State, BIS Propose Rules to Revise USML Cat V & CCL for Explosives, 'Tiering' on Hold, Etc.

Written comments on both proposed rules are due by June 18, 2012.

State Dept Proposed Rule

Proposed Rules Do Not Reflect Tiering

In their December 2010 advanced notices of proposed rulemaking, the State Department and BIS described the Administration’s plan to make the U.S. Munitions List and the Commodity Control List positive, tiered, and aligned so eventually they can be combined into a single control list. State said these remain the Administration’s ultimate Export Control Reform objectives, but their concurrent implementation would be problematic in the near term. As a result, the Administration decided, as an interim step, to propose and implement revisions to both the USML and the CCL that are more positive, but not yet tiered.

(See ITT's Online Archives 10121021 and 10120921 for summary of State and BIS ANPRs, respectively, on the Administration's plan to make the USML and CCL positive, tiered, and aligned, and to establish a "bright line" between the two.)

Proposed Revision of USML Category V

The State Department's proposed rule would revise USML Category V, covering explosives and energetic materials, propellants, incendiary agents, and their constituents, to establish a clear bright line between the USML and the CCL for those articles. The proposed revision would remove broad catchalls, replacing them with a listing of specific materials that warrant ITAR control caught by current catchalls, address U.S. obligations to multinational regimes, and add materials that are significant to the military but have little commercial application. Proposed changes include:

Removal of catchall categories. State’s proposed rule would replace broad catchall categories with lists of specific materials. For example, paragraph (a)(35) of Category V of the USML at 22 CFR 121.1 currently reads “any other explosive not elsewhere identified in this category specifically designed, modified, adapted, or configured (e.g., formulated) for military application.” State’s proposed rule would remove this paragraph and add specific materials.

State said that those materials currently captured in the catchalls that do not warrant control on the USML are to be controlled on the CCL. Examples of such materials include spherical aluminum powder and hydrazine and its derivatives.

Addressing multilateral obligations. Another change proposed by State involves addressing U.S. obligations to multinational regimes. For example, paragraph (a)(32) of Category V of the USML at 22 CFR 121.1 currently reads “any explosive not listed elsewhere in paragraph (a) of this category with a detonation velocity exceeding 8,700m/s at maximum density or a detonation pressure exceeding 34Gpa (340 kbar). State’s proposed rule would amend the provision to change the maximum detonation velocity to 8,000m/s to match the criteria from the Nuclear Suppliers Group.

Similarly, State is proposing to add additional hydrazine materials as specified by the Missile Technology Control Regime (MTCR).

Addition of items with little commercial application. State is also proposing to add materials that State deems significant to the military but with little commercial application. For example, State says DNAN (2,4 Dinitroanisole), a military explosive currently covered by the catchall in paragraph (a)(35), would be specifically controlled instead in paragraph (a)(11).

BIS Proposed Rule

Proposed Revisions to the CCL

BIS’ proposed rule describes how energetic materials and related articles that the President determines no longer warrant control under Category V (Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents) of the USML would be controlled under the CCL, as follows:

Four new 600 series ECCNs. The BIS proposed rule would create four new “600 series” Export Control Classification Numbers (1B608, 1C608, 1D608, and 1E608) for the CCL that the President determines no longer warrant control under USML Category V.

Equipment for production of explosives and solid propellants. BIS said that, consistent with the regulatory construct identified in the July 15 proposed rule (i.e., to move items from the 018 ECCNs to the appropriate 600 series ECCNs in order to consolidate the Wassenaar Arrangement Munitions List (WAML) and former USML items into one series of ECCNs), this rule would move equipment for the production of explosives and solid propellants currently classified under ECCN 1B018.a, and related software currently classified under ECCN 1D018, to new ECCNs 1B608 and 1D608, respectively.

Similarly, BIS said this rule would move commercial charges and devices containing energetic materials, which are currently classified under ECCN 1C018, to new ECCN 1C608 (except chlorine trifluoride, which will be controlled under ECCN 1C111.a.3.f. and not under current ECCN 1C238).

Aluminum powder and hydrazine. Additionally, the BIS proposed rule would amend current ECCN 1C111 to describe the EAR controls that would apply to aluminum power and hydrazone and derivatives thereof the President determines no longer warrant control under USML Category V.

State proposed rule (FR Pub 05/02/12) available here. BIS proposed rule (FR Pub 05/02/12) available here.