US Rules on Export of Optics and Photonics Tech
Export rules were finalized in October 2016.
Following two proposed rules and many years of negotiation, Category XII of the US Munitions List (USML) and the corresponding Commerce Control List (CCL) rules were finalized in October 2016. Category XII covers many optics and photonics technologies controlled under the US export control system.
These final rules will have an impact on the future growth of the industry both in the US and elsewhere.
Overall, companies and universities should be pleased with improvements in clarity and designation of items in the final rules, especially if your company is a component manufacturer. The agencies that have jurisdiction over this issue deserve much credit for negotiating this complex category and seeing it through to final rules that strike a positive balance between regulations that maintain US national security and recognize the realities of international competition and commerce.
Despite many years of effort, representatives from the government agencies and industry could not agree on performance parameters that are unique to military items for certain items listed in Category XII. The compromise solution found in the final rules for Category XII is to utilize the “specially designed” criteria, a detailed definition that government agencies established in 2012.
With this in place, there is a specific definition that companies and universities can use to determine if their item is considered “specially designed.” And all the agencies involved in the approval processes under the US export control system will use the same definition, reducing the possibility of conflicting decisions among the agencies.
SPIE and many in our industry had requested that the agencies apply that definition within Category XII to help ensure that certain dual-use technologies, especially components, are not considered munitions items.
Certain technologies in Category XII, such as focal plane arrays (FPAs), image intensifier tubes (IITs), and read-out integrated circuits (ROICs), are fast-growing component technologies that do not lend themselves to a clear military purpose performance parameter. In the final rule for Category XII, “specially designed” is used to describe these items, allowing them to be clearly defined in most cases as dual-use technologies and therefore fall under the jurisdiction of the CCL. The CCL provides more flexibility to US exporters by allowing many items to be sold to what are considered friendly countries, such as those in the European Union, without a license requirement.
While the Category XII rules are considered final as of 31 December 2016, the US administration is still attempting to find objective performance parameters for some of the items categorized as “specially designed” in the final rules. The State Department announced its intention to release a Notice of Inquiry (NOI) via the Federal Register, likely in early 2017.
The NOI is like a pre-proposed rule with an open comment period for interested parties. The NOI will contain the proposed parameters that could replace usage of “specially designed” in Category XII.
Establishing objective parameters was one of the goals of export control reform. If the agencies and industry can identify and agree on parameters unique to the military, this sets a clear, bright line on which the agencies can make decisions on jurisdiction.
The response by the impacted community to the State Department and Commerce Department’s NOI likely will have influence over more formal proposed rules. A robust public response to these notices may allow the final rules published in October 2016 to stand as written. However, a modest response to the notice could provide evidence to the governing US agencies that the impacted community has no significant objection to the changes proposed in the NOI.
SPIE will be asking companies and universities to respond to the Federal Register notice when it is released. When evaluating the parameters to be published in the NOI, it’s important to consider not only the direct impact to current commercial production lines or research but also whether the parameter could stand the test of time. Renegotiation on established parameters could be difficult, and there is no guarantee that later requests to increase established parameters would be accepted.
Unless parameters are clearly unique to the military, commercial growth in that technology area could be artificially capped for US industry. Though the United States has been seen as a leader in many of the technologies listed in Category XII, this may not continue to be the case if competitors from other countries are allowed to pursue new commercial opportunities while US companies are inhibited by export regulation.
SPIE is leading an effort, in conjunction with the Sensors and Instrumentation Technical Advisory Committee (SITAC) at the Department of Commerce, to develop ongoing export control proposals from industry and universities to continue upon the progress made in this rewrite.
The three working groups being established are Lenses & Optics, Cameras & Detectors, and Lasers. All interested parties are welcome to join. The first meeting of these working groups will be at SPIE Photonics West in San Francisco, CA (USA), on 2 February 2017.
More information on export control.
–Jennifer Douris is the government affairs director for SPIE in Washington, DC, and vice chair of the Sensors and Instrumentation Technical Advisory Committee (SITAC) at the US Department of Commerce.
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