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October 20, 2016

Export Control Reform Continues with Removal of Certain Night Vision, Laser, Guidance, Other Items from USML Cat. XII

As part of the Export Control Reform (ECR) initiative, on October 12, 2016, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) published a final rule describing articles that the President has determined no longer warrant control under USML Category XII (Fire Control, Laser, Imaging, and Guidance Equipment) in the International Traffic in Arms Regulations (ITAR) and transferring them to the control of the Export Administration Regulations (EAR). The rule becomes effective December 31, 2016. BIS previously published two proposed rules regarding the transferal of items from USML Cat. XII in May 2015 and February 2016. This final rule’s revisions include the establishment of “600 series” ECCNs for military fire control, laser, imaging, and guidance items; modifications related to and increased controls for certain infrared detection items; and changes to controls related to certain quartz rate sensors. Below we provide a high-level overview of these changes.

Establishment of “600 Series” for Military Fire Control, Laser, Imaging, and Guidance Items under 7x611 ECCNs

The final rule consolidates entries and establishes a single “600 series” by revising ECCN 7A611 and adding new ECCNs 7B611, 7D611, and 7E611 for military fire control, laser, imaging, and guidance commodities, software, and technology.

Revisions to Increase Controls, Modify Provisions for Infrared Detection Items Subject to the EAR

End-User and End-Use Based Controls

Foreign Military Commodities (ECCN 0A919)

Optical Devices for Firearms, Related Components (ECCNs 0A987 and 0E987)

Specified Cameras, Related Items (ECCN 6A003)

Read-Out Integrated Circuits (ROICs) (ECCN 6A990)

Software Controls (ECCNs 6D002, 6D003, and 6D991)

License Exceptions, Licensing Policies

Removal of Controls Specific to QRS-11 Sensors[10]

BIS’s final rule also revised, among other things, the scope of control of ECCN 2A984[11] and made a number of conforming changes.

The State Department published a companion final rule describing more precisely the articles continuing to warrant control on the USML. State’s companion final rule also becomes effective on December 31, 2016.

[1] This license requirement would be imposed on ECCN 0A987 commodities that incorporate items in ECCNs 6A002 and 6A003, or certain cameras in 6A993.a.
[2] This requirement would be imposed on ECCN 6A993.a commodities that meet the criterion of Note 3.a to 6A003.b.4.
[3] ECCN 0A919 controls “military commodities” produced and located outside the U.S. that are not subject to the ITAR and incorporate one or more cameras controlled under ECCNs 6A003.b.3, 6A003.b.4.b, or 6A003.b.4.c. It also controls such “military commodities” if they incorporate more than a de minimis amount of U.S.-origin 600 series content or are the direct products of U.S.-origin 600 series “technology” or “software.”
[4] This provision would only control those ECCN 6A993.a commodities that have a maximum frame rate equal to or less than 9 Hz and thus meeting the criterion specified in Note 3.a to ECCN 6A003.b.4.b.
[5] Section 734.4(a)(5) of the EAR currently (prior to the effective date of the rule) provides that there is no de minimis level for 0A919 items that incorporate certain infrared detection items.
[6] This restriction would solely be imposed on 6D002 “software” for the “use” of commodities controlled under ECCN 6A002.b.
[7] This restriction would solely be imposed on 6D991 “software” for the “development,” “production,” or “use” of commodities controlled under ECCNs 6A002, 6A003, or 6A990.
[8] This restriction would solely be imposed on 6E001 “technology” for the “development” of commodities controlled under ECCNs 6A002 or 6A003.
[9] This restriction would solely be imposed on 6E002 “technology” for the “production” of commodities controlled under ECCNs 6A002 or 6A003.
[10] QRS-11 sensors were originally designed for military application but are now being used in civil aircraft.
[11] The final rule revises ECCN 2A984 to control concealed object detection equipment operating in the frequency range from 30 GHz to 3000 GHz and having a spatial resolution of 0.1 milliradian up to and including 1 milliradian at a standoff distance of 100 meters; and “parts” and “components,” not elsewhere specified.