registration.''
This commenter asserted it was concerned because this 2016 guidance
will not apply to Category I-III items moving to the CCL.
BIS response: BIS clarifies that individuals have been able to
lawfully make their own firearms in the United States, but not for
reselling. ATF licenses domestic manufacturers. The types of
gunsmithing services described by this commenter are not considered
``production'' under the EAR.
Revision to ECCN 0A018
Comment 59: Some commenters requested removing ECCN 0A018 and
transferring those commodities to 0A505, so all commercial firearms,
ammunition, and related items could be in one of the series of new
0x5zz ECCNs and not be left behind in legacy xY018 entries. The
commenter suggested that once the items in the proposed ECCN 0A018.b
are moved to 0A505, and controlled in the same manner, then 0A018 could
be removed. Another commenter requested the commodities classified in
ECCN 0A018.b for ``specially designed'' components should be controlled
under 0A505.x. The commenter also requested that the decontrol note in
ECCNs 0A018.b be transferred to 0A505 so that the current EAR99 status
of such items is maintained.
BIS response: BIS agrees with these requested changes. This final
rule removes the items controlled under ECCN 0A018 and adds these
commodities to 0A505 but retains the heading of ECCN 0A018 and adds a
cross reference to ECCN 0A505. This final rule removes the commodities
controlled under ECCN 0A018, because this final rule controls these
commodities under 0A505.d or .x. As conforming changes, this final rule
removes ECCN 0E018, because 0E505 is broad enough to control this
technology and revises the heading of ECCN 0A988 to remove an outdated
reference to ECCN 0A018.d.1. ECCN 0A018.d paragraph is reserved in
0A018, so this reference in 0A988 should have been updated in an
earlier rule.
BIS clarifies that the control parameters of ECCN 0A505.x in this
final rule are broad enough to control commodities classified in ECCN
0A018.b for ``specially designed'' components controlled under 0A505.x.
without further revisions. This final rule adds a Note 4 to ECCN 0A505
to address the commenters' request related to the decontrol note in
0A018.
Conforming Change to General Order No. 5
Comment 60: One commenter requested that licenses already granted
under the ITAR should be grandfathered for all outstanding
transactions.
BIS response: BIS clarifies here that this was already addressed
with the revisions proposed in the Commerce May 24 rule for General
Order No. 5, which adds 0x5zz ECCNs to General Order No. 5 and will be
adopted in this final rule. The current General Order No. 5 includes
grandfathering provisions and allows for applying for Commerce licenses
once a final rule is published, but not yet effective.
Revisions to Regional Stability Licensing Policy for Firearms and
Ammunition
Comment 61: Several commenters raised concerns that laws against
the provision of arms where certain human rights abuses are of concern
may not apply to the 0x5zz ECCNs and that the role of the Bureau of
Democracy, Human Rights, and Labor (DRL) at the Department of State
would be diminished. One commenter asserted that the Department of
State would no longer have a statutory basis for vetoing a proposed
sale on human rights grounds for firearms, guns, ammunition, and
related parts that move to the CCL.
BIS response: As described above, BIS disagrees with the assertion
that there
[[Page 4152]]
will be less focus on protecting human rights under the EAR. This final
rule will control these items for Regional Stability and the license
review policy specifies that human rights concerns are considered as
part of the license review process. As referenced above, the Department
of State is a license review agency for Commerce licenses, and the
existing E.O. 12981 and EAR provide that other license review agencies
have 30 days for review of Commerce license applications. E.O. 12981
does not specify what parts of those other agencies must review a
Commerce license application, but the Department of State has
discretion to ensure that DRL receives and reviews Commerce licenses.
This final rule includes a license review policy for regional
stability to indicate license applications will also take into
consideration human rights concerns, which can be a basis for denial.
BIS also notes that there is a presumption of denial policy for license
applications involving narcotics traffickers, criminal organizations,
and terrorists because of their frequent involvement in human rights
abuses, as well as other regional stability concerns.
Crime Control and Detection License Review Policy
The Commerce May 24 rule did not propose changes to the crime
control and detection license review policy in part 742, but commenters
made recommendations in this area that are described and responded to
below.
Comment 62: One commenter recommended that ``in order to bring the
proposed regulations into alignment with provisions of the Foreign
Assistance Act [22 U.S.C. 2304(a)(2), which makes explicit reference to
crime control equipment under the aegis of the (expired) Export
Administration Act], ECCN 0A501.a should be controlled for crime
control.''
One commenter requested that BIS provide the police profession a
greater, better-defined role in the evaluation of firearm export
license applications and possibly form a technical advisory committee
(TAC). Another commenter requested that licensing officials should
consider the effect of proposed exports on local communities, public
safety, peace officer safety, crime control, and control of civil
disturbances to assure that the rule of law is not impaired by firearm
exports.
One commenter asserted that highly destructive weapons should not
be exported to civilians. This commenter recommended ``a maximum limit
on firepower exported to civilians. Firearms with a muzzle energy
higher than 5,000 Joules should be barred from export to non-government
end-users.''
BIS response: BIS notes that the NS 1 and FC 1 license requirement
included in this final rule for ECCN 0A501.a, as well as ECCN 0A501.b,
will ensure U.S. multilateral commitments are met. In addition, the RS
1 license requirement and license review policies is revised in this
final rule to further address the types of human rights concerns, as
well as imposing a presumption of denial license review policies for
certain types of end users of concern, such as narcotics traffickers,
will ensure U.S. export control interests are protected and that
exports are not approved that would otherwise not be consistent with
the Foreign Assistance Act. As was discussed above, the U.S. Government
agency granting aid to a foreign country will also have the ability to
impose certain provisos as part of that foreign assistance agreement,
and all exports made under the FMS programs are authorized by the
Department of State. As warranted, there is nothing that will preclude
BIS from consulting with other agencies of the U.S. Government
regarding a particular license application.
BIS agrees that getting regular input from the police profession
and those with expertise from the private sector will be beneficial but
notes that this can be accomplished through BIS's existing TACs rather
than through the creation of a new TAC. BIS notes that agency rules are
regularly reviewed by BIS's EE as well as other agencies with law
enforcement components.
BIS does not agree that an outright prohibition is needed to
protect U.S. national security and foreign policy interests under the
EAR. Imposing such a worldwide prohibition would be more restrictive
than how these firearms were regulated under the ITAR and would impose
significant burdens on the U.S. firearms industry that may result in
significant U.S. job losses in the firearms and related industries. BIS
appreciates the time and thought that went into the detailed suggested
change, but an outright prohibition was not contemplated in the
Commerce May 24 rule, would arbitrarily single out one industry for
more restrictive control and is not needed to protect U.S. export
control interests, as those interests can be served through the
regulatory regime set forth in the EAR.
License Exception TMP
Comment 63: One commenter requested increasing the number of items
allowed for temporary export under Sec. 740.9(a)(5) to 100 per
shipment to more closely align with commercial expectations and
practices. Another commenter asserted that larger film productions such
as war movies, will oftentimes require well beyond 75 firearms.
BIS response: BIS does not agree with expanding Sec. 740.9(a)(5)
of TMP to allow for 100 firearms per shipment or to address a
particular type of export. The exhibition and demonstration
authorization under paragraph (a)(5) of License Exception TMP is
intended to provide for a sufficient quantity of firearms, and if an
exporter needs a larger quantity, e.g., 100 or even 1,000 firearms for
exhibition or demonstration, that the exporter may apply for a license
to authorize the export. BIS maintains the status quo for how large
temporary shipments of firearms are handled under the ITAR, which is
through a licensing process that allows BIS to include any additional
conditions to ensure the export will not be diverted.
Comment 64: BIS received comments requesting modifications to
License Exception TMP, including to allow for the use of License
Exception TMP (Sec. 740.9) under paragraph (a)(10) to transfer
firearms to affiliates, such as a foreign parent or subsidiary; to
allow TMP paragraph (b)(1) to be used to authorize temporary import and
subsequent export of items moving in transit through the United States;
and to allow for temporary importation for a period of one year. BIS
also received a comment requesting extensions of temporary imports
imported under paragraph (b)(5) to not be more restrictive than the
ITAR.
BIS response: BIS does not accept these changes. Under this final
rule, an exporter may apply for a license to authorize these same types
of exports of firearms to affiliates. In addition, BIS notes that
License Exception STA is available for parts and components, e.g.,
those that this rule will control under ECCN 0A501.x, when the export,
reexport, or transfer (in-country) is to a Country Group A:5 country,
including affiliates. License Exception STA is more restrictive than
paragraph (a)(10) of License Exception TMP, but because of the
sensitivity of the items involved it is not appropriate to allow for
the paragraph (a)(10) authorization to be available. As for firearms
transshipped through the United States, Sec. 740.9 (b)(3), (4), and
(5) will be available to authorize the export and will be sufficient to
address concerns about such authorizations.
BIS does not accept the suggested change to the time limitation in
Sec. 740.9(b)(5) to lengthen it from one year (as included in the
Commerce May 24
[[Page 4153]]
rule) to four years because one year will be sufficient for these types
of temporary end uses in the U.S. For the same reason, BIS also does
not accept the suggestion to allow for extensions of temporary imports
made under paragraph (b)(5) as suggested by one commenter.
Comment 65: One commenter noted that the proposed additions to
Sec. 740.9 included an instruction directing temporary importers and
exporters to contact CBP at the port of temporary import or export, or
at the CBP website, for the proper procedures to provide any data or
documentation required by BIS. The commenter suggested that BIS and CBP
coordinate to create standardized instructions for all ports that can
be made available online, so that each shipment does not have to be
specially coordinated.
BIS response: BIS agrees and will take steps, in coordination with
CBP, to create standardized instructions for all ports that can be
posted online prior to the effective date of this final rule.
Comment 66: One trade association commenter asserted that ``new
paragraph (b)(5) in License Exception TMP and the related provisions in
Sec. 758.10 that detail the process for temporary import and
subsequent export of these items is fair and reasonable.'' This
commenter asserted ``it is common practice to cite the regulatory
exception for the temporarily imported commodities at the time of
import, then reference the import documents at time of return export of
the goods'' and does not believe the process in the Commerce May 24
rule will cause any additional burden to exporters.
BIS response: BIS agrees and adopts these provisions in this final
rule as proposed.
Comment 67: One commenter requests License Exception TMP be
expanded beyond paragraphs (a)(5) and (6) to also allow for use in film
production for subsequent permanent return to the United States.
Alternatively, one commenter requests that BIS should consider a
procedure or license, similar to a DSP-73, to allow for the temporary
export and re-importation of firearms. Another commenter asserted that
BIS should provide additional guidance on the return of temporary
exports under the new paragraph (b)(5) under License Exception TMP.
BIS response: BIS confirms that License Exception TMP under
paragraphs (a)(5) and (6) will not be available in that type of a fact
pattern, but a Commerce license could be applied for to authorize these
types of exports. As noted above, Commerce licenses are flexible enough
to authorize temporary exports that are not otherwise eligible for
License Exception TMP. The importation into the United States after
temporary export will not require a separate EAR authorization. BIS
agrees providing guidance for the import of items temporarily exported
will be helpful and clarifies that the import of items temporarily
exported does not require an EAR authorization for import.
License Exception GOV
Comment 68: One commenter asserted that the phrase ``or other
sensitive end-users'' is unclear and recommended deleting the phrase or
enumerating the specific types of ineligible entities.
BIS response: BIS includes a parenthetical phrase in the final rule
under the new Note 2 to paragraph (b)(2) to include illustrative
examples of other sensitive end-users. This final rule adds the
parenthetical phrase ``(e.g., contractors or other governmental parties
performing functions on behalf of military, police, or intelligence
entities)'' after the phrase ``or other sensitive end-users'' to
provide greater clarity on the other end-users that are excluded.
License Exception BAG
Comment 69: Several commenters expressed opposition to the
requirement for individuals to have to file in AES for personally owned
firearms and ammunition exported under License Exception BAG, that was
included in the Commerce May 24 rule. The commenters expressed concerns
that requiring individuals to file in AES is problematic and unduly
burdensome; that there is not a genuine need for this information and
would violate the spirit of congressional prohibitions against Federal
firearm registries; and that Department of State and CBP already tried
requiring AES filing for individuals under the ITAR and it was not
workable. Commenters identified a number of issues with the AES filing
system for individuals, including the cost to create accounts, the
compatibility of the hardware and software, concerns that IRS and
Census requirements are in conflict, and the mismatch of required
information for individuals with the fields that are currently in AES
that are oriented to commercial exports.
For these reasons described above, several commenters requested use
of CBP Form 4457 as the permanent solution. Some commenters asserted
that CBP Form 4457 serves an important purpose for some foreign
governments, but could be improved by harmonizing CBP procedures for
Form 4457 between different CBP offices to ensure the forms are being
issued consistently. Some commenters asserted that they would support a
simplified system that would be based on U.S. passports, possibly
linked to an electronic version of the CBP Form 4457.
BIS response: BIS was aware of these types of concerns, including
the recent history of this issue under the ITAR. The Commerce May 24
rule stated that whether and how BIS includes this requirement in a
final rule would be based on whether CBP is able to update its
processes, and other agencies as needed, to allow for individuals to
easily file EEI in AES by the time a final rule is published. The
Commerce May 24 rule also noted that if CBP is not able to do so, then
the final rule may direct exporters to continue to use CBP's existing
process, which is the use of the CBP Form 4457, until a workable
solution is developed or CBP suggests an alternative simplified
solution for gathering such information for temporary exports of
personally-owned firearms and ammunition.
At this time, BIS notes that CBP and the U.S. Census Bureau have
not made changes to the AES system on the Automated Commercial
Environment (ACE) that would address the concerns expressed. Therefore,
taking that into account and the comments received on the Commerce May
24 rule, this final rule does not adopt the requirement for individuals
exporting their personally owned firearms and ammunition under License
Exception BAG to file in AES. Instead, this final rule incorporates the
requirement for individuals to file the CBP Form 4457. BIS notes that
if CBP and the U.S. Census Bureau later adopt changes that would
address the underlying issues, or if CBP adopts changes to the process
for submitting the CBP Form 4457, then BIS would make conforming
changes to the EAR.
Comment 70: BIS also received comments expressing concern over the
availability of License Exception BAG for firearms. One commenter
requested that the provision authorizing license-free exports of semi-
automatic rifles by citizens and legal permanent residents should be
removed, because a sufficient justification was not provided in the
Commerce May 24 rule. Another commenter asserted that if a firearm is
stolen or lost that is exported under License Exception BAG, there will
be little that can be done to recover the weapon. The commenter also
asserted it will be easier for smugglers to take advantage of License
Exception BAG to facilitate trafficking. One commenter
[[Page 4154]]
expressed concern that foreigners temporarily in U.S. will abuse
License Exception BAG. One commenter asserted that the May 24 rule
would not stop non-resident aliens leaving the United States via
commercial airlines from taking firearms ``accessories,''
``attachments,'' ``components,'' ``parts,'' and ammunition with them.
BIS response: BIS acknowledges these concerns but disagrees that
additional changes to this final rule are warranted. The availability
of License Exception BAG will be made to be consistent with 22 CFR
123.17(c), which authorizes U.S. persons to take up to three non-
automatic firearms and up to 1,000 cartridges therefor abroad for
personal use. As far as the potential for items to be lost or stolen,
License Exception BAG requires the exporter to maintain control of
their personal belongings and to return with those items unless
destroyed overseas and the requirements are more straightforward than a
commercial transaction in which there are multiple parties. BIS notes
that related to loss or theft the concern applies equally if a firearm
was exported under a Commerce license. Further, the U.S. Government
maintains oversight through the requirement in this final rule for the
CBP Form 4457 to be filed, along with the export requirements to
present the firearm to CBP prior to export under License Exception BAG.
In addition, this final rule requires the serial number, make, model,
and caliber of the firearm to be included on the CBP Form 4457. When
the U.S. citizen or permanent resident alien returns, the U.S.
Government expects and requires that the same firearm to be returned as
included on the CBP Form 4457. Failure to comply with these
requirements could subject a U.S. citizen or permanent resident alien
to administrative and/or criminal penalties depending on the specifics
of the potential violation. BIS notes that License Exception BAG for
non-resident aliens will be limited to allowing nonresident aliens
leaving the United States to take firearms, and ammunition controlled
by ECCN 0A501 or 0A505 that they lawfully brought into the United
States, under the provisions of Department of Justice regulations at 27
CFR part 478. This is an important safeguard to ensure that the items
being exported under License Exception BAG are limited to those that
were lawfully brought into the U.S. The availability of License
Exception BAG for these non-resident aliens will also be consistent
with 22 CFR 123.17(d), which authorizes foreign persons leaving the
United States to take firearms and ammunition controlled under Category
I(a) of the USML (both non-automatic and semi-automatic) that they
lawfully brought into the United States. The export of ``accessories,''
``attachments,'' ``components,'' and ``parts'' is not eligible for
License Exception BAG and would require a separate U.S. Government
authorization.
Comment 71: One commenter noted that Sec. 740.14(c)(1) ``Limits on
eligibility'' currently states that the items must be ``owned by'' the
individuals rather than ITAR Sec. 123.17(c)(3)'s focus on the person's
``exclusive use'' and recommended conforming the EAR with the ITAR's
scope.
BIS response: BIS does not agree. The requirements in Sec.
740.14(c)(1) apply to all items that subject to the EAR that are
eligible, so these requirements are intended to be broader than the
exclusive use limitation in paragraph (e) (Special provisions for
firearms and ammunition).
Reporting Requirements
Comment 72: BIS received a number of comments related to reporting
requirements. One commenter asserted that it appears that requiring
conventional arms reporting for firearms to be controlled under ECCN
0A501.a and .b would add welcomed specificity to reports required by
the United Nations and the Wassenaar Arrangement while another
commenter was concerned that firearms are being singled out for
conventional arms reporting. One commenter asserted that exporters
should not have to submit reports under the conventional arms reporting
for the Wassenaar Arrangement and the United Nations because BIS
already has ways to obtain this information from other U.S. Government
sources.
BIS response: BIS agrees that the conventional arms reporting
requirements will improve transparency and meet U.S. Government
multilateral commitments to the Wassenaar Arrangement and the United
Nations. BIS notes that other USML Categories that were revised that
moved items to the CCL under ``600 series'' and 9x515 ECCNs were not
identified under the Wassenaar Arrangement or United Nations List for
requiring reporting for conventional arms. Some of the USML Category I
items being moved to the CCL are identified under the Wassenaar
Arrangement or United Nations List for requiring conventional arms
reporting and thus were included to meet U.S. Government commitments.
To ease reporting requirements on exporters as suggested by one
commenter and provide greater flexibility for industry, BIS clarifies
that for the reporting required in this final rule can be accomplished
in one of two ways. First, the exporter can follow the process outlined
in part 743 by sending in reports to BIS with the required information.
However, because of the EEI filing requirements in Sec.
758.1(g)(4)(ii) for the firearms that require conventional arms
reporting, all conventional arms reporting requirements for firearms
should be able to be met by using the alternative submission method
described below in the regulatory changes. Under the alternative
method, the U.S. Government will rely on the EEI record in AES for
firearms classified under 0A501.a and 0A501.b, by the exporter being
required to always include as the first text in the Commodity
Description field in AES the first six characters of the ECCN number,
i.e., ``0A501.a'' or ``0A501.b.''
Comment 73: One commenter raised questions whether the requirements
of the Paperwork Reduction Act (PRA) were met for imposing a new
requirement and whether this information would be needed by BIS.
BIS response: BIS had created this reporting requirement in the
April 16, 2013, initial implementation rule, including providing
estimates for the anticipated burden at that time in anticipation of
the full completion of the USML to CCL review process and these end
item firearms being moved to the CCL. BIS makes this clearer in this
final rule, as well as describing the alternative method that will
eliminate the need for any type of additional reporting and instead use
the data that will be reported in the EEI filing in AES.
Comment 74: One commenter asserted that BIS reporting provides even
less data than the Department of State 665 report and requested that
BIS improve its reporting.
BIS response: In the past, BIS has provided similar data that is
included in the Department of State 655 report in the BIS annual
foreign policy report and in reports on the BIS website detailing
exports by country and largest quantity of ECCNs being exported to the
respective countries. Going forward under ECRA, BIS will be required to
submit an annual report to Congress that will include the information
specified in Section 1765 of ECRA, including implementation of end-use
monitoring of military items on the EAR. BIS notes because this final
rule will require EEI filing in AES for the firearms moved to the CCL
and CBP Form 4457 for License Exception BAG, BIS will have data
[[Page 4155]]
available on exports of firearms moved from USML Category I to the CCL.
Serial Numbers, Make, Model, and Caliber in AES (Sec. 758.1(g)(4))
Comment 75: Several commenters asserted they were opposed to the
expanded data elements (i.e., serial numbers, make, model, and caliber)
required as part of the EEI filing to AES for firearms that would be
transferred from the USML to the CCL, suggesting that the expanded data
elements would exacerbate the problems for private travelers forced to
use the system and violate the spirit of congressional prohibitions
against Federal firearm registries. BIS also received comments
asserting that filing in AES poses an undue burden on exporters to file
information that is otherwise available to U.S. Government, such as
through the Gun Control Act and ATF regulations, and that it may
violate the PRA because the burden is redundant. Another commenter
asserted that because of AES character limitations it may be difficult
or impossible to include the serial number, make, model, and caliber
information. In addition, one commenter asserted that the manufacturer,
model number, and caliber does not assist law enforcement verify the
export because the Foreign Trade Regulations (FTR) and EAR already
require that the item description entered in the EEI filing in AES
conform to that shown on the license. One commenter asserted it
generally supports strong oversight measures for arms transfers and
from that perspective, it welcomes detailed digital record-keeping
requirements. Another commenter recommended using the term ``model'' or
``model designation'' rather than ``model number,'' consistent with ATF
regulations.
BIS response: BIS has included filing requirements only when
necessary to ensure that export control concerns will be protected,
including export enforcement and transparency concerns. As noted above,
BIS in this final rule addresses the concerns about exports under
License Exception BAG by not requiring an EEI filing in AES for such
exports, though CBP Form 4457 will require information on the serial
numbers, make, model, and caliber for the firearms being exported. This
much more focused requirement will also be responsive to assertions
that the information proposed to be collected was an undue paperwork
burden on exporters.
While other Federal regulations may require similar information,
BIS would not have the legal authority to subpoena or otherwise request
the same information unless the records are required to be kept under
the EAR. If different regulations require the same information, then
there should be no additional burden on exporters or other relevant
parties for maintaining this information to meet their various
regulatory requirements. Typically, the EAR is flexible in how specific
records are maintained since it regulates a variety of industries with
different norms.
For items that are exported under a U.S. Government authorization
for temporary export, it is still warranted to require that information
to be filed as EEI in AES. This final rule adopts a revised requirement
in Sec. 758.1(g)(4) to limit it to temporary exports from the United
States or when the license or other approval contains a condition
requiring all or some of this information to be filed as EEI in AES.
This final rule clarifies that a temporary export for purposes of Sec.
758.1(g)(4) is any export whereby the EAR authorization requires
subsequent return to the United States (e.g., License Exception TMP or
a license authorizing a temporary export). BIS notes that this revised
approach scales back the reporting requirement significantly, focuses
it on exports of the primary concern for ensuring the U.S. Government
can confirm what was temporarily exported is what will be returned, and
importantly still retains the ability of BIS to impose this condition
when warranted on a case-by-case for any particular license where BIS
and the other license review agencies believe requiring the filing of
this information as EEI in AES is warranted. BIS is aware that the
Department of State sometimes includes such a requirement as a proviso
on some of its licenses or approvals for firearms, so the requirement
that is included in this final rule that retains the ability of BIS to
impose such a condition on Commerce licenses is consistent with
licensing practices under the ITAR.
BIS has confirmed with CBP and the U.S. Census Bureau that AES on
the ACE platform can accommodate EEI filers to submit the serial
number, make, model, and caliber information. Under the current ITAR
licensing practices, sometimes provisos are included on a State license
or other approval that requires this information to be entered as EEI
in AES, and BIS is not aware of the current system not permitting the
proper filing of this information as EEI in AES.
BIS generally supports strong oversight. It also accepts the
recommendation to adopt the term ``model'' instead of the proposed
``model number.''
Comment 76: Two commenters asserted that the only place where the
reporting requirement of serial numbers, make, model, and caliber may
be warranted was for License Exception TMP. One of these commenters
noted that ``such a requirement of mandatory serial number reporting in
AES might make sense only for temporary exports and imports under TMP
in particular, to allow re-import procedures to be followed and
verified.'' However, the requirements proposed in new Sec. Sec.
758.10(b)(1)(ii) and 740.9(b)(5)(iv)(B) already cover this by requiring
serial numbers as part of a complete list to be submitted to CBP at the
time of import and/or export.
BIS response: BIS clarifies that the reference in License Exception
TMP in new Sec. Sec. 758.10(b)(1)(ii) and 740.9(b)(5)(iv)(B) are for
information to be provided at the time of temporary import and export
of firearms temporarily in the United States. The proposed requirements
in Sec. 758.10(b)(1)(ii) in the phrase ``or other appropriate import
documentation (or electronic equivalents)'' and the reference to ``or
electronic equivalents'' was referring to the possibility that such
information could be provided to CBP in person or electronically by
using the ACE portal at the time of temporary import and subsequent
export, so BIS does not see an inconsistency with the proposed
requirement and therefore will include the requirement in this final
rule as originally proposed. BIS agrees with the commenter's assertion
that for firearms temporarily exported under License Exception TMP
under paragraph (a)(6), there is a possibility that in certain cases
the returned firearm may not be the same. This final rule includes a
Note 3 to paragraph (g)(4) in Sec. 758.1 to provide guidance on that
issue.
Entry Clearance Requirements for Temporary Imports
Comment 77: BIS received comments asserting that foreign visitors
exporting personal firearms after temporary import should not have to
file in AES for many of the same reasons why filing in AES for exports
authorized under License Exception BAG is not appropriate. Another
commenter asserted that such AES declaration requirement would
discourage foreign participants from coming to the U.S. for hunting and
competitive shooting.
BIS response: BIS does not agree with these assertions. As noted
above, one of the permissible identifiers in filing in AES is a foreign
passport, so the most substantive concern for individuals filing in AES
does not apply for these
[[Page 4156]]
filings. In addition, those using License Exception TMP will generally
be companies, so the concerns expressed about AES being more oriented
to companies compared to individuals also does not apply. For these
reasons, BIS in this final rule publishes the changes as proposed. In
addition, as noted above, each country, including the United States,
imposes requirements that it believes are warranted to regulate the
importation and use of firearms in its country. U.S. hunters and
competitive shooters that travel overseas and foreign hunters and
competitive shooters who come to the United States understand that
firearms are regulated.
Comment 78: One commenter asserted that the ATF Form 6NIA can
confirm that the individual is returning with the same firearm that was
brought to the U.S., so there is no need to require EEI filing in AES.
BIS response: BIS does not accept this change. To properly
administer and enforce export controls, BIS must have access to basic
information about an item and cannot solely rely on information
collected by another agency, though this information, as appropriate,
could supplement information collected by BIS.
Comment 79: One commenter asserted that the ITAR does not have the
same type of EEI filing in AES requirement, so including this under the
EAR would be more restrictive.
BIS response: BIS clarifies here that under the ITAR, the
Department of State is licensing the temporary import and export, which
required much of the same information requirements. The Commerce May 24
rule did not change the basic construct for how the EAR regulates
imports, but BIS needed a means to track firearms temporarily entering
the U.S. for subsequent export.
Comment 80: One commenter requested text be added to Sec.
758.10(a)(2) to exempt from the entry clearance requirements temporary
imports by nonresident aliens who temporarily import firearms under the
provisions of 27 CFR 478.115(d).
BIS response: BIS clarifies here the purpose of Sec. 758.10.
Because a nonresident alien, e.g., a foreign hunter, will need an
approved Form 6NIA (ATF Form 5330.3D Application/Permit for Temporary
Importation of Firearms and Ammunition by Nonimmigrant Aliens) from ATF
prior to bringing the USMIL firearm or ammunition into the U.S., the
ATF controls will account for the temporary import. Therefore, License
Exception BAG does not need to be referenced in Sec. 758.10. The
subsequent export out of the U.S. will require an EAR authorization and
would need to be done in accordance with License Exception BAG, or some
other U.S. Government authorization if License Exception BAG was not
available.
Comment 81: One commenter asserted that the new Sec. 758.10
``Entry clearance requirements for temporary imports'' appears to apply
to all temporary imports at the time of temporary import. This
commenter asserted that as the requirements of Sec. 758.10 should not
apply to nonresident aliens temporarily importing firearms under the
separate provisions of the ATF, and recommended clarifying this in the
final rule.
BIS response: BIS agrees. This final rule clarifies that the
requirements of Sec. 758.10 do not apply to temporary imports for
nonimmigrant aliens under the provisions of the Gun Control Act of 1968
and administered in part with the ATF Form 6NIA.
Comment 82: One commenter was concerned that the new Sec. 758.10
``Entry clearance requirements for temporary imports'' does not address
the potential use of License Exception RPL. Specifically, proposed
Sec. 758.10(b)(1)(i) requires a statement to CBP certifying ``. . .
This shipment will be exported in accordance with and under the
authority of License Exception TMP,'' which would be a false
certification if RPL were being used.
BIS response: BIS agrees and accepts adding License Exception RPL
as a valid purpose for a temporary import under Sec. 758.10. For the
same reason, this final rule adds BIS licenses as a valid purpose for a
temporary import under Sec. 758.10. In addition, this final rule
clarifies that a temporary import for repair or servicing in the United
States does not require an EAR authorization, but the subsequent export
must be authorized either as eligible for License Exception RPL or
authorized under a BIS license at the time of entry. For example, a BIS
license would be required at the time of entry if the repair or
servicing of a temporarily imported firearm would result in enhanced
capability of the item because License Exception RPL is not available
for such enhancements. Instead, under this final rule, the exporter
could obtain a BIS license to authorize such an export that was brought
into the United States as a temporary import. Section 758.10(a)(1)
addresses these types of imports for repair and servicing. For
additional information, please see section Entry clearance requirements
for temporary imports (Sec. 758.10) below that details the
requirements for use of these authorizations.
Relationship Between EAR and ATF Regulations
Comment 83: One commenter requested the ATF Ruling 2004-2 be
amended to account for this USML to CCL transition, in order to not be
more restrictive under the EAR compared to the ITAR. The commenter
asserted that the ITAR draws a clear distinction between permanent and
temporary import jurisdiction in 22 CFR 120.18, although certain items
regulated under the Gun Control Act or National Firearms Act, if
authorized for import under those laws, continue to require
transactional import approval from ATF for temporary imports unless ATF
Ruling 2004-2 (April 7, 2004) permits the DSP-61 or ITAR exemption to
substitute for this approval.
BIS response: The changes included in the Commerce May 24 rule
under Sec. Sec. 740.9 and 758.10 were intended to address issues
related to temporary importation under the EAR. As noted above, this
final rule adds License Exception RPL and BIS licenses to Sec. 758.10
to further address issues related to temporary imports under the EAR.
Other agencies will review, and if necessary, address, any effects of
these final rules.
Comment 84: One commenter recommended coordinating proposed changes
with ATF so that the corresponding changes are made to the USMIL at the
same time, which would prevent businesses from having to consult both
the USML and USMIL when deciding whether a transaction involves
brokering.
BIS response: The USML and the USMIL are separate lists of AECA
defense articles with both shared as well as different AECA objectives,
and as such warrant the retention as separate lists.
Comment 85: One commenter was concerned that removing license
requirements for temporary imports of the items removed from the USML
would create another channel for criminal elements to obtain weapons in
the U.S.
BIS response: BIS disagrees. Temporary imports will be addressed by
BIS, and the same type of U.S. Government authorization requirement
will apply for exports of items temporarily imported as other exports
under the EAR.
Comment 86: One commenter was concerned that the Commerce May 24
rule did not provide a mechanism, such as a DSP-73, for certain
firearms to be temporarily exported and subsequently returned to the
U.S., given the firearm importation prohibitions under 18
[[Page 4157]]
U.S.C. 922(l) and 925(d)(3). This commenter asserted that unlike many
other items that have transitioned from the USML to the CCL, firearms
are subject to unique restrictions on the permanent import side under
the jurisdiction of the ATF. This commenter asserted that the
Department of State's jurisdiction over temporary exports and temporary
imports has played an important role by providing companies with a
viable method of bringing their guns back into the U.S. without running
afoul of ATF's strict importation prohibitions and similar treatment
should be retained under the EAR.
BIS response: BIS clarifies that BIS will require a U.S. Government
authorization for temporary exports. The EAR authorizations most likely
to be used to authorize temporary exports include License Exceptions
BAG and TMP, as well as Commerce licenses. Therefore, BIS does have
similar authorization requirements and approval mechanisms as under the
ITAR. BIS notes that the import back into the U.S. will not require an
EAR authorization.
Comment 87: One commenter asserted that a DSP-73 license is vital
because it covers both the U.S. export and U.S. import requirements and
the commenter is concerned without adding a similar type of
authorization under the EAR that certain temporary exports for use in
filming will not be possible because the return of the exported
firearms would be subject to ATF's permanent import process which
restricts many types of firearms pursuant to Federal law, e.g., short
barreled shotguns. This commenter asserted that because most firearms
temporarily exported for the movie industry are either military
surplus, non-sporting, or National Firearms Act weapons, of which
importation is prohibited under the ATF regulations, that this is an
importation issue to be addressed to ensure these types of temporary
exports can still proceed under the EAR and ATF construct, similar to
the ITAR and ATF construct.
BIS response: A Commerce license to authorize a temporary export
would authorize the temporary export and require the item's return. A
separate EAR authorization is not required for the import back into the
United States after the temporary export since this would be covered
under the scope of the authorizing export license.
Comment 88: One commenter requested clarification for permanent
import after temporary export for repair or servicing under License
Exception TMP under paragraph (a)(6). This commenter asserted it agreed
with the proposed changes but requested that the subject of temporary
export of firearms, specifically vintage shotguns with barrel lengths
over 18 to Canada, be clearly addressed.
BIS response: BIS notes that the long barrel shotguns this final
rule will move from ECCN 0A984 to 0A502 may require a U.S. Government
authorization depending on the specifics of the export, in particular
the destination for the export. Regardless of the EAR authorization
used to authorize the export, a separate EAR authorization will not be
required for the subsequent import into the United States.
Comment 89: One commenter asserted that ATF 27 CFR 478.92 includes
a requirement to mark firearms being imported with the importer's name
and address. This commenter was concerned that this destroys the
originality and affects the value of the firearm that was temporarily
exported. This commenter asserts because these long barreled shotguns
fall under the EAR, the ATF will not clarify the requirement on
shotguns and it creates confusion. This commenter requests the final
rule to clarify this issue regarding markings for shotguns being moved
from ECCN 0A984 to ECCN 0A502, as well as for the other firearms being
moved from the USML to the CCL.
BIS response: BIS clarifies here that the EAR does not require any
types of physical markings to be made on a firearm or any other
commodity being temporarily exported for repair or servicing for return
to the United States. For a licensed transaction in an exceptional
case, a condition could potentially be placed on a Commerce license
that required the exporter to make some type of physical marking on the
commodity, but this would be extremely rare under BIS licensing. If
additional safeguards were needed, BIS licenses would typically require
additional documentation to confirm delivery verification or to require
the exporter to get other written affirmations from the other parties
to the transaction.
EAR Recordkeeping Requirements
Comment 90: One commenter asserted that the GCA requires all
Federal Firearm Licensees to maintain firearm records for 20 years
after the date of disposition and that the proposed change requiring
records under the EAR is redundant and may cause confusion because of
the different record retention periods. This commenter asserted in
complying with the EAR, companies may inadvertently violate the GCA.
BIS response: BIS does not agree. The EAR does not require records
to be destroyed after five years, just that the records be kept for at
least that long. Nothing in the EAR prohibits maintaining the records
for longer periods.
Comment 91: One commenter asserted that the recordkeeping
requirement for warranty certificates for people outside the U.S. would
be more restrictive than the ITAR. The commenter asserted that BIS has
not provided a coherent explanation for why the new recordkeeping
burden makes sense, is related to exports, or would be of benefit to
the enforcement of the export control laws.
BIS response: BIS does not agree with the requested change to
remove the warranty certificate requirement as a recordkeeping
requirement. As noted above by many commenters, BIS has an interest in
ensuring the firearms and related items on the CCL are used by the
intended end user for the intended end use, and BIS needs any
information that may be relevant to the ultimate disposition of those
firearms to safeguard U.S. national security. The recordkeeping
requirements for the warranty certificates included in the Commerce May
24 rule and in this final rule will be an additional safeguard for EE
to have further insights into where a firearm exported under a U.S.
Government authorization may have ultimately ended up after export. A
warranty certificate that is submitted by a person located outside the
United States to a U.S. exporter is relevant to the U.S. Government for
export control enforcement purposes. The ITAR and EAR control
structures are not the same, so in certain cases a restriction may be
more restrictive under the EAR compared to the ITAR and this is an
example of where the EAR will be more restrictive, but it is still
warranted in the context of the EAR.
Comment 92: One commenter asserted that warranties are issued by
the manufacturer, not the exporter and that many manufacturers do not
always issue specific ``warranty certificates'' to individuals. This
commenter asserted that most manufacturers provide warranty statements
in a broad boilerplate statement included in an instruction manual, or
on their website. This commenter also asserted that there is thus no
way to know when that information is accessed by a foreign person or
sent to an address outside the U.S. One commenter asserted that a
potential issue is with the recordkeeping requirement of warranty
certificates is that an exporter may not have a manufacturer's (or any
other)
[[Page 4158]]
warranty certificate as part of the transaction. This commenter
requested some clarification on the requirements.
BIS response: BIS clarifies here that the EAR recordkeeping
requirements generally do not impose an affirmative duty to create a
record. The recordkeeping requirements typically apply if in the normal
course of your business activities related to an export, reexport, or
transfer (in-country) a record is created or received that is within
the scope of records that must be retained for purposes of the EAR
recordkeeping requirements.
BIS confirms here that if the manufacturer is not the exporter, it
is not required to keep the warranty certificate for purposes of part
762. Section 762.1(b) (Persons subject to the part) identifies the
persons that are required to keep records for purposes of part 762 of
the EAR.
Comment 93: One commenter asserted that there is the possibility
that retaining such information that would be contained in a warranty
certificate may violate the privacy laws of other countries, such as
the General Data Protection Regulation (GDPR) (European Union (EU)).
BIS response: BIS is not in a position to opine on the
applicability of the GDPR here but notes that parties transacting in
items subject to the EAR are subject to U.S. laws and regulations,
including recordkeeping requirements.
Alignment With the Wassenaar Arrangement Munitions List
Comment 94: One commenter asserted that the proposed changes do not
appear to be in line with established WAML I-III, suggesting that the
inclusion of semi-automatic weapons in WAML1 explicitly as munitions
demonstrates an intentional differentiation between military and
security items, on one hand, and dual-use items on the other.
BIS response: On the general question of whether the changes
included in the Commerce May 24 rule align with the WAML, BIS notes
that Wassenaar Arrangement member countries implement the WA control
lists in accordance with their own national export controls. The items
being moved from USML Category II are controlled under four new ``600
series'' ECCNs. The items moved from USML Categories I and III are not
controlled in the ``600 series,'' but importantly are still subject to
the same NS 1 license requirement that would apply if these WAML items
were added to the ``600 series.'' In addition, although not derived
from the Wassenaar Arrangement, the end item firearms are subject to a
license requirement for the Firearms Convention (FC)--meaning that the
end item firearms are subject to an even more restrictive license
requirement under the EAR compared to the ``600 series,'' 9x515 items,
and other items controlled for NS reasons on the CCL. In addition, the
final rule also includes other provisions, such as requiring
conventional arms reporting, that reflects U.S. Government commitments
to the Wassenaar Arrangement and to the United Nations. Thus, the
changes are consistent with the U.S. Government's commitments to the
Wassenaar Arrangement.
Comment 95: One commenter asserted semi-automatic weapons used by
peacekeepers, military, and police are intended to be controlled as
munitions. The proposal to move semi-automatic firearms and large
caliber rifles to ECCN 0A501 on the CCL does not appear to be in line
with this designation.
BIS response: For the reasons noted above in the BIS response to
Comment 1, BIS does not agree. BIS notes that the export of semi-
automatic weapons used by peacekeepers, military, and police will still
require U.S. Government authorization and in most cases will require an
approved license under the EAR, except when destined to the U.S.
Government or it is a semi-automatic weapon that was legally exported
or reexported under U.S. export controls that is being returned after
servicing or repair under License Exception RPL.
Comment 96: One commenter provided several comments related to the
combined ITAR and EAR amendments to U.S. Government commitments to
multilateral controls, that included 33 numbered topics listed in the
order that topic appears in the WAML and then subdivided into three
parts, with the following number of examples: 27 U.S. and multilateral
texts are either identical or substantially equivalent; 74 US controls
omit what WAML controls (or WAML omits U.S. decontrols); and 165 WAML
omits what U.S. controls (or U.S. omits WAML decontrols).
BIS response: BIS notes that this one commenter submitted a large
number of comments regarding the alignment with the WAML. For the
comments where BIS does not believe any changes are needed to align
with the WAML, BIS has not summarized each of those comments in this
final rule because of the length of the comments, but does confirm that
BIS did review each of the comments. For many of these comments, the
items were already controlled prior to the effective date of this final
rule or will be controlled for NS reasons on the CCL on the effective
date of this final rule, and for certain comments the ITAR retains
control of the items that the commenter thought would not be adequately
controlled under the USML. For the alignment with the WAML comments
where the commenter has raised an issue that BIS believes warranted a
change to ensure the changes in the final rule align with the WAML,
those suggested changes, e.g., the revisions described above to ECCN
0A018 and 0A505, are described above in greater detail, along with the
BIS responses.
Delayed Effective Date for a Final Rule
Comment 97: BIS received a number of recommendations on the
appropriate length for the delayed effective date for the final rule,
ranging from 90 to 180 days for delayed effective dates. The rationale
for the shorter length was to allow small businesses to immediately
benefit while those recommending longer or split effective dates
suggested the time period would allow time for updates to IT systems,
policies, and processes. Other commenters asserted that they supported
a split implementation period (180 days for certain provisions,
effective immediately or short as possible for other provisions).
BIS response: BIS has determined that a 45-day delayed effective
date is appropriate. To address concerns that a longer delayed
effective date and transition period may be warranted, BIS highlights
here the importance of the various grandfathering provisions included
in General Order No. 5 in Supplement No. 1 to part 736 of the EAR and
in the previously published State transition guidance, that is
supplemented with information on the DDTC website.
Comment 98: One commenter requested that BIS delay publishing a
final rule until the Government Accounting Office (GAO) or the Library
of Congress has publicly reported to the Congress their impact on
numerous statutes referring to ``defense articles,'' because of the
potential loss of so many U.S. arms export controls and likely negative
impact on curbing irresponsible and illegal arms transfers.
BIS response: BIS welcomes the publication of the GAO report.
However, the timing of the publication of a final rule and its
effective date are not contingent on the publication of the GAO report.
Description of Regulatory Changes
This final rule creates 17 new ECCNs on the CCL to control items
that are being removed from the USML as
[[Page 4159]]
described in a final rule issued concurrently by the Department of
State. BIS did not receive any comments on the proposed addition of
ECCNs 0A503, 0B602, 0D501, 0D505, 0D602, 0E502, 0E504, 0E505, and 0E602
in the Commerce May 24 rule, so this final rule adopts these ECCNs as
proposed, except for one clarification made to ECCN 0B602.a.8 and minor
clarifications to the Related Controls paragraphs to ECCNs 0D501,
0D505, 0D602, 0E502, and 0E505. In ECCN 0B602, this final rule replaces
``gun straightening presses'' with the more specific control parameter
``barrel straightening presses.'' This change is made to clarify that
the straightening presses controlled under ECCN 0B602.a.8 are those for
barrels. In the Related Controls paragraphs for ECCNs 0D501, 0D505,
0D602, and 0E505, this final rule removes the parenthetical phrase that
references 22 CFR 121.1 and the related USML category because this
information is duplicative of existing text in these Related Controls
paragraphs. This final rule also revises the Related Controls paragraph
in ECCN 0E502 by removing ``N/A'' and adding that ``[t]echnical data
required for and directly related to articles enumerated in USML
Category I are `subject to the ITAR.' '' This clarification does not
change the scope of ECCN 0E502 and simply alerts the public to review
the ITAR for such technical data. BIS does not make any additional
changes to proposed ECCN 0E501 and adopts it as proposed. See the
Commerce May 24 rule for additional background on these provisions. BIS
received comments on seven proposed ECCNs for which the agency is
adopting additional changes: 0A501, 0A502, 0A504, 0A505, 0A602, 0B501,
and 0B505. The summary below describes each of these ECCNs and the
controls that apply to them.
New ECCN 0A501: Firearms and Related Commodities
This final rule adds new ECCN 0A501 and applies national security
(NS Column 1), regional stability (RS Column 1), Firearms Convention
(FC Column 1), United Nations (UN), and anti-terrorism (AT Column 1)
reasons for control to the non-automatic and semi-automatic firearms,
including rifles, carbines, revolvers or pistols listed in the ECCN
entry in the regulatory text to this final rule, enumerated parts and
components and to ``specially designed'' ``parts,'' ``components,''
``accessories'' and ``attachments'' for those firearms and ``parts''
and ``components.''
This final rule adds ECCN 0A501.y and only imposes an anti-
terrorism (AT Column 1) and United Nations (UN) reasons for control and
covers such items as scope mounts or accessory rails, iron sights,
sling swivels, butt plates, recoil pads, bayonets, and stocks or grips
that do not contain any fire control ``parts'' or ``components.''
This final rule adds a technical note to ECCN 0A501 stating that
``parts'' and ``components'' include ``parts'' and ``components'' that
are common to firearms described in ECCN 0A501 and to firearms
``subject to the ITAR.''
It also adds another note to ECCN 0A501 to state that certain
firearms and similar items are EAR99. Those items are: Antique firearms
(i.e., those manufactured before 1890) and reproductions thereof,
muzzle loading black powder firearms except those designs based on
centerfire weapons of a post 1937 design, BB guns, pellet rifles, paint
ball, and all other air rifles.
In addition, for purposes of new ECCN 0A501 and the rest of the new
ECCNs described below, items previously determined to be ``subject to
the EAR'' under a commodity jurisdiction determination issued by the
U.S. Department of State that were designated as EAR99 will generally
not be classified in any of the new ECCNs that are being created with
this final rule. As a conforming change, this final rule revises
paragraph (e)(3) of General Order No. 5 to add a reference to the
``0x5zz'' ECCNs this final rule adds to the CCL.
This final rule adopts the following additional changes to ECCN
0A501 to respond to the comments received on the Commerce May 24 rule:
This final rule revises Related Controls paragraph (1) to clarify
that the magazines that are ``subject to the ITAR'' are those with a
capacity ``greater than 50 rounds.'' The Commerce May 24 rule used
terminology in the control parameter that created ambiguity because it
was slightly different than as proposed in the State May 24 rule, so
this final rule revises the EAR text based on the comments received to
align with the terminology used on the ITAR.
This final rule revises ``items'' paragraph (a) to remove the
phrase ``of caliber less than or equal to .50 inches (12.7 mm)'' and
add in its place the phrase ``equal to .50 caliber (12.7 mm) or less.''
In making this change, BIS uses the same control text of ``.50 caliber
(12.7 mm)'' as used in the Department of State companion rule.
This final rule adds a Note 1 to paragraph 0A501.a. This note
clarifies that combination pistols are controlled under items paragraph
.a. The note also defines the term `combination pistol' for purposes of
this ECCN. A combination pistol has at least one rifled barrel and at
least one smoothbore barrel. Because of the hybrid nature of these
firearms, commenters requested that this type of clarifying note be
added.
This final rule adds a Note 2 to 0A501.d to address a question,
raised by the commenters, whether magazines with a capacity of 16
rounds or less are controlled under 0A501.x or designated EAR99. The
new note specifies that magazines with a capacity of 16 rounds or less
are controlled under 0A501.x. BIS notes this was the intent of the
Commerce May 24 rule, but because commenters were not sure, this rule
specifies where these magazines are controlled.
This final rule revises ``items'' paragraph (e) to add the phrase
``or machined items'' to specify that ECCN 0A501.e includes those
machined items even if they are not casted, forged, or stamped.
This final rule revises the introductory text of 0A501.y to add the
phrase ``as follows, and ``parts,'' ``components,'' ``accessories,''
and ``attachments'' ``specially designed'' therefor'' to clarify,
consistent with the other .y paragraphs on the CCL, that the
``specially designed'' ``parts,'' ``components,'' ``accessories,'' and
``attachments'' for .y items will also be controlled under this .y
paragraph and not controlled under 0A501.x.
This final rule adds a new paragraph y.7 to control firearms
manufactured from 1890 to 1898 and reproductions thereof. This final
rule makes this change to address commenters that asserted that the
year 1890 should be changed to 1898 in Note 3 to 0A501 for defining
antique firearms. BIS did not accept the change because the year 1890
is based on the Wassenaar Arrangement, but does address this concern by
controlling these firearms under a new .y paragraph. As a conforming
change, this final rule adds a new License Requirement Note to ECCN
0A501 to specify that a license is required for exports and reexports
to China of 0A501.y.7 firearms.
This final rule adds a new Note 4 to 0A501, to clarify the
classification of certain muzzle loading (black powder) firearms. This
is a conforming change as part of the removal of the control text of
ECCN 0A018 in this final rule.
New ECCN 0A502: Shotguns and Certain Related Commodities
This final rule adds new ECCN 0A502 to control both the shotguns
being moved from the USML that are being added to the CCL (barrel
length less than 18 inches) and the shotguns and the enumerated
``parts'' and
[[Page 4160]]
``components'' controlled in ECCN 0A984 (barrel length 18 inches or
greater) prior to this final rule. This final rule controls shotguns
with a barrel length less than 18 inches under NS Column 1, CC Column
1, FC, UN, and AT Column 1 plus regional stability (RS Column 1).
Shotguns controlled in ECCN 0A984 that are transferred to ECCN 0A502 by
this final rule will retain Firearms Convention (FC), crime control (CC
Column 1, 2, or 3 depending on barrel length and end user), and United
Nations (UN) reasons for control. Such shotguns will not be controlled
for national security reasons because they are not on the WAML.
This final rule adopts the following additional changes to ECCN
0A502 to respond to the comments received on the Commerce May 24 rule:
This final rule revises the heading of ECCN 0A502 to add the phrase
``shotguns ``parts'' and ``components,'' consisting of'' to clarify
that the parts and components controlled under 0A502 are for shotguns
in response to one commenter's request.
This final rule revises the LVS paragraph in the License Exception
section to add License Exception LVS eligibility of $500 for certain
parts and components under ECCN 0A502. The Commerce May 24 rule
proposed N/A for LVS for ECCN 0A502. This final rule makes this change
to create equivalent treatment for License Exception LVS for purposes
of ECCNs 0A501 and 0A502. Similar to LVS eligibility in ECCN 0A501, the
LVS eligibility will include all Country Group B countries and an
additional paragraph that identifies other parts and components that
are eligible for LVS if the ultimate destination is Canada.
This final rule revises the Related Controls paragraph to remove
the phrase ``combat shotguns and'' because it is not needed as a
modifier of fully automatic shotguns and the phrase is not used on the
USML. This final rule also simplifies the Related Controls paragraph to
use a single sentence to identify shotguns that are fully automatic as
``subject to the ITAR.''
This final rule adds a Note 1 to 0A502 to clarify that shotguns
made in or before 1898 are considered antique shotguns. This note
clarifies that these antique shotguns are designated as EAR99.
Lastly, in ECCN 0A502, this final rule adds a Technical Note to
specify the classification of shot pistols or shotguns that have had
the shoulder stock removed and a pistol grip attached. The technical
note specifies these are controlled by ECCN 0A502. The technical note
also specifies that slug guns are controlled under ECCN 0A502.
New ECCN 0A504: Optical Sighting Devices and Certain Related
Commodities
This final rule adds new ECCN 0A504 to replace ECCN 0A987, which
controlled optical sighting devices for firearms. This final rule
revises the reasons for control table to state specifically that the
Firearms Convention (FC) reason for control applies to all paragraphs
in the ECCN except 0A504.f, which controls laser pointing devices. In
addition, BIS adds an RS control for certain riflescopes, which are
identified in their own paragraph in the ECCN under 0A504.i in this
final rule. The riflescopes in this paragraph are limited to those
``specially designed'' for use in firearms that are ``subject to the
ITAR.'' This final rule includes an exclusion in the criteria of this
paragraph to ensure less sensitive riflescopes that are being moved
from ECCN 0A987 to 0A504 on the effective date of this final rule, that
currently are not RS controlled under the EAR, will not be controlled
under this paragraph. This final rule also adds a note to this
paragraph (i) to specify that paragraph (a)(1) of the definition of
``specially designed'' in Sec. 772.1 of the EAR is what is used to
determine whether a riflescope is ``specially designed'' for purposes
of this paragraph of ECCN 0A504.i--meaning paragraph (a)(2) and the
paragraph (b) releases are not reviewed to make the ``specially
designed'' determination.
This change makes clear, consistent with BIS's existing
interpretation, that such devices are not optical sights and are not
subject to the FC reason for control. The new number is intended to
make identifying items on the CCL easier by grouping similar or related
items closer to each other.
This final rule adopts the following additional changes to ECCN
0A504 to respond to the comments received on the Commerce May 24 rule:
This final rule revises the LVS paragraph in the License Exceptions
section of ECCN 0A504 to add LVS eligibility of $500 for 0A504.g.
Commenters requested that LVS eligibility be added for these less
sensitive lenses and other optical elements controlled under 0A504.g.
These commenters also requested adding LVS eligibility for consistency
with the types of parts and components eligible for LVS under ECCN
0A501 in the Commerce May 24 rule. BIS agrees and adds LVS eligibility
of $500 for 0A504.g in this final rule.
New ECCN 0A505: Ammunition and Certain Related Commodities
This final rule adds new ECCN 0A505 and imposes national security
(NS Column 1), regional stability (RS Column 1), Firearms Convention
(FC), United Nations (UN), and anti-terrorism (AT Column 1) controls on
ammunition not enumerated on the USML, for firearms that will be
classified under ECCN 0A501, and for most ``parts'' and ``components''
of such ammunition. Such ammunition included in this final rule are for
small arms, in most cases, firearms of caliber not exceeding 0.50
inches, although some ammunition for firearms of caliber up to 0.72
inches is included. This final rule retains the CCL reasons for control
currently found in ECCNs 0A984 and 0A986 for shotgun shells. Buckshot
shotgun shells will be subject to the CC Column 1, FC Column 1, and UN
reasons for control under this final rule. Other shotgun shells are
subject to the FC, UN, and AT (North Korea only) reasons for control in
this final rule. Only ``parts'' and ``components'' will be eligible for
License Exception LVS. Ammunition for larger caliber weapons such as
howitzers, artillery, cannon, mortars, and recoilless rifles will
remain in USML Category III in this final rule. Ammunition that has
little or no civil use or that is inherently military such as
ammunition that is preassembled into links or belts, caseless
ammunition, tracer ammunition, ammunition with a depleted uranium
projectile or a projectile with a hardened tip or core and ammunition
with an explosive projectile also remains in USML Category III. Blank
ammunition for firearms controlled by ECCN 0A501 and not enumerated in
Category III of the USML will be controlled for United Nations and
anti-terrorism reasons only in this final rule.
This final rule adds three notes to clarify the scope of ``parts''
and ``components'' for ammunition classified under ECCN 0A505. Note 1
to 0A505.c clarifies the relationship between ECCNs 0A505 and 1A984 for
shotgun shells, stating that shotgun shells that contain only chemical
irritants are controlled under 1A984 and not 0A505. Separately, Note 2
to 0A505.x includes an illustrative list of the controls on ``parts''
and ``components'' in this entry, such as Berdan and boxer primers.
Note 3 to 0A505.x clarifies that the controls in ECCN 0A505 include
``parts'' and ``components'' that are common to ammunition and ordnance
described in this entry and to those enumerated in USML Category III.
[[Page 4161]]
This final rule adopts the following additional changes to ECCN
0A505 to respond to the comments received on the Commerce May 24 rule:
This final rule revises the LVS paragraph in the License Exceptions
section of ECCN 0A505 to increase the LVS eligibility from $100 to
$500. The Commerce May 24 rule had proposed $100, but commenters noted
that the cost of these parts and components would undermine the
usefulness of LVS eligibility if the $100 limitation was maintained.
Some commenters provided detailed price lists to support their position
that $100 of LVS eligibility would be of limited usefulness. BIS took
this into account and in this final rule increases the LVS eligibility
to $500 for ECCN 0A505.x. As a conforming change, because this final
rule moves ECCN 0A018.b to 0A505, this final rule adds grandfathering
provisions to retain LVS eligibility of $3,000 for any commodity that
was classified under 0A018.b prior the effective date of this final
rule.
This final rule revises ECCN 0A505.a to add the phrase ``or USML
Category I'' to clarify that ammunition for firearms controlled under
USML Category I is also controlled under 0A501.a, provided the
ammunition is not otherwise excluded by the control parameters in
0A501.a, i.e., being enumerated in 0A505.b, .c, .d, or in USML Category
III.
This final rule adds a Note 4 to 0A505 to specify that certain
types of ammunition (i.e., Lead shot smaller than No. 4 Buckshot, empty
and unprimed shotgun shells, shotgun wads, smokeless gunpowder, `Dummy
rounds' and blank rounds (unless linked or belted)), not incorporating
a lethal or non-lethal projectile(s) are designated EAR99. This final
rule also defines the terms `dummy round or drill round.' The new note
clarifies that these rounds are completely inert--meaning they contain
no primer, propellant, or explosive charge. The note specifies that
these types of rounds are typically used to check weapon function and
for crew training.
New ECCN 0A602: Guns and Armament
This final rule adds new ECCN 0A602 and imposes national security
(NS Column 1), regional stability (RS Column 1), United Nations (UN)
and anti-terrorism (AT Column 1) controls on guns and armament
manufactured between 1890 and 1919 and for military flame throwers with
an effective range less than 20 meters. It imposes those same reasons
for control on parts and components for those commodities and for
defense articles in USML Category II if such parts or components are
not specified elsewhere on the CCL or USML. Note 3 to 0A602 confirms
that black powder guns and armament manufactured in or prior to 1890
and replicas thereof designed for use with black powder propellants are
designated EAR99. The guns controlled in this ECCN are between 99 and
128 years old. The parts, components, accessories, and attachments
controlled in this ECCN include some that are for modern artillery.
Modern artillery remains on the USML, along with the most sensitive
``parts,'' ``components,'' ``accessories,'' and ``attachments'' for
these USML items. This final rule adds a note to clarify that
``parts,'' ``components,'' ``accessories,'' and ``attachments''
specified in USML subcategory II(j) are not subject to the EAR. The
USML Order of Review and CCL Order of Review already provide guidance
for making such a jurisdictional and classification determination, but
to highlight that these ``parts,'' ``components,'' ``accessories,'' and
``attachments'' are not classified under paragraph .x of 0A602, this
final rule adds a note.
This final rule adopts the following additional changes to ECCN
0A602 to respond to the comments received on the Commerce May 24 rule:
This final rule revises the Related Controls paragraph of ECCN
0A602 to add a Related Controls paragraph (3). This new Related
Controls paragraph provides a cross reference to ECCN 0A606 for engines
that are ``specially designed'' for a self-propelled gun or howitzer
subject to control under 0A606.a or USML Category VII. The Department
of State final rule includes a similar cross reference for purposes of
the USML and commenters requested the same type of note or related
control pointer be added to the EAR. The Department agrees and adds
Related Controls paragraph (3). As a conforming change, this final rule
redesignates Note 1 to 0A602 and Note 2 to 0A602 as Notes 2 and 3,
respectively.
New ECCN 0B501: Test, Inspection, and Production Equipment for Firearms
This final rule adds new ECCN 0B501 to cover ``Test, inspection,
and production `equipment' and related commodities for the
`development' or `production' of commodities enumerated or otherwise
described in ECCN 0A501 or USML Category I.'' This new ECCN applies the
national security (NS Column 1), regional stability (RS Column 1),
United Nations (UN), and anti-terrorism (AT Column 1) reasons for
control to four specific types of machinery and to one class of items
as proposed in the Commerce May 24 rule. The four specific types of
machinery are: small arms chambering machines, small arms deep hole
drilling machines and drills therefor, small arms rifling machines, and
small arms spill boring machines. The class of items covers dies,
fixtures, and other tooling ``specially designed'' for the
``production'' of items in the State Department final rule for USML
Category I or ECCN 0A501. In addition, as described below, this final
rule also expands the scope of 0B501.e to include all production
equipment ``specially designed'' for USML Category I items.
The NS and RS reasons for control do not apply to equipment for the
``development'' or ``production'' of commodities in ECCN 0A501.y
because those reasons for control do not apply to the commodities in
ECCN 0A501.y themselves.
The first four specific items noted above were listed in paragraphs
.o, .p, .q, and .r of ECCN 2B018 prior to the effective date of this
final rule, and are being listed in paragraphs .a, .b, .c, and .d of
ECCN 0B501 in this final rule. In addition, the class of items in new
0B501 that was included within ECCN 2B018, paragraph .n (jigs and
fixtures and other metal-working implements or ``accessories'' of the
kinds exclusively designed for use in the manufacture of firearms,
ordnance, and other stores and appliances for land, sea or aerial
warfare) prior to the effective date of this final rule, will, if
applicable to firearms controlled in 0A501, be subsumed in paragraph
.e. Jigs, fixtures, and metal working implements currently in 2B018
that are applicable to larger guns will be controlled in ECCN 0B602 in
this final rule and are discussed below.
Moving these items from 2B018 to 0B501 in this final rule retains
the national security (NS Column 1), anti-terrorism (AT Column 1), and
United Nations (UN) reasons for control and raises the regional
stability (RS) reason for control from RS Column 2 to RS Column 1. This
causes no change in destination-based license requirements, but allows
consideration of whether the export or reexport could contribute to
instability in any region, not just the region to which the item is
exported or reexported in considering whether to approve a license.
This final rule adopts the following additional changes to ECCN
0B501 to respond to the comments received on the Commerce May 24 rule:
This final rule expands ECCN 0B501.e to include all production
equipment ``specially designed'' for USML Category I items. This final
rule adds the term production equipment to the beginning
[[Page 4162]]
of the control text of ECCN 0B501.e and revises the phrase ``dies,
fixtures, and other tooling'' included in the Commerce May 24 rule to
``including dies, fixtures, and other tooling'' to indicate that these
items are illustrative and that other types of production equipment
that meet the control parameters are also controlled under ECCN 0B501.
New ECCN 0B505: Test, Inspection, and Production Equipment for
Ammunition
This final rule adds new ECCN 0B505 to impose national security (NS
Column 1), regional stability (RS Column 1), United Nations (UN), and
anti-terrorism (AT Column 1) controls on tooling, templates, jigs,
mandrels, molds, dies, fixtures, alignment mechanisms, and test
equipment, not enumerated in USML Category III, and ``specially
designed'' ``parts'' and ``components'' therefor, that are ``specially
designed'' for the ``production'' of ammunition other than for the
ammunition specified in 0A505.b, .c, or .d (certain shotgun shells with
buckshot and without buckshot and certain blank ammunition). In
addition, as described below, this final rule also expands the scope of
0B505.a to include all production equipment ``specially designed'' for
USML Category III items. Equipment for manufacturing shotgun shells
that do not contain buckshot will be controlled for the AT (North Korea
only) and UN reasons for control, which are the reasons for control
that applied to this equipment in ECCN 0B986 prior to this final rule.
ECCN 0B505 in this final rule does not include equipment for the hand
loading of cartridges and shotgun shells, so this final rule specifies
this in the heading.
This final rule adopts the following additional changes to ECCN
0B505 to respond to the comments received on the Commerce May 24 rule:
This final rule expands ECCN 0B505.a to include all production
equipment ``specially designed'' for USML Category III items. This
final rule adds the term production equipment to the beginning of the
control text of ECCN 0B505.a and revises the phrase ``tooling,
templates, jigs, mandrels, molds, dies, fixtures, alignment mechanisms,
and test equipment'' included in the Commerce May 24 rule to
``including tooling, templates, jigs, mandrels, molds, dies, fixtures,
alignment mechanisms, and test equipment'' to indicate that these items
are illustrative and other types of production equipment that meet the
control parameters are also controlled under ECCN 0B505.
Revisions to Eight ECCNs
To conform to new Federal Register Drafting Handbook requirements,
the amendatory instructions in this final rule sets forth the entire
text of eight ECCNs to be revised. BIS did not receive any comments on
the proposed revisions to the following six ECCNs 0E982, 1A984, 2B004,
2B018, 2D018, and 7A611 in the Commerce May 24 rule, so this final rule
revises those ECCNs as proposed. See the Commerce May 24 rule for
additional background on these revisions.
To help the public understand what specific parts of ECCN 0A018
will be different as a result of the changes in this final rule, the
narrative below describes the amendment in detail, including a
conforming change made to ECCN 0A988.
Revision to ECCN 0A018, and Conforming Change to ECCN 0A988
With the removal of ECCN 0A984 and the addition of 0A502 described
above, the Commerce May 24 rule proposed to make the conforming change
of removing and reserving 0A018.c since all the items classified in
0A018.c would be classified under other entries on the CCL once a final
rule was published.
This final rule adopts the following additional changes to ECCN
0A018 to respond to the comments received on the Commerce May 24 rule:
This final rule still revises ECCN 0A018, but instead of retaining
the commodities under 0A018.b as was proposed in the Commerce May 24
rule, these commodities are being moved to ECCN 0A505. As a conforming
change, this final rule replaces the control text of ECCN 0A018 with a
statement referring readers to ECCN 0A505.
This final rule adopts the following additional changes to ECCN
0A988 to respond to the comments received on the Commerce May 24 rule:
This final rule as a conforming change revises the heading of ECCN
0A988 to remove an outdated reference to 0A018.d. ECCN 0A018.d had been
previously removed and reserved, but the cross reference in 0A988 was
not updated. This final rule makes that correction.
Removal of Nine ECCNs
The Commerce May 24 rule proposed removing nine ECCNs. BIS did not
receive any comments on proposed removals of ECCNs 0A918, 0A984, 0A985,
0A986, 0A987, 0B986, 0E918, 0E984, and 0E987 in the Commerce May 24
rule, so this final rule removes those ECCNs as proposed. See the
Commerce May 24 rule for additional background on these removals.
Revision of ``Published''
This final rule adopts the following changes to part 734, and one
conforming change to part 732, to respond to the comments received on
the Commerce May 24 rule:
Specifically, this final rule adds a paragraph (c) to Sec. 734.7
stating that ``software'' or ``technology'' for the production of a
firearm, or firearm frame or receiver, controlled under ECCN 0A501,
that is made available by posting on the internet in an electronic
format and that may be directly loaded without further modification by
the machine operator into a computer numerically controlled machine
tool, additive manufacturing equipment, or any other equipment that
makes use of the ``software'' or ``technology'' to produce the firearm
frame or receiver or complete firearm, remains ``subject to the EAR.''
Also in Sec. 734.7, this final rule as a conforming change revises the
paragraph (a) introductory text to add a reference to new paragraph (c)
for the exclusions that apply to paragraph (a) for what is considered
``published.'' In Sec. 732.2 (Steps regarding scope of the EAR), under
the paragraph (b) introductory text for step 2 for publicly available
technology and software, this final rule also adds a reference to Sec.
734.7(c) to specify such ``software'' or ``technology'' for the
production of a firearm, or firearm frame or receiver, controlled under
ECCN 0A501, as referenced in Sec. 734.7(c)), is ``subject to the
EAR.''
Conforming Change to General Order No. 5
BIS does not make any additional changes in this final rule to what
was proposed in the Commerce May 24 rule as a result of the comments
received, so these changes are adopted as proposed. This final rule
amends General Order No. 5, paragraph (e)(3) (Prior commodity
jurisdiction determinations), in Supplement No. 1 to part 736, to add a
reference in two places to the new 0x5zz ECCNs that are being created
by this rule. This change to paragraph (e)(3) is a conforming change
and is needed because paragraph (e)(3) now only references the ``600
series'' and 9x515 ECCNs. 0x5zz ECCNs will include new ECCNs 0A501,
0A502, 0A504, 0A505, 0B501, 0B505, 0D501, 0D505, 0E501, 0E502, and
0E505.
[[Page 4163]]
Revisions to Regional Stability Licensing Policy for Firearms and
Ammunition
BIS does not make any additional changes in this final rule to what
was proposed in the Commerce May 24 rule as a result of the comments
received, so these changes are adopted as proposed. This final rule
applies the regional stability licensing policy set forth in Sec.
742.6(b)(1)(i) of the EAR to the items controlled for regional
stability reasons in ECCNs 0A501, 0A504, 0A505, 0B501, 0B505, 0D501,
0D505, 0E501, 0E504, and 0E505. That policy, which also applies to
``600 series'' and 9x515 items is case-by-case review ``to determine
whether the transaction is contrary to the national security or foreign
policy interests of the United States, including the foreign policy
interest of promoting the observance of human rights throughout the
world.'' This final rule also revises the regional stability licensing
policy set forth in paragraph (b)(1)(i) that is specific to the
People's Republic of China for 9x515 items. This final rule adds ECCNs
0A501, 0A505, 0B501, 0B505, 0D501, 0D505, 0E501, 0E504, and 0E505 to
this sentence to specify that these firearms and related items are to
be subject to a policy of denial when destined to the People's Republic
of China or a country listed in Country Group E:1. Lastly, this final
rule adds a sentence to the end of paragraph (b)(1)(i) to make it
explicit that applications for exports and reexports of ECCN 0A501,
0A505, 0B501, 0B505, 0D501, 0D505, 0E501, 0E504, and 0E505 items are
subject to a policy of denial when there is reason to believe the
transaction involves certain parties of concern, such as criminal
organizations, rebel groups, street gangs, or other similar groups or
individuals, that may be disruptive to regional stability.
Availability of License Exceptions
Many of the items in the new ``600 series'' ECCNs generally will be
eligible for the same license exceptions and subject to the same
restrictions on use of license exceptions as other ``600 series'' ECCNs
in this final rule. For the ECCNs on the CCL prior to the effective
date of this final rule that are being renumbered and placed in closer
proximity to the firearms-related items that are being removed from the
USML and added to the CCL, these existing firearms-related items will
continue to be eligible for the same EAR license exceptions as they
were prior to the effective date of this final rule, unless otherwise
restricted under Sec. 740.2, if the requirements of the license
exceptions are met.
Restrictions on All License Exceptions
This final rule also makes the following additional changes to part
740 to respond to the comments received on the Commerce May 24 rule by
adding two new general restrictions.
In Sec. 740.2 (Restriction on all license exceptions), this final
rule adds two additional restrictions for when license exceptions may
not be used. This final rule adds new paragraph (a)(21) to restrict the
use of license exceptions, except for License Exception GOV under Sec.
740.11(b)(2)(ii) for the reexport or transfer (in-country) of certain
firearms classified under ECCNs 0A501 or 0A502. The restriction on the
use of license exceptions applies if a part or component that is not
``subject to the ITAR,'' but would otherwise meet the criteria in USML
Category I(h)(2) is incorporated into the firearm or is to be
reexported or transferred (in-country) with the firearm with
``knowledge'' the part or component will be subsequently incorporated
into the firearm. Because these parts or components that would
otherwise meet the criteria in USML Category I(h)(2) could be used for
conversion of a semi-automatic firearm to a fully automatic firearm,
this final rule excludes those firearms from license exception
eligibility.
In Sec. 740.2 this final rule also adds a new paragraph (a)(22) to
restrict the use of license exceptions for the export, reexport, or
transfer (in-country) of any item classified under a 0x5zz ECCN when a
party to the transaction is designated on the Department of the
Treasury, Office of Foreign Assets Control (OFAC), Specially Designated
Nationals and Blocked Persons (SDN) list under the designation [SDNT],
or under the designation [SDNTK]. OFAC makes SDNT designations pursuant
to the Narcotics Trafficking Sanctions Regulations, 31 CFR part 536,
and SDNTK designations are made, pursuant to the Foreign Narcotics
Kingpin Sanctions Regulations, 31 CFR part 598. This restriction on the
use of license exceptions for these 0x5zz items will ensure that such
parties designated on the SDN list will not be able to receive these
0x5zz items without a BIS license.
License Exception: Shipments of Limited Value (LVS)
Under this final rule, complete firearms controlled under ECCN
0A501 are not eligible for License Exception LVS, 15 CFR 740.3.
Firearms ``parts,'' ``components,'' ``accessories,'' and
``attachments'' controlled under ECCN 0A501, other than receivers
(frames), and ``complete breech mechanisms,'' including castings,
forgings or stampings thereof, are eligible for License Exception LVS,
with a limit of $500 on net value per shipment. In addition, receivers
(frames), and ``complete breech mechanisms,'' including castings,
forgings or stampings thereof, are eligible for License Exception LVS
if the ultimate destination is Canada. This final rule states these
limits in the License Exceptions paragraph of ECCN 0A501, and no
revisions to the text of the license exception itself are needed to
implement them. BIS believes that this provision is generally
consistent with the license exemption for limited value shipments of
firearms formerly found in ITAR (22 CFR 123.17(a)) (removed and
reserved by the companion rule). This LVS eligibility included in this
final rule is less restrictive than the former ITAR provision in two
respects. First, the value limit per shipment will be $500 compared to
$100 in the ITAR. Second, the LVS eligibility in the final rule allows
exports of receivers and ``complete breech mechanisms'' to Canada
whereas Sec. 123.17(a) did not. However, the $500 LVS limit is based
on the actual selling price or fair market value, whereas the ITAR $100
limit is based on ``wholesale'' value. In addition, with respect to
Canada, an LVS limit of $500 per shipment is needed to comply with the
Section 517 of the Commerce, Justice, Science, and Related Agencies
Appropriations Act of 2015, which prohibits expending any appropriated
funds to require licenses for the export of certain non-automatic
firearms parts, components, accessories and attachments to Canada when
valued at under $500.
Guns and armament and related items controlled under ECCN 0A602 are
eligible for License Exception LVS, with a limit of $500 net value per
shipment in this final rule.
Ammunition controlled under ECCN 0A505 are eligible for License
Exception LVS; however, ammunition parts and components will be
eligible with a limit of $500 (Commerce May 24 rule proposed $100, but
as described below in the changes to ECCN 0A505, this final rule
increases the limit of $500) net value per shipment in this final rule.
Test, inspection, and production equipment controlled under ECCNs
0B501, 0B505, and 0B602 for firearms, guns and armament, and
ammunition/ordnance are eligible for License Exception LVS with a limit
of $3,000 net value per shipment, which is consistent with LVS
eligibility for most 600 series ECCNs in this final rule.
[[Page 4164]]
License Exception: Temporary Imports, Exports, Reexports, and Transfers
(In-Country) (TMP)
This final rule amends Sec. 740.9 to state that License Exception
TMP is not available to export or reexport the items that are the
subject of this rule to destinations in Country Group D:5 (See
Supplement No. 1 to part 740), or to Russia (Russian Federation).
License Exception TMP is also not available to export or reexport some
firearms and ammunition shipped from or manufactured in Russia (Russian
Federation), Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan,
Ukraine, or Uzbekistan. In addition, this final rule will prohibit the
use of License Exception TMP to export or reexport any item controlled
by ECCN 0A501 and any shotgun with a barrel length less than 18 inches
controlled under ECCN 0A502 that was shipped from or manufactured in
Country Group D:5. This final rule also prohibits use of License
Exception TMP to export or reexport any item controlled by ECCN 0A501
that is shipped from or manufactured in Russia, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or Uzbekistan, except for
any firearm model controlled by 0A501 that is also excluded under Annex
A in Supplement No. 4 to part 740 (the prohibition will not apply to
such firearms;); and any shotgun with a barrel length less than 18
inches controlled under 0A502 that was shipped from or manufactured in
Russia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan,
Ukraine, or Uzbekistan. These prohibitions will apply to temporary
exports of firearms from the United States, and the export of firearms
temporarily in the United States. This final rule for consistency with
the ITAR requirements for exports of firearms to Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Turkmenistan, Ukraine, and Uzbekistan, removes the
restriction included in the Commerce May 24 rule in paragraph
(b)(5)(iii) that the firearms may not ultimately be destined to one of
these seven countries from the restriction in paragraph (b)(5)(iii),
but retains the restriction for Russia. This final rule makes one
correction in Annex A in Supplement No. 4 to part 740 for the rifle
``VEPR Pioner'' under paragraph (b)(90) to correctly spell it as ``VEPR
Pioneer.''
This final rule limits temporary exports of firearms controlled
under ECCN 0A501 and any shotgun with a barrel length less than 18
inches controlled under ECCN 0A502 pursuant to License Exception TMP to
exhibition and demonstration (Sec. 740.9(a)(5) of the EAR) and
inspection, test, calibration, and repair (Sec. 740.9(a)(6) of the
EAR). Consistent with the ITAR requirements previously applicable to
temporary exports of the firearms covered by this rule (see 22 CFR
123.17(c), 123.22), exporters will continue to be required to file EEI
in AES for transactions involving such firearms that are authorized
pursuant to License Exception TMP (See Sec. 758.1(a)(10) of the EAR).
This final rule authorizes the use of License Exception TMP for the
export of ECCN 0A501 firearms temporarily in the United States for a
period of not more than one year subject to the requirement that the
firearms not be imported from or ultimately destined for certain
proscribed or restricted countries. Certain information as described in
the regulatory text will also be collected by CBP on behalf of BIS
under existing or new Commerce paperwork collections. This final rule
also makes eligibility to export under License Exception TMP for ECCN
0A501.a or .b or shotguns with a barrel length less than 18 inches
controlled in ECCN 0A502 subject to the following conditions:
At the time of entry for a temporary import, the temporary importer
is required to provide the required statement to CBP, as specified in
paragraph (b)(5)(iv)(A).
The temporary importer is required to include on the invoice or
other appropriate import-related documentation (or electronic
equivalents) provided to CBP a complete list and description of the
0A501 firearms being imported, including their serial numbers, model,
make, caliber, quantity, and U.S. dollar value, as specified in
paragraph (b)(5)(iv)(B).
If the firearms are temporarily imported for a trade show,
exhibition, demonstration, or testing, the temporary importer must
provide to CBP the relevant invitation or registration documentation
for the event and an accompanying letter that details the arrangements
to maintain effective control of the firearms while they are in the
United States, as specified in paragraph (b)(5)(iv)(C).
At the time of export, the temporary importer or its agent as
specified in paragraph (b)(5)(v) are required to provide the temporary
import documentation (i.e., the invoice used at the time of entry for
the temporary importation or other appropriate temporary import-related
documentation (or electronic equivalents)) related to paragraph
(b)(5)(iv)(B) to CBP. This information will be used by CBP to confirm
that such firearms were in fact temporarily imported under the EAR for
subsequent export under License Exception TMP.
This final rule adds a note to License Exception TMP to direct
temporary importers and exporters to contact CBP at the port of import
or export for the proper procedures to provide any data or
documentation required by BIS.
License Exception: Governments, International Organizations,
International Inspections Under the Chemical Weapons Convention, and
the International Space Station (GOV)
This final rule revises Sec. 740.11 to limit the applicability of
License Exception GOV for firearms, ``parts'' and ``components''
controlled by ECCN 0A501 and ammunition controlled by 0A505 to exports,
reexports, and transfers for official use by U.S government agencies
and official and personal use by U.S. Government employees (and the
immediate families and household employees of those government
employees) (Sec. 740.11(b)(2)(i) and (ii) of the EAR). This
authorization under License Exception GOV treats 0A501 firearms in the
same manner that other items that are subject to the EAR may be
exported to U.S. Government employees under License Exception GOV. It
does not impose certain restrictions that are imposed by the former
ITAR license exemption (22 CFR 123.18) (removed and reserved by
companion rule) that authorized shipments consigned to and for the use
of servicemen's clubs, and for service members or civilian employees if
the firearms are for personal use and the shipment is accompanied by a
written authorization from the commanding officer concerned. See the
Commerce May 24 rule for additional background. License Exception GOV
authorizes non-automatic and semi-automatic firearms and related
``parts'' and ``components.''
All other items that are the subject of this final rule will be
subject to the limits on use of License Exception GOV that apply to 600
series items generally, i.e., Sec. 740.11(b)--to, for, or on behalf of
the U.S. Government (including contractors, government employees, their
families and household employees) or Sec. 740.11(c) to a government in
Country Group A:1 cooperating governments or an agency of NATO.
However, this rule will add some additional restrictions for E:1 and
E:2 countries. This final rule will exclude the use of License
Exception GOV for any item listed in a 0x5zz ECCN for E:1 countries,
unless authorized under paragraph (b)(2)(i) or
[[Page 4165]]
(ii) when the items are solely for U.S. Government official use. In
addition, to better ensure compliance with section 1754(c) of the ECRA
and address concerns with certain end users and uses in Country Group
E:1 and E:2 countries, this final rule adds a new Note 2 to paragraph
(b)(2), which restricts the use of License Exception GOV for E:1 and
E:2 countries for multilaterally controlled items and anti-terrorism
(AT) controlled items when destined to certain end users or end uses of
concern.
This final rule also makes the following additional change to
License Exception GOV to respond to the comments received on the
Commerce May 24 rule:
In Sec. 740.11 of License Exception GOV, this final rule revises
Note 2 to paragraph (b)(2) to include illustrative examples of other
sensitive end-users. This final rule adds the parenthetical phrase
``(e.g., contractors or other governmental parties performing functions
on behalf of military, police, or intelligence entities)'' after the
phrase ``or other sensitive end-users'' to provide greater clarity on
the other end-users that are excluded.
License Exception: Baggage (BAG)
This final rule revises License Exception BAG, Sec. 740.14, to
allow United States citizens and permanent resident aliens leaving the
United States temporarily to take up to three firearms controlled by
proposed ECCN 0A501 and up to 1,000 rounds of ammunition for such
firearms controlled under ECCN 0A505.a for personal use while abroad.
This change to License Exception BAG is made to be consistent with
former 22 CFR 123.17(c) (removed and reserved by companion rule), which
authorized U.S. persons to take up to three non-automatic firearms and
up to 1,000 cartridges therefor abroad for personal use. This amendment
to License Exception BAG applies to both non-automatic and semi-
automatic firearms.
Travelers leaving the United States temporarily are required to
declare the 0A501 and 0A505 items to a CBP officer prior to departure
from the United States and present the firearms, ``parts,''
``components,'' ``accessories,'' ``attachments,'' and ammunition they
are exporting to the CBP officer for inspection, confirming that the
authority for the export is License Exception BAG, that the exporter is
compliant with its terms. Should exporters desire to contact CBP prior
to departure, contact information and a list of U.S. air, land and sea
ports of entry can be found at: https://www.cbp.gov/contact/ports.
This final rule also revises License Exception BAG to allow
nonresident aliens leaving the United States to take firearms,
``accessories,'' ``attachments,'' ``components,'' ``parts,'' and
ammunition controlled by ECCN 0A501 or 0A505 that they lawfully brought
into the United States. This change is consistent with former 22 CFR
123.17(d) (removed and reserved by companion rule), which authorized
foreign persons leaving the United States to take firearms and
ammunition controlled under Category I(a) of the USML (both non-
automatic and semi-automatic) that they lawfully brought into the
United States. This final rule does not adopt any changes to the
availability of License Exception BAG for shotguns and shotgun shells
authorized under paragraph (e)(1) or (2).
As a clarification to License Exception BAG, this final rule adds
one sentence to the introductory text of paragraph (b)(4) to highlight
the special provisions that apply in paragraph (e) for firearms and
ammunition and in paragraph (h) for personal protective equipment under
ECCN 1A613.c or .d. This one sentence does not change the existing
requirement and has been included to assist the public in better
identifying these special provisions.
Consistent with the ITAR requirements previously applicable to
temporary exports of the firearms and associated ammunition covered by
the May 24 proposed rule, BIS proposed in the Commerce May 24 rule to
modify Sec. 758.1 of the EAR to make clear that exporters would
continue to be required to file EEI in AES for transactions involving
such firearms and associated ammunition that are otherwise authorized
pursuant to License Exception BAG. However, for the reasons described
above in the description of the comments and BIS responses, this final
rule adopts an alternative approach with the addition of the new Sec.
758.11 described immediately below.
This final rule makes the following additional changes in response
to the public comments received on the Commerce May 24 rule:
As described above, this final rule removes the EEI filing
requirement in AES as set forth in Sec. 758.1(b)(9) for firearms
authorized under License Exception BAG.
In response to public comments as described above, this final rule
instead adds a new Sec. 758.11 (Export clearance requirements for
firearms and related items) and incorporates a requirement to use the
Department of Homeland Security, CBP Form 4457, Certificate of
Registration for Personal Effects Taken Abroad) (OMB Control Number
1651-0010) for all exports of commodities controlled under ECCNs
0A501.a or .b, shotguns with a barrel length less than 18 inches
controlled under ECCN 0A502, or ammunition controlled under ECCN 0A505
except for .c, regardless of value or destination, including exports to
Canada, that are authorized under License Exception BAG, as set forth
in Sec. 740.14. Section 758.11 includes four paragraphs: Paragraph (a)
(Scope) specifies when these export clearance requirements apply;
paragraph (b) (Required form) identifies the required form that needs
to be used in connection with these exports authorized under License
Exception BAG, including paragraph (b)(1) that includes a website for
where to find the form, and paragraph (b)(2) that specifies the
``description of articles'' for firearms to be included on the CBP Form
4457; paragraph (c) provides a link for where to find additional
information on the CBP Form 4457; and paragraph (d) (Return of items
exported pursuant to this section) specifies the requirements for the
return of items exported under License Exception BAG when the export
clearance requirements in Sec. 758.11 apply.
License Exception: Servicing and Replacement of Parts and Equipment
(RPL)
This final rule also adopts the following changes to License
Exception RPL to respond to the comments received on the Commerce May
24 rule, that requested License Exception RPL be included as a valid
purpose for a temporary import under Sec. 758.10. As described above,
BIS agreed to include License Exception RPL in Sec. 758.10, and these
changes are described below.
In Sec. 740.10(b) (Servicing and replacement of parts and
equipment), this final rule makes needed conforming changes for the
addition of License Exception RPL to Sec. 758.10 and to include
similar changes as were made to License Exception TMP under Sec.
740.9(b)(5) in the Commerce May 24 rule. This final rule adds one
sentence to the end of the introductory text of Sec. 740.10(b)(1) to
specify that that additional requirements in new paragraph (b)(4) must
be met in order to use License Exception RPL to authorize under
paragraph (b)(2) or (3) the export of firearms controlled by ECCN
0A501.a or .b, or shotguns with a barrel length less than 18 inches
controlled in ECCN 0A502 temporarily in the United State for servicing
and replacement. This final rule adds new paragraph (b)(4) (Exports
[[Page 4166]]
of firearms and certain shotguns temporarily in the United States for
servicing and replacement). Under the introductory text of paragraph
(b)(4), this final rule imposes a requirement that the firearms and
certain shotguns must be temporarily in the United States for servicing
or replacement for a period not exceeding one year or the time it takes
to service or replace the commodity, whichever is shorter in order to
use License Exception RPL to authorize the export. This final rule adds
paragraphs (b)(4)(i) and (ii) to impose restrictions for firearms
shipped from or manufactured in Russia, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or Uzbekistan, except for
any firearm model controlled by 0A501 that is specified under Annex A
in Supplement No. 4 to part 740, to impose the same types of
restrictions and impose the same type of information requirements for
providing information to CBP as this final rule includes for License
Exception TMP under paragraph (b)(5).
License Exception: Additional Permissive Reexports (APR)
This final rule also adopts the following change to License
Exception APR to respond to the comments received on the Commerce May
24 rule:
In Sec. 740.16 of License Exception APR, this final rule adds
commodities classified under a 0x5zz ECCN to the list of commodities
excluded under paragraph (a) of License Exception APR. This final rule
also adds a new paragraph (b)(2)(vi) to exclude commodities classified
under a 0x5zz ECCN under paragraph (b) of License Exception APR. The
Commerce May 24 rule did not propose these exclusions from License
Exception APR, but BIS identified these two paragraphs of License
Exception APR as two authorizations that were not intended to be
available under the Commerce May 24 rule, but based on the stated
criteria prior to the effective date of this final rule would have been
available. Therefore, this final rule makes these changes to ensure the
authorizations available for reexports and transfers (in-country) will
be equivalent to those available for exports.
License Exception STA
BIS did not receive any comments on the proposed changes to License
Exception STA, Sec. 740.20, in the Commerce May 24 rule, so this final
rule adopts those changes as proposed. This final rule revises the
regulations at Sec. 740.20 to make firearms controlled under ECCN
0A501 and most ``parts,'' ``components,'' ``accessories,'' and
``attachments'' controlled under ECCN 0A501 ineligible for License
Exception STA. Only those ``parts,'' ``components,'' ``accessories,''
and ``attachments'' that are controlled under paragraph .x are eligible
for export under License Exception STA. Items controlled under ECCNs
0A502 and 0A503 are also excluded from STA eligibility.
Support Documentation for Firearms, Parts, Components, Accessories, and
Attachments Controlled by ECCN 0A501
BIS did not receive any comments on this proposed change to Sec.
748.12 in the Commerce May 24 rule, so the change is published in this
final rule as proposed. This final rule requires that for commodities
controlled by ECCN 0A501 that are the subject of export or reexport
transactions for which a license is required, the exporter or
reexporter must obtain, prior to submitting an application, an import
permit (or copy thereof) if the importing country requires such permits
for import of firearms. That import permit is a record that must be
kept by the exporter or reexporter as required by part 762 of the EAR.
The purpose of this requirement is to assure foreign governments that
their regulations concerning the importation of firearms are not
circumvented. To implement this change, this final rule revises Sec.
748.12 to include the commodities controlled under ECCNs 0A501 (except
0A501.y), 0A502, 0A504 (except 0A504.f), and 0A505 (except 0A505.d)
within the list of commodities that are subject to the requirement and
adds a new paragraph (e) requiring that import certificates or permits
be obtained from countries other than OAS member states if those states
require such a certificate or permit.
Licenses for Firearms and Ammunition Will Be Limited to the Authorized
End Use and End Users
BIS did not receive any comments on these statements of EAR
licensing policy in the Commerce May 24 rule but restates them here to
assist the public. Consistent with other BIS licenses, including ``600
series'' and 9x515 items, licenses for firearms and ammunition that
move from the USML to the CCL are limited to the authorized end use and
end users specified on the license and supporting documentation
submitted as part of the license application. This means any change in
the authorized end use or end user for a licensed transaction will
require a BIS authorization. This existing requirement of BIS licenses
is specified in Sec. 750.7(a) and on the boiler plate text included on
all BIS licenses. These requirements are also applied to firearms and
ammunition licenses. A change in end use or end user, including a
change of authorized end use or end user within a single foreign
country for a firearm or ammunition authorized under a BIS license,
requires a BIS authorization. BIS does not adopt any changes in this
final rule to these well-established and understood requirements on
using BIS licenses. Applicants for firearms and ammunition licenses are
also advised that BIS continues to exercise its authority, as specified
in Sec. 748.11 in the Note 2 to paragraph (a), on a case-by-case basis
to require a Statement by Ultimate Consignee and Purchaser as
warranted.
The exporter, reexporter, or transferor using a BIS license,
including for firearms and ammunition licenses, is also required,
pursuant to Sec. 750.7(a), to inform the other parties identified on
the license, such as the ultimate consignees and end users of the
license's scope and of the specific conditions applicable to them. As
an additional safeguard for firearms and ammunition licenses, BIS will
include, when warranted, a license condition requiring the exporter,
reexporter, or transferor to obtain from the other parties identified
on the license a written confirmation that those other parties have
received and agree to the terms and conditions of the license. For
example, the condition may state ``Prior to using this license, the
exporter (reexporter or transferor) and other parties to the license
must agree to the conditions in writing and the exporter (reexporter or
transferor) must keep this on file with their other records.'' The
documents described in this paragraph are required to be kept for EAR
recordkeeping purposes under part 762 of the EAR.
Conventional Arms Reporting for Certain Exports of ECCN 0A501.a and .b
Commodities
In Sec. 743.4 (Conventional arms reporting), this final rule
revises paragraphs (c)(1)(i) and (c)(2)(i) to add ECCN 0A501.a and .b
as commodities that require Wassenaar Arrangement reporting and United
Nations reporting under this conventional arms reporting section of the
EAR. This requirement assists the U.S. Government to meet its
multilateral commitments for the special reporting requirements for
exports of certain items listed on the WAML and the United Nations
Register of Conventional Arms when these items are authorized for
export under License Exceptions LVS, TMP, RPL, STA, or GOV (see part
740 of the EAR) or the
[[Page 4167]]
Validated End-User authorization (see Sec. 748.15 of the EAR) and for
United Nations reporting. License Exceptions LVS and STA are identified
in Sec. 743.4(b)(1), but because ECCN 0A501.a and .b commodities are
not eligible for those two license exceptions, the reporting
requirements under Sec. 743.4(c)(1)(i) and (c)(2)(i) are limited to
exports authorized License Exceptions TMP, GOV, and RPL or the
Validated End-User authorization. This final rule also adds contact
information for these reports.
This final rule also makes the following additional change to Sec.
743.4 to respond to the comments received on the Commerce May 24 rule:
Commenters requested that BIS use information required to be
submitted in the EEI filing in AES to pull the conventional arms
reporting data directly in order to eliminate the need for exporters to
submit separate reports to BIS. BIS agreed and this final rule revises
three paragraphs in Sec. 743.4 to adopt an alternative method for BIS
to receive the information that is required for conventional arms
reporting. This rule revises paragraph (a) to add four sentences at the
end of the paragraph. These four sentences specify that if the exporter
follows the requirements specified in this section for the alternative
submission method described in new paragraph (h) (Alternative
submission method), that separate reporting does not need to be made to
BIS for purposes of Sec. 743.4. Because of the EEI filing requirements
in AES in new Sec. 758.1(g)(4)(ii) for the firearms that require
conventional arms reporting, all conventional arms reporting
requirements for firearms should be able to be met by using the
alternative submission method. Under paragraph (b) (Requirements), this
final rule adds a reference to meeting the reporting requirement by
using the alternative submission method in new paragraph (h).
This final rule adds paragraph (h) that describes the requirements
for the alternative submission method. To use the alternative reporting
method, each time the exporter files an EEI record in AES, the exporter
must include as the first text in the Commodity Description field in
AES the first six characters of the ECCN number, i.e., ``0A501.a'' or
``0A501.b.'' In addition, the exporter must document for recordkeeping
requirements under the EAR that for purposes of the conventional arms
reporting requirements under part 743, it has decided to use the
alternate submission method by taking steps to identify the end item
firearms in the EEI filing in AES that will enable the U.S. Government
to pull the data and meet national reporting commitments to the
Wassenaar Arrangement and the United Nations.
As a conforming change, in Sec. 758.1 (The Electronic Export
Enforcement (EEI) filing to the Automated Export System (AES)), this
final rule adds a new paragraph (g)(4)(ii) (Identifying end item
firearms by ``items'' level classification or other control descriptor
in the EEI filing in AES). Exporters must include the six character
ECCN classification (i.e., 0A501.a or 0A501.b), as the first text to
appear in the Commodity description block in the EEI filing in AES.
Exporters for shotguns controlled under 0A502 must include the phrase
``0A502 barrel length less than 18 inches'' as the first text to appear
in the Commodity description block in the EEI filing in AES. This
information will be used by BIS as referenced in Sec. 743.4(h) for
conventional arms reporting.
Changes to Export Clearance Requirements for Firearms Being Moved to
the CCL (Part 758)
In Sec. 758.1, this final rule adopts changes to clarify that a
filing of EEI in AES will be required for exports of the firearms
transferred from the USML pursuant to this rule regardless of value or
destination, including exports to Canada. As noted above, this
requirement applies, as was the case under the ITAR prior to the
effective date of this final rule, for temporary exports of such items
pursuant to License Exception TMP, but not for License Exception BAG.
In addition, this final rule expands the data elements required as
part of an EEI filing to AES filing for these firearms to include
serial numbers, make, model and caliber. This requirement will ensure
law enforcement officials are able to effectively verify that firearms
exports are properly authorized and in conformance with all applicable
regulations, including those associated with the temporary export and
subsequent return of controlled firearms and unused ammunition.
This final rule also makes the following additional changes to
Sec. 758.1(b)(10) and (c)(1) to respond to the comments received on
the Commerce May 24 rule regarding the concerns for individuals having
to file EEI in AES:
In Sec. 758.1, this final rule revises new paragraph (b)(10) that
was included in the Commerce May 24 rule, but adds it as new paragraph
(b)(9). This final rule excludes exports authorized under License
Exception BAG from the EEI filing requirement in AES. As a conforming
change, this final rule revises paragraph (c)(1) to eliminate the
restriction from the exemption for License Exception BAG. This final
rule makes this change because of excluding License Exception BAG from
paragraph (b)(9) means the general exemption for not filing EEI in AES
for these firearms authorized under License Exception BAG, should be
available, so this final rule makes this conforming change. This final
rule adds a new Note to paragraph (c)(1) to add a cross reference to
the export clearance requirements that are specific to firearms
exported under License Exception BAG.
This final rule also makes the following additional changes to
Sec. 758.1(g)(4) to respond to the comments received on the Commerce
May 24 rule regarding concerns for having to include the manufacture,
model, caliber, and serial number in the EEI filing in AES:
In Sec. 758.1(g)(4) (Exports of Firearms and Related Items), this
final rule adds a new paragraph (g)(4)(i) (Identifying end item
firearms by manufacturer, model, caliber, and serial number in the EEI
filing in AES) to narrow the requirement for when firearms must be
identified by manufacture, model, caliber, and serial number in the EEI
filing in AES to License Exception TMP or a BIS license that contains a
condition requiring all or some of this information to be filed as EEI
in AES.
Entry Clearance Requirements for Temporary Imports (Sec. 758.10)
Temporary imports are transactions that involve both the temporary
entry of an item into the U.S. from a foreign country and the
subsequent export of that item from the U.S. To preserve the treatment
of temporary import transactions for items in this rule that will
transfer from the USML in the ITAR to become subject to the EAR, BIS
imposes a temporary imports entry clearance requirement in this final
rule by adding new Sec. 758.10. This new section is limited to items
in this rule that are both ``subject to the EAR'' and on the USMIL in
27 CFR 447.21. To allow such items to temporarily enter the U.S., this
final rule imposes a process to collect identifying information for the
sole purpose of tracking items being temporarily imported for
subsequent export. BIS does not impose a license requirement for such
imports, but this information is necessary to facilitate the export
after a temporary import. The entry clearance requirement is an EAR
requirement and any false representation made under the new Sec.
758.10 will be a violation of the EAR.
[[Page 4168]]
This final rule also makes the following additional change to Sec.
758.10 to respond to the comments received on the Commerce May 24 rule:
In Sec. 758.10, this final rule adds an exclusion to the entry
clearance requirements proposed in the Commerce May 24 rule to clarify
that firearms ``subject to the EAR'' brought into the United States by
nonimmigrant aliens under the provisions of Department of Justice
regulations at 27 CFR part 478 are not subject to these same entry
clearance requirements for temporary imports. This final rule makes
this change for consistency with License Exception BAG under paragraph
(e) and because ATF regulations address nonimmigrant aliens temporarily
bringing these types of firearms into the United States, so the
requirements in Sec. 758.10 do not need to apply.
In Sec. 758.10, this final rule clarifies the penultimate sentence
and the last sentence of paragraph (a) by removing references to
``permanent return'' and ``permanent import'' after items are
temporarily exported under an EAR authorization, e.g., License
Exception TMP or a Commerce license. This clarification is made because
the inbound portion of a temporary export is covered by the temporary
export authorization, so it not accurate to describe those as a
``permanent return'' or as a ``permanent import.''
Also in Sec. 758.10, this final rule clarifies the introductory
text of paragraph (b) by deleting the title ``the Port Directors''
before U.S. Customs and Border Protection. This change is made because
U.S. Customs and Border Protection Center Directors may also have an
enforcement role in addition to Port Directors, so referencing U.S.
Customs and Border Protection is sufficient. In paragraph (b)(2), this
final rule revises the phrase ``as requested by CBP'' with the phrase
``upon request by CBP.'' In the last sentence of paragraph (b)(2), this
final rule removes the word ``inspection'' after the phrase
``additional requirements,'' because the word was not intended to be
included in the cross reference to Sec. 758.1(g)(4).
This final rule also revises Sec. 758.10 to add references to
License Exception RPL and BIS licenses as two additional EAR
authorizations as valid purposes for a temporary import under this
section. This final rule does this by revising paragraph (b)(1)(i) to
broaden the number of permissible statements to allow for three
statements (instead of the single statement that was included in the
Commerce May 24 rule). This final rule adds new paragraphs (b)(1)(i)(A)
(to account for License Exception TMP under 15 CFR 740.9(b)(5)),
(b)(1)(i)(B) (to account for the addition of License Exception RPL
under 15 CFR 740.10(b)), and (b)(1)(i)(C) (to account for BIS licenses)
to add the three statements. The three statements are substantively the
same, and the only difference is the EAR authorization being referenced
in the statement. As a conforming change, this final rule adds a new
paragraph (b)(1)(iv) that applies if the item being temporarily
imported under Sec. 758.10 is for servicing or replacement. Under this
new paragraph (b)(1)(iv) at the time of temporary import, the name,
address and contact information of the organization or individual in
the U.S. that will be receiving the item for servicing or replacement
must be provided to CBP. Lastly, as an additional conforming change,
this final rule adds a new Note 2 to paragraph (b)(1) to impose
exclusions, similar to those imposed on License Exception TMP that
limit the availability of License Exception RPL for temporary imports
of certain firearms shipped from or manufactured in listed countries.
Unique Application and Submission Requirements for Licenses
This final rule also adopts the following changes for BIS license
applications in response to comments received. As described above, BIS
agreed to include changes in Sec. 758.10 to account for temporary
imports that would require a BIS license for subsequent export.
In Supplement No. 2 to part 748--Unique Application and Submission
Requirements, this final rule adds a new paragraph (z) (Exports of
firearms and certain shotguns temporarily in the United States)
describing a certification requirement for applicants to include in
Block 24 of the BIS license application. The certification requirement
is an acknowledgement by the applicant that the firearms in the
application will not be shipped from or manufactured in Russia,
Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or
Uzbekistan, except for any firearm model controlled by 0A501 that is
specified under Annex A in Supplement No. 4 to part 740. The
certification also requires that the applicant and other parties to the
transaction will comply with the requirements in paragraphs (z)(2)(i)
and (ii) of Supplement No. 2 to part 748. This final rule adds
paragraph (z)(2) (Requirements) to describe the requirements that will
be applicable for any license for the export of firearms controlled by
ECCN 0A501.a or .b, or shotguns with a barrel length less than 18
inches controlled in ECCN 0A502 that will be temporarily imported to
the United States. These requirements impose the same type of
requirements as this final rule includes for License Exception TMP
under paragraph (b)(5) and License Exception RPL under paragraph
(b)(4), but does so by imposing the certification requirement in
paragraph (z)(1). BIS will include a standard condition that will
require compliance with the requirements in paragraphs (z)(2)(i) and
(ii).
Changes to EAR Recordkeeping Requirements for Firearms Being Moved to
the CCL (Part 762)
BIS does not make any additional changes in this final rule to what
was proposed in the Commerce May 24 rule as a result of the comments
received, so these changes are adopted as proposed. In part 762
(Recordkeeping), this final rule adopts two changes to the
recordkeeping requirements under the EAR. These changes specify that
certain records, that are already created and kept in the normal course
of business, must be kept by the ``exporter'' or any other party to the
transaction (see Sec. 758.3 of the EAR), that creates or receives such
records.
Specifically, in Sec. 762.2 (Records to be retained), this final
rule redesignates paragraph (a)(11) as (a)(12) and adds a new paragraph
(a)(11) to specify the following information must be kept as an EAR
record: Serial number, make, model, and caliber for any firearm
controlled in ECCN 0A501.a and for shotguns with barrel length less
than 18 inches controlled in 0A502. The ``exporter'' or any other
``party to the transaction'' that creates or receives such records is
the person responsible for retaining this record.
In Sec. 762.3 (Records exempt from recordkeeping requirements),
this final rule narrows the scope of an exemption from the EAR
recordkeeping requirements for warranty certificates. This final rule
narrows this exclusion to specify the exclusion from the recordkeeping
requirements does not apply (meaning the record will need to be kept
under the recordkeeping requirements) for warranty certificates for any
firearm controlled in ECCN 0A501.a and for shotguns with barrel length
less than 18 inches controlled in 0A502, when the certificate issued is
for an address located outside the United States. This is an expansion
of the EAR recordkeeping requirements, but because warranty
certificates are already created and kept as part of normal business
recordkeeping purposes, this expansion is not anticipated to create any
new or increased burden under the
[[Page 4169]]
EAR, because it is a document that is created in the normal course of
business and should be easily accessible. These recordkeeping
requirements will assist the United States Government because it is
important for law enforcement to have access to this information.
Conforming Change To Add a New Definition for Use in ECCNs 0A501 and
0A502 (Sec. 772.1)
This final rule also adds a new definition to the definition part
of the EAR to respond to the comments received on the Commerce May 24
rule:
In Sec. 772.1 (Definitions of terms as used in the Export
Administration Regulations), this final rule adds a definition of
``complete breech mechanisms.'' The new definition specifies that this
is a mechanism for opening and closing the breech of a breech-loading
firearm, especially of a heavy-caliber weapon. As a conforming change,
this final rule also adds double quotation marks around the term where
it is used in ECCNs 0A501 and 0A502.
Export Control Reform Act of 2018
On August 13, 2018, the President signed into law the John S.
McCain National Defense Authorization Act for Fiscal Year 2019, which
included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-
4852) that provides the legal basis for BIS's principal authorities and
serves as the authority under which BIS issues this rule. As set forth
in Section 1768 of ECRA, all delegations, rules, regulations, orders,
determinations, licenses, or other forms of administrative action that
have been made, issued, conducted, or allowed to become effective under
the Export Administration Act of 1979 (50 U.S.C. 4601 et seq.) (as in
effect prior to August 13, 2018 and as continued in effect pursuant to
the International Emergency Economic Powers Act (50 U.S.C. 1701 et
seq.) and Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp.,
p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78
FR 16129 (March 13, 2013), and as extended by the Notice of August 8,
2018, 83 FR 39871 (August 13, 2018)), or the Export Administration
Regulations, and are in effect as of August 13, 2018, shall continue in
effect according to their terms until modified, superseded, set aside,
or revoked under the authority of ECRA.
Executive Order Requirements
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 final rule has been designated a ``significant
regulatory action,'' although not economically significant, under
section 3(f) of Executive Order 12866. Although the items identified in
this final rule have been determined to no longer warrant ITAR control
by the President, the proliferation of such items has been identified
as a threat to domestic and international security if not classified
and controlled at the appropriate level under the EAR. Commerce
estimates that the combined effect of all rules to be published adding
items removed from the ITAR to the EAR will increase the number of
license applications to be submitted to BIS by approximately 30,000
annually.
This final rule does not contain policies with Federalism
implications as that term is defined under E.O. 13132.
To control these items under the EAR that no longer warrant ITAR
control, appropriate controls on the CCL needed to be included in the
Department of Commerce final rule. This includes creating new ECCNs and
revising certain existing ECCNs, as well as making other changes to the
EAR to control items that will be moved from these three USML
categories to the CCL once the section 38(f) notification process is
completed and a final rule is published and becomes effective. Adding
new controls and other requirements to the EAR imposes regulatory
burdens on exporters and some other parties involved with those items,
but compared to the burdens these exporters and other parties faced
under the ITAR, these regulatory burdens, including financial costs,
will be reduced significantly. The EAR is a more flexible regulatory
structure whereby the items can still be controlled appropriately, but
in a much more efficient way that will significantly reduce the burdens
on exporters and other parties compared to the regulatory burdens they
faced when the items were ``subject to the ITAR.'' Deregulatory does
not mean a decontrol of these items.
For those items in USML Categories I, II, and III that will move by
this rule to the CCL, BIS will be collecting the necessary information
using the form associated with OMB Control No. 0694-0088. BIS estimates
that this form takes approximately 43.8 minutes for a manual or
electronic submission. Using the State Department's estimate that
10,000 license applications annually will move from the USML to the CCL
and BIS's estimate in this final rule that 6,000 of the 10,000 license
applications will require licenses under the EAR, that constitutes a
burden of 4,380 hours for this collection under the EAR. Those
companies are currently using the State Department's forms associated
with OMB Control No. 1405-0003 for which the burden estimate is 1 hour
per submission, which for 10,000 applications results in a burden of
10,000 hours. Thus, subtracting the BIS burden hours of 4,380 from the
State Department burden hours of 10,000, the burden is reduced by 5,620
hours. The other 4,000 applicants may use license exceptions under the
EAR or the ``no license required'' designation, so these applicants
will not be required to submit license applications under the EAR.
In addition to the reduced burden hours of 5,620 hours, there will
also be direct cost savings to the State Department that will result
from the 10,000 license applications no longer being required under the
ITAR once these items are moved to the EAR. The Department of State
charges a registration fee to apply for a license under the ITAR.
Pursuant to the AECA, ITAR, and associated delegations of authority,
every person who engages in the business of brokering activities,
manufacturing, exporting, or temporarily importing any defense articles
or defense services must register with the Department of State and pay
a registration fee. The Department of State adopted the current fee
schedule to align the registration fees with the cost of licensing,
compliance, and other related activities. The Department of Commerce
will incur additional costs to administer these controls and process
license applications. However, the Department of Commerce does not
charge a registration fee to apply for a license under the EAR, and we
are unable to estimate the increase in costs to the Department of
Commerce to process the new license applications. Therefore, we are
unable to provide an estimate of the net change in resource costs to
the government from moving these items from the ITAR to the EAR. It is
the case, however, that the movement of these items from the ITAR will
result in a permanent and recurring direct transfer of $2,500,000 per
year from the government to the exporting public, less the increased
cost to taxpayers, because they will no longer
[[Page 4170]]
pay fees to the State Department for licenses and there is no fee
charged by the Department of Commerce to apply for a license.
Estimated Cost Savings
For purposes of E.O. 13771 of January 30, 2017 (82 FR 9339), the
Department of State and Department of Commerce final rules are expected
to be ``net deregulatory actions.'' The Department of Commerce has
conducted this analysis in close consultation with the Department of
State, because of how closely linked the two final rules are for the
regulated public and the burdens imposed under the U.S. export control
system.
E.O. 13771 and guidance provided to the agencies on interpreting
the intended scope of the E.O. do not use the term ``net deregulatory
action,'' but rather refer to deregulatory actions. As outlined above,
the Departments of State and Commerce final rules are closely linked
and are best viewed as a consolidated deregulatory action although
being implemented by two different agencies. Also, as noted above,
items may not be subject to both sets of regulations. Therefore, the
movement of a substantial number of items from the USML determined to
no longer warrant ITAR control to the CCL will result in a significant
reduction of regulatory burden for exporters and other persons involved
with such items that were previously ``subject to the ITAR.''
For purposes of E.O. 13771, the Departments of State and Commerce
have agreed to equally share the cost burden reductions that will
result from the publication of these two integral deregulatory actions.
The Department of State will receive 50% and the Department of Commerce
will receive 50% for purposes of calculating the deregulatory benefit
of these two integral actions.
Under this agreed formulation, the burden reductions will be
calculated as follows:
For purposes of the Department of Commerce, the ``net deregulatory
actions'' will result in a permanent and recurring cost savings of
$1,250,000 per year, and a reduction in burden hours by 2,810 hours.
The reduction in burden hours by 2,810 will result in an additional
cost savings of \1\ $126,281 to the exporting public. The total cost
savings will be $1,376,281 in present (2017) dollars. To allow for cost
comparisons under E.O. 13771, the value of these costs savings in 2016
dollars is $1,353,574. Assuming a 7% discount rate, the present value
of these cost savings in perpetuity is $19,336,771. Since the costs
savings of this rule are expected to be permanent and recurring, the
annualized value of these cost savings is also $1,353,574 in 2016
dollars.
---------------------------------------------------------------------------
\1\ The Department of Commerce used the Department of State's
estimate that the burden hour cost for completing a license
application is $44.94 per hour. Multiplied by the estimated burden
hour savings of 2,810 equals a cost savings to the public of
$126,281.
---------------------------------------------------------------------------
For purposes of the Department of State, the ``net deregulatory
actions'' will result in a permanent and recurring cost savings of
$1,250,000 per year, and a reduction in burden hours by 2,810 hours.
The reduction in burden hours by 2,810 will result in an additional
cost savings of $126,281 to the exporting public. The total cost
savings will be $1,376,281 in present (2017) dollars. To allow for cost
comparisons under E.O. 13771, the value of these costs savings in 2016
dollars is $1,353,574. Assuming a 7% discount rate, the present value
of these cost savings in perpetuity is $19,336,771. Since the costs
savings of this rule are expected to be permanent and recurring, the
annualized value of these cost savings is also $1,353,574 in 2016
dollars.
The Department of Commerce in the Commerce May 24 rule welcomed
comments from the public on the analysis under E.O. 13771 described
here. The Commerce May 24 rule noted that it would be helpful to
receive comments from companies that will no longer need to register
with the Department of State because the company only deals with items
under USML Category I, II, and/or III that will move to the CCL.
Comments were also encouraged on any of the other collections that may
be relevant for the items that will move from the USML to the CCL. The
Commerce May 24 rule also noted that it would be helpful to receive
data on Department of State forms that will no longer need to be
submitted.
Paperwork Reduction Act Requirements
Notwithstanding any other provision of law, no person may be
required to respond to or be 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 final regulation involves four collections currently approved
by OMB under these BIS collections and control numbers: Simplified
Network Application Processing System (control number 0694-0088), which
includes, among other things, license applications; License Exceptions
and Exclusions (control number 0694-0137); Import Certificates and End-
User Certificates (control number 0694-0093); Five Year Records
Retention Period (control number 0694-0096); and the U.S. Census Bureau
collection for the Automated Export System (AES) Program (control
number 0607-0152).
This final rule will affect the information collection, under
control number 0694-0088, associated with the multi-purpose application
for export licenses. This collection carries a burden estimate of 43.8
minutes for a manual or electronic submission for a burden of 31,833
hours. BIS believes that the combined effect of all rules to be
published adding items removed from the ITAR to the EAR will be an
increase in the number of license applications to be submitted by
approximately 30,000 annually, resulting in an increase in burden hours
of 21,900 (30,000 transactions at 43.8 minutes each) under this control
number. For those items in USML Categories I, II, and III that will
move by this rule to the CCL, the State Department estimates that
10,000 applicants annually will move from the USML to the CCL. BIS
estimates that 6,000 of the 10,000 applicants will require licenses
under the EAR, resulting in a burden of 4,380 hours under this control
number. Those companies are currently using the State Department's
forms associated with OMB Control No. 1405-0003 for which the burden
estimate is 1 hour per submission, which for 10,000 applications
results in a burden of 10,000 hours. Thus, subtracting the BIS burden
hours of 4,380 from the State Department burden hours of 10,000, the
burden will be reduced by 5,620 hours. (See the description above for
the E.O. 13771 analysis for additional information on the cost benefit
savings and designation of the two rules as ``net deregulatory
actions''.)
This final rule will also affect the information collection under
control number 0694-0137, addressing the use of license exceptions and
exclusions. Some parts and components formerly on the USML, and
``software'' and ``technology'' for firearms and their parts and
components formerly on the USML, will become eligible for License
Exception STA under this final rule. Additionally, test, inspection and
production equipment, and ``software'' and ``technology'' related to
those firearms and ``parts'' may become eligible for License Exception
STA. BIS believes that the increased use of License Exception STA
resulting from the combined effect of all rules to be
[[Page 4171]]
published adding items removed from the ITAR to the EAR will 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 as a result of the
increased use of License Exception STA will be more than offset by a
reduction in burden hours associated with approved collections related
to the ITAR. This final rule addresses controls on firearms and
``parts,'' production equipment and ``parts'' and related ``software''
and ``technology'' and specifically non-automatic and semi-automatic
firearms and their ``parts'' and ``parts,'' ``components,''
``attachments,'' and ``accessories'' that are used in both semi-
automatic and fully automatic firearms. BIS has made this determination
on the basis that with few exceptions, the ITAR allows exemptions from
license requirements only for exports to Canada, and requires a
specific State Department authorization for most exports of firearms
used for hunting and recreational purposes and exports of ``parts,''
``components,'' ``attachments,'' and ``accessories'' that are common to
military fully automatic firearms and their semi-automatic civilian
counterparts, even when destined to NATO and other close allies and
also requires State Department authorization for the exports necessary
to produce ``parts'' and ``components'' for defense articles in the
inventories of the United States and its NATO and other close allies.
However, under the EAR, as specified in this final rule, a number of
low-level parts will be eligible for export under License Exception STA
and will therefore not require a license to such destinations.
This final rule will also affect the information collection under
control number 0694-0096, for the five-year recordkeeping retention
because of two changes this rule will make to part 762 of the EAR. This
rule adds a new paragraph (a)(11) to Sec. 762.2 to specify the
following information must be kept as an EAR record: Serial number,
make, model, and caliber for any firearm controlled in ECCN 0A501.a and
for shotguns with barrel length less than 18 inches controlled in
0A502. This rule will also require warranty certificates for these
items to be retained for EAR recordkeeping. However, because these
records are already created and kept as part of normal business
recordkeeping, this expansion is not anticipated to create any new or
increased burden under the EAR.
Even in situations in which a license will be required under the
EAR, the burden will likely be reduced compared to a license
requirement under the ITAR. In particular, license applications for
exports of ``technology'' controlled by ECCN 0E501 will likely be less
complex and burdensome than the authorizations required to export ITAR-
controlled technology, i.e., Manufacturing License Agreements and
Technical Assistance Agreements (as a result of the differences in the
scope of the ITAR's and the EAR's technology controls).
This final rule will affect the information collection under
control number 0694-0093, import certificates and end-user certificates
because of the changes included in this final rule. First, this
regulation will require that for shipments requiring a license of
firearms, ``parts,'' ``components,'' ``accessories,'' and
``attachments'' controlled under ECCN 0A501, the exporter must obtain a
copy of the import certificate or permit if the importing country
requires one for importing firearms. License applications for which an
import or end-user certificate is already required under Sec. 748.12
of the EAR will not be subject to this new requirement. BIS expects
that this requirement will result in no change in the burden under
control number 0694-0093. Second, this final rule also will require
that prior to departure, travelers leaving the United States and
intending to temporarily export firearms, parts, and components
controlled under ECCN 0A501 under License Exception BAG declare the
firearms and parts to a CBP officer and present the firearms and parts
to the CBP officer for inspection. As the State Department also
requires that persons temporarily exporting firearms, parts, and
components declare the items to CBP, BIS does not expect that the
requirement in this final rule will result in a change in burden under
control number 0694-0093.
Third, this final rule will affect the information collection under
control number 0694-0093 by creating a new temporary import entry
clearance requirement by adding Sec. 758.10. This new section will be
limited to items in this rule that are both ``subject to the EAR'' and
on the United States Munitions Import List (USMIL) in 27 CFR 447.21. To
allow such items to temporarily enter the U.S., this rule implements a
process to collect identifying information for the sole purpose of
tracking items being temporarily imported for subsequent export under
License Exceptions TMP, RPL, and BIS licenses. BIS will not impose a
license requirement for such imports, but collecting this information
will be necessary to facilitate the export after a temporary import.
The temporary import entry clearance requirement in Sec. 758.10 will
also conform to the requirements in License Exception TMP under Sec.
740.9(b)(5), License Exception RPL under Sec. 740.9(b)(4), and for BIS
licenses under paragraph (z) in Supplement No. 2 to part 748, so
providing this information to CBP at entry after a temporary import
will facilitate the export phase of a temporary import under License
Exceptions TMP, RPL and BIS licenses. At the time of entry for a
temporary import, the importer will need to provide a statement to CBP
indicating that this shipment was being temporarily imported in
accordance with the EAR for subsequent export in accordance with and
under the authority of License Exceptions TMP, RPL, or a BIS license.
The entry clearance requirement will be an EAR requirement and any
false representation made under the new Sec. 758.10 will be a
violation of the EAR. The importer will also need to provide CBP an
invoice or other appropriate import-related documentation (or
electronic equivalents) that includes a complete list and description
of the items being imported, including their model, make, caliber,
serial numbers, quantity, and U.S. dollar value. If imported for a
trade show, exhibition, demonstration, or testing, the temporary
importer will need to provide CBP with the relevant invitation or
registration documentation for the event and an accompanying letter
that details the arrangements to maintain effective control of the
firearms while they are temporarily in the United States. If imported
for servicing or replacement, the temporary importer will need to
provide CBP with the name, address and contact information (telephone
number and/or email) of the organization or individual in the U.S. that
will be receiving the item for servicing or replacement. Lastly, at the
time of exportation, upon request by CBP, the exporter, or an agent
acting on his or her behalf, will have to provide the entry document
number or a copy of the CBP document under which the ``item'' ``subject
to the EAR'' on the USMIL was temporarily imported under this entry
clearance requirement. As the State Department also requires that
persons temporarily importing items in this rule provide the same type
of information to CBP, BIS expects that the requirement in this final
rule will result in a change in burden under control number 0694-0093,
but because of the decrease under the burden imposed
[[Page 4172]]
under the State collection, the burden on the public will not change.
This final rule will also affect the information collection under
control number 0607-0152, for filing EEI in AES because of one change
this final rule makes to part 758 of the EAR. Under new Sec.
758.1(b)(9), EEI will be required for all exports of items controlled
under ECCNs 0A501.a or .b, shotguns with a barrel length less than 18
inches controlled under ECCN 0A502, or ammunition controlled under ECCN
0A505 except for .c, regardless of value or destination, including
exports to Canada. Exports of these USML firearms and ammunition prior
to moving to the CCL required filing EEI in AES for all items ``subject
to the ITAR,'' so the burden in this collection will not change for the
exporter.
This final rule includes a requirement that, for all exports of
temporary exports from the United States or when the license or other
approval contains a condition requiring all or some of this information
to be filed as EEI in AES of items controlled under ECCNs 0A501.a or
.b, or shotguns with a barrel length less than 18 inches controlled
under ECCN 0A502, in addition to any other required data for the
associated EEI filing requirements, the exporter must provide to CBP
the serial number, make, model, and caliber for each firearm being
exported. The Department of Commerce is carrying over the existing CBP
filing requirements for items transferred from the USML to the CCL. The
Department of Homeland Security currently is collecting these data
elements for firearms ``subject to the ITAR'' under OMB Control Number
1651-0010 (CBP Form 4457, Certificate of Registration for Personal
Effects Taken Abroad). There is no change to the information being
collected or to the burden hours as a result of this rule. Separate
from this rule, CBP will update the information collection to reflect
the use of AES or some other simplified electronic alternative to CBP
Form 4457.
Any comments regarding the collection of information associated
with this final rule, including suggestions for reducing the burden,
may be sent to Jasmeet K. Seehra, Office of Management and Budget
(OMB), by email to [email protected], or by fax to (202)
395-7285.
Administrative Procedure Act and Regulatory Flexibility Act
Requirements
Pursuant to section 1762 of the Export Control Reform Act of 2018
(Title XVII, Subtitle B of Pub. L. 115-232), which was included in the
John S. McCain National Defense Authorization Act for Fiscal Year 2019,
this action is exempt from the Administrative Procedure Act (APA) (5
U.S.C. 553) requirements for notice of proposed rulemaking, opportunity
for public participation, and delay in effective date.
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule by the APA or
any other law, the analytical requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., are not applicable.
Accordingly, no regulatory flexibility analysis is required and none
has been prepared.
List of Subjects
15 CFR Parts 732, 740, and 748
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 734
Administrative practice and procedure, Exports, Inventions and
patents, Research, Science and technology.
15 CFR Parts 736 and 772
Exports.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 743
Administrative practice and procedure, Reporting and recordkeeping
requirements.
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism.
15 CFR Parts 746 and 774
Exports, Reporting and recordkeeping requirements.
15 CFR Part 758
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 762
Administrative practice and procedure, Business and industry,
Confidential business information, Exports, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, parts 732, 734, 736, 740,
742, 743, 744, 746, 748, 758, 762, 772, and 774 of the Export
Administration Regulations (15 CFR parts 730-774) are amended as
follows:
PART 732--STEPS FOR USING THE EAR
0
1. The authority citation for 15 CFR part 732 is revised to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.
0
2. Section 732.2 is amended by adding one sentence to the end of
paragraph (b) introductory text to read as follows:
Sec. 732.2 Steps regarding scope of the EAR.
* * * * *
(b) * * * The following also remains subject to the EAR:
``Software'' or ``technology'' for the production of a firearm, or
firearm frame or receiver, controlled under ECCN 0A501, as referenced
in Sec. 734.7(c) of the EAR).
* * * * *
PART 734--SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS
0
3. The authority citation for 15 CFR part 734 is revised to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3
CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp.,
p. 223; Notice of November 12, 2019, 84 FR 61817 (November 13,
2019).
0
4. Section 734.7 is amended by revising paragraph (a) introductory text
and adding paragraph (c) to read as follows:
Sec. 734.7 Published.
(a) Except as set forth in paragraphs (b) and (c) of this section,
unclassified ``technology'' or ``software'' is ``published,'' and is
thus not ``technology'' or ``software'' subject to the EAR, when it has
been made available to the public without restrictions upon its further
dissemination such as through any of the following:
* * * * *
(c) The following remains subject to the EAR: ``software'' or
``technology'' for the production of a firearm, or firearm frame or
receiver, controlled under ECCN 0A501, that is made available by
posting on the internet in an electronic format, such as AMF or G-code,
and is ready for insertion into a computer numerically controlled
machine tool, additive manufacturing equipment, or any other equipment
that makes use of the ``software'' or ``technology'' to
[[Page 4173]]
produce the firearm frame or receiver or complete firearm.
PART 736--GENERAL PROHIBITIONS
0
5. The authority citation for 15 CFR part 736 is revised to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3
CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp.,
p. 168; Notice of May 8, 2019, 84 FR 20537 (May 10, 2019); Notice of
November 12, 2019, 84 FR 61817 (November 13, 2019).
0
6. Supplement No. 1 to part 736 is amended by revising paragraph (e)(3)
to read as follows:
Supplement No. 1 to Part 736--General Orders
* * * * *
(e) * * *
(3) Prior commodity jurisdiction determinations. If the U.S.
State Department has previously determined that an item is not
subject to the jurisdiction of the ITAR and the item was not listed
in a then existing ``018'' series ECCN (for purposes of the ``600
series'' ECCNs, or the 0x5zz ECCNs) or in a then existing ECCN
9A004.b or related software or technology ECCN (for purposes of the
9x515 ECCNs), then the item is per se not within the scope of a
``600 series'' ECCN, a 0x5zz ECCN, or a 9x515 ECCN. If the item was
not listed elsewhere on the CCL at the time of such determination
(i.e., the item was designated EAR99), the item shall remain
designated as EAR99 unless specifically enumerated by BIS or DDTC in
an amendment to the CCL or to the USML, respectively.
* * * * *
PART 740--LICENSE EXCEPTIONS
0
7. The authority citation for 15 CFR part 740 continues to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR
58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR,
2001 Comp., p. 783.
0
8. Section 740.2 is amended by adding paragraphs (a)(21) and (22) to
read as follows:
Sec. 740.2 Restrictions on all License Exceptions.
(a) * * *
(21) The reexport or transfer (in-country) of firearms classified
under ECCNs 0A501 or 0A502 if a part or component that is not ``subject
to the ITAR,'' but would otherwise meet the criteria in USML Category
I(h)(2) (i.e., parts and components specially designed for conversion
of a semiautomatic firearm to a fully automatic firearm) is
incorporated into the firearm or is to be reexported or transferred
(in-country) with the firearm with ``knowledge'' the part or component
will be subsequently incorporated into the firearm. (See USML Category
I(h)(2)). In such instances, no license exceptions are available except
for License Exception GOV (Sec. 740.11(b)(2)(ii)).
(22) The export, reexport, or transfer (in-country) of any item
classified under a 0x5zz ECCN when a party to the transaction is
designated on the Department of the Treasury, Office of Foreign Assets
Control (OFAC), Specially Designated Nationals and Blocked Persons
(SDN) list under the designation [SDNT], pursuant to the Narcotics
Trafficking Sanctions Regulations, 31 CFR part 536, or under the
designation [SDNTK], pursuant to the Foreign Narcotics Kingpin
Sanctions Regulations, 31 CFR part 598.
* * * * *
0
9. Section 740.9 is amended by:
0
a. Adding five sentences at the end of paragraph (a) introductory text;
0
b. Adding one sentence at the end of paragraph (b)(1) introductory
text;
0
c. Adding paragraph (b)(5); and
0
d. Redesignating notes 1 through 3 to paragraph (b) as notes 2 through
4 to paragraph (b).
The additions read as follows:
Sec. 740.9 Temporary imports, exports, reexports, and transfers (in-
country) (TMP).
* * * * *
(a) * * * This paragraph (a) does not authorize any export of a
commodity controlled under ECCNs 0A501.a or .b, or shotguns with a
barrel length less than 18 inches controlled under ECCN 0A502 to, or
any export of such an item that was imported into the United States
from, a country in Country Group D:5 (Supplement No. 1 to this part),
or from Russia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan,
Ukraine, or Uzbekistan. The only provisions of this paragraph (a) that
are eligible for use to export such items are paragraph (a)(5) of this
section (``Exhibition and demonstration'') and paragraph (a)(6) of this
section (``Inspection, test, calibration, and repair''). In addition,
this paragraph (a) may not be used to export more than 75 firearms per
shipment. In accordance with the requirements in Sec. 758.1(b)(9) and
(g)(4) of the EAR, the exporter or its agent must provide documentation
that includes the serial number, make, model, and caliber of each
firearm being exported by filing these data elements in an EEI filing
in AES. In accordance with the exclusions in License Exception TMP
under paragraph (b)(5) of this section, the entry clearance
requirements in Sec. 758.1(b)(9) do not permit the temporary import
of: Firearms controlled in ECCN 0A501.a or .b that are shipped from or
manufactured in a Country Group D:5 country, or that are shipped from
or manufactured in Russia, Georgia, Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan (except for any firearm model
designation (if assigned) controlled by 0A501 that is specified under
Annex A in Supplement No. 4 to this part); or shotguns with a barrel
length less than 18 inches controlled in ECCN 0A502 that are shipped
from or manufactured in a Country Group D:5 country, or from Russia,
Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or
Uzbekistan, because of the exclusions in License Exception TMP under
paragraph (b)(5) of this section.
* * * * *
(b) * * *
(1) * * * No provision of paragraph (b) of this section, other than
paragraph (b)(3), (4), or (5), may be used to export firearms
controlled by ECCN 0A501.a, .b, or shotguns with a barrel length less
than 18 inches controlled in ECCN 0A502.
* * * * *
(5) Exports of firearms and certain shotguns temporarily in the
United States. This paragraph (b)(5) authorizes the export of no more
than 75 end item firearms per shipment controlled by ECCN 0A501.a or
.b, or shotguns with a barrel length less than 18 inches controlled in
ECCN 0A502 that are temporarily in the United States for a period not
exceeding one year, provided that:
(i) The firearms were not shipped from or manufactured in a U.S.
arms embargoed country, i.e., destination listed in Country Group D:5
in Supplement No. 1 to this part;
(ii) The firearms were not shipped from or manufactured in Russia,
Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or
Uzbekistan, except for any firearm model controlled by 0A501 that is
specified under Annex A in Supplement No. 4 to this part; and
(iii) The firearms are not ultimately destined to a U.S. arms
embargoed country, i.e., destination listed in Country Group D:5 in
Supplement No. 1 to this part, or to Russia;
(iv) When the firearms entered the U.S. as a temporary import, the
temporary importer or its agent:
(A) Provided the following statement to U.S. Customs and Border
Protection: ``This shipment will be exported in
[[Page 4174]]
accordance with and under the authority of License Exception TMP (15
CFR 740.9(b)(5))'';
(B) Provided to U.S. Customs and Border Protection an invoice or
other appropriate import-related documentation (or electronic
equivalents) that includes a complete list and description of the
firearms being temporarily imported, including their model, make,
caliber, serial numbers, quantity, and U.S. dollar value; and
(C) Provided (if temporarily imported for a trade show, exhibition,
demonstration, or testing) to U.S. Customs and Border Protection the
relevant invitation or registration documentation for the event and an
accompanying letter that details the arrangements to maintain effective
control of the firearms while they are in the United States; and
(v) In addition to the export clearance requirements of part 758 of
the EAR, the exporter or its agent must provide the import
documentation related to paragraph (b)(5)(iv)(B) of this section to
U.S. Customs and Border Protection at the time of export.
Note 1 to paragraph (b)(5): In addition to complying with all
applicable EAR requirements for the export of commodities described
in paragraph (b)(5) of this section, exporters and temporary
importers should contact U.S. Customs and Border Protection (CBP) at
the port of temporary import or export, or at the CBP website, for
the proper procedures for temporarily importing or exporting
firearms controlled in ECCN 0A501.a or .b or shotguns with a barrel
length less than 18 inches controlled in ECCN 0A502, including
regarding how to provide any data or documentation required by BIS.
* * * * *
0
10. Section 740.10 is amended by:
0
a. Adding one sentence at the end of paragraph (b)(1); and
0
b. Adding paragraph (b)(4).
The additions read as follows:
Sec. 740.10 License Exception Servicing and replacement of parts and
equipment (RPL).
* * * * *
(b) * * *
(1) * * * The export of firearms controlled by ECCN 0A501.a or .b,
or shotguns with a barrel length less than 18 inches controlled in ECCN
0A502 temporarily in the United States for servicing and replacement
may be exported under paragraph (b)(2) or (3) of this section only if
the additional requirements in paragraph (b)(4) of this section are
also met.
* * * * *
(4) This paragraph (b)(4) authorizes the export of firearms
controlled by ECCN 0A501.a or .b, or shotguns with a barrel length less
than 18 inches controlled in ECCN 0A502 that are temporarily in the
United States for servicing or replacement for a period not exceeding
one year or the time it takes to service or replace the commodity,
whichever is shorter, provided that the requirements of paragraph
(b)(2) or (3) of this section are met and:
(i) The firearms were not shipped from or manufactured in Russia,
Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or
Uzbekistan, except for any firearm model controlled by 0A501 that is
specified under Annex A in Supplement No. 4 to this part;
(ii) When the firearms entered the U.S. as a temporary import, the
temporary importer or its agent:
(A) Provided the following statement to U.S. Customs and Border
Protection: ``This shipment will be exported in accordance with and
under the authority of License Exception RPL (15 CFR 740.10(b))'';
(B) Provided to U.S. Customs and Border Protection an invoice or
other appropriate import-related documentation (or electronic
equivalents) that includes a complete list and description of the
firearms being temporarily imported, including their model, make,
caliber, serial numbers, quantity, and U.S. dollar value; and
(C) Provided (if temporarily imported for servicing or replacement)
to U.S. Customs and Border Protection the name, address and contact
information (telephone number and/or email) of the organization or
individual in the U.S. that will be receiving the item for servicing or
replacement; and
(iii) In addition to the export clearance requirements of part 758
of the EAR, the exporter or its agent must provide the import
documentation related to paragraph (b)(4)(iii)(B) of this section to
U.S. Customs and Border Protection at the time of export.
Note 1 to paragraph (b)(4): In addition to complying with all
applicable EAR requirements for the export of commodities described
in paragraph (b)(4) of this section, exporters and temporary
importers should contact U.S. Customs and Border Protection (CBP) at
the port of temporary import or export, or at the CBP website, for
the proper procedures for temporarily importing or exporting
firearms controlled in ECCN 0A501.a or .b or shotguns with a barrel
length less than 18 inches controlled in ECCN 0A502, including
regarding how to provide any data or documentation required by BIS.
* * * * *
0
11. Section 740.11 is amended by:
0
a. Adding two sentences at the end of the introductory text;
0
b. Adding note 2 to paragraph (b)(2); and
0
c. Redesignating note 1 to paragraph (c)(1) as note 3 to paragraph
(c)(1) and notes 1 and 2 to paragraph (e) as notes 4 and 5 to paragraph
(e).
The additions read as follows:
Sec. 740.11 Governments, international organizations, international
inspections under the Chemical Weapons Convention, and the
International Space Station (GOV).
* * * Commodities listed in ECCN 0A501 are eligible only for
transactions described in paragraphs (b)(2)(i) and (ii) of this
section. Any item listed in a 0x5zz ECCN for export, reexport, or
transfer (in-country) to an E:1 country is eligible only for
transactions described in paragraphs (b)(2)(i) and (ii) solely for U.S.
Government official use of this section.
* * * * *
Note 2 to paragraph (b)(2): Items controlled for NS, MT, CB, NP,
FC, or AT reasons may not be exported, reexported, or transferred
(in-country) to, or for the use of military, police, intelligence
entities, or other sensitive end users (e.g., contractors or other
governmental parties performing functions on behalf of military,
police, or intelligence entities) of a government in a Country Group
E:1 or E:2 country.
* * * * *
0
12. Section 740.14 is amended by revising paragraph (b)(4) introductory
text and paragraph (e) heading and adding paragraphs (e)(3) and (4) to
read as follows:
Sec. 740.14 Baggage (BAG).
* * * * *
(b) * * *
(4) Tools of trade. Usual and reasonable kinds and quantities of
tools, instruments, or equipment and their containers and also
technology for use in the trade, occupation, employment, vocation, or
hobby of the traveler or members of the household who are traveling or
moving. For special provisions regarding firearms and ammunition, see
paragraph (e) of this section. For special provisions regarding
encryption commodities and software subject to EI controls, see
paragraph (f) of this section. For a special provision that specifies
restrictions regarding the export or reexport of technology under this
paragraph (b)(4), see paragraph (g) of this section. For special
provisions regarding personal protective equipment under ECCN 1A613.c
or .d, see paragraph (h) of this section.
* * * * *
(e) Special provisions for firearms and ammunition. * * *
(3) A United States citizen or a permanent resident alien leaving
the
[[Page 4175]]
United States may export under this License Exception firearms,
``parts,'' ``components,'' ``accessories,'' or ``attachments''
controlled under ECCN 0A501 and ammunition controlled under ECCN
0A505.a, subject to the following limitations:
(i) Not more than three firearms and 1,000 rounds of ammunition may
be taken on any one trip.
(ii) ``Parts,'' ``components,'' ``accessories,'' and
``attachments'' exported pursuant to this paragraph (e)(3) must be of a
kind and limited to quantities that are reasonable for the activities
described in paragraph (e)(3)(iv) of this section or that are necessary
for routine maintenance of the firearms being exported.
(iii) The commodities must be with the person's baggage.
(iv) The commodities must be for the person's exclusive use and not
for resale or other transfer of ownership or control. Accordingly,
except as provided in paragraph (e)(4) of this section, firearms,
``parts,'' ``components,'' ``accessories,'' ``attachments,'' and
ammunition, may not be exported permanently under this License
Exception. All firearms, ``parts,'' ``components,'' ``accessories,'' or
``attachments'' controlled under ECCN 0A501 and all unused ammunition
controlled under ECCN 0A505.a exported under this License Exception
must be returned to the United States.
(v) Travelers leaving the United States temporarily are required to
declare the firearms, ``parts,'' ``components,'' ``accessories,''
``attachments,'' and ammunition being exported under this License
Exception to a Customs and Border Protection (CBP) officer prior to
departure from the United States and present such items to the CBP
officer for inspection, confirming that the authority for the export is
License Exception BAG and that the exporter is compliant with its
terms.
(4) A nonimmigrant alien leaving the United States may export or
reexport under this License Exception only such firearms controlled
under ECCN 0A501 and ammunition controlled under ECCN 0A505 as he or
she brought into the United States under the relevant provisions of
Department of Justice regulations at 27 CFR part 478.
* * * * *
0
13. Section 740.16 is amended by revising paragraphs (a)(2) and
(b)(2)(iv) and (v) and adding paragraph (b)(2)(vi) to read as follows:
Sec. 740.16 Additional permissive reexports (APR).
* * * * *
(a) * * *
(2) The commodities being reexported are not controlled for NP, CB,
MT, SI, or CC reasons or described in ECCNs 0A919, 3A001.b.2 or b.3
(except those that are being reexported for use in civil
telecommunications applications), 6A002, 6A003; or commodities
classified under a 0x5zz ECCN; and
* * * * *
(b) * * *
(2) * * *
(iv) Commodities described in ECCN 0A504 that incorporate an image
intensifier tube;
(v) Commodities described in ECCN 6A002; or
(vi) Commodities classified under a 0x5zz ECCN.
* * * * *
0
14. Section 740.20 is amended by revising paragraph (b)(2)(ii) to read
as follows:
Sec. 740.20 License Exception Strategic Trade Authorization (STA).
* * * * *
(b) * * *
(2) * * *
(ii) License Exception STA may not be used for:
(A) Any item controlled in ECCNs 0A501.a, .b, .c, .d, or .e; 0A981;
0A982; 0A983; 0A503; 0E504; 0E982; or
(B) Shotguns with barrel length less than 18 inches controlled in
0A502.
* * * * *
0
15. Add Supplement No. 4 to part 740 to read as follows:
Supplement No. 4 to Part 740--Annex A Firearm Models
(a) Pistols/revolvers.
(1) German Model P08 Pistol = SMCR.
(2) IZH 34M, .22 Target pistol.
(3) IZH 35M, .22 caliber Target pistol.
(4) Mauser Model 1896 pistol = SMCR.
(5) MC-57-1 pistol.
(6) MC-1-5 pistol.
(7) Polish Vis Model 35 pistol = SMCR.
(8) Soviet Nagant revolver = SMCR.
(9) TOZ 35, .22 caliber Target pistol.
(10) MTs 440.
(11) MTs 57-1.
(12) MTs 59-1.
(13) MTs 1-5.
(14) TOZ-35M (starter pistol).
(15) Biathlon-7K.
(b) Rifles.
(1) BARS-4 Bolt Action carbine.
(2) Biathlon target rifle, .22.
(3) British Enfield rifle = SMCR.
(4) CM2, .22 target rifle (also known as SM2, .22).
(5) German model 98K = SMCR.
(6) German model G41 = SMCR.
(7) German model G43 = SMCR.
(8) IZH-94.
(9) LOS-7, bolt action.
(10) MC-7-07.
(11) MC-18-3.
(12) MC-19-07.
(13) MC-105-01.
(14) MC-112-02.
(15) MC-113-02.
(16) MC-115-1.
(17) MC-125/127.
(18) MC-126.
(19) MC-128.
(20) Saiga.
(21) Soviet Model 38 carbine = SMCR.
(22) Soviet Model 44 carbine = SMCR.
(23) Soviet Model 91/30 rifle = SMCR.
(24) TOZ 18, .22 bolt action.
(25) TOZ 55.
(26) TOZ 78.
(27) Ural Target, .22lr.
(28) VEPR rifle.
(29) Winchester Model 1895, Russian Model rifle = SMCR.
(30) Sever--double barrel.
(31) IZH18MH single barrel break action.
(32) MP-251 over/under rifle.
(33) MP-221 double barrel rifle.
(34) MP-141K.
(35) MP-161K.
(36) MTs 116-1.
(37) MTs 116M.
(38) MTs 112-02.
(39) MTs 115-1.
(40) MTs 113-02.
(41) MTs 105-01.
(42) MTs 105-05.
(43) MTs 7-17 combination gun.
(44) MTs 7-12-07 rifle/shotgun.
(45) MTs 7-07.
(46) MTs 109-12-07 rifle.
(47) MTs 109-07 rifle.
(48) MTs 106-07 combination.
(49) MTs 19-97.
(50) MTs 19-09.
(51) MTs 18-3M.
(52) MTs 125.
(53) MTs 126.
(54) MTs 127.
(55) Berkut-2.
(56) Berkut-2M1.
(57) Berkut-3.
(58) Berkut-2-1.
(59) Berkut-2M2.
(60) Berkut-3-1.
(61) Ots-25.
(62) MTs 20-07.
(63) LOS-7-1.
(64) LOS-7-2.
(65) LOS-9-1.
(66) Sobol (Sable).
(67) Rekord.
(68) Bars-4-1.
(69) Saiga.
(70) Saiga-M.
(71) Saiga 308.
(72) Saiga-308-1.
(73) Saiga 308-2.
(74) Saiga-9.
(75) Korshun.
(76) Ural-5-1.
(77) Ural 6-1.
(78) Ural-6-2.
(79) SM-2.
(80) Biatlon-7-3.
(81) Biatlon-7-4.
(82) Rekord-1.
(83) Rekord-2.
(84) Rekord-CISM.
(85) Rekord-1-308.
(86) Rekord-2-308.
(87) Rekord-1-308-CISM.
[[Page 4176]]
(88) VEPR.
(89) VEPR Super.
(90) VEPR Pioneer.
(91) VEPR Safari.
(92) TOZ 109.
(93) KO 44-1.
(94) TOZ 78-01.
(95) KO 44.
(96) TOZ 99.
(97) TOZ 99-01.
(98) TOZ 55-01 Zubr.
(99) TOZ 55-2 Zubr.
(100) TOZ 120 Zubr.
(101) MTs 111.
(102) MTs 109.
(103) TOZ 122.
(104) TOZ 125.
(105) TOZ 28.
(106) TOZ 300.
PART 742--CONTROL POLICY--CCL BASED CONTROLS
0
16. The authority citation for part 742 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 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, 68 FR 26459, 3 CFR, 2004
Comp., p. 320; Notice of November 12, 2019, 84 FR 61817 (November
13, 2019).
0
17. Section 742.6 is amended by revising the first and sixth sentences
of paragraph (b)(1)(i) and adding a seventh sentence at the end of
paragraph (b)(1)(i) to read as follows:
Sec. 742.6 Regional stability.
* * * * *
(b) * * *
(1) * * *
(i) Applications for exports and reexports of ECCN 0A501, 0A504,
0A505, 0B501, 0B505, 0D501, 0D505, 0E501, 0E504, and 0E505 items; 9x515
items and ``600 series'' items and will be reviewed on a case-by-case
basis to determine whether the transaction is contrary to the national
security or foreign policy interests of the United States, including
the foreign policy interest of promoting the observance of human rights
throughout the world. * * * When destined to the People's Republic of
China or a country listed in Country Group E:1 in Supplement No. 1 to
part 740 of the EAR, items classified under ECCN 0A501, 0A505, 0B501,
0B505, 0D501, 0D505, 0E501, 0E504, and 0E505 or any 9x515 ECCN will be
subject to a policy of denial. In addition, applications for exports
and reexports of ECCN 0A501, 0A505, 0B501, 0B505, 0D501, 0D505, 0E501,
0E504, and 0E505 items when there is reason to believe the transaction
involves criminal organizations, rebel groups, street gangs, or other
similar groups or individuals, that may be disruptive to regional
stability, including within individual countries, will be subject to a
policy of denial.
* * * * *
0
18. Section 742.7 is amended by revising paragraphs (a)(1) through (4)
and (c) to read as follows:
Sec. 742.7 Crime control and detection.
(a) * * *
(1) Crime control and detection instruments and equipment and
related ``technology'' and ``software'' identified in the appropriate
ECCNs on the CCL under CC Column 1 in the Country Chart column of the
``License Requirements'' section. A license is required to countries
listed in CC Column 1 (Supplement No. 1 to part 738 of the EAR). Items
affected by this requirement are identified on the CCL under the
following ECCNs: 0A502, 0A504, 0A505.b, 0A978, 0A979 0E502, 0E505
(``technology'' for ``development'' or for ``production'' of buckshot
shotgun shells controlled under ECCN 0A505.b), 1A984, 1A985, 3A980,
3A981, 3D980, 3E980, 4A003 (for fingerprint computers only), 4A980,
4D001 (for fingerprint computers only), 4D980, 4E001 (for fingerprint
computers only), 4E980, 6A002 (for police-model infrared viewers only),
6E001 (for police-model infrared viewers only), 6E002 (for police-model
infrared viewers only), and 9A980.
(2) Shotguns with a barrel length greater than or equal to 24
inches, identified in ECCN 0A502 on the CCL under CC Column 2 in the
Country Chart column of the ``License Requirements'' section regardless
of end user to countries listed in CC Column 2 (Supplement No. 1 to
part 738 of the EAR).
(3) Shotguns with barrel length greater than or equal to 24 inches,
identified in ECCN 0A502 on the CCL under CC Column 3 in the Country
Chart column of the ``License Requirements'' section only if for sale
or resale to police or law enforcement entities in countries listed in
CC Column 3 (Supplement No. 1 to part 738 of the EAR).
(4) Certain crime control items require a license to all
destinations, except Canada. These items are identified under ECCNs
0A982, 0A503, and 0E982. Controls for these items appear in each ECCN;
a column specific to these controls does not appear in the Country
Chart (Supplement No. 1 to part 738 of the EAR).
* * * * *
(c) Contract sanctity. Contract sanctity date: August 22, 2000.
Contract sanctity applies only to items controlled under ECCNs 0A982,
0A503, and 0E982 destined for countries not listed in CC Column 1 of
the Country Chart (Supplement No. 1 to part 738 of the EAR).
* * * * *
0
19. Section 742.17 is amended by revising the first sentence of
paragraph (a) and paragraph (f) to read as follows:
Sec. 742.17 Exports of firearms to OAS member countries.
(a) License requirements. BIS maintains a licensing system for the
export of firearms and related items to all OAS member countries. * * *
* * * * *
(f) Items/Commodities. Items requiring a license under this section
are ECCNs 0A501 (except 0A501.y), 0A502, 0A504 (except 0A504.f), and
0A505 (except 0A505.d). (See Supplement No. 1 to part 774 of the EAR).
* * * * *
Sec. 742.19 [Amended]
0
20. Section 742.19(a)(1) is amended by:
0
a. Removing ``0A986'' and adding in its place ``0A505.c''; and
0
b. Removing ``0B986'' and adding in its place ``0B505.c''.
PART 743--SPECIAL REPORTING AND NOTIFICATION
0
21. The authority citation for 15 CFR part 743 is revised to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223.
0
22. Section 743.4 is amended by:
0
a. In paragraph (a):
0
i. Removing ``(c)(1)'' and ``(c)(2)'' and adding in their places
``(c)(1) of this section'' and ``(c)(2) of this section,''
respectively; and
0
ii. Adding four sentences to the end of the paragraph;
0
b. Redesignating the note to paragraph (a) as note 1 to paragraph (a)
and removing ``Sec. 743.4'' in newly redesignated note 1 and adding
``this section'' in its place;
0
c. Revising paragraph (b) introductory text;
0
d. Adding paragraphs (c)(1)(i) and (c)(2)(i);
0
e. Redesignating the note to paragraph (e)(1)(ii) as note 2 to
paragraph (e)(1)(ii);
[[Page 4177]]
0
e. Revising paragraph (h); and
0
f. Adding paragraph (i).
The additions and revisions read as follows:
Sec. 743.4 Conventional arms reporting.
(a) * * * This section does not require reports when the exporter
uses the alternative submission method described under paragraph (h) of
this section. The alternative submission method under paragraph (h)
requires the exporter to submit the information required for
conventional arms reporting in this section as part of the required EEI
submission in AES, pursuant to Sec. 758.1(b)(9) of the EAR. Because of
the requirements in Sec. 758.1(g)(4)(ii) of the EAR for the firearms
that require conventional arms reporting of all conventional arms, the
Department of Commerce believes all conventional arms reporting
requirements for firearms will be met by using the alternative
submission method. The Department of Commerce leaves standard method
for submitting reports in place in case any additional items are moved
from the USML to the CCL, that may require conventional arms reporting.
* * * * *
(b) Requirements. You must submit one electronic copy of each
report required under the provisions of this section, or submit this
information using the alternative submission method specified in
paragraph (h) of this section, and maintain accurate supporting records
(see Sec. 762.2(b) of the EAR) for all exports of items specified in
paragraph (c) of this section for the following:
* * * * *
(c) * * *
(1) * * *
(i) ECCN 0A501.a and .b.
* * * * *
(2) * * *
(i) ECCN 0A501.a and .b.
* * * * *
(h) Alternative submission method. This paragraph (h) describes an
alternative submission method for meeting the conventional arms
reporting requirements of this section. The alternative submission
method requires the exporter, when filing the required EEI submission
in AES, pursuant to Sec. 758.1(b)(9) of the EAR, to include the six
character ECCN classification (i.e., 0A501.a or 0A501.b) as the first
text to appear in the Commodity description block. If the exporter
properly includes this information in the EEI filing in AES, the
Department of Commerce will be able to obtain that export information
directly from AES to meet the U.S. Government's commitments to the
Wassenaar Arrangement and United Nations for conventional arms
reporting. An exporter that complies with the requirements in Sec.
758.1(g)(4)(ii) of the EAR does not have to submit separate annual and
semi-annual reports to the Department of Commerce pursuant to this
section.
(i) Contacts. General information concerning the Wassenaar
Arrangement and reporting obligations thereof is available from the
Office of National Security and Technology Transfer Controls, Tel.:
(202) 482-0092, Fax: (202) 482-4094. Information concerning the
reporting requirements for items identified in paragraphs (c)(1) and
(2) of this section is available from the Office of Nonproliferation
and Treaty Compliance (NPTC), Tel.: (202) 482-4188, Fax: (202) 482-
4145.
PART 744--CONTROL POLICY: END-USER AND END-USE BASED
0
23. The authority citation for 15 CFR part 744 is revised to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 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; 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. 13099, 63 FR 45167, 3
CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp.,
p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice
of September 19, 2019, 83 FR 49633 (September 20, 2019); Notice of
November 12, 2019, 84 FR 61817 (November 13, 2019).
Sec. 744.9 [Amended]
0
24. Section 744.9 is amended by removing ``0A987'' from paragraphs
(a)(1) introductory text and (b) and adding in its place ``0A504''.
PART 746--EMBARGOES AND OTHER SPECIAL CONTROLS
0
25. The authority citation for 15 CFR part 746 continues to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 287c; Sec 1503, Pub. L. 108-11, 117
Stat. 559; 22 U.S.C. 2151 note; 22 U.S.C. 6004; 22 U.S.C. 7201 et
seq.; 22 U.S.C. 7210; E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp., p.
614; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; E.O. 13222,
66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3
CFR, 2004 Comp., p 168; Presidential Determination 2003-23, 68 FR
26459, 3 CFR, 2004 Comp., p. 320; Presidential Determination 2007-7,
72 FR 1899, 3 CFR, 2006 Comp., p. 325; Notice of May 8, 2019, 84 FR
20537 (May 10, 2019).
Sec. 746.3 [Amended]
0
26. Section 746.3 is amended by removing ``0A986'' from paragraph
(b)(2) and adding in its place ``0A505.c''.
Sec. 746.7 [Amended]
0
27. Section 746.7(a)(1) is amended by:
0
a. Adding ``0A503,'' immediately before ``0A980''; and
0
b. Removing ``0A985,''.
PART 748--APPLICATIONS (CLASSIFICATION, ADVISORY, AND LICENSE) AND
DOCUMENTATION
0
28. The authority citation for 15 CFR part 748 is revised to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.
0
29. Section 748.12 is amended by:
0
a. Revising the section heading;
0
b. Adding introductory text;
0
c. Revising paragraphs (a) introductory text and (a)(1);
0
d. Redesignating the note to paragraph (c)(8) as note 1 to paragraph
(c)(8); and
0
e. Adding paragraph (e).
The revisions and additions read as follows.
Sec. 748.12 Firearms import certificate or import permit.
License applications for certain firearms and related commodities
require support documents in accordance with this section. For
destinations that are members of the Organization of American States
(OAS), an FC Import Certificate or equivalent official document is
required in accordance with paragraphs (a) through (d) of this section.
For other destinations that require a firearms import or permit, the
firearms import certificate or permit is required in accordance with
paragraph (e) of this section.
(a) Requirement to obtain document for OAS member states. Unless an
exception in Sec. 748.9(c) applies, an FC Import Certificate is
required for license applications for firearms and related commodities,
regardless of value, that are destined for member countries of the OAS.
This requirement is consistent with the OAS Model Regulations described
in Sec. 742.17 of the EAR.
(1) Items subject to requirement. Firearms and related commodities
are those commodities controlled for ``FC Column 1'' reasons under
ECCNs 0A501 (except 0A501.y), 0A502, 0A504 (except 0A504.f), or 0A505
(except 0A505.d).
* * * * *
(e) Requirement to obtain an import certificate or permit for other
than OAS member states. If the country to which
[[Page 4178]]
firearms, parts, components, accessories, and attachments controlled
under ECCN 0A501, or ammunition controlled under ECCN 0A505, are being
exported or reexported requires that a government-issued certificate or
permit be obtained prior to importing the commodity, the exporter or
reexporter must obtain and retain on file the original or a copy of
that certificate or permit before applying for an export or reexport
license unless:
(1) A license is not required for the export or reexport; or
(2) The exporter is required to obtain an import or end-user
certificate or other equivalent official document pursuant to
paragraphs (a) thorough (d) of this section and has, in fact, complied
with that requirement.
(3)(i) The number or other identifying information of the import
certificate or permit must be stated on the license application.
(ii) If the country to which the commodities are being exported
does not require an import certificate or permit for firearms imports,
that fact must be noted on any license application for ECCN 0A501 or
0A505 commodities.
Note 2 to paragraph (e). Obtaining a BIS Statement by Ultimate
Consignee and Purchaser pursuant to Sec. 748.11 does not exempt the
exporter or reexporter from the requirement to obtain a
certification pursuant to paragraph (a) of this section because that
statement is not issued by a government.
0
30. Supplement No. 2 to part 748 is amended by adding paragraph (z) to
read as follows:
Supplement No. 2 to Part 748--Unique Application and Submission
Requirements
* * * * *
(z) Exports of firearms and certain shotguns temporarily in the
United States--(1) Certification. If you are submitting a license
application for the export of firearms controlled by ECCN 0A501.a or
.b, or shotguns with a barrel length less than 18 inches controlled
in ECCN 0A502 that will be temporarily in the United States, e.g.,
for servicing and repair or for intransit shipments, you must
include the following certification in Block 24:
The firearms in this license application will not be shipped
from or manufactured in Russia, Georgia, Kazakhstan, Kyrgyzstan,
Moldova, Turkmenistan, Ukraine, or Uzbekistan, except for any
firearm model controlled by 0A501 that is specified under Annex A in
Supplement No. 4 to part 740. I and the parties to this transaction
will comply with the requirements specified in paragraphs (z)(2)(i)
and (ii) of Supplement No. 2 to part 748.
(2) Requirements. Each approved license for commodities
described under this paragraph (z) must comply with the requirements
specified in paragraphs (z)(2)(i) and (ii) of this supplement.
(i) When the firearms enter the U.S. as a temporary import, the
temporary importer or its agent must:
(A) Provide the following statement to U.S. Customs and Border
Protection: ``This shipment is being temporarily imported in
accordance with the EAR. This shipment will be exported in
accordance with and under the authority of BIS license number
(provide the license number) (15 CFR 750.7(a) and 758.4);''
(B) Provide to U.S. Customs and Border Protection an invoice or
other appropriate import-related documentation (or electronic
equivalents) that includes a complete list and description of the
firearms being temporarily imported, including their model, make,
caliber, serial numbers, quantity, and U.S. dollar value; and
(C) Provide (if temporarily imported for servicing or
replacement) to U.S. Customs and Border Protection the name,
address, and contact information (telephone number and/or email) of
the organization or individual in the U.S. that will be receiving
the item for servicing or replacement); and
(ii) In addition to the export clearance requirements of part
758 of the EAR, the exporter or its agent must provide the import
documentation related to paragraph (z)(2)(i)(B) of this supplement
to U.S. Customs and Border Protection at the time of export.
Note 1 to paragraph (z): In addition to complying with all
applicable EAR requirements for the export of commodities described
in paragraph (z) of this supplement, exporters and temporary
importers should contact U.S. Customs and Border Protection (CBP) at
the port of temporary import or export, or at the CBP website, for
the proper procedures for temporarily importing or exporting
firearms controlled in ECCN 0A501.a or .b or shotguns with a barrel
length less than 18 inches controlled in ECCN 0A502, including
regarding how to provide any data or documentation required by BIS.
PART 758--EXPORT CLEARANCE REQUIREMENTS
0
31. The authority citation for part 758 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
0
32. Section 758.1 is amended by:
0
a. Revising paragraphs (b)(7) and (8);
0
b. Adding paragraph (b)(9);
0
c. Revising paragraph (c)(1);
0
d. Adding paragraph (g)(4); and
0
e. Redesignating note to paragraph (h)(1) as note 3 to paragraph
(h)(1).
The revisions and additions read as follows:
Sec. 758.1 The Electronic Export Enforcement (EEI) filing to the
Automated Export System (AES).
* * * * *
(b) * * *
(7) For all items exported under authorization Validated End-User
(VEU);
(8) For all exports of tangible items subject to the EAR where
parties to the transaction, as described in Sec. 748.5(d) through (f)
of the EAR, are listed on the Unverified List (Supplement No. 6 to part
744 of the EAR), regardless of value or destination; or
(9) For all exports, except for exports authorized under License
Exception BAG, as set forth in Sec. 740.14 of the EAR, of items
controlled under ECCNs 0A501.a or .b, shotguns with a barrel length
less than 18 inches controlled under ECCN 0A502, or ammunition
controlled under ECCN 0A505 except for .c, regardless of value or
destination, including exports to Canada.
(c) * * *
(1) License Exception Baggage (BAG), as set forth in Sec. 740.14
of the EAR. See 15 CFR 30.37(x) of the FTR;
Note 1 to paragraph (c)(1): See the export clearance
requirements for exports of firearms controlled under ECCNs 0A501.a
or .b, shotguns with a barrel length less than 18 inches controlled
under ECCN 0A502, or ammunition controlled under ECCN 0A505,
authorized under License Exception BAG, as set forth in Sec. 740.14
of the EAR.
* * * * *
(g) * * *
(4) Exports of firearms and related items. This paragraph (g)(4)
includes two separate requirements under paragraphs (g)(4)(i) and (ii)
of this section that are used to better identify exports of certain end
item firearms under the EAR. Paragraph (g)(4)(i) of this section is
limited to certain EAR authorizations. Paragraph (g)(4)(ii) of this
section applies to all EAR authorizations that require EEI filing in
AES.
(i) Identifying end item firearms by manufacturer, model, caliber,
and serial number in the EEI filing in AES. For any export authorized
under License Exception TMP or a BIS license authorizing a temporary
export of items controlled under ECCNs 0A501.a or .b, or shotguns with
a barrel length less than 18 inches controlled under ECCN 0A502, in
addition to any other required data for the associated EEI filing, you
must report the manufacturer, model, caliber, and serial number of the
exported items. The requirements of this paragraph (g)(4)(i) also apply
to any other export authorized under a BIS license that includes a
condition or proviso on the license requiring the submission of this
information specified in paragraph (g) of this section when the EEI is
filed in AES.
[[Page 4179]]
(ii) Identifying end item firearms by ``items'' level
classification or other control descriptor in the EEI filing in AES.
For any export of items controlled under ECCNs 0A501.a or .b, or
shotguns with a barrel length less than 18 inches controlled under ECCN
0A502, in addition to any other required data for the associated EEI
filing, you must include the six character ECCN classification (i.e.,
0A501.a, or 0A501.b), or for shotguns controlled under 0A502 the phrase
``0A501 barrel length less than 18 inches'' as the first text to appear
in the Commodity description block in the EEI filing in AES. (See Sec.
743.4(h) of the EAR for the use of this information for conventional
arms reporting).
Note 2 to paragraph (g)(4): If a commodity described in
paragraph (g)(4) of this section is exported under License Exception
TMP under Sec. 740.9(a)(6) of the EAR for inspection, test,
calibration, or repair is not consumed or destroyed in the normal
course of authorized temporary use abroad, the commodity must be
disposed of or retained in one of the ways specified in Sec.
740.9(a)(14)(i), (ii), or (iii) of the EAR. For example, if a
commodity described in paragraph (g)(4) was destroyed while being
repaired after being exported under Sec. 740.9(a)(6), the commodity
described in paragraph (g)(4) would not be required to be returned.
If the entity doing the repair returned a replacement of the
commodity to the exporter from the United States, the import would
not require an EAR authorization. The entity that exported the
commodity described in paragraph (g)(4) and the entity that received
the commodity would need to document this as part of their
recordkeeping related to this export and subsequent import to the
United States.
* * * * *
0
33. Add Sec. 758.10 to read as follows:
Sec. 758.10 Entry clearance requirements for temporary imports.
(a) Scope. This section specifies the temporary import entry
clearance requirements for firearms ``subject to the EAR'' that are on
the United States Munitions Import List (USMIL, 27 CFR 447.21), except
for firearms ``subject to the EAR'' that are temporarily brought into
the United States by nonimmigrant aliens under the provisions of
Department of Justice regulations at 27 CFR part 478 (See Sec.
740.14(e) of the EAR for information on the export of these firearms
``subject to the EAR''). These firearms are controlled in ECCN 0A501.a
or .b or shotguns with a barrel length less than 18 inches controlled
in ECCN 0A502. Items that are temporarily exported under the EAR must
have met the export clearance requirements specified in Sec. 758.1.
(1) An authorization under the EAR is not required for the
temporary import of ``items'' that are ``subject to the EAR,''
including for ``items'' ``subject to the EAR'' that are on the USMIL.
Temporary imports of firearms described in this section must meet the
entry clearance requirements specified in paragraph (b) of this
section.
(2) Permanent imports are regulated by the Attorney General under
the direction of the Department of Justice's Bureau of Alcohol,
Tobacco, Firearms and Explosives (see 27 CFR parts 447, 478, 479, and
555).
(b) EAR procedures for temporary imports and subsequent exports. To
the satisfaction of U.S. Customs and Border Protection, the temporary
importer must comply with the following procedures:
(1) At the time of entry into the U.S. of the temporary import:
(i) Provide one of the following statements specified in paragraph
(b)(1)(i)(A), (B), or (C) of this section to U.S. Customs and Border
Protection:
(A) ``This shipment is being temporarily imported in accordance
with the EAR. This shipment will be exported in accordance with and
under the authority of License Exception TMP (15 CFR 740.9(b)(5));''
(B) ``This shipment is being temporarily imported in accordance
with the EAR. This shipment will be exported in accordance with and
under the authority of License Exception RPL (15 CFR 740.10(b));'' or
(C) ``This shipment is being temporarily imported in accordance
with the EAR. This shipment will be exported in accordance with and
under the authority of BIS license number (provide the license number)
(15 CFR 750.7(a) and 758.4);''
(ii) Provide to U.S. Customs and Border Protection an invoice or
other appropriate import-related documentation (or electronic
equivalents) that includes a complete list and description of the
firearms being temporarily imported, including their model, make,
caliber, serial numbers, quantity, and U.S. dollar value;
(iii) Provide (if temporarily imported for a trade show,
exhibition, demonstration, or testing) to U.S. Customs and Border
Protection the relevant invitation or registration documentation for
the event and an accompanying letter that details the arrangements to
maintain effective control of the firearms while they are in the United
States; or
(iv) Provide (if temporarily imported for servicing or replacement)
to U.S. Customs and Border Protection the name, address and contact
information (telephone number and/or email) of the organization or
individual in the U.S. that will be receiving the item for servicing or
replacement).
Note 1 to paragraph (b)(1): In accordance with the exclusions in
License Exception TMP under Sec. 740.9(b)(5) of the EAR, the entry
clearance requirements in Sec. 758.1(b)(9) do not permit the
temporary import of: Firearms controlled in ECCN 0A501.a or .b that
are shipped from or manufactured in a Country Group D:5 country; or
that are shipped from or manufactured in Russia, Georgia,
Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or
Uzbekistan (except for any firearm model controlled by 0A501 that is
specified under Annex A in Supplement No. 4 to part 740 of the EAR);
or shotguns with a barrel length less than 18 inches controlled in
ECCN 0A502 that are shipped from or manufactured in a Country Group
D:5 country, or from Russia, Georgia, Kazakhstan, Kyrgyzstan,
Moldova, Turkmenistan, Ukraine, or Uzbekistan, because of the
exclusions in License Exception TMP under Sec. 740.9(b)(5).
Note 2 to paragraph (b)(1): In accordance with the exclusions
in License Exception RPL under Sec. 740.10(b)(4) and Supplement No.
2 to part 748, paragraph (z), of the EAR, the entry clearance
requirements in Sec. 758.1(b)(9) do not permit the temporary import
of: Firearms controlled in ECCN 0A501.a or .b that are shipped from
or manufactured in Russia, Georgia, Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan (except for any firearm model
controlled by 0A501 that is specified under Annex A in Supplement
No. 4 to part 740 of the EAR); or shotguns with a barrel length less
than 18 inches controlled in ECCN 0A502 that are shipped from or
manufactured in Russia, Georgia, Kazakhstan, Kyrgyzstan, Moldova,
Turkmenistan, Ukraine, or Uzbekistan, because of the exclusions in
License Exception RPL under Sec. 740.10(b)(4) and Supplement No. 2
to part 748, paragraph (z), of the EAR.
(2) At the time of export, in accordance with the U.S. Customs and
Border Protection procedures, the eligible exporter, or an agent acting
on the filer's behalf, must as required under Sec. 758.1(b)(9) file
the export information with CBP by filing EEI in AES, noting the
applicable EAR authorization as the authority for the export, and
provide, upon request by CBP, the entry document number or a copy of
the CBP document under which the ``item'' subject to the EAR'' on the
USMIL was temporarily imported. See also the additional requirements in
Sec. 758.1(g)(4).
0
34. Add Sec. 758.11 to read as follows:
Sec. 758.11 Export clearance requirements for firearms and related
items.
(a) Scope. The export clearance requirements of this section apply
to all exports of commodities controlled under ECCNs 0A501.a or .b,
shotguns with a barrel length less than 18 inches controlled under ECCN
0A502, or
[[Page 4180]]
ammunition controlled under ECCN 0A505 except for .c, regardless of
value or destination, including exports to Canada, that are authorized
under License Exception BAG, as set forth in Sec. 740.14 of the EAR.
(b) Required form. Prior to making any export described in
paragraph (a) of this section, the exporter is required to submit a
properly completed Department of Homeland Security, CBP Form 4457,
(Certificate of Registration for Personal Effects Taken Abroad) (OMB
Control Number 1651-0010), to the U.S. Customs and Border Protection
(CBP), pursuant to 19 CFR 148.1, and as required by this section.
(1) Where to obtain the form? The CBP Certification of Registration
Form 4457 can be found on the following CBP website: https://www.cbp.gov/document/forms/form-4457-certificate-registration-personal-effects-taken-abroad.
(2) Required ``description of articles'' for firearms to be
included on the CBP Form 4457. For all exports of firearms controlled
under ECCNs 0A501.a or .b, or shotguns with a barrel length less than
18 inches controlled under ECCN 0A502, the exporter must provide to CBP
the serial number, make, model, and caliber for each firearm being
exported by entering this information under the ``Description of
Articles'' field of the CBP Form 4457, Certificate of Registration for
Personal Effects Taken Abroad.
(c) Where to find additional information on the CBP Form 4457? See
the following CBP website page for additional information: https://
help.cbp.gov/app/answers/detail/a_id/323/~/traveling-outside-of-the-
u.s.-temporarily-taking-a-firearm%2C-rifle%2C-gun%2C.
(d) Return of items exported pursuant to this section. The exporter
when returning with a commodity authorized under License Exception BAG
and exported pursuant this section, is required to present a copy of
the CBP Form 4457, Certificate of Registration for Personal Effects
Taken Abroad) (OMB Control Number 1651-0010), to CBP, pursuant to 19
CFR 148.1, and as required by this section.
PART 762--RECORDKEEPING
0
35. The authority citation for part 762 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
0
36. Section 762.2 is amended by removing ``and,'' at the end of
paragraph (a)(10), redesignating paragraph (a)(11) as paragraph
(a)(12), and adding a new paragraph (a)(11) to read as follows:
Sec. 762.2 Records to be retained.
(a) * * *
(11) The serial number, make, model, and caliber for any firearm
controlled in ECCN 0A501.a and for shotguns with barrel length less
than 18 inches controlled in 0A502 that have been exported. The
``exporter'' or any other party to the transaction (see Sec. 758.3 of
the EAR), that creates or receives such records is a person responsible
for retaining this record; and
* * * * *
0
37. Section 762.3 is amended by revising paragraph (a)(5) to read as
follows:
Sec. 762.3 Records exempt from recordkeeping requirements.
(a) * * *
(5) Warranty certificate, except for a warranty certificate issued
for an address located outside the United States for any firearm
controlled in ECCN 0A501.a and for shotguns with barrel length less
than 18 inches controlled in 0A502;
* * * * *
PART 772--DEFINITIONS OF TERMS
0
38. The authority citation for part 772 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
0
39. In Sec. 772.1:
0
a. The definition of ``Complete breech mechanisms'' is added in
alphabetical order; and
0
b. In the definition of ``Specially designed,'' note 1 is amended by
removing ``0B986'' and adding in its place ``0B505.c''.
The addition reads as follows:
Sec. 772.1 Definitions of terms as used in the Export Administration
Regulations (EAR).
* * * * *
Complete breech mechanisms. The mechanism for opening and closing
the breech of a breech-loading firearm, especially of a heavy-caliber
weapon.
* * * * *
PART 774--THE COMMERCE CONTROL LIST
0
40. The authority citation for 15 CFR part 774 is revised to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C.
287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15
U.S.C. 1824; 50 U.S.C. 4305; 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.
0
41. In Supplement No. 1 to part 774, Category 0, revise Export Control
Classification Number (ECCN) 0A018 to read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
0A018 Items on the Wassenaar Munitions List (see List of Items
Controlled)
No items currently are in this ECCN. See ECCN 0A505 for
``parts'' and ``components'' for ammunition that, immediately prior
to March 9, 2020, were classified under 0A018.b.
0
42. In Supplement No. 1 to part 774, Category 0, add, between entries
for ECCNs 0A018 and 0A521, entries for ECCNs 0A501, 0A502, 0A503,
0A504, and 0A505 to read as follows:
0A501 Firearms (except 0A502 shotguns) and related commodities as
follows (see List of Items Controlled)
License Requirements
Reason for Control: NS, RS, FC, UN, AT
Country chart (see supp.
Control(s) No. 1 to part 738)
NS applies to entire entry except 0A501.y. NS Column 1
RS applies to entire entry except 0A501.y. RS Column 1
FC applies to entire entry except 0A501.y. FC Column 1
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls.
AT applies to entire entry................ AT Column 1
License Requirement Note: In addition to using the Commerce Country
Chart to determine license requirements, a license is required for
exports and reexports of ECCN 0A501.y.7 firearms to the People's
Republic of China.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $500 for 0A501.c, .d, and .x.
$500 for 0A501.c, .d, .e, and .x if the ultimate destination is
Canada.
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in this entry.
List of Items Controlled
Related Controls: (1) Firearms that are fully automatic, and
magazines with a capacity of greater than 50 rounds, are ``subject
to the ITAR.'' (2) See ECCN 0A502 for
[[Page 4181]]
shotguns and their ``parts'' and ``components'' that are subject to
the EAR. Also see ECCN 0A502 for shot-pistols. (3) See ECCN 0A504
and USML Category XII for controls on optical sighting devices.
Related Definitions: N/A.
Items:
a. Non-automatic and semi-automatic firearms equal to .50
caliber (12.7 mm) or less.
Note 1 to paragraph 0A501.a: `Combination pistols' are
controlled under ECCN 0A501.a. A `combination pistol' (a.k.a., a
combination gun) has at least one rifled barrel and at least one
smoothbore barrel (generally a shotgun style barrel).
b. Non-automatic and non-semi-automatic rifles, carbines,
revolvers or pistols with a caliber greater than .50 inches (12.7
mm) but less than or equal to .72 inches (18.0 mm).
c. The following types of ``parts'' and ``components'' if
``specially designed'' for a commodity controlled by paragraph .a or
.b of this entry, or USML Category I (unless listed in USML Category
I(g) or (h)): Barrels, cylinders, barrel extensions, mounting blocks
(trunnions), bolts, bolt carriers, operating rods, gas pistons,
trigger housings, triggers, hammers, sears, disconnectors, pistol
grips that contain fire control ``parts'' or ``components'' (e.g.,
triggers, hammers, sears, disconnectors) and buttstocks that contain
fire control ``parts'' or ``components.''
d. Detachable magazines with a capacity of greater than 16
rounds ``specially designed'' for a commodity controlled by
paragraph .a or .b of this entry.
Note 2 to paragraph 0A501.d: Magazines with a capacity of 16
rounds or less are controlled under 0A501.x.
e. Receivers (frames) and ``complete breech mechanisms,''
including castings, forgings stampings, or machined items thereof,
``specially designed'' for a commodity controlled by paragraph .a or
.b of this entry.
f. through w. [Reserved]
x. ``Parts'' and ``components'' that are ``specially designed''
for a commodity classified under paragraphs .a through .c of this
entry or the USML and not elsewhere specified on the USML or CCL.
y. Specific ``parts,'' ``components,'' ``accessories'' and
``attachments'' ``specially designed'' for a commodity subject to
control in this ECCN or common to a defense article in USML Category
I and not elsewhere specified in the USML or CCL as follows, and
``parts,'' ``components,'' ``accessories,'' and ``attachments''
``specially designed'' therefor.
y.1. Stocks or grips, that do not contain any fire control
``parts'' or ``components'' (e.g., triggers, hammers, sears,
disconnectors);''
y.2. Scope mounts or accessory rails;
y.3. Iron sights;
y.4. Sling swivels;
y.5. Butt plates or recoil pads;
y.6. Bayonets; and
y.7. Firearms manufactured from 1890 to 1898 and reproductions
thereof.
Technical Note 1 to 0A501: The controls on ``parts'' and
``components'' in ECCN 0A501 include those ``parts'' and
``components'' that are common to firearms described in ECCN 0A501
and to those firearms ``subject to the ITAR.''
Note 3 to 0A501: Antique firearms (i.e., those manufactured
before 1890) and reproductions thereof, muzzle loading black powder
firearms except those designs based on centerfire weapons of a post
1937 design, BB guns, pellet rifles, paint ball, and all other air
rifles are EAR99 commodities.
Note 4 to 0A501: Muzzle loading (black powder) firearms with a
caliber less than 20 mm that were manufactured later than 1937 that
are used for hunting or sporting purposes that were not ``specially
designed'' for military use and are not ``subject to the ITAR'' nor
controlled as shotguns under ECCN 0A502 are EAR99 commodities.
0A502 Shotguns; shotguns ``parts'' and ``components,'' consisting of
complete trigger mechanisms; magazines and magazine extension tubes;
``complete breech mechanisms;'' except equipment used exclusively to
treat or tranquilize animals, and except arms designed solely for
signal, flare, or saluting use.
License Requirements
Reason for Control: RS, CC, FC, UN, AT, NS
Country chart (see Supp.
Control(s) No. 1 to part 738)
NS applies to shotguns with a barrel NS Column 1
length less than 18 inches (45.72 cm).
RS applies to shotguns with a barrel RS Column 1
length less than 18 inches (45.72 cm).
FC applies to entire entry................ FC Column 1
CC applies to shotguns with a barrel CC Column 1
length less than 24 in. (60.96 cm) and
shotgun ``components'' controlled by this
entry regardless of end user.
CC applies to shotguns with a barrel CC Column 2
length greater than or equal to 24 in.
(60.96 cm), regardless of end user.
CC applies to shotguns with a barrel CC Column 3
length greater than or equal to 24 in..
(60.96 cm) if for sale or resale to police
or law enforcement.
UN applies to entire entry................ See Sec. 746.1(b) of the
EAR for UN controls
AT applies to shotguns with a barrel AT Column 1
length less than 18 inches (45.72 cm).
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $500 for 0A502 shotgun ``parts'' and ``components,'' consisting
of complete trigger mechanisms; magazines and magazine extension
tubes.
$500 for 0A502 shotgun ``parts'' and ``components,'' consisting of
complete trigger mechanisms; magazines and magazine extension tubes,
``complete breech mechanisms'' if the ultimate destination is
Canada.
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: Shotguns that are fully automatic are ``subject to
the ITAR.''
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
Note 1 to 0A502: Shotguns made in or before 1898 are considered
antique shotguns and designated as EAR99.
Technical Note: Shot pistols or shotguns that have had the
shoulder stock removed and a pistol grip attached are controlled by
ECCN 0A502. Slug guns are also controlled under ECCN 0A502.
0A503 Discharge type arms; non-lethal or less-lethal grenades and
projectiles, and ``specially designed'' ``parts'' and ``components''
of those projectiles; and devices to administer electric shock, for
example, stun guns, shock batons, shock shields, electric cattle
prods, immobilization guns and projectiles; except equipment used
exclusively to treat or tranquilize animals, and except arms
designed solely for signal, flare, or saluting use; and ``specially
designed'' ``parts'' and ``components,'' n.e.s.
License Requirements
Reason for Control: CC, UN
Country chart (see Supp.
Control(s) No. 1 to part 738)
CC applies to entire entry................ A license is required for
ALL destinations, except
Canada, regardless of end
use. Accordingly, a column
specific to this control
does not appear on the
Commerce Country Chart.
(See part 742 of the EAR
for additional information)
UN applies to entire entry................ See Sec. 746.1(b) of the
EAR for UN controls
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: Law enforcement restraint devices that administer
an electric shock are controlled under ECCN 0A982. Electronic
devices that monitor and report a person's location to enforce
restrictions on movement for law enforcement or penal reasons are
controlled under ECCN 3A981.
[[Page 4182]]
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0A504 Optical sighting devices for firearms (including shotguns
controlled by 0A502); and ``components'' as follows (see List of
Items Controlled).
License Requirements
Reason for Control: FC, RS, CC, UN
Country chart (see Supp. No.
Control(s) 1 to part 738)
RS applies to paragraph .i................ RS Column 1
FC applies to paragraphs .a, .b, .c, .d, FC Column 1
.e, .g, and .i of this entry.
CC applies to entire entry................ CC Column 1
UN applies to entire entry................ See Sec. 746.1(b) of the
EAR for UN controls
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $500 for 0A504.g.
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: (1) See USML Category XII(c) for sighting devices
using second generation image intensifier tubes having luminous
sensitivity greater than 350 [micro]A/lm, or third generation or
higher image intensifier tubes, that are ``subject to the ITAR.''
(2) See USML Category XII(b) for laser aiming or laser illumination
systems ``subject to the ITAR.'' (3) Section 744.9 of the EAR
imposes a license requirement on certain commodities described in
0A504 if being exported, reexported, or transferred (in-country) for
use by a military end-user or for incorporation into an item
controlled by ECCN 0A919.
Related Definitions: N/A
Items:
a. Telescopic sights.
b. Holographic sights.
c. Reflex or ``red dot'' sights.
d. Reticle sights.
e. Other sighting devices that contain optical elements.
f. Laser aiming devices or laser illuminators ``specially
designed'' for use on firearms, and having an operational wavelength
exceeding 400 nm but not exceeding 710 nm.
Note 1 to 0A504.f: 0A504.f does not control laser boresighting
devices that must be placed in the bore or chamber to provide a
reference for aligning the firearms sights.
g. Lenses, other optical elements and adjustment mechanisms for
articles in paragraphs .a, .b, .c, .d, .e, or .i.
h. [Reserved]
i. Riflescopes that were not ``subject to the EAR'' as of March
8, 2020 and are ``specially designed'' for use in firearms that are
``subject to the ITAR.''
Note 2 to paragraph i: For purpose of the application of
``specially designed'' for the riflescopes controlled under 0A504.i,
paragraph (a)(1) of the definition of ``specially designed'' in
Sec. 772.1 of the EAR is what is used to determine whether the
riflescope is ``specially designed.''
0A505 Ammunition as follows (see List of Items Controlled).
License Requirements
Reason for Control: NS, RS, CC, FC, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to 0A505.a and .x.............. NS Column 1
RS applies to 0A505.a and .x.............. RS Column 1
CC applies to 0A505.b..................... CC Column 1
FC applies to entire entry except 0A505.d. FC Column 1
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to 0A505.a, .d, and .x......... AT Column 1
AT applies to 0A505.c..................... A license is required for
items controlled by
paragraph .c of this entry
to North Korea for anti-
terrorism reasons. The
Commerce Country Chart is
not designed to determine
AT licensing requirements
for this entry. See Sec.
742.19 of the EAR for
additional information.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $500 for items in 0A505.x, except $3,000 for items in 0A505.x
that, immediately prior to March 9, 2020, were classified under
0A018.b. (i.e., ``Specially designed'' components and parts for
ammunition, except cartridge cases, powder bags, bullets, jackets,
cores, shells, projectiles, boosters, fuses and components, primers,
and other detonating devices and ammunition belting and linking
machines (all of which are ``subject to the ITAR''). (See 22 CFR
parts 120 through 130))
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in 0A505.
List of Items Controlled
Related Controls: (1) Ammunition for modern heavy weapons such as
howitzers, artillery, cannon, mortars and recoilless rifles as well
as inherently military ammunition types such as ammunition
preassembled into links or belts, caseless ammunition, tracer
ammunition, ammunition with a depleted uranium projectile or a
projectile with a hardened tip or core and ammunition with an
explosive projectile are ``subject to the ITAR.'' (2) Percussion
caps, and lead balls and bullets, for use with muzzle-loading
firearms are EAR99 items.
Related Definitions: N/A
Items:
a. Ammunition for firearms controlled by ECCN 0A501 or USML
Category I and not enumerated in paragraph .b, .c, or .d of this
entry or in USML Category III.
b. Buckshot (No. 4 .24'' diameter and larger) shotgun shells.
c. Shotgun shells (including less than lethal rounds) that do
not contain buckshot; and ``specially designed'' ``parts'' and
``components'' of shotgun shells.
Note 1 to 0A505.c: Shotgun shells that contain only chemical
irritants are controlled under ECCN 1A984.
d. Blank ammunition for firearms controlled by ECCN 0A501 and
not enumerated in USML Category III.
e. through w. [Reserved]
x. ``Parts'' and ``components'' that are ``specially designed''
for a commodity subject to control in this ECCN or a defense article
in USML Category III and not elsewhere specified on the USML, the
CCL or paragraph .d of this entry.
Note 2 to 0A505.x: The controls on ``parts'' and
``components'' in this entry include Berdan and boxer primers,
metallic cartridge cases, and standard metallic projectiles such as
full metal jacket, lead core, and copper projectiles.
Note 3 to 0A505.x: The controls on ``parts'' and ``components''
in this entry include those ``parts'' and ``components'' that are
common to ammunition and ordnance described in this entry and to
those enumerated in USML Category III.
Note 4 to 0A505: Lead shot smaller than No. 4 Buckshot, empty
and unprimed shotgun shells, shotgun wads, smokeless gunpowder,
`Dummy rounds' and blank rounds (unless linked or belted), not
incorporating a lethal or non-lethal projectile(s) are designated
EAR99. A `dummy round or drill round' is a round that is completely
inert, i.e., contains no primer, propellant, or explosive charge. It
is typically used to check weapon function and for crew training.
0
43. In Supplement No. 1 to part 774, Category 0, add, between entries
for ECCNs 0A521 and 0A604, an entry for ECCN 0A602 to read as follows:
0A602 Guns and Armament as follows (see List of Items Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry................ NS Column 1
RS applies to entire entry................ RS Column 1
[[Page 4183]]
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $500
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in 0A602.
List of Items Controlled
Related Controls: (1) Modern heavy weapons such as howitzers,
artillery, cannon, mortars, and recoilless rifles are ``subject to
the ITAR.'' (2) See ECCN 0A919 for foreign-made ``military
commodities'' that incorporate more than a de minimis amount of
U.S.-origin ``600 series'' items. (3) See ECCN 0A606 for engines
that are ``specially designed'' for a self-propelled gun or howitzer
subject to control under paragraph .a of this ECCN or USML Category
VII.
Related Definitions: N/A
Items:
a. Guns and armament manufactured between 1890 and 1919.
b. Military flame throwers with an effective range less than 20
meters.
c. through w. [Reserved]
x. ``Parts'' and ``components'' that are ``specially designed''
for a commodity subject to control in paragraphs .a or .b of this
ECCN or a defense article in USML Category II and not elsewhere
specified on the USML or the CCL.
Note 1 to 0A602.x: Engines that are ``specially designed'' for a
self-propelled gun or howitzer subject to control under paragraph .a
of this ECCN or a defense article in USML Category VII are
controlled under ECCN 0A606.x.
Note 2 to 0A602: ``Parts,'' ``components,'' ``accessories,'' and
``attachments'' specified in USML subcategory II(j) are subject to
the controls of that paragraph.
Note 3 to 0A602: Black powder guns and armament manufactured in
or prior to 1890 and replicas thereof designed for use with black
powder propellants are designated EAR99.
Supplement No. 1 to Part 774--[Amended]
0
44. In Supplement No. 1 to part 774, Category 0, remove ECCNs 0A918,
0A984, 0A985, 0A986, and 0A987.
0
45. In Supplement No. 1 to part 774, Category 0, revise ECCN 0A988 to
read as follows:
0A988 Conventional military steel helmets.
No items currently are in this ECCN. See ECCN 1A613.y.1 for
conventional steel helmets that, immediately prior to July 1, 2014,
were classified under 0A988.
0
46. In Supplement No. 1 to part 774, Category 0, add, before the entry
for ECCN 0B521, entries for ECCNs 0B501 and 0B505 to read as follows:
0B501 Test, inspection, and production ``equipment'' and related
commodities for the ``development'' or ``production'' of commodities
enumerated or otherwise described in ECCN 0A501 or USML Category I
as follows (see List of Items Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry except NS Column 1
equipment for ECCN 0A501.y.
RS applies to entire entry except RS Column 1
equipment for ECCN 0A501.y.
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $3000
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used to ship any item in this entry.
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
a. Small arms chambering machines.
b. Small arms deep hole drilling machines and drills therefor.
c. Small arms rifling machines.
d. Small arms spill boring machines.
e. Production equipment (including dies, fixtures, and other
tooling) ``specially designed'' for the ``production'' of the items
controlled in 0A501.a through .x. or USML Category I.
0B505 Test, inspection, and production ``equipment'' and related
commodities ``specially designed'' for the ``development'' or
``production'' of commodities enumerated or otherwise described in
ECCN 0A505 or USML Category III, except equipment for the hand
loading of cartridges and shotgun shells, as follows (see List of
Items Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to paragraphs .a and .x........ NS Column 1
RS applies to paragraphs .a and .x........ RS Column 1
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to paragraphs .a, .d, and .x... AT Column 1
AT applies to paragraph .c................ A license is required for
export or reexport of these
items to North Korea for
anti-terrorism reasons
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $3000
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in 0B505.
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
a. Production equipment (including tooling, templates, jigs,
mandrels, molds, dies, fixtures, alignment mechanisms, and test
equipment), not enumerated in USML Category III that are ``specially
designed'' for the ``production'' of commodities controlled by ECCN
0A505.a or .x or USML Category III.
b. Equipment ``specially designed'' for the ``production'' of
commodities in ECCN 0A505.b.
c. Equipment ``specially designed'' for the ``production'' of
commodities in ECCN 0A505.c.
d. Equipment ``specially designed'' for the ``production'' of
commodities in ECCN 0A505.d.
e. through .w [Reserved]
x. ``Parts'' and ``components'' ``specially designed'' for a
commodity subject to control in paragraph .a of this entry.
0
47. In Supplement No. 1 to part 774, Category 0, add, between entries
for ECCNs 0B521 and 0B604, an entry for ECCN 0B602 to read as follows:
0B602 Test, inspection, and production ``equipment'' and related
commodities ``specially designed'' for the ``development'' or
``production'' of commodities enumerated or otherwise described in
ECCN 0A602 or USML Category II as follows (see List of Items
Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
[[Page 4184]]
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry................ NS Column 1
RS applies to entire entry................ RS Column 1
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $3000
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in 0B602.
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
a. The following commodities if ``specially designed'' for the
``development'' or ``production'' of commodities enumerated in ECCN
0A602.a or USML Category II:
a.1. Gun barrel rifling and broaching machines and tools
therefor;
a.2. Gun barrel rifling machines;
a.3. Gun barrel trepanning machines;
a.4. Gun boring and turning machines;
a.5. Gun honing machines of 6 feet (183 cm) stroke or more;
a.6. Gun jump screw lathes;
a.7. Gun rifling machines; and
a.8. Barrel straightening presses.
b. Jigs and fixtures and other metal-working implements or
accessories of the kinds exclusively designed for use in the
manufacture of items in ECCN 0A602 or USML Category II.
c. Other tooling and equipment, ``specially designed'' for the
``production'' of items in ECCN 0A602 or USML Category II.
d. Test and evaluation equipment and test models, including
diagnostic instrumentation and physical test models, ``specially
designed'' for items in ECCN 0A602 or USML Category II.
Supplement No. 1 to Part 774--[Amended]
0
48. In Supplement No. 1 to part 774, Category 0, remove ECCN 0B986.
0
49. In Supplement No. 1 to part 774, Category 0, add, between the
entries for ECCNs 0D001 and 0D521, entries for ECCNs 0D501 and 0D505 to
read as follows:
0D501 ``Software'' ``specially designed'' for the ``development,''
``production,'' operation, or maintenance of commodities controlled
by 0A501 or 0B501.
License Requirements
Reason for Control: NS, RS, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry except NS Column 1
``software'' for commodities in ECCN
0A501.y or equipment in ECCN 0B501 for
commodities in ECCN 0A501.y.
RS applies to entire entry except RS Column 1
``software'' for commodities in ECCN
0A501.y or equipment in ECCN 0B501 for
commodities in ECCN 0A501.y.
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any ``software'' in 0D501.
List of Items Controlled
Related Controls: ``Software'' required for and directly related to
articles enumerated in USML Category I is ``subject to the ITAR''.
Related Definitions: N/A
Items: The list of items controlled is contained in this ECCN
heading.
0D505 ``Software'' ``specially designed'' for the ``development,''
``production,'' operation, or maintenance of commodities controlled
by 0A505 or 0B505.
License Requirements
Reason for Control: NS, RS, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to ``software'' for commodities NS Column 1
in ECCN 0A505.a and .x and equipment in
ECCN 0B505.a .and .x.
RS applies to ``software'' for commodities RS Column 1
in ECCN 0A505.a and .x and equipment in
ECCN 0B505.a and .x.
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to ``software'' for commodities AT Column 1
in ECCN 0A505.a, .d, or .x and equipment
in ECCN 0B505.a, .d, or .x.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any ``software'' in 0D505.
List of Items Controlled
Related Controls: ``Software'' required for and directly related to
articles enumerated in USML Category III is ``subject to the ITAR''.
Related Definitions: N/A
Items: The list of items controlled is contained in this ECCN
heading.
0
50. In Supplement No. 1 to part 774, Category 0, add, between the
entries for ECCNs 0D521 and 0D604, an entry for ECCN 0D602 to read as
follows:
0D602 ``Software'' ``specially designed'' for the ``development,''
``production,'' operation or maintenance of commodities controlled
by 0A602 or 0B602 as follows (see List of Items Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry................ NS Column 1
RS applies to entire entry................ RS Column 1
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in 0D602.
List of Items Controlled
Related Controls: (1) ``Software'' required for and directly related
to articles enumerated in USML Category II is ``subject to the
ITAR''. (2) See ECCN 0A919 for foreign-made ``military commodities''
that incorporate more than a de minimis amount of U.S.-origin ``600
series'' items.
[[Page 4185]]
Related Definitions: N/A
Items: ``Software'' ``specially designed'' for the ``development,''
``production,'' operation, or maintenance of commodities controlled
by ECCN 0A602 and ECCN 0B602.
Supplement No. 1 to Part 774--[Amended]
0
51. In Supplement No. 1 to part 774, Category 0, remove ECCN 0E018.
0
52. In Supplement No. 1 to part 774, Category 0, add, between the
entries for ECCNs 0E001 and 0E521, entries for ECCNs 0E501, 0E502,
0E504, and 0E505 to read as follows:
0E501 ``Technology'' ``required'' for the ``development,''
``production,'' operation, installation, maintenance, repair, or
overhaul of commodities controlled by 0A501 or 0B501 as follows (see
List of Items Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
Country
Chart
(See
Control(s) Country chart (see Supp. Supp.
No. 1 to part 738) No.
to part
738)
NS applies to entire entry............ NS Column 1
RS applies to entire entry............ RS Column 1
UN applies to entire entry............ See Sec. 746.1 of the
EAR for UN controls
AT applies to entire entry............ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any ``technology'' in ECCN 0E501.
List of Items Controlled
Related Controls: Technical data required for and directly related
to articles enumerated in USML Category I are ``subject to the
ITAR.''
Related Definitions: N/A
Items:
a. ``Technology'' ``required'' for the ``development'' or
``production'' of commodities controlled by ECCN 0A501 (other than
0A501.y) or 0B501.
b. ``Technology'' ``required'' for the operation, installation,
maintenance, repair, or overhaul of commodities controlled by ECCN
0A501 (other than 0A501.y) or 0B501.
0E502 ``Technology'' ``required'' for the ``development'' or
``production'' of commodities controlled by 0A502.
License Requirements
Reason for Control: CC, UN
Country chart (see Supp. No.
Control(s) 1 to part 738)
CC applies to entire entry................ CC Column 1
UN applies to entire entry................ See Sec. 746.1(b) of the
EAR for UN controls
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
List of Items Controlled
Related Controls: Technical data required for and directly related
to articles enumerated in USML Category I are ``subject to the
ITAR''.
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0E504 ``Technology'' ``required'' for the ``development'' or
``production'' of commodities controlled by 0A504 that incorporate a
focal plane array or image intensifier tube.
License Requirements
Reason for Control: RS, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
RS applies to entire entry................ RS Column 1
UN applies to entire entry................ See Sec. 746.1(b) of the
EAR for UN controls
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0E505 ``Technology'' ``required'' for the ``development,''
``production,'' operation, installation, maintenance, repair,
overhaul, or refurbishing of commodities controlled by 0A505.
License Requirements
Reason for Control: NS, RS, UN, CC, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to ``technology'' for NS Column 1
``development,'' ``production,''
operation, installation, maintenance,
repair, overhaul, or refurbishing
commodities in 0A505.a and .x; for
equipment for those commodities in 0B505;
and for ``software'' for that equipment
and those commodities in 0D505.
RS applies to entire entry except RS Column 1
``technology'' for ``development,''
``production,'' operation, installation,
maintenance, repair, overhaul, or
refurbishing commodities in 0A505.a and
.x; for equipment for those commodities
in 0B505 and for ``software'' for those
commodities and that equipment in 0D505.
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
CC applies to ``technology'' for the CC Column 1
``development'' or ``production'' of
commodities in 0A505.b.
AT applies to ``technology'' for AT Column 1
``development,'' ``production,''
operation, installation, maintenance,
repair, overhaul, or refurbishing
commodities in 0A505.a, .d, and .x.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any ``technology'' in 0E505.
List of Items Controlled
Related Controls: Technical data required for and directly related
to articles enumerated in USML Category III are ``subject to the
ITAR''.
Related Definitions: N/A
Items: The list of items controlled is contained in this ECCN
heading.
0
53. In Supplement No. 1 to part 774, Category 0, add, between the
entries for
[[Page 4186]]
ECCNs 0E521 and 0E604, an entry for ECCN 0E602:
0E602 ``Technology'' ``required'' for the ``development,''
``production,'' operation, installation, maintenance, repair,
overhaul, or refurbishing of commodities controlled by 0A602 or
0B602, or ``software'' controlled by 0D602 as follows (see List of
Items Controlled).
License Requirements
Reason for Control: NS, RS, UN, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry................ NS Column 1
RS applies to entire entry................ RS Column 1
UN applies to entire entry................ See Sec. 746.1 of the EAR
for UN controls
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in 0E602.
List of Items Controlled
Related Controls: Technical data directly related to articles
enumerated in USML Category II are ``subject to the ITAR.''
Related Definitions: N/A
Items: ``Technology'' ``required'' for the ``development,''
``production,'' operation, installation, maintenance, repair, or
overhaul of commodities controlled by ECCN 0A602 or 0B602, or
``software'' controlled by ECCN 0D602.
Supplement No. 1 to Part 774--[Amended]
0
54. In Supplement No. 1 to part 774, Category 0, remove ECCN 0E918.
0
55. In Supplement No. 1 to part 774, Category 0, revise ECCN 0E982 to
read as follows.
0E982 ``Technology'' exclusively for the ``development'' or
``production'' of equipment controlled by 0A982 or 0A503.
License Requirements
Reason for Control: CC
Control(s)
CC applies to ``technology'' for items controlled by 0A982 or 0A503. A
license is required for ALL destinations, except Canada, regardless of
end use. Accordingly, a column specific to this control does not appear
on the Commerce Country Chart. (See part 742 of the EAR for additional
information.)
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: N/A
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
Supplement No. 1 to Part 774--[Amended]
0
56. In Supplement No. 1 to part 774, Category 0, remove ECCNs 0E984 and
0E987.
0
57. In Supplement No. 1 to part 774, Category 1, revise ECCN 1A984 to
read as follows:
1A984 Chemical agents, including tear gas formulation containing 1
percent or less of orthochlorobenzalmalononitrile (CS), or 1 percent
or less of chloroacetophenone (CN), except in individual containers
with a net weight of 20 grams or less; liquid pepper except when
packaged in individual containers with a net weight of 3 ounces
(85.05 grams) or less; smoke bombs; non-irritant smoke flares,
canisters, grenades and charges; and other pyrotechnic articles
(excluding shotgun shells, unless the shotgun shells contain only
chemical irritants) having dual military and commercial use, and
``parts'' and ``components'' ``specially designed'' therefor, n.e.s.
License Requirements
Reason for Control: CC
Country chart (see Supp. No.
Control(s) 1 to part 738)
CC applies to entire entry................ CC Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
0
58. In Supplement No. 1 to part 774, Category 2, revise ECCN 2B004 to
read as follows:
2B004 Hot ``isostatic presses'' having all of the characteristics
described in the list of items controlled, and ``specially
designed'' ``components'' and ``accessories'' therefor.
License Requirements
Reason for Control: NS, MT NP, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry................ NS Column 2
MT applies to entire entry................ MT Column 1
NP applies to entire entry, except NP Column 1
2B004.b.3 and presses with maximum
working pressures below 69 MPa.
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Related Controls: (1) See ECCN 2D001 for software for items
controlled under this entry. (2) See ECCNs 2E001 (``development''),
2E002 (``production''), and 2E101 (``use'') for technology for items
controlled under this entry. (3) For ``specially designed'' dies,
molds and tooling, see ECCNs 0B501, 0B602, 0B606, 1B003, 9B004, and
9B009. (4) For additional controls on dies, molds and tooling, see
ECCNs 1B101.d, 2B104, and 2B204. (5) Also see ECCNs 2B117 and
2B999.a.
Related Definitions: N/A
Items:
a. A controlled thermal environment within the closed cavity and
possessing a chamber cavity with an inside diameter of 406 mm or
more; and
b. Having any of the following:
b.1. A maximum working pressure exceeding 207 MPa;
b.2. A controlled thermal environment exceeding 1,773 K (1,500
[deg]C); or
b.3. A facility for hydrocarbon impregnation and removal of
resultant gaseous degradation products.
Technical Note: The inside chamber dimension is that of the
chamber in which both the working temperature and the working
pressure are achieved and does not include fixtures. That dimension
will be the smaller of either the inside diameter of the pressure
chamber or the inside diameter of the insulated furnace chamber,
depending on which of the two chambers is located inside the other.
0
59. In Supplement No. 1 to part 774, Category 2, revise ECCN 2B018 to
read as follows:
2B018 Equipment on the Wassenaar Arrangement Munitions List.
No commodities currently are controlled by this entry.
Commodities formerly controlled by paragraphs .a through .d, .m, and
.s of this entry are controlled in ECCN 0B606. Commodities formerly
controlled by paragraphs .e through .l of this entry are controlled
by ECCN 0B602. Commodities formerly controlled by paragraphs .o
through
[[Page 4187]]
.r of this entry are controlled by ECCN 0B501. Commodities formerly
controlled by paragraph .n of this entry are controlled in ECCN
0B501 if they are ``specially designed'' for the ``production'' of
the items controlled in ECCN 0A501.a through .x or USML Category I
and controlled in ECCN 0B602 if they are of the kind exclusively
designed for use in the manufacture of items in ECCN 0A602 or USML
Category II.
0
60. In Supplement No. 1 to part 774, Category 2, revise ECCN 2D018 to
read as follows:
2D018 ``Software'' for the ``development,'' ``production,'' or
``use'' of equipment controlled by 2B018.
No software is currently controlled under this entry. See ECCNs
0D501, 0D602, and 0D606 for software formerly controlled under this
entry.
0
61. In Supplement No. 1 to part 774, Category 2, revise ECCN 2E001 to
read as follows:
2E001 ``Technology'' according to the General Technology Note for
the ``development'' of equipment or ``software'' controlled by 2A
(except 2A983, 2A984, 2A991, or 2A994), 2B (except 2B991, 2B993,
2B996, 2B997, 2B998, or 2B999), or 2D (except 2D983, 2D984, 2D991,
2D992, or 2D994).
License Requirements
Reason for Control: NS, MT, NP, CB, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to ``technology'' for items NS Column 1
controlled by 2A001, 2B001 to 2B009,
2D001 or 2D002.
MT applies to ``technology'' for items MT Column 1
controlled by 2B004, 2B009, 2B104, 2B105,
2B109, 2B116, 2B117, 2B119 to 2B122,
2D001, or 2D101 for MT reasons.
NP applies to ``technology'' for items NP Column 1
controlled by 2A225, 2A226, 2B001, 2B004,
2B006, 2B007, 2B009, 2B104, 2B109, 2B116,
2B201, 2B204, 2B206, 2B207, 2B209, 2B225
to 2B233, 2D001, 2D002, 2D101, 2D201, or
2D202 for NP reasons.
NP applies to ``technology'' for items NP Column 2
controlled by 2A290, 2A291, or 2D290 for
NP reasons.
CB applies to ``technology'' for equipment CB Column 2
controlled by 2B350 to 2B352, valves
controlled by 2A226 having the
characteristics of those controlled by
2B350.g, and software controlled by 2D351.
AT applies to entire entry................ AT Column 1
Reporting Requirements
See Sec. 743.1 of the EAR for reporting requirements for
exports under License Exceptions, and Validated End-User
authorizations.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: Yes, except N/A for MT
Special Conditions for STA
STA: License Exception STA may not be used to ship or transmit
``technology'' according to the General Technology Note for the
``development'' of ``software'' specified in the License Exception
STA paragraph in the License Exception section of ECCN 2D001 or for
the ``development'' of equipment as follows: ECCN 2B001 entire
entry; or ``Numerically controlled'' or manual machine tools as
specified in 2B003 to any of the destinations listed in Country
Group A:6 (See Supplement No. 1 to part 740 of the EAR).
List of Items Controlled
Related Controls: See also 2E101, 2E201, and 2E301
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
Note 1 to 2E001: ECCN 2E001 includes ``technology'' for the
integration of probe systems into coordinate measurement machines
specified by 2B006.a.
0
62. In Supplement No. 1 to part 774, Category 2, revise ECCN 2E002 to
read as follows:
2E002 ``Technology'' according to the General Technology Note for
the ``production'' of equipment controlled by 2A (except 2A983,
2A984, 2A991, or 2A994), or 2B (except 2B991, 2B993, 2B996, 2B997,
2B998, or 2B999).
License Requirements
Reason for Control: NS, MT, NP, CB, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to ``technology'' for equipment NS Column 1
controlled by 2A001, 2B001 to 2B009.
MT applies to ``technology'' for equipment MT Column 1
controlled by 2B004, 2B009, 2B104, 2B105,
2B109, 2B116, 2B117, or 2B119 to 2B122
for MT reasons.
NP applies to ``technology'' for equipment NP Column 1
controlled by 2A225, 2A226, 2B001, 2B004,
2B006, 2B007, 2B009, 2B104, 2B109, 2B116,
2B201, 2B204, 2B206, 2B207, 2B209, 2B225
to 2B233 for NP reasons.
NP applies to ``technology'' for equipment NP Column 2
controlled by 2A290 or 2A291 for NP
reasons.
CB applies to ``technology'' for equipment CB Column 2
Controlled by 2B350 to 2B352 and for
valves controlled by 2A226 having the
characteristics of those controlled by
2B350.g.
AT applies to entire entry................ AT Column 1
Reporting Requirements
See Sec. 743.1 of the EAR for reporting requirements for
exports under License Exceptions, and Validated End-User
authorizations.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
CIV: N/A
TSR: Yes, except N/A for MT
Special Conditions for STA
STA: License Exception STA may not be used to ship or transmit
``technology'' according to the General Technology Note for the
``production'' of equipment as follows: ECCN 2B001 entire entry; or
``Numerically controlled'' or manual machine tools as specified in
2B003 to any of the destinations listed in Country Group A:6 (See
Supplement No. 1 to part 740 of the EAR).
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
[[Page 4188]]
The list of items controlled is contained in the ECCN heading.
0
63. In Supplement No. 1 to part 774, Category 7, revise ECCN 7A611 to
read as follows:
7A611 Military fire control, laser, imaging, and guidance equipment,
as follows (see List of Items Controlled).
License Requirements
Reason for Control: NS, MT, RS, AT, UN
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry except 7A611.y. NS Column 1
MT applies to commodities in 7A611.a that MT Column 1
meet or exceed the parameters in 7A103.b
or .c.
RS applies to entire entry except 7A611.y. RS Column 1
AT applies to entire entry................ AT Column 1
UN applies to entire entry except 7A611.y. See Sec. 746.1(b) of the
EAR for UN controls
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $1500
GBS: N/A
CIV: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in 7A611.
List of Items Controlled
Related Controls: (1) Military fire control, laser, imaging, and
guidance equipment that are enumerated in USML Category XII, and
technical data (including software) directly related thereto, are
subject to the ITAR. (2) See Related Controls in ECCNs 0A504, 2A984,
6A002, 6A003, 6A004, 6A005, 6A007, 6A008, 6A107, 7A001, 7A002,
7A003, 7A005, 7A101, 7A102, and 7A103. (3) See ECCN 3A611 and USML
Category XI for controls on countermeasure equipment. (4) See ECCN
0A919 for foreign-made ``military commodities'' that incorporate
more than a de minimis amount of U.S. origin ``600 series''
controlled content.
Related Definitions: N/A
Items:
a. Guidance or navigation systems, not elsewhere specified on
the USML, that are ``specially designed'' for a defense article on
the USML or for a 600 series item.
b. to w. [RESERVED]
x. ``Parts,'' ``components,'' ``accessories,'' and
``attachments,'' including accelerometers, gyros, angular rate
sensors, gravity meters (gravimeters), and inertial measurement
units (IMUs), that are ``specially designed'' for defense articles
controlled by USML Category XII or items controlled by 7A611, and
that are NOT:
1. Enumerated or controlled in the USML or elsewhere within ECCN
7A611;
2. Described in ECCNs 6A007, 6A107, 7A001, 7A002, 7A003, 7A101,
7A102, or 7A103; or
3. Elsewhere specified in ECCN 7A611.y or 3A611.y.
y. Specific ``parts,'' ``components,'' ``accessories,'' and
``attachments'' ``specially designed'' for a commodity subject to
control in this ECCN or a defense article in Category XII and not
elsewhere specified on the USML or in the CCL, as follows, and
``parts,'' ``components,'' ``accessories,'' and ``attachments''
``specially designed'' therefor:
y.1 [RESERVED]
Dated: January 10, 2020.
Richard E. Ashooh,
Assistant Secretary for Export Administration.
[FR Doc. 2020-00573 Filed 1-17-20; 11:15 am]
BILLING CODE 3510-33-P