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Regional stability (RS) controls ensure that exports and reexports of controlled items do not contribute directly or indirectly to a country’s military capabilities in a manner that would alter or destabilize a region’s military balance contrary to the foreign policy interests of the United States. This control traditionally covers items specially designed or modified for military purposes and certain dual-use commodities that can be used to manufacture military equipment.
On April 3, 2003, the Department of Commerce published an amendment to the Export Administration Regulations (EAR) that expands the scope of controls on explosive detection equipment. The amendment moved explosive detection equipment from ECCN 2A993 to ECCN 2A983. The Department also imposed new license requirements for the export and reexport of related software and technology, under newly created ECCNs 2D983 and 2E983. With this amendment, the Department of Commerce has imposed a license requirement for RS reasons for the export of explosive detection equipment, software and technology to all destinations except members of the North Atlantic Treaty Organization (NATO), Australia, Japan, and New Zealand. The amendment is designed to enhance the security and safety of airline travel and physical structures, including government buildings. The Department of State’s Directorate for Defense Trade Controls is encouraging manufacturers of such equipment to seek confirmation of their individual item transfers to Department of Commerce export licensing jurisdiction by using the Commodity Jurisdiction (22 CFR 120.4) process.
Section 742.6 of the EAR requires a license for RS reasons to export certain
image-intensifier tubes, infrared focal plane arrays, certain software and
technology for inertial navigation systems, gyroscopes and accelerometers,
to all destinations except Canada. All license applications for these items
are reviewed on a case-by-case basis to determine whether the export could
contribute, directly or indirectly, to a country’s military capabilities
in a manner that would destabilize or alter a region’s military balance
contrary to U.S. foreign policy interests.
Section 742.6 of the EAR requires a license for RS reasons to export explosive
detection equipment and related software and technology, military-related
items (e.g., certain vehicles and trainer aircraft), and certain commodities
used to manufacture military equipment to all destinations except member
nations of NATO, Australia, Japan, and New Zealand. The U.S. Government will
generally consider applications for such licenses favorably, on a case-by-case
basis, unless the export would significantly affect regional stability.
This control provides a mechanism for the U.S. Government to monitor the export of these items to restrict their use in instances that would adversely affect regional stability or the military balance within a region and to protect the national security and foreign policy interests of the United States. The purpose of the expansion of controls on explosive detection equipment and imposition of controls on related software and technology is to enhance the security and safety of airline travel worldwide and physical structures including government buildings.
1. Probability of Achieving the Intended Foreign Policy Purpose. The Secretary has determined that these controls are likely to achieve the intended foreign policy purpose, in light of other factors, including the availability of these RS-controlled items from other countries and that most of the items subject to these controls are also controlled, as a result of international negotiations, by the United States’ partners in the Wassenaar Arrangement and the Missile Technology Control Regime (MTCR). Regional stability controls, including the new and expanded controls on explosive detection equipment, software, and technology contribute to U.S. national security and foreign policy objectives by enabling the United States to restrict the use or availability of certain sensitive U.S.-origin goods and technologies that would adversely affect regional stability or the military balance in certain areas.
2. Compatibility with Foreign Policy Objectives. The Secretary has determined that these controls are compatible with U.S. foreign policy objectives and will not have any significant adverse foreign policy consequences with the extension of these controls. Regional stability controls, including the expanded and new controls on explosive detection equipment, software, and technology are consistent with U.S. foreign policy goals to promote peace and stability and prevent U.S. exports that might contribute to weapons production, destabilizing military capabilities, or terrorist acts.
3. Reaction of Other Countries. The Secretary has determined that any adverse reaction to these controls is not likely to render the controls ineffective nor will any adverse reaction by other countries be counter-productive to U.S. foreign policy interests. A number of other countries limit exports of items and technologies with military applications to areas of concern, recognizing that such items and technologies could adversely affect regional stability and military balances. For example, the United States and other member countries of the Wassenaar Arrangement each have their own national controls on the export of certain night vision devices. All members of the MTCR maintain controls on software and technology related to missile guidance and control devices. Although other countries may object to new unilateral RS controls, allies and partners of the United States support U.S. efforts against regional conflict and terrorism and appreciate the need to keep certain equipment and technologies from those who could misuse the items to destabilize countries or regions.
4. Economic Impact on United States Industry. The Secretary has determined that any adverse effect of these controls on the economy of the United States, including on the competitive position of the United States in the international economy, does not exceed the benefit to U.S. foreign policy objectives. Items controlled for regional stability reasons generally require licenses for export to all destinations except NATO countries, Australia, Japan, and New Zealand, including the expanded and new controls on explosive detection equipment and related software and technology. Certain RS-controlled items, including those controlled concurrently for missile technology reasons and cameras controlled under ECCN 6A003, however, require licenses for export to all destinations except Canada.
In FY 2003, the Department of Commerce approved 2,883 license applications for items controlled for RS reasons, with a total value of $1,101 million. Sixteen applications for these items (all were cameras in 6A003) were denied, with a total value of $496,210. In addition, the Department of Commerce returned without action (RWA) 176 applications, valued at $21.5 million. Most of the RWA’s were due to commodity jurisdiction questions involving the Department of State or because insufficient end-user or end-use information was provided. The majority of RWA cases, 130 of the 176, were for imaging cameras classified under ECCN 6A003.
The licensing volume for items controlled for regional stability was significantly larger than in FY 2002, in which the Department of Commerce approved 1,662 license applications for items controlled for RS reasons, with a total value of $441 million. This increase is due to several factors. First, the commercial market for night vision/thermal imaging cameras controlled in ECCN 6A003 is growing rapidly. Second, BIS imposed new regional stability controls on explosive detection equipment and related technology (ECCN 2A983, 2D983 and 2E983). Lastly, regional stability controls were applied to additional ECCNs as a result of the “space qualified” rule agreements in late 2002.
The table that follows lists the total number and value by ECCN of export licenses that the Department of Commerce issued for regional stability items during FY 2003:
Regional Stability Applications Approved (Fiscal Year 2003)
| ECCN | Description | Number of Applications | $ Value |
|---|---|---|---|
| 1B018.a | Equipment for the production of military explosives and solid propellants | 0 |
0 |
| 2A983 | Explosives detection equipment | 29 |
$4,432,618 |
| 2B018 | Equipment on the International Munitions List | 0 |
0 |
| 2D983 | Software for equipment in 2A983 | 2 |
0 |
| 2E983 | Technology for equipment in 2A983 | 1 |
0 |
| 6A002.a.1, .a.2,.a.3,.c,.e |
Optical detectors and direct view imaging equipment incorporating image intensifier tubes or focal plane arrays | 35 |
$3,588,251 |
| 6A003.b.3, .b.4 |
Imaging cameras incorporating image intensifiers or focal plane arrays | 2,588 |
$642,177,201 |
| 6A008.j.1 | Space qualified LIDAR equipment | 0 |
0 |
| 6A998.b | Space-qualified LIDAR equipment for meteorological observation | 0 |
0 |
| 6D001 | Software for development/production of 6A002, 6A003, or 6A008 | 0 |
0 |
| 6D991 | Software for development/production/use of 6A998.b | 0 |
0 |
| 6E001 | Technology for the development of equipment, materials, or software controlled by 6A, 6B, 6C, or 6D | 3 |
$2 |
| 6E002 | Technology for the production of equipment or materials controlled by 6A, 6B, or 6C | 2 |
$201,000 |
| 6E991 | Technology for production, development or use of items in 6A998.b | 2 |
0 |
| 7D001 | Software for the development or production of equipment in 7A or 7B | 5 |
$3 |
| 7E001 | Technology for the development of items in 7A, 7B, or 7D | 12 |
$322,553 |
| 7E002 | Technology for the production of items in 7A or 7B | 5 |
$2,506 |
| 7E101 | Technology for the use of items in 7A, 7B, or 7D | 21 |
$9,102 |
| 9A018.a,.b | Military trainer aircraft and vehicles designed or modified for military use | 244 |
$456,616,153 |
| 9E018 | Technology for the development of items in 9A018.a, .b | 9 |
$85,051 |
| TOTAL | 2,883 |
$1,101,000,309 |
NOTE: The number of sub-categories under certain ECCNs that are not controlled for regional stability reasons is insignificant and is not reflected in this data.
5. Effective Enforcement of Control. The Secretary has determined that the United States has the ability to effectively enforce these controls. Image intensifier tubes, infrared focal plane arrays, certain software and technology for inertial navigation systems, gyroscopes, and accelerometers and other items controlled for regional stability purposes are almost all subject to multilateral controls for either national security or missile technology reasons. The multilateral nature of these controls aids in enforcement. The Department of Commerce can effectively enforce these controls by focusing on preventive enforcement, using regular outreach efforts to keep businesses informed of its concerns, and gathering leads on activities of concern. Given the enhanced anti-terrorism efforts of the U.S. Government, it is expected that industry will continue to support enforcement efforts.
The Department of Commerce consults regularly with industry and its Technical Advisory Committees (TACs) on RS controls. For example, the Department has continued to consult the Sensors and Instrumentation Technical Advisory Committee (SITAC) as the U.S. Government considers possible revisions to the USML’s night vision thermal imaging entry. (Issues regarding licensing jurisdiction of night vision equipment are being addressed in the interagency review of the USML.)
The Department of Commerce informed the Regulations and Procedures Technical Advisory Committee (RPTAC) of the U.S. Government’s intention to impose regional stability controls on certain power controlled searchlights, bayonets, and marine boilers to replace unilateral national security controls on these items. RPTAC comments were taken into consideration when drafting an amendment to the EAR for this purpose.
In a October 21, 2003, Federal Register notice, the Department of Commerce solicited comments from industry on the effectiveness of U.S. foreign policy-based export controls. Comments were solicited from all six of the Department’s TACs, which advise the Bureau of Industry and Security (BIS), as well as from the President’s Export Council Subcommittee on Export Administration. Comments also were solicited from the public via the BIS webpage. The comment period closed on November 21, 2003, and eight comments were received.
The SITAC submitted comments about the ongoing interagency consideration of the appropriate controls for commercial night vision and thermal imaging equipment controlled in Category 6 of the Commerce Control List. The SITAC reiterated its comments from previous years and recommended that commercial night vision and thermal imaging equipment controlled in ECCNs 6A002, 6A003, 6E001, and 6E002 should be controlled in RS column 2 instead of column 1, as a first step toward reconsidering RS controls in their entirety. This change would allow exports to NATO member countries, Australia, Japan, and New Zealand without an export license, which would amend the existing RS controls on these items to reflect that these are not countries and regions that suffer from instability. The SITAC further stated that treating all regions, with the exception of Canada, as being potentially unstable “dilutes the focus on regions where stability may truly be in question.” The multi-year interagency consideration of this issue has resulted in the development of foreign competition in the United Kingdom, France, Japan, and Israel, that SITAC states has had a “negative effect on U.S. companies [that] far exceeds the perceived benefit to the foreign policy objective.” The SITAC emphasized that this recent foreign competition has become rigorous and that the U.S. regional stability controls are harming U.S. industry without significant regional stability benefits.
The SITAC further noted in its comments the importance of thermal imaging items for firefighting, law enforcement, and security organizations worldwide and stated that the United States’ call for building a large international coalition to combat terrorism is undermined when allies’ access to available U.S. technology is restricted.
The Wassenaar Arrangement controls most items that the United States controls for RS purposes. The Wassenaar Arrangement member countries hold extensive consultations and certain member countries hold bilateral discussions regarding Wassenaar issues. During FY 2003 the U.S. Government engaged in extensive consultations with its Wassenaar partners. Wassenaar participating states have agreed to incorporate the Wassenaar Dual-Use Control List into their own national export controls to prevent exports that could contribute to destabilizing buildups of conventional arms. In addition, members of the MTCR incorporate the MTCR control list into their own national control lists.
The United States has undertaken a wide range of actions to support and encourage regional stability and has specifically encouraged efforts to limit the flow of arms and militarily useful goods and other special equipment to regions of conflict and tension. U.S. regional stability export controls remain an important element in U.S. efforts to limit regional instability. Because most of the items that United States controls for RS purposes are also controlled by its Wassenaar and MTCR partners, the controls are largely based on international agreement, so no other alternative means were necessary.
Military vehicles and other military-type equipment that are controlled for RS purposes may be obtained from numerous foreign sources. Nearly all of the commodities and related software and technology controlled for regional stability purposes are also subject to multilateral controls for either national security or missile technology reasons under multilateral regimes. Manufacturers of imaging cameras controlled in ECCN 6A003 have voiced complaints to the Department of Commerce that there is considerable foreign availability of these items in Europe and Japan. The U.S. Government has maintained its controls as it has determined that the foreign policy objectives override the impact of foreign availability.
The SITAC has highlighted the increased foreign competition, and thus foreign availability, in comments it filed for consideration in this report, stating that foreign competition has increased significantly in the last three years, both from competitors within Wassenaar member countries and elsewhere. Although there are multilateral controls on these items, members of the European Union do not control the export of these items among themselves, but U.S. companies are required to obtain export licenses for exports to all destinations except Canada. U.S. industry believes that this disparity hinders them in this market. There also are foreign manufacturers of explosive detection equipment – although none of which produce items with technical capabilities equivalent to U.S. products. The Department of Commerce is not aware of foreign competitors that, at this time, produce the highest level of Federal Aviation Administration-certified explosive detection equipment.
