[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Notices]
[Pages 43532-43536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15416]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[Docket No. 200710-0186]
RIN 0694-XC063


Advanced Surveillance Systems and Other Items of Human Rights 
Concern

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Notice of inquiry.

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SUMMARY: In this notice, the Department of Commerce (Department), 
Bureau of Industry and Security (BIS) seeks public comments on the list 
of items on the Export Administration Regulations' (EAR) Commerce 
Control List (CCL) that are controlled for crime control and detection 
(CC) reasons to promote human rights throughout the world. The request 
for comments in this notice furthers the periodic review of items 
controlled for CC reasons and is intended to inform the agency's 
decisions in updating (including additions and removals) items 
controlled for CC reasons on the CCL, as well as the related licensing 
requirements for such items. BIS takes this action pursuant to the 
Export Control Reform Act of 2018 (ECRA).

DATES: Comments must be received no later than September 15, 2020.

ADDRESSES: Comments may be submitted by any of the following methods.
     Federal rulemaking portal: http://www.regulations.gov_you 
can find this notice by searching on its regulations.gov docket number, 
which is BIS- 2020-0021. All comments (including any personally 
identifying information) will be made available for public inspection 
and copying.
     By mail or delivery to Regulatory Policy Division, Bureau 
of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th 
Street and

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Pennsylvania Avenue NW, Washington, DC 20230. Refer to RIN 0694-XC056.

FOR FURTHER INFORMATION CONTACT: For questions on licensing 
requirements for items controlled for crime control reasons, contact 
Steven Schrader, Foreign Policy Division, Office of Nonproliferation 
and Treaty Compliance, Bureau of Industry and Security, U.S. Department 
of Commerce, by email at [email protected], and by phone at 
202-482-4252. For questions on the submission of comments, contact 
Sheila Quarterman, Regulatory Policy Division, Office of Exporter 
Services, Bureau of Industry and Security, U.S. Department of Commerce, 
by email at [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Bureau of Industry and Security (BIS) controls the export and 
reexport of items for crime control and detection (CC) reasons under 
the Export Administration Regulations (EAR) (15 CFR 730-774). The 
licensing requirements and policy for these items are set out in Sec.  
742.7--Crime control and detection--of the EAR. These items are 
identified on the EAR's Commerce Control List (CCL) in Supplement No. 1 
to Part 774 of the EAR.
    BIS controls CC items to carry out the foreign policy of the United 
States, including to promote human rights throughout the world. The 
request for comments in this notice furthers the periodic review of 
items controlled for CC reasons and is intended to inform the agency's 
decision on updates (including additions and removals) of items listed 
on the CCL and controlled for CC reasons. BIS's last comprehensive 
review of CC items occurred with the assistance of comments submitted 
in response to a notice published in 2008 (73 FR 14769; March 19, 
2008).
    CC items of particular interest for new license requirements by BIS 
include facial recognition software and other biometric systems for 
surveillance, non-lethal visual disruption lasers, and long-range 
acoustic devices and their components, software, and technologies. BIS 
also seeks comments on the merits of removing or modifying the CC 
controls on several additional items currently on the CCL, and on 
potential controls for such items that are end-use/end-user based.

Request for Comments

    BIS seeks comments from the public; including industry and trade 
organizations, non-governmental organizations, government agencies, and 
academia, on crime control and detection items of particular interest 
for new license requirements, including facial recognition software and 
other biometric systems for surveillance; non-lethal visual disruption 
lasers; and long-range acoustic devices and their components, software, 
and technologies.
    BIS also seeks comments on current and proposed changes to items 
controlled on the CCL for CC reasons and on items designated as EAR99 
on the CCL, including both the items noted below and related items.

1. Facial recognition software and other biometric systems
2. Non-lethal visual disruption lasers (``dazzlers'')
3. Long-range acoustic devices and related components, software, and 
technologies for the above items.
4. Police helmets--0A979
5. Fingerprint readers--3A981, and components--(3A981, 4A980), software 
(3D980, 4D980), and technology (3E980, 4A980) thereof
6. Fingerprint powders, dyes, and inks (1A985)
7. Voice print identification systems (3A980) and components (3A980), 
software (3D980), and technology (3E980) thereof
8. Polygraphs and psychological stress analysis equipment (3A981) and 
components (3A981), software (3D980), and technology (3E980) thereof
9. Nonmilitary mobile crime science laboratories (9A980)
10. Miscellaneous CC controls in ECCNs and sub-paragraphs of ECCNs 
4A003, 4A980, 4D001, 4D980, 4E001, 4E980, 6A002, 6E001, and 6E002

    With regard to the aforementioned items described in more detail 
later in this notice, BIS seeks input on: (1) Information (including 
performance criteria) that may distinguish purely or predominantly 
consumer or commercial applications from applications purely or 
predominantly for use by law enforcement or security services and/or 
used in mass surveillance, censorship, privacy violations or otherwise 
useful in committing human rights abuses; (2) the impact of adding to, 
modifying, or removing items from the CCL on U.S. support of human 
rights throughout the world; and (3) the impact that changes of 
controls would have upon the competitiveness of U.S. business and 
industry.
    In addition to comments on the items listed below, BIS welcomes 
comments on the update of controls on other items for surveillance and 
crowd control as well as on related issues of concern to the public.
    BIS also seeks comments on potential revisions to CC controls that 
are based on end-uses and/or end-users, such as the end-use/end-user 
controls in Part 744 of the EAR.

1. Facial Recognition Devices for Individuals or for Crowd Scanning, 
Other Biometric Systems, and Their Input Components, Software, and 
Technology

    A facial recognition system identifies or verifies a person's 
identity from a digital image or a video frame by comparing selected 
facial features from an input image to the features of faces stored in 
a database. The major components of a facial recognition system are (1) 
input camera(s), (2) data storage, (3) processing computer, and (4) the 
software algorithms needed to model facial images. While conventional 
facial recognition systems currently use cameras that see visible 
light, thermal imaging cameras that use infrared light are starting to 
be used in facial recognition systems due to their ability to operate 
independently of weather or lighting conditions.
    Facial recognition is typically used to authenticate access to a 
device, such as on a cellphone, and is also widely used for access 
control into restricted areas, such as industrial facilities. Facial 
recognition systems have widespread user acceptance due to their 
contactless and non-invasive process.
    Facial recognition is also increasingly used in crowd-scanning 
systems. Such systems are used in casinos (for tracking the location of 
employees, special customers, and barred customers), airports (for 
tracking staff and criminals), prisons (for tracking staff and 
inmates), customs facilities, and commercial facilities. Recently, such 
systems have also become popular as commercial customer/client 
identification and marketing tools. The systems also have utility to 
assist during Amber and Silver Alerts, to identify individual 
protestors in a crowd, including riot participants, or to track down 
escaped criminals, bail jumpers, and people with outstanding arrest 
warrants.
    In addition to law enforcement and public safety-related uses, 
crowd-scanning systems can also be used to facilitate the abuse of 
human rights. China, for example, has deployed facial recognition 
technology in the Xinjiang region, in which there has been repression, 
mass arbitrary detention and high technology surveillance against 
Uighurs, Kazakhs and other members of Muslim minority groups. Reporters 
visiting the region found surveillance cameras installed approximately 
every

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hundred meters in several cities, as well as facial recognition 
checkpoints at areas including gas stations, shopping centers, and 
mosque entrances.
    BIS seeks input in particular on the high-resolution cameras 
currently classified as EAR99 on the CCL. Specifically the cameras' 
utility as inputs to crowd surveillance systems, and the implications 
of placing them under new controls is of interest to BIS: What specific 
technical criteria, such as resolution or framerate, would be 
appropriate for control; what criteria would differentiate these items 
as more compatible with police and intelligence end uses rather than 
with purely commercial end uses; and what impact would controls have 
upon U.S. industry competitiveness and leadership?
Other Biometric Controls
    BIS also seeks information on controls for additional emerging 
biometric systems. Two methodologies of biometrics are currently 
controlled on the CCL: Fingerprint and voice print. BIS seeks input on 
whether other biometric technologies merit control, and if so, what 
specific technical criteria would be appropriate to control, and what 
impact would controls have upon U.S. industry competitiveness and 
leadership.
    As an alternative to piecemeal review of biometric methods and 
products, BIS could extend controls to all biometric systems--iris, 
vein, earlobe, gait, heartbeat, etc.--and then limit controls to only 
those types of systems that identify a person without the individual's 
cooperation, conscious interaction or possibly even awareness (e.g., a 
closed circuit camera running facial recognition software or 
surreptitious audio monitoring of a public space). Controls would not 
apply to systems that control access to premises or devices by 
verifying that the person attempting to gain such access is authorized 
to do so. This approach would not control specific applications of the 
fingerprint, iris, and voice authentication commercial items. This type 
of control would capture potential technologies if they become mature. 
Because complete systems, software and technology are often the only 
essential items in facial recognition, EAR99 ``parts'' could remain 
excluded from controls, enhancing the ability to service exports 
otherwise authorized with no license required, under license 
exceptions, or by individual licenses. BIS seeks input on whether this 
approach would be better than targeting individual modalities, and if 
so, what specific technical criteria would be appropriate, and what 
impact controls would have upon U.S. industry and competitiveness.

2. Non-Lethal Visual Disruption Lasers (``Dazzlers'')

    A dazzler is a non-lethal weapon which uses a laser to illuminate 
and temporarily disable sensors or human vision with flash blindness. 
Initially developed for military use, non-military products are 
becoming available for use in law enforcement and security. Dazzlers 
that emit infrared or invisible light against various electronic 
sensors, and visible light against humans. They are about the size of a 
flashlight, and can be hand-held or mounted to a small-arm weapon. 
Dazzlers are used for target acquisition, illumination, disorientation 
of human targets, and defeat of hostile sensor systems. Similar to 
common lasers, they can be used to maliciously disrupt civil and 
military aircraft operations by blinding a pilot or sensor system, 
potentially inducing a crash.
    BIS could determine to control dazzlers under existing ECCN 0A504, 
which include controls on laser aiming devices or laser illuminators 
``specially designed'' for use on firearms, and serve similar purposes. 
Control under this ECCN would impose CC1 requirements while excluding 
Firearms Convention (FC1) requirements, which would allow their export 
to Canada license-free, in parallel with current aiming lasers for 
firearms.

3. Long-Range Acoustic Devices (LRAD)

    The Long-Range Acoustic Device (LRAD) is an acoustic hailing device 
used to send messages and warning tones over longer distances or at 
higher volume than normal loudspeakers. LRAD systems are used as a 
means of non-lethal, non-kinetic crowd control. They can be handheld, 
mounted on riot shields, or on vehicles. As an area denial device, the 
utility of such systems can be compared to tear gas, without the need 
for deploying forces to don protective equipment and minimizing 
collateral harm from shifting wind or canisters being thrown back.
    LRAD systems are used by law enforcement, government and defense 
agencies, as well as by maritime and commercial security companies to 
broadcast audible notifications and warnings. LRAD systems are also 
used to deter wildlife from airport runways, wind and solar farms, 
nuclear power facilities, gas and oil platforms, mining and 
agricultural operations, and industrial plants. Additionally, LRAD 
systems can be used to conduct area denial operations. BIS also seeks 
public comment on ECCNS currently controlled on the CCL including:

4. Police Helmets--0A979

    Police helmets are controlled under Export Control Classification 
Number (ECCN) 0A979, ``Police helmets and shields; and ``specially 
designed'' ``components,'' n.e.s.'' They are used for mounted duty 
(motorcycle, bicycle or horse) and occasionally for riot control 
purposes. However, most police agencies use helmets with ballistic 
protection controlled under ECCN 1A613.

5. Fingerprint Readers--3A981, and Their Components--3A981, 4A980, 
Software--3D980, 4D980, Technology--3E980, 4A980

    ECCN 3A981 controls, among other items, fingerprint analyzers, 
cameras and equipment, automated fingerprint and identification 
retrieval systems, and the ``specially designed'' ``components'' and 
``accessories'' for them. Related hardware, software, and technology is 
controlled under ECCNs 3D980 and 4D980. Application specific software 
that is used by the operator, however, is designated as EAR99, because 
it doesn't meet all six criteria for the definition of ``use'' in EAR 
part 772: Operation, installation (including on-site installation), 
maintenance (checking), repair, overhaul and refurbishing.
    Fingerprint-related items are used for device login authentication, 
area access controls, and identity verification for many private and 
public civil uses, as well as law enforcement uses. ``Live scan'' 
fingerprinting refers to both the technique and the technology used to 
capture fingerprints and palm prints electronically, without the need 
for the more traditional method of ink and paper. This is the 
predominant type of system currently in use, owing to the establishment 
of cross-platform standards promulgated by the National Institute of 
Science and Technology.

6. Fingerprint Powders, Dyes, and Inks--1A985

    Fingerprint powders are used by crime scene investigators and 
others in law enforcement to obtain fingerprints and identify 
individuals at a particular scene or establish contact with a 
particular item. They may be employed by police or other authorities to 
identify individuals who wish to conceal their identity or to identify 
people who are incapacitated or deceased and thus unable to identify 
themselves. Their end use is almost entirely related to police 
forensics.
    In contrast, fingerprint dyes and ink are employed in controlled 
but often

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voluntary situations, such as when a person hired for a sensitive 
position, is enrolled in a government benefit program (in some 
countries), or for identification documentation purposes. An 
alternative to fingerprint dyes and inks are the live scan fingerprint 
capture devices controlled under ECCN 3A981, which are generally more 
effective, and in extensive use worldwide.

7. Voice Print Identification Systems--3A980, and Their Components--
3A980, Software--3D980, and Technology--3E980

    Voice print identification systems are used to verify the identity 
of a speaker as part of a security process (1:1 matching) or for 
identification of an unknown speaker among a set of known speakers (1:n 
matching). Speaker verification is usually employed as a ``gatekeeper'' 
methodology prior to providing access to a secure system. Gatekeeper 
systems operate with the users' knowledge and typically require their 
cooperation. However, when voice print identification systems are used 
for identification, as compared to verification, systems can be 
implemented without the speaker's or speakers' knowledge to identify 
discussion participants, provided sufficient voice samples are in the 
searcher's database.
    Voice print identification is used by private companies, especially 
by financial institutions, for telephonically-based customer service 
activities to identify clients, in both the private and government 
sectors to verify identities for user access to resources, services, or 
facilities, and in criminal investigations to identify persons of 
interest.

8. Polygraphs and Psychological Stress Analysis Equipment--3A981, and 
Their Components--3A981, Software--3D980, and Technology--3E980

    A polygraph is a device that measures and records several 
physiological indicators such as blood pressure, pulse, respiration, 
and skin conductivity while a person is asked and answers a series of 
questions. The basis underpinning the use of the polygraph and other 
stress analysis equipment is that deceptive answers will produce 
physiological responses that can be differentiated from those 
associated with non-deceptive answers. Polygraphs are used in the 
United States to much greater extent than most other countries, 
predominantly in law enforcement but also in the private sector to 
screen prospective employees or during misconduct investigations.
    The current market for non-polygraph psychological stress analysis 
is almost entirely dominated by voice stress analysis (VSA) or computer 
voice stress analysis (CVSA). VSA is a technology that aims to infer 
deception from stress measured in the voice. CVSA records the human 
voice using a microphone and is based on the tenet that the non-verbal, 
low-frequency content of the voice conveys information about the 
physiological and psychological state of the speaker. Typically 
utilized in investigative settings, both VSA and CVSA aim to 
differentiate between stressed and non-stressed outputs in response to 
questions, with high stress seen as an indication of deception.

9. Nonmilitary Mobile Crime Science laboratories--9A980

    To meet the standards of the items controlled under ECCN 9A980, 
mobile crime lab vehicles must contain one or more analytical or 
laboratory items controlled for CC reasons on the CCL, such those 
controlled under as ECCNs 3A980 and 3A981. Mobile crime labs provide 
on-site, rapid, reliable analysis of unknown compounds and materials 
for forensic, homeland security and military applications. They enable 
crime-scene technicians to conduct extensive evidence collection and 
processing at crime-scene sites, such as homicide scenes, 
methamphetamine lab and arson sites, and investigations that involve 
mass casualties. Most mobile crime labs contain equipment for analyzing 
chemicals, special hoods for fume disposal, isolated boxes for 
hazardous material analysis, and supplies for crime-scene 
investigation.
    While the equipment in mobile crime labs is predominantly EAR99, as 
noted above, to qualify for control under ECCN 9A980, the lab must have 
one item controlled for CC reasons on the CCL. For example, a lab could 
contain the fingerprint readers and polygraphs controlled under ECCN 
3A981, the fingerprint powder, dyes, and ink controlled under 1A985, 
ancillary police equipment controlled for CC or FC reasons, and or 
instruments and chemicals controlled on the CCL for antiterrorism 
reasons, such as 2A994 portable electric generators. Additionally, some 
items stocked in a mobile crime lab could have higher controls, such as 
the personal protective equipment controlled under ECCN 1A613.

10. Miscellaneous CC Controls in ECCNs and Sub-Paragraphs of ECCNs 
4A003, 4A980, 4D001, 4D980, 4E001, 4E980, 6A002, 6E001, 6E002

    (a.) 4A003: ``Digital computers'', ``electronic assemblies'', and 
related equipment therefor, as follows (see List of Items Controlled) 
and ``specially designed'' ``components'' therefor. Within this entry, 
the items are controlled for CC are ``digital computers'' for 
computerized finger-print equipment.
    (b.) 4A980: Computers for fingerprint equipment, n.e.s. The entry 
for ECCN 4A980 does not control equipment limited to one finger and 
designed for user authentication or access control.
    (c.) 4D001: ``Software'' as follows (see List of Items Controlled). 
``Software'' for computerized finger-print equipment controlled under 
ECCN 4A003 for CC reasons is controlled under ECCN 4D001 for CC 
reasons.
    (d.) 4D980: ``Software'' ``specially designed'' for the 
``development,'' ``production'' or ``use'' of commodities controlled by 
4A980.
    (e.) 4E001: ``Technology'' as follows (see List of Items 
Controlled).
    Under this entry, ``software'' for computerized finger-print 
equipment controlled under ECCN 4A003 for CC reasons is controlled for 
CC reasons.
    (f.) 4E980: ``Technology'' for the ``development,'' ``production'' 
or ``use'' of commodities controlled by 4A980.
    (g.) 6A002: Optical sensors and equipment, and ``components'' 
therefor, as follows (see List of Items Controlled). The relevant 
control statement reads as follows: ``CC applies to police-model 
infrared viewers in 6A002.c.''
    (h.) 6E001: ``Technology'' according to the General Technology Note 
for the ``development'' of equipment, materials or ``software'' 
controlled by 6A (except 6A991, 6A992, 6A994, 6A995, 6A996, 6A997, 
6A998, or 6A999.c), 6B (except 6B995), 6C (except 6C992 or 6C994), or 
6D (except 6D991, 6D992, or 6D993).
    Within this entry, ``technology'' for equipment controlled under 
ECCN 6A002 for CC reasons (i.e., 6A002.c) is also controlled for CC 
reasons. Therefore, this entry subparagraph controls development 
technology for both 'direct view' imaging equipment with certain 
features and the related software.
    (i.) 6E002: ``Technology'' according to the General Technology Note 
for the ``production'' of equipment or materials controlled by 6A 
(except 6A991, 6A992, 6A994, 6A995, 6A996, 6A997, 6A998 or 6A999.c), 6B 
(except 6B995) or 6C (except 6C992 or 6C994).
    CC applies to ``technology'' for equipment controlled by 6A002 for 
CC reasons (i.e., 6A002.c). Therefore, this controls production 
technology for `direct view' imaging equipment with certain features 
and development technology for `Direct view' imaging equipment with 
certain features and the related software.

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Submission of Comments

    All comments must be submitted to one of the addresses indicated in 
this notice. The Department requires that all comments be submitted in 
written form. BIS will consider all comments received on or before 
September 15, 2020. All comments, including those comments containing 
any personally identifying information or information for which a claim 
of confidentiality is asserted in the comments or their transmittal 
emails, will be made available for public inspection and copying. 
Parties who wish to comment anonymously may do so by submitting their 
comments via Regulations.gov, leaving the fields that would identify 
the commenter blank and including no identifying information in the 
comment itself.

Richard E. Ashooh,
Assistant Secretary for Export Administration.

[FR Doc. 2020-15416 Filed 7-16-20; 8:45 am]
BILLING CODE 3510-33-P