BIS Final Rule Revises CCL to Conform With Wassenaar Changes, Addition/Expansion of Unilateral U.S. Controls, Etc. (Part VII)

The Bureau of Industry and Security (BIS) has issued a final rule, effective July 15, 2005, which revises certain entries on the Commerce Control List (CCL) that are controlled for national security reasons in Categories 1, 2, 3, 4, 5 Part I (telecommunications), 6, 7, 8, and 9, and definitions to conform with changes in the Wassenaar Arrangement's List of Dual-Use Goods and Technologies and Statements of Understanding maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Wassenaar Arrangement).

In addition, this final rule adds Slovenia to the list of Wassenaar member countries in the EAR. This final rule also adds or expands unilateral U.S. controls on certain items consistent with the amendments made to implement the Wassenaar Arrangement's decisions.

This is Part VII of a multi-part series of summaries on this BIS final rule. Part VII covers some of the changes that are made to CCL Category 6 (Sensors). See future issues of ITT for additional summaries.

Amendments to Category 6 - Sensors

ECCN 6A001. BIS states that this final rule amends Export Control Classification Number (ECCN) 6A001 by:

(a) Redesignating paragraphs 6A001.a.2.a.2 through 6A001.a.2.a.5, to 6A001.a.2.a.3 through 6A001.a.2.a.6. BIS states that this final rule revises License Exception LVS (Shipments of Limited Value) eligibility to harmonize with the redesignation of these paragraphs.

(b) Revising 6A001.a.2.a.1 to separate the characteristics for hydrophones into two paragraphs 6A001.a.2.a.1 and a new paragraph 6A001.a.2.a.2;

(c) Redesignating paragraph 6A001.a.2.a.3.b as 6A001.a.2.a.3.c and revising the control language from "Flexible piezoelectric ceramic materials'' to "Flexible piezoelectric composites'' in the newly designated 6A001.a.2.a.3 (used to be 6A001.a.2.a.2);

(d) Adding a new paragraph 6A001.a.2.a.3.b to control "Piezoelectric polymer films other than polyvinylidene-fluoride (PVDF) and its co-polymers {P(VDF-TrFE) and P(VDF-TFE)} ;'' and

(e) Adding two new Technical Notes to 6A001.a.2.a to define "Piezoelectric polymer film'' and "Flexible piezoelectric composite.''

BIS explains that the Wassenaar Arrangement agreed to the revisions in ECCN 6A001 because the original intention was not to include all kinds of semi-rigid assemblies of discrete sensor elements, but only sensitive sensor elements constituting a flexible assembly and thereby making an array easy to handle.

ECCN 6A002 & ECCN 6A003. According to BIS, the final rule amends ECCN 6A002 by doing the following:

(a) Adding a Note Bene (N.B.) to 6A002.a to state that 6A002.a includes "focal plane arrays'' based on microbolometer material (see 6A002.a.3.f), and that silicon-based "focal plane arrays'' are only specified under 6A002.a.3.f;

(b) Adding an N.B. to 6A002.a.3 to read as follows: "N.B. Silicon and other material based 'microbolometer' non "space-qualified'' "focal plane arrays'' are only specified in 6A002.a.3.f.''

(c) Removing paragraph (a) from Note 2 to 6A002.a.3 and redesignating the other paragraphs accordingly. Paragraph (a) of Note 2 to 6A002.a.3 stated that 6A002.a.3 does not control silicon "focal plane arrays'';

(d) Adding an N.B. to 6A002.a.3.c to read "N.B. Silicon and other material based 'microbolometer' non-"space-qualified'' "focal plane arrays'' are only specified in 6A002.a.3.f.''

(e) Adding paragraph 6A002.a.3.f to control non-"space-qualified'' non-linear (2-dimensional) infrared "focal plane arrays'' based on microbolometer material having individual elements with an unfiltered response in the wavelength range equal to or exceeding 8,000 nm but not exceeding 14,000 nm; and

(f) Adding a technical note for 6A002.a.3.f to define "microbolometer'' as a thermal imaging detector that, as a result of a temperature change in the detector caused by the absorption of infrared radiation, is used to generate any usable signal.

(g) Adding a technical note for 6A002.a.3.f that specifies that microbolometers having any response between 8,000 nm and 14,000 nm are controlled.

BIS states that the amendments to ECCNs 6A002 and 6A003 (and indirectly 6E001 and 6E002) were agreed to by the Wassenaar Arrangement because, while silicon infrared focal plane arrays (SIIRFPAs) are used in cameras and other systems for civilian fire fighting, commercial collision avoidance (e.g. automotive, aircraft, maritime), predictive/preventative maintenance, and medical imaging applications, they also have the potential to be used in strategic military applications including surveillance systems, vehicle systems, soldier systems, rifle sights, and unmanned vehicle systems.

According to BIS, the focal plane array industry is changing rapidly and needs to be monitored. The amendments to ECCNs 6A002 and 6A003 are subject to a Validity Note. Control of these items is valid until December 5, 2007. Renewal of controls will require unanimous consent by all Wassenaar Arrangement Participating States. BIS states that applying a validity note on these items requires Participating States to reassess the need for controlling these items based on technological developments and strategic applications.

By interagency agreement, there are no devices that are no longer controlled under ECCN 6A002 as a result of these amendments that merit application of antiterrorism (AT) controls. Therefore, this rule does not amend ECCN 6A992.

ECCN 6A003 is amended by:

(a) Adding paragraph 6A003.b.4.a to clarify that imaging cameras incorporating "focal plane arrays'' controlled by 6A002.a.3.a to 6A002.a.3.e are controlled by 6A003.b.4.a;

(b) Adding paragraph 6A003.b.4.b to add a control for imaging cameras incorporating 6A002.a.3.f--non-"space-qualified'' non-linear (2-dimensional) infrared "focal plane arrays'' based on microbolometer material having individual elements with an unfiltered response in the wavelength range equal to or exceeding 8,000 nm but not exceeding 14,000 nm;

(c) Renumbering the existing note as Note 2 and adding Note 1 to 6A003.b.4 to read "'Imaging cameras' described in 6A003.b.4 include "focal plane arrays'' combined with sufficient signal processing electronics, beyond the read out integrated circuit, to enable as a minimum the output of an analogue or digital signal once power is supplied.'';

(d) Adding Note 3 to 6A003.b.4.b to explain what is not controlled under 6A003.b.4.b. The new note explains that ECCN 6A003.b.4.b does not control the following items:

Imaging cameras having a maximum frame rate equal to or less than 9 Hz; or

Imaging cameras having a minimum horizontal or vertical Instantaneous-Field-of-View (IFOV) of at least 10 mrad/pixel (milliradians/pixel), incorporating a fixed focal-length lens that is not designed to be removed, not incorporating a direct view display, having no facility to obtain a viewable image or designed for a single kind of application and designed not to be user modified; or

Imaging cameras that are specially designed for installation into certain civilian passenger land vehicles, and that incorporate a tamper-proof mechanism.

According to BIS, a note to this entry states that detailed information about items must be provided, upon request, to the BIS in order to ascertain compliance with the conditions described in Note 3.b.4. and Note 3.c. in this Note to 6A003.b.4.b. The intent of this note is to require exporters in Wassenaar Arrangement countries to provide detailed technical data, if requested by their governments, to assist in making licensing decisions. Such a procedure is common practice in the U.S., and this note imposes no additional burden on U.S. exporters.

BIS adds that certain commodities no longer controlled under ECCN 6A003, as well as certain items not previously listed on the CCL, are controlled for antiterrorism reasons under new ECCN 6A993 for exports and reexports to designated terrorism-supporting countries, as set forth in 15 CFR parts 742 and 746 and as indicated in AT Column 1 of the Commerce Country Chart (see discussion of 6A993 in future Part VIII).

BIS explains the revisions to ECCNs 6A002 and 6A003 affect U.S. exporters of imaging cameras and non-space qualified silicon infrared focal plane arrays (SIIRFPAs), original equipment manufacturers who use non-space qualified SIIRFPAs in their products, and distributors of these products and technologies. Based on discussions with industry, BIS expects that the imposition of license requirements on systems that contain these non-space qualified SIIRFPAs and related software and technology will increase the number of Category 6 license applications received by BIS by more than 40 percent (i.e., 800 to 1000 applications) over the next 6 months.

(See ITT's Online Archives or 07/19/05, 07/22/05, 07/25/05, 07/26/05, 07/27/05, and 07/28/05 news, 05071930, 05072215, 05072515, 05072620, 05072725, 05072825, for Parts I-VI of BP's summary.)

BIS final rule (D/N 050607153-5153-01, FR Pub 07/15/05) available at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-13581.pdf.