United States: DDTC And BIS Solicit Comments Regarding Controls Over Explosives, Personal Protective Equipment, And Military And Intelligence Electronics

Key Points

  • DDTC and BIS have published concurrent NOIs (available here and here, respectively) requesting public comments on the controls over the export and reexport of explosives, personal protective equipment, and military and intelligence electronics. (By volume and value, the electronics categories are, by far, the most significant.)
  • If you believe that there should be changes to these controls, you should prepare comments with your suggestions and submit them to BIS and/or DDTC by April 13, 2018.
  • Kevin Wolf, former Assistant Secretary of Commerce for Export Administration and now an Akin Gump Strauss Hauer & Feld LLP partner, will hold a conference call at 1:00 p.m. EST on Wednesday, February 21, 2018, to answer questions about the requests, the process, and how to prepare comments that are effective and useful. Should you have any questions for Mr. Wolf, please submit them in advance of the call.

On February 12, 2018, the Directorate of Defense Trade Controls (DDTC) and the Bureau of Industry and Security (BIS) published Notices of Inquiry (NOI) (available here and here, respectively) requesting comments on Categories V, X and XI of the U.S. Munitions List (USML) under the International Traffic in Arms Regulations (ITAR) and the corresponding "600 series" controls on the Commerce Control List (CCL) of the Export Administration Regulations (EAR). These categories control (i) explosives and energetic materials, propellants, incendiary agents and their constituents; (ii) personal protective equipment; and (iii) military and intelligence electronics. BIS also seeks comments on its controls over cryogenic and superconducting equipment.

These NOIs continue the process of asking for suggestions about how to improve and update categories amended or created as a result of the Export Control Reform (ECR) effort. The information requested in these NOIs is essentially the same as that which the Obama administration sought in its NOIs. This means that, although you may comment on any aspect of the categories, you are particularly encouraged to do so if you can answer "yes" to any of the following questions:

  • Do you have suggestions for how the controls could be written more clearly?
  • Have you noticed errors in any of the categories?
  • Do any of the controls describe items that are now, or will in the next five years be, in normal commercial use?
  • Do you have suggestions for how to make the USML Category XI(b) control over equipment and software "specially designed for intelligence purposes" more clear and objective?
  • Are there emerging or other technologies in these areas that should be added to the categories for national security or foreign policy reasons?

Export control personnel read all public comments and take them into account when preparing proposed rules to revise the categories. Thus, if you have suggestions for how to improve the categories, now is the best time to make them. The higher the quality of the comments and supporting documentation, the more likely your suggestions are to be taken seriously as part of future revision efforts.

Background

U.S. controls over the export and reexport of military items are divided between the ITAR, administered by the DDTC, and the "600 series" entries of the EAR, administered by BIS. The "600 series" items were once subject to the ITAR, but were determined during the Obama administration's ECR effort to not warrant ITAR control. The ITAR generally requires a license to export or reexport defense articles to all countries. The EAR also generally requires a license to export or reexport 600 series items to all countries (except Canada), although some license exceptions are available, particularly if the item is destined to, and for the ultimate end use by a government in, one of 36 allied countries. The ITAR and the EAR have identical and equally strict prohibitions with respect to exports and reexports of military items to countries subject to arms embargoes, such as China.

One of the ECR goals was to describe the controls more clearly in a more positive and objective way (i.e., without using broad catch-all or subjective descriptions). As described in the NOIs, a consequence of these revisions is that the lists need to "be regularly revised and updated to account for technological developments, practical application issues identified by exporters and reexporters, and changes in the military and commercial applications of items affected by the list."

Notices of Inquiry

In its NOI, DDTC specifically requests comment on the following topics:

  • emerging and new technologies that are appropriately controlled by one of the referenced categories, but that are not currently described in subject categories or not described with sufficient clarity
  • defense articles that are described in subject categories, but that have entered into normal commercial use since the most recent revisions to the category at issue; DDTC asks commenters to include documentation to support claims that defense articles have entered into normal commercial use
  • defense articles for which commercial use is proposed, intended or anticipated in the next five years
  • drafting or other technical issues in the text of all of the referenced categories
  • potential cost savings to private entities from shifting control over commercial items to jurisdiction of the EAR from that of the ITAR; DDTC asks commenters to quantify the cost of compliance with USML control of commercial items, to include the time saved, the reduction in paperwork and any other cost savings for a particular change.

DDTC also specifically requested comments on USML Category XI(b), which is a category that became broader in scope as a result of ECR, but not more positive or objective. Specifically, it controls:

Electronic systems, equipment or software, not elsewhere enumerated in this subchapter, specially designed for intelligence purposes that collect, survey, monitor, or exploit, or analyze and produce information from, the electromagnetic spectrum (regardless of transmission medium), or for counteracting such activities.

The words in bold were added during the last revision to the category.

In its NOI, BIS independently solicits comments on the clarity, usability and any other matters related to implementation of the corresponding "600 series" Export Control Classification Numbers (ECCNs), which are:

  • Energetic Materials (ECCNs 1B608, 1C608, 1D608, and 1E608)
  • Armored and Protective "Equipment" (ECCNs 1A613, 1B613, 1D613 and 1E613)
  • Military Electronics (ECCNs 3A611, 3B611, 3D611 and 3E611)
  • Cryogenic and Superconducting Equipment (ECCNs 9A620, 9B620, 9D620 and 9E620).

BIS is also seeking comments on the potential cost savings to private entities from shifting control of commercial items to the jurisdiction of the EAR from that of the ITAR.

BIS will make any changes to the CCL that it determines are necessary to complement revisions to the USML.

Conference Call with Kevin Wolf to Answer Questions About How to Prepare Public Comments

U.S. government export control personnel read all public comments when deciding which changes to propose to the categories at issue. Thus, preparing well-supported, thoughtful comments that further the national security and foreign policy objectives of the controls will have the highest chance of having a positive impact on the drafting process. Kevin Wolf, former Assistant Secretary of Commerce for Export Administration and now an Akin Gump partner, was a leader of, and had significant involvement in, every category revision effort during his time in the Obama administration. He will host a conference call on Wednesday, February 21, 2018 at 1:00 p.m. EST to answer whatever questions you have on the comment process or the categories at issue. Should you have any questions for Mr. Wolf, please submit them in advance of the call. He will also provide recommendations for how to prepare quality, well-supported public comments. If you are interested in participating in the call, please call (833) 879-6178 (toll free) or (844) 785-2726. If you will be calling from outside the United States, please contact us. To download a calendar appointment, please click 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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions