“And for American exporters, time they could be spending figuring out how to sell their products is instead spent navigating a confusing and time-consuming export control bureaucracy.” – Secretary of Commerce Gary Locke, August 31, 2010 [F/N 1]
U.S. industry regularly experiences uncertainty and delay from the lack of clarity and agency disputes on export licensing jurisdiction, which is principally split between the departments of State and Commerce. To address this problem as part of its Export Control Reform Initiative (“ECR”), the Obama administration promises to establish a single export control list for items and technology currently subject to department of State and Commerce jurisdiction and a single export licensing agency.[F/N 2] As noted by the administration:
“The goal of ECR is the creation a Single Control Agency (SCA), which would act as a ‘one stop shop’ for businesses seeking an export license and for the USG to coordinate review of license applications. The result will be a licensing process that is transparent, predictable, and timely.”[F/N 3]
Setting the Stage for a Single List and Single Licensing Agency
For the stated purpose of setting the stage for the single export control list and single export licensing agency, the administration has transferred, and continues to transfer, many items from the Department of State’s U.S. Munitions List (“USML”) to a newly created Commerce Munitions List (also known as the new “600 Series ECCNs”), which is now part of the Department of Commerce’s Commerce Control List (“CCL”).
The administration has also given the Department of State overlapping licensing jurisdiction over certain CCL items, added new Congressional notification requirements for sales of certain CCL items, created a new interagency classification review process, a new division inside Commerce to administer the Commerce Munitions List, new license exceptions, new definitions, and other complexities inherent in aligning the USML and CCL for eventual merger into the single control list and license processing by a single agency.
The oddity of transferring purely military items to the CCL, which was formerly reserved for dual-use items (i.e., items with both civilian and military applications), creates a conceptual disconnect with decades of export control standards and changes made to simplify the system under the Clinton-era export control reform.[F/N 4] The transfers have also significantly impacted the U.S. defense industry, which has been forced to apply significant resources to reclassify products and technology and retool and implement internal programs covering items and technology formerly controlled only under Department of State regulations.
The administration stopped short of establishing the single list and single agency, acknowledging that legislation is required for these to occur.[F/N 5] It has not yet formally presented Congress with proposed legislation for these changes, but plans to do so at the final phase of the ECR effort. By pursuing this strategy, the administration has, at least temporarily, avoided the delay inherent in added Congressional committee reviews. It may have also avoided Congress’ failure to pass authorizing legislation from the onset, which would have prevented the administration from citing the prospect of a single licensing agency as justification for its complex approach to reform.
Of course, knowing whether Congress will pass the legislation is important to determining the proper approach to reform. As noted in earlier DTL posts, there was an alternative to the present ECR approach if the only true primary, or only truly achievable, ECR goal is to increase interoperability with allies. Here, a simple amendment to the Arms Export Control Act to allow country-based exemptions outside of bilateral defense trade treaties, such as that offered to the administration by Congress in 2012[F/N 6] would have sufficed. With such an exemption in place, the administration could have still positively enumerated items subject to control on the USML and CCL, transferred commercial communication satellites to the CCL, harmonized differing agency definitions, removed outdated sections, clarified regulatory requirements, consolidated enforcement responsibilities and IT systems, and made other changes to improve the existing framework.
Pitfalls of a Single List without A Single Licensing Agency
A stated intent of the administration is to turn the ITAR and CCL into positive control lists with specific performance parameters subject to control. The move toward a more positive control list is a definite improvement over the prior regulations. However, many of the new control entries created by ECR with the list transfers include reference to “specially designed,” a catch-all control newly defined by the ECR Task Force.
The Task Force definitions for specially designed are long, multi-staged, and subject to varying interpretations. Agency guidance on use of the new definitions is spread throughout federal register notices, online decision tools, conference presentations, and speeches by senior agency officials. Even if successful in putting these pieces of the regulatory puzzle together, the definitions remain confusing and exporters still face other risks of error in self-determining agency jurisdiction because the majority of agency guidance on the scope of specially designed is nonbinding and subject to change. Accordingly, a single list administered by multiple licensing agencies will not eliminate the risk exporters face in determining export jurisdiction of items using the specially designed catch-all or deciphering other control listings subject to varying interpretations. Having a single list without a single licensing agency will also not eliminate agency disputes over jurisdiction because agencies working from a single list may still dispute where items fall on the single list, especially when a control listing at issue contains the specially designed catch-all.
A Single Licensing Agency is Essential to Success of ECR
Establishing a single agency from which exporters are to obtain licenses is essential to true success of the ECR effort because it will, once and for all, eliminate both the guesswork of agency licensing jurisdiction and eliminate agency disputes on licensing jurisdiction.
The single licensing agency also is the very nature of change called for by Former Secretary Gates at the onset of ECR when he described “a single licensing entity, which will have jurisdiction over both munitions and dual-use items and technologies, will streamline the review process and ensure that export decisions are consistent and made on the real capabilities of the technology.”[F/N 7] He further warned back then that “[t]inkering around the edges of our current system will not do.”[F/N 8]
Hopefully, the administration is not needlessly confusing already overly complex regulations in anticipation of something that will not occur. It has provided little information on the content of the single agency legislation and the most recent White House Fact Sheet on ECR does not even mention the status of the single export licensing agency.[F/N 9]
Let’s hope the administration can make the single agency happen. If not, the presence of purely military items on the CCL, new Congressional notification requirements, overlapping jurisdiction, and many other changes being made by the administration (that make little sense without a single licensing agency) will leave us with an overly complex and conceptually disconnected system for years to come.
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[F/N 1] See http://export.gov/%5C/ecr/eg_main_027616.asp
[F/N 2] See e.g., The White House Office of the Press Secretary, “White House Chief of Staff Daley Highlights Priority for the President’s Export Control Reform Initiative,” July 19, 2011 (“When completed, the President’s export control reform initiative will result in a single control list, a single licensing agency, a single primary enforcement coordination agency, and a single information technology system.”); The White House Office of the Press Secretary, April 20, 2010 (“The Administration has determined that fundamental reform of the U.S. export control system is needed in each of its four component areas, with transformation to a: Single Control List, Single Primary Enforcement Coordination Agency, Single Information Technology (IT) System, and Single Licensing Agency.”); “The Administration’s Export Control Reform Plans Remarks by General Jones, National Security Advisor,” June 30, 2010, at p. 15 (“For the Single Licensing Agency, as we’re calling it, the Administration supports the creation of an independent entity, governed by a Board of Directors comprised of the Cabinet officials of the current departments with export control responsibilities, which reports to the President. We anticipate that leadership of the SLA would be nominated by the President, with the advice and consent of the Senate.”).
[F/N 3] “Licensing Policy Review and Building a Single Licensing Agency,” Export Control Reform Task Force page on Department of Commerce International Trade Administration Export.gov Website, available at http://export.gov/ecr/eg_main_027616.asp (last visited January 11, 2014); see also “A Resource on Strategic Trade Management and Export Controls,” U.S. Department of State, available at http://www.state.gov/strategictrade/overview (last visited January 11, 2014) (“The goal of the ECR Initiative is to create a Single Licensing Agency (SLA), which would act as a “one stop shop” for businesses seeking an export license and for the USG to coordinate review of license applications.”).
[F/N 4] “Export Administration Regulation; Simplification of Export Administration Regulations,” 561 Fed. Reg. 12714, March 25, 1996.
[F/N 5] “Export Control Reform Initiative Fact Sheet #1: The Basics,” November 11, 2013, available at http://export.gov/%5C/ecr/eg_main_023180.asp (“Phase III will require legislation to implement a government reorganization that would consolidate the current system into a: – Single Control List – Single Licensing Agency – Single Primary Enforcement Coordination Agency – Single IT System.”); Statement of Kevin J. Wolf Assistant Secretary of Commerce Bureau of Industry and Security United States Department of Commerce Before the Committee on Foreign Affairs, U.S. House of Representatives Hearing on Advancing Export Control Reform: The Agenda Ahead, April 24, 2013 (“Of course, when we move beyond rewriting the lists to merging them into one, legislation will be necessary to establish a single list as well as a single licensing agency and a primary enforcement coordination agency, the three final pieces of the fundamental reform envisioned by this initiative.”); “Fact Sheet on the President’s Export Control Reform Initiative,” The White House Office of the Press Secretary, April 20, 2010 (“Phase III completes the transition to the new U.S. export control system. Legislation would be required for this phase: Control List – merge the two lists into a single list, and implement systematic process to keep current. Licensing – implement single licensing agency.”).
[F/N 6] The Foreign Relations Authorization Act for Fiscal Year 2013 (H.R. 6018) proposed to amend the Arms Export Control Act by adding “38(l) SPECIAL EXPORT LICENSING FOR UNITED STATES ALLIES,” which provided:
“The President may establish special licensing procedures for the export of replacement components, parts, accessories, attachments, equipment, firmware, software or technology that are not designated as major defense equipment or significant military equipment to the North Atlantic Treaty Organization, any member country of that Organization, or any other country described in section 36(c)(2)(A) of this Act.”
This bill passed the House on July 17, 2012 and was pending at the Senate at the time ECR provisions were added to the National Defense Reauthorization Act for Fiscal Year 2013.
[F/N 7] Remarks as Delivered by Secretary of Defense Robert M. Gates to Business Executives for National Security (Export Control Reform), Ronald Reagan Building and International Trade Center, Washington DC, Tuesday, April 20, 2010, available at http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1453
[F/N 8] Ibid.
[F/N 9] “Fact Sheet: Announcing the Revised U.S. Export Control System,” The White House Office of the Press Secretary, October 15, 2013, Available at http://www.whitehouse.gov/the-press-office/2013/10/15/fact-sheet-announcing-revised-us-export-control-system; see also http://export.gov/%5C/ecr/index.asp