Reminder: Comments on BIS ANPR on Tiered CCL due Feb 7

BIS’ request for comments on how items on the CCL could be “tiered” also included 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 stated 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 tiers. 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.

Three-tiered set of criteria will determine license requirements. The 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 critical² 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.

If not within scope of a tier, should not be controlled. 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.

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. 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.

¹of the Export Administration Regulations

²The term ‘‘critical’’ means providing a capability with respect to which the U.S. cannot afford to fall to parity and that would pose a grave threat to U.S. national security if not controlled (i.e., a ‘‘crown jewel’’).

(See ITT’s Online Archives or 12/09/10 news, 10120921, for original BP summary of the ANPR.

See ITT’s Online Archives or 12/10/10 and 01/10/11 news, 10121021 and 10121013, and 110110026, for BP summaries and reminder of the State Department's ANPR on making the USML clear, positive, and tiered and proposed rule on Category VII.)

(D/N 101112562-0577-01, FR Pub 12/09/10)