The U.S. Export Control System and the
President’s Reform Initiative
Ian F. Fergusson
Specialist in International Trade and Finance
Paul K. Kerr
Analyst in Nonproliferation
April 19, 2013
Congressional Research Service
7-5700
www.crs.gov
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The U.S. Export Control System and the President’s Reform Initiative
Summary
The 113th Congress may consider reforms of the U.S. export control system. The balance between
national security and export competitiveness has made the subject of export controls controversial
for decades. Through the Export Administration Act (EAA), the Arms Export Control Act
(AECA), the International Emergency Economic Powers Act (IEEPA), and other authorities, the
United States restricts the export of defense items or munitions; so-called “dual-use” goods and
technology—items with both civilian and military applications; certain nuclear materials and
technology; and items that would assist in the proliferation of nuclear, chemical, and biological
weapons or the missile technology used to deliver them. U.S. export controls are also used to
restrict exports to certain countries on which the United States imposes economic sanctions. At
present, the EAA has expired and dual-use controls are maintained under IEEPA authorities.
The U.S. export control system is diffused among several different licensing and enforcement
agencies. Exports of dual-use goods and technologies are licensed by the Department of
Commerce, munitions are licensed by the Department of State, and restrictions on exports based
on U.S. sanctions are administered by the U.S. Treasury. Enforcement of export controls is
conducted by these agencies as well as by units of the Department of Homeland Security (DHS)
and the Department of Justice (DOJ).
Aspects of the U.S. export control system have long been criticized by exporters, non-
proliferation advocates, and other stakeholders as being too rigorous, insufficiently rigorous,
cumbersome, obsolete, inefficient, or any combination of these descriptions. In August 2009, the
Obama Administration launched a comprehensive review of the U.S. export control system. In
April 2010, Defense Secretary Robert M. Gates proposed an outline of a new system based on
four singularities:
• a single export control licensing agency for both dual-use and munitions exports,
• a unified control list,
• a single enforcement coordination agency, and
• a single integrated information technology (IT) system.
The rationalization of the two control lists has been the Administration’s focus to date. Interim
steps have also been taken to create a single IT system and to establish an export enforcement
coordination center. No specific proposals have been made concerning the single licensing
agency.
In contrast to the Administration’s approach, legislation was introduced to reauthorize or rewrite
the EAA in the 112th Congress. The Export Administration Renewal Act of 2011 (H.R. 2122, Ros-
Lehtinen) would have renewed the currently expired Export Administration Act through 2015,
updated its penalty and enforcement provisions, and provided stricter foreign policy controls on
countries designated as state sponsors of terrorism. A separate title would have amended the Arms
Export Control Act to permit generic parts and components for defense articles to be controlled
differently than sensitive defense articles on the U.S. Munitions List. By contrast, the Technology
Security Act of 2011 (H.R. 2004, Berman) would have rewritten the dual-use export control
statute by giving the President the authority to control exports for national security and foreign
policy reasons and to create the mechanisms for doing so. Each bill would, if passed, have
implications for the President’s reform efforts. In addition, the National Defense Authorization
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The U.S. Export Control System and the President’s Reform Initiative
Act for FY2013 (P.L. 112-239), signed by the President on January 2, 2013, contains a provision
to repeal 1998 legislation that placed commercial communications satellites (CCS) under
munitions export licensing jurisdiction and to permit the President to determine the export control
jurisdiction of CCS.
In considering the future of the U.S. export control system, Congress may weigh the merits of a
unified export control system—the end result of the President’s proposal—or the continuation of
the present bifurcated system by reauthorizing the present EAA or writing new legislation. In
doing so, Congress may debate the record of the present dual-use system maintained by
emergency authority, the aims and effectiveness of the present non-proliferation control regimes,
the maintenance of the defense industrial base, and the delicate balance between the maintenance
of economic competitiveness and the preservation of national security.
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Contents
Overview of the U.S. Export Control System.................................................................................. 1
The Dual-Use System ................................................................................................................ 2
The Export Administration Act (EAA) ............................................................................... 2
Administration ..................................................................................................................... 3
Implementing Regulations .................................................................................................. 3
Licensing Policy .................................................................................................................. 4
Enforcement and Penalties .................................................................................................. 4
Military Export Controls ........................................................................................................... 5
Arms Export Control Act (AECA) ...................................................................................... 5
Licensing Policy .................................................................................................................. 6
Administration ..................................................................................................................... 6
Enforcement and Penalties .................................................................................................. 7
Nuclear Controls ........................................................................................................................ 7
Defense Technology Security Administration (DTSA) ............................................................. 7
Enforcement of U.S. Export Controls ....................................................................................... 7
Multilateral Control Regimes .................................................................................................... 9
The President’s Export Control Initiative ...................................................................................... 10
The Four Singularities ............................................................................................................. 11
A Single Licensing Agency ............................................................................................... 11
The Single Control List ..................................................................................................... 14
The Single Enforcement Structure .................................................................................... 19
A Single Information Technology System ........................................................................ 20
Encryption ......................................................................................................................... 21
Congressional Activity ................................................................................................................... 22
Satellites .................................................................................................................................. 22
Export Control Reform Legislation ......................................................................................... 23
Export Administration Renewal Act of 2011 .................................................................... 23
Technology Security Act of 2012 ...................................................................................... 24
Figures
Figure B-1. Dual-Use Export Licensing Process ........................................................................... 28
Tables
Table 1. President’s Export Control Reform Initiative .................................................................. 12
Table A-1. Export Control Characteristics ..................................................................................... 26
Table D-1. Proposed Migration Table ............................................................................................ 31
Appendixes
Appendix A. Basic Export Control Characteristics ....................................................................... 26
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Appendix B. Dual-Use Export Licensing Process ......................................................................... 28
Appendix C. List of Acronyms ...................................................................................................... 29
Appendix D. Proposed Migration Of Certain USML Items to the CCL........................................ 31
Contacts
Author Contact Information........................................................................................................... 32
Acknowledgments ......................................................................................................................... 32
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Overview of the U.S. Export Control System
The United States restricts the export of defense items or munitions; so-called “dual-use” goods
and technology; certain nuclear materials and technology; and items that would assist in the
development of nuclear, chemical, and biological weapons or the missile technology used to
deliver them. A defense item is defined by regulation as one that is “specifically designed,
developed, or configured, adapted, or modified for a military application,” has neither
“predominant civilian application” nor “performance equivalent to an item used for civilian
application ... and has significant military or intelligence application such that control is
necessary.”1 Dual-use goods are commodities, software, or technologies that have both civilian
and military applications.
U.S. export controls are also used to restrict exports to certain countries on which the United
States imposes economic sanctions, such as Cuba, Iran, and Syria. Through the Export
Administration Act (EAA), the Arms Export Control Act (AECA), the International Emergency
Economic Powers Act (IEEPA), and other authority, Congress has delegated to the executive
branch its express constitutional authority to regulate foreign commerce by controlling exports. In
addition, the United States controls certain exports in adherence to several multilateral non-
proliferation control regimes.
Various aspects of the U.S. export control system have long been criticized by exporters, non-
proliferation advocates, and other stakeholders as being too rigorous, insufficiently rigorous,
cumbersome, obsolete, inefficient, or any combination of these descriptions. Some contend that
U.S. export controls overly restrict U.S. exports and make firms less competitive. Others argue
that U.S. defense and foreign policy considerations should trump commercial concerns. In
January 2007, the Government Accountability Office (GAO) designated government programs
designed to protect critical technologies, including the U.S. export control system, as a “high-
risk” area “that warrants a strategic reexamination of existing programs to identify needed
changes.” GAO’s report cited poor coordination among export control agencies, disagreements
over commodity jurisdiction between the Departments of State and Commerce, unnecessary
delays and inefficiencies in the license application process, and a lack of systematic evaluative
mechanisms to determine the effectiveness of export controls.2
On August 13, 2009, President Obama announced the launch of a comprehensive review of the
U.S. export control system, and this was followed in April 2010 with a speech by Secretary of
Defense Robert M. Gates announcing key elements of the Administration’s agenda for reform,
with additional elaborations in subsequent months. Secretary Gates proposed a four-pronged
approach that would establish:
• a single export control licensing agency for both dual-use and munitions exports;
• a unified control list;
1 International Traffic in Arms Regulations, 22 C.F.R. 120.3.
2 U.S. Government Accountability Office (GAO), High-Risk Series: An Update, GAO-07-310, January 2010. While
GAO noted some improvements, the export control system was still considered a “high-risk” area in 2011; see GAO,
High-Risk Series: An Update, GAO-11-278, February 2011.
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• a single enforcement coordination agency; and
• a single integrated information technology system, which would include a single
database of sanctioned and denied parties.
The House Committee on Foreign Affairs held its first hearing on the reform proposals on May
12, 2011. During the hearing, Chairwoman Ileana Ros-Lehtinen criticized the scope and pace of
the reforms, reportedly asserting that “a compelling case has not been made for the wholesale
restructuring of the current system,” and that the reforms are “straining the system and its
personnel to its breaking point.”3 The committee held a second hearing on February 7, 2012, to
solicit private sector input.4
On May 26, 2011, Ranking Member Howard Berman introduced the Technology Security Act
(H.R. 2004), a comprehensive rewrite of U.S. dual-use controls that would confer upon the
President “broad and flexible authority to deploy controls to counteract current and future
national security threats.”5 On June 3, Chairwoman Ros-Lehtinen introduced the Export
Administration Renewal Act of 2011 (H.R. 2122), which would renew the currently expired
Export Administration Act through 2015, amend certain other provisions of the act, and amend
the Arms Export Control Act to permit differential control over parts and components on the U.S.
Munitions List.
In its administration of this authority, the executive branch has created a diffuse system by which
exports are controlled by differing agencies under different regulations. This section describes the
characteristics of the dual-use, munitions, and nuclear controls. The information contained in this
section also appears in chart form in Appendix A.
The Dual-Use System
The Export Administration Act (EAA)
The EAA of 1979 (P.L. 96-72) is the underlying statutory authority for dual-use export controls.
The EAA, which is currently expired, periodically has been reauthorized for short periods of
time. The last incremental extension expired in August 2001. At other times, and currently, the
export licensing system created under the authority of the EAA has been continued by a
presidential declaration of a national emergency and the invocation of the International
Emergency Economic Powers Act (IEEPA; P.L. 95-223).6 The EAA confers upon the President
the power to control exports for national security, foreign policy, or short-supply purposes. It also
authorizes the President to establish export licensing mechanisms for items detailed on the
Commerce Control List (CCL) (see below), and it provides guidance and places certain limits on
that authority.7
3 “Ros-Lehtinen Skeptical of Scope, Pace of Export Control Reform Initiative,” Inside U.S. Trade, May 13, 2011.
4 Webcast available at http://foreignaffairs.house.gov/hearing_notice.asp?id=1399.
5 “Background and Key Provisions of the Technology Security Act,” http://democrats.foreignaffairs.house.gov/
press_display.asp?id=844.
6 This national emergency was most recently continued until August 17, 2013, by President Obama on August 15,
2012, 77 Federal Register 49699, August 16, 2012.
7 Under IEEPA authority, the President may “investigate, block during the pendency of an investigation, regulate,
direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal,
(continued...)
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Several attempts to rewrite or reauthorize the EAA have occurred over the years. The last
comprehensive effort took place during the 107th Congress. The Senate adopted legislation (S.
149) in September 2001, and a House version (H.R. 2581) was developed by the then-House
International Relations Committee and the House Armed Services Committee. The full House did
not act on this legislation.
The EAA, which was written and amended during the Cold War, was based on strategic
relationships, perceived threats to U.S. national security, international business practices, and
existing commercial technologies, many of which have changed dramatically in the past 25 years.
Some Members of Congress and most U.S. business representatives see a need to liberalize U.S.
export regulations to allow American companies to engage more fully in international
competition for sales of high-technology goods, some of which may be commercially available
from foreign competitors. Other Members and some national security analysts contend that
liberalization of export controls over the past decade has contributed to foreign threats to U.S.
national security, that some controls should be tightened, and that Congress should weigh further
liberalization carefully.
Administration
The Bureau of Industry and Security (BIS) in the Department of Commerce administers the dual-
use export control system. The export licensing and enforcement functions that now form the
agency mission of BIS were detached from the International Trade Administration (ITA) in 1985
in order to separate it from the export promotion functions of that agency within the Department
of Commerce. In FY2012, BIS processed 23,229 export license applications worth approximately
$204.1 billion—$113.6 billion of which were licenses for crude oil exports. It denied less than
1% of license applications, although some licenses were approved with conditions. BIS was
appropriated $99.7 million, including rescissions, by the Consolidated Appropriations Act (P.L.
113-6) in FY2013 with approximately 390 full-time employee positions. For FY2013, the
President’s budget requests $112.1 million. In addition to its export licensing and enforcement
functions, BIS also enforces U.S. anti-boycott regulations concerning the Arab League boycott
against Israel.
Implementing Regulations
The EAA is implemented by the Export Administration Regulations (EAR; 15 C.F.R. 730 et seq).
As noted above, the EAR are continued under IEEPA’s authority in times when the EAA is
expired. The EAR set forth licensing policy for goods and destinations, the applications process
used by exporters, and the CCL. The CCL is the list of specific goods, technologies, and software
that are controlled by the EAR. The CCL is composed of 10 categories of items:
• nuclear materials, facilities, and equipment;
• materials, organisms, microorganisms, and toxins;
• materials processing;
(...continued)
transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to,
or transactions involving, any property in which any foreign country or a national thereof has any interest by any
person, or with respect to any property, subject to the jurisdiction of the United States.” P.L. 95-223, §203(a)(1)(B).
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• electronics;
• computers;
• telecommunications and information security;
• lasers and sensors;
• navigation and avionics;
• marine; and
• propulsion systems, space vehicles, and related equipment.
Each of these categories is further divided into functional groups: equipment, assemblies, and
components; test, inspection, and production equipment; materials; software; and technology.
Each controlled item has an export control classification number (ECCN) based on the above
categories and functional groups. Each ECCN is accompanied by a description of the item and the
reason for control. In addition to discrete items on the CCL, nearly all U.S.-origin commodities
are “subject to the EAR.” This means that any product “subject to the EAR” may be restricted to
a destination based on the end-use or end-user of the product. For example, a commodity that is
not on the CCL may be denied if the good is destined for a military end-use or an entity known to
be engaged in weapons proliferation.
Licensing Policy
The EAR set out the licensing policy for dual-use commodities. Items are controlled for reasons
of national security, foreign policy, or short supply. National security controls are based on a
common multilateral control list; however, the designation of countries to which those controls
are applied is based on U.S. policy. Foreign policy controls may be unilateral or multilateral in
nature. Items are controlled unilaterally for anti-terrorism, regional stability, or crime control
purposes. Anti-terrorism controls proscribe nearly all exports to the four countries designated as
state sponsors of terrorism by the Secretary of State—Cuba, Iran, Sudan, and Syria—and North
Korea. Foreign policy-based controls are also based on adherence to multilateral non-proliferation
control regimes, such as the Nuclear Suppliers’ Group, the Australia Group (chemical and
biological precursors), and the Missile Technology Control Regime (MTCR).
The EAR set out timelines for the consideration of dual-use licenses and the process for resolving
interagency disputes. Within nine days of receipt, Commerce must refer the license to other
agencies (State, DOD, or the Nuclear Regulatory Commission [NRC], as appropriate), grant the
license, deny it, seek additional information, or return it. If the license is referred to other
agencies, the agency to which it is referred must recommend that the application be approved or
denied within 30 days. The EAR provide a dispute resolution process for a dissenting agency to
appeal an adverse decision. The interagency dispute resolution process is designed to be
completed within 90 days. This process is depicted graphically in Appendix B.
Enforcement and Penalties
Because of the expiration of the EAA, current penalties for export control violations are based on
those contained in IEEPA (50 U.S.C. 1701 et seq). For criminal penalties, the IEEPA sanctions
individuals up to $1 million or up to 20 years imprisonment, or both, per violation (50 U.S.C.
1705(b)). Civil penalties under IEEPA are set at $250,000 per violation.
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Enforcement is carried out by the Office of Export Enforcement (OEE) at BIS. OEE has a staff of
approximately 170 in Washington, DC, and eight domestic field offices. OEE is authorized to
carry out investigations domestically and works with DHS to conduct investigations overseas.
OEE also conducts pre-license and post-shipment verification along with in-country U.S.
embassy officials overseas. The Comprehensive Iran Sanctions, Accountability, and Divestment
Act of 2010 (P.L. 111-195) authorized certain enforcement activities to be undertaken by the
Department of Commerce pursuant to the EAA.
Military Export Controls
Arms Export Control Act (AECA)
The AECA of 1976 (P.L. 94-329) provides the President with the statutory authority for the
control of defense articles and services.8 It sets out foreign and national policy objectives for
international defense cooperation and military export controls. Section 3(a) of the AECA sets
forth the general criteria for countries or international organizations to be eligible to receive U.S.
defense articles and defense services provided under the act. It also sets express conditions on the
uses to which these defense items may be put. Section 4 of the AECA states that U.S. defense
articles and defense services shall be sold to friendly countries “solely” for use in “internal
security,” for use in “legitimate self-defense,” to enable the recipient to participate in “regional or
collective arrangements or measures consistent with the Charter of the United Nations,” to enable
the recipient to participate in “collective measures requested by the United Nations for the
purpose of maintaining or restoring international peace and security,” and to enable the foreign
military forces “in less developed countries to construct public works and to engage in other
activities helpful to the economic and social development of such friendly countries.” The AECA
also contains the statutory authority for the Foreign Military Sales program, under which the U.S.
government sells U.S. defense equipment, services, and training on a government-to-government
basis.
Congressional Requirements
A prominent feature of the AECA is the requirement for congressional consideration of foreign
arms sales proposed by the President. This procedure includes consideration of proposals to sell
major defense equipment and services, or to retransfer such military items to other nations. The
procedure is triggered by a formal report to Congress under Section 36 of the AECA. In general,
the executive branch, after complying with the terms of the applicable section of U.S. law
(usually those contained in the AECA), is free to proceed with an arms sales proposal unless
Congress passes legislation prohibiting or modifying the proposed sale.
Under Section 36(b) of the ACEA, Congress must be formally notified 30 calendar days before
the Administration can take the final steps to conclude a government-to-government foreign
military sale or issue an export license for commercial sales of major defense equipment valued at
$14 million or more, defense articles or services valued at $50 million or more, or design and
construction services valued at $200 million or more. In the case of such sales to NATO member
states Japan, Australia, or New Zealand, Congress must be formally notified 15 calendar days
8 This authority was previously vested with Secretary of State.
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before the Administration can proceed with the sale. However, the prior notice thresholds are
higher for Japan, Australia, and New Zealand. These higher thresholds are $25 million for the
sale, enhancement, or upgrading of major defense equipment; $100 million for the sale,
enhancement, or upgrading of defense articles and defense services; and $300 million for the sale,
enhancement, or upgrading of design and construction services, so long as such sales to these
countries do not include or involve sales to a country outside of this group of nations.
Licensing Policy
The International Traffic in Arms Regulations (ITAR) set out licensing policy for exports (and
some temporary imports) of U.S. Munitions List (USML) items. A license is required for the
export of nearly all items on the USML. Canada has a limited exemption, as it is considered part
of the U.S. defense industrial base. In addition, the United States has recently signed treaties with
the United Kingdom and Australia to exempt certain defense articles from licensing obligations to
approved end-users in those countries. These treaties were ratified by the Senate in 2010. Unlike
some Commerce Department dual-use controls, licensing requirements are based on the nature of
the article and not the end-use or end-user of the item. The United States prohibits munitions
exports to countries either unilaterally or based on adherence to United Nations (U.N.) arms
embargoes. In addition, any firm engaged in manufacturing, exporting, or brokering any item on
the USML must register with the Directorate of Defense Trade Controls (DDTC) at the State
Department and pay a yearly fee, which is currently on a sliding scale between $2,250 and
$2,750, whether or not it seeks to export during the year.
Administration
Exports of defense goods and services are administered by the Directorate of Defense Trade
Controls (DDTC) at the Department of State. DDTC is a component of the Bureau of Political-
Military Affairs and consists of four offices: Management, Policy, Licensing, and Compliance. In
FY2012, DDTC is being funded at a level of $11.6 million. It has a staff of 81 and it completed
action on 82,095 export license applications in FY2011. DDTC’s FY2013 budget request is for
$9.4 million, a reduction primarily due to the proposed use of fees to fund compliance personnel.
Critics of the defense trade system have long decried the delays and backlogs in processing
license applications at DDTC. A National Security Presidential Directive (NSPD-56), signed by
President Bush on January 22, 2008, directed that the review and adjudication of defense trade
licenses submitted under ITAR are to be completed within 60 days, except where certain national
security exemptions apply. Previously, except for the congressional notification procedures
discussed above, DDTC had no defined timeline for the application process. The average license
processing time was 18 days in FY2011. As a result of National Security Council guidelines
implemented in June 2009, processing times for resolving commodity jurisdiction cases—another
area of concern for GAO in its “high-risk” report—had been reduced to 36 days in 2010 from 112
in 2002.9
9 U.S. Government Accountability Office (GAO), High-Risk Series: An Update, GAO-11-278, February 2011.
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Enforcement and Penalties
The AECA provides for criminal penalties of up to $1 million or 10 years of imprisonment, or
both, for each violation. The AECA also authorizes civil penalties of up to $500,000 and
debarment from future exports. DDTC has a small enforcement staff (19 in the Office of Defense
Trade Compliance) and works with the Defense Security Service and the Customs and Border
Protection (CBP) and Immigration and Customs Enforcement (ICE) units at the Department of
Homeland Security (DHS). DDTC assists DHS and the Department of Justice (DOJ) in pursuing
criminal investigations and prosecutions. DDTC also coordinates the Blue Lantern end-use
monitoring program, in which in-country U.S. embassy officials conduct pre-license checks and
post-shipment verifications.
Nuclear Controls
A subset of the above-mentioned dual-use and military controls are controls on nuclear items and
technology. Controls on nuclear goods and technology are derived from the Atomic Energy Act of
1954, as amended, and the Nuclear Non-proliferation Act of 1978, as well as from the EAA and
the AECA. Controls on nuclear exports are divided among several agencies, based on the product
or service being exported. The Nuclear Regulatory Commission (NRC) regulates exports of
nuclear facilities and material. The NRC licensing policy and control list are located at 10 C.F.R.
110. BIS licenses “outside the core” civilian power plant equipment and maintains the Nuclear
Referral List as part of the CCL. The Department of Energy licenses the export of nuclear
technology. DDTC exercises licensing authority over nuclear items in defense articles under the
ITAR.
Defense Technology Security Administration (DTSA)
DTSA is located in the Department of Defense, Office of the Under Secretary of Defense for
Policy under the Assistant Secretary of Defense for Global Security Affairs. DTSA coordinates
the technical and national security review of direct commercial sales export licenses and
commodity jurisdiction requests received from the Departments of Commerce and State. It
develops the recommendation of DOD on these referred export licenses or commodity
jurisdictions based on input provided by the various DOD departments and agencies and
represents DOD in the interagency dispute resolution process. Not all licenses from DDTC or BIS
are referred to DTSA; memorandums of understanding govern the types of licenses referred from
each agency. DTSA coordinates the DOD position with regard to proposed changes to the ITAR
and the EAR. It also represents DOD in the interagency process responsible for compliance with
multinational export control regimes.
Enforcement of U.S. Export Controls
Enforcement of the U.S. export control system is undertaken by the agencies responsible for
export licensing, the Department of Homeland Security (DHS), the Department of Justice (DOJ)
(National Security Division and the Federal Bureau of Investigation [FBI]), and the Defense
Criminal Investigative Service. Their activities can be summarized as follows:
• Office of Export Enforcement (OEE) at the Bureau of Industry and Security
(BIS). OEE investigates violations of the dual-use export control regime. OEE is
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authorized to conduct domestic investigations and works with the Immigration
and Customs Enforcement Agency (ICE) of DHS on investigations of export
control violations overseas. OEE refers civil violations to the Office of Chief
Counsel at BIS and criminal violations to DOJ.
• Office of Defense Trade Compliance (ODTC) at the Directorate of Defense
Trade Controls (DDTC). ODTC primarily administers internal civil
enforcement actions, including charging letters and consent agreements, policies
of denial, debarments, transaction exceptions, and reinstatements. ODTC
provides agency support to investigations and criminal enforcement actions
primarily conducted by ICE and the FBI.
• Office of Enforcement, Nuclear Regulatory Commission (NRC). Investigates
export control violations of nuclear facilities and material licensed by the NRC’s
Office of International Programs. The Office of Enforcement refers criminal
violations to DOJ.
• Immigration and Customs Enforcement (ICE) of DHS. As with its
predecessor at the U.S. Customs Service, ICE has been the lead agency for export
enforcement activities. The Counter-Proliferation Investigations (CPI) Unit
investigates violations of dual-use and munitions export controls, exports to
sanctioned countries, and violations of economic embargoes. ICE supplements
and provides enforcement capacity to the export licensing agencies (BIS and
DDTC) and undertakes investigations based on its own and other agency
intelligence. In addition, export controls are enforced at the port of departure by
DHS Customs and Border Protection.
• National Security Division of DOJ. The counter-espionage section of this
division undertakes criminal prosecutions resulting from investigations
conducted by the licensing agencies, ICE, and the FBI. An October 2007 DOJ
National Export Enforcement Initiative established task forces between the
licensing and enforcement agencies and U.S. Attorney’s Offices in 20 cities to
coordinate export control prosecutions and has facilitated new counter-
proliferation coordination among law enforcement agencies, export licensing
agencies, and the intelligence community.
• Federal Bureau of Investigation (FBI). The FBI’s Weapons of Mass
Destruction Directorate receives and analyzes intelligence regarding proliferation
networks, provides specialized training on counter-proliferation for the National
Export Enforcement Initiative, and cooperates with above-mentioned
investigative partners and export licensing agencies.
• Defense Criminal Investigation Service (DCIS). DCIS is the criminal
investigative arm of the Inspector General of DOD. Among its varied activities,
DCIS investigates the transfer of sensitive defense technologies to proscribed
nations and criminal elements.
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Multilateral Control Regimes
In addition to U.S. controls, there are four major multilateral control regimes: the Australia
Group, the Missile Technology Control Regime, the Nuclear Suppliers Group, and the Wassenaar
Arrangement.10 The Commerce Department observed on December 9, 2010, that “[m]ost items on
the CCL are controlled in accordance with the United States’ commitments” to four major
multilateral export control regimes.11 In addition to the controls described in the box below, all of
these regimes have catch-all controls, which allow for the control of non-listed items if they are to
be used for a military or proliferation-related purpose.
Multilateral Control Regimes
•
Australia Group: a voluntary, informal, export control arrangement founded in 1985 and consisting of 41
members. It has a set of export guidelines, as well as six common control lists. These lists include dual-use
chemical manufacturing and biological equipment, chemical weapons precursors, and biological agents.
•
Missile Technology Control Regime (MTCR): an informal voluntary export control arrangement
established in 1987. The 34 members of the regime agree to adhere to common export policy guidelines applied
to lists of controlled items. The MTCR guidelines call on each partner country to exercise restraint when
considering transfers of equipment or technology, as well as “intangible” transfers, that would provide, or help a
recipient country build, a missile capable of delivering a 500 kilogram warhead to a range of 300 kilometers or
more. The MTCR annex contains two categories of control ed items. Category I items are the most sensitive.
There is “a strong presumption to deny” such transfers, according to the MTCR guidelines. Regime partners
have greater flexibility with respect to exports of Category II items.
•
Nuclear Suppliers Group (NSG): an informal association of nuclear exporters founded in 1975 and currently
consisting of 46 members. NSG members voluntarily agree to coordinate exports of civilian nuclear material, as
wel as nuclear-related equipment and technology, to non-nuclear-weapon states.12 The group’s guidelines
include lists of materials and equipment subject to export control, in addition to requiring importers to offer
nonproliferation and physical security assurances.
•
Wassenaar Arrangement: a voluntary export control regime approved in 1996 and currently consisting of 40
members. Its participants agree to control exports and retransfers of items on a munitions list and a list of dual-
use goods and technologies. According to its Guidelines and Procedures, the Wassenaar Arrangement is not
formally targeted at “any state or group of states,” but is designed “to contribute to regional and international
security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and
dual-use goods and technologies, thus preventing destabilizing accumulations.” Participants exchange information
regarding transfers and licenses for items covered by the arrangement.
Because, as noted, the Export Administration Act (EAA) has expired, there is only one law in
force explicitly requiring the U.S. government to adhere to a multilateral export control regime.
The Arms Export Control Act requires the Secretary of State to maintain, as part of the U.S.
Munitions List, “a list of all items on the MTCR Annex” that are not controlled pursuant to the
EAA. The Atomic Energy Act requires the executive branch to control nuclear-related items, but
the law does not explicitly require that these items be the same as those controlled by the Nuclear
Suppliers Group.
10 For more information about these regimes, see CRS Report RL33865, Arms Control and Nonproliferation: A
Catalog of Treaties and Agreements, by Amy F. Woolf, Mary Beth Nikitin, and Paul K. Kerr.
11 “Commerce Control List: Revising Descriptions of Items and Foreign Availability,” 75 Federal Register, No. 236,
December 9, 2010.
12 The Nonproliferation Treaty (NPT) defines a nuclear-weapon state as “one which has manufactured and exploded a
nuclear weapon or other nuclear explosive device” prior to January 1, 1967. These states are China, France, Russia, the
United Kingdom, and the United States.
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The President’s Export Control Initiative
On August 13, 2009, President Obama announced the launch of a comprehensive review of the
U.S. export control system. Defense Secretary Robert M. Gates announced key elements of the
Administration’s agenda for reform in a speech on April 20, 2010, with additional elaborations in
subsequent months. Secretary Gates proposed a four-pronged approach that would create a single
export control licensing agency for both dual-use and munitions exports; adopt a unified control
list; establish a single enforcement coordination agency; and create a single integrated
information technology system, which would include a single database of sanctioned and denied
parties.
The Administration’s blueprint envisioned that these changes would be implemented in three
phases, with the final phase requiring legislative action. In Phase I, preparatory work would be
undertaken to harmonize the Commerce Control List (CCL) with the U.S. Munitions List
(USML). Standardized licensing processes among the control agencies would be developed, and
an “Enforcement Fusion Center” to synchronize enforcement would be created along with a
single electronic gateway to access the licensing system. Phase II would implement a harmonized
licensing system with two identically structured tiered control lists, potentially allowing for a
reduction in the amount of licenses required by the system. Certain items could be moved from
the USML to the CCL, for which congressional notification would be required; unilateral controls
on certain items would be examined; and consultations would take place with multilateral control
regime partners to add or remove multilateral controls on certain items.
Under the proposal, the new export control system would debut in Phase III. A single licensing
agency would be established; the two harmonized, tiered control lists would be merged with
mechanisms for review and updating; and a single IT system for licensing and enforcement would
become operational. Also, an Export Enforcement Coordination Center, which was created by
executive order on November 9, 2010, would be housed and funded by the Department of
Homeland Security. Changes in agency structure may require legislation and may be proposed in
the 112th Congress.
In a February 2011 speech, BIS Assistant Secretary Kevin Wolf elucidated seven principles
driving the Administration’s export control reform efforts:
• Controls should focus on a small core set of key items that can pose a serious
national security or intelligence threat to the United States and its interests.
• Controls should be fully coordinated with the multilateral export control regimes
in order to be effective.
• Unilateral controls must address an existing legal or foreign policy objective.
• Control lists must clearly identify which items are controlled and be easily
updated as technology emerges, matures, or becomes widely available.
• Licensing processes must be predictable and timely.
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• Enforcement capabilities must be enhanced to address non-compliance and
increase capacity to interdict unapproved transfers.
• Controls must address counterterrorism policy and the need to export items that
support homeland security priorities.13
The Four Singularities
A Single Licensing Agency
In his speech introducing the Administration’s reform efforts, Secretary Gates described the
bureaucratic structure of the U.S. export control system as a “byzantine amalgam of authorities,
roles, and missions scattered around different parts of the federal government.”14 As noted above,
licensing is divided among the Department of Commerce for dual-use items, the Department of
State for munitions, the Department of the Treasury for certain sanctions, and the Nuclear
Regulatory Commission and Department of Energy for certain nuclear materials and
technologies. These entities operate under different statutory authorities and enforce different
regulations. While there are mechanisms in place for license referrals and to address licensing
disagreements, critics have long maintained that the multi-agency structure contributes to
institutional squabbling among the different agencies responsible for export control licensing.
Having one licensing system would also end disputes about commodity jurisdiction over a given
item.
On June 30, 2010, then-National Security Adviser General Jim Jones announced that the
Administration intended to create an independent licensing agency with Cabinet members from
existing control agencies serving as a board of directors. While the Administration has not
proffered specific details about this new agency, it is expected to take over the licensing functions
of BIS, DDTC, and OFAC. Civil and administrative enforcement functions of BIS and DDTC are
likely to be housed in the new unified licensing agency. Licensing procedures of the NRC for
nuclear materials and of the Department of Energy for technology will not be moved. According
to an Administration official, this is due to the relatively small volume of licensing undertaken for
nuclear materials as well as by the small universe of exporters.15
One rationale advanced by General Jones is that a unified licensing structure would end the
stovepipe situation whereby no agency collectively knows what has been licensed (or denied) by
the U.S. government. Under current referral processes, dual-use licenses are referred by BIS to
the Department of Defense, the Department of State (Economic Energy and Business Bureau
[EEB], International Security and Non-Proliferation [ISN] Bureau, and the regional bureaus), and
in some instances to the Treasury’s Office of Foreign Assets Control (OFAC) for review.
However, Department of Commerce licenses are not referred to DDTC. DDTC refers munitions
licenses to DOD and to the above-mentioned bureaus at State, but not to Commerce. OFAC
licenses are referred only to State’s EEB. As a result, situations have arisen whereby licenses
13 Remarks of BIS Assistant Secretary for Export Administration, Kevin Wolf, to Exportkontrolltag 2011, Munich,
Germany, February 25, 2011.
14 Secretary of Defense Robert M. Gates, speech before the Business Executives for National Security, April 20, 2010,
available at http://www.defense.gov/speeches/speech.aspx?speechid=1453.
15 Discussion with National Security Council official, March 18, 2011.
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requested by the same exporter to the same destination have been approved by one license agency
and denied by another.
While a single licensing agency may do away with the stovepipe issue, the envisioned single
information technology system (see below) among the current agencies may also address this
problem. In addition, licenses would still need to be referred to other bureaus at State and DOD,
so interagency policy differences may continue to exist.
Table 1. President’s Export Control Reform Initiative
Information
Phase Control
List Licensing Enforcement
Technology
I Refine,
understand,
Implement
Synchronize and de-
Determine
harmonize definitions regulatory-based
conflict enforcement; enterprise-wide
to end jurisdictional
improvements to
create Enforcement
needs
confusion between
streamline licensing
Fusion Center
two lists; establish
new control criteria
II
Restructure two lists
Complete transition
Expand outreach and
Transition toward a
into identical tiered
to mirrored control
compliance
single electronic
(requires
structures; apply
list; fully implement
licensing system
congressional
criteria; remove
licensing
notification;
unilateral controls
harmonization
requires additional
where appropriate;
funding)
submit proposals
multilaterally to
add/remove controls
III
Merge two lists into
Implement single
Consolidate
Implement a single
a single list;
licensing agency
enforcement
system for licensing
(requires
implement process
activities under one
and enforcement
legislation)
for updating list
agency
Source: Prepared by Dianne Rennack, CRS, based on White House Fact Sheet, April 20, 2010.
Dual-Nationals
One example of the effort that will be necessary to create a unified export control system may be
seen in the dual-national issue. The White House announced on March 11, 2010, that it would
take action to eliminate “obstacles to exporting to companies employing dual nationals.”
Specifically, the Administration announced that it would “begin to harmonize” conflicting
standards used by the Departments of Commerce and State to determine a foreign person’s
nationality—a step that these departments must take in order to make certain export control
decisions.16 The Commerce Department, according to a 2010 Government Accountability Office
(GAO) report, determines “nationality for release of technology to a foreign national” based on
that person’s “most recent citizenship or permanent residence.”17
16 For example, determining the appropriateness of releasing technical data to employees of a foreign firm engaged in a
defense project with a U.S. firm.
17 Government Accountability Office, Export Controls: Observations on Selected Countries’ Systems and Proposed
Treaties, May 2010, GAO-10-557.
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The State Department, however, considers not only a foreign national’s current citizenship status,
but also their country of birth if it differs from the person’s country of citizenship or permanent
residency. Even if a foreign entity is approved for a manufacturing license agreement or a
technical assistance agreement with a U.S. firm, the State Department must approve the transfer
of technical data, defense services, and defense articles to dual nationals and third-party nationals
employed by the foreign entity.18 “If a person’s country of birth is prohibited from receiving U.S.
arms, as are China, Iran, and North Korea, State collects additional information to confirm that
the individual has no significant ties to his or her country of birth,” according to the GAO.
Both the State Department and private-sector experts argue that these requirements are
contentious because, in addition to being administratively burdensome, they are a potential
employment discrimination issue in other countries; in order to comply with the regulations, non-
U.S. employers may need to limit employment opportunities in potential violation of their
countries’ employment laws.19
After publishing a proposed rule on August 11, 2010,20 the State Department published a final
rule on May 16, 2011, that would amend the ITAR to allow the transfer of defense articles and
technical data to dual or third-party nationals who are “bona fide, regular employees, directly
employed by the foreign consignee or end-user.”21 Such transfers
must take place completely within the physical territory of the country where the end-user is
located, where the governmental entity or international organization conducts official
business, or where the consignee operates, and be within the scope of an approved export
license, other export authorization, or license exemption.
The end user or consignee must take a variety of measures designed to prevent the diversion of
any exports; the final rule includes a requirement for the end user to screen employees for
“substantive contacts with restricted or prohibited countries” listed in the ITAR.22 The rule, which
became effective on August 15, 2011, also explains that, although “nationality does not, in and of
itself, prohibit access to defense articles or defense services, an employee that has substantive
contacts” with persons from prohibited countries “shall be presumed to raise a risk of diversion,”
unless the State Department determines otherwise.
18 The State Department’s Directorate of Defense Trade Controls, according to the GAO, “considers a third-country
national to be an individual from a country other than the country which is the foreign signatory” to a “technical
assistance or manufacturing license agreement. A third-country national may also be a dual national if he or she holds
nationality from more than one country.” GAO-10-557.
19 “Amendment to the International Traffic in Arms Regulations: Dual Nationals and Third-Country Nationals
Employed by End-Users,” Federal Register, vol. 75, no. 154, August 11, 2010, p. 48625.
20 Ibid.
21 “International Traffic in Arms Regulations: Dual Nationals and Third-Country Nationals Employed by End-Users,”
Federal Register, vol. 76, no. 94, May 16, 2011, p.28174. Paul Conlin, Sebastien Beauregard, R. Luc Beaulieu, and
Richard A. Wagner, “Proposed ITAR Amendment Regarding Dual Nationals and Third-Country Nationals,” Mondaq,
August 31, 2010.
22 “Substantive contacts,” according to the rule, “include regular travel to such countries, recent or continuing contact
with agents, brokers, and nationals of such countries, continued demonstrated allegiance to such countries, maintenance
of business relationships with persons from such countries, maintenance of a residence in such countries, receiving
salary or other continuing monetary compensation from such countries, or acts otherwise indicating a risk of
diversion.”
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It is worth noting that, according to the State Department, “most diversions of U.S. Munitions
List ... items appear to occur outside the scope of approved licenses, not within foreign companies
or organizations providing access to properly screened dual national or third country national
employees.”23
The Single Control List
To date, the Administration has concentrated on rationalizing the control lists to form the basis
from which other reforms will flow. The Administration first seeks to transform the current
USML from a “negative list” characterized by general descriptions of articles and design-intent-
based criteria to one resembling the current CCL, a “positive” list of dual-use items that are
controlled according to objective criteria or parameters. This is being done through the so-called
“bright line” process to determine which items should be controlled as dual-use goods and which
should be controlled as munitions. The bright line is being determined at the commodity level,
based on technical specification and military needs, and is not an overarching concept or
framework. The Administration describes the bright line as necessary, in part, because of the
USML’s current reliance on design intent (i.e., whether an item was “specifically designed,
modified, or adapted” for military use) and its catch-all controls of parts and components of these
items.24 While the CCL is described as more “positive,” it too contains entries containing the term
“specially designed” for a specific purpose that may need to be modified to conform to bright line
standards.
Originally, each of the items on the resulting USML list was to have been assigned to a tier to
determine its level of control. The Administration created three tiers applicable to both the CCL
and the USML to categorize a different level of control.25 However, the tiering process was
dropped, reportedly because it would have been necessary to decide on the tiers for all USML
items prior to publishing any revised USML categories, which the Administration has proceeded
to do on a rolling basis.26 While the tiering process may have been dropped for the revision
process, it still may be used to differentiate items on the USML and CCL or under a future
merged list if the revision process is completed.
Each category of the USML is being screened by an interagency team led by DOD, and proposed
revisions to each USML category, including certain items proposed to be moved to the CCL, are
being published as proposed rulemakings. Proposed revisions to Category IV (launch vehicles,
missiles, rockets, torpedoes, bombs, mines, and other military explosive devices); ( Category V
(Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents);
Category VI (vessels of war and naval equipment); Category VII (tanks and military vehicles);
23 Federal Register, vol. 75, no. 154.
24 “Revisions to the U.S. Munitions List, Advanced Notice of Proposed Rulemaking,” 75 Federal Register 76935,
December 9, 2010, at 76937.
25 As originally postulated, Tier 1 articles are those that are almost exclusively available from the United States and
provide a critical military or intelligence advantage. Tier 2 articles are those that are almost exclusively available from
countries that are members of the multilateral export control regimes that control such items and (1) provide a
substantial military or intelligence advantage, or (2) make a substantial contribution to the indigenous development,
production, use, or enhancement of a Tier 1 or Tier 2 item. Tier 3 articles are those that provide a significant military or
intelligence advantage; make a significant contribution to the indigenous development, production, use, or
enhancement of a Tier 1, Tier 2, or Tier 3 item; or are otherwise controlled for national security, foreign policy, or
human rights reasons.
26 “Administration Identifies Problem, Alters Stance on Export Control Reform,” Inside U.S. Trade, November 3, 2011.
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Category IX (Military Training Equipment); Category X (Protective Personal Equipment and
Shelters); Category XI (military electronics); Category XIII (auxiliary military equipment); and
Category XX (submersible vessels and oceanic equipment) have been published in the Federal
Register since 2011. Final rules on the migration of items in Category VIII (aircraft and
associated equipment) and a new Category XIX (gas turbine engines) were issued on April 16,
2013.27 (see Appendix D for the status of current proposals to move certain items from the
USML to the CCL) A final rule on a new “OY521” classification series has also been issued. The
OY521 series will be used for items that the U.S. government determines warrant control due to a
significant military or intelligence advantage it would confer or due to foreign policy reasons, but
are not identified under an existing ECCN, nor are controlled under a existing U.S. or multilateral
framework.28
According to Administration thinking, the USML will contain “only those items that provide at
least a significant military or intelligence applicability that warrant the controls the AECA
requires.”29 The reconstituted Munitions List may then be aligned with the CCL by adopting its
A-E commodity organization structure and adding two additional categories: F and G for ITAR
specific controls. As a result of this alignment, each USML category will be divided into seven
groups: A—equipment, assemblies, and components; B—test, inspection, and production
equipment; C—materials; D—software; E—technology; F—defense services; and G—
manufacturing and production authorizations.
“600 Series”
As a result of the revision process, the Administration likely will seek to move some USML items
to the CCL. Under Section 38(f) of the Arms Export Control Act (P.L. 90-629), the President may
not remove any article from the USML until 30 days after providing notice to the House Foreign
Affairs Committee, and the Senate Foreign Relations Committee, including a description of the
nature of any subsequent controls on the item. The Administration issued its first notifications to
Congress for Category VIII (aircraft and associated equipment) and Category XIX (Gas Turbine
Engines) on March 8, 2013.
In order to comply with Section 38(f), the manner in which USML items transferred to the CCL
are to be controlled is described in a proposed rulemaking on July 15, 2011.30 It involves the
creation of a “600 Series” subcategory of Export Control Classification Numbers (ECCNs) for
each category on the CCL.31 This new series will be populated by items that are judged not to
need the relatively stricter controls mandated under the USML. Items moved to the CCL in this
manner will require a license to all destinations except Canada. All items controlled pursuant to
27 “Revisions to the Export Administration Regulations (EAR): Initial Implementation of Export Control Reform,” 78
Fed. Reg. 22660, April 16, 2013. This rulemaking, which will come into effect on October 16, 2013 also incorporates
the final “framework rule” on the “600 series,” the “specially designed rule” and other changes to the EAR.
28 “Revisions to the Export Administration Regulations: ECCN 0Y521 Series,” 77 Federal Register 22191, April 13,
2012.
29 Remarks of BIS Assistant Secretary for Export Administration Kevin Wolf to the Update 2011Conference;
Washington D.C.; July 19, 2011.
30 “Proposed Revisions to the Export Administration Regulations: Control of Items the President Determines No
Longer Warrant Control Under the U.S. Munitions List,” Proposed Rule, 76 Federal Register 41958, July 15, 2011.
31 The 600 Series has also been referred to as the Commerce Munitions List. Series 600 items are to be designated with
a 6 in the ECCN. For example, applicable aircraft will have a 9A610 ECCN.
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multilateral control regimes would retain their existing controls. In addition, “600 Series” items
will be subject to a general policy of denial to countries subject to a U.S. or U.N. arms embargo.
The proposed rule also places restrictions on the extent to which certain license exceptions can be
applied. End-use items transferred to the 600 Series would be eligible for the recently announced
Strategic Trade Authorization (STA) license exception (described below) only after a
determination is jointly made by the State, Defense, and Commerce Departments that a license
exception should be made available for the item in question. Parts, components, and accessories
transferred under this process would be automatically eligible for an STA license exception for
exports to the governments of STA-eligible countries. “600 Series” items would also be eligible
for other preexisting license exceptions.
The status of parts and components is another issue that is addressed by the “600 Series.” Under
the EAR, the license requirement is based on the finished product, generally without regard to its
parts and components. However, a foreign product containing more than 25% U.S. content (10%
U.S. content in the case of a transaction to a country identified as a state sponsor of terrorism)
may require a reexport license from the United States. However, for ITAR-controlled items,
DDTC has employed a jurisdictional interpretation known as a “see-through” rule, which may
require U.S. reexport controls on parts and components incorporated into end products
manufactured overseas.32 For items migrating to the 600 Series, a 10% rule will apply.
“Specially Designed”
To facilitate the transfer of items from the USML to the CCL, the Administration has proposed a
new definition of “specially designed.” As noted above, the Administration has sought to move
away from the design-intent standard of the USML and the use of the catch-all phrase
“specifically designed” for military use to subject parts and components to ITAR jurisdiction. The
new definition was seen as necessary given that “specifically designed” in the USML did not
have the same meaning as the term “specially designed” which appears in the CCL and also in
various multilateral control lists. It was also seen as infeasible to remove the term(s) entirely by
enumerating each part and component being moved from the USML to the CCL.
After two previous iterations, the Administration published its final rulemaking on the definition
of “specially designed” on April 16, 2013. 33 The two-part definition has been dubbed a “catch
and release” approach in that the first part of the definition may capture and item as specially
designed for military use and the second part may release the item from control under the
definition if it does not qualify under certain parameters. Under the first part of the regulation, an
item qualifies as specially designed if :
(1) As a result of “development” has properties peculiarly responsible for achieving or
exceeding the performance levels, characteristics, or functions in the relevant ECCN or U.S.
Munitions List (USML) paragraph; or
32 Export Administration Regulations, Part 772.2(b).
33 “Revisions to the Export Administration Regulations: Initial Implementation of Export Control Reform,” 78 Fed.
Reg. 22660, April 16, 2013; “Revisions to the International Traffic in Arms Regulations: Initial Implementation of
Export Control Reforms,” 78 Fed. Reg. 22740, April 16, 2013.
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(2) Is a “part,” “component,” “accessory,” “attachment,” or “software” for use in or with a
commodity or defense article ‘enumerated’ or otherwise described on the CCL or the USML.
Under the proposed regulation, if none of the two above criteria apply to an item, then the item is
not specially designed. If one or more of these criteria describes an item, it potentially qualifies it
as specially designed and is subject to the following six exclusions, any one of which would
exclude the item from being specially designed:
(1) Has been identified to be in an ECCN paragraph that does not contain “specially
designed” as a control parameter or as an EAR99 item in a commodity jurisdiction (CJ)
determination or interagency-cleared commodity classification (CCATS);
(2) Is, regardless of ‘form’ or ‘fit,’ a fastener (e.g., screw, bolt, nut, nut plate, stud, insert,
clip, rivet, pin), washer, spacer, insulator, grommet, bushing, spring, wire, solder,;
3) Has the same function, performance capabilities, and the same or ‘equivalent’ form and
fit, as a commodity or software used in or with an item that:
(i) Is or was in “production” (i.e., not in “development”); and
(ii) Is either not ‘enumerated’ on the CCL or USML, or is described in an ECCN controlled
only for Anti-Terrorism (AT) reasons;
(4) Was or is being developed with “knowledge” that it would be for use in or with
commodities or software (i) described in an ECCN and (ii) also commodities or software
either not ‘enumerated’ on the CCL or the USML (e.g., EAR99 commodities or software) or
commodities or software described in an ECCN controlled only for Anti-Terrorism (AT)
reasons;
(5) Was or is being developed as a general purpose commodity or software, i.e., with no
“knowledge” for use in or with a particular commodity (e.g., an F/A-18 or HMMWV) or
type of commodity (e.g., an aircraft or machine tool); or
(6) Was or is being developed with “knowledge” that it would be for use in or with
commodities or software described (i) in an ECCN controlled for AT-only reasons and also
EAR99 commodities or software; or (ii) exclusively for use in or with EAR99 commodities
or software.”34
Under this decision tree approach, the item is potentially “caught” as specially designed by the
first two criteria, but it may be “released” from that definition if any of the six subsequent
qualifiers apply. The Commerce regulations would apply to the “600 series” of items moved from
the USML. The proposed regulation to define specially designed in the ITAR as a replacement for
the currently utilized “specifically designed” is similar in nature. The final rule for this was
published on April 16, 2013.35
In a speech on July 17, 2012, BIS Assistant Secretary Kevin Wolf acknowledged that the
specially designed concept is “inherently difficult to apply in reality,” and that it is “not consistent
with the “ultimate goal of creating a truly positive, objective list of controlled items.”36 However,
34 Ibid.
35 Ibid.
36 Remarks of Kevin Wolf , Assistant Secretary for Export Administration, to the Update 2012 Conference, July 17,
2012. http://www.bis.doc.gov/news/2012/wolf_update_2012.htm.
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he noted that concurrent with this approach, BIS also published an advanced notice of proposed
rulemaking (ANPR) in June 2012 seeking comments on the feasibility of enumerating or
positively identifying each item determined classified as specially designed on the CCL.37
Strategic Trade Authorization License Exception
In 2011, the Administration devised a new license exception known as the Strategic Trade
Authorization (STA), which is designed to facilitate transfers to low risk countries and to promote
interoperability to allies in the field.38 To be eligible, exporters would have to provide notification
to BIS of the transaction and a destination control statement notifying the foreign consignee of
the terms of the exception’s safeguard requirements, and they must obtain from the foreign
consignee a statement acknowledging its understanding and willingness to comply with the
requirements of the license exception.
Under the final rulemaking, STA would be available in various degrees to 44 countries. To a
group of 36 countries made up of NATO partners and members of all 4 multilateral non-
proliferation control regimes, dual-use items controlled for national security (NS), chemical or
biological weapons, nuclear non-proliferation, regional stability, crime control, or significant
items (hot section jet technology) would be eligible for an STA. This would include almost all
items on the CCL that are not controlled for statutory reasons. An additional eight countries
would be eligible for exports, reexports, or transfers controlled for NS-only and that are not
designated as STA-excluded.39
Dual-use items controlled for missile technology (MT), chemical weapons (CW), short supply
(SS), or surreptitiously listening (SL) would not be eligible for export under STA. Certain
implements of execution and torture, pathogens and toxins, software and technology for “hot-
sections” of aero gas-turbine engines, and encryption have also been excluded from the STA.
According to former Commerce Secretary Locke, the license exception will eliminate the need
for licenses for over 3,000 yearly types of transactions, affecting $1.4 billion in exports.40
37 “Feasibility of Enumerating “Specially Designed” Components,” 77 Federal Register 36419, June 19, 2012.
38 “Export Control Reform Initiative: Strategic Trade Authorization License Exception,” 76 Federal Register 35276,
June 16, 2011.
39 However, the final rule excludes NS controlled items from the Wassenaar Arrangement’s Sensitive List to the 8
countries.
40 BIS Press Release, June 16, 2011, http://www.bis.doc.gov/news/2011/bis_press06162011.htm.
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Commercial Communications Satellites
Although most items on either the CCL or the USML were placed there by executive discretion or by international
agreement, one category of items is on the USML by statute: commercial communications satellites (CCS). Prior to
1990, CCS were control ed exclusively by the Department of State under the authority of Section 38 of the Arms
Export Control Act (P.L. 90-629). Despite having both military and civilian uses, CCS were considered munitions, as
many satellites and associated technologies were originally designed “specifically” for military purposes and continue
to have “significant military or intelligence applications as defined by regulation.” In 1990, however, President George
H. W. Bush ordered a review of dual-use items, including CCS, on the U.S. Munitions List (USML), which resulted in
satellites without military performance characteristics being moved to Department of Commerce jurisdiction. In
1996, President Clinton transferred all CCS (along with commercial jet “hot section” technology) to Commerce
jurisdiction with enhanced licensing procedures. Fol owing 1998 revelations by the Cox Committee that U.S. satel ite
manufacturers provided missile design information and skills to China through the improper transfer of launch failure
analysis, Congress passed legislation transferring the authority, effective March 15, 1999, to license exports of CCS to
the Department of State (P.L. 105-261).
The satellite industry claims that this transfer has led to licensing delays and lost sales resulting from regulatory
uncertainty, and it has lobbied to revert export controls to Commerce Department jurisdiction. Satellites launched
for commercial communication purposes may contain embedded sensitive technology, such as positioning thrusters,
signal encryption, mating and separation mechanisms, and multiple satellite/reentry vehicle systems, which as stand-
alone items are also control ed under the USML. Industry claims that because of State’s “see-through” policy of
requiring licenses for parts and components embedded in CCS, foreign satellite manufacturers are designing out U.S.
parts and components and advertising them as ITAR-free (i.e., free of munitions licensing requirements). In addition,
Tiananmen Square sanctions and other waiver restrictions have precluded U.S. exports to China, a competitive
launch destination.
Section 1248 of the 2010 National Defense Authorization Act (P.L. 111-84) directed the Secretaries of State and
Defense to conduct a review of U.S. space export control policy, including a risk assessment of removing satellite and
related components from the USML. An interim assessment, which was reported to Congress in May 2011, found
that CCS, related components, and integration and launch information “with certain exceptions, conditions and
limitations” could be removed from the USML and transferred to the CCL ”without posing an unacceptable security
risk.” The final review, which was delivered to Congress on April 18, 2012, recommended that Congress should
return export control jurisdiction for CCS to presidential discretion, as well as to authorize the Department of
Defense to determine the need for special export control monitoring and oversight services for CCS and authorize
DOD to be reimbursed for those services.
The National Defense Authorization Act of 2013 (P.L. 112-239), , contains language (§1261) to repeal the 1999
NDAA provision transferring “satellites and related items” to the USML, potentially al owing the President to transfer
satellites and related items to the CCL with certain country restrictions and reporting requirements. It would
continue the prohibition on satellite sales to or launches by China, or to countries designated as state sponsors of
terrorism (Cuba, Iran, Sudan, Syria) and North Korea. In addition, a license application to export satellites and related
items to a country in which the United States maintains a comprehensive arms embargo will face a presumption of
denial, although not an outright prohibition. The Administration may seek such legislation as it determines which
items to migrate on Category XV (space systems) from the USML to the CCL.
The Single Enforcement Structure
The third singularity involves the creation of a streamlined export enforcement system. Under
Phase I of the new approach, a single export “fusion center” would be created to “coordinate and
de-conflict investigations, serve as a central point of contact for coordinating export control
enforcement with Intelligence Community activities, and synchronize overlapping outreach
programs.”41 On November 9, 2010, the Obama Administration issued Executive Order 13558,
41 Speech of General Jim Jones, June 30, 2010, available at http://www.aia-aerospace.org/assets/
speech_jones_06302010.pdf.
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which created the Export Enforcement Coordination Center (EECC). The center officially opened
in March 2012 within the Department of Homeland Security and carries on the functions of the
existing National Export Enforcement Coordination Network (NEECN) in ICE. It consists of a
director from the Department of Homeland Security and two deputies appointed from the
Departments of Commerce and Justice, with an intelligence community liaison designated by the
Director of National Intelligence.
The center functions as the primary forum to coordinate export control enforcement efforts
among the Departments of State, the Treasury, Commerce, Defense, Justice, Energy, and
Homeland Security and the Director of National Intelligence and to resolve potential conflicts in
criminal and administrative export control enforcement. The center is also able to screen all
license applications. Previously, the OEE at BIS was the only entity that could screen dual-use
licenses, whereas ICE could screen licenses from DDTC and OFAC. The unit will also establish
government-wide statistical tracking capabilities for criminal and administrative enforcement
activities. Also in March 2012, an Information Triage Unit was established in the Department of
Commerce to serve as an information gathering and screening unit among law enforcement
agencies, the intelligence community, and the export licensing agencies. The unit is designed to
serve as a central point to disseminate relevant information for each license application prior to
decisionmaking.42
The EECC is not to be confused with the National Export Control Coordinator, housed in the
Justice Department, which is “responsible for ensuring full coordination between the Justice
Department and the many other US law enforcement, licensing, and intelligence agencies that
play a role in export enforcement.”43 The role of the coordinator has been described as the chief
prosecutor of export control enforcement with the authority to determine which cases to bring for
criminal prosecution.
In Phase III, the Administration may request the movement of the BIS Office of Export
Enforcement to ICE. Currently, ICE conducts investigations and criminal enforcement for DDTC
and OFAC, and by virtue of its authority under the IEEPA, it shares dual-use investigations with
OEE. Removal of OEE to ICE will end this overlap of authority. It is envisioned that the Phase III
consolidated licensing agency will continue to have authority over administrative enforcement
actions.44
A Single Information Technology System
The fourth singularity is the creation of a single information technology system to be used to
administer the export control system. The USXPORTS database, currently used by the
Department of Defense to track license applications referred to it, is being expanded to State and
Commerce. When completed, it will become the platform for a proposed single export license
application form to be used by State, Commerce, and the Treasury’s Office of Foreign Assets
Control. It will also be used by the Department of Energy, Immigration and Customs
42 Department of Commerce, Press Release, March 7, 2012. http://export.gov/static/2012-03-
07%20Commerce%20on%20ITU_Latest_eg_main_047470.pdf
43 Department of Justice Press, Release, June 20, 2007, http://www.justice.gov/opa/pr/2007/June/07_nsd_440.html.
44 Conversation with NSC Official, March 18, 2011.
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Enforcement, and the Export Coordination Enforcement Center. The new system was reportedly
still being tested in December 2012.45
This reform is being proposed to streamline the interagency review process. Currently, the
agencies’ computer systems are not compatible and cannot seamlessly share licensing application
information with referring agencies. OFAC uses a paper-based licensing system. BIS, in
particular, has had difficulties in securing its system, which was hacked in late 2006. In response,
BIS completed a replacement of all its computers in 2010—a step that will help prepare it for the
adoption of the single IT system.46
The Administration’s plan calls for the adoption of USXPORTS first for internal communications
such as license referrals, while exporters would continue to use the existing SNAP-R and D-Trade
electronic license filing portals. Currently, a license submitted to BIS using the SNAP-R system
must be converted to BIS’s internal ECASS system for internal deliberation, and if sent for
referral, it must be converted to the USXPORTS (for Defense) or D-Trade (for State).47 The
Administration has indicated that eventually it would like to facilitate interoperability between the
license portals, the internal systems, and Customs’ Automated Export System (AES), the
information system that tracks actual movement of goods.
In conjunction with the single IT system, the Administration is developing a single license
application form. To make this possible, the Administration is grappling with standardizing
certain definitions between the different regulations, such as the use of the term “technology” in
the EAR as opposed to the term “technical data” used in the ITAR.48
To assist in compliance with U.S. export regulations, BIS has also compiled a consolidated
screening list of over 24,000 entities from existing Commerce, Treasury, and State Department
screening lists. The list consolidates the BIS Denied Person List, Unverified List, and Entity List;
the Department of State’s Nonproliferation Sanctions List; the Directorate of Defense Trade
Controls Debarred List; and the Office of Foreign Assets Control Specially Designated Nationals
List.
Encryption
While not announced as part of the four singularities, reform of encryption controls has been
proposed as one of the first deliverables in the export control reform process. The Administration
announced on March 11, 2010, that it would change a filing requirement for exporters of products
with encryption capabilities. At the time, exporters of such products were required to file for a
technical review by the Commerce Department, a process that, according to the White House
announcement, could take “between 30-60 days.” The announcement advocated replacing this
process with “a more efficient one-time notification-and-ship process,” which would ensure that
45 “DOD Official Says Single IT System for Export Controls Still Being Tested,” Inside U.S. Trade, December 13,
2012.
46 Export Practitioner, September 2010, p. 22.
47 “It May Take Two Years to Adopt Single Electronic Licensing System, BISer Says,” Export Practitioner, August
2010, p. 26.
48 “Single Export Application for All Agencies to be Unveiled, White House Official Says,” Export Practitioner,
January 2011, p. 31.
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the “U.S. government still receives information it needs for its national security requirements
while facilitating U.S. exports and innovation for new products and new technologies.”49
The Commerce Department announced on June 25, 2010, that it was amending the Export
Administration Regulations (EAR) as “the first step in the President’s effort to reform U.S.
encryption export controls.”50 As described by the Commerce Department’s Bureau of Industry
and Security, the amendment to the EAR includes51
• replacing, for encryption products “of lesser national security concern,” the “30-
day waiting requirement for a technical review” with a “provision that allows
immediate authorization to export and reexport these products” after the exporter
submits an electronic encryption registration to BIS;
• similarly replacing the 30-day requirement for most mass-market encryption
products;52
• an “overarching note to exclude particular products that use cryptography from
being controlled as ‘information security’ items”—a measure that implements
changes approved by the Wassenaar Arrangement members in December 2009;
this regulatory change eliminates controls under the CCL on “[m]any items in
which the use of encryption is ancillary to the primary function of the item”; and
• a provision that makes most encryption technology eligible for export and
reexport to non-governmental end-users in countries other than those of “greater
national security concern.”
According to the June 2010 announcement of the EAR amendment, the United States “will also
review other issues related to encryption controls.” The Obama Administration is currently
developing new proposals to decontrol additional items. However, such measures would require
approval by the members of the Wassenaar Arrangement.
Congressional Activity
Satellites
During the 2nd session of the 112th Congress, the National Defense Authorization Act (NDAA) of
2013 (P.L. 112-239, January 2, 2013) included a provision to repeal Section 1513(a) of the Strom
Thurmond NDAA of 1999, which removed satellites and related items from the Commerce
Control List (CCL) and placed them on the U.S. Munitions List (USML). This provision has the
49 According to an Administration official, controlling the export of products with encryption capabilities differs from
controlling other exports because the United States generally wants to obtain information on exported encryption
technology rather than prevent its export.
50 “Encryption Export Controls: Revision of License Exception ENC and Mass Market Eligibility, Submission
Procedures, Reporting Requirements, License Application Requirements, and Addition of Note 4 to Category 5, Part
2,” 75 Federal Register 36481, June 25, 2010.
51 Quotations describing the June 25 announcement are taken from 75 Federal Register, no. 122 and from BIS
statements available at http://www.bis.doc.gov/encryption/default.htm.
52 The Commerce Department classifies certain products with encryption capabilities as “mass market” pursuant to a
procedure described in the EAR.
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effect of allowing the President to determine the jurisdiction of the satellites and related items that
were transferred at that time, potentially allowing the President to transfer them back to the CCL
subject to certain determinations and reporting requirements. (See text box, “Commercial
Communications Satellites,” above)
Export Control Reform Legislation
In addition, two bills were introduced to reform the U.S. export control regime in the 112th
Congress. One would have reauthorized the Export Administration Act (EAA) and would have
amended some of its provisions, as well as amended certain provisions in the Arms Export
Control Act (AECA) governing munitions licensing. The other would have replaced the EAA
with a new act that would have provided the President the authority to create—within certain
guidelines—a new dual-use export control licensing system. Each bill would have implications
for the President’s export control initiative and may be reintroduced in the 113th Congress in
whole or in part. In addition, the Administration may put forward legislation to implement
portions of the Export Control Reform Initiative.
Export Administration Renewal Act of 2011
The Export Administration Renewal Act of 2011 (H.R. 2122) was introduced by House Foreign
Affairs Committee (HFAC) Chairwoman Ros-Lehtinen on June 03, 2011. The legislation would
have renewed the currently expired Export Administration Act through 2015, would have
increased the penalty structure consistent with current IEEPA penalties, and would have provided
enhanced statutory investigative and overseas enforcement authority to the Department of
Commerce, consistent with the Comprehensive Iran Sanctions and Divestment Act of 2010 (P.L.
111-195). The bill also would have amended the EAA’s foreign policy controls to extend the
period of time to 36 months that a government previously designated as a state sponsor of
terrorism must abstain from acts of terrorism before it can be removed from that designation. In
addition, it would have provided for congressional oversight by requiring that “significant”
proposed regulations be submitted to the committees of jurisdiction (House Foreign Affairs,
Senate Banking) for a 30-day period of advanced review.
Title II would have permitted generic parts and components for defense articles on the U.S.
Munitions List to be treated differently than sensitive defense articles on the USML if such parts
and components “do not have specialized or unique military or intelligence capabilities or
significance.” Items removed from the USML would have been subject to the same level of
control as on the USML unless the President determined that it was (1) in the national interest to
do so and (2) complied with notification requirements in the EAA, and (3) a consensus-based
interagency process between State, Commerce, and Defense determined the subsequent level of
control of items removed from the USML. Items removed from the USML would have also faced
heightened restrictions to certain countries. Licenses for items removed from the USML on the
Wassennaar Sensitive and Very Sensitive Lists would have faced a presumption of denial to
China unless the President issues a national interest waiver and adheres to congressional
notification requirements. In addition, a license for any item removed from the USML under this
process would have been denied to any country subject to U.N. or U.S. sanctions, or prohibited
from purchasing arms from the United States under the ITAR.
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Technology Security Act of 2012
On May 26, 2011, HFAC Ranking Member Berman introduced the Technology Security Act of
2011 (H.R. 2004), touted as the “the first comprehensive export control legislation to be proposed
since 2001.”53 The legislation would have given the President the authority to control exports for
national security and foreign policy reasons generally, including the prevention of proliferation of
weapons of mass destruction, the prevention of terrorism, and the prevention of activities
designed to interfere or disrupt critical infrastructure. The legislation would have asserted that
U.S. national security required the maintenance of leadership and competitiveness in the science,
technology, and manufacturing sectors and that the implementation of export controls should be
evaluated on an ongoing basis, and that export controls should be implemented on a multilateral
basis (§102).
In exercising his authority to export controls, the President would have been directed to establish
and maintain lists of items subject to control, lists of foreign persons or end-uses subject to
control, licensing criteria and licensing alternatives—such as advanced notice in lieu of licensing,
and compliance and enforcement measures. It would have expanded the definition of dual-use
items to include those that could be used for cyber or terrorist attacks. The legislation would have
established penalties consistent with the IEEPA penalties (see above). The legislation also would
have directed the President to establish an inter-agency Transfer Policy Committee to identify
strategic threats requiring export controls and to implement policies to counter those threats. This
committee also would have been charged with regularly reviewing the control list and
establishing and maintaining a licensing system. The legislation would have required the
President to maintain current license requirements on countries supporting international terrorism,
as well as current sanctions regarding missile proliferation and chemical and biological weapons
proliferation. It also would have reauthorized the anti-boycott provisions from the EAA.
The Technology Security Act (H.R. 2004) would have given the President wide discretion in the
creation of a dual-use export system. Under this legislation, the President would have been given
the authority to establish such a system and to determine where it would be located in the
government. Conversely, the President could have maintained the current system with some
changes, such as the creation of the Transfer Policy Committee under the new authority. By
contrast, the EAA Reauthorization Act (H.R. 2122) would have locked in the current dual-use
system and updated some features of it. Passage of this act likely would have prevented the
establishment of a unified licensing agency envisioned by the Administration as the EAA vests
the dual-use system with the Secretary of Commerce. It also may have affected efforts to
streamline enforcement, as the EAA confers certain powers to the Commerce Department to
enforce export controls. However, neither act would amend or modify the organizational aspects
of the munitions licensing process.
In considering any new legislation and the President’s proposals, Congress could consider how to
balance between national security and economic competitiveness in a changing global
environment. In addition, Congress could address the benefits and costs of continuing the current
bifurcated export control system or the creation of a unified system. At the same time, it may
wish to scrutinize the current system administered under emergency authority. It may examine the
relationship between U.S. multilateral non-proliferation commitments and the current export
53 “Congressman Howard Berman Introduces Overhaul of US Exports Controls,”
http://democrats.foreignaffairs.house.gov/press_display.asp?id=844.
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The U.S. Export Control System and the President’s Reform Initiative
control regime. Congress may assess the ability to maintain the U.S. defense industrial base in
terms of the current system, as well as the competitiveness of U.S. strategic sectors. These
strategic, institutional, and economic considerations may shape the future of U.S. export controls.
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Appendix A. Basic Export Control Characteristics
Table A-1. Export Control Characteristics
Characteristic Dual-Use Munitions Nuclear
Legislative Authority
Export Administration Act
Arms Export Control
Atomic Energy Act of
(EAA) of 1979 (expired);
Act of 1968, 1976
1954; Nuclear Non-
International Emergency
(AECA)
Proliferation Act of 1978
Economic Powers Act of
1977 (IEEPA)
Agency of Jurisdiction
Bureau of Industry and
Directorate of Defense
Nuclear Regulatory
Security (BIS)(Commerce)
Trade Controls
Commission (NRC)
(DDTC)(State)
(facilities and material)
Department of Energy
(DOE) (technology)
BIS (“outside the core”
civilian power plant
equipment)
DDTC (nuclear items in
defense articles)
Implementing Regulations
Export Administration
International Traffic in
10 C.F.R. 110—Export
Regulations (EAR) (15
Arms Regulations (ITAR)
and Import of Nuclear
C.F.R. 730 et seq)
(22 C.F.R. 120 et seq)
Material and Equipment
(NRC)
10 C.F.R. 810—
Assistance to Foreign
Atomic Energy Activities
(DOE)
Control List
Commerce Control List
Munitions List (USML)
List of Nuclear Facilities
(CCL)
and Equipment; List of
Nuclear Materials (NRC)
Nuclear Referral List
(CCL)
USML
Activities Requiring
Specific Authorization
(DOE)
Relation to Multilateral
Wassenaar Arrangement
Wassenaar Arrangement
Nuclear Suppliers’ Group
Controls
(dual-use)
(munitions)
International Atomic
Missile Technology
MTCR
Energy Agency
Control Regime (MTCR)
Australia Group (CBW)
Nuclear Suppliers’ Group
Licensing Policy
Based on item, country, or
Most Munitions License
General/Specific Licenses
both. Anti-terrorism
items require licenses; 21 (NRC)
controls proscribe exports proscribed countries.
to five countries for nearly
General/Specific
all CCL listings
Authorizations (DOE)
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Characteristic Dual-Use Munitions Nuclear
Licensing Application
Initial referral within nine
60 days with national
No timeframe for license
Timeline
days; agency must
security exceptions;
applications
approve/deny within 30
congressional notification
days; 90-day appeal
period for significant
process (see Appendix
military equipment
B)
Enforcement
Office of Export
Office of Defense Trade
Office of Enforcement
Enforcement (BIS) (OEE)
Compliance (DDTC)
(NRC)
(domestic)
Defense Criminal
BIS-OEE
Homeland Security (DHS):
Investigation Service
Immigration and Customs
(DCIS)(DOD) Defense
DDTC-ODTC
Enforcement (ICE);
Security Service (DOD)
DCIS (DOD)
Customs and Border
Protection (CBP)
DHS: ICE, CBP
DHS: ICE, CBP
Justice (DOJ): National
DOJ: National Security
DOJ: National Security
Security Division; FBI
Division; FBI
Division; FBI
Penalties
Criminal: $1 million/20
Criminal: $1 million/10
Criminal: Individual—
years imprisonment
years imprisonment
$250,000/12 years to life
imprisonment; Firm—
Civil: $250,000/Denial of
Civil: $500,000/forfeiture
$500,000 (NRC and
export privileges
of goods, conveyance
DOE)
(IEEPA)
Denial of export
Civil: $100,000 per
privileges for either
violation (NRC)
Source: Congressional Research Service (CRS).
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Appendix B. Dual-Use Export Licensing Process
Figure B-1. Dual-Use Export Licensing Process
(Executive Order 12981, December 1995)
Source: Prepared by Ian F. Fergusson, Congressional Research Service (CRS).
Notes: 1 The time periods for the appeal procedure reflect a five-day window of appeal and an 11-day period for each body to make a decision.
2 A license application must be resolved or appealed to the President within 90 days. The order does place a time limit on a presidential decision.
* SNEC, Sub-Groups on Nuclear Export Policy, MTEC, Missile Technology/Export Control Group; SHIELD Chemical and Biological Weapons Control Group.
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The U.S. Export Control System and the President’s Reform Initiative
Appendix C. List of Acronyms
AECA—Arms Export Control Act
AES—Automated Export System
BIS—Bureau of Industry and Security, Department of Commerce
CBP—Customs and Border Protection, Department of Homeland Security
CCL—Commerce Control List
CML—Commerce Munitions List
CPI—Counter-Proliferation Investigations
CW—Chemical Weapons
DCIS—Defense Criminal Investigation Service
DDTC—Directorate of Defense Trade Controls, Department of State
DHS—Department of Homeland Security
DOJ—Department of Justice
DTSA—Defense Technology Security Administration
EAA—Export Administration Act
EAR—Export Administration Regulations
ECCN—Export Control Classification Number
EECC—Export Enforcement Coordination Center
EEB—Economic, Energy, and Business Bureau, Department of State
FP—Foreign Policy Controls
GAO—Governmental Accountability Office
IEEPA—International Emergency Economic Powers Act
ICE—Immigration and Customs Enforcement Agency, Department of Homeland Security
ISN—International Security and Nonproliferation Bureau, Department of State
ITA—International Trade Administration, Department of Commerce
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ITAR—International Traffic in Arms Regulations
MTCR—Missile Technology Control Regime
NEECN—National Export Enforcement Coordination Network
NRC—Nuclear Regulatory Commission
NS—National Security Controls
NSG—Nuclear Suppliers Group
OEE—Office of Export Enforcement
ODTC—Office of Defense Trade Compliance, DDTC
OFAC—Office of Foreign Assets Control, Department of the Treasury
SI—Significant Items Controls
SL—Surreptitious Listening Controls
SS—Short Supply Controls
STA—Strategic Trade Authorization
USML—U.S. Munitions List
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Appendix D. Proposed Migration Of Certain USML
Items to the CCL
Table D-1. Proposed Migration Table
USML Category
Proposed CCL Destination
Status: Date/Federal Register
Category IV: launch vehicles,
Category 0: Nuclear Materials,
Proposed January 16, 2013: 78 Fed.
missiles, rockets, torpedoes, bombs,
Facilities and Equipment, and
Reg. 6750 (EAR), 78 Fed. Reg. 6765
mines, and other military explosive
Miscellaneous; Category 9:
(ITAR)
devices
Aerospace and Propulsion
Category V: Explosives and Energetic Category 1: Materials, Chemicals,
Proposed May 2, 2012: 77 Fed. Reg.
Materials, Propellants, Incendiary
“Microorganisms”, Toxins
25932 (EAR), 77 Fed. Reg. 25944.
Agents and Their Constituents
Category VI: Vessels of War and
Category 8: Marine; Category 9
Proposed December 23, 2011: 76
Naval Equipment
(GTE)
Fed. Reg. 80291(EAR); 76 Fed. Reg.
80302 (ITAR)
Category VII: Tanks and Military
Category 0: Nuclear Materials,
Proposed July 15, 2011: 76 Fed. Reg.
Vehicles
Facilities and Equipment, and
41957 (EAR); Revision: December 6,
Miscellaneous; Category 9 (GTE)
2011: 76 Fed. Reg. 76085 (ITAR) ; 76
Fed. Reg. 76085 (EAR)
Category VIII: Aircraft and
Category 9: Propulsion Systems,
Proposed November 7, 2011: 76
Associated Equipment
Space Vehicles, and Related Items
Fed. Reg. 68675 (EAR); 76 Fed. Reg.
68694 (ITAR); Final Rule, April 16,
2013: 78 Fed. Reg. 22660 (EAR); 78
Fed. Reg. 22740 (ITAR).
Category IX: Military Training
Category 0: Nuclear Materials,
Proposed June 13, 2012: 77 Fed. Reg.
Equipment
Facilities and Equipment, and
35310 (EAR); 77 Fed. Reg. 35319
Miscellaneous;
(ITAR)
Category X: Protective Personal
Category 1: Materials, Chemicals,
Proposed June 7, 2012: 77 Fed. Reg.
Equipment and Shelters
“Microorganisms”, Toxins
33688 (EAR); 77 Fed. Reg. 33698
(ITAR)
Category XI: Military Electronics
Category 3: Electronics; Category 9:
Proposed November 28, 2012: 77
(Includes certain cryogenic and
Aerospace and Propulsion
Fed. Reg. 70945 (EAR); 77 Fed. Reg.
superconductive eq. operated in
70958(ITAR)
motion in Cats. VI,VII,VIII & XV)
Category XIII: Auxiliary Military
Category 0: Nuclear Materials,
Proposed May 18, 2012: 77 Fed. Reg.
Equipment
Facilities and Equipment, and
28250 (EAR); 77 Fed. Reg. 29575
Miscellaneous;
(ITAR);
Category XVI: Nuclear Weapons
Category 1: nuclear materials; some
Proposed January 30, 2013: 78 Fed.
Related articles.
items also under NRC, Energy Dept.
Reg. 6269 (ITAR)
control.
Category XIX: Gas Turbine Engines
Category 9: Aerospace and
Proposed December 6, 2011: 76
(GTE) (New category consolidating
Propulsion
Fed. Reg. 76072 (EAR); 76 Fed. Reg.
GTE from Categories VI, VII, VIII).
76097 (ITAR); Final Rule, April 16,
2013: 78 Fed. Reg. 22660 (EAR); 78
Fed. Reg. 22740 (ITAR).
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USML Category
Proposed CCL Destination
Status: Date/Federal Register
Category XX: Submersible Vessels
Category 8: Marine
Proposed December 23, 2011: 76
and Oceanic Equipment
Fed. Reg. 80291 (EAR) ; 76 Fed. Reg.
80305 (ITAR)
Source: Congressional Research Service
Note: GTE: Gas Turbine Engine
Author Contact Information
Ian F. Fergusson
Paul K. Kerr
Specialist in International Trade and Finance
Analyst in Nonproliferation
ifergusson@crs.loc.gov, 7-4997
pkerr@crs.loc.gov, 7-8693
Acknowledgments
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