Export Control Reform Marches On – Munitions List Revision Underway

Creating a "positive" list of what items are controlled under the International Traffic in Arms Regulations (ITAR) is a key element of the Administration's Export Control Reform initiative. Such a positive list would ultimately be divided into three tiers with different levels of control based on different destinations, end uses and end users. In two important notices last week, the Department of State's Directorate of Defense Trade Controls (DDTC) outlined the methodology developed for revision of the U.S. Munitions List (USML), recognized the value of comments from affected industry sectors, and invited comments by February 8, 2011.

Although the work on creating a positive list has been underway for some time, DDTC for the first time provides a draft of one USML category in a proposed rule amending Category VII. Separately, in an advance notice of proposed rulemaking, DDTC sets out guidelines for the revision process and seeks public input on those guidelines and how best to convert the USML to a positive list.

The guidelines include criteria that will address three parts of the revision process:

1. Conversion to a positive list that describes controlled items using objective criteria;
2. Identification of defense articles by tier; and
3. Identification of defense articles falling outside any of the tiers.

The USML revision process is part of the larger export control reform process, alongside revisions to the Commerce Control List (CCL) under the Export Administration Regulations (EAR), that would: (1) tier both lists; (2) create a "bright line" between the two lists to reduce uncertainty as to where a particular item is controlled; and (3) align both lists so they can eventually be combined into a single control list.

A positive USML, tiered controls, a bright jurisdictional line, and removal of some items now on the USML are all goals worthy of what has been and will continue to be very hard work.