Assns Raise Concerns with BIS Proposed CCL Tiering Criteria

(As part of the Administration's Export Control Reform (ECR) initiative, BIS' ANPR sought comments on: (i) how the descriptions of items controlled on the CCL could be made positive and tiered; (ii) the degree to which each provides the U.S. with a critical, substantial, or significant military or intelligence advantage; and (iii) the availability of an item outside certain groups of countries. See ITT's Online Archives or 12/09/10 news, 10120921, for BP summary.

Associations that commented include: the Institute of Electrical and Electronics Engineers (IEEE), the Laser and Electro Optics Manufacturers' Association (LEOMA), the International Safety Equipment Association (ISEA), the Semiconductor Industry Association (SIA), the American Association of Exporters and Importers (AAEI), and the Satellite Industry Association (SIA2), the BIS Materials and Transportation Technical Advisory Committee (MTAC), etc.)

Export Control Reform Shouldn't Result in More Stringent Restraints on Items

AAEI and other organizations stated that they generally supported the Administration's export control reform program of eliminating obstacles to exporting U.S. goods and technology while ensuring that export controls remain only on items critical to national security and foreign policy.

However, the SIA stated that a more effective export control system would address only those end items that have the potential to provide significant military advantage or can be a strategic differentiator. According to SIA, exports should be restricted only when there is a compelling national security requirement to do so, and that relatively benign items, and items generally available overseas, should never be controlled.

SIA additionally commented that export control reform should not result in more stringent restraints on items than those currently in place. For all but the most dangerous munitions, SIA thought there should be no export controls in the face of foreign availability or capability.

Global Availability Should Not be the Sole Criteria for Tiering Items

Regarding the possible placement of CCL listings in a new tiered structure, the MTAC industry working group agreed that global availability and military criticality were valid criteria for the placement of the CCL items onto the new tiers and their respective licensing policy. However, other associations that commented expressed concerns that the application of these criteria to actual items would be too stringent, and the scope too limited. For instance, the SIA2 argued that according to the proposed criteria¹ for the inclusion of items in Tiers 1, 2, and 3, the international availability of an item should not be the sole governing criteria for determining the appropriate tier for an item.

Wide Global Availability May be Sufficient for Items to be Place in Lower Tier

The SIA2 additionally stated that an item’s near-exclusive availability from the U.S. is not sufficient cause for placement of an item in a higher tier of control. The association reasoned, however, that if an item is available from international sources, stricter unilateral U.S. controls would likely advantage foreign suppliers without affecting the proliferation of a technology to new destinations. It then suggests that for some items, widespread international availability may be sufficient justification for placement in a lower tier of control.

Use of "Specifically Designed," "Not Elsewhere Specified" Should be Eliminated

The AAEI suggested that eliminating references to "n.e.s." (not elsewhere specified) and general catch-all categories would be a favorable step for BIS to take as such references create extremely broad categories without any specifications or other identifying characteristics. The association stated that a truly "positive" list would list only those types of items in specific categories that are subject to export controls. Instead, the "n.e.s." provisions in the CCL should be replaced by specific parameters and specifications.

Other associations stated that BIS interpretations of the term "specifically designed" and "specially designed" have resulted in unclear definitions. The IEEE argued that because the term is ill-defined and difficult to apply, it should be eliminated.

Items and Their Associated Technical Info Should Have the Same Controls

The SIA2 notes that the different definitions of “technology” and “technical data” on the CCL and U.S. Munitions List (USML) increase the burden of compliance with requirements, and urge that, during the process of creating the single list, specific attention be paid to developing common definitions for these terms.

In general, SIA2 believes that, for licensing purposes, technical information associated with the items on the CCL should be treated in the same forum as the item. If a specific item is moved from the USML to the CCL, or from one Export Control Classification Number (ECCN) to another within the CCL, or from one tier to another on the Single List, its associated technical data, including operating procedures, be moved to the new ECCN or tier along with the item in question.

¹The ANPR tiering criteria is listed as follows:

Tier 1: (a) weapons of mass destruction (WMD); (b) WMD-capable unmanned delivery systems; (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 critical military or intelligence advantage to the U.S.;

Tier 2: items that are almost exclusively available from regime partners or adherents and provide a substantial6 military or intelligence 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 that are more broadly available and provide a significant military or intelligence advantage to the U.S. or make a significant7 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.