Monthly Archives: September 2019

A Cornucopia of Export Compliance Updates

USML Category XI Revised – Radars, XI(b), and Integrated Circuits

On August 30, 2019, the Department of State, Directorate of Defense Trade Controls (DDTC) published a notice (84 FR 45652) revising United States Munitions List (USML) Category XI – Military Electronics.  This action follows a February 2018 comment request.

Most notably, USML Category XI(a)(3)(ix) is removed and reserved.  XI(a)(3)(ix) previously controlled “Air surveillance radar with multiple elevation beams, phase or amplitude monopulse estimation, or 3D height-finding.”  Public comments had “identified current and imminent commercial uses” for these radars, including use in “driver-assisted and self-driving ground vehicles and in detect and avoid systems for autonomous aerial systems.”

The notice also adds a comment to Category XI regarding transmit/receive modules and transmit/receive monolithic microwave integrated circuits (MMICs).

Items previously controlled on the USML are now subject to the Export Administration Regulations (EAR).

Finally, the notice also amends USML Category XI(b) to continue the current text which was scheduled to be replaced on August 30, 2019.  XI(b) currently controls:

*(b) 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.

This text was scheduled to be replaced on August 30, 2019, but with the amendment the replacement will be delayed until August 30, 2021.  At that time, unless otherwise amended, Category XI(b) will read:

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

The change now scheduled for 2021 removes “software” as well as the capability to analyze and produce information from the electromagnetic spectrum.

The current language is meant to maintain control of “certain intelligence-analytics software” until a long-term solution is developed.  The rule gives the government time to include the revision of XI(b) within an overall revision of Category XI.

DDTC published a similar amendment last year.

DDTC separately published a FAQ on integrated circuits controlled by USML Category XI(c)(1).

Brazil a Major Non-NATO Ally

On July 31, 2019 (84 FR 43035 published August 19th), Brazil was designated a Major Non-NATO Ally (MNNA).  DDTC published an announcement on their website that Brazil “effective immediately is included within the definition of major non-NATO ally at ITAR section 120.32.”  DDTC has not yet officially amended §120.32.

For ITAR purposes, the MNNA designation relates directly to §124.15 “Special Export Controls for Defense Articles and Defense Services Controlled under Category XV: Space Systems and Space Launches.”

DTAG to Meet September 26

The Defense Trade Advisory Group (DTAG) will meet on September 26, 2019 to discuss the following topics:

  1. Consent agreements, including remedial measures and areas for improvement to compliance programs;
  2. Authorizations involving third party technical data; and
  3. Licensing challenges for participation in international cooperative programs.

The DTAG meeting is open to the public, with seating limited to 125 persons.  For meeting and registration information, click here for the meeting notice.

Click here for more information about DTAG.

DRL Published Guidance on Surveillance Exports

On September 4, 2019, the Department of State, Bureau of Democracy, Human Rights, and Labor (DRL) published draft guidance on the export of surveillance hardware, software, and technology.  DRL is accepting comments on the draft guidance through October 4, 2019 and stated that the draft will be removed from the website at that time.  DRL is a frequent staffing point (reviewing office) for many export license applications.  This guidance is of particular interest to exporters of with “intended or unintended surveillance capabilities.”

Commerce Publishes Pakistan Due Diligence Guidance

The Department of Commerce, Bureau of Industry & Security (BIS) published due diligence guidance regarding Pakistan.  The guidance highlights red flag guidance and the EAR’s end-use and end-user based restrictions.  It also includes specific examples of problematic entities and transactions in Pakistan.

(None of the information is intended to be authoritative official or professional legal advice. Consult your own legal counsel or compliance specialists before taking actions based upon this blog or other unofficial sources.)