BIS Requests Comments on Making the CCL Clear, Positive, and Tiered
As part of the President’s export control reform initiative, the Bureau of Industry and Security has issued an advance notice of proposed rulemaking (ANPR) seeking comments on how the descriptions of items controlled on the Commerce Control List (CCL)1 could be more clear, positive, and “tiered,” in a manner consistent with the control criteria the Administration is developing as part of its export control reform effort.
BIS’ request for comments on how items on the CCL could be “tiered” also includes a request for comments on the degree to which a controlled item provides the U.S. with a critical, substantial, or significant military or intelligence advantage; and the availability of the item outside certain groups of countries.
Comments are due by February 7, 2011.
(BIS states that a core task of the Administration’s export control reform initiative is to review and revise, to the extent necessary and permitted by law and regime obligations, the lists of items (i.e., commodities, software, and technology) controlled for export and reexport so that they (1) are clearer and more “positive” in nature and (2) can more easily be screened into three tiers2 based upon a set of criteria.)
Making the CCL More Clear and “Positive”
As part of its export control reform initiative, the Administration wants the lists of items controlled pursuant to export control laws and regulations (i.e., the CCL and the U.S. Munitions List) to be sufficiently “positive,” clear, and precise so that persons, including persons who are not knowledgeable about U.S. export controls, who understand the technical parameters, characteristics, and capabilities of an item ordinarily will be able to determine its export control classification and jurisdictional status without needing to consult the government for an interpretation.
For these reasons, BIS is seeking public comment on how to improve the descriptions of items on the CCL that are unclear or use vague, open-ended, or subjective criteria.
(The CCL is mostly a “positive” control list that describes items using objective criteria, such as qualities to be measured (e.g., accuracy, speed, and wavelength), units of measure (e.g., hertz, horsepower, and microns), or other precise descriptions, rather than broad, open-ended, subjective, catch-all, or design intent-based criteria. However, BIS states that not all ECCNs contain “positive” descriptions, and some descriptions could be clearer and more specific.)
“Tiering” of Items on the CCL
The Administration is considering whether to amend, to the extent permitted by law and U.S. regime obligations, the lists of export controlled items (i.e., the CCL and USML) and related licensing policies to accord with new criteria that focus controls on the most sensitive items. These criteria would place items listed on the CCL and USML into three tiers3. The basic premise of this aspect of export control reform is that if an item type falls within the scope of one of the criteria’s three tiers, the item should be controlled for export, reexport, and in-country transfer at the level set forth in the licensing policy the U.S. Government is developing for that tier.
BIS is requesting comments on (i) how items on the CCL could be described based on tiered criteria and (ii) the foreign availability of items on the CCL.
Tier 1 to be highest level of control. The licensing policies to be assigned to each tier are still under development but generally, the highest tier of control (Tier 1) will carry the most comprehensive license and compliance requirements. According to BIS, if an item is determined not to be within the scope of any of the three tiers, it should not be on a control list.
Items that do not meet one of the primary elements of the tiered criteria, such as being significant for maintaining a military or intelligence advantage, that must nonetheless be controlled for a separate foreign policy, statutory, or multilateral obligation, will be identified as Tier 3 items with the required licensing policy.
(See ANPR for complete details on the specific issues on which BIS is requesting comments.)
1of the Export Administration Regulations
2The Administration has developed a three-tiered set of criteria to help determine whether a license should be required or a license exception should be available to allow license-free export, reexport, or transfer (in-country) of a given item, with appropriate conditions, to various destinations. The three tiers have two primary elements (i) the degree to which an item provides the U.S. with a military or intelligence advantage and (ii) the availability of the item outside the U.S., its close allies and multilateral export control regime partners.)
Tier 1 items are (a) weapons of mass destruction (WMD); (b) WMD-capable unmanned delivery system; (c) plants, facilities, or items specially designed for producing, processing, or using WMDs, special nuclear materials, or WMD-capable unmanned delivery systems; or (d) items almost exclusively available from the U.S. and which provide a critical military or intelligence advantage to the U.S. Tier 2 items are almost exclusively available from regime partners or adherents and provide a substantial military or intelligence advantage to the U.S., or make a substantial contribution to the indigenous development, production, use, or enhancement of a Tier 1 or Tier 2 item. Tier 3 items are more broadly available and provide a significant military or intelligence advantage to the U.S. or make a significant contribution to the indigenous development, production, use, or enhancement of a Tier 1, 2, or 3 item, or are otherwise controlled for national security, foreign policy, or human rights reasons. (See ANPR for definitions of key terms and phrases used in the tiered criteria.)
(See ITT’s Online Archives or 12/03/10 news, 10120312, for recent BP update on the Administration’s control reform initiative.
See ITT’s Online Archives or 10/28/10 news, 10102815, for BP summary on efforts to make the USML into a “positive list.”)
BIS contact - Timothy Mooney (202) 482-2440, email tmooney@bis.doc.gov.
(ANPR, FR Pub 12/09/10, D/N 101112562-0577-01)