Export Control Reform

In 2009, the Export Control Reform initiative was launched.

This followed the 2007 report of the Deemed Export Advisory Committee chartered by the Commerce Department (which quoted former National Security Advisor McGeorge Bundy saying "If you guard your toothbrushes and diamonds with equal zeal, you’ll probably lose fewer toothbrushes and more diamonds.”) and the 2009 publication of Beyond Fortress America: National Security Controls on Science and Technology in a Globalized World by the National Research Council.

Secretary of Defense Robert Gates began to roll out Export Control Reform's plans in a 2010 speech, noting, from his time in the CIA, that “the length of the list of controlled technologies outstripped our finite intelligence monitoring capabilities and resources… We were wasting our time and resources tracking technologies you could buy at RadioShack… We need a system that dispenses with the 95 percent of ‘easy’ cases and lets us concentrate our resources on the remaining 5 percent.” Phases 1 and 2, through executive action, would transition to a single, tiered control list, establish an integrated enforcement center, transition to a single IT infrastructure, and make progress toward a single licensing system. Phase 3 would require congressional action to establish a single licensing agency and a single enforcement coordination agency.

Among the most visible changes so far has been review of the US Munitions List (ITAR) and the Commerce Control List (EAR), with the intent to:

  • Base the lists on objective criteria, rather than design intent,
  • Move items that don't need ITAR control from the USML to the CCL
  • Harmonize the lists and definitions, toward the goal of a single control list.

Progress is summarized on the Export Control Reform Dashboard:

  • 13 USML categories have been fully reviewed with some items transitioned to the CCL
  • 3 categories have completed interagency review and proposed rules are in progress (firearms, guns and armament, and ammunition)
  • 3 categories are still in interagency review (sensors/night vision, toxicological agents, and directed energy weapons)

New ECCNs have been created in the CCL for items transferred from the USML: 9x515 for satellites, spacecraft, and components, and the "600 series" (ECCNs in the form nx6nn) for military items now subject to the EAR. These ECCNs are restrictive, requiring a license (or exception) for exports to most countries and for deemed export to most non-US persons; a new Strategic Trade Authorization (STA) exception allows exports to 37 countries providing the exporter and the recipient document the export as required and comply with its ongoing obligations. These ECCNs also ignore the EAR's standard definition of "use" technology, instead controlling technology required for the operation, installation, repair, overhaul or refurbishing of controlled items, resulting in a much higher likelihood than traditional EAR that 9x515 and 600 series items will involve controlled technology that will restrict use of these items in campus research.

Harmonized definition of similar terms used in both the EAR and the ITAR are still in progress, and could have significant implications for universities::

  • Fundamental research
  • Public domain (ITAR) and publicly available (EAR)
  • Technical data (ITAR) and technology (EAR)