WikiLeaks has gotten the State Department so flustered that it is leaking its own documents. Today DDTC posted a working document discussing proposed changes to Category XII of the United States Munitions List (“USML”). The document had emblazoned on each page “For DTAG Discussion only, not for release outside of the DTAG.” Fortunately, there was no discussion of voluptuous Ukrainian nurses traveling with a certain flamboyant dictator. Instead, the only things of even remotely prurient interest in the document are things that would only cause the most hard-core export geeks to break a sweat.

Category XII(b) currently controls:

Lasers specifically designed, modified or configured for military application including those used in military communication devices, target designators and range finders, target detection systems, and directed energy weapons.

The DTAG working document would substantially narrow this category. Naturally the “specifically designed, modified or configured for military application” language would go the way of VHS recorders and CRT televisions. Instead three specific classes of lasers would be called out and placed in Tier 2:

a. (ITAR T2) Lasers designed exclusively for directed energy weapons.

b. (ITAR T2) Lasers for target designators containing standard or encoded designator pulse formats

c. (ITAR T2) Lasers specifically designed for infrared countermeasures.

Under this formulation, military communications lasers and target detection systems would not be controlled by the USML and directed energy weapon lasers would only be covered if the laser was exclusively designed for directed energy weapons. And since these lasers would be in Tier 2, these lasers would be exempt from license requirements to countries that are allies and strategic partners.

Even more interesting is the language relating to the proposed new controls on Gen3 night vision:

5. (ITART2) Gen3 image intensification tubes with a FOM of XXXX or more.

6. (ITAR T3) Gen 3 image intensification tubes with a FOM of XXXX or less.

You can spend all day looking for “FOM” in the current controls for night vision set forth in the USML, so it’s interesting to see this concept, long a mainstay of provisos for night vision export licenses, take a step out of the closet and take a bow. “FOM” stands for Figure of Merit which is a performance-based measure calculated from the number of line pairs per millimeter multiplied by the signal-to-noise ratio of the image intensifier tube. Although the FOM number is left blank in the draft, it is likely to around 1600 FOM. This will eliminate most controls on night vision with an FOM under 1600 by placing it in Tier 3 where licenses will only be required for the most sensitive destinations

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 E_m > 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 E_m yet:

This is probably the time for me to remind you that there is no crying in export law.