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Final Export Control rules released today by U.S. government are a ‘positive step forward,’ says SPIE CEO

Category XII ITAR regulation and corresponding Commerce regulation govern much of the optic and photonic technologies covered in the U.S. export control system

11 October 2016

'These final rules are a
positive step forward for the
U.S. export control system.'

BELLINGHAM, Washington, and WASHINGTON, D.C., USA -- Final export control regulations covering a wide range of key photonics areas that were released today for public inspection in the federal register, and will be officially published tomorrow, are an improvement, said leaders of SPIE, the international society for optics and photonics. The rewrite of the Category XII rules is part of the overarching Export Control Reform (ECR) initiative undertaken by the Administration.

"These final rules are a positive step forward for the U.S export control system," said SPIE CEO Eugene Arthurs. "The changes will help enhance international commerce in optics and photonics, and will assist research universities trying to provide educational opportunities for both U.S.- and foreign-born students."

The industry has been described as fragmented because of its many small- and medium-sized enterprises with unique expertise serving niches that are extraordinarily deep technically, Arthurs noted. "The overhead burden for export control compliance is a challenge to these businesses, and to university research laboratories where covered products are used or developed. Well-written regulations, that are limited to our highest priorities for control, are key to reducing that burden."

While more work will always be needed as the industry constantly changes and grows, Arthurs said, "SPIE is very pleased with the direction taken in these final rules for Category XII of the US Munitions List (USML) and Category VI of the Commerce Control List (CCL). We will continue to be involved as a society to build on this success on behalf of the companies and universities we represent."

In May 2015, the administration released the first proposed changes to Category XII. SPIE, along with many others in the optics and photonics industry, had great concerns with the direction of this proposal, as well as the potential of long-term negative impact on the industry as a whole.

In the largest response to proposed new rules in any one category in the ECR process, 120 companies, associations, and universities submitted statements to the Department of State detailing why that proposal was a step back in efforts to reform the system in a positive way.

A subsequent interim proposed rule was seen by many, including SPIE, as a vast improvement from the May proposal.

"The interim rule utilized the 'specially designed' criterion in many areas, which was a request from industry and SPIE. The 'specially designed' criterion, which is a formal review process finalized in 2012, helps ensure that dual-use technologies are not considered munitions items," explained Jennifer Douris, Government Affairs Director for SPIE.

The final rule for Category XII released publicly today retains this approach of utilizing the "specially designed" criteria to describe many technologies where performance parameters could not be found or agreed upon that are unique to military items.

Along with the release of the final rules, the administration has also announced intentions to release a Notice of Inquiry (NOI) via the federal register in the coming months. The purpose of this NOI is to seek public opinion whether some performance parameters should be inserted back into Category XII where "specially designed" is used in the final rule.

"It is disappointing that some within the agencies are once again requiring the public to respond to a federal register comment period in order to make clear that performance parameters do not work for some of the technologies listed in Category XII. This approach of performance parameters was soundly rebuked by industry during the comment period to the first proposed rule in favor of a 'specially designed' approach for certain technologies," said Jim McNally, chair of the SPIE committee on Engineering, Science, and Technology Policy and Vice President for Strategic Development at Applied Technology Associates.

"Even if the proposed parameters do not directly capture dual-use technologies currently in production, unless parameters are clearly unique to the military, growth in that technology area is artificially capped for U.S. industry," McNally said. "In order to prevent this NOI from turning into a more formal proposed rule next year, once again SPIE will be asking companies and universities to respond to the federal register notice when it is released in order to ensure that the Category XII final rule released today stands as written in the coming year."

The ECR initiative was launched in 2009 with the expressed purpose of building higher walls around fewer items. The reasoning behind this was to allow for better protection of what the military would consider to be its "crown jewels" while recognizing the economic realities that are important to industry. This approach is meant to strengthen national security, while improving the competitiveness of U.S. businesses.

The complete announcement regarding the final rules can be found in the Federal Register:

Category XII USML: https://www.federalregister.gov/documents/2016/10/12/2016-24225/international-traffic-in-arms-us-munitions-list-category-xii

Category VI CCL: https://www.federalregister.gov/documents/2016/10/12/2016-24220/export-administration-regulations-control-of-fire-control-laser-imaging-and-guidance-equipment.

About SPIE

SPIE is the international society for optics and photonics, an educational not-for-profit organization founded in 1955 to advance light-based science, engineering, and technology. The Society serves nearly 264,000 constituents from approximately 166 countries, offering conferences and their proceedings, continuing education, books, journals, and the SPIE Digital Library. In 2015, SPIE provided more than $5.2 million in support of education and outreach programs. www.spie.org


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