US – BIS and State propose EAR and ITAR revisions to control military electronic equipment

This is the second proposed rule to describe how military electronics and certain superconducting and cryogenic equipment and related items the President determines no longer warrant control under the United States Munitions List (USML) would be controlled on the Commerce Control List (CCL). This proposed rule also would amend ECCNs 7A001 and 7A101 to apply the “missile technology” reason for control only to items in those ECCNs on the Missile Technology Control Regime (MTCR) Annex.

This action is one in a planned series of proposed rules that would implement the Administration’s Export Control Reform Initiative by describing how certain types of articles would be controlled on the CCL after the President determines that the articles no longer warrant USML control. This proposed rule is being published in conjunction with a proposed rule from the Department of State, Directorate of Defense Trade Controls, which would amend the list of articles controlled by USML Category XI.

The revisions proposed in this rule are part of Commerce’s retrospective plan under EO 13563 completed in August 2011.

On the same date, the Department of State published in the Federal Register a proposed rule [Public Notice 8388] that would amend the International Traffic in Arms Regulations (ITAR) to revise Category XI (Military Electronics) of the USML to describe more precisely the articles warranting control on the USML. The proposed revision of USML Category XI was first published as a proposed rule on November 28, 2012, for public comment. The Administration has decided to publish the regulation again in proposed form to allow for public feedback on changes made to the rule and for the Department of State to request further input from the public on specific matters of concern. The revisions contained in this rule are part of the Department of State’s retrospective plan under E.O. 13563. 

It should be noted that all references to the USML in the proposed rule are to the list of defense articles controlled for the purpose of export or temporary import pursuant to the ITAR, and not to the defense articles on the USML that are controlled by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for the purpose of permanent import under its regulations (27 C.F.R. part 447). Pursuant to section 38(a)(1) of the Arms Export Control Act (AECA), all defense articles controlled for export or import are part of the USML under the AECA.  For the sake of clarity, the list of defense articles controlled by ATF for the purpose of permanent import is the US Munitions Import List (USMIL). The transfer of defense articles from the ITAR’s USML to the EAR’s CCL for the purpose of export control does not affect the list of defense articles controlled on the USMIL under the AECA for the purpose of permanent import.

Comments will be accepted on both the Commerce and State proposals until September 9, 2013.