On Monday, the Directorate of Defense Trade Controls (“DDTC”) published on its website the minutes of the June 19th meeting of the Defense Trade Advisory Group, and attached to those minutes was a draft of the proposed implementing rules for the Defense Trade Cooperation Treaty between the United States and the United Kingdom. The purpose of that treaty was to eliminate the requirement for export licenses for certain exports of defense articles between the United States and the United Kingdom. These rules go a long way in answering questions that had been raised about the scope of the treaty.

First, the treaty eliminated the export license requirement for certain exports between the “United States Community” and the “United Kingdom Community.” This language and structure led to some question as to whether the benefits would be accorded to all exporters. In fact, the rules make clear that the “United States Community” includes all exporters registered with DDTC and not otherwise disqualified from exporting due to commission of a disqualifying felony, debarment, etc.

Second, the treaty contemplated that certain items on the United States Munitions List of particular sensitivity would be excluded from the benefits of the treaty. The draft rules provide a side-by-side list comparing the USML and the items that are approved for export under the treaty.

Of particular significance here is the provision of the rules which states that, notwithstanding the list of acceptable items, no exports will be allowed without licenses under the treaty of

Defense articles specific to reduced observable, or counter low observables in any part of the spectrum, including radio frequency (RF), infrared (IR), Electro-Optical, visual, ultraviolet (UV), acoustic, and magnetic shall not be exported.

The problematic language here is “in any part of the spectrum” which led DTAG Vice-Chair Sam Sevier to note that “almost all” military items would fall somewhere within that broad spectrum and that this exception could render the treaty meaningless and unusable. It does, indeed, seem broad since ordinary camouflage could be seen as a reduced observable in the visual spectrum.

Additionally the proposed rules exclude “sensor fusion capabilities beyond that required for display or identification correlation.” Participants at the DTAG meeting pointed out the unnecessary breadth of this provision by noting that it would cover export of Google Maps which put sensors and processing together beyond what is required for display or identification correlation.

Further comments on these issues are being solicited and should be sent to Terry Otis, DTAG Recorder, before the close of business on June 20 at [email protected]

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