Dec
14
Export Reform: Boon for Engineers, Bane for Lawyers?
Posted by Clif Burns at 5:44 pm on December 14, 2010
Category: DDTC • Export Reform
One of the oft-stated goals of the White House’s export control reform initiative is to transform the United States Munitions List (“USML”) to a “positive” list like the Commerce Control List (“CCL”). Instead of squishy category descriptions like “any snark-qualified widget specifically designed, modified or configured for military application,” you would have a positive, easy-to-apply category description like “any snark-qualified widget, n.e.s., with a height-to-width ratio exceeding 16:9, a weight in excess of 2.4 kilograms, and made from teflon, gorilla tape, or travertine stone.”
Of course, the problem here is that the bright line description, in order not to be overly broad, may need to be so technical that the line is bright only to a highly skilled engineer trained in a particular technology and completely dark and unintelligible to everyone else. Exporters who have struggled with classification under the Commerce Control List are familiar with this phenomenon for high-performance computers, certain digital networking devices and the like.
Now enter the proposed revisions to USML Category VII released last week. In particular, let’s take a look at Category VII(c) which covers vehicle armor. Category VII(c)(7) under the proposed rule would cover “Composite armor with Em > 1.4 and meeting NIJ Level III or better.” Well, that’s a breath of fresh air, you think, something that will be easy to apply by exporters, young and old.
Not so fast there, bucko. You haven’t seen the definition of Em yet:
This is probably the time for me to remind you that there is no crying in export law.
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5 Comments:
Wonderful! No matter what the USG does in export controls, it never seems to make things easier for exporters. Neverthless, I like Obama’s new approach, and hope it succeeds.
Clif, happy holidays to you and your readers.
The use of formulas and engineering language is still better than determinations based only on DDTC interpretation–especially moving target interpretations. DDTC’s effort to make improvements is encouraging even if it does cause the occasional “crying-out-loud” response.
OMIGAWD. Really? No, really? You’re expecting me to convince “the legals” (lawyers) that I’m right on my classification with some Egyptian hyroglific? Oh, this should make great fun, and better arguments.
It’s funny how something so technical can have so much politics wrapped up in it. The ‘negative’ – or perhaps one might say ‘functional’ – definitions used in the USML are a of politically saying “(military) security is a key part of the the state apparatus and something we will not let anything impede upon.” It is a strong stance, where the CCL is something that the security aficionados quietly slide behind their back while speaking to you about it. By moving to a positive list, it is a political move that says “yes security is important, but…”
(That’s a reference to Obama on the The Daily Show. The good bit is from 5:30-6:00)
You’re right, Clif. It will be a boon to engineers, but also for lawyers, who will have to sort out more cases. How many of your cases come from the CCL vs the USML?
More interestingly for me, though, is what the shift means for the broader shape of export controls in the coming years. As you know, more technical definitions mean more frequent changes and more bureaucracy to maintain (on both the corporate and government side).
I was actually thinking this week about what it would mean for the CCL to move to a functional list. For instance, instead of controlling amorphous silicon microbolometer focal plane arrays, we could control any optical system capable of producing a viewable image at distance X with clarity Y under low or no-light conditions. No mention of what the thing is made of, just what it can do. What do you see as the major detriment to this kind of definition?
All this talk about revising the USML is causing so much confusion and frustration where I work. Most people I work with have no concept of what the USML even is and only work with the CCL. For some reason they started to telling the rest of the company that the two lists are going to be combined (like it’s going to happen next month). Man, they have no idea how different the two lists are and how long it’s going to take for the USML to be revised enough to even remotely resemble the CCL. Combining the two? Would that even happen in our life time?
The two lists are currently opposite of each other. Items not on the CCL are EAR99/not controlled. There is no such concept for the USML. Needless to say there are tons of other obvious contrasts that would make the thought of combining the two a bit uncomfortable on multiple levels.
I agree with the other reviewer that all this change is just going to add more administrative costs and lawyer fees. And yes, the more specific the technical parameters are the more frequently the classifications are going to change. Just another huge pain in the *** for exporters. Classification for products on the USML is a walk in the park compare to the CCL. What about the ITAR services and technical data? How are they going to be specified?
