1 Determining Export Restrictions - PowerPoint Presentation

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Determining Export Restrictions

Dave Day and Jeff Long

22-23 July, 2015

Charleston SCSlide2

Content ITAR vs. EARA Five Step ProcessExamples

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ITAR – International Traffic in Arms Regulations

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22 CFR Part 120, Sub-Chapter M

§120.1   General authorities, receipt of licenses, and ineligibility.

(a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778), as amended, authorizes the President to control the export and import of defense articles and defense services. The statutory authority of the President to promulgate regulations with respect to exports of defense articles and defense services is delegated to the Secretary of State by Executive Order 13637. This subchapter implements that authority, as well as other relevant authorities in the Arms Export Control Act (22 U.S.C. 2751 

et seq.

). By virtue of delegations of authority by the Secretary of State, these regulations are primarily administered by the Deputy Assistant Secretary of State for Defense Trade Controls, Bureau of Political-Military Affairs.Slide4

EAR – Export Administration Regulations

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15 CFR Part 730

and forward

§730.1   What these regulations cover.

In this part, references to the Export Administration Regulations (EAR) are references to 15 CFR chapter VII, subchapter C. The EAR are issued by the United States Department of Commerce, Bureau of Industry and Security (BIS) under laws relating to the control of certain exports, reexports, and activities. In addition, the EAR implement antiboycott law provisions requiring regulations to prohibit specified conduct by United States persons that has the effect of furthering or supporting boycotts fostered or imposed by a country against a country friendly to United States. Supplement No. 1 to part 730 lists the control numbers assigned to information collection requirements under the EAR by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995.Slide5

The Five Step ProcessIdentityJurisdictionClassificationAuthorizationDocumentation

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1. IdentityWhat is being considered for export?TangibleHardwareDataIntangibleKnowledge

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2. JurisdictionDepartment of State or Department of Commerce?Military Unique  StateAll Else  Commerce!

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The key take away here is that

ALL

exports are controlled!Slide8

2. Jurisdiction (continued)Jurisdiction may be based on “Where Used.” This can be difficult for sub-tier supplier to determine.Dual Use falls under Department of Commerce

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3. Classification (Dept. of State)CategoryFirearms, Close Assault Weapons and Combat ShotgunsGuns and ArmamentAmmunition/OrdinanceLaunch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes and MinesExplosives and Energetic Materials, Propellants, Incendiary Agents and Their ConstituentsVessels of War and Special Naval EquipmentTanks and Military Vehicles

Aircraft and Associated Equipment

Military Training Equipment

Protective Personnel Equipment

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3. Classification (Dept. of State) (Continued)Category (continued)Military ElectronicsFire Control, Range Finder, and Guidance and Control EquipmentAuxiliary Military EquipmentToxicological Agents, Including Chemical Agents, Biological Agents, and Associated EquipmentSpacecraft Systems and Associated Equipment

Nuclear Weapons, Design and Testing Related Items

Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated

Directed Energy Weapons

Reserved

Gas Turbine Engines and Associated Equipment

Submersible Vessels, Oceanographic and Associated Equipment

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121.1 Category VIII (i)Technical data and defense services directly related to the defense articles enumerated…

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Category XIX—Gas Turbine Engines and Associated EquipmentThis is the latest categoryIt lists specific engine models and components

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ITAR Bottom LineIf it is listed in the Unites States Munitions List (USML), it is restricted.If it is not listed in the USML, it falls under the control of the Department of Commerce

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3. Classification (Dept. of Commerce)The Commerce Control List (CCL)Category 9 – PROPULSION SYSTEMS, SPACE VEHICLES AND RELATED EQUIPMENTSYSTEMS, EQUIPMENT AND COMPONENTSTEST, INSPECTION, AND PRODUCTION EQUIPMENTMATERIALSSOFTWARETECHNOLOGY

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CCL “Technology”9E001 – Development9E002 – Production9E003 – Other, e.g. Hot Section

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Commerce Reasons for ControlCB – Chemical and Biological WeaponsNP – Nuclear NonproliferationNS – National SecurityMT – Missile TechnologyRS – Regional StabilityFC – Firearms ConventionCC – Crime ControlAT – Anti-Terrorism

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4. AuthorizationFrom the USML classification or the Commerce Control List and the appropriate Export Control Classification Number, the Reason for Control is looked up in the relevant country chart to determine if DoS restricts or if DoC requires a license.

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4. Authorization18Slide19

5. DocumentationAnytime you are making a decision on export control, you should document the decision process from the four steps above.

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ITAR Example (22 CFR Ch I 121.1, Category VIII)Category VIII—Aircraft and Associated Equipment* (a) Aircraft, including but not limited to helicopters, non-expansive balloons, drones, and lighter-than-air aircraft, which are specifically designed, modified, or equipped for military purposes. This includes but is not limited to the following military purposes: Gunnery, bombing, rocket or missile launching, electronic and other surveillance, reconnaissance, refueling, aerial mapping, military liaison, cargo carrying or dropping, personnel dropping, airborne warning and control, and military training. (See § 121.3.)

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ITAR Example (22 CFR Ch I 121.1, Category VIII)* (b) Military aircraft engines, except reciprocating engines, specifically designed or modified for the aircraft in paragraph (a) of this category, and all specifically designed military hot section components (i.e., combustion chambers and liners; high pressure turbine blades, vanes, disks and related cooled structure; cooled low pressure turbine blades, vanes, disks and related cooled structure; cooled augmenters; and cooled nozzles) and digital engine controls (e.g., Full Authority Digital Engine Controls (FADEC) and Digital Electronic Engine Controls (DEEC)). However, if such military hot section components and digital engine controls are manufactured to engineering drawings dated on or before January 1, 1970, with no subsequent changes or revisions to such drawings, they are controlled under Category VIII(h).

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22 CFR Ch I 121.1, Category VIII(h) Components, parts, accessories, attachments, and associated equipment (including ground support equipment) specifically designed or modified for the articles in paragraphs (a) through (d) of this category, excluding aircraft tires and propellers used with reciprocating engines.

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22 CFR Ch I 121.1, Category VIII(i) Technical data (as defined in § 120.10) and defense services (as defined in § 120.9) directly related to the defense articles enumerated in paragraphs (a) through (h) of this category (see § 125.4 for exemptions), except for hot section technical data associated with commercial aircraft engines. Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.

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Significant Military Equipment (SME)(b) Significant military equipment: An asterisk precedes certain defense articles in the following list. The asterisk means that the article is deemed to be “Significant Military Equipment” to the extent specified in § 120.7 of this subchapter. The asterisk is placed as a convenience to help identify such articles. Note that technical data directly related to the manufacture or production of any defense articles enumerated in any category that are designated as Significant Military Equipment (SME) shall itself be designed SME.

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EAR Excerpts (15 CFR Part 730 et seq.)9A001 Aero gas turbine engines having any of the following (see List of Items Controlled).LIST OF ITEMS CONTROLLED Unit: Number Related Controls: See also 9A101 and 9A991Related Definitions: N/A Items: a. Incorporating any of the technologies controlled by 9E003.a, 9E003.h, or 9E003.i; or

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EAR Excerpts (15 CFR Part 730 et seq.)9E003a.1. Gas turbine blades, vanes or ‘‘tip shrouds’’, made from directionally solidified (DS) or single crystal (SC) alloys and having (in the 001 Miller Index Direction) a stress rupture life exceeding 400 hours at 1,273 K (1,000 °C) at a stress of 200 MPa, based on the average property values; a.2. Multiple domed combustors operating at average burner outlet temperatures exceeding 1,813 K (1,540 °C) or combustors incorporating thermally decoupled combustion liners, non-metallic liners or non-metallic shells

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EAR Excerpts (15 CFR Part 730 et seq.)9E001 “Technology” for “development”…9E002 “Technology for “production”…9E003 Other “technology”…Etc.EAR99 Items subject to the EAR that are not elsewhere specified in this CCL Category or in any other category in the CCL are designated by the number EAR99.

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