This alert is our third installment in our four-part series dedicated to the proposed State and Commerce rules to revise U.S. export controls over firearms and ammunition. The proposed rules, published simultaneously in the Federal Register on May 24, 2018, describe in detail the transition of most firearms and ammunition from the license requirements of the U.S. Department of State's International Traffic in Arms Regulations (
ITAR) to the U.S. Department of Commerce's Export Administration Regulations (EAR). The Department of State proposed rule, along with instructions on how to submit comments, is accessible here. The Department of Commerce's companion publication is accessible here, and includes comment instructions as well.
In our last alert, we reviewed the State Department, Directorate of Defense Trade Controls' (DDTC's) proposed revisions to U.S. Munitions List (USML) Category I (Firearms, Close Assault Weapons and Combat Shotguns) and the Commerce Department, Bureau of Industry and Security's (BIS's ) companion proposed rules to revise the EAR. We also examined "Specially Designed," the effects the proposed rules will have on the brokering provisions of the ITAR, the proposed new temporary import process for firearms and ammunition, and new requirements for AES filings under the proposed rules.
In today's alert, we review the proposed revisions to USML Category II (Guns and Armament) and BIS's companion proposed revisions.
Proposed Transitions from USML Cat. II to CCL
New "600 series" Export Control Classification Numbers
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the DDTC rule proposes to revise USML Cat. II to establish a "bright line" between the USML and the Commerce Control List (CCL). Items removed from the USML Cat. II to the CCL would be transitioned to four new "600 series" Export Control Classification Numbers (ECCNs). Commerce added the "600 series" to the CCL as part of Export Control Reform under the Obama Administration to control certain items formerly on the USML, or items from the Wassenaar Arrangement Munitions List (WAML). Generally, BIS's practice is to use the "600 series" ECCNs to control items of a military nature. USML Cat. II items that would be moved over to the CCL would be transitioned only to "600 series" ECCNs and not the "500 series" ECCNs, which is where USMS Cats. I and III will be destined.
The new
ECCNs are as follows (for ease of review, we have highlighted each ECCN and corresponding header in bold and green):
- 0A602 - Guns and armament as follows:
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: ''Parts,'' ''components,'' ''accessories'' and ''attachments'' specified in USML subcategory II(j) are subject to the controls of that paragraph.
Note 2 to 0A602: Black powder guns and armament manufactured in or prior to 1890 and replicas thereof designed for use with black powder propellants designated EAR99.
- 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:
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. Gun 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.
- 0D602 - ''Software'' ''specially designed'' for the ''development,'' ''production,'' operation or maintenance of commodities controlled by 0A602 or 0B602 as follows:
Items: ''Software'' ''specially designed'' for the ''development,'' ''production,'' operation, or maintenance of commodities controlled by ECCN 0A602 and ECCN 0B602.
- 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:
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.
The reasons for control for all four ECCNs are National Security (NS), Regional Security (RS), United Nations, and Anti-Terrorism (AT). However, each proposed ECCN should be reviewed carefully to see how these controls would be applied to the various items in each ECCN.
Many of the items in these new ''600 series'' ECCNs would be eligible for the same license exceptions and subject to the same restrictions on use of license exceptions as other ''600 series'' ECCNs. The license exceptions identified in each proposed new ECCN are listed below. It is important to note that many exceptions are restricted for the particular ECCN, and these are identified with a "N/A". However, BIS explains in its proposed rule that the restrictions are not intended to be any more restrictive than the ITAR license exemption restrictions that currently apply to those items.
0A602:
Limited Value Shipments (LVS) - $500
Shipments to Country Group B (GBS) - N/A
Civil End-Users (CIV) - N/A
0B602:
LVS - $3,000
GBS - N/A
CIV - N/A
0D602
CIV - N/A
Technology & Software under Restriction (TSR) - N/A
0E602
CIV - N/A
TSR - N/A
In addition to the above, the ability to use the license exception, Strategic Trade Authorization (STA), is limited.
Please also see Part 740 in the EAR (15 C.F.R. Pt. 740) for more information on license exceptions and restrictions.
Items to be Removed From USML Cat. II
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below is a table showing the items that would be transitioned from USML Cat. II to the new ECCNs described above.
|
Item
|
Current Classification |
Proposed
Classification |
| Flame throwers with effective range less than 20 meters |
USML Cat. II(b) |
ECCN 0A602 |
| Engines for self-propelled guns & howitzers |
USML Cat. II(f) |
ECCN 0A606 |
| Tooling & equipment for production |
USML Cat. II(g) |
ECCN 0B602 |
| Test and evaluation equipment |
USML Cat. II(h) |
ECCN 0B602 |
| Parts and components |
USML Cat. II(j) |
USML Cat. II(j) - specially designed list, or ECCN 0A602 |
Articles Still Controlled Under USML Cat. II
- items that would remain under USML Cat. II would be positively listed as follows, including the corresponding paragraph (Significant Military Equipment (SME) is designated with an asterisk (*)). For ease of review, we have highlighted the main paragraphs in bold and blue.
(a) Guns and armament greater than .50 caliber (12.7 mm), as follows:
*(1) Guns, howitzers, artillery, and cannons;
*(2) Mortars;
*(3) Recoilless rifles;
*(4) Grenade launchers; or
(5) Developmental guns and armament greater than .50 caliber (12.7 mm) funded by the Department of Defense and specially designed parts and components therefor.
Note 1 to paragraph (a)(5): This paragraph does not control guns and armament greater than .50 caliber (12.7 mm) (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination (see § 120.4 of this subchapter), or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 2 to paragraph (a)(5): Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
Note 3 to paragraph (a)(5): This provision is applicable to those contracts or other funding authorizations that are dated (one year after publication of the final rule), or later.
Note 1 to paragraph (a): This paragraph does not include: Non-automatic and nonsemi-automatic rifles, carbines, and pistols between .50 (12.7 mm) and .72 caliber (18.288 mm) that are controlled on the CCL under ECCN 0A501; shotguns controlled on the CCL under ECCN 0A502; or black powder guns and armaments manufactured between 1890 and 1919 controlled on the CCL under ECCN 0A602.
Note 2 to paragraph (a): Guns and armament when integrated into their carrier (e.g., ships, ground vehicles, or aircraft) are controlled in the category associated with the carrier. Self-propelled guns and armament are controlled in USML Category VII. Towed guns and armament and stand-alone guns and armament are controlled under this category.
(b) Flame throwers with a minimum effective range of 20 meters.
*(d) Kinetic energy weapon systems specially designed for destruction or rendering mission-abort of a target.
Note to paragraph (d): Kinetic energy weapons systems include but are not limited to launch systems and subsystems capable of accelerating masses larger than 0.1g to velocities in excess of 1.6 km/s, in single or rapid fire modes, using methods such as: Electromagnetic, electrothermal, plasma, light gas, or chemical. This does not include launch systems and subsystems used for research and testing facilities subject to the EAR, which are controlled on the CCL under ECCN 2B232.
(e) Signature reduction devices specially designed for the guns and armament controlled in paragraphs (a), (b), and (d) of this category (e.g., muzzle flash suppression devices).
(j) Parts, components, accessories, and attachments, as follows:
(1) Gun barrels, rails, tubes, and receivers specially designed for the weapons controlled in paragraphs (a) and (d) of this category;
(2) Sights specially designed to orient indirect fire weapons;
(3) Breech blocks for the weapons controlled in paragraphs (a) and (d) of this category;
(4) Firing mechanisms for the weapons controlled in paragraphs (a) and (d) of this category and specially designed parts and components therefor;
(5) Systems for firing superposed or stacked ammunition and specially designed parts and components therefor;
(6) Servo-electronic and hydraulic elevation adjustment mechanisms;
(7) Muzzle brakes;
(8) Bore evacuators;
(9) Independently powered ammunition handling systems and platform interface components as follows: (i) Mounts; (ii) Carriages; (iii) Gun pallets; (iv) Hydro-pneumatic equilibration cylinders; or (v) Hydro-pneumatic systems capable of scavenging recoil energy to power howitzer functions;
Note to paragraph (j)(9): For weapons mounts specially designed for ground vehicles, see Category VII.
(10) Recoil systems to mitigate the shock associated with the firing process of guns integrated into air platforms and specially designed parts and components therefor;
(11) Independent ammunition handling systems for the guns and armament controlled in paragraphs (a), (b), and (d) of this category;
(12) Ammunition containers/drums, ammunition chutes, ammunition conveyor elements, and ammunition container/drum entrance and exit units, specially designed for the guns and armament controlled in paragraphs (a), (b), and (d) of this category;
(13) Aircraft/gun interface units to support gun systems with a designed rate of fire greater than 100 rounds per minute and specially designed parts and components therefor;
(14) Prime power generation, energy storage, thermal management, conditioning, switching, and fuelhandling equipment, and the electrical interfaces between the gun power supply and other turret electric drive components specially designed for kinetic weapons controlled in paragraph (d) of this category;
(15) Kinetic energy weapon target acquisition, tracking fire control, and damage assessment systems and specially designed parts and components therefor; or
*(16) Any part, component, accessory, attachment, equipment, or system that: (i) Is classified; (ii) Contains classified software; or (iii) Is being developed using classified information.
''Classified'' means classified pursuant to Executive Order 13526, or predecessor order, and a security classification guide developed pursuant thereto or equivalent, or to the corresponding classification rules of another government or intergovernmental organization.
(k) Technical data (see § 120.10 of this subchapter) and defense services (see § 120.9 of this subchapter) directly related to the defense articles described in paragraphs (a), (b), (d), (e), and (j) of this category and classified technical data directly related to items controlled in ECCNs 0A602, 0B602, 0D602, and 0E602 and defense services using the classified technical data. (See ITAR § 125.4 for exemptions.)
(x) Commodities, software, and technology subject to the EAR (see § 120.42 of this subchapter) used in or with defense articles.
Note to paragraph (x): Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technology subject to the EAR (see 22 C.F.R. § 123.1(b).
Our next alert, and final installment in this four-part series, will review the proposed revisions to USML Category III (Ammunition/Ordnance) and BIS's companion proposed revisions.
