State Dept Requests Comments on Revisions to Make USML Positive, Tiered

December 10, 2010 by Cindy Arevalo|Top News

As part of the President’s export control reform initiative, the State Department’s Directorate of Defense Trade Controls has issued an advance notice of proposed rulemaking (ANPR) which (i) seeks public comment on revisions to the U.S. Munitions List that would make it a “positive list” of controlled defense articles, (ii) requests that the public “tier” defense articles based on the Administration’s three-tier control criteria¹, and (iii) requests the public identify those current defense articles that the public believes do not fall within the scope of any of the criteria’s tiers.

Comments are due by February 8, 2011.

List Review, Revision is Phase II of Administration’s Export Control Reform Effort

DDTC notes that the review and revision of the USML and the Commerce Control List (CCL) are part of Phase II of the Administration’s export control reform effort. The purpose of the control list review effort is to enhance national security by reviewing and revising the USML and CCL so that they (i) are “tiered” consistent with the Administration’s criteria; (ii) create a “bright line” between the USML and CCL to clarify jurisdictional determinations; and (iii) are structurally “aligned” so that they can eventually be combined into a single control list.

In order to accomplish these three tasks simultaneously, the USML and, to a lesser degree, the CCL must be revised so that they are aligned into “positive lists.”

(A “positive list” is one that describes controlled items using objective criteria, rather than broad, open-ended, subjective, or design intent-based criteria.)

USML Category VII Should Be Guide for Providing Input on Other Categories

The Administration has already begun reviewing and revising the USML. DDTC states that the public should use the revised USML Category VII as a guide for the level and type of detail it is seeking to develop in the remaining USML categories (other than Category XVII (Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated) and Category XXI (Miscellaneous Articles).)

(See ITT’s Online Archives or 12/10/10 news, 10121013, for BP summary of the proposed revision to USML Category VII, which pertains to tanks and military vehicles.)

Steps and Guidelines for USML, CCL Review and Revision

The following are the steps and the guidelines that the Administration has developed to prepare proposed amendments to the USML and the CCL so that they are, with rare exceptions, aligned “positive lists” that do not overlap and are consistent with the tiered criteria. The guidelines are set out in ordered steps.

Step 1 - Review each USML category (and related ECCNs) separately. In order to make the USML, CCL review, revision process more manageable, USML categories (and related ECCNs) are being reviewed individually. However, the review is being done with awareness that other categories are being reviewed and could have an effect.

Step 2 - Provide input following the new proposed USML structure. The Administration is proposing to revise the structure of the USML so that it tracks the A, B, C, D, E structure of the CCL (which also tracks the Wassenaar Arrangement dual-use list structure) and also has an additional F and G to address ITAR-specific defense service and manufacturing controls. Each revised USML category is being divided into seven “Groups”:

A for “Equipment, Assemblies, and Components”;

B for “Test, Inspection, and Production Equipment”

C for “Materials”;

D for Software”;

E for “Technology”;

F for “Defense Services”; and

G for “Manufacturing and Production Authorizations.”

The public is requested to provide input in Groups A through E. Groups F and G at this stage do not require input for building the positive list. (See ANPR for definition of the above groups.)

Step 3 - Describe defense articles in a “positive” way. DDTC requests public input on how defense articles should be described, to the maximum extent possible, in a “positive” way.

Step 4 - Provide recommended tier of control for the defense articles. DDTC requests public input on screening those items the public identifies in a more “positive” way in Step 3 against the Administration’s three tier control criteria and identify the tier of control for items within each USML category and group (A, B, C, D, and E). The Administration will make the final decisions on what types of defense articles are within the scope of any of the three tiers and, thus, may or may not accept suggestions regarding how items should be tiered.

The Criteria and the scope of its three tiers are as follows:

A Tier 1 control shall apply to:

A weapon of mass destruction (WMD);
A WMD-capable unmanned delivery system;
A plant, facility or item specially designed for producing, processing, or using: (i) WMDs; (ii) special nuclear materials; or (iii) WMD-capable unmanned delivery systems; or
An item almost exclusively available from the U.S. that provides a critical military or intelligence advantage.

Tier 1 defense articles are those that are almost exclusively available from the U.S. and that provide a critical military or intelligence advantage.

A Tier 2 control shall apply to an item that is not in Tier 1, is almost exclusively available from Regime Partners or Adherents and:

Provides a substantial military or intelligence advantage; or
Makes a substantial contribution to the indigenous development, production, use, or enhancement of a Tier 1 or Tier 2 item.

Tier 2 defense articles are those that are almost exclusively available from countries that are members of the multilateral export control regimes that control such items and (i) provide a substantial military or intelligence advantage, or (ii) make a substantial contribution to the indigenous development, production, use, or enhancement of a Tier 1 or Tier 2 item.

A Tier 3 control shall apply to an item not in Tiers 1 or 2 that:

Provides a significant military or intelligence advantage;
Makes a significant contribution to the indigenous development, production, use, or enhancement of a Tier 1, 2, or 3 item; or
Is controlled for national security, foreign policy, or human rights reasons.

Tier 3 defense articles are those that provide a significant military or intelligence advantage, or make a significant contribution to the indigenous development, production, use, or enhancement of a Tier 1, 2, or 3 item.

¹The 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.

²The DDTC notice provides a summary of the full methodology; the Administration’s full draft methodology is available at http://www.pmddtc.state.gov/DTAG/index.html.)

(See ITT’s Online Archives or 12/09/10 news, 10120921, for BP summary of the Bureau of Industry and Security’s ANPR requesting comments on making the CCL clear, positive, and tiered.)