> **DTAG / 30 September 2008**

**USML Working Group -- "White Paper"**

[General Outline of the White Paper]{.underline}

-   Part I "Objective" -- states the overall goal of the "White Paper"

-   Part II "Basic Rules" -- provides the overall assumption that items
    controlled on the USML are governed by ITAR 120.3 and that the USML
    provides additional clarification

-   Part III "Basic Problems" -- provides examples to illustrate the
    need for a comprehensive update of the USML

-   Part IV "Generic Considerations" -- general top level guidelines for
    formatting USML Categories and designating items as SME or non-SME

-   Part V ""Criteria for USML Category Development" -- provides
    criteria and guidelines that should be followed to support a
    comprehensive USML review.

[Part I -- Objective]{.underline}

Define the basic "rules" and general "principles" that can be used with
minimal exceptions as a guide for a technical review of all ITAR
Categories.  The task is not to undertake a review of any one USML
Category but rather to develop a simple roadmap that can be utilized to
facilitate a comprehensive review of the overall USML, retaining items
designed for or possessing a military utility and removing those with a
commercial or inherently dual use capability, or those items supporting
military equipment that possess no inherent military technology nor will
yield insight into that military technology. In summary the USML should
not control items based solely on the fact that they are used by the
military but rather they are controlled because of their indigenous
military applicability and tactical application.

An additional objective would be developing a consistent methodology for
designating sub-item Categories as either Significant Military Equipment
(SME) or non-SME. This should be based on a strict interpretation of the
definition (ITAR 120.7) and sub-items identified as SME should not
contain systems, subsystems within the same sub-item that do not warrant
the SME special status designation.

[Part II --Basic Rules Governing Items To Be Controlled On The
USML]{.underline}

-   An article to be controlled on the USML is defined in accordance
    with ITAR 120.3 and its related technical data in accordance with
    ITAR 120.10.

-   ITAR Part 121 (i.e. USML) provides additional clarification and
    categorization with respect to the control of articles that satisfy
    the ITAR 120.3 definition. The USML Part 121 is to assist exporters
    in providing additional clarification with respect to items that are
    subject to ITAR jurisdiction as well as assisting in determining the
    proper licensing category and identifying between SME and non-SME.

[Part III - Basic Problems With The Current USML]{.underline}

-   Use of generic descriptors or poorly defined terms such as:

    -   Category VII: "*military recovery vehicles*" -- Limited to just
        tanks or all military vehicles including trucks?

    -   Category VIII: "*drones*" -- limited to just drones or does this
        include UAVs?

    -   Category XII: "*military television sighting and viewing units*"
        -- lacks definition, it is assumed this relates to Category IV
        items?

    -   Category XIII: "*structural materials*" -- lacks definition, as
        written it could include nearly all raw materials used in the
        manufacture of Defense Articles

    -   Categories I thru XX: "*components, parts, accessories,
        attachments and associated equipment ...*" -- lacks definition,
        results in misclassification of numerous items

-   Multiple definitions for the term "Defense Articles" -- in some
    instances it means both hardware and technical data and in other
    circumstances it is limited to just hardware.

-   Inconsistencies in the methodology used to designate items as SME
    such as:

    -   Category IV -- "grenades" and "blasting caps" are designated as
        SME but apparatus to support the control and handling of launch
        vehicles are not.

    -   Category VIII -- "cartridge activated devices" are designated as
        SME but next generation developmental aircraft and engines are
        not.

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-   The emphasis within each Category is to control hardware based on
    "design intent" rather than the inherent ability of the system,
    sub-system to satisfy a military requirement.

-   General lack of discriminators to help exporters to distinguish
    between apparent overlaps in coverage between the USML and the
    Commerce EAR/CCL.

    -   Unmanned air vehicles -- Category VIII USML / Category 9 CCL

    -   Coast Guard vessels such as ice-breakers -- Category VI USML /
        Category 8 CCL

    -   Body armor - Category X USML / Category 1 CCL

    -   Closed and semi-closed (re-breathing) devices -- Category XIII
        USML / Category 8 CCL

[Part IV -- Generic Considerations For Updating the USML]{.underline}

-   Maintain as much as possible a consistent format across USML
    Categories such as:

    -   Separate sub-items for the control of full up systems (end
        items) that are specifically designed developed, configured,
        adapted for the military for lethal purposes (e.g., missiles,
        F-16, F/A-18, C-130 configured as a gunship) from those that
        provide a non-lethal military capability (e.g., sounding
        rockets, military vehicles, C-130 cargo aircraft).

    -   Separate sub-items for all major sub-systems that are
        specifically designed, developed, configured, adapted in such a
        fashion that they provide the capability that is required to
        achieve a specific military requirement (e.g., AESA radars,
        fighter engines, electronic warfare equipment).

    -   Separate sub-items for systems and sub-systems that are subject
        to multi-lateral controls as to warrant additional review by the
        US Government (e.g., Missile Technology Control Regime, Chemical
        Weapons Convention).

    -   A separate sub-item for the control of critical production
        equipment and tooling that is "required" in order to satisfy a
        military capability (e.g., mandrels/molds for the production of
        composite aircraft parts) where as such items that that are in
        normal commercial use (e.g., basic machine tools, alignment
        fixtures and handling devices) would not be controlled. An
        approach similar to that currently being utilized in Category
        XI(c).

    -   A separate sub-item for the control of components, parts,
        accessories, attachments, and associated equipment specifically
        designed, or modified for controlled articles exclusive of those
        items which are based on widely available technology and which
        are not inherently military in nature and do not provide any
        unique military capability (e.g., aircraft primary structure
        would be controlled but fasteners, brackets, lights, standard
        seats would not). A definitive determination of what constitutes
        "adapted" and/or "configured" for military use is needed. For
        example, if a part or component is only altered physically (as
        opposed to functionally) for purposes of integration into a
        defense article and provides no enhancement to the military end
        use, per se, it should not be considered to be military in
        nature.

    -   The inclusion of a "Note" at the end of each Category that
        highlights those items which have been previously determined not
        to be subject to the USML via the Commodity Jurisdiction process
        or by some other means.

[Part V -- Criteria/General Principles To Follow When Conducting a
Comprehensive Review]{.underline}

-   Criteria/General Principles for conducting a comprehensive review of
    the individual USML Categories.

    -   Control of all systems, sub-systems that provide a uniquely
        military capability.

    -   Control of all systems, sub-subsystems that are controlled on a
        multi-lateral basis as munitions items (e.g., Wassenaar
        Arrangement, Missile Technology Control Regime, Nuclear
        Suppliers Group, CWC/BWC etc). Any exceptions should be based on
        a case-by-case review for unilateral control.

    -   Systems, sub-systems including associated components, parts,
        accessories, attachments and associated equipment should not be
        controlled if they are based on acceptable standard industry
        practices with wide foreign availability such as electrical
        wiring harnesses, gaskets, electrical motors/generators,
        hydraulics, basic electronic cabinets, air conditioning units,
        heat exchangers etc. Use of technology parameters should be
        considered as applicable to distinguish between military and
        dual-use items (e.g., USML control of hydraulic equipment would
        be limited to only those systems designed for operation at 3500
        psi and above).

    -   USML controlled hardware which is embedded in end items subject
        to the control of the EAR/CCL would no longer be subject to the
        USML if removal from the EAR/CCL controlled item results in the
        destruction of the USML item *(e.g., QRS-11)*.

    -   Control of "raw materials" which are consumed in the production
        and manufacture of a defense articles should not be controlled
        as defense articles unless they are "required" to achieve a
        specific military requirement such as low observable / counter
        low observable techniques, design and/or materials (e.g.,
        stealth). For example the following would not fall under the
        jurisdiction of the ITAR/USML:

        -   Metals in the form of plates, extrusions, billets etc

        -   Non-metallic's in the form of sheets, rough castings,
            composite pre-pregs, uncured products etc.

        -   Chemicals such as adhesives, lubricants, sealants, fillers,
            paints, cleaning agents etc.

    -   A side-by-side review of the USML and EAR/CCL needs to be
        conducted in order to identify any potential overlaps in
        coverage.

    -   A comprehensive review of past Commodity Jurisdiction
        determinations needs to be conducted as a basis for developing
        explanatory notes at the end of each Category.

-   Criteria to be considered when designating sub-items as SME on
    non-SME:

    -   All sub-items that control lethal systems should be SME.

    -   All sub-items that control major sub-systems that are "required"
        to achieve a specific military requirement should be SME.

    -   Sub-items which are associated with multi-lateral control
        regimes should be a presumption of SME.

    -   Sub-items which control critical production equipment and
        tooling should be a presumption of non-SME exclusive of any
        equipment and/or tooling that is classified.

    -   Sub-items for the control of components, parts, accessories,
        attachments, and associated equipment should be a presumption of
        non-SME.

-   Additional considerations when conducting a comprehensive review of
    the individual USML Categories

    -   Parts and components supporting scientific and research
        endeavors, with no military end-use, should not be under USML
        control. This includes, but is not limited to, instrumentation
        that is part of a mission payload. This exclusion from USML
        control should not extend to the spacecraft or launch activities
        under Category XV.

    -   When considering the inclusion of a "Note" at the end of each
        Category that highlights those items which have been previously
        determined not to be subject to the USML the review should also
        consider identifying non-lethal legacy systems that have been
        superseded by time and technology and no longer warrant the
        strict controls of the USML (e.g., radios, aircraft avionics,
        computers, etc designed \>25 years ago).