Millimeter wave technology brings to life, after a fashion, the dream of many a teenage boy to buy special X-ray glasses that would see through clothing. Pictures of a typical millimeter wave scan illustrate this post on the right, appropriately pixellated, of course, to spare the delicate sensibilities of our gentle readers. An explanation of the technology can be found here.

On March 25, the Bureau of Industry and Security (“BIS”) issued a final rule restricting exports of “concealed object detection equipment” using millimeter wave technology. The new rule applies regional stability controls, and specifically column 2 of those controls, to export of these devices. This means that exports of these devices to such non-NATO destinations as Barbados, Costa Rica, South Africa, Switzerland, and Senegal will require BIS licenses. Certain countries controlled for RS-2 reasons are spared the licensing lash. These countries are Austria, Cyprus, Finland, Ireland, Israel, Malta, Mexico, Singapore and Sweden. For those countries, license applications to government end-users will be subject to a presumption of approval. Licenses to other RS-2 destinations will be considered favorably on a case-by-case basis.

Of course, the reason for controlling the exports of millimeter wave scanning machines and technology is presumably to try to keep the machines out of the hands of people who could use the machines or technology to develop counter-measures. The problem with this argument is that terrorists have already developed a simple method of defeating these machines, which involves, gruesomely enough, the placement of explosive devices in internal cavities. The counterbalancing factor to imposing these controls is that making it more difficult for foreign airports to obtain these devices could endanger the lives of Americans travelling through those airports. Almost every popular Caribbean destination requires a license for exports of these machines.

The Bureau of Industry and Security (“BIS”) recently released documents related to its settlement with Buffalo-based G&W International Forwarders of charges that G&W aided and abetted the export of a stack sizer screening machine (classified as EAR99) to a company on BIS’s Entity List. Specifically, the item was exported to India Rare Earth, Ltd. Rare Earth’s entry on the Entity List indicates that EAR99 items exported to Rare Earth require a BIS license and that there is a “presumption of approval” for license requests for EAR99 items. In other words, nobody in this transaction bothered to take the five minutes required to screen the name of the shipment’s recipient. G&W agreed to pay a $20,000 penalty in five equal monthly installments and to conduct an internal audit of its compliance procedures.

There is no record that the exporter has been charged in connection with the export in question. (The likely identity of the exporter can be easily discovered by Googling “Stack Sizer Screening Machine” and then remembering that G&W is located in Buffalo, New York.) What follows is, admittedly, rank speculation on my part, but it seems to me not unlikely that the exporter voluntarily disclosed the violation to BIS and then identified G&W as the freight forwarder. This case should serve as a further reminder to freight forwarders that the days where some thought that they could get away with a lackadaisical attitude to export compliance are over.

The Bureau of Industry and Security (“BIS”) yesterday published a final rule implementing changes proposed by The Australia Group to its Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software. To implement one of the changes in question, the final rule amended ECCN 2B350.g which controls valves with a “nominal sizes” greater than 1.0 cm and which are made of certain specified alloys. The amendment adds a technical note stating:

The ‘nominal size’ is defined as the smaller of the inlet and outlet port diameters.

As this blog has previously noted, the “nominal size” of a valve is the size under which the valve is marketed. That size may be, and usually is, different from both the outer and inner diameter of the valve. Various industry standards have been established for the inner and outer diameters of marketed under particular nominal sizes.

The technical note departs from these standards and establishes a new and arguably more ambiguous standard. When it refers to the “smaller” of the inlet and outlet “port diameters,” it does not mention whether it means the inner diameter of the bore of the valve or the outer diameter of its casing.

This change may be an effort to reflect a statement in the Related Controls section of ECCN 2A226 which states that:

For valves with different inlet and outlet diameters, the “nominal size” in 2A226 refers to the smallest diameter.

But the new note is not restricted to valves with different inlet and outlet diameters, but purports to change the definition of “nominal size” for all valves otherwise subject to ECCN 2B350. As a compliance matter, the safe thing to do is to measure valve by the larger diameter, namely the outer diameter, even though the purpose of the control would seem to make the inner diameter the most relevant parameter. Perhaps the confusion has occurred here because neither BIS or The Australia Group realized that the inner and outer diameters of a valve might be significantly different.