'Specially Designed'

The Commerce Department could unveil as early as this week a new definition for generic parts, components, accessories and attachments that are "specially designed" for weapons but are not significant enough to fall under the strict controls of the U.S. Munitions List (USML), and for end items that have a uniquely military use but also a civil and commercial application, Inside U.S. Trade reported late last month.

Kevin Wolf, assistant Commerce secretary for export administration, told the Regulations and Procedures Technical Advisory Committee (RPTAC) on June 14 that these items warrant some degree of control on the Commerce Control List (CCL), just not the same degree of control that they now face on the USML. Inside U.S. Trade further reported:

For example, among the end items the proposed definition is meant to cover are machine tools specially designed to make missiles, he said.

This new definition of specially designed will be part of a broader proposed regulation to be issued in July, before the July 18-21 export control update conference. It will lay out the framework for moving items of the USML to the CCL as part of the administration's export control reform initiative.

Many specially designed items on the USML are expected to move to the CCL as part of the administration's export control reform initiative, Wolf said. Remaining on the USML will be items that have apparent military and intelligence system, he said.

Wolf said the ultimate goal is to write out the term "specially designed" altogether from U.S. control lists and come up with better descriptions of items that are controlled. But, since the term is used in various forms within the multilateral export control regimes such as the Wassenaar Arrangement and Missile Technology Control Regime (MTCR), he acknowledged that working multilaterally to replace that term could take "a very long time."

The USML reflects the International Traffic in Arms Regulations (ITAR), which uses the term "specifically designed or modified" as one of three elements defining a defense item.

The Export Administration Regulations (EAR), which govern the CCL, use the term "specially designed" in a number of different contexts and no clear indication if its definition in one area applies to the others, according to private-sector sources.

For example, section 772 of the EAR defines "specially designed" in the context of the Missile Technology Control Regime (MCTR) as a piece of equipment designed only for use in a missile that has no other function or use. It is also used to define ancillary cryptography, which is subject to less stringent export controls than other types of encryption.

According to Wolf, the new definition has to be a term that is "common, objective [and] not inconsistent" with the definition of specially designed in the MTCR, which he said is narrowly tailored to that specific control regime and not acceptable to other applications of the term, such as decontrolling generic parts and components that have potential for use in commercial end items.