Familiar Roadblocks Ahead for Obama Administration’s Export Control Reform

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WASHINGTON — The White House’s effort to reform the government’s system for controlling military exports got off to an energized start in April 2010, with strong top-level support from President Barack Obama and then-Defense Secretary Robert Gates.

More than a year later, some progress has been made, but the heart of the effort faces the same roadblocks that slowed down and ultimately stopped past efforts.

“Where this has crashed and burned every time before has been when Congress says, ‘We don’t like what you’re doing,’” a former State Department export control official said.

For those who work on Capitol Hill, it is not quite that simple.

“It is a situation in which you have foreign policy prerogatives, which are the [Obama] administration’s, and you have constitutional powers to regulate foreign commerce, which are the Congress’s, and so you have a gray area of a shared power, if you will, over arms sales,” a senior congressional staffer said.

This classic tug-of-war between the legislative and executive branches threatens to shut down progress on the effort before November’s election.

“The Obama administration has decided to bite this off despite the fact that they know that it’s hard and they deserve points for that, but there were people out there who thought that this was going to be simple; they were just wrong,” the former State Department official said.

The administration’s effort is based on creating what it calls “four singularities.” Of these, the easier ones to accomplish are creating a single enforcement coordinating agency and implementing a single information technology system.

Very difficult but technically doable is creating a single list of controlled goods by merging the existing U.S. Munitions List (USML) and the Commerce Control List (CCL). The fourth singularity is creating a single licensing agency, which is practically a political nonstarter.

The bulk of the effort is now in rewriting the USML and CCL lists, which means migrating thousands of items from the State Department’s jurisdiction over to the Commerce Department.

The Obama administration says the goal of reform is to make sure the system is protecting the items that really need protecting and to be able to deliver needed equipment to allies faster.

“We seek to facilitate exports to allies and partners by eliminating approximately 3,000 dual-use licenses and tens of thousands of licenses for munitions parts and components annually,” Andrew Shapiro, the State Department’s assistant secretary for political-military affairs, said Nov. 9 during a meeting of the Defense Trade Advisory Group.

Items on the USML are controlled under the stricter International Traffic in Arms Regulation (ITAR) regime, while the Commerce Department’s CCL is governed by the Export Administration Regulations and includes items that have both military and commercial use.

While the USML can be revised through regulatory changes alone, under section 38(f) of the Arms Export Control Act, the executive branch must notify Congress at least 30 days before moving items off the USML and onto the CCL and provide a description of the new controls that will be used.

So far, the State Department has published proposed rule changes for a handful of USML categories, but has yet to officially notify Congress of any final changes.

This is where things get interesting, and it is the piece of the puzzle that poses the biggest hurdles for the administration’s reform effort.

The congressional staffer said the administration made a “pretty big tactical error” this summer, shifting its approach with Congress.

Before the summer, the staffer said, there was an understanding that they were going to send up a test case for USML Category 7 (vehicles) that would show, under their criteria, what was being proposed for removal.

Instead, he said, the administration changed its strategy and decided to show Congress what would remain on the USML, but deemed it too time-consuming and difficult to show what had come off the list.

While executive branch officials continue to meet with Congress to discuss the category changes, this decision could prove to be a “fundamental misstep,” the senior staffer said.

So far, the administration has published proposed changes for three categories.

Each time the State Department publishes a revised category, the Commerce Department publishes its corresponding category to avoid gaps or overlaps between the lists.

The majority of items that would move from the USML to the CCL are parts and components. Some end items would also shift, including commercial satellites, unarmored military vehicles, cargo and utility aircraft, and auxiliary surface vessels, Shapiro said, adding that this shift will require legislation.

Since July, the administration has published proposed changes to Category 8, which covers aircraft, and a revised version of Category 7. More recently, proposed changes for Category 19, which describes gas turbine engines and associated equipment, has also been published, with the public comment period open until Jan. 20.

Shapiro said new rules for Categories 6 (vessels of war and special naval equipment) and 20 (Submersible Vessels, Oceanographic and Associated Equipment) will be released soon.

These categories will likely change a lot based on public feedback, the former State Department official said. “They’re working this really hard, but they’ve still got a lot to do.”

While the worker bees continue to hammer out the details, the next step politically is less certain.

“I would really hate — because I think there are things we’re willing to change — for this to turn into ‘the movie we’ve seen before,’” the congressional staffer said.

 

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