Bright Line Between Civil and Military Exports Still Elusive, as Comments Urge State to Keep 'Specially Designed' Descriptor
Several firms said they were unable to determine technical parameters that would establish a “bright line” between military and commercial technologies in U.S. Munitions List Category XII, which covers fire control, laser, imaging and guidance equipment, according to comments filed with the State Department (here). Some commenters said that the parameters State listed in its notice of inquiry requesting the comments are descriptors unique to the military, and commenters urged State to maintain its “specially designed” nomenclature to properly distinguish military goods that belong in USML Category XII from dual-use civil goods more properly designated on the Commerce Control List (CCL).
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State opened the public comment period in January soliciting feedback on specific control parameters to cover certain specific items "specially designed for a military end user” in relation to an Oct. 12 final rule that transferred certain USML Category XII articles to the CCL (see 1701120069). Comments were due March 14. Akin Gump, General Motors (GM), Raytheon, Photonics and BAE Systems were among the firms expressing challenges with deciding technical criteria to clearly separate fire control-related goods subject to commercial or military controls.
Several commenters indicated that establishing a set of technical parameters to separate military from civil goods is difficult and is often at odds with export control reform principles of clarity, simplicity and limiting the USML to the “crown jewels” of the military. “Once again, this NOI seeks to put back in place a confusing performance parameter control structure, similar to the first proposed rule for this category of controls,” BAE Systems said. “As we look to properly designate the items we produce, we think the ‘specially designed’ criteria is a much clearer and more effective way to handle controls for the items listed.” State and the Bureau of Industry and Security issued the first proposed rule on controls related to USML Category XII in May 2015 (see 1505040021).
Akin Gump said in its filing that Category XII(c)(7)(i) -- which describes Terahertz imaging systems having “concealed object detection systems operating in the frequency range from 30 GHz to 3000 GHz, and having a resolution less (better) than 0.1 milliradians at a standoff range of 100 m" -- provides a clear line between military and civil systems. But the law firm, which represents “various organizations” in the U.S. “that conduct activities related to infrared detection items subject to the Export Administration Regulations,” also said clients weren’t able to identify objective parameters to distinguish civil and military systems for other imaging systems, light detection and ranging (LIDAR) systems, electro-optical surveillance systems, infrared search and track systems, and distributed aperture systems, among other technologies.
GM said it believes design intent is the most pertinent factor in deciding whether and how to control technologies rapidly transitioning toward commercial applications, including LIDAR systems, which “now play a critical role in public safety,” such as aiding cars in obstacle detection and avoidance. State would reduce the performance capabilities of domestically available technologies for use in civilian automotive applications if it established controls based on “certain arbitrary performance parameters.” GM said: “Automotive LIDAR systems utilize [infrared focal plane arrays] to determine the size, shape, and direction of moving objects while the LIDAR-equipped vehicle is in motion. By controlling IRFPAs or any other of the above components used in LIDAR systems under the USML, the ITAR would effectively capture all LIDAR systems, even those designed specifically and exclusively for civilian applications.” Comments on the concurrent BIS request for comments are not yet posted (here).
“As a part of our rule-making process, we seek public comment to inform and guide our decisions," a State Department official said in an email. "We welcome and value all comments, and are reviewing the comments we have received as we continue to work to ensure that the International Traffic in Arms Regulations serve American interests that include both national security and private sector innovation."