Export Controls: 2017 Update of the EU Dual-Use Control List

Dechert LLP
Contact

Dechert LLP

The annual update of the EU’s list of dual-use items subject to export controls will shortly come into force. The UK will update its open general licences that are affected. Businesses exporting dual-use items should check whether any of the revisions apply to their products and revise their licensing requirements accordingly. Looking ahead, a further round of updates has been agreed internationally and should be brought into effect in the EU at this time next year. This brief highlights both the main changes just brought into effect and those to be expected next year.

The annual revision of the EU dual-use export control list in Annex I of Regulation (EC) No 428/2009 is expected to come into force on 16 December. The revision brings the EU’s list into line with the revised lists agreed by the international export control regimes in 2016. Details of the changes, including the full text of the revised Regulation, are available on the European Commission’s website. The following summarises the main changes.

Wassenaar Arrangement (Conventional Weapons and Dual-Use Items)

  • An updated list of acronyms and abbreviations;
  • New definitions for “biological agents” (Category 1), “Monolithic Microwave Integrate Circuit” (MMIC) (Categories 3 and 5) and “authentication” (Category 5 Part 2). The definition of “adapted for use in war” (Category 1) was removed;
  • The restructuring of Category 5 Part 2 into a more positive control list of dual-use information security items continued. Note 4 (decontrol note to Category 5, Part 2) was removed and is now incorporated into the 5A002.a. control entry; and
  • The addition of new (sub-entry) controls in Category 3 for integrated circuits with analogue-to-digital converters (3A001.a.14.) and for MMIC transmit/receive modules (3A001.b.12.), and in Category 6 for certain lasers (6A005).

Australia Group (Chemical and Biological weapons)

  • The deletion of controls on the Dengue virus (1C351.a.10.) and on verotoxin and Shiga-like ribosome inactivating proteins (1C351.d.9.);
  • Two bacteria and six toxins under 1C351 were renamed;
  • Several controls on biological equipment were reviewed;
  • Note that viruses controlled under 1C351.a have not been re-ordered alphabetically in the EU list, as decided by the Australia Group in 2016, as the European Commission preferred to maintain the long term consistency of its control entry numbering for pathogenic material.

Missile Technology Control Regime

  • The addition of a new control for aerothermodynamic test facilities (9B107);
  • A new sub-entry control for ultra-high temperature ceramics (1C102.f.);
  • Controls for liquid rocket propulsion (9A106) and for propellant tanks systems (9A120) were amended to include gel propellant;
  • A note to the control on flow-forming machines was amended to include missile inter-stages (2B109.b.);
  • A new note to the 9D105 software control was added to highlight that this control includes software specially designed for a manned aircraft converted to operate as an unmanned aerial vehicle.

Nuclear Suppliers Group

  • Two new sub-entry controls for plasma torches and electron beam guns in Category 2 (2B227).

Changes to UK Open General Export Licences

To take account of these changes, the Export Control Joint Unit has announced that it will update nine open general export licences (OGELs), specifically the schedules listing the dual-use items covered by the licences1. The licences to be updated are:

  • export after exhibition: dual-use items;
  • export after repair/replacement under warranty: dual-use items;
  • export for repair/replacement under warranty: dual-use items;
  • dual-use items: Hong Kong Special Administrative Region;
  • low value shipments;
  • oil and gas exploration: dual-use items;
  • technology for dual-use items;
  • Turkey; and
  • cryptographic development.

Next Year: Changes Likely to be Brought Into Force in Late 2018

During the course of 2017, the Export Control Regimes continued to review their control lists and agreed on further updates. In line with what has now become standard practice, these changes are all likely to be adopted into the EU Dual-Use Control List in late 2018. The following highlights the main changes in each Regime.

Wassenaar Arrangement (Conventional Weapons and Dual-Use Items)

  • A summary of the changes agreed in December 2017 is available via the Wassenaar webiste. These include:
  • the control entry on dimensional inspection or measuring systems, equipment, position feedback units and "electronic assemblies" is entirely rewritten (2.B.6);
  • EEPROMs, flash memories and MRAMs (3.A.1.a.2), and field programmable logic devices and Simple Programmable Logic Devices (3.A.1.a.7. Note) are deleted;
  • the minimum threshold for signal analysers is changed from 10 MHz to 40 MHz (3.A.2.c.1);
  • on intrusion software, a new decontrol (4.D.4 Note) excludes software updates or upgrades that operate only with the authorization of the owner or administrator of the system receiving it and the upgraded or updated software is not intrusion software itself nor software specially designed or modified for the generation, command and control or delivery of intrusion software. Technology for intrusion software (4.E.1 Notes and Technical Note) is decontrolled if it is used for vulnerability disclosure or cyber incident response;
  • there are no changes to the decontrols for information security items but revisions of the main control entries. 5.A.2.a now controls items whose cryptographic capability “is usable, has been activated, or can be activated by means of cryptographic activation not employing a secure mechanism” while 5.A.2.b controls items designed or modified “for converting, by means of cryptographic activation, an item not specified by Category 5 – Part 2 into an item specified by 5.A.2.a or 5.D.2.c.1 and not released by the Cryptography Note (Note 3 in Category 5 – Part 2), or for enabling, by means of cryptographic activation, additional functionality specified by 5.A.2.a of an item already specified by Category 5 – Part 2”. Corresponding changes apply to software (5.D.2.b) and technology (5.E.2.b);
  • mechanical high-speed cameras are deleted (6.A.3.a.1. and 2);
  • a new entry is introduced for dynamic wave front measuring equipment (6.A.4.f).

Australia Group

A range of updates in the control lists on dual-use biological equipment and related technology and software, and of dual-use chemical manufacturing facilities and equipment, and related technology and software including:

  • a new control on N,N-Diisopropylaminoethanethiol hydrochloride;
  • revision of the definitions of reaction vessels, reactors or agitators, as well as storage tanks, containers and receivers;
  • revision of the definition of materials for the construction for valves.

Missile Technology Control Regime

Changes agreed include:

  • expansion of the controls on combined cycle engines to include gel rocket motors (3.A.2);
  • clarification of the criteria for flow-forming machines (3.B.3.) and for equipment (batch mixers and continuous mixers) for propellants, chemicals and propellant production (4.B.3.a. and 4.B.3.b.);
  • a Note on flight control (10.A) that the conversion of manned aircraft to unmanned aerial vehicles (specified in 1.A.2) also includes systems, equipment and valves designed or modified that enable such transformation;
  • the replacement of references to Global Navigation Satellite Systems (GNSS) with “navigation satellite systems” which also encompass GNSS (11.A.3).

Nuclear Suppliers Group

The update to the control list for nuclear-related dual-use items include the addition of targets assemblies and components for the production of tritium (2.A.4).

What Does This Mean for Companies?

Companies exporting these types of products may wish to consider undertaking a review of their export controls matrix to identify potential opportunities and risks in the light of these changes.

 

Footnotes

1) The Export Control Joint Unit’s ‘Notice to Exporters’ provides details of the affected licences

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dechert LLP | Attorney Advertising

Written by:

Dechert LLP
Contact
more
less

Dechert LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.