Many readers were likely wondering what impact the Trump Administration’s new one-for-two executive order would have on export control reform. As you probably know, that is the order that says for every new rule adopted by a federal agency two other rules must be thrown out — sort of like a closet cleaning rule: for every new shirt I buy, two old ones need to be donated or thrown out.

Well, never fear. At the last DTAG meeting, Deputy Assistant Secretary of State for Defense Trade Controls Brian H. Nilsson said that this new rule would somehow not apply to DDTC rules and that the agency was moving ahead on export control reform unencumbered by the order, or at least that’s being reported by those who attended the meeting. As much as I would like to believe this, particularly inasmuch as Categories I, II and III of the United States Munitions List have still not gone through the export control reform process, I am filing Deputy Assistant Secretary’s statement under “wishful thinking”(if not under “alternative facts”). The Executive Order itself lists no exemptions whatsoever. Now that doesn’t mean that some time in the future someone might realize how silly such a rule is and put another Executive Order with some exemptions to the one-for-two order in front of the President for him to sign.

But until that happens, DDTC can’t amend any part of the USML without slashing two rules for each one added. Oh, and by the way, is anyone else wondering how the counting of rules is done here? If section 121.1 is amended to provide a new version of, say, Category I, II and III, what exactly has to be sacrificed on the altar of the executive order? After all only subsection 121.1(b)(2) of the rule set forth 121.1 would be altered. Does DDTC have to ditch two entire rules, like, say, sections 129.3 and 130.1 (my nominees for jettisoning) or can it get away with ditching two subsections, such as 128.7(a)(3) and 123.22(c)(1), both of which no one would ever miss?

UPDATE: As pointed out by commenter TJ below, the Executive Order does indeed exempt “regulations issued with respect to a military, national security, or foreign affairs function of the United States.” So ECR is safe for the moment, although my query as to how rules are counted for purposes of the one-for-two rule remains valid in other contexts.

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