On November 28, 2012, the US Department of Commerce, Bureau of Industry and Security (BIS) and the US Department of State, Directorate of Defense Trade Controls (DDTC) proposed rules to move certain electronic military equipment currently controlled by United States Munitions List (USML) Category XI and cryogenic and superconductive equipment currently controlled by USML Categories VI, VII, VIII, and XV to the Commerce Control List (CCL). BIS and DDTC are accepting comments on the proposed rules (77 Fed. Reg. 70945 and 77 Fed. Reg. 70958) until January 28, 2013.

BIS Proposed Rule: The proposed BIS rule establishes four new Export Control Classification Numbers (ECCNs) for electronic military equipment and related software and technology, amends existing ECCNs to comport with the proposed changes, limits license exceptions to controlled items, and corrects two ECCNs to conform to the Missile Technology Control Regime (MTCR) annex. With respect to cryogenic and superconductive equipment, the proposed rule creates four new ECCNs controlling cryogenic and superconducting equipment and software and technology. A brief overview is below.

Proposed ECCNs

The BIS proposal would impose national security (NS1), regional stability (RS1), antiterrorism (AT1), and United Nations (UN) embargo controls on items covered by the following new ECCNs:

  • ECCN 3A611 would control electronic microwave monolithic integrated circuit power amplifiers, radio frequency transistors, high frequency surface wave radar, microelectric devices and printed circuit boards, and related components "specifically designed" for military use and not controlled by the USML or another 600 series ECCN
  • ECCN 3B611 would control test, inspection, and production end items and equipment for items controlled in ECCN 3A611
  • ECCN 3D611 would control software "specifically designed" for the "development," "production," operation, or maintenance of commodities controlled by 3A611 or 3B611
  • ECCN 3E611 would control technology required for the development, production, operation, installation, maintenance, repair, or overhaul of commodities or software controlled by ECCN 3A611, 3B611, or 3D611

National security (NS1), regional stability (RS1), antiterrorism (AT1) and United Nations embargo (UN) controls would also apply to the following cryogenic and superconducting equipment described in Category ML20 of the Wassenaar Agreement Munitions List:

  • ECCN 9A620 would control certain equipment and related components specially designed to be installed in vehicles for military ground, marine, airborne, or space applications
  • ECCN 9B620 would control test, inspection, and production end items and equipment specially designed for items controlled in proposed ECCN 9A620
  • ECCN 9D620 would control software specially designed for the development, production, operation, or maintenance of commodities controlled by ECCNs 9A620 or 9B620
  • ECCN 9E620 would control technology required for the development, production, operation, installation, maintenance, repair, or overhaul of commodities or software controlled by ECCNs 9A620, 9B620, or 9D620

Amended ECCNs: The proposed rule would amend the following ECCNs in accordance with the new changes:

  • ECCN 3A101 would be amended to make analog-to-digital converters currently controlled by the International Traffic in Arms Regulations (ITAR) subject to the Export Administration Regulations (EAR). Such converters will continue to be controlled for missile technology (MT) reasons
  • ECCN 4A003 would be amended to add an MT control for items classified under ECCN 4A003.e when meeting or exceeding parameters described in ECCN 3A101.a.4
  • ECCN 5A001 would be amended by revising its Related Controls paragraph to provide more detailed references to telecommunications equipment controlled by USML Categories XI and XV

Corrected ECCNs: The proposed rule would correct the following ECCNs:

  • ECCN 7A006 would be corrected to conform to BIS's practice of applying MT controls to certain airborne altimeters that extend beyond the range of altimeters on the MTCR annex
  • ECCN 7D101 would limit the scope of MT controls in ECCN 7A106 to commodities on the MTCR annex

Carve out from License Exception STA

Because some types of software and technology are more significant than the commodities they were used to develop, the proposed rule would preclude use of License Exception STA for software and technology for (1) Helix traveling wave tubes, (2) transmit/receive or transmit modules, (3) microwave monolithic integrated circuits, and (4) discrete radio frequency transistors controlled by proposed ECCN 3A611.

DDTC Proposed Rule: The DDTC proposed rule would more accurately describe articles that would remain controlled under Category XI and more clearly define USML and CCL jurisdiction.

  • Descriptions of underwater, radar, and electronic combat equipment would be clarified to more specifically describe the articles controlled
  • Military computers would become subject to the EAR
  • Unattended ground sensors, electronic sensor systems for anti-submarine warfare or mine warfare, and electronic sensor systems for concealed weapons would be added to Category XI
  • Test sets specially designed and programmed for testing counter radio-controlled improvised explosive device electronic warfare systems would be added to Category XI
  • Equipment to process or analyze Category XI defense articles would be added
  • Controls on electronic spectrum monitoring equipment are amended to provide consistency with the Wassenaar Agreement Munitions List, while retaining existing catch-all coverage

"Specially Designed": The proposed rule instructs readers to use the definition of "specially designed" proposed by DDTC on June 19, 2012 (discussed here).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.