ECR – State/DDTC Amends ITAR 22 CFR 1201-130

As part of the President’s Export Control Reform (ECR) effort, the Department of State is amending the International Traffic in Arms Regulations (ITAR) to revise five more U.S. Munitions List (USML) categories and provide other changes.

The revisions contained in this rule are part of the Department of State’s retrospective plan under E.O. 13563.

79 FR 34-47: 22 CFR Parts 121, 123, 124, and 125; RIN 1400-AD46; Amendment to the International Traffic in Arms Regulations: Third Rule Implementing, ECR – Export Control Reform

AGENCY: Department of State.

ACTION: Final rule.

DATES: This rule is effective July 1, 2014.

FOR FURTHER INFORMATION CONTACT:

Ms. Sarah J. Heidema, Deputy Director, Office of Defense Trade Controls Policy, Department of State, telephone (202) 663-2809; email [email protected]. ATTN: Regulatory Change, Third ECR Final Rule. The Department of State’s full retrospective plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.

SUPPLEMENTARY INFORMATION:

The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, under Export Control Reform ECR, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to the jurisdiction of the ITAR, i.e., “defense articles” and “defense services,” are identified on the ITAR’s U.S. Munitions List (USML) (22 CFR 121.1). With few exceptions, items not subject to the export control jurisdiction of the ITAR are subject to the jurisdiction of the Export Administration Regulations (“EAR,” 15 CFR parts 730-774, which includes the Commerce Control List (CCL) in Supplement No. 1 to part 774), administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. Both the ITAR and the EAR impose license requirements on exports, reexports, and retransfers. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other set of regulations are subject to the EAR.  All references to the USML in this 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. See 27 CFR 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 U.S. 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.

 Export Control Reform Update

Pursuant to the President’s Export Control Reform (ECR) initiative, the Department published proposed revisions to thirteen USML categories – and upon the effective date of this rule will have revised fifteen USML categories – to create a more positive control list and eliminate, where possible, “catch all” controls in the USML. The Department, along with the Departments of Commerce and Defense, reviewed the public comments the Department received on the proposed rules and, where appropriate, revised the rules. A discussion of the comments relevant to the USML categories that are part of this rule is included later on in this rule. The Department continues to review the remaining USML categories and will publish them as proposed rules in the coming months.

Discussions of the public comments relevant to six of the USML categories that have been published as final rules are in “Amendment to the International Traffic in Arms Regulations: Initial Implementation of Export Control Reform,” published April 16, 2013 (78 FR 22740), and “Amendment to the International Traffic in Arms Regulations: Continued Implementation of Export Control Reform,” published July 8, 2013 (78 FR 40922). These rules also contain policies and procedures regarding the licensing of items moving from the export jurisdiction of the Department of State to the Department of Commerce, a definition for specially designed, responses to public comments, and changes to other sections of the ITAR that affect the categories discussed in this rule.

Pursuant to ECR, the Department of Commerce has been publishing revisions to the EAR, including various revisions to the CCL. Revision of the USML and CCL are coordinated so there is uninterrupted regulatory coverage for items moving from the jurisdiction of the Department of State to that of the Department of Commerce. The Department of Commerce’s companion to this rule is, “Control of Military Training Equipment, Energetic Materials, Personal Protective Equipment, Shelters, Articles Related to Launch Vehicles, Missiles, Rockets, Military Explosives, and Related Items.” It is published elsewhere in this edition of the Federal Register.

Changes in this Rule.  The following changes are made to the ITAR with this final rule:

(i) revision of U.S. Munitions List (USML) Categories IV (Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Mines), V (Explosives and Energetic Materials, Propellants, Incendiary Agents, and Their Constituents), IX (Military Training Equipment), X (Personal Protective Equipment), and XVI (Nuclear Weapons Related Articles);

  •           (ii) addition of a definition for the term “equipment”;
  •           (iii) continued implementation of a new licensing procedure for the export of items subject to the EAR that are to be exported with defense articles; and
  •           (iv) related changes to other ITAR sections.

 Revision of USML Category IV

This final rule revises USML Category IV, covering launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines, to describe more precisely the articles warranting control on the USML. Paragraph (a) is revised to remove demolition blocks and blasting caps, and to add subparagraphs (1) through (12) to more clearly describe the articles controlled in (a). ITAR §121.11, which further describes demolition blocks and blasting caps, is removed.

  •           Paragraphs (b) and (d) are revised to more specifically enumerate the articles controlled therein.
  •           The articles of paragraph (e), military explosive excavating devices, are transferred to the jurisdiction of the Department of Commerce under ECCN 0A604.b.
  •           The articles of paragraph (f), ablative materials, were moved to USML Category XIII(d) (see 78 FR 40922).

Paragraph (h) is revised by removing its broad catch-all wording and adding subparagraphs (1) through (29) to specifically enumerate the articles controlled in that paragraph. In addition, articles common to the Missile Technology Control Regime (MTCR) Annex and articles in this category are identified with the parenthetical “(MT)” at the end of each section containing such articles.

A new “(x) paragraph” has been added to USML Category IV, allowing ITAR licensing for commodities, software, and technical data subject to the EAR provided those commodities, software, and technical data are to be used in or with defense articles controlled in USML Category IV and are described in the purchase documentation submitted with the application.

This revision of USML Category IV was first published as a proposed rule (RIN 1400-AD19) on January 31, 2013, for public comment (see 78 FR 6765). The comment period ended March 18, 2013. The public comments were reviewed and considered by the Department and other agencies. The Department’s evaluation of the written comments and recommendations follows.

More can be found posted by the DDTC here.

Rose E. Gottemoeller, Acting Under Secretary, Arms Control and International Security, Department of State

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