Response Mixed to Positive List for Components, Elimination of 'Specially Designed'
Responses were mixed to the Bureau of Industry and Security’s request for comments on the feasibility of positively identifying parts and components on the Commerce Control List instead of using a catch-all definition like “specially designed.” While some comments were in favor of eliminating or replacing “specially designed” language, GE and Boeing expressed concern over the difficulties of creating such a list and the possibility of a list that would be even more difficult to use because of its length. “While enumeration may be feasible, Boeing believes it would constitute a significant effort, for which the benefits may be minimal,” it said.
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In a June 19 Federal Register notice issued alongside the revised proposed definitions of “specially designed,” BIS requested comments on whether it would be possible to positively identify “specially designed” parts and components on the CCL in order to reduce use of the term on the CCL. BIS said that, if it decided the effort would be feasible, it would submit its findings to multilateral export control regimes. (See ITT’s Online Archives 12061802 for summary.)
The Alliance for Network Security, which represents companies including Cisco, Google, Hewlett-Packard, Intel and Microsoft, said it supports the adoption of a “specially designed” definition for items moving from the U.S. Munitions List to the CCL as part of Export Control Reform, but prefers eliminating or replacing the term where it currently appears on the CCL. ANS said the proposed definition of “specially designed” is complicated and imprecise, and has not been adopted by other Wassenaar Arrangement members. Instead, ANS proposed to replace “specially designed” in Category 5 Part 2 of the CCL (Information Security) with, variously, “providing the means or functions necessarily” or “providing the means or techniques necessary.”
Commenter Bill Root, export controls consultant and former member of the BIS Regulations and Procedures Technical Advisory Committee, favored a similar approach. Root said that “required” is the only defined term referring to controlled performance levels, characteristics or functions on the CCL, and so supported replacing “specially designed” with “required.”
Boeing and GE cautioned against any such effort, however. Generally, industry prefers the creation of unambiguous positive lists of controlled items, said Boeing, but it sees several challenges in achieving the objective of a completely positive list. “There may be industries where an enumeration effort would be straightforward and result in improvements that clarify control requirements on specific ‘specially-designed’ components,” Boeing said. “From the perspective of an aerospace company, however, we believe that implementation of the currently-proposed ‘specially designed’ definition will contribute to improving understanding of the control requirements represented by this catch-all term in our industry.”
Specifically, Boeing said it is concerned that the effort would create “a list so long as to be unwieldy and difficult to use,” and would potentially require companies to divulge proprietary information to positively describe components. Boeing also identified other difficulties, including differing technical viewpoints on what would belong on a positive list, challenges in defining technical parameters or performance thresholds that would distinguish components for control, and the heavy burden of constantly reviewing and updating such a list.
GE said that even if a positive list is developed, some level of catch-all provision would be inevitable because of government concerns on whether the list is complete. GE also said the continuous advancement of technology would thwart efforts at a precise, exhaustive list.
GE urged BIS to continue to focus on achieving a general definition of “specially designed,” and said that it may be appropriate to revisit the idea of a positive list once BIS has experience working with such a definition. Any effort to create a positive list should “be postponed until all interested parties have had an opportunity to see the outcome of this effort,” GE said.