U.S. laser exports at risk with "tiering" proposal: your input requested

The U.S. government has suggested that lasers are candidates for the strictest "Tier 1" export category—a change in current laser export regulations that could hurt U.S. laser manufacturers. Breck Hitz, executive director of the Laser and Electro-Optics Manufacturers’ Association (LEOMA; Pacifica, CA) is asking laser companies to provide further industry input on this important laser export issue.

In December 2010, the U.S. Bureau of Industry and Security (BIS) Department of Commerce solicited opinions from industry (per the Federal Register, vol. 75, number 236, page 76664) on its intention to implement a "tiering" system for dual-use exports. Department of Commerce personnel indicated that lasers were candidates for Tier 1, where controls will be the strictest. Among the arguments in LEOMA's February letter to the Department of Commerce was the following worst-case scenario: "Treating 6A005 [laser] items as Tier 1 would substantially increase the burdens on U.S. exporters, reduce U.S. exports at a cost of hundreds if not thousands of U.S. jobs, benefit foreign competitors and provide incentive to use non-U.S. production facilities."

"I've been dealing with export control for a long time now," says Hitz. "After 9/11, the export regulation emphasis was logically on security and safety; now, the President's Export Council wants to double U.S. exports in five years, giving us reason to believe that the proposed Tier 1 status for lasers will be dropped in favor of Tier 2 or 3." But after a March 7 Washington, DC meeting in which representatives of five LEOMA companies—Coherent, IPG, JDSU, Newport, and Rofin-Sinar—visited assistant secretary Kevin Wolf and other officials at the Commerce and Defense Departments in connection with the planned revision of export-control regulations, Hitz said, "During that trip we were given reason to think that our views would be taken into account." Hitz says that the onus is on industry to explain the broad commercial availability and the absence of critical military or intelligence significance for most currently controlled lasers.

Background

In 1996, 33 founding member states reached consensus on a multilateral export control arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies to be called the Wassenaar Arrangement. Basically, dual-use items that can have both civilian and military purposes such as high-power lasers were viewed as subject to control and included on Wassenaar lists that were provided to individual countries for interpretation in their own export-control documents. The list of controlled lasers for the U.S., for example, can be found in the Commerce Department's Bureau of Industry and Security (BIS) Commerce Control List, section 6A005.

In 2001, LEOMA spearheaded a movement that would aim to classify lasers not in terms of the technology that is involved in generating light, but in terms of the parameters of the laser beam itself. Finally, the Wassenaar Arrangement was overhauled in 2006/2007 to reflect this new "specification-based" methodology.

Despite the overhaul, laser export regulations continue to be challenged, with many ongoing issues related to how particular countries interpret the Wassenaar Arrangement classifications and paperwork requirements.

The tiering system

According to the U.S. Department of Commerce Federal Register that solicited opinions from industry, "A core task of the Administration's Export Control Reform Initiative is to enhance national security by reviewing and revising, as necessary and to the extent permitted by law and regime obligations, the lists of items (i.e., commodities, software, and technology) controlled for export and reexport so that they (1) are clearer and more ‘positive’ in nature and (2) can more easily be screened into three tiers based upon a set of criteria." Effectively, the Register describes the tiering system as follows: Tier 1 items are weapons of mass destruction (WMD) or WMD-capable devices almost exclusively available from the U.S. that provide a critical military or intelligence advantage; Tier 2 items are almost exclusively available from regime partners and provide a substantial military or intelligence advantage to the U.S.; and Tier 3 items are more broadly available and provide a significant military or intelligence advantage to the U.S. or make a significant contribution to the development, production, use, or enhancement of a Tier 1, 2, or 3 item.

In its February 7, 2011 letter to Timothy Mooney at the BIS Department of Commerce, LEOMA and its consortium of laser manufacturers argue that in the five years since the last major revision of laser export controls, laser technology has advanced considerably. "In particular, the commercial availability of lasers offered by manufacturers located within Wassenaar countries has proliferated, and the capability of Chinese and other non-Wassenaar laser manufacturers has increased very significantly, such that many lasers that were not commercially available outside Wassenaar countries five years ago are now readily available." The letter points out that virtually all lasers, components, and optical equipment manufactured in the U.S. is are manufactured in volume with the same performance criteria in Germany, Russia, Japan, the U.K., and in a number of other Wassenaar countries and should fall under Tier 2. Furthermore, it details the many lasers and accessories controlled by 6A005 that are available in non-Wassenaar countries that should fall under Tier 3. Its detailed appendices specifically identify the origin of manufacture and specifications to support these recommendations. LEOMA does not rule out the possibility that some 6A005 items could fall into the Tier 1 category, and in the letter "suggests that if there are specific items controlled by 6A005 that provide a critical military or intelligence advantage to the United States and are available only in the United States or that meet criteria a, b or c of Tier 1, that the Administration highlight those items for a discussion regarding special treatment and control."

In addition to the Department of Commerce end-of-2011 implementation goal, Hitz says that the Defense Technology Security Administration—the agency that deals with export controls for the Department of Defense—is undertaking a revision of the U.S. Munitions List and hopes to have revised controls in place by June this year. "They indicated an enthusiasm for working with the industry trade association as the project evolves, and I would welcome further inputs from U.S. laser and component manufacturers to protect U.S. interests related to laser exports." Breck Hitz can be reached at [email protected] or at (650) 359-3905.