Nonproliferation Export Controls in the United States (excerpts)
Richard T. Cupitt

Military Items Export Control Bureaucracy
The direct responsibility for licensing the export of military items falls to the Office of Defense Trade Controls (DTC). The DTC, however, refers at least one-fourth of its cases to other agencies, including the Department of Defense, the Arms Control and Disarmament Agency (ACDA), the Department of Energy, the National Aeronautics and Space Administration (NASA), or other units in the State Department.[35] Referring agencies can recommend that DTC issue, deny, return the application without action, or add terms and conditions concerning end-use to the license. Its small staff of about sixty-five includes several individuals detailed from the Defense Department and the Customs Service. DTC refers all applications to export items on the MTCR control list to Defense, ACDA, and other agencies, as well as the Missile Technology Export Control Group (MTEC), an interagency body chaired by the Bureau of Politico-Military Affairs in State. Munitions items related to chemical and biological weapons go to the SHIELD committee, another interagency group also chaired by the Bureau of Politico-Military Affairs.

Concerns over the adequacy of the DTC, especially for providing timely license processing, led to the enhancement of its resources in the early 1990s, just in time to oversee demand for US defense items increase. Still small, what role ACDA officials may play in the DTC as they are absorbed into the State Department remains uncertain. The DTC has two subunits: the Arms Licensing Division and the Compliance Enforcement Branch, with staffs of roughly thirty-five and ten people respectively. The DTC also works closely with the Office of Export Control and Nonproliferation Policy (until 1998, this was the Office of Arms Transfer and Export Control Policy) and other parts of the Bureau of Politico-Military Affairs on the transfer of munitions items.

The DTC relies most heavily on the technical expertise of the Defense Department, specifically the now defunct Defense Technology Security Agency (DTSA), sending it about 14,000 licenses per year recently. With a budget of about $10.4 million, DTSA had more than one hundred staff divided into five directorates: Policy; License; Technology; Technology Security Operations; and Resource Management. DTSA coordinates Defense recommendations for both munitions and dual-use items. While not a regulatory body itself, DTSA maintained an Export License Status Advisor Online (ELISA Online). It also gave exporters a “day-in-court” to appeal its recommendations.

DTSA came under sharp criticism in the summer of 1998.[36] Reportedly, DTSA referred ever fewer cases to armed service technical committees, including a drop-off from more than three-fifths to less than one-fifth of the applications to the Defense Intelligence Agency.[37] DTSA certainly suffered a cut in staff of about 30% over the last several years, increasing the license application case load.

Partly in response to such critiques, the Defense Department moved DTSA from the Under Secretary for Policy to the Under Secretary for Acquisitions and Technology, and merged it with several other units into the Defense Threat Reduction Agency (DTRA). The DTRA unites most of the WMD nonproliferation and counterproliferation programs of the Defense Department. Most of the old export control functions of DTSA now fall under the purview of the Technology Security Directorate of DTRA.

Control Lists

As with the legislation and the regulations, the United States divides its control lists into two main bodies, the Commerce Control List (CCL) and the Munitions List (USML) that demark dual-use and munitions items (see Table 4). Unlike most other countries, these control lists do not derive solely from the lists of the multilateral export control arrangements and treaties, i.e., the Australia Group, Nuclear Suppliers Group, MTCR, and Wassenaar, Zangger, and CWC lists. While all of the items on the international lists correspond to items in the CCL or the USML, the United States controls several items unilaterally. More important, the control lists mirror items found on the Military Critical Technologies List (MTCL).[46] The Department of Defense updates the MTCL annually, in part based on ever changing threat assessments.

The United States publishes the CCL and the USML as part of its regulations, 15 CFR 774 and 22 CFR 121 respectively. The United States publishes changes to the list in the Federal Register, and publishes prospective or interim changes in the Federal Register for public comment. Multilateral list items may appear in one list, or both the CCL and USML may split the items on the lists. The MTCR Annex appears in 22 CFR 121.16 in its entirety, for example, while the Wassenaar list has some arms and some dual-use items.

The CCL has ten numbered categories, from 0 to 9. The categories roughly parallel the nine categories in the Wassenaar Arrangement, plus a category for Nuclear Materials, Facilities and Equipment (the 0 category). Several other differences exist, such as the inclusion of Chemicals, Microorganisms, and Toxins in Category 1 (Advanced Materials). The US also organizes items in each category by groups corresponding to the nature of the specific items (such as equipment or software or technology). Within each group, specific items have an Export Control Classification Number (ECCN) and an associated list of reasons for control. The CCL includes eleven possible reasons for control: anti-terrorism; chemical & biological weapons; crime control; encryption item; missile technology; national security; nuclear nonproliferation; regional stability; short supply; computers; and significant items. In 1998, the United States revised its numbering system to conform with the system used by the European Union, greatly contributing to a more uniform multilateral system. BXA regularly updates the CCL based on changing patterns in threats, technologies, market availability, international obligations, and other factors. In 1997, for example, BXA eased restrictions on oscilliscopes, encryption software for financial institutions, and mixtures with trace controls of precursor chemicals.

Similarly, the structure of the USML closely parallels the twenty-two categories of the Wassenaar munitions list. The State Department updates the USML, as a result of changes in weapons systems technologies (also reflected in the MTCL) or in US international obligations. In addition to conventional defense articles, the twenty-one general categories of the USML covers launch vehicles and missiles, and includes the Missile Technology Control Regime Annex. The list also encompasses various chemical and toxicological agents, including Chemical Weapons Convention Schedule I items, and nuclear weapons items, including design and test equipment.