DTAG Approves Draft Reports on "Positive Lists" for 3 USML Cats
At an October 20, 2010 meeting of the Defense Trade Advisory Group, attending members approved the draft reports of three working groups regarding the “positive export control lists” that would distinguish between Commerce Control List (dual use) and U.S. Munitions List (defense-related) articles and technology for three USML categories.
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Drafts Approved for USML Categories VIII, XI, and XII
The USML categories reported on by the DTAG working groups were Category VIII (aircraft and associated equipment), Category XI (military electronics), and Category XII (fire control, range finder, optical and guidance and control equipment).
Identification of discriminators. Each group’s draft report identifies some of the discriminators (discriminating functions and factors) that separate dual use from defense-related articles and technology, and then assigns them a Tier 1, 2 or 3 rank.
(The working groups focused on discriminators, as they realized that a positive list of the articles themselves would be too long and unwieldy.)
Drafts are “works in progress.” Group leadership noted that while the working groups had six weeks to develop their draft reports, it was not enough time. It would take much longer, perhaps six months, for them to develop “positive export control lists”, and an additional technical review would be needed as well.
(The draft report for Category VIII seemed the most complete, and the draft reports for Categories XI and XII less so, as they appeared to tackle a more difficult range of articles and functionality.)
To be finalized and posted. The approved draft reports will be finalized and submitted to the Directorate of Defense Trade Controls (DDTC), and then posted on the DTAG website.
Comment and outreach. The positive export control list for each category will then be published for comment. Outreach to advisory committees (TACs), DoD, etc. will also occur.
(The working groups’ reports will help prepare for a single, positive export control list of dual use and defense-related exports. The groups’ goals were to (1) create a bright line between dual use and defense-related articles, (2) clarify jurisdictional determinations, and (3) reduce agency uncertainty (whether State or Commerce).
The working groups were composed of industry experts located largely outside of Washington D.C., from companies such as Honeywell, Boeing, Lockheed Martin and Northrup. The working groups had met regularly, mostly via teleconference, since September 3, 2010.)
Miscellaneous Notes
1. Robert Kovac, Acting Deputy Assistant Secretary of State for Defense Trade, stated that implementing all that the “4 singles” entail will need the enactment of legislation. Until then, the government will make changes within their existing authorities “as it makes sense to do so.”
2. The government had earlier drafted a positive export control list for Category VII (tanks and military vehicles). The next step is publishing the list for comment.
3. Dual use items will go all the way up to Tier 1, and defense-related articles will go all the way down to Tier 3.
4. DTAG wants to ensure that defense articles already removed from the ITAR are not recontrolled on a single positive export control list.
5. Kovac stated that State’s export control team was going to brief members of Congress during the week beginning October 25.
Background on Government’s Export Reform Initiative
In April 2010, Defense Secretary Gates announced a broad set of reform recommendations, including a new export control system that would be based on the “4 singles,” (1) a single, tiered export control list, (2) a single newly-created export licensing agency, (3) a single agency to coordinate enforcement, and (4) a single unified IT system. In late August, President Obama detailed the first steps being taken toward implementation of export control reform, including the splitting of the USML and CCL into three tiers and assigning corresponding licensing policy for all items. He also stated that the government had completed the [draft] overhaul of USML Category VII (tanks and military vehicles), and restructured it into a positive, tiered export control list, with the corresponding entries on the CCL also overhauled.
In early September, the minutes of the July 2010 DTAG meeting were posted, which stated that the Export Control Reform task force was reviewing export controls and establishing an independent set of criteria for a new positive, 3-tier export control list, which encompasses the existing State and Commerce lists. The minutes also revealed that the Commodity Jurisdiction (CJ) process would no longer be needed with export reform, but there would still be a means to handle tier disputes. At that time, the single licensing system was expected to be based on DOD’s licensing system, USXports.
(See ITT’s Online Archives or 04/21/10 news, 10041225, for BP summary of Gate’s announcement of “fundamental reform” plans for U.S. export controls. See ITT’s Online Archives or 08/31/10 news, 10083113, for BP summary of President Obama’s remark on this reform’s first steps toward implementation. See ITT’s Online Archives or 09/03/10 news, 10090315, for BP summary of BIS Update Conference remarks on export reform’s “bright line” between dual use and defense-related articles and technology.)