Where Industry and Security Intersect
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Introduction:
Technological and economic competitiveness are key to the United State’s long-term national security. As such, the United States needs to ensure that export controls are constantly reassessed so that the most sensitive items are controlled to sustain U.S. economic competitiveness and innovation. The focus on U.S. competitiveness includes developing a regularized process for review of the list of controlled dual-use items (the Commerce Control List).
2007/2008 Systematic CCL Review Lays Groundwork for Regularized CCL Review Process:
Starting in 2007, BIS undertook initiatives to establish a regularized CCL review process. A major step was taken on July 17, 2007 when BIS published a notice of inquiry, “Request for Public Comments on a Systematic Review of the Commerce Control List,” in the Federal Register (72 FR 39052). BIS received 26 public comments and 3 comments from BIS’s Technical Advisory Committees (TACs). BIS is now taking steps to implement these comments.
Institutionalizing the CCL Review Process:
BIS intends to conduct similar systematic CCL reviews in the future, building on the success and lessons learned from the 2007/2008 CCL review. Once the current CCL review is completed, BIS plans to review 1/3 of the CCL each year to create a three review cycle. These subsequent CCL reviews may allow for a more in-depth analysis of a particular CCL category or industry sector. In addition, there are other CCL review processes, such as those for items that are controlled under the multilateral export control regimes, that help to ensure that export controls are being constantly reassessed. By institutionalizing the CCL review process, BIS has put into place a mechanism to ensure that the most sensitive items are controlled to sustain U.S. economic competitiveness and innovation.
Introduction:
This part provides an overview of the suggested changes from the CCL that have been addressed by BIS. The implementation of these CCL review changes is being done on several different tracks.
Review of Comments Received for the 2007/2008 CCL Review:
BIS evaluated and categorized the 26 public and 3 TAC comments into four groups: Group A - (ECCN level suggested changes); Group B (Non-ECCN level suggested changes); Group C - (Non-regulatory suggested changes); and Group D (Suggested changes regarding the appropriate scope of the CCL and the EAR). The BIS review phase was the first step in the implementation of these changes to the CCL.
Implementation:
The second stage of implementing the CCL review results involves internal BIS process changes and technical corrections to the CCL. The changes are listed below under “Part 1: Unilateral changes not requiring interagency clearance to implement,” and include creating a new Emerging Technology and Research Advisory Committee (ETRAC), adding hyperlinks to the related controls references in the CCL, and publishing a final rule, “Technical Corrections to the Export Administration Regulations based upon a Systematic Review of the CCL,” in the Federal Register ( 73 FR 21035) on April 18, 2008.
The third stage of implementing the CCL review involves additional changes that will require the agreement of other U.S. Government agencies or changes to multilateral regime control lists, such as the Wassenaar Arrangement or the Australia Group, before any implementation of the suggested changes could occur. These changes to the CCL will take more time to address and will eventually be listed in this table under “Part 2: Unilateral changes requiring interagency clearance to implement” and “Part 3: Changes that require multilateral export control regime changes.” For changes under Part 2, BIS published the final rule, “Revisions to the Export Administration Regulations Based Upon a Systematic Review of the CCL” in the Federal Register (73 FR 58033) on October 6, 2008. BIS is working on another CCL review rule to implement changes from the CCL review that can be made unilaterally by the U.S. Because these proposed changes require interagency review to implement, it may result in alternative approaches being developed or no amendment to the CCL. As BIS makes further progress in addressing the suggested changes from the CCL review, the table will be updated.
Overview:
Part 1 is broken into three sections:
(§1.1 BIS internal process changes);
(§1.2 Advisory opinions/web guidance); and
(§1.3 Unilateral regulatory changes not requiring interagency clearance).
§1.1 BIS internal process changes
| Suggested change | BIS Response |
|---|---|
| Developing "unofficial" version of CCL with hot links | EAR electronic database change: 4/7/08 - hot links added to related controls ECCN references. http://www.access.gpo.gov/bis/ear/ ear_data.html |
| Adding a "foreign availability" check box to the BIS license application. | Final rule - published 4/18/08 73 FR 21035 |
Note: These 3 changes will be addressed by the BIS Emerging Technology and Research Advisory Committee (ETRAC).
| Suggested change | BIS Response |
|---|---|
| AAU and GOGR would like to discuss with Commerce/BIS staff how university experts might play greater role in helping determine which technologies should be in the control list particularly for deemed exports. | Creating an ETRAC.
http://www.bis.doc.gov/news/2008/ deac_rec02062008.html |
| CCL should be updated streamlined to better reflect narrow set of technologies that should be protected for national security reasons which are not readily available overseas. | Creating an ETRAC. http://www.bis.doc.gov/news/2008/ deac_rec02062008.html |
| Commerce should recognize CCL not a list of comparable technologies, controls should be designed and administered differently depending on specific nature of area of technology being regulated | Creating an ETRAC. http://www.bis.doc.gov/news/2008/ deac_rec02062008.html |
§1.2 Advisory Opinions/Web Guidance
| Suggested change | BIS Response |
|---|---|
| Add Note to 1C210.a and .b to establish consistency with 1C010 for the repair of commercial aircraft. | Advisory Opinion - signed 3/21/08 http://www.bis.doc.gov/ policiesandregulations/ advisoryopinions.htm |
| Define "Thermoset" resin for 1C210.c | Advisory Opinion - signed 3/21/08 http://www.bis.doc.gov/ policiesandregulations/ advisoryopinions.htm |
| Ambiguous non-technical control parameters. One control identified as having qualitative control language that lacks quantitative technical clarity. ECCNs 3A233.d and 3A233.e.2. | Advisory Opinion - signed 3/21/08 http://www.bis.doc.gov/ policiesandregulations/ advisoryopinions.htm |
§1.3 Unilateral regulatory changes
| Suggested change | BIS Response |
|---|---|
| Add additional cross references to CCL entries. BIS Note: Another commenter made many specific suggestions for new related control references, some of which may be implemented. Examples included revising the “Related Controls” paragraphs in the following twenty-four Export Control Classification Numbers (ECCNs): 0A018, 1A001, 1A003, 1A005, 1C004, 1C006, 1C008, 1C009, 1C011, 1C012, 1D001, 1D018, 1E002, 2A983, 2B004, 2B005 2E101, 2E201, 3A002, 3B002, 3B992, 3D002, 4D003, 5E002 by adding additional related control references or making changes for greater specificity for the related controls references. | Final rule - published 4/18/08 73 FR 21035 |
| 6D003 GBS: Yes for 6D003.h CIV: Yes for TSR: Yes, except for the following: (1) (2) Exports or reexports to destinations outside of Austria, ... of "software" for items controlled by 6D003.a. (All of 6D003.h was eligible for GLX (the predecessor of CIV) per 771A Supplement 1, when it was 6D03A.d. Nothing in 6D003 is controlled for MT reasons.) | Final rule - published 4/18/08 73 FR 21035 |
| 8D001 TSR: Yes, except for the following; (1) (2) Exports or reexports to destinations outside of ... of "technology" for the "development" or "production" of items controlled by ... | Final rule - published 4/18/08 73 FR 21035 |
| 8E001 TSR: Yes, except (1) (2) Exports or reexports to destinations outside of ... of "technology" for the "development" or "production" of items controlled by ... | Final rule - published 4/18/08 73 FR 21035 |
| 1B003 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 2B001 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 2B003 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 2B004 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 4A001 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 4A003 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 4A004 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 5B001 Unit: Equipment in number; | Final rule - published 4/18/08 73 FR 21035 |
| 8A001 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 9A004 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 9B009 Unit: |
Final rule - published 4/18/08 73 FR 21035 |
| 6A002 Unit: Equipment , detectors, and sensors in number; |
Final rule - published 4/18/08 73 FR 21035 |
| 6A004 Unit: Equipment in number; |
Final rule - published 4/18/08 73 FR 21035 |
Overview:
This section is broken into three sections: §2.1 Unilateral regulatory changes that require interagency clearance ; §2.2 Unilateral regulatory changes for multilaterally controlled items that do not require regime changes to implement (i.e., change would be within USG national discretion); and §2.3 BIS process changes that require interagency clearance (e.g., creating or modifying an interagency review process).
§2.1 Unilateral regulatory changes that require interagency clearance
| Suggested change | BIS Response |
|---|---|
| Revise the “Related Controls” paragraphs in the following twenty-four Export Control Classification Numbers (ECCNs): 0A018, 1A001, 1A003, 1A005, 1C004, 1C006, 1C008, 1C009, 1C011, 1C012, 1D001, 1D018, 1E002, 2A983, 2B004, 2B005 2E101, 2E201, 3A002, 3B002, 3B992, 3D002, 4D003, 5E002 by adding additional related control references or making changes for greater specificity for the related controls references. | Final rule - published 4/18/08 73 FR 21035 |
| Add note to ECCN 4A980 clarifying scope of control. | Final rule - published 10/06/08 73 FR 58035 |
| Request guidance regarding interrelationship between 2B350 and 2B999 | Final rule - published 10/06/08 73 FR 58035 |
| 742 Supplement No. 7 entry (7)(c) Unmanned Aerial Vehicles (UAVs) of any type, including sensors for guidance and control of these systems, except model airplanes. | Final rule - published 10/06/08 73 FR 58035 |
| Adding “subject to the EAR” is because, without that change, the 772.1 definition of “item,” unintentionally but literally, includes items not subject to the EAR, such as publicly available and de minimis. | Final rule - published 10/06/08 73 FR 58035 |
| Update WT control parameter in ECCN 4A994.b, among other changes/deletions in technical parameters in paragraphs (d) through (h). | Final rule - published 10/06/08 73 FR 58035 |
| Inconsistencies or redundancies. 5A991.b.8.b controls embedded DSPs that fall under 4A003.b. Appears to be overlap with 4A003 that could be eliminated either by adding note to 4A003.b and eliminating 5A991.b.8.b; or moving 5A991.b.8.b to 4A99x with similar note. | Final rule - published 10/06/08 73 FR 58035 |
| Points of Confusion. 5A991.b.8: does not state whether it is applicable to “a and b” vs. “a or b”. | Final rule - published 10/06/08 73 FR 58035 |
| Points of Confusion. 5A991.c.2: “related definition” of “ISDN” seems to extend beyond what is defined in T1 standards for ISDN. Better to have separate term for CCL control and note it includes ISDN as defined in standards. | Final rule - published 10/06/08 73 FR 58035 |
| Points of Confusion. 5A991.c.4 “fast select”: related definitions do not shed any light on what this is. | Final rule - published 10/06/08 73 FR 58035 |
| Missing Definitions not listed under 772 or under 5A991 but are in quotation in 5A991: “network access controllers” “data (message) switching” “packet mode operation” | Final rule - published 10/06/08 73 FR 58035 |
| Better harmonize CCL with DEA's export control efforts by adding list of cross-references in CCL to DEA regulations. | Final rule - published 10/06/08 73 FR 58035 |
| Including quantity references in materials section of 2B350. Currently, not clear to some in industry if trace amount of a controlled material, 10%, 25%, 50%, of a controlled material triggers 2B350 control. | Final rule - published 10/06/08 73 FR 58035 |
§2.2 Unilateral regulatory changes for multilaterally controlled items that do not require regime changes to implement (i.e., Changes that can be made within U.S. National Discretion)
| Suggested change | BIS Response |
|---|---|
| Add Australia for use with TSR Exception regarding 1E001. | Final rule - published 4/18/08 73 FR 21035 |
| 2B018 Delete Advisory Note and revise GBS entry |
Final rule - published 10/06/08 73 FR 58035 |
| 6A005 Unit: Equipment in number; parts and accessories "lasers", assemblies and components in $ value |
Final rule - published 4/18/08 73 FR 21035 |
| 1E002 NP applies to portion of 1E002.f applicable to NP portion of 1A002. |
Final rule - published 10/06/08 73 FR 58035 |
| 1C350 various revisions to License Requirement Notes and Related Controls |
Final rule - published 10/06/08 |
| 1C351 various revisions to Related Definitions, License Requirement Notes and Related Controls |
Final rule - published 10/06/08 73 FR 58035 Note: BIS took an alternative approach to addressing this suggested change. |
| 1C352 various revisions to License Requirement Notes and Related Controls |
Final rule - published 10/06/08 73 FR 58035 Note: BIS took an alternative approach to addressing this suggested change. |
| 1C353 various revisions to License Requirement Notes and Related Controls |
Final rule - published 10/06/08 73 FR 58035 Note: BIS took an alternative approach to addressing this suggested change. |
| 1C354 various revisions to License Requirement Notes and Related Controls |
Final rule - published 10/06/08 73 FR 58035 Note: BIS took an alternative approach to addressing this suggested change. |
| 1C360 various revisions to License Requirement Notes and Related Controls |
Final rule - published 10/06/08 73 FR 58035 Note: BIS took an alternative approach to addressing this suggested change. |
| 2B350 various revisions to License Requirement Notes and Related Controls |
Final rule - published 10/06/08 73 FR 58035 Note: BIS took an alternative approach to addressing this suggested change. |
| 2B351 revise the heading |
Final rule - published 10/06/08 73 FR 58035 Note: BIS took an alternative approach to addressing this suggested change. |