State Dept Proposes to Assign Tier System to USML Category VII

(The State Department has issued this proposed rule as part of the President’s Export Control Reform effort. The same “tiering” structure is planned to be applied to the remaining USML categories as they are reviewed and revised.)

Comments are due by February 8, 2011.

State Proposes to Categorize Cat VII Articles by 3 Tiers

The Department of State proposes to revise Category VII under 22 CFR 121.1 (Tanks and Military Vehicles) to assign all controlled defense articles under this category one of the three control criteria, that is Tier 1 (T1), Tier 2 (T2), or Tier 3 (T3), which were made upon a government-wide assessment of the appropriate level of export control for each item based upon different types of destinations, end-uses, and end-users.

The scope of the three tiers is as follows:

Tier 1

Tier 1 defense articles are those that are almost exclusively available from the United States and that provide a critical military or intelligence advantage. A Tier 1 control shall apply to:

a. A weapon of mass destruction (WMD);

b. A WMD-capable unmanned delivery system;

c. A plant, facility or item specially designed for producing, processing, or using:

(i) WMDs;

(ii) special nuclear materials; or

(iii) WMD-capable unmanned delivery systems; or

d. An item almost exclusively available from the U.S. that provides a critical military or intelligence advantage.

Tier 2

Tier 2 defense articles are those that are almost exclusively available from countries that are members of the multilateral export control regimes that control such items and (i) provide a substantial military or intelligence advantage, or (ii) make a substantial contribution to the indigenous development, production, use, or enhancement of a Tier 1 or Tier 2 item.

A Tier 2 control shall apply to an item that is not in Tier 1, is almost exclusively available from Regime Partners or Adherents and:

a. Provides a substantial military or intelligence advantage; or

b. Makes a substantial contribution to the indigenous development, production, use, or enhancement of a Tier 1 or Tier 2 item.

Tier 3

Tier 3 defense articles are those that provide a significant military or intelligence advantage, or make a significant contribution to the indigenous development, production, use, or enhancement of a Tier 1, 2, or 3 item.

A Tier 3 control shall apply to an item not in Tiers 1 or 2 that:

a. Provides a significant military or intelligence advantage;

b. Makes a significant contribution to the indigenous development, production, use, or enhancement of a Tier 1, 2, or 3 item; or

c. Other items controlled for national security, foreign policy, or human rights reasons.

(See notice for more detailed description of Tiers 1 - 3. See ITT’s Online Archives or 12/10/10 news, 10121021, for BP summary of the DDTC’s advance notice of proposed rulemaking (ANPR) requesting public comments on the “tiering” of defense articles on the USML based on the Administration’s three-tier control criteria, etc.)

Proposed Regulatory Application of Tier System to Category VII

As an example of the proposed "tiering," the State Department proposes to revise 22 CFR 121.1 Category VII paragraph (a)(1) by applying the "tiering" system and describing more precisely the defense articles described therein as follows (note that proposed amended paragraphs (a)(2)-(g) contain a similar structure):

(a) End items, systems, accessories, attachments, equipment, parts, and components.

(1) Armed, armored, or specialized vehicles, and other military equipment as follows:

(i) (Tier 1) Vehicles “specially designed” for deploying “weapons of mass destruction.”

(ii) (Tier 1) Vehicles “specially designed” to mount or contain any system designated as Tier 1 from any other Category.

(iii) Tanks

(A) (Tier 2) Tanks manufactured after 1955 with any of the following:

(1) 120 mm or larger gun;

(2) A weapon designated as a Tier 2 defense article;

(3) A fire control system or sensors designated as a Tier 2 defense article;

(4) Armored components or materials designated as Tier 2 defense articles;

(5) An autoloader or similar assisted loading/round selection;

(6) A hybrid electric propulsion drive system; or

(7) Countermeasures (e.g., radar jamming, infrared tailored smoke, electromagnetic pulse generator) designated as Tier 2 defense articles.

(B) (Tier 3) Tanks not specified in VII(a)(1)(iii)(A) and built after 1955.

(iv) Armored combat vehicles, manufactured after 1955, not specified in VII(a)(1)(i) through (iii), capable of off-road or amphibious use, mounting a weapon controlled in Categories II, IV or XVIII, and that:

(A) (Tier 2) Have any of the following:

(1) A weapon designated as Tier 2;

(2) A fire control system or sensors designated as Tier 2;

(3) Armored components or materials designated as Tier 2 defense

articles; or

(4) A hybrid electric propulsion drive system.

(B) (Tier 3) Is an armored combat vehicle mounting a Category II, IV, or XVIII weapon, not controlled in VII(a)(1)(iv)(A).

(v) Armored combat support vehicles (e.g., personnel carriers, resupply vehicles, recovery vehicles, combat engineer vehicles, reconnaissance vehicles, bridge launching vehicles, ambulances, and command and control vehicles), manufactured after 1955, not specified in VII(a)(1)(i) through (iv), and capable of off-road or amphibious use as follows:

(A) (Tier 2) Have any of the following:

(1) Sensors or mission equipment designated as Tier 2;

(2) Armored components or materials designated as Tier 2 defense articles; or

(3) The same chassis/hull as the vehicles specified in VII(a)(1)(iii)(A) or (iv)(A).

(B) (Tier 3) Combat support vehicles not elsewhere specified in this Category with armor meeting NIJ Level III or better.

(vi) (Tier 2) Trucks, trailers, or containers with installed defense articles designated as Tier 2 for command, or communications, or control, intelligence, or sensor or radar operations, or unmanned air or ground vehicle control, except for vehicles controlled elsewhere in this Category or in other Categories.

Note to paragraph (a)(1)(vi): trucks, trailers, or containers that do not contain defense articles are controlled on the Commerce Control List.

(vii) Unmanned ground vehicles, except those controlled in VII(a)(1)(i) through (v), or in other Categories, that:

(A) (Tier 2) Have mission systems, data links, sensors, or other defense articles designated as Tier 2;

(B) (Tier 2) Mount firearms or other weapons not designated as Tier 1;

(C) (Tier 2) Are capable of off-road or amphibious operation; or

(D) (Tier 3) Is a vehicle otherwise export controlled as a military vehicle that has been modified for unmanned operation.

Technical Note 1 to paragraph (a)(1)(vii): As used in this paragraph, unmanned vehicles include vehicles which are fitted with controls for either manned or unmanned operation.

Technical Note 2 to paragraph (a)(1)(vii): Vehicles in VII(a)(1)(vii)(D) that provide operation beyond visual control range are designated for Tier 2 control.

Current Category VII Is Shorter, Has More General Descriptions and is Not Tiered

Currently, the items under Category VII are described as follows (all paragraphs included):

(a) Military type armed or armored vehicles, military railway trains, and vehicles specifically designed or modified to accommodate mountings for arms or other specialized military equipment or fitted with such items.

(b) Military tanks, combat engineer vehicles, bridge launching vehicles, half-tracks and gun carriers.

(c) Military trucks, trailers, hoists, and skids specifically designed, modified, or equipped to mount or carry weapons of Categories I, II and IV of this section or for carrying and handling the articles in paragraph (a) of Categories III and IV of this section.

(d) Military recovery vehicles.

(e) Amphibious vehicles.

(f) Engines specifically designed or modified for the vehicles in paragraphs (a), (b), and (e) of this category.

(g) All specifically designed or modified components, parts, accessories, attachments, and associated equipment for the articles in this category, including but not limited to military bridges and deep water fording kits.

(h) Technical data (as defined in 22 CFR 120.10) and defense services (as defined in 22 CFR 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (g) of this category. Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.

(i) The following explains and amplifies the terms used in this category and elsewhere in this subchapter.

(1) An amphibious vehicle in paragraph (e) of this category is an automotive vehicle or chassis which embodies all-wheel drive, is equipped to meet special military requirements, and which has sealed electrical system or adaptation features for deep water fording.

(2) The articles in this category include any end item, component, accessory, attachment part, firmware, software or system that has been designed or manufactured using technical data and defense service controlled by this category.)

(See ITT's Online Archives or 09/10/10 news, 10091011, for BP summary of minutes of its July 2010 Defense Trade Advisory Group Plenary Session, which included a task force update on this three-tier criteria.

See ITT's Online Archives or 10/28/10 news, 10102815,for BP summary of DTAG's recent draft reports on this "tiering" system for Categories VIII, XI, and Category XII.)

(Public Notice 7256, FR Pub 12/10/10)