Proposed Changes to Export Control of Certain Categories of the U.S. Munitions List
As part of Phase II of the export control reform (ECR) initiative, the various categories of the U.S. Munitions List (USML) are being reviewed for possible revision, including transfer from Department of State to more relaxed Department of Commerce export rules. This process involves several steps: consideration by subject-matter experts of those items currently being controlled; identification of proposed changes; notification in the Federal Register; and a period for public comment. Each category review is proceeding at a slightly different pace, and not all categories have undergone the same segments of review. The following summaries present details from a representative sample of USML categories.
Category I: Firearms
Firearms with a caliber of .50 inch or smaller, with the exception of handguns and noncombat shotguns, are currently controlled by the Department of State under the USML. Under rules being considered, only fully automatic firearms would remain under State’s control. Most firearms would move to Commerce Department jurisdiction under the Commerce Control List (CCL). These firearms are similar to those used for hunting, target practice, and self-defense. They have wide distribution and are rarely used for military purposes. Most military firearms, with the exception of some sniper weapons, have a fully automatic mode.
Also under discussion is the export control of new and future firearms that may contain software, computers, and the capability of being integrated into a fire control network. These include new weapons that fire more than one bullet through the same barrel while the trigger is depressed, and firearms with multiple barrels. These firearms are considered automatic, and new language is being considered to ensure their inclusion on the State Department list.
Category II: Guns and Armaments
Guns with a caliber larger than .50” (12.7mm) are currently controlled by the State Department. These guns include howitzers, mortars, cannons, and recoilless rifles, whether towed or self-propelled. These weapons are considered inherently military with no civil use, and the proposed rules would leave them subject to State’s control.
Consistent with the overarching rules of the ECR process, specially designed components that are not specifically identified would be allowed to transfer to the CCL. Flamethrowers are no longer used in most militaries; as such, they are also being considered for Commerce Department control. Certain other sections of the State Department rules for concealing and controlling the signatures of these weapons are also under review to harmonize them with the other parts of the department’s rules concerning signature management.
Category III: Ammunition/Ordnance
Ammunition for all firearms, with the exception of shotguns shells, is currently controlled under State Department rules. Under rule changes being discussed, most ammunition for firearms with a caliber smaller than .50 inch (12.7mm) would move to the CCL. This ammunition is used by hunters and shooting enthusiasts and has wide civil use and distribution.
Armor-piercing ammunition and other specialized military ammunition smaller than .50 caliber would remain under State’s rules, as well as ammunition for all guns with a caliber of .50 inch and larger. This ammunition is considered inherently military with no civil applications.
Again, some specially designed components that are not specifically identified would be allowed to transfer to Commerce control, in line with the overarching rules of the ECR process.
Category IV: Launch Vehicles, Guided Missiles, Rockets, Torpedoes, Bombs, and Mines
Under rules being discussed, the Commerce Department would assume control over various systems, subsystems, components, parts, accessories, attachments, or associated equipment found in launch vehicles and rockets that the State Department previously controlled.
Under current rules, State controls the export of rockets, including meteorological and other sounding rockets. Many of the components found in military weapons have commercial application as well (for example, flight control systems for airplanes and surveillance unmanned aircraft, guidance systems used in civil aviation, and nose fairings). For that reason, the State Department export rules are being rewritten to exclude components that have commercial use. The new rules will clarify that only components that are “specially designed” for military systems will be controlled by State.
Meteorological and other sounding rockets would fall under Commerce control. State would maintain control of rockets, bombs, torpedoes, depth charges, guided missiles, ballistic missiles, and mines.
This process involves several steps: consideration by subject-matter experts of those items currently being controlled; identification of proposed changes; notification in the Federal Register; and a period for public comment. Each category review is proceeding at a slightly different pace, and not all categories have undergone the same segments of review.
Category V: Explosive Materials
Under newly proposed rules, the Commerce Department would assume control over some of the aluminum powder, hydrazine, and derivatives that are used to manufacture explosives and rocket motor propellants. These items are currently controlled by State Department under the USML, but they were determined to no longer warrant such stringent control. Once implemented, this change would allow companies to export these compounds to foreign countries and foreign companies that are authorized under Commerce rules but which are not allowed to receive exports under State’s rules.
Commerce also proposes to move production equipment and software for manufacturing explosives and solid propellants, currently under existing control standards, to new U.S. interagency standards. This change to its regulations would not affect DoD.
The USML will be rewritten to remove the catchall phrase that broadly controls explosives designed and manufactured for military use. The review process determined that this phrase is too broad and that most of the items this provision controls no longer warrant control on the USML. One explosive, 2,4-dinitroanisole (DNAN), which is currently controlled by this catchall phrase, would get its own category because it has significant military and little commercial application. This change would allow the export of certain explosives under Commerce rules while ensuring that DNAN stays on the USML.
Another section of the USML would be modified to ensure that certain insensitive energetic compounds used in military explosives are properly identified on the USML. This change would lower the control for detonation velocity of certain explosives from 8,700 meters per second to 8,000 meters per second. This change would harmonize the USML with multilateral regimes and give better guidance to U.S. exporters.
Category VII: Ground Vehicles
Under newly proposed rules, export control of military ground vehicles would change. The new rules would remove from the USML unarmored vehicles, unless they include firing mounts for .50 caliber or larger weapons. Unarmored vehicles would move to the CCL under the jurisdiction of the Commerce Department.
Major items such as tanks and fighting vehicles—as well as components that are inherently military and specifically called out, such as gun mounts, armoring, turrets, protection against electromagnetic pulse, and so on—would remain under State Department jurisdiction.
The components of many trucks and military vehicles are similar (for example, brakes, tie rods, skid plates, engines, etc.). These parts would be controlled under new Commerce rules that would specifically control military equipment components. This significant change would reduce the licensing burden, in time and personnel, on exporters. Many components are specially designed for use in military vehicles but are simply commercial items modified by testing to military standards or by adding specialty paints or making dimensional modifications to integrate them with military vehicles.
One of the goals of the review process is to establish a “bright line” between what is and is not controlled under the Departments of State and Commerce. These newly proposed rules would allow for greater understanding of the jurisdictional lines. This grouping of ground vehicles, equipment, and technologies is expected to be the lead category for finalization as it best establishes the methodology undergirding the ECR initiative and objectives by making the rules more transparent and less burdensome.
Category VIII: Aircraft and Related Articles
Under revised rules being discussed, the Commerce Department would assume control over various aircraft systems, subsystems, components, parts, accessories, attachments, or associated equipment found in aircraft and related systems currently controlled by State.
State currently controls a wide variety of aircraft and related items identified as defense articles. Many aircraft under its control have commercial applicability and designs that are no inherently military (for example, cargo aircraft or utility and cargo helicopters not capable of in-flight refueling). Certain of these aircraft are under consideration for control by Commerce.
Other proposed rules that would optimize and streamline State Department export control include movement of similar aircraft-borne systems, subsystems, and equipment into common control categories (for example, inertial navigation systems, formerly grouped for control under aviation items, equipment, and technologies, are likely to be moved to a grouping for auxiliary equipment on the CCL, and gas turbine engines would be grouped under a new category altogether).
Additionally, proposed rules would transfer control of generic aircraft parts, components, accessories, and attachments—even some specifically designed or modified for a defense article—to the CCL, with the exception of a few items specially designed for specific aircraft with unique features. All other aircraft parts, components, accessories, and attachments now subject to control under the USML will be proposed for transfer to the CCL.
Category IX: Military Training and Associated Equipment
Certain training technologies have been identified by Departments of Defense, State, and Commerce as inherently military or sensitive for national security reasons and are proposed for continued control under the USML. They include training equipment that mimics characteristics of specific military articles, items, or people, such as air combat, antisubmarine, missile launchers, and physiological flight trainers for fighter aircraft and attack helicopters. Likewise, certain simulators that replicate these characteristics will continue to be controlled under the USML, such as radar target generators or infrared scene generators. All classified items and classified information used in production of this category are also controlled under State’s jurisdiction.
Other trainers or simulators not specified on the USML but having a dual use would move to the jurisdiction of Commerce under more relaxed export control regulations. These include parts and components not identified as integral to items specified on the USML as well as test, inspection, and production equipment for related items.
It is also important to note that the title for this particular USML category would change to clarify that it covers only the military training equipment, not the training itself. Training for a particular defense article would fall under the category in which that article is export-controlled and would be called a defense service. Defense services are defined separately and carry their own rules and regulations for export under the State Department’s International Traffic in Arms Regulations, of which the USML is one part.
Category X: Protective Personnel Equipment and Shelters
Under the new export rules, body armor with a National Institute of Justice (NIJ) standard of Type IV or greater will remain under State Department control. Body armors categorized as Type III or less would be moved to the jurisdiction of Commerce. Additionally, certain atmospheric suits previously controlled by State would now move to Commerce (for example, G suits, pressure suits, and deep diving suits). Goggles and other protective eyewear meeting a specified optical density threshold will remain under State Department rules. Shelters, production equipment for shelters and protective gear, and other parts and components not considered sensitive for national security reasons would also move to Commerce jurisdiction. Other parts or components meeting specified qualities will remain under State’s rules.
Category XI: Electronics
Most types of ground and air surveillance radars are currently under State Department jurisdiction; this includes radar systems with the capabilities of search, acquisition, tracking, moving target indication, and imaging. This broad definition includes most types of surveillance radars. The USML will be rewritten to identify radars “specially designed” for military use or with performance criteria that must be controlled by State. Providing thresholds in terms of performance will mean that many surveillance radars that also have commercial applications would move to the CCL. The USML rewrite will also address other radars with commercial applications. These include sea surveillance, instrumentation, ground penetration, sense-through-wall, and synthetic aperture radars.
Most types of electronic combat equipment, active and passive countermeasures, counter-countermeasures, and all radios designed or modified to interfere with communication devices will remain under State Department jurisdiction.
One of the objectives of ECR is to provide more precise definitions of what is to be controlled and by which authority. As such, the USML will be rewritten to include specific definitions of equipment types that will remain under State’s control. Some examples follow.
• Electronic support (ES): Systems and equipment that search for, intercept and identify, or locate sources of intentional or unintentional electromagnetic energy for the purpose of immediate threat detection, recognition, targeting, planning, or conduct of future operations, to include tactical situational awareness, automatic cueing, targeting, electronic order of battle planning, electronic intelligence, communication intelligence, and signals intelligence.
• Acoustic sensors: Systems and equipment that detect and automatically discriminate acoustic energy emanating from weapons fire (for example, gunfire, artillery, rocket-propelled grenades, or other projectiles), determining location or direction of weapons fire in less than two seconds from receipt of event signal, and are able to operate on the move (for example, on personnel, land vehicles, sea vessels, or aircraft in motion).
• Electronic Attack: Systems and equipment “specially designed” to introduce extraneous or erroneous signals into radar, infrared-based seekers, electro-optical-based seekers, radio communication receivers, or navigation receivers, or that otherwise hinder the reception, operation, or effectiveness of adversary electronics (for example, active or passive electronic attack, electronic countermeasure, electronic counter-countermeasure equipment, jamming and counter-jamming equipment).
It is anticipated that the proposed new rules will be put into effect by the end of calendar 2012.
Category XIII: Materials and Miscellaneous Articles
Under newly proposed rules, there would be many changes in the export of miscellaneous military equipment. It is noteworthy that the name has been changed to add “Materials” to the old title. Certain materials having specific military use are identified.
Certain camera equipment used for military surveillance would be removed and would now be exported under Commerce Department jurisdiction with reduced controls. Additionally, self-contained diving apparatuses would also move under the Commerce rules for export.
Body armor, currently controlled under a different grouping, would be moved to this expanded category of equipment and materials. Significantly, the rules that determine whether armor is controlled under State Department rules have changed to incorporate testing standards established by the NIJ. Certain materials that are components in the manufacture of armor plates are also specifically called out if they meet the material strength requirements of the NIJ standard Level III or greater. Exporters would be able to apply objective test standards to know whether their armor is controlled by the State or Commerce rules.
The section on classified materials was expanded to call out export controls when classified materials, classified production processes, or classified information is used. These changes were made to clarify what is controlled under State’s rules.
Some materials used in the construction of military vehicles and aircraft are currently controlled under Category XIII but would be moved to the category controlling their parent system.
Signature control software used for controlling the infrared/radar/visual signature, methods used to identify military equipment, would get its own paragraph that expands the depth of coverage.
Finally, to aid exporters, the “MT” designation was added to materials that also fall under the Missile Technology Control Regime (MTCR), so as to more clearly denote those items that can only be exported to regime partners as determined by the MTCR guidelines.
Category XV: Spacecraft Systems and Associated Equipment
Section 1248 of Public Law 111-84, the National Defense Authorization Act for Fiscal Year 2010, required the Secretaries of Defense and State to assess the national security risks of removing satellites and related components from the USML. The assessment included a review of space and space-related technologies currently on the USML, and the national security risks of removing certain space and space-related technologies from the list.
The report provided recommendations for removal from the USML based on risk assessment; proposed safeguards and verification necessary to prevent proliferation and diversion of space and space-related technologies; confirmed appropriateness of end uses and end users; minimized the risk that such space and space-related technologies could be used in foreign missile, space, or other applications that may pose a threat to the security of the United States; and proposed improvements to space export control policy and processes.
Under discussion are rule changes that would move most communication satellites and certain sensing satellites to the CCL, under Commerce jurisdiction. These changes, however, remain subject to congressional authorization, which is required to move the items from the USML to the CCL.
A great deal of the review work has focused on methods to determine which rules should control the parts, components, and accessories of satellites. Satellites are very complex, containing as many as 100,000 parts and components. Under discussion for remaining on the USML under State’s jurisdiction are critical items such as atomic clocks, space-qualified sensors with imaging and sensing capabilities that are of strategic importance, and other key components (for example, stabilization components) of satellites that are important to military applications.
If this is implemented, most communication satellites, less sensitive components, certain radiation-hardened components, and accessories would be allowed to move to Commerce export controls.
Category XVIII: Directed Energy Weapons
Equipment developed for generating and propelling high-power laser beams, plasmas, and subatomic particles—used to destroy, degrade, or cause a mission abort of military equipment—is under State Department export jurisdiction.
Under discussion are rule changes to create a better understanding by exporters of these weapons’ measurable attributes that would allow them to be easily distinguished from commercial applications that use similar components for civil applications such as welding, cutting, medical treatments, and high-energy physics research.
The core of the review work and proposed revisions is to identify power levels and related destructive capacity of the energy beams. An associated problem is the need to keep the rules unclassified so that they can be published broadly. Discussions continue on how best to identify these items so that exporters can easily distinguish the export regime to be used.
If the rule changes are implemented, specially designed components not specifically identified could be exported under Commerce jurisdiction.
- Sections of this piece were contributed by a number of individuals from DASA(DE&C)’s Security Cooperation Integration and Exports Directorate. They include Leroy Chamness (Categories I, II, III, V, VII, XIII, XV, and XVIII), Rich Catano (Cats. IV and XI), Mike Yarnoff (VIII), Chris Landon (Cats. IX and X), and A.J. Vaughn (XI).
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