BIS Issues Final Rule Implementing Numerous Wassenaar Changes (Part III - Revisions to CCL Category 1)

The Bureau of Industry and Security has issued a final rule, effective November 5, 2007¹, which revises the Export Administration Regulations to implement changes to the (1) Wassenaar Arrangement's List of Dual Use Goods and Technologies (Wassenaar List), and (2) 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, or WA), as agreed upon in the December 2006 Wassenaar Arrangement Plenary Meeting.

This is Part III of a multipart series of summaries of this final rule, and focuses on the Commerce Control List (CCL) revisions affecting Category 1. See footnote for savings clause. See future issues of ITT for additional summaries.

CCL Revisions to Category 1 - Materials, Chemicals, Microorganisms, and Toxins

The BIS final rule makes the following changes to Export Control Classification Numbers (ECCNs) in CCL Category 1:

ECCN 1A002 (Composite structures or laminates) is amended by:

(a) Clarifying 1A002.a by adding 'consisting of' in front of the parameter and deleting 'made from';

(b) Clarifying 1A002.b by adding 'consisting of' to the front and replacing 'made from' with 'any of the following' to the end of the subparagraph;

(c) Clarifying the term 'aircraft' to read 'civil aircraft' in the Note to 1A002;

(d) Clarifying the size of fabric made from "fibrous or filamentary materials" not controlled for repair of civil aircraft structures from '1 m²' to '100 cm x 100 cm'.

Rationale: The previous material size limit impaired the ability of airlines to repair their airplanes successfully and in a timely manner. With each new commercial airplane design, the proportion of structure made from carbon materials is increasing.

ECCN 1A004 (Protective and detection equipment and components not specially designed for military use) is amended by revising the Related Controls paragraph in the List of Items Controlled section by redesignating note 2 as note 3 and adding a new note 2 to read "See ECCN 1D003 for "software" specially designed or modified to enable equipment to perform the functions of equipment controlled under section 1A004.c (Nuclear, biological and chemical (NBC) detection systems). See ECCN 1E002.g for control libraries (parametric technical databases) specially designed or modified to enable equipment to perform the functions of equipment controlled under 1A004.c (Nuclear, biological and chemical (NBC) detection systems)."

ECCN 1B001 (Equipment for the production of fibers) is amended by:

(a) Adding a note to the License Requirement section under the MT control that reads "Note: MT applies to equipment in 1B001.d that meets or exceeds the parameters of 1B101" to clarify the MT license requirement, as this requirement has been particularly confusing to the public; and

(b) Clarifying the text of 1B001.f., because attempts have been made to export ultrasonic equipment without license due to interpretation that the 3-D and ultrasonic tomography parameters make an empty box. The control text therefore is clarified to ensure systems with critical capability are controlled for export.

ECCN 1C005 (superconductive composite conductors) is amended by:

(a) Removing the term 'multifilamentary' from 1C005.a.;

(b) Replacing the 'or' with an 'and' in 1C005.a.1.;

(c) Removing part of the parameter 'but less than 25 K (249.16C)' from 1C005.b.1.;

(d) Replacing 1C005.b.2 which stated, "A cross-section area less than 0.28 x 10-⁴ mm²; and" to read "Remaining in the "superconductive" state at a temperature of 4.2 K (-268.96C) when exposed to a magnetic field oriented in any direction perpendicular to the longitudinal axis of conductor and corresponding to a magnetic induction of 12 T with critical current density exceeding 1750 A/mm² on overall cross-section of the conductor.''

(e) Removing 1C005.b.3; and

(f) Adding 1C005.c and a new technical note, to read as follows "Superconductive" "composite" conductors consisting of one or more "superconductive" filaments which remain "superconductive" above 115 K (-158.16C).

Technical note: For the purpose of 1C005, filaments may be in wire, cylinder, film, tape or ribbon form.

Rationale: These revisions are made to align controls with current technology.

ECCN 1C008 (Non-fluorinated polymeric substances) is amended by:

(a) Redesignating Note 1 as Note 2 and adding a new Note 1 to clarify the term polymeric substances;

(b) Revising the test method of determination of a heat distortion temperature in 1C008.b. from 'ISO 75-3 (2004)' to 'ISO 75-2 (2004), method A'; and

(c) Revising the load parameter in 1C008.b from '1.82 N/mm2' to '1.80 N/mm2';

Rationale: ISO75-3 (2004) specifies the method for determining the temperature of deflection under a load of high-strength thermosetting laminates and compression-molded long-fiber-reinforced plastics in which the fiber length is greater than 7.5 mm. The materials controlled under 1C008.b are thermoplastic liquid crystal co-polymers, and therefore ISO75-3 (2004) is not an appropriate test method for 1C008.b. materials. In accordance with ISO75-2 (2004), method A, '1.82 N/mm2' is replaced with '1.80 N/mm2'.

(d) Deleting 1C008.c, which are polyarylene ether ketones, including polyether ketone ketone (PEKK), polyether ketone (PEK), and Polyether ketone ether ketone ketone (PEKEKK).

Rationale: The patent for polyarylene ether ketones has expired and China and India are now manufacturing the commodity under different trade names. The manufacturing technology and the properties for all these products are very similar. Although polyarylene ether ketones are no longer controlled under ECCN 1C008 and related technology controlled under 1E001, there remains a license requirement under ECCNs1C998 and 1E998, respectively.

ECCN 1C010 (fibrous or filamentary materials) is amended by:

(a) Clarifying the term 'aircraft' to read 'civil aircraft' in the Notes to 1C010.b and 1C010.e;

(b) Increasing the size of fabric made from "fibrous or filamentary materials" not controlled for repair of civil aircraft structures in the Notes to 1C010.b and 1C010.e from '50 cm x 90 cm' to '100 cm x 100 cm'; and

(c) Adding the Celsius equivalent (2C) to 2K in the Technical Note that describes glass transition temperature.

Rationale: The previous material size limit impaired the ability of airlines to repair their airplanes successfully and in a timely manner. With each new commercial airplane design, the proportion of structure made from carbon materials is increasing.

ECCN 1C998 (Non-fluorinated polymeric substances) is amended by:

(a) Redesignating 1C998.a to 1C998.a.1; and

(b) Revising paragraph 1C998.a to add the polyarylene ether ketones deleted from 1C008.c.

Note: For equipment no longer controlled under ECCN 1C008 and related technology controlled under 1E001, there remains a license requirement under ECCNs 1C998 and 1E998 respectively, 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.

ECCN 1D003 is added to control "software" specially designed or modified to enable equipment to perform the functions of equipment controlled under section 1A004.c (Nuclear, biological and chemical (NBC) detection systems).

ECCN 1E001 is amended by revising the Related Controls paragraph in the List of Items Controlled section by redesignating notes 2 and 3 as notes 3 and 4, and adding a new note 2 to read "See ECCN 1E002.g for control libraries (parametric technical databases) specially designed or modified to enable equipment to perform the functions of equipment controlled under 1A004.c (Nuclear, biological and chemical (NBC) detection systems)."

ECCN 1E002 is amended to add a new paragraph 1E002.g to control libraries (parametric technical databases) specially designed or modified to enable equipment to perform the functions of equipment controlled under 1A004.c (Nuclear, biological and chemical (NBC) detection systems).

Rationale: ECCNs 1D003 and 1E002 are revised because some non-controlled detection systems can be upgraded to become controlled nuclear, biological and chemical (NBC) detection systems by uploading software or the associated library of NBC related chemical fingerprints into the memory of the detector.

¹See Part I of BP's series of summaries for details on the final rule's "savings clause" for exports on dock for loading, on lighter, or laden aboard an exporting carrier, or en route aboard a carrier to a port of export.

(See ITT's Online Archives or 11/08/07 and 11/09/07 news, 07110825 and 07110915, for Parts I and II.)

(Comments regarding the collections of information associated with this rule, including suggestions for reducing the burden, should be sent to OMB Desk Officer, New Executive Office Building, Washington, DC 20503. Attention: David Rostker; and to the Office of Administration, Bureau of Industry and Security, Department of Commerce, 14th St. and Pennsylvania Avenue, NW., Room 6883, Washington, DC 20230.)

BIS Final Rule (D/N 070105004-7050-01, FR Pub 11/05/07) available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-21247.pdf