[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Notices]
[Pages 4287-4289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00652]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[Docket No. 170106032-7037-01]
RIN 0694-XC035


Increase of Controls: Infrared Detection Items

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Notice of inquiry with request for comments.

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SUMMARY: On October 12, 2016, the Bureau of Industry and Security (BIS) 
published a final rule entitled ``Revisions to the Export 
Administration Regulations (EAR): Control of Fire Control, Laser, 
Imaging, and Guidance Equipment the President Determines No Longer 
Warrant Control Under the United States Munitions List (USML).'' This 
notice of inquiry is published to request comments from the public on 
the impact of further increasing certain controls implemented by that 
final rule.

DATES: Comments must be received by BIS no later than March 14, 2017.

ADDRESSES: Comments on this rule may be submitted to the Federal 
rulemaking portal (www.regulations.gov). The regulations.gov ID for 
this rule is: BIS-2017-0001. Please refer to RIN 0694-XC035 in all 
comments.

FOR FURTHER INFORMATION CONTACT: For questions regarding the ECCNs 
included in this rule, contact Christopher Costanzo at 202-482-0718 or 
Email [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On October 12, 2016, the Bureau of Industry and Security (BIS) 
published a final rule entitled ``Revisions to the Export 
Administration Regulations (EAR): Control of Fire Control, Laser, 
Imaging, and Guidance Equipment the President Determines No Longer 
Warrant Control Under the United States Munitions List (USML)'' (81 FR 
70320), hereafter referred to as the ``October 12 final rule.'' This 
final rule was preceded by two proposed rules published on May 5, 2015 
(80 FR 25798) (``May 5, 2015 proposed rule'') and February 19, 2016 (81 
FR 8421) (``February 19, 2016 proposed rule''). Revisions made by the 
October 12 final rule became effective on December 31, 2016. During the 
course of public comment and interagency discussion on the rule that 
became effective at the end of 2016, several ideas for new types of 
controls under the ITAR arose. Because these controls were not proposed 
earlier and not subject to public comment, they were not included in 
the October 12 final rule. Thus, the Department of State is publishing 
a notice of inquiry addressing those controls. Along with those 
possible new controls under the ITAR, this notice of inquiry requests 
comments from the public on the potential impact of increasing certain 
EAR controls established in the October 12 final rule. Items controlled 
in certain Export Control Classification Numbers (ECCNs) in Category 6 
of the Commerce Control List (CCL) can be incorporated into foreign 
military commodities. To provide greater visibility into exports, 
reexports, and in-country transfers of such items, the October 12 final 
rule increased the scope of controls described in Sec.  744.9 
(Restrictions on

[[Page 4288]]

exports, reexports, and transfers of certain cameras, systems, or 
related components) and the scope of Export Control Classification 
Number (ECCN) 0A919 (``Military Commodities'' Located and Produced 
Outside the United States . . . .). This Notice of Inquiry seeks public 
comment on the impact of imposing additional license requirements for 
certain transactions, including the effect such controls would have on: 
The national security or foreign policy interests of the United States; 
the export performance of the United States; the competitive position 
of the United States in the international economy; the international 
reputation of the United States as a supplier of goods and technology; 
or the economic well-being of individual United States companies. This 
includes comments addressing the competitive advantage of U.S. 
companies vis-[agrave]-vis non-U.S. companies, any impacts to the 
technological edge of U.S. companies, and whether these changes would 
influence assembly and integration activities inside and outside of the 
United States. Public comments should also state whether or not foreign 
availability exists for items subject to potential additional controls 
and, to the extent such foreign availability exists, describe such 
foreign availability in detail.

Section 734.4 ``De Minimis U.S. Content'' for 0A919 Foreign Military 
Commodities

    Prior to December 31, 2016. Section 734.4(a)(5) of the EAR provided 
that there is no de minimis level for non-U.S. made military 
commodities, as described in ECCN 0A919, that incorporate uncooled 
thermal imaging cameras controlled in 6A003.b.4.b. The May 5, 2015 
proposed rule maintained that standard in Sec.  734.4(a)(5), but 
proposed to increase the scope of incorporated infrared detection items 
in ECCN 0A919 to include ECCNs 6A002, 6A003, 6A990, or 6A993.a (having 
a maximum frame rate equal to or less than 9 Hz and thus meeting the 
criterion of Note 3.a to 6A003.b.4). The February 19, 2016 proposed 
rule maintained the change in scope to ECCN 0A919 but narrowed the 
destinations subject to the no de minimis provision in Sec.  
734.4(a)(5) to Group D:5 countries. This was done to treat foreign-made 
products using such dual-use items the same as foreign-made products 
using items previously subject to the ITAR (i.e., 600 series and 9x515 
items)
    As of December 31, 2016. Consistent with the February 19, 2016 
proposed rule, the October 12 final rule broadened the scope of ECCN 
0A919 to include incorporated infrared detection items in ECCNs 6A002, 
6A003, 6A990, or 6A993.a (having a maximum frame rate equal to or less 
than 9 Hz and thus meeting the criterion of Note 3.a to 6A003.b.4) and 
limited the destinations subject to the no de minimis provision to 
Group D:5 countries.
    Potential Revision. Expand the destinations subject to the no de 
minimis provision to ``any destination, except Canada,'' for non-U.S. 
military commodities (0A919) to those that incorporate any of the 
following: (1) Image intensifier tubes having a figure of merit (FOM) 
exceeding 1,400 lp/mm (line pairs per millimeter); (2) an infrared 
focal plane array (FPA) with format exceeding 75,000 detector elements, 
or (3) related infrared focal plane array read-out integrated circuit 
having more than 75,000 unit cells. FOM would be defined as the product 
of the tube's signal to noise ratio (SNR) and limiting resolution (FOM 
= SNR (unitless) x Limiting Resolution (lp/mm) and is a term of art 
regularly associated with exports of image intensifier tubes and 
related devices subject to the ITAR.
    Rationale. With no de minimis control level for commodities 
controlled by ECCN 0A919.a.1 only for countries listed in Country Group 
D:5 of Supplement No. 1 to part 740 of the EAR, there could be 
reexports, without U.S. Government review, of certain foreign-made 
military commodities incorporating items subject to the EAR to 
countries not in Country Group D:5. Examples of military commodities 
that would not reach the generally applicable 25 percent de minimis 
level, absent other controlled EAR content, and thus would not require 
a U.S. reexport license to countries outside of Country Group D:5, 
include: (1) Thermal Weapon Sights (320 x 256 bolometer (VOx or alpha 
Si)): Approximate cost: >$4,000. Incorporated microbolometer core 
camera: Approximate cost: $400 - $700; (2) Multi-sensor targeting 
turrets (640x480 InSb): Approximate cost: >$250,000. Incorporated 
Integrated Detector Cooler Assembly: Approximate cost: $25,000. (3) 
Airborne Targeting Pods (640 x 480 MW HgCdTe): Approximate cost: 
>$1,000,000. Incorporated Integrated Detector Cooler Assembly: 
Approximate cost: $25,000. (4) Airborne Infrared Search and Track (640 
x 480 InSb): Approximate cost: >$1,000,000. Incorporated Integrated 
Detector Cooler Assembly: Approximate cost: $25,000.
    The absence of U.S. controls over the reexport of such military 
commodities could result in potentially high performance systems 
incorporating U.S. components being exported to a wide range of 
destinations outside of Country Group D:5 without U.S. Government 
review.

Section 740.20, License Exception Strategic Trade Authorization (STA) 
for Certain Night Vision Equipment To Be Embedded

    Prior to December 31, 2016. Section 740.20(b)(2)(x) restricted the 
use of License Exception STA for specific commodities controlled by 
ECCN 6A002, as well as related technology controlled by 6E001 or 6E002. 
The May 5, 2015 proposed rule expanded that restriction to also include 
ECCNs 0E987; 6A002; 6A990; 6D002 (for the use of commodities controlled 
under ECCN 6A002.b); 6D003.c; 6D991 (for the development, production, 
or use of commodities controlled under ECCNs 6A002, 6A003, or 6A990); 
6E001 (for the development of commodities controlled under ECCNs 6A002 
or 6A003); 6E002 (for the production of commodities controlled under 
ECCNs 6A002 or 6A003); 6E990; and 6E994. The February 19, 2016 proposed 
rule maintained those restrictions, but did not include the restriction 
for ECCN 6E994 since that proposed ECCN was removed.
    As of December 31, 2016. Consistent with the February 19, 2016 
proposed rule, the October 12 final rule expanded that restriction to 
include all items in the following ECCNs: 0E987; 6A002; 6A990; 6D002 
(for the use of commodities controlled under ECCN 6A002.b); 6D003.c; 
6D991 (for the development, production, or use of commodities 
controlled under ECCNs 6A002, 6A003, or 6A990); 6E001 (for the 
development of commodities controlled under ECCNs 6A002 or 6A003); 
6E002 (for the production of commodities controlled under ECCNs 6A002 
or 6A003); and 6E990.
    Potential Revision. Remove STA eligibility for infrared imaging 
cameras controlled in ECCN 6A003.b.4 that:
    (i) Are being exported to be embedded into a higher level assembly, 
system or equipment; and
    (ii) incorporate two dimensional FPAs specified in either ECCN 
6A002.a.3.c or ECCN 6A002.a.3.f, and that have more than 328,000 
detector elements.
    Rationale. Removing STA eligibility for such items will ensure that 
those infrared imaging cameras to be embedded (e.g., kits, cores, 
modules) that could exceed the size of those incorporated in military 
fielded systems, receive U.S. Government review when exported for 
incorporation into commercial/civil equipment and systems.

[[Page 4289]]

ECCN 6A993

    Prior to December 31, 2016. The export, reexport or in-country 
transfer of cameras in ECCN 6A993.a (meeting the criteria of Note 3 to 
ECCN 6A003.b.4) require a license if destined to a country designated 
as a state sponsor of terrorism (Country Group E:1). The May 5, 2015 
and February 19, 2016 proposed rules expanded the license requirement 
in Sec.  744.9 to include those cameras when destined to a military 
end-user or to be incorporated into a military commodity.
    As of December 31, 2016. Consistent with those proposed rules, the 
October 12 final rule expanded the license requirement to those cameras 
when destined to a military end-user or to be incorporated into a 
military commodity.
    Potential Revision. Require a license for the export, reexport or 
in-country transfer, to or in a D:5 country, of cameras that meet the 
criteria of Note 3 to ECCN 6A003.b.4 and incorporate a microbolometer 
FPA with greater than 75,000 detector elements and that are being 
exported to be incorporated into a higher level assembly, equipment or 
system.
    Rationale: Section 744.9 does not cover camera cores to be 
incorporated in imaging cameras for civil end-users or civil 
commodities. These cores could be incorporated into night vision 
thermal monoculars that are not regarded as weapon sights but that 
could be used as such. These cores can also be incorporated into civil 
UAVs that could provide day and night surveillance of U.S. and 
coalition forces.

Supplement No. 1 to Part 774 (Commerce Control List)

ECCN 3C001

    Current control status. ECCN 3C001 has NS Column 2 and AT Column 1 
controls. ECCN 3C001 is not eligible for License Exceptions GBS and 
CIV. Neither the May 5, 2015 nor the February 19, 2016 proposed rules 
included changes to the control status of ECCN 3C001.
    Potential Revision. Add RS Column 1 controls (worldwide except 
Canada) to items in 3C001 that are III-V compounds of gallium or 
indium, and aluminum, antimony, or arsenic, forming a strained layer 
superlattice having a photoluminescence signal maxima originating from 
the superlattice in the wavelength range exceeding 3,000 nm but not 
exceeding 15,000 nm at a temperature less than 200 K. License review 
policy for RS:1 controls are found in Sec.  742.6 of the EAR.
    Rationale: Materials meeting these parameters are necessary for the 
production of FPAs controlled in ECCN 6A002, which are subject to an 
RS:1 control.

ECCN 3E001

    Current control status. ECCN 3E001 has the following controls: NS 
Column 1 applies to ``technology'' for items controlled by 3A001, 
3A002, 3A003, 3B001, 3B002, or 3C001 to 3C006; MT Column 1 applies to 
``technology'' for equipment controlled by 3A001 or 3A101 for MT 
Reasons; NP Column 1 applies to ``technology'' for equipment controlled 
by 3A001, 3A201, or 3A225 to 3A234 for NP reasons; and AT Column 1 
applies to the entire entry.
    Potential Revision. Add RS Column 1 to ``technology'' for items in 
3C001 that are III-V compounds of gallium or indium, and aluminum, 
antimony, or arsenic forming a strained layer superlattice having a 
photoluminescence signal maxima originating from the superlattice in 
the wavelength range exceeding 3,000 nm but not exceeding 15,000 nm at 
a temperature less than 200 K. RS Column 1 controls apply to all 
destinations except Canada. License review policy for RS:1 controls are 
found in Sec.  742.6 of the EAR. Note that License Exceptions CIV and 
TSR would no longer be eligible for these specified items in ECCN 
3E001, because of the addition of RS Column 1 controls.
    Rationale: Technology for the production of materials meeting these 
parameters is necessary for the production of FPAs controlled in ECCN 
6A002, which are subject to an RS:1 control.

ECCNs 6E001, 6E002 and 6E990

    Prior to December 31, 2016 and current control status. The May 5, 
2015 proposed rule included a new worldwide RS control for commodities 
controlled under ECCNs 6A002 and 6A990, as well as for related software 
and technology controlled under 6D002, 6D003.c, 6D991, 6E001, and 
6E002. The proposed worldwide RS control would have introduced a new 
license requirement for such items for exports or reexports to Canada. 
After receiving extensive public comments opposing the inclusion of the 
worldwide RS control, the February 19, 2016 proposed rule did not 
retain that proposal, and as such, the final rule maintained the 
current controls in place for such items.
    Proposed Revision. Add a worldwide RS control for specific 
technology related to components controlled under ECCN 6A002 or 6A990, 
as follows:
    (i) 6E001 development technology or 6E002 production technology for 
image intensifier tubes controlled in 6A002.a.2.a or 6A002.a.2.b and 
their specially designed components controlled in 6A002.a.2.c, except 
those tubes having a multialkali photocathode.
    (ii) 6E001 development technology or 6E002 production technology 
for microbolometer infrared focal plane arrays controlled in 
6A002.a.3.f and two-dimensional infrared focal plane arrays controlled 
in 6A002.a.3.c.
    (iii) 6E990 development and production technology for read-out 
integrated circuits specially designed for those focal plane arrays 
specified in ii, above (i.e., microbolometer infrared focal plane 
arrays controlled in 6A002.a.3.f and two-dimensional infrared focal 
plane arrays controlled in 6A002.a.3.c).
    Rationale. This proposed revision, while similar to proposals from 
the May 5, 2015 proposed rule, would add new license requirements for 
Canada for a narrower range of items than those previously proposed. 
Thus, this one potential revision would be limited to that development 
or production technology required for the most sensitive items 
controlled in ECCNs 6A002 or 6A990. Given the close relationship 
between the U.S. and Canadian industrial bases and the very limited 
license requirements for exports of dual-use items to Canada in the 
EAR, BIS also requests comments on how this potential change would 
affect the U.S.-Canada trade and defense relationship and whether this 
potential revision would further the collective North American 
security.

Request for Comments

    BIS is seeking comments on foreign availability, as well as the 
impact these potential revisions may have on: The national security or 
foreign policy interests of the United States; the export performance 
of the United States; the competitive position of the United States in 
the international economy; the international reputation of the United 
States as a supplier of goods and technology; or on the economic well-
being of individual United States companies. As stated under the DATES 
caption to this notice, comments should be received no later than March 
14, 2017.

    Dated: January 9, 2017.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2017-00652 Filed 1-12-17; 8:45 am]
 BILLING CODE 3510-33-P