||When is an item or technology classified as dual-use?
CLASSIFICATION OF DUAL-USE ITEMS AND TECHNOLOGIES
Our country is a member of all international regimes for export control and non-proliferation of weapons of mass destruction and as a member of the EU it actively participates in the working groups on conventional arms exports and dual-use items and technologies at the Council of the EU and the European Commission.
International organizations for export control:
• MTCR (Missile Technology Control Regime) - restricts the proliferation of missiles, complete rocket systems, unmanned air vehicles, and related technology for those systems capable of carrying a 500 kilogram payload at least 300 kilometers, as well as systems intended for the delivery of weapons of mass destruction
• AG (Australian group) - reduces and prevents the spread of chemical and biological weapons through controls on chemicals and biological agents and related equipment and technologies
• NSG (Nuclear Suppliers Group) - reducing the nuclear proliferation by controlling the export and re-transfer of materials that can be applied in the development of nuclear weapons
• WA (Wassenaar Arrangement) - export control of conventional arms and dual-use items and technologies
Council Regulation No 428/2009 of 5 May 2009 is the basic legal act setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items and technologies, and it is directly applicable throughout the European Union as part of the EU common commercial policy. . On December 31, 2014 enter into force the Commission Delegated Regulation
(EU) No 1382/2014 Commission Delegated Regulation 1382 2014.pdf amending Council Regulation (EC) ¹ 428/2009.
I. How to classify whether an item falls into the Lists of controlled items?
Dual-use item and technology is item or technology commonly used for civilian purposes and not intended for military use but potentially could have military applications or is used for the production of military products.
In case you are interested in whether your item is controlled, it is necessary to search for comparable items (similar) in controlled lists, respectively:
• for import: List of dual-use items and technologies that are subject to import controls adopted by Council of Ministers Decree ¹ 216/2014
• for export, reexport, transit and broker services: Annex I of Regulation 1382/2014
• for transfer: Annex IV of Regulation 428/2009
The Council of ministers may impose an authorization requirement on the export of dual-use items not listed in Annex I of Regulation 428/2009 for reasons of public security or human rights considerations.
To be most accurate and objective in classifying your item is necessary to note the following:
- The nature of the items to be exported
- Relevant end destination
- The end use of items
- Requirements for a license / permission for trade in such items
Annex I of Regulation 428/2009 is included:
Category 0 - Nuclear materials, facilities and equipment
Category 1 - Special materials and related equipment
Category 2 - Materials processing
Category 3 - Electronics
Category 4 - Computers
Category 5 - Telecommunications and “information security”
Category 6 - Sensors and lasers
Category 7 - Navigation and avionics
Category 8 - Marine
Category 9 - Aerospace and propulsion
A - systems, equipment and components
B - test, control and manufacturing
C - materials
D - software
E - technology
International regime of origin:
0 - Wassenaar Arrangement
1 - Missile Technology Control Regime
2 - Nuclear Suppliers Group
3 - Australian Group
4 - Convention on prohibition of chemical weapons
Example for classification of item (valve for chemical production plants):
Category 2 - materials processing
Sub-category Â - test, control and manufacturing
International regime of origin 3 - Australian Group
Description 50.g.3 - Valves with nominal sizes greater than 10 mm and casings (valve bodies) or preformed casing liners designed for such valves, in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:
1. Alloys with more than 25 % nickel and 20 % chromium by weight;
3. Glass (including vitrified or enamelled coatings or glass lining);
If your item is not included in the list of controlled items are likely still need authorization, depending on end use. This applies to items which sent the end-user is likely to be used in the program for weapons of mass destruction (WMD). For example, cryogenic equipment can be used in a nuclear facility.
These cases are described in Chapter II “Scope of Council Regulation 428/2009” the so-called ”catch all” clause, concerning the cases in which according to Article 4 or Article 5, an authorization may be also required for export of dual-use items, not listed in Annex I depending on the end-user and the end-use.
Catch all clause (authorization requirement) is applied for items not listed in Annex I, if the exporter has been informed by the authorities that the items in question are or may be intended, in their entirety or in part, for use as parts or components of military items listed in the national military list that have been exported from the territory of that Member State without authorization or in violation of an authorisation prescribed by national legislation of that Member State.
Authorisation requirement on the export of dual-use items not listed in Annex I may also applies if the exporter has grounds for suspecting that those items are or may be intended, in their entirety or in part, for any of the uses mentioned above. The exporter must notify the competent authorities, which will decide whether or not it is expedient to make the export concerned subject to authorisation.
A good example for checking whether the item falls within the controlled lists might be found on the following website which is heading to assist and available for the exporters: https://www.ecochecker.bis.gov.uk/spirefox5live/fox/spire/ /
If you have any doubt whether an item or a technology is a dual-use one, you may submit a classification request to the Department “Internationally Controlled Trade and Security” at the Ministry of Economy, Energy and Tourism for classification of items or technologies in compliance with Council Regulation 428/2009, its subsequent amendments and other relevant acts.
You have to fill in a form of a Classification request and enclose the documents enlisted therein. The above mentioned forms and documents should be submitted at the Ministry of economy, room No 4, Lege Str., Sofia.
The classification will be prepared within five days of the date of the request submission.