BIS Working w/ Wassenaar to Specifically Define Controlled 'Uses' of Technology
The U.S. and other Wassenaar Arrangement countries are looking into more specific export controls on technology, said Kevin Wolf, assistant secretary for Export Administration, at a July 20 meeting of the Bureau of Industry and Security’s Emerging Technology and Research Technical Advisory Committee. According to Wolf, this work stems from disagreement between the U.S. and the 40 other Wassenaar members on the meaning of “use” in the context of the phrase “technology for the ‘use’ of…” commonly used for technology controls. “We’re really a minority of one,” said Wolf. The U.S. hasn’t adopted the definition favored by the other Wassenaar members because, as the U.S. is the only Wassenaar member with a deemed export rule, adoption would have a disproportionate effect. Instead, Wolf said, the U.S. is discussing the possibility with other Wassenaar members of tying specific technologies to the specific types of "use" that merit control.
BIS Adopted Less Expansive Definition Six Years Ago
The definition of ‘use’ in the EAR, as well as in the Wassenaar Arrangement Munitions List, is “Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.” Six years ago, amid confusion over the meaning of the definition, BIS said the term and in the definition meant that information had to fulfill all six of the definition’s requirements. So information on how to "use" an item would only be controlled if it included information on all of operation, installation, maintenance, repair, overhaul, and refurbishing. “I represented at that time in the outside world a lot of companies, a lot of universities on that topic, and they went ‘Woo hoo, we’re done! Nothing meets that definition,’” Wolf said.
More Expansive Definition Problematic Because of U.S. Deemed Export Rule
“The problem is that none of the rest of the Wassenaar arrangement members interpret it that way,” Wolf said. “The rest of the Wassenaar members essentially treat that and as an or,” so that if information on how to ‘use’ an item would be controlled if it included information on any of operation, installation, maintenance, repair, overhaul, or refurbishing. For the last couple of years, all of the other Wassenaar members, particularly the United Kingdom, have been pushing to harmonize interpretation of the definition, specifically by changing the word and in the definition to or."
The problem this approach is that it “may be the way the rest of the Wassenaar members interpret it, but none of the rest of the Wassenaar members have a deemed exports rule,” Wolf said. “The impact on the U.S. would be dramatically different.” According to Wolf, such a change would dramatically increase the compliance burden and have a significantly negative impact on the research, scientific and academic communities because of the sudden need to reclassify and reexamine the technologies they work with.
Discussions Now Focusing on Tying Specific Uses to Controlled Techs
Instead, the U.S. has been discussing with the other Wassenaar members the possibility of tying specific technologies to the specific types of "use" that merit control, Wolf said. For example, if technology for operation and overhaul of a controlled item merits control, then the control wouldn’t catch installation, maintenance, repair, and refurbishing. “But there are lots of technology ECCNs and technology controls, and trying to decide what’s really important or relevant is a difficult exercise,” said Wolf.
Referring to discussions at BIS’ July 17-19 Update 2012 Conference, Wolf said even the suggestion of more specific technology controls was met with concern by universities, because they like the current rule where nothing is controlled. He said he wasn’t sympathetic to that logic, because if items merit control they warrant control. “Compliance is a pain, but that’s why it’s called an export control rule,” Wolf said.