Notices of Inquiry (NOIs):US Munitions List Category XII

and Commerce Control List

SPIE Photonics WestFebruary 2017

Panelists

Jennifer Douris Government Affairs DirectorSPIE, the international society for optics and photonics

2

Chris CostanzoDeputy DirectorDepartment of CommerceOffice of National Security and Technology Transfer ControlsSensors and Aviation Division

Steve EmmeSenior CounselAkin Gump Strauss Hauer & Feld

Mark JasoSenior Engineer and Export Licensing OfficerSensors and Aviation Division of the Bureau of Industry and Security (BIS)

Moderator:

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US Munitions List (USML) Category XII: Final Rule

2/1/17

USML Category XII

• High-level changes Use of “specially designed” for many entries rather than

specific parameters or performance capability Introduction of “specially designed for a military end user” for

certain entries Movement of most parts and components within Cat XII to

XII(e) Removal of text carving out see-through rule from XII(c) and

XII(e) Increased clarity that technology and software jurisdiction

follow the commodity

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“Specially Designed for a Military End User”• Seven entries in USML Category XII use the language,

“specially designed for a military end user” Applies only to XII(b)(6), (c)(1)(iii), (c)(3), (c)(4)(ii), (c)(5), (c)(6)(viii)(b),

and (c)(7)(ii) Application of this control text differs from the normal use of specially

designed (i.e., specially designed for a defense article)

• The Note to Cat XII describes how to apply this standard Apply paragraph (a)(1) of “specially designed” for the catch and the

definition of “military end user” in the Note to Cat XII Only available releases:

1) The item was developed for use by both military and non-military end users2) The item was developed for no specific end user

Contemporaneous documentation of design intent is required for those releases

If an item originally developed for a military end user has transitioned to normal commercial use, then one may submit a CJ request to determine if the item should remain on the USML

52/1/17

Definition of “Specially Designed”

ITAR paragraph (a) catches

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(a)(1) Catches any item that, as a result of “development,” has properties peculiarly responsible for achieving or exceeding the performance levels, characteristics, or functions in the relevant USML paragraph

(a)(2) Catches any part, component, accessory, or attachment that is for use in or with a defense article

2/1/17

Definition of “Specially Designed”ITAR paragraph (b) releases

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Initial questions for releases of parts, components, accessories, or attachments

Relevant paragraph (b) release

Was it identified in a Commodity Jurisdiction (CJ) determination as being subject to the EAR?

If yes, see (b)(1) Note: Also will need to review the CJ in question.

Is it a fastener (e.g., screw, bolt, nut, nut plate, stud, insert, clip, rivet, pin), washer, spacer, insulator, grommet, bushing, spring, wire, or solder?

If yes, see (b)(2)

Is it being used in or with an item in “production” that is not on the USML (i.e., a commercial or dual-use item)?

If yes, see (b)(3)

Was or is it being developed for use in or with items on the USML and for items not on the USML?

If yes, see (b)(4).Note: Requires documentation from development.

Is it a general purpose commodity or software (meaning not for particular commodity or type of commodity)?

If yes, see (b)(5)Note: Requires documentation from development.

2/1/17

USML Category XII

• Entries for developmental items funded by DoD XII(b)(7): developmental lasers or laser systems XII(c)(10): developmental electro-optical, infrared, or terahertz

systems XII(d)(6): developmental guidance or navigation systems XII(e)(24): developmental IITs, FPAs, ROICs, accelerometers,

gyroscopes, angular rate sensors, and IMUs• Developmental entries do not control: Items in production; Items determined to be subject to the EAR via a CJ; or Items identified in the relevant DoD contract or other funding

authorization as being developed for both civil and military applications

• Developmental entries do not apply to contracts dated before October 12, 2017

82/1/17

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Commerce Control List (CCL) Category 6: Final Rule

2/1/17

CCL Category 6 Changes Dual-Use Commodities• 6A002: Optical sensors, etc.

Removal of STA and APR (paragraphs (a) and (b)) eligibility for all items in 6A002 Added to 0A919 and § 744.9

• 6A003: Cameras All items in ECCN ineligible for APR paragraph (a); certain items ineligible for APR

paragraph (b) All items in ECCN added to 0A919 and § 744.9 No changes to Reasons for Control or authorizations in § 742.6

• 6A990: Read-Out Integrated Circuits (ROICs) Scope of ECCN expanded to ROICs specially designed for 6A002.a.3 FPAs, but new civil

automotive carve out added (same changes apply to related software and technology) Removal of STA and APR (paragraphs (a) and (b)) eligibility, but inclusion of LVS eligibility

($500) Added to 0A919 and § 744.9

• 6A993.a: 9 Hz cameras Added to 0A919 and § 744.9

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CCL Category 6 ChangesDual-Use Software and Technology

• Expanded scope of controls on software and technology related to infrared detection Modified 6D991: “Software,” n.e.s., “specially designed”

for the “development,” “production,” or “use” of 6A002, 6A003, 6A990, 6A991, 6A996, 6A997, or 6A998.

Created 0E987: “Technology” “required” for the “development,” or “production” of commodities controlled by 0A987 items that incorporate a focal plane array or image intensifier tube.

112/1/17

Additional Dual-Use Changes

• License applications will be reviewed with a presumption of denial when destined to Country Group D:5 for the following dual-use technology: 6E001 or 6E002 technology for the development or

production of FPAs or IITs described in 6A002 6E990 technology for the development or production of

ROICs described in 6A990

• Specific controls related to certain QRS-11 sensors removed

122/1/17

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Notices of Inquiry: Category XII US Munitions List (USML) and

Commerce Companion Proposals

2/1/17

Submitting Public Comments

• Don’t rely on someone else to submit comments if the proposals affect your organization

• Structure comments so that the agencies can follow which proposals are being addressed

• Support assertions with evidence, if possible If citing foreign availability of products, provide names of companies

and products If citing competitive disadvantage, provide estimate on the financial

impact or cite trends

• Address the proposals you support and the proposals you do not support

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Notice of Inquiry: Commerce Companion Proposals

152/1/17

Section 734.4“De Minimis U.S. Content” for 0A919 Foreign Military Commodities

• As of December 31, 2016. Consistent with the February 19, 2016 proposed rule, the October 12 final rule broadened the scope of ECCN 0A919 to include incorporated infrared detection items in ECCNs 6A002, 6A003, 6A990, or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criterion of Note 3.a to 6A003.b.4) and limited the destinations subject to the no de minimis provision to Group D:5 countries.

Section 734.4“De Minimis U.S. Content” for 0A919 Foreign Military Commodities

• Potential Revision. Expand the destinations subject to the no de minimis provision to “any destination, except Canada,” for non-U.S. military commodities (0A919) to those that incorporate any of the following: (1) Image intensifier tubes having a figure of merit (FOM) exceeding 1,400 lp/mm (line pairs per millimeter); (2) an infrared focal plane array (FPA) with format exceeding 75,000 detector elements, or (3) related infrared focal plane array read-out integrated circuit having more than 75,000 unit cells. FOM would be defined as the product of the tube's signal to noise ratio (SNR) and limiting resolution (FOM = SNR (unitless) × Limiting Resolution (lp/mm) and is a term of art regularly associated with exports of image intensifier tubes and related devices subject to the ITAR.

Strategy on Possible Comments

• Is this a workable de minimis provision, or is it too complex?

• Should 0A919 items incorporating infrared detection content previously described warrant stricter treatment than 0A919 items incorporating purely military content subject to the EAR (600 series items)?

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Section 740.20, License Exception Strategic Trade Authorization (STA) for Certain Night Vision Equipment To Be Embedded

• As of December 31, 2016. Consistent with the February 19, 2016 proposed rule, the October 12 final rule expanded that restriction to include all items in the following ECCNs: 0E987; 6A002; 6A990; 6D002 (for the use of commodities controlled under ECCN 6A002.b); 6D003.c; 6D991 (for the development, production, or use of commodities controlled under ECCNs 6A002, 6A003, or 6A990); 6E001 (for the development of commodities controlled under ECCNs 6A002 or 6A003); 6E002 (for the production of commodities controlled under ECCNs 6A002 or 6A003); and 6E990.

Section 740.20, License Exception Strategic Trade Authorization (STA) for Certain Night Vision Equipment To Be Embedded

• Potential Revision. Remove STA eligibility for infrared imaging cameras controlled in ECCN 6A003.b.4 that:

• (i) Are being exported to be embedded into a higher level assembly, system or equipment; and

• (ii) incorporate two dimensional FPAs specified in either ECCN 6A002.a.3.c or ECCN 6A002.a.3.f, and that have more than 328,000 detector elements.

Strategy on Possible Comments

• Is conditioning use of STA on end use appropriate or workable?

• If your organization has used STA for these types of 6A003 cameras, how would this proposal affect your operations? Would it cause (or worsen) a competitive disadvantage?

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ECCN 6A993

• As of December 31, 2016. Consistent with those proposed rules, the October 12 final rule expanded the license requirement to those cameras when destined to a military end-user or to be incorporated into a military commodity.

ECCN 6A993

• Potential Revision. Require a license for the export, reexport or in-country transfer, to or in a D:5 country, of cameras that meet the criteria of Note 3 to ECCN 6A003.b.4 and incorporate a microbolometer FPA with greater than 75,000 detector elements and that are being exported to be incorporated into a higher level assembly, equipment or system.

Strategy on Possible Comments

• Is this necessary in light of the license requirement for 9 Hz cameras in § 744.9?

• Is there foreign availability of 9 Hz cameras produced in D:5 countries (e.g., China) as well as those produced in any country outside the U.S.?

• Will this lead to (or worsen) a competitive disadvantage for U.S. companies?

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Supplement No. 1 to Part 774 (Commerce Control List) ECCN 3C001

• Current control status. ECCN 3C001 has NS Column 2 and AT Column 1 controls. ECCN 3C001 is not eligible for License Exceptions GBS and CIV. Neither the May 5, 2015 nor the February 19, 2016 proposed rules included changes to the control status of ECCN 3C001.

Supplement No. 1 to Part 774 (Commerce Control List) ECCN 3C001

• Potential Revision. Add RS Column 1 controls (worldwide except Canada) to items in 3C001 that are III-V compounds of gallium or indium, and aluminum, antimony, or arsenic, forming a strained layer superlattice having a photoluminescence signal maxima originating from the superlattice in the wavelength range exceeding 3,000 nm but not exceeding 15,000 nm at a temperature less than 200 K. License review policy for RS:1 controls are found in § 742.6 of the EAR.

Supplement No. 1 to Part 774 (Commerce Control List) ECCN 3E001

• Current control status. ECCN 3E001 has the following controls: NS Column 1 applies to “technology” for items controlled by 3A001, 3A002, 3A003, 3B001, 3B002, or 3C001 to 3C006; MT Column 1 applies to “technology” for equipment controlled by 3A001 or 3A101 for MT Reasons; NP Column 1 applies to “technology” for equipment controlled by 3A001, 3A201, or 3A225 to 3A234 for NP reasons; and AT Column 1 applies to the entire entry.

Supplement No. 1 to Part 774 (Commerce Control List) ECCN 3E001

• Potential Revision. Add RS Column 1 to “technology” for items in 3C001 that are III-V compounds of gallium or indium, and aluminum, antimony, or arsenic forming a strained layer superlattice having a photoluminescence signal maxima originating from the superlattice in the wavelength range exceeding 3,000 nm but not exceeding 15,000 nm at a temperature less than 200 K. RS Column 1 controls apply to all destinations except Canada. License review policy for RS:1 controls are found in § 742.6 of the EAR. Note that License Exceptions CIV and TSR would no longer be eligible for these specified items in ECCN 3E001, because of the addition of RS Column 1 controls.

Strategy on Possible Comments

• Is this control necessary and properly crafted?• If necessary, should the U.S. establish a unilateral

control first or try to propose a multilateral control under the Wassenaar Arrangement?

• Is there foreign availability for such materials and related technology outside of member states of the Wassenaar Arrangement?

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ECCNs 6E001, 6E002 and 6E990

• Prior to December 31, 2016 and current control status. The May 5, 2015 proposed rule included a new worldwide RS control for commodities controlled under ECCNs 6A002 and 6A990, as well as for related software and technology controlled under 6D002, 6D003.c, 6D991, 6E001, and 6E002. The proposed worldwide RS control would have introduced a new license requirement for such items for exports or reexports to Canada. After receiving extensive public comments opposing the inclusion of the worldwide RS control, the February 19, 2016 proposed rule did not retain that proposal, and as such, the final rule maintained the current controls in place for such items.

ECCNs 6E001, 6E002 and 6E990

• Proposed Revision. Add a worldwide RS control for specific technology related to components controlled under ECCN 6A002 or 6A990, as follows:

• (i) 6E001 development technology or 6E002 production technology for image intensifier tubes controlled in 6A002.a.2.a or 6A002.a.2.b and their specially designed components controlled in 6A002.a.2.c, except those tubes having a multialkali photocathode.

• (ii) 6E001 development technology or 6E002 production technology for microbolometer infrared focal plane arrays controlled in 6A002.a.3.f and two-dimensional infrared focal plane arrays controlled in 6A002.a.3.c.

• (iii) 6E990 development and production technology for read-out integrated circuits specially designed for those focal plane arrays specified in ii, above (i.e., microbolometer infrared focal plane arrays controlled in 6A002.a.3.f and two-dimensional infrared focal plane arrays controlled in 6A002.a.3.c).

Strategy on Possible Comments

• Should this technology be controlled to Canada?• Will this proposal help or harm the U.S. and

Canadian industrial bases?• Will this proposal help or harm North American

security cooperation?• Will this proposal influence a Canadian company’s

decision on whether to source their FPAs or ROICs from a U.S. company or from a non-U.S. company?

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Notice of Inquiry: Category XII US Munitions List (USML)

2/1/17

Strategy on Possible Comments

• Address whether the proposed language is clear and understandable

• Would the proposed parameters capture any: U.S. or non-U.S. item currently in normal commercial use? U.S. or non-U.S. commercial development within the next five years?

• Are the proposed parameters specific to military capability or use, or are they also important to commercial use and development?

• Are the proposed parameters better or worse than existing entries (including those that use “specially designed”)?

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CHANGES TO SPECIALLY DESIGNED FOR MILITARY END-USER ENTRIES

1. (b)(6) Light detection and ranging (LIDAR), laser detection and ranging (LADAR), or range-gated systems, specially designed for a military end user.

2. (c)(1) Binoculars, bioculars, monoculars, goggles, or head or helmet-mounted imaging systems (including video-based articles having a separate near-to-eye display), as follows:

(iii) Having an infrared focal plane array or infrared imaging camera, and specially designed for a military end user.

3. (c)(3) Electro-optical reconnaissance, surveillance, target detection, or target acquisition systems, specially designed for articles in this subchapter or specially designed for a military end user.

4. (c)(4) Infrared search and track (IRST) systems having one of the following: (ii) Specially designed for a military end user.

CHANGES TO SPECIALLY DESIGNED FOR MILITARY END USER ENTRIES

5. (c)(5) Distributed aperture systems having a peak response wavelength exceeding 710 nm specially designed for articles in this subchapter or specially designed for a military end user.

6. (c)(6) Infrared imaging systems, as follows:(viii) Gimbaled infrared systems, as follows:(B) Specially designed for articles in this subchapter

or specially designed for a military end user

7. (c)(7) Terahertz imaging systems as follows: (ii) Specially designed for a military end user.

CHANGES TO USML CONTROL PARAMETERS

Additional USML Items

Infrared imaging systems, as follows: Mobile reconnaissance, mobile scout, or mobile surveillance systems, that provide real-time target geolocation at ranges greater than 3 km (e.g., LRAS3, CIV, HTI, SeeSpot, MMS).

Infrared focal plane arrays or dewars specially designed for optical augmentation reduction.

Infrared focal plane array dewar assemblies with peak response in the wavelength range greater than 3,000 nm but not exceeding 14,000 nm, and having a variable aperture mechanism.

Analog readout integrated circuits specially designed for articles in this subchapter.

Free-space laser communication systems specially designed for articles in this subchapter.

Binoculars, bioculars, monoculars, goggles, or head or helmet-mounted imaging systems (including video-based articles having a separate near-to-eye display), having any of the following:

• (i) A dynamically gain modulated image intensifier tube incorporating a GaAs, GaInAs, or other III-V semiconductor photocathode with a peak response in the wavelength range exceeding 400 nm but not exceeding 2,000 nm;

• (ii) An image intensifier tube incorporating a photocathode with a peak response in the wavelength range exceeding 400 nm but not exceeding 2,000 nm and incorporating a focal plane array in the tube vacuum space;

Binoculars, bioculars, monoculars, goggles, or head or helmet-mounted imaging systems (including video-based articles having a separate near-to-eye display), having any of the following:

• (iii) Fusing outputs of multiple infrared focal plane arrays each having a peak response at a wavelength greater than 1,000 nm;

• (iv) An infrared focal plane array with a peak response in the wavelength range exceeding 1,000 nm but not exceeding 2,500 nm with a total noise floor less than 75 electrons at an operating temperature of 300 K; or

• (v) An infrared focal plane array with a peak response in the wavelength range exceeding 7,500 nm, and a laser illuminator or pointer.

Weapon sights (i.e., with a reticle), aiming or imaging systems (e.g., clip-on), specially designed to mount to a weapon or to withstand weapon shock or recoil, with or without an integrated viewer or display, and also incorporating or specially designed to incorporate any of the following:

(i) An image intensifier tube having a multi-alkali photocathode with a peak response in the wavelength range exceeding 400 nm but not exceeding 2,000 nm and a luminous sensitivity exceeding 350 microamps per lumen;

(ii) An image intensifier tube having a GaAs, GaInAs, or other III-V semiconductor photocathode, with a peak response in the wavelength range exceeding 400 nm but not exceeding 2,000 nm; or

(iii) An image intensifier tube having a photocathode with a peak response in the wavelength range exceeding 400 nm but not exceeding 2,000 nm and a focal plane array in the tube vacuum space.

Infrared imaging systems, as follows: Gimbaled infrared systems (e.g., T-bar, yoke, ball turrets, or pods), as follows and specially designed parts and components therefor:

(i) Having a root mean square (RMS) stabilization better (less) than 25 microradians and incorporating an infrared camera having a peak response at a wavelength exceeding 1,000 nm with an optical angular resolution (i.e., detector instantaneous field-of-view) of 25 microradians or less;

(ii) Having an RMS stabilization better (less) than 25 microradians for any payload having any dimension of 15 inches or greater; or

(iii) Specially designed for articles in this subchapter or specially designed for a military end user.

Image intensifier tubes having all the following, and specially designed parts and components therefor:

(i) A peak response in the wavelength range exceeding 400 nm but not exceeding 1,050 nm;

(ii) A multi-alkali photocathode with a luminous sensitivity of 1,300 microamps per lumen or greater; and

(iii) A limiting resolution of 64 line pairs per millimeter or greater.

Image intensifier tubes having all of the following, and specially designed parts and components therefor:

(i) A peak response in the wavelength range exceeding 400 nm but not exceeding 1,050 nm;

(ii) A GaAs, GaInAs, or other III-V compound semiconductor photocathode having a luminous sensitivity of 1,800 microamps per lumen or greater; and

(iii) A limiting resolution of 57 line pairs per millimeter or greater.

Image intensifier tubes having all of the following, and specially designed parts and components therefor:

(i) A peak response in the wavelength range exceeding 1,050 nm but not exceeding 2,000 nm; and

(ii) A GaAs, GaInAs, or other III-V compound semiconductor photocathode having a radiant sensitivity of 10 milliamps per watt or greater.

Infrared focal plane arrays having all of the following:

(i) A peak response in the wavelength range exceeding 710 nm but not exceeding 1,100 nm;

(ii) A non-binned pixel pitch of 10 microns or greater;

(iii) More than 1,024 detector elements in any direction; and

(iv) Total noise of 3 electrons or less at an input light level of 1 millilux, in a binned or non-binned operating mode, and measured at an ambient operating temperature of 300 K.

Infrared focal plane arrays having greater than 81,920 but not exceeding 327,680 detector elements, a peak response in the wavelength range 1,100 nm but not exceeding 1,700 nm, and any of the following:

(i) Noise equivalent irradiance less than 829 million photons per centimeter squared per second;

(ii) Readout integrated circuits capable of pulse interval modulation decoding or pulse repetition frequency decoding (e.g., an asynchronous detector read out integrated circuit, frame rates windowed or non-windowed greater than 2,000 Hz); or

(iii) Temperature dependent non-uniformity correction (e.g., without the use of a temperature stabilization)

Infrared focal plane arrays having greater than 327,680 detector elements, a peak response in the wavelength range exceeding 1,700 nm but not exceeding 3,000 nm, and any of the following:

Readout integrated circuits capable of pulse interval modulation decoding or pulse repetition frequency decoding (e.g. an asynchronous detector read out integrated circuit, frame rates windowed or non-windowed greater than 2,000 Hz);

(ii) A total noise floor less than 75 electrons at an operating temperature of 300 K; or

(iii) A detector pitch less than or equal to 20 microns.

Infrared focal plane arrays having an internal quantum efficiency exceeding 10 percent anywhere in the wavelength range exceeding 3,000 nm but not exceeding 7,500 nm and any of the following:

• (i) A detector pitch less than 12.5 microns; or

• (ii) More than 1,331,200 detector elements

Infrared focal plane arrays having a peak response in the wavelength range exceeding 7,500 nm but not exceeding 30,000 nm, and all of the following:

(i) A detector element of the photon, not thermal, type;

(ii) A detector pitch less than or equal to 30 microns; and

(iii) Greater than or equal to 262,144 detector elements.

Infrared focal plane arrays having a peak response in the wavelength range exceeding 7,500 nm but not exceeding 14,000 nm and all of the following:

i) A detector element of the photon, not thermal, type;

(ii) Greater than 300 detector elements; and

(iii) Time delay integration of detector elements

Microbolometer focal plane arrays having an unfiltered response in the wavelength range exceeding 7,500 nm but not exceeding 14,000 nm and any of the following:

(i) Vacuum packaged and specially designed to withstand weapon shock; or

(ii) Greater than 328,000 detector elements with a detector pitch less than or equal to 14 microns.

Infrared focal plane arrays specially designed to provide distinct outputs corresponding to more than one spectral band, and having all the following:

(i) Multiple spectral bands with a photo-response in the wavelength range exceeding 1,100 nm but not exceeding 14,000 nm; and

(ii) A detector element pitch less than 50 microns.

Digital low-light-level sensors incorporating a photocathode and a focal plane array within the vacuum space, with a peak response in the wavelength range exceeding 400 nm but not exceeding 2,000 nm, and having any of the following:

(i) A photocathode with a luminous sensitivity greater than 1,800 microamps per lumen; or

(ii) Greater than 2,040,000 focal plane array detector elements.

Digital readout integrated circuits specially designed for focal plane arrays having a peak spectral response in the wavelength band exceeding 1,100 nm but not exceeding 30,000 nm, a digital signal output, and any of the following:

(i) Dynamic range greater than 54 dB; or

(ii) Pixel read-out rate greater than 540 million bits per second.

NOI Comments

Comments must be received no later than March 14, 2017

DDTC (State) Notice of Inquiry• Email: DDTCPublicComments@state.gov with the subject line, “Request for

Comments Regarding USML Category XII.”• Internet: At www.regulations.gov, search for this notice using its docket number,

DOS-2017-0002.

BIS (Commerce) Notice of Inquiry• Email: publiccomments@bis.doc.gov with the Subject Line “RIN 0694-XC035”

• Internet: At www.regulations.gov, ID for this rule is: BIS-2017-0001. Please refer to RIN 0694-XC035 in all comments.

562/1/17

Export Control Working GroupsFebruary 2, 2017

Detectors & Cameras Lasers Lenses & Optics10:00am-11:00am 11:30am-12:30pm 1:30pm-2:30pmUncooled FiberCooled DiodeSWIR High PoweredCryocoolersROICsImage Intensifiers

www.spie.org/export57

Questions?

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