Industry News

State Department Proposes Rule Regarding Revisions to the U.S. Munitions List and Seeks Comments

12/13/2010


On December 10, 2010, as part of the President’s Export Control Reform effort, the U.S. Department of State published a proposed rule to amend the International Traffic in Arms Regulations (ITAR) regarding revisions to the U.S. Munitions List (USML) (75 FR 237). The State Department’s Directorate of Defense Trade Controls also issued an advance notice of proposed rulemaking which 1.) seeks public comment on revisions to the USML that would make it a “positive list” of controlled defense articles, 2.) requests that the public “tier” defense articles based on the Administration’s three-tier control criteria, and 3.) requests that the public identify those current defense articles that the public believes do not fall within the scope of any of the criteria’s tiers. The State Department will accept comments on the proposed rule revising USML Category VII, and on the advance notice of proposed rulemaking regarding revising the remaining USML Categories, until February 8, 2011.     

The State Department’s proposal to amend ITAR includes revisions to Category VII of the USML, which addresses tanks and military vehicles. Proposed revisions include assigning items to three tiers and describing more precisely, in a “positive list” the defense articles included in Category VII. A “positive list” is a list that describes controlled items using objective criteria. The proposed rule also aims to establish a “bright line” between the USML and the Commerce Control List.

Three Tier System:

  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 (including Weapons of Mass Destruction (WMDs), WMD-capable unmanned delivery systems, and a plants, facilities, or items specially designed for producing, processing, or using WMDs, special nuclear materials, or WMD-capable unmanned delivery systems.
  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.
  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 items.

For more information, contact a Barnes/Richardson attorney.