Federal Register: May 22, 2009 (Volume 74, Number 98)
DOCID: fr22my09-3 FR Doc E9-11951
DEPARTMENT OF COMMERCE
Industry and Security Bureau
CFR Citation: 15 CFR Parts 730, 734, 738, 740, 742, 743, 744, 746, 772 and 774
Docket ID: [Docket No. 0612242573-7104-01]
RIN ID: RIN 0694-AD71
NOTICE: RULES
DOCID: fr22my09-3
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Revisions to License Requirements and License Exception Eligibility for Certain Thermal Imaging Cameras and Foreign Made Military Commodities Incorporating Such Cameras
DATES: Effective Date: This rule is effective May 22, 2009. [[Page 23942]]
Compliance Date: All reexports made ineligible for License Exception APR by this rule and exports or reexports for which this rule imposes a new license requirement must be in compliance with this rule no later than June 22, 2009.
DOCUMENT SUMMARY:
This rule imposes a license requirement for certain exports
and reexports of military commodities manufactured outside the United
States that are not subject to the International Traffic in Arms
Regulations, 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. This rule also
removes Commerce Control List (CCL) based export and reexport license
requirements with respect to 36 destinations for certain thermal
imaging cameras when they are not incorporated into military
commodities and if they are not being exported or reexported to be
embedded in a civil product. It imposes a semiannual reporting
requirement on the transactions from which it removes the CCL based
license requirements. This rule limits use of License Exception APR for reexports of certain cameras controlled by Export Control
Classification Number 6A003.b.4.b and certain foreign made military
commodities incorporating such cameras. This rule imposes a license
requirement for software used to increase the frame rate of certain
cameras. BIS is making these changes in recognition of the emerging
availability of these cameras around the world, the export licensing
practices of other governments and the potential use of these cameras
in military applications.
SUMMARY:
Revisions to License Requirements and License Exception Eligibility for Certain Thermal Imaging Cameras etc.
SUPPLEMENTAL INFORMATION
Background
The Export Administration Regulations (EAR) impose license requirements on, among other things, imaging cameras incorporating non spacequalified, nonlinear (2dimensional) infrared focal plane arrays, based on microbolometer material having individual elements with an unfiltered response in the wavelength range equal to or exceeding 8,000 nm but not exceeding 14,000 nm. Prior to publication of this rule, these cameras were listed on the Commerce Control List (CCL) with national security (NS column 2), regional stability (RS column 1), antiterrorism (AT column 1) and United Nations embargo (UN) reasons for control. The RS column 1 reason for control is the most restrictive of these controls, imposing a license requirement on exports and reexports to all destinations other than Canada. Prior to publication of this rule, all of these cameras were also eligible under License Exception APR for reexport from Country Group A:1 and cooperating countries to Country Group D:1, and for reexport to Country Group A:1 and cooperating countries as identified in Supplement No. 1 to part 740 of the EAR.
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 CCL based license requirements on certain cameras is warranted.
These cameras have the potential for military application,
including incorporation into military commodities in ways that
significantly enhance the capabilities of the military commodity.
Therefore, in this rule, BIS is asserting licensing jurisdiction over
military commodities manufactured outside the United States that
incorporate certain cameras that are listed on the CCL. This rule
adopts a definition of military commodity that is based on the
Munitions List that is published by the Wassenaar Arrangement on Export
Controls for Conventional Arms and DualUse Goods and Technologies
(WAML) and the United States Munitions List (22 CFR Part 121). However,
to prevent redundant coverage, this military commodity provision does
not apply to items that are controlled by Export Control Classification
Numbers (ECCNs) that end in the numerals ``018'' because such ECCNs
apply to items on the WAML and are already subject to the EAR. This
rule also revises controls based on camera performance level as
measured by the number of elements in the camera's focal plane array,
its frame rate and whether the camera is being exported or reexported
to be embedded in a civil product. A camera that incorporates a focal
plane array with more elements generally can record more detail about
an image than can an otherwise identical camera that incorporates an
array with fewer elements. A camera with a higher frame rate generally
can capture more detail about the path of a moving object and depict
the motion of objects more smoothly than can an otherwise identical
camera with a lower frame rate. Cameras that will be embedded in a
civil product pose concerns that are difficult to resolve without
knowing the type of civil product into which the camera will be embedded.
Changes Being Made by This Rule
Application of EAR to Military Commodities Not Otherwise Subject to the
EAR or to the ITAR That Incorporate Certain Infrared Cameras
This rule makes the de minimis provisions of the EAR inapplicable to military commodities made outside the United States that are not subject to the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120130) and that incorporate cameras that are described in ECCN 6A003.b.4.b.
The rule also imposes a regional stability (RS column 1) license requirement on such military commodities for reexport, thereby requiring a license to any destination other than Canada. However, this license requirement does not apply if the export or reexport is part of a military deployment by any unit of the government of Australia, Austria, Belgium, Bulgaria, Canada, 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, the United Kingdom or the United States. 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.
The rule accomplishes these changes by revising Sec. 734.4 to make foreign made military commodities containing ECCN 6A003.b.4.b cameras ineligible for de minimis treatment, by revising Sec. 742.6(a)(2) to apply the RS column 1 license requirement and United States Munitions List licensing policy to military commodities controlled by ECCN 0A919, by revising Sec. 772.1 adding a definition of ``military commodity,'' and by revising Supplement No. 1 to part 774 to create a new ECCN 0A919 to apply to military commodities made outside the United States that are not subject to the ITAR. This rule also imposes antiterrorism (AT Column 1) and United Nations (arms embargo, Rwanda) license requirements and licensing policy to military commodities controlled by ECCN 0A919.
This rule also revises the treatment of thermal imaging cameras that incorporate focal plane arrays as described below.
Retention of 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
Thermal imaging cameras described in ECCN 6A003.b.4.b that have a
frame rate greater than 60 Hz or that incorporate a focal plane array
with more than 111,000 elements or that are being exported or
reexported to be embedded in a civil product continue to be subject to
NS column 2, RS column 1, AT column 1 and UN reasons for control. These
cameras generally will continue to require a license based on CCL
license requirements for all destinations other than Canada. This rule
retains this license requirement through revised language to the RS
column 1 license requirement paragraph in ECCN 6A003, applying that
requirement to cameras in ECCN 6A003.b.4.b that have a frame rate
greater than 60 Hz or a focal plane array with more than 111,000
elements or that are being exported or reexported to be embedded in a
civil product. However, pursuant to this rule, BIS may issue licenses
that remove the RS column 1 license requirement for cameras that are fullypackaged for use as consumer
[[Page 23943]]
ready civil products for exports or reexports to 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.
Removal of Commerce Control List Based License Requirements for 36
Countries and Revision of License Application Review Policy for Certain
Other Countries for Cameras With Lower Frame Rates and Number of
Elements in the Cameras' Focal Plane Arrays That Are Not Being Exported or Reexported To Be Embedded in a Civil Product
This rule removes all CCL based license requirements 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 when being exported or reexported to 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. Exports and reexports of the cameras to Canada will continue to have no Commerce Control List based license requirements.
In addition, pursuant to this rule, BIS may issue licenses that remove the RS column 1 license requirement for exports and reexports to authorized companies as named in the license for the purpose of embedding such camera into a completed product that will be distributed only in 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.
This rule also revises license application review policy 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 when such cameras are being exported or reexported to most destinations for which a license is required for regional stability reasons. Applications to export or reexport cameras incorporating a focal plane array with not more than 111,000 elements and a frame rate of 60 Hz or less and that are not being exported or reexported to be embedded in a civil product will be evaluated under the regional stability policy (RS column 2) set forth in Sec. 742.6(b)(2) of the EAR, i.e., ``will generally be considered favorably on a casebycase 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.''
Imposition of Reporting Requirement
This rule imposes a new reporting requirement 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 email 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; and the quantity of each model number of camera exported without a license to 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 will use the information in these reports to verify that the cameras subject to this regulation are continuing to be sold to appropriate endusers and that the changes in controls are not jeopardizing U.S. national security or foreign policy interests. The rule imposes this reporting requirement by adding a new Sec. 743.3Thermal Imaging Camera Reporting. Limitation on Use of License Exception APR for Cameras in ECCN 6A003.b.4.b
This rule 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
United States. BIS is making this change to enable BIS to inform, via
license conditions, the recipients of the reexports of the need to obtain a license for further reexports.
Revised Treatment of Cambodia and Laos With Respect to Paragraph (a) of License Exception APR
This rule revises the treatment of Cambodia and Laos as eligible destinations under License Exception APR. Although both countries are in Country Group D:1 and not in Country Group B, prior to publication of this rule, for purposes of License Exception APR, paragraph (a) they were treated as if the were in Country Group B (the items eligible for reexport under paragraph (a) of License Exception APR vary based on the country group in which the destination is located). Upon publication of this rule, they will be treated in the a same manner as other members of Country Group D:1 BIS is making this change because current national security interests of the United States do not support such disparate treatment of countries in Country Group D:1.
New EndUser and EndUse License Requirements
In recognition of the fact that these cameras could be used in military activities, this 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 enduser or will be incorporated into a military commodity described in ECCN 0A919 as created by this rule. The rule defines military enduser as national armed services (army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support ``military enduses'' as defined in Sec. 744.17(d).
This rule also imposes a license requirement if BIS informs an
exporter or reexporter, either individually by specific notice or
through amendment to the EAR, that a license is required for export or
reexport of items described in ECCN 6A003.b.4.b to specified endusers,
because BIS has determined that there is an unacceptable risk of
diversion to military endusers. Amendments to the EAR informing
parties of such risk are in the form of amendments to the Entity List [[Page 23944]]
(Supplement No. 4 to part 744 of the EAR).
Addition of Certain Cameras to the List of Items That Require a License
for Export, Reexport or Transfer to Certain Military End Uses in China
Supplement No. 2 to part 744 of the EAR lists items for which Sec.
744.21 of the EAR requires a license for the export, reexport or
transfer to certain military enduses in the People's Republic of
China. This rules adds cameras controlled by ECCN 6A993 to Supplement
No. 2 to part 744. BIS is taking this action consistent with United
States Government policy of not supporting China's military modernization efforts.
Imposition of License Requirement for Software To Raise the Frame Rate of Cameras Above 9 Hz
This rule 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. This new ECCN will allow BIS 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.
Rulemaking Requirements
1. This rule is not a significant rule for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to nor be subject to a penalty for failure to
comply with a collection of information, subject to the requirements of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number. This regulation contains
a collection previously approved by the OMB under control numbers 0694
0088, (MultiPurpose Application,'' which carries a burden hour estimate of 58 minutes to prepare and submit form BIS748.
Miscellaneous and recordkeeping activities account for 12 minutes per
submission. BIS estimates that this rule will reduce the total burden hours associated with this collection by 1,750 annually.
The reporting requirement for exports of cameras described in ECCN 6A3.b.4.b, imposed by this rule is a new collection of information. This new collection has been approved by OMB under control number 0694 0133. The estimated burden associated with this new collection is 60 hours annually.
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking, the opportunity for
public participation, and a delay in effective date, are inapplicable
because this regulation involves a military or foreign affairs function
of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law
requires that a notice of proposed rulemaking and an opportunity for
public comment be given for this rule. Because a notice of proposed
rulemaking and an opportunity for public comment are not required to be
given for this rule by 5 U.S.C. 553, or by any other law, the
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable.
List of Subjects
15 CFR Part 730
Administrative practice and procedure, Advisory committees, Exports, Reporting and recordkeeping requirements, Strategic and critical materials.
15 CFR Part 734
Administrative practice and procedure, Exports, Inventions and patents, Research, Science and technology.
15 CFR Part 740
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
15 CFR Parts 738 and 772
Exports.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 743
Administrative practice and procedure, Reporting and recordkeeping requirements.
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism. 15 CFR Parts 746 and 774
Exports, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Export Administration Regulations (15 CFR parts 730774) are amended as follows:
PART 730[AMENDED]
1. The authority citation for part 730 continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 2151
note; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s),
185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C.
app. 466c; 50 U.S.C. app. 5; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210;
E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 42
FR 35623, 3 CFR, 1977 Comp., p. 133; E.O. 12058, 43 FR 20947, 3 CFR,
1978 Comp., p. 179; E.O. 12214, 45 FR 29783, 3 CFR, 1980 Comp., p.
256; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12854,
58 FR 36587, 3 CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 28205, 3
CFR, 1994 Comp., p. 899; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp.,
p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O.
12981, 60 FR 62981, 3 CFR, 1995 Comp., p. 419; E.O. 13020, 61 FR
54079, 3 CFR, 1996 Comp. p. 219; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp.,
p.208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O.
13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR
26751, May 13, 2004; Notice of July 23, 2008, 73 FR 43603 (July 25,
2008); Notice of November 10, 2008, 73 FR 67097 (November 12, 2008).
2. Supplement No. 1 to part 730 is amended by adding to the table
immediately following the entry for collection number 06940132 and
immediately preceding the entry for 09640134, the following new entry.
Supplement No. 1 to Part 730Information Collection Requirements Under the Paperwork Reduction Act: OMB Control Numbers
* * * * *
[[Page 23945]]
Reference in
Collection No. Title the EAR * * * * * * *
06940133...................... Thermal Imaging Camera Sec. 743.3 Reporting.
* * * * * * *
PART 734[AMENDED]
3. The authority citation for part 734 continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61
FR 54079, 3 CFR, 1996 Comp. p. 219; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of July 23, 2008, 73 FR 43603 (July 25, 2008); Notice of November 10, 2008, 73 FR 67097 (November 12, 2008).
4. Section 734.4 is amended by redesignating paragraph (a)(5) as
paragraph (a)(6) and adding a new paragraph (a)(5) to read as follows: Sec. 734.4 De Minimis U.S. content.
(a) * * *
(5) There is no de minimis level for foreign made military
commodities that incorporate cameras classified under ECCN 6A003.b.4.b
if such cameras would be subject to the EAR as separate items and if
the foreign made military commodity is not subject to the International Traffic in Arms Regulations (22 U.S.C. Parts 120130).
* * * * *
PART 738[AMENDED]
5. The authority citation for part 738 continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42
U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5;
22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3
CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp.,
p. 783; Notice of July 23, 2008, 73 FR 43603 (July 25, 2008).
6. In Supplement No. 1 to part 738, The Commerce Country Chart, add:
a. References to footnote number 2 in the rows for Cyprus, Malta and South Africa,
b. References to footnote number 3 in the rows for Australia, Austria,
Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan,
Korea, South, Latvia, Lithuania, Luxembourg, Malta, Netherlands, New
Zealand, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, South
Africa, Spain, Sweden, Switzerland, Turkey, and United Kingdom.
c. References to footnote number 4 in rows for the countries Austria,
Cyprus, Finland, Ireland, Korea, South, Malta, South Africa, Sweden, and Switzerland; and
d. New footnotes 2 through 4 to the table to read as follows: Supplement No. 1 to Part 738Commerce Country Chart
* * * * *
\2\ See Sec. 742.4(a) for special provisions that apply to
exports and reexports to these countries of certain thermal imaging cameras.
\3\ See Sec. 742.6(a)(3) for special provisions that apply to military commodities that are subject to ECCN 0A919.
\4\ See Sec. 742.6(a)(2) and (4)(ii) regarding special
provisions for exports and reexports of certain thermal imaging cameras to these countries.
PART 740[AMENDED]
7. The authority citation for part 740 continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
Sec. 901911, Public Law 106387; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of July 23, 2008, 73 FR 43603 (July 25, 2008).
8. Section 740.2 is amended by adding paragraph (a)(11) to read as follows:
Sec. 740.2 Restrictions on all License Exceptions.
(a) * * *
(11) The item is a ``military commodity'' subject to ECCN 0A919,
except that such military commodities may be reexported in accordance
with Sec. 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. Government).
* * * * *
9. Section 740.16 is amended by revising paragraph (a)(2), paragraph
(a)(3)(i), paragraph (a)(3)(ii) and paragraph (b) to read as follows: Sec. 740.16 Additional permissive reexports (APR).
* * * * *
(a) * * *
(2) The commodities being reexported are not controlled for NP, CB,
MT, SI or CC reasons and are not military commodities described in ECCN 0A919 or cameras described in ECCN 6A003.b.4.b; and
(3) * * *
(i) A country in Country Group B that is not also included in
Country Group D:2, D:3, or D:4; and the commodity being reexported is
both controlled for national security reasons and not controlled for export to Country Group A:1; or
(ii) A country in Country Group D:1 (National Security) (see
Supplement No. 1 to part 740), other than North Korea and the commodity
being reexported is controlled for national security reasons.
(b) Reexports to and among specified countries. (1) Commodities
that are not controlled for nuclear nonproliferation or missile
technology reasons and that are not listed in paragraph (b)(2) or
(b)(3) of this section may be reexported to and among Country Group A:1
and cooperating countries, provided that eligible commodities are for
use or consumption within a Country Group A:1 (see Supplement No. 1 to
part 740) or cooperating country, or for reexport from such country in accordance with other provisions of the EAR.* * *
(2) Except as provided in paragraph (b)(3) of this section, cameras
described in ECCN 6A003.b.4.b and ``military commodities'' described in ECCN 0A919 may not be exported under this paragraph (b).
(3) Cameras described in ECCN 6A003.b.4.b may be exported or
reexported to and among: Australia, Austria, Belgium, Bulgaria, Canada,
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 if:
(i) Such cameras are fully packaged for use as consumer ready civil
products; or, (ii) Such cameras with not more than 111,000 elements are to be embedded in civil products.
* * * * *
[[Page 23946]]
PART 742[AMENDED]
10. The authority citation for 15 CFR part 742 continues to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22
U.S.C. 7210; Sec 1503, Public Law 10811, 117 Stat. 559; E.O. 12058,
43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3
CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp.,
p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential
Determination 200323 of May 7, 2003, 68 FR 26459, May 16, 2003;
Notice of July 23, 2008, 73 FR 43603 (July 25, 2008); Notice of November 10, 2008, 73 FR 67097 (November 12, 2008).
11. Section 742.4 is amended by revising the third sentence of
paragraph (a) and by adding a new sentence immediately following that third sentence to read as follows:
Sec. 742.4 National security.
(a) * * * A license is required to all destinations except Country
Group A:1 and cooperating countries (see Supplement No. 1 to part 740),
Bulgaria, Czech Republic, Estonia, Hungary, Iceland, Latvia, Lithuania,
Poland, Romania, Slovakia, and Slovenia for all items in ECCNs on the
CCL that include NS column 2 in the Commerce Country Chart column of
the ``License Requirements'' section except those cameras in ECCN
6A003.b.4.b that have a focal plane array with 111,000 or fewer
elements and a frame rate of 60 Hz or less. A license is required to
all destinations except Australia, Austria, Belgium, Bulgaria, Canada,
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 for those
cameras in ECCN 6A003.b.4.b that have a focal plane array with 111,000
or fewer elements and a frame rate of 60 Hz or less and for cameras
being exported or reexported pursuant to an authorization described in Sec. 742.6(a)(2)(iii) or (v) of the EAR.* * *
* * * * *
12. Section Sec. 742.6 is amended by revising paragraph (a) and paragraph (b)(1) and paragraph (b)(2) to read as follows:
Sec. 742.6 Regional stability.
(a) License requirements. The following controls are maintained in
support of U.S. foreign policy to maintain regional stability:
(1) RS Column 1 License Requirements in General. As indicated in
the CCL and in RS column 1 of the Commerce Country Chart (see
Supplement No. 1 to part 738 of the EAR), a license is required to all
destinations, except Canada, for items described on the CCL under ECCNs
6A002.a.1, a.2, a.3, .c, or .e; 6A003.b.3, and b.4.a; 6A008.j.1;
6A998.b; 6D001 (only ``software'' for the ``development'' or
``production'' of items in 6A002.a.1, a.2, a.3, .c; 6A003.b.3 and .b.4;
or 6A008.j.1); 6D002 (only ``software'' for the ``use'' of items in
6A002.a.1, a.2, a.3, .c; 6A003.b.3 and .b.4; or 6A008.j.1); 6D991 (only
``software'' for the ``development,'' ``production,'' or ``use'' of
equipment controlled by 6A002.e or 6A998.b); 6E001 (only technology''
for ``development'' of items in 6A002.a.1, a.2, a.3 (except
6A002.a.3.d.2.a and 6A002.a.3.e for lead selenide focal plane arrays),
and .c or .e, 6A003.b.3 and b.4, or 6A008.j.1); 6E002 (only
``technology'' for ``production'' of items in 6A002.a.1, a.2, a.3, .c,
or .e, 6A003.b.3 or b.4, or 6A008.j.1); 6E991 (only ``technology'' for
the ``development,'' ``production,'' or ``use'' of equipment controlled
by 6A998.b); 6D994; 7A994 (only QRS1100100100/101 and QRS110050443/
569 Micromachined Angular Rate Sensors); 7D001 (only ``software'' for
``development'' or ``production'' of items in 7A001, 7A002, or 7A003);
7E001 (only ``technology'' for the ``development'' of inertial
navigation systems, inertial equipment, and specially designed
components therefor for civil aircraft); 7E002 (only ``technology'' for
the ``production'' of inertial navigation systems, inertial equipment,
and specially designed components therefor for civil aircraft); 7E101
(only ``technology'' for the ``use'' of inertial navigation systems,
inertial equipment, and specially designed components for civil aircraft).
(2) Special RS Column 1 license requirements applicable to certain thermal imaging cameras.
(i) As indicated in the CCL and in RS Column 1 of the Commerce
Country Chart, cameras described in 6A003 b.4.b require a license to
all destinations other than Canada if such cameras have a frame rate greater than 60 Hz.
(ii) Except as noted in paragraph (a)(2)(iii) of this section, as
indicated in the CCL and in RS Column 1 of the Commerce Country Chart,
cameras described in 6A003 b.4.b require a license to all destinations
other than Canada if such cameras incorporate a focal plane array with
more than 111,000 elements and a frame rate of 60 Hz or less, or
cameras described in 6A003 b.4.b that are being exported or reexported to be embedded in a civil product.
(iii) BIS may issue licenses for cameras subject to the license
requirement of paragraph (a)(2)(ii) of this section that are fully
packaged for use as consumerready civil products that, in addition to
the specific transactions authorized by such license, authorize exports
and reexports of such cameras without a license to any civil enduser
to whom such exports or reexport are not otherwise prohibited by U.S.
law in 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. The license requirements of this
paragraph (a)(2) shall not apply to exports or reexports so authorized.
In this paragraph, the term ``civil enduser'' means any entity that is
not a national armed service (army, navy, marine, air force, or coast
guard), national guard, national police, government intelligence
organization or government reconnaissance organization, or any person
or entity whose actions or functions are intended to support ``military enduses'' as defined in 744.17(d).
(iv) Except as noted in paragraph (a)(2)(v) of this section, as
indicated in the CCL and in RS Column 1 of the Commerce Country Chart,
cameras described in 6A003 b.4.b require a license to all destinations
other than Canada if such cameras incorporate a focal plane array with
111,000 elements or less and a frame rate of 60 Hz or less and are
being exported or reexported to be embedded in a civil product.
(v) BIS may also issue licenses for the cameras described in
paragraph (a)(2)(iv) that, in addition to the specific transactions
authorized by such license, authorize exports and reexports to
authorized companies described in the license for the purpose of
embedding such cameras into a completed product that will be
distributed only in 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. The
[[Page 23947]]
license requirements of this paragraph (a)(2) shall not apply to
exports or reexports so authorized. In this paragraph, the term
``authorized companies'' means companies that have been previously
licensed for export, are not the subject of relevant negative
intelligence or open source information, have not been the subject of a
Department of Commerce or Department of State enforcement action within
the past two years, have demonstrable production capacity, and do not pose an unacceptable risk of diversion.
(3) Special RS Column 1 license requirement applicable to military
commodities. A license is required for reexports to all destinations
except Canada for items classified under ECCN 0A919 except when such
items are being reexported as part of a military deployment by a unit
of the government of Australia, Austria, Belgium, Bulgaria, Canada,
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, the United Kingdom or the United States.
(4) RS Column 2 license requirements.
(i) License Requirements Applicable to Most RS Column 2 Items. As
indicated in the CCL and in RS Column 2 of the Commerce Country Chart
(see Supplement No. 1 to part 738 of the EAR), a license is required to
any destination except Australia, Japan, New Zealand, and countries in
the North Atlantic Treaty Organization (NATO) for items described on
the CCL under ECCNs 0A918, 0E918, 2A983, 2D983, 2E983, 8A918, and for
military vehicles and certain commodities (specially designed) used to
manufacture military equipment, described on the CCL in ECCNs 0A018.c,
1B018.a, 2B018, 9A018.a and .b, 9D018 (only software for the ``use'' of
commodities in ECCN 9A018.a and .b), and 9E018 (only technology for the
``development'', ``production'', or ``use'' of commodities in 9A018.a and .b).
(ii) Special RS Column 2 license requirements applicable only to
certain cameras. As indicated by the CCL, and RS column 2 and footnote
number 4 to the Commerce Country Chart, a license is required to any
destination except Australia, Austria, Belgium, Bulgaria, Canada,
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 for fully
packaged thermal imaging cameras for use as consumerready civil
products controlled by 6A003.b.4.b when incorporating ``focal plane
arrays'' that have not more than 111,000 elements and a frame rate of
60 Hz or less and that are not being exported or reexported to be embedded in a civil product.
(5) RS requirements that apply to Iraq. As indicated on the CCL, a
license is required for the export or reexport to Iraq or transfer
within Iraq of the following items controlled for RS reasons on the
FOR FURTHER INFORMATION CONTACT
John Varesi, Sensors and Aviation Division, Office of National Security and Technology Transfer Controls (202) 4821114 or jvaresi@bis.doc.gov.