BIS Reports on Upcoming Rules on Export Control Reform, Wassenaar 2011

The Bureau of Industry and Security’s Regulations and Procedures Technical Advisory Committee (RPTAC) held a partially open meeting on March 6, 2012 to discuss, among other things, upcoming proposed and reproposed rules implementing elements of the Export Control Reform (ECR), including the transitional 600 series ECCNs proposed rule and the "specially designed" reproposed rule, and the upcoming rule implementing the changes adopted at the December 2011 Wassenaar Plenary.

(In August 2009, President Obama directed the Administration to conduct a broad-based review of the U.S. export control system in order to identify additional ways to enhance national security. This effort involves, among other things, the transfer of certain items from the State Department’s U.S. Munitions List to the BIS’ Commerce Control List.)

Next Proposed ECR Rules for Categories V & XIV

BIS reports that rules covering all remaining categories of the U.S. Munitions List (USML) will be proposed over the course of spring 2012. The next proposed rules will cover USML Categories V (energetic materials) and XIV (training equipment). A BIS official, citing the USML Category XX submersible vessel rule proposed by BIS in December 2011 as an example, noted that there is not a lot moving over from the USML to the Commerce Control List (CCL). The official also stated that nothing will be final until there has been a Congressional notification.

(See ITT’s Online Archives 12011347 for summary of OMB's receipt of the State Department's proposed ECR rules for USML Categories V and XIV for review.)

Proposed Transition Rule for 600 Series ECCNs Expected

BIS also states that it has been working on a “transition rule”, which would serve as the framework of changes that would be needed to implement the 600 series¹ in the Export Administration Regulations (EAR). The rule would also detail procedures for the handover of authority from the Department of State to BIS, including grandfathering and a staggered effective date. BIS is currently working with State’s Directorate of Defense Trade Controls (DDTC) to make the transition as seamless as possible.

“Specially Designed” and “Not Otherwise Listed” Proposed Rules Forthcoming

According to BIS, a rule will be reproposed covering “specially designed”² due to the volume of comments received on the July 15, 2011 proposed rule. A final rule implementing the “not otherwise listed” 521 ECCNs is currently under review by the Office of Management and Budget.

Wassenaar 2011 Rule in Interagency Review, BIS Hopes to Publish by May

BIS reports that its rule implementing the changes adopted at the December 2011 Wassenaar Plenary is currently in interagency review, and is nearly ready for review by OMB. A BIS official stated that the agency hopes to publish the rule before May 20, 2012, which is the date that the rule implementing the 2010 Wassenaar changes was published in 2011.

¹BIS’ July 15, 2011 proposed rule on the overall framework for Export Control Reform, proposed to add a new "xY6zz" control series to the CCL to control most items formerly on the USML moved to the CCL and to consolidate the 13 existing Wassenaar Arrangement Munitions List (WAML) entries (i.e., those entries currently under "xY018") to this new "600 series." This new control series would be added to each of the 10 CCL categories and would fall after the "300 series" and before the "900 series" on the CCL.

²The July 15, 2011 “framework” proposed rule also proposed to create a new definition of "specially designed" to apply to (i) 600 series ECCNS, (ii) existing ECCNs using the term, and (iii) revised USML categories using the term. Under the July 15, 2011 proposed definition, a “specially designed” item, other than a "part" or "component," would be an item that is enumerated on the CCL and, as a result of "development," has properties peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions of the referenced item identified in the CCL.

(See ITT’s Online Archives 11071519 for summary of BIS’ July 15, 2011 proposed Export Control Reform “framework” rule. See ITT’s Online Archives 11072105 for summary of July 2011 BIS update of plans for Export Control Reform, and 11091510 for summary of September 2011 update. See ITT’s Online Archives 12021517 for summary of House Foreign Affairs Committee leaders urging the Obama Administration to prioritize Export Control Reform. See ITT’s Online Archives 12022149 for summary of announcement of the March 6, 2012 RPTAC meeting.)