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The information provided with your application should include technical specifications or brochures on the items you wish to export. Information that substantiates the legitimate activities of the end-user should be supplied as well. You should also include import or end-user certificates if the item is also subject to national security controls. For items to be used in a missile project or program, at a minimum, always specify the maximum capable range and payload of the delivery system or launch vehicle. Any information regarding the specific project or program should be provided; note if there is any U.S. government funding or oversight involved. You can also include open source information from Web sites, marketing brochures, etc. All of this information will assist licensing officers in their evaluation, determination, and licensing recommendation for the case. Including this information could prevent potential delays in the processing of the case and avoid a return of the application without action. The documentation requirements for export license applications are explained in detail in Part 748 of the EAR.
A Missile Technology Assurance (MTA) may be required. MTAs involve obtaining assurances from one government to another. This is handled through the Department of State and could take in excess of 30 days to obtain. Without an MTA from the appropriate government, the proposed export will generally be denied.
In order to overcome an unacceptable risk of diversion, government-to-government assurances are required for transfers that could contribute to a delivery system for weapons of mass destruction. The assurances state the following:
(a) The items will be used only for the purpose stated and that such use will not be modified nor the items modified or replicated without the prior consent of the United States Government.
(b) Neither the items nor replicas nor derivatives thereof will be transferred without the consent of the United States Government.
Yes, depending upon the situation, License Exceptions TMP, RPL, TSU, and AVS may be applicable for these types of items related to safety of flight. See Part 740 of the EAR for an explanation of when these license exceptions may apply.
No. However, Section 1512 of the Strom Thurmond National Defense Authorization Act (NDAA) requires a Presidential certification to Congress prior to the export to China of missile technology controlled items, except for certain items used in manned aircraft. Therefore, you should allow for substantial processing time for these applications. The President must certify that the export will not be detrimental to the U.S. space launch industry and will not measurably improve the missile or space launch capabilities of China.
If the item is being sent to a project listed in footnote 1 to country group D:4 (Supplement No. 1 to EAR 740), it requires an export license regardless of the range of the missile. If the item is not bound for a project in footnote 1, then the item is not subject to missile controls if it will not be used in the design, development, production, or use of missiles as that term is defined in Part 772 of the EAR. A short-range missile is not considered to be an MTCR-controlled missile. Missiles subject to MTCR controls are those rocket systems (including ballistic missile systems, space launch vehicles, and sounding rockets) and unmanned air vehicle systems (including cruise missile systems, target drones, and reconnaissance drones) capable of delivering at least 500 kilograms payload to a range of at least 300 kilometers. (See Part 772 of the EAR.)
The Missile Technology Control Regime (MTCR) is an informal group of nations that coordinate their national export controls on goods and technology that can contribute to missile proliferation; the United States, along with 32 other countries, is a member. Two documents guide members on missile technology controls: the MTCR Guidelines and the MTCR Equipment and Technology Annex. The Guidelines provide licensing policy and procedures; the Annex lists two categories of missile systems and related commodities with 20 sub-category items of missile-related commodities. The MTCR policies and procedures and list of controlled items are included in the EAR.
In the Missile Technology Control Regime, the Nuclear Suppliers Group, and the Australia Group, there is a no undercut policy. This means that members of these regimes will notify each other of their denials of exports licenses for items covered by the regimes, and other members agree to consult the denying country before approving an export of the same or similar items to the same end-user. This does not apply to "catch all" denials of items not on the MTCR annex, but in practice, many countries take into consideration denials by regime partners when reviewing other license applications.
The term "Enhanced Proliferation Control Initiative" is not defined or generally used in the Export Administration Regulations. Under its original meaning, it included both the list-based controls on missile related items (as well as chemical, biological, and nuclear items) and controls on normally uncontrolled items that need a license because of the end-use or end-user. The term "EPCI" has come to be used informally to refer to the latter, "catch-all" controls. More properly, these are the proliferation-based end-use controls set out in Part 744 of the EAR. Under these controls, a license is required for an item even if it usually does not require one if the exporter knows, has reason to know, or is informed by BXA that the item is destined for a missile-related end-use described in Part 744.3 of the EAR. (There are similar controls for nuclear, chemical, and biological weapons proliferation.) If you must submit a license application under this provision, we will review it to see if the export will make a "material contribution" to the proliferation of missiles.
No, there are no "EPCI" controls (see question 1 above) on the manufacture of conventional arms. Conventional arms production is not an activity set out in Part 744. However, you need to determine if there are any activities that are described in Part 744 (i.e., missile/nuclear/chemical-biological weapons) at this facility.
Written materials that are publicly available, such as college textbooks, are not subject to the Export Administration Regulations. However, a "U.S. person," as that term is defined in the EAR, may not support certain missile activities in any of a number of ways, including the provision of goods, the performance of a contract, and employment. See Part 744.6. While the textbooks would not, in themselves require an export license, they could be part of the impermissible support that a U.S. person is providing to a missile project and amount to a violation of the EAR.
Your license was denied under the EPCI "crossover" provisions. Any license application can be reviewed for all proliferation concerns (not only those stated in the reasons for control.) In this instance, the item was denied because the transaction would make a material contribution to the proliferation of missiles.