USML to CCL Moves Should Wait Until Wassenaar Negotiations, says Former Committee Member
Wassenaar Arrangement negotiations need to precede implementation of any moves from the U.S. Munitions List to the Commerce Control List, said export control consultant Bill Root, former member of the Bureau of Industry and Security's Rules and Procedures Technical Advisory (RPTAC) and subsequently frequent participant at committee meetings, in public comments at the June 12 RPTAC meeting. Changes to the U.S. export control regime from the USML-CCL move would inevitably be substantive, Root said, and adopting such substantive unilateral U.S. controls would be risky because it would place U.S. exporters at a competitive disadvantage, lessening incentives for Wassenaar members that compete with U.S. exports to later adopt the same controls multilaterally.
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Root also said there are other reasons to negotiate before finalization of the moves. Requests for comments by the State Department on USML-CCL transfers have revealed that State has left out provisions of the Wassenaar arrangement, Root said, and these comments have found “scores of instances” where Wassenaar is more restrictive than the proposed rules because Wassenaar has used very broad language. Adoption of the Wassenaar controls as they currently stand would run counter to Export Control Reform’s overarching goal of a “bright line” between USML and CCL items, he said, instead introducing doubtful jurisdiction between State and BIS into the controls.
Specially Designed Should be Removed from Export Controls
Root identified the “specially designed” definition as another problem in his comments. Root said State’s definition of the equivalent of specially designed is that “it means nothing at all.” This came out dramatically in the Transportation and Related Equipment Technical Advisory Committee discussion of gas turbine engines, he said, where it was discussed that specifically designed or modified gas turbine engines for military use in the USML “meant all engines used for the military,” even though ECCN 9A001, which is the CCL equivalent, “seems to control military gas turbine engines in that it excludes anything that is certified for civil use.”
“The solution to the perplexing problem of how to define “specially designed” is to delete those words, and many other similar words, wherever they appear in U.S. and multilateral control lists,” Root said in his written comments, “…because there is no definition of specially designed which can bridge current interpretations.” One possibility, said Root, “would be to use ‘required,’ or some other similar limitations, to control individual components and to find another way to control all components being transferred from the USML…” to the CCL.