Export Control Reform Comes to USML Category XII
Posted by Clif Burns at 11:25 pm on May 5, 2015
Category: BIS • DDTC • Night Vision
Well, who would have thought? Contrary to broad expectations that export control reform would never in a million years come to Category XII, which contains tactical gamestoppers such as night vision and laser designators and markers, export control reform came today to Category XII in the form of proposed rules. The BIS proposed rules are here; the DDTC proposed rules are here.
While it may be surprising that Category XII is being reformed, it is not so surprising that the new “positive” list of items controlled in the new proposed Category XII has expanded considerably, growing from less than a page in the Code of Federal Regulations to five densely packed pages in the Federal Register. And what is and isn’t on this extensive new list will be the subject, I assume, of extensive industry comments due, by the way, on July 6, 2015.
Because of the much-publicized interagency squabbling between BIS and DDTC over which agency license which night vision system, a quick look at the new provisions relating to night vision is instructive. Obviously, the new rules do not simply cover infrared focal plan array detectors (“IRFPAs”) and image intensification tubes (“IITs”) designed for military use but instead cover IITs and IRFPAs with specified peak response levels. IITs meeting the peak response rate for IITs must have either second or third generation photocathodes. Interestingly, the definition of second and third generation photocathodes is completely different in the proposed rules from the definition given in the current USML, reinforcing the general conception that nobody really knows what the difference is between second and third generation night vision beyond the obvious: third is better than second.
A note to be included to subparagraph (c), which covers night vision, in Category XII appears to maintain, more or less, the current principle, at least for certain components, that when they are incorporated into commercial systems, the commercial system is not subject to ITAR controls, but the parts in question will be subject to ITAR controls if exported separately from the commercial system. However, a new qualification to this principle, that is not currently expressed in Category XII, is added: for this rule to apply, the component must not be removable from the system “without destruction or damage to the [component] or render [sic] the item inoperable.” What the practical impact of this new qualification will be is hard to predict, but my guess is that it may gut the exception and expand control over commercial system given that I can’t imagine many situations where the item can’t be removed without destroying it. But I’ll defer to any engineers who may know better whether this is the case or not.
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ITT Debarment Lifted Two Months Early
Posted by Clif Burns at 9:53 pm on February 24, 2010
Category: DDTC • Night Vision
On Monday the Directorate of Defense Trade Controls (“DDTC) published a notice in the Federal Register that the three-year statutory debarment of ITT Night Vision, scheduled to end on March 26, 2010, was ended effective February 4, 2010. DDTC noted, in justifying the early termination, noted that
ITT Corporation has taken appropriate steps to address the causes of the violations and to mitigate any law enforcement concerns.
While the denial order was in effect, ITT Night Vision products could be exported by ITT and by resellers but only pursuant to a specific transaction exception from DDTC. Such transaction exceptions were granted only with respect to exports for end-use by the U.S. government or for end use by certain allies. As a result of DDTC’s actions, license applications to export ITT night vision products will no longer need to contain information supporting a transaction exception.
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BIS Tries to Shed Light on Night Vision
Posted by Clif Burns at 12:55 pm on October 16, 2006
Category: BIS • Night Vision
BIS released today a document entitled “Defense Industrial Base Assessment: U.S. Imaging and Sensor’s Industry.” This report, requested by the Army in May 2005, comes almost a year late from the delivery date of December 2005 originally requested by the Army. Notwithstanding the lengthy delay in issuing the report, it contains few surprises.
The report is based on a survey sent out by BIS to 106 participants in the imaging and sensor industry. That survey data was augmented with site visits, attendance at industry conferences, interviews with industry participants and consultation of other studies of this industry.
According to the report, global demand for imaging and sensing products has been increasing, including demand for uncooled thermal imaging devices. Uncooled devices are smaller, less expensive and less susceptible to damage but offer lower resolution than their cooled counterparts. The uncooled devices are more often used in civilian applications.
Notwithstanding the increase in demand for uncooled devices, U.S. industry’s share of these exports has been declining. The report notes that industry participants attribute this decline to less robust export controls imposed on uncooled thermal imaging devices by other countries. The report further noted that 13 of the survey respondents had export licenses denied for imaging equipments and that other respondents indicated that certain contracts were not bid on given the likely denial of an export license.
As a result, the report concludes that U.S. export controls on uncooled thermal imaging devices should be modified. No specific recommendation is made for how they should be modified. However, the Report, in describing changes proposed by survey respondents, stated:
A consensus among U.S. companies producing or considering the production of uncooled products offshore is that changing the controls of uncooled cameras from Regional Stability 1 (RS1) to Regional Stability 2 (RS2) would likely result in bringing back current production or foregoing future offshore production plans.
Changing the controls on uncooled thermal imaging devices from RS1 to RS2 would permit unlicensed exports to a number of countries including countries in the European Union, most Eastern European countries, Turkey, Japan, New Zealand and Australia. Even if BIS does loosen controls in such a fashion, second and third generation uncooled thermal imaging devices will still need a DDTC license if they are not part of a commercial system.
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British Thermal Imaging Device Found in Hezbollah Bunker
Posted by Clif Burns at 8:04 pm on August 24, 2006
Category: Night Vision
Recent news reports indicate that British-made thermal imaging device, the Thermovision 1000, was found by Israeli troops in Hezbollah bunkers in southern Lebanon. It is believed that these units were sold by Britain to Iran through a U.N. sponsored drug control program and were intended to assist the Iranian police in their efforts to interdict drug smuggling across the Iran-Afghanistan border.
The export to Iran would have required an end-use certificate from Iran which, it appears, the Iranians disregarded. A spokesman for the British Foreign Officer stated:
We view the diversion of materials which have been authorised for export very seriously
There is, perhaps, a bit of unintended irony in the spokesman’s statements. The British Government, when signing end-use certificates (Form DSP-83) for exports of defense articles from the United States to the United Kingdom, has accompanied those certificates with a reservation that the British government reserved the right to re-export those defense articles without authorization from the U.S. if the British Government deemed it in its interest to do so. This undercuts more than a little the Foreign Office’s protestations that Iran appears to have ignored the end-use certificates that it signed.
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