Former DDTC Director Criticizes State Proposed Rules to Tier USML & Cat VII
A former Director of Defense Trade Controls, (DDTC) has submitted comments on the State Department's two December 2010 rulemakings to make the U.S. Munitions List positive and tiered and to assign a tier system to Category VII (tanks and military vehicles), as part of the Administration's Export Control Reform initiative.
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Says Administration Lacks Legal Authority to Reform Munitions System
According to the former DDTC Director, the current munitions control system was not designed for the Cold War as claimed by the Administration. Rather, the Arms Export Control Act of 1976 (AECA), which the current munitions control system implements, was itself considered a “reform” measure. The AECA established a framework for all U.S. arms transfers (commercial and governmental) and specified a policy of control and restraint, with a licensing regime for commercial munitions exports. He argues that the Administration's proposal to establish a whole new paradigm for commercial arms exports1, lacks the requisite legal authority and must be preceded by a new law.
Proposal to Remove "Design Intent" as Basis for Control is Misinformed
He claims that the inter-agency finding to eliminate “design intent” (e.g., “designed for military application”) as a basis for control on the grounds of ambiguity and subjectivity, is misinformed. He states this terminology has been in standard use by the U.S. and other countries for decades, and plays a prominent role in numerous arms control agreements to which the U.S. is a Party.
Would Facilitate Parts Supply to Iran, Chinese Production for U.S. Military
He also argues that a significant relaxation of U.S. controls over commercial arms exports may not be the best action at a time of tumult throughout the Middle East, expanding arms sales by Russia in Latin America, and a shaky European arms embargo on China. He states that the reform could open the door for Russia and China to resume their spare parts supply and related military assistance to Iran’s major conventional weapons programs, and facilitate China’s acquisition of military items and production of military components and parts for the U.S. defense supply chain.
Removing USML Controls Would Shift Production Outside of U.S.
According to the former Director, China is the largest destination for controlled dual-use trade. He noted Commerce’s analysis of trade with China indicates that more than 50% of China’s exports originate from foreign invested enterprises, which raises concerns of long-term U.S. competitiveness and employment. When military parts and components are removed from the USML, most will become available for immediate outsourcing to China and other Asian countries, which he states will exacerbate the problem of counterfeit parts in DOD weapons platforms and negatively affect U.S. operational effectiveness.
Other Reforms Available, Including Expanded Exemptions, Long Duration OEMS, Etc.
The former Director adds that there are numerous other reforms available to the Administration to improve U.S. competitiveness without compromising its security and foreign policy interests, and the framework for munitions control established in the AECA. These include long duration, through-life support licenses for original equipment manufacturers (OEMs), expanded use of exemptions for minor parts and components to previously approved programs, elimination of redundant approvals in export license procedures, and elimination of inter-agency staffing for licenses involving any equipment now prepared to be exported without a license to U.S. allies.
1The former Director states that Administration's Export Control Reform initiative aims to: (1) reduce the USML by about 75%; (2) integrate what remains of the USML with the Commerce Control List (CCL) into a single new list; and (3) seek agreement from other countries to make conforming changes to the international Munitions List.
(See ITT's Online Archives or 10/08/10 news, 10100817, for BP summary of the former Director's comments to the DOS proposed ITAR exemption for intra-company transfers to dual or third country nationals.
See ITT's Online Archives or 12/10/10 news, 10121021 and 10121013, for BP summaries of the DOS December 2010 rulemakings.)
The former DDTC Director's comments are available via request by emailing documents@brokerpower.com.