DDTC Seeks Public Comments on Revising the USML to a "Positive" List

On December 10, 2010, the State Department's Directorate of Defense Trade Controls (DDTC) issued an advance notice of proposed rulemaking (ANPRM) and is seeking public comment on revisions to the to the United States Munitions List (USML) that would make it a ''positive list'' of controlled defense articles, requests that the public ''tier'' defense articles based on the Administration's three-tier control criteria, and identify those current defense articles that the public believes do not fall within the scope of any of the criteria's tiers. A ''positive list'' is a list that describes controlled items using objective criteria rather than broad, open-ended, subjective, or design intent-based criteria.

DDTC is not seeking with this advance notice of proposed rulemaking (ANPRM) input on whether particular defense articles should or should not be controlled on the USML or whether any defense articles should be controlled differently. Rather, it is only seeking with this ANPRM input on how the USML can be revised so that it clearly describes what is subject to the jurisdiction of the International Traffic in Arms Regulations (ITAR), how defense articles are identified by tier, and what current defense articles do not fall within the scope of any of the tiers.

Comments must be received by the DDTC no later than February 8, 2011.

The ANPRM states in part that:

A key part of the Administration's Export Control Reform effort is to review and revise both the ITAR and the CCL to enhance national security so that they: (1) Are ''tiered'' consistent with the criteria the U.S. Government has established to distinguish the types of items that should be controlled at different levels for different types of destinations, end-uses, and end-users; (2) create a ''bright line'' between the two lists to clarify jurisdictional determinations and reduce government and industry uncertainty about whether a particular item is subject to the jurisdiction of the ITAR or the EAR; and (3) are structurally ''aligned'' so that they can eventually be combined into a single control list.

The Administration has determined that these changes are necessary to better focus its resources on protecting those items that need to be protected, to end jurisdictional confusion between the ITAR and EAR, and to provide clarity to make it easier for exporters to comply with the regulations and for the U.S. Government to administer and enforce them.

In order to accomplish the three above-referenced 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 such as horsepower, microns, wavelength, speed, accuracy, hertz or other precise descriptions rather than broad, open- ended, subjective, or design intent- based criteria.

As the U.S. Government continues its work on preparing proposed revisions to the USML, it seeks public input on how best to describe the USML in a positive manner. U.S. companies, trade associations, and individuals that produce, market, or export USML- controlled defense articles are generally well positioned to describe their articles positively and to provide comments on what are and are not clear descriptions of controls over the articles. Public comment at this stage of the USML review process also ensures that affected industry sectors have the opportunity to contribute and comment on a key element of Export Control Reform.

The following is a summary of the specific requests for public comment described in this notice:

    ·    Public comments should be provided on a category-by-category basis.
    ·    Within each category, public input should be further identified by groups A thru E as further described below.
    ·    Public input should describe defense articles in a ''positive'' way:

1. Use objective criteria or thresholds, such as precise descriptions or technical parameters, that do not lend themselves to multiple interpretations by reasonable people.

2. Descriptions should not contain any (a) controls that use generic labels for ''parts,'' ''components,'' ''accessories,'' ''attachments,'' or ''end-items'' or (b) other types of controls for specific types of defense articles because, for example, they were ''specifically designed or modified'' for a defense article, but should contain identification of those ''parts,'' ''components,'' ''accessories,'' ''attachments,'' or ''end-items'' that do warrant enumerated control on the USML. Separately, the use of ''specially designed'' as a control criterion for the other ''parts,'' ''components,'' ''accessories,'' ''attachments,'' or ''end- items'' should only be applied when required by multilateral obligations or when no other reasonable option exists.

3. Items are not to be listed on both the CCL and the USML unless there are specific technical or other objective criteria-regardless of the reason why any particular item was designed or modified-that distinguish between when an item is USML-controlled or when it is CCL-controlled.

4. In cases where technical characteristics are classified and need to be protected, the objective descriptions of the products controlled should be set at an unclassified level below the classified level.

5. Public input should include the recommended tier of control for the defense articles described using the tiering criteria in Part IV, Step 4 of the Guidelines in this notice.

6. The public is also requested to identify any current defense articles that do not fall within the scope of any of the criteria's tiers, and provide an explanation why they believe that such items are not within the scope of the criteria.