Swapping Control Lists Marks the First Steps in US Export Control Reform


The U.S. administration made the first steps in implementing export control reforms, by rebuilding the export control lists, moving less-sensitive items controlled by the State Department under the Department of Commerce, more efficiently equipped to maintain such activities. The U.S. administration notified Congress of the first in a series of changes to the U.S. Munitions List (USML) in Category 8, which covers aircraft, and Category 19, which covers engines. “The items being moved under the jurisdiction of the Commerce Department are not being decontrolled,” a senior administration official stressed “They are simply moving to a different set of export control rules.”

Traditionally, the Commerce Control List, (CCL) controls dual-use items, such as commercial products with possible military applications, and some less-sensitive military items. The USML controlled by the State Department, lists items, services and related technology that the federal government designates defense- and space-related.

During a March 8 conference call with reporters, senior administration officials speaking on background described progress made in implementing reforms for a complex export control system that’s spread across seven main departments and whose items and technologies are accounted for on two control lists that have different structures and purposes.

The first step in moving forward with the initiative was an executive order that Obama signed March 8 to update delegated presidential authorities over the administration of some export and import controls that have not been comprehensively updated in 36 years. This action makes changes needed to implement the new export control system, a senior administration official said, replacing one issued in 1977 by President Gerald R. Ford.

Changes include:

  • Consolidating all brokering responsibilities with the State Department. A broker is a person who acts as an agent for others in negotiating contracts, purchases, sales or transfers of defense articles or services.
  • Establishing a notification process at the Commerce Department to notify Congress about approved export licenses for a subset of items that are moved or that may move from the State USML to the Commerce CCL.
  • Making other administrative updates, mainly delegating to the attorney general rather than the Treasury secretary functions previously assigned by Executive Order 11958, reflecting the 2003 move of the Bureau of Alcohol, Tobacco, Firearms and Explosives to the Justice Department from the Treasury Department.
  • Eliminating possible doubling licensing requirements because of duplications on the State Department’s USML and the Commerce Department’s CCL.

“Today, State licenses entire systems, including all the spare parts and components that go with it,” one of the administration officials said. “But if we move those spare parts and components to the Commerce list, [a U.S. ally or a company] might end up having to get a license both from State and Commerce.” This update to the executive order, he added, “provides a limited delegation so that between the State and Commerce agreement, State will still be able to license an entire package that may include some items that are on the Commerce list.”

The second step accomplished last week in the export control reform initiative involves the cornerstone of Obama’s reform effort — rebuilding the two main export control lists. These are the State Department’s USML and Commerce’s CCL.

Specifically, on March 7, the administration notified Congress of the first in a series of changes to the USML in Category 8, which covers aircraft, and Category 19, which covers engines.

“This is the first pair in a series of final rules that put in place the rebuilt export control list that represents a significant step in our reform efforts,” another senior administration official said. “These notifications and a subsequent publication of final rules will occur on a rolling basis and will represent the final phase of our efforts to deploy the rebuilt USML.”

This is the beginning of putting in place the nation’s new export control system that basically implements what then-Defense Secretary Robert M. Gates outlined when he announced the results of the president’s national security review in April 2010, the official added.

The problem is that by law, everything on the USML is controlled equally, whether it’s an F-18 jet fighter, or a bolt that has been modified for use on that F-18, according to a White House fact sheet. And each item — fighter or bolt — requires an individual license.

This system creates obstacles and delays in providing equipment to U.S. allies and partners for interoperability with U.S. forces and harms the health and competitiveness of the U.S. industrial base, the fact sheet explained.

“We all want to stress that the items being moved from the jurisdiction of the State Department to the jurisdiction of the Commerce Department are not being decontrolled,” a senior administration official said in the conference call. “They are simply moving to a different set of export control rules.”

Rebuilding the export control lists and moving less-sensitive items from the State to the Commerce list will provide the flexibility to more efficiently equip and maintain our partner’s capabilities, the fact sheet said, while allowing officials to focus on preventing potential adversaries from acquiring military items that they could use against the United States.

Relevant committees include the House Foreign Affairs Committee, the Senate Foreign Relations Committee and the Senate Banking Committee, whose members have 30 days to pass a committee rejection or allow the proposal to go through.

“The tremendous amount of time and effort we’ve put into consulting with Congress makes us very optimistic that this formal notification period will be a very collegial and straightforward process,” one of the senior administration officials said. “There is strong and clear bipartisan support for export control reform, and there is certainly eagerness in industry.”

The entire purpose of arms control reform is to better protect national security, another administration official noted. “But in today’s world a lot of technologies that were protected during the Cold War era are now common in commercial use,” he added. “Better protecting national security means focusing on the most sensitive technologies while allowing the types of technologies that are easily obtained to move to the Commerce Department list, where there are more nuanced protections.”