BIS Amends EAR to Address Security and Competitiveness Issues for Thermal Imaging Cameras
The Bureau of Industry and Security has issued a final rule, effective May 22, 2009, which recalibrates export controls on uncooled thermal imaging cameras to address security and competitiveness issues.
Among other things, the final rule imposes license requirements for certain exports and reexports of military commodities manufactured outside the U.S., regardless of the level of U.S. origin content, if those military commodities incorporate certain thermal imaging cameras that are subject to the Export Administration Regulations.
The final rule also removes certain Commerce Control List license requirements, establishes a semiannual reporting requirement, limits the use of License Exception APR (additional permissive reexports), imposes end-use license requirements, and imposes a license requirement for software for certain cameras, etc.
BIS states that in light of the potential for these cameras to be used in military applications, as well as the growing number of foreign suppliers and the export license policies of other governments with respect to the destinations that form major markets for thermal imaging cameras, a revision of license requirements on certain cameras is warranted.
License Requirements Applied to Certain Military Commodities
BIS' final rule includes export/reexport license requirements on certain cameras incorporated into military commodities as follows:
De minimis ineligibility for ECCN 6A003.b.4.b cameras.The final rule revises 15 CFR 734.4 to make foreign made military commodities containing Export Control Classification Number (ECCN) 6A003.b.4.b cameras that are not subject to the International Traffic in Arms Regulations (ITAR) ineligible for de minimis treatment.
RS Column 1 license requirement. 15 CFR 742.6(a)(2) is also revised to apply the regional stability (RS column 1) license requirement on such military commodities for reexport, thereby requiring a license to any destination other than Canada1.
USML licensing policy. The final rule applies U.S. Munitions List licensing policy to military commodities controlled by ECCN 0A919, by revising 15 CFR 772.16 to add a definition of "military commodity," and by revising Supplement No. 1 to 15 CFR Part 774 to create a new ECCN 0A919 to apply to military commodities made outside the U.S. that are not subject to the ITAR.
AT Column 1 licensing policy. The rule also imposes anti-terrorism (AT Column 1) and United Nations (arms embargo, Rwanda) license requirements and licensing policy to military commodities controlled by ECCN 0A919.
Removal of Certain CCL License Requirements for 36 Destinations
BIS' final rule also removes CCL-based export and reexport license requirements with respect to 36 destinations2 for cameras described in ECCN 6A003.b.4.b that incorporate focal plane arrays with not more than 111,000 elements and that have a frame rate of 60 Hz or less and that are not being exported or reexported to be embedded in a civil product.
This rule also revises license application review policy for such cameras when they are being exported or reexported to most destinations for which a license is required for regional stability reasons. Applications will be evaluated under the regional stability policy (RS column 2) set forth in 15 CFR 742.6(b)(2) (i.e., on a case-by-case basis unless there is evidence that the export or reexport would contribute significantly to the destabilization of the region to which the equipment is destined).
(See BIS final rule for regulations retaining the current license requirements and license application review policy for the higher frame rates and number of elements in the cameras' focal plane arrays and for cameras being exported or reexported to be embedded in a civil product, etc.)
Semiannual Reporting Requirement for Exporters of Certain Cameras
BIS' final rule also adds a reporting requirement under new 15 CFR 743.3 (Limitation on Use of License Exception APR for Cameras in ECCN 6A003.b.4.b) with respect to exports for which this rule's revision or removal of regional stability as a reason for control results in the removal of all CCL based license requirements.
Exporters of cameras described in ECCN 6A003.b.4.b will have to report semiannually to BIS by e-mail information including the name, address and telephone number of the exporter; the date of each export; the name, address and telephone number of the consignee or end user; the model number(s); the serial number of each exported camera that has a serial number; etc.
Limited Use of License Exception APR for Certain Reexports
The final rule also limits use of License Exception APR for cameras described in ECCN 6A003.b.4.b by making such cameras ineligible for reexport under paragraph (a) of License Exception APR, and limits their reexport under paragraph (b) to destinations and for purposes for which they would not have a CCL based license requirement if exported from the U.S.
BIS is making this change to enable it to inform, via license conditions, the recipients of the reexports of the need to obtain a license for further reexports.
(The rule also revises the treatment of Cambodia and Laos as eligible destinations under License Exception APR in order to treat them in the same manner as other members of Country Group D:1.)
License Requirement for Military End-Use Exports & Reexports, Etc.
The final rule imposes a license requirement on exports and reexports to all destinations other than Canada, when the exporter or reexporter knows, at the time of export or reexport, that the item will be used by a military end-user or will be incorporated into a military commodity described in ECCN 0A919 as created by this rule.
It also imposes a license requirement if BIS informs an exporter or reexporter, either individually by specific notice or through EAR amendment, that a license is required for export or reexport of items described in ECCN 6A003.b.4.b to specified end-users.
This rule also adds cameras controlled by ECCN 6A993 to Supplement No. 2 to 15 CFR Part 744, which requires a license for the export, reexport or transfer to certain military end-uses in China. (See ITT's Online Archives or 09/03/08 news, 08090330, for BP summary of BIS' initiation of a foreign availability assessment of certain thermal imaging cameras in China.)
License Requirement for Software for Cameras With Certain Frame Rates
BIS' final rule also adds a new ECCN 6D994 to apply RS column 1 licensing requirement to software that is capable of increasing to more than 9 Hz, the frame rate of cameras that incorporate focal plane arrays controlled by 6A002.a.3.f.
BIS states that this new ECCN will allow it to impose a license requirement on software that could be used to raise the frame rate of previously exported cameras to a level equivalent to that of cameras that require a license for export.
1BIS notes that this license requirement does not apply if the export or reexport is part of a military deployment by any unit of the government of 36 countries2 or the U.S. Applications to reexport such military commodities will be reviewed in a manner that is consistent with the policies for similar military commodities that are subject to the ITAR.
2The 36 countries are: Australia, Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, South Africa, South Korea, Spain, Sweden, Switzerland, Turkey, and the United Kingdom.
BIS contact - John Varesi (202) 482-1114
BIS notice (D/N 0612242573-7104-01, FR Pub 05/22/09) available at http://edocket.access.gpo.gov/2009/pdf/E9-11951.pdf
BIS press release (dated 05/27/09) available at http://www.bis.doc.gov/news/2009/bis_press05272009.htm