On June 17, 2015, the Department of State’s Directorate of Defense Trade Controls (DDTC) and the Department of Commerce’s Bureau of Industry and Security (BIS) published proposed rules to amend U.S. export controls on toxicological agents and associated equipment and directed energy weapons. The proposed rules mark yet another important step in the President’s Export Control Reform (ECR) Initiative. The rules will revise Categories XIV and XVIII of the International Traffic in Arms Regulations’ (ITAR) U.S. Munitions List (USML) and move several currently ITAR-controlled items to the Export Administration Regulations’ (EAR) Commerce Control List (CCL).
The proposed changes to controls on toxicological items could have a particularly substantial impact on industry. Currently, Category XIV of the ITAR’s USML broadly controls chemical and biological agents and associated equipment. The proposed rules would provide for a risk-based approach, such that the ITAR will only control “Tier 1” pathogens and toxins established in the Department of Health and Human Services’ and the Department of Agriculture’s select agent regulations that meet specific capabilities.
Consistent with one of the primary goals of the ECR Initiative, proposed Category XIV will positively list other items that are ITAR-controlled, including the M53 Chemical Biological Protective Mask; the M50 Joint Service General Purpose Mask; and equipment for the detection, identification, warning, or monitoring of certain chemical or biological agents that contains reagents, algorithms, coefficients, software, libraries, spectral databases, or alarm set point levels developed under a Department of Defense contract or other funding authorization.
BIS has created a new set of Export Control Classification Numbers (ECCNs), 1×607, to cover those toxicological items shifting from control under the ITAR to control under the EAR. Riot control agents, equipment for the destruction of chemical and biological agents, and equipment for the sample collection and decontamination or remediation of chemical and biological agents, among other items, will be moved to the EAR’s CCL.
With these proposed rules, there are only three USML categories remaining—covering firearms, artillery, and ammunition—where DDTC and BIS have yet to issue either proposed or final ECR rules.
A more detailed analysis of the proposed changes to the ITAR and the EAR is available here.