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When is an item or a technology classified as dual-use? |
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CLASSIFICATION OF DUAL-USE ITEMS AND TECHNOLOGIES
In the sphere of export control Bulgaria follows a consistent policy of adherence to the internationally adopted principles and commitments in this field. Our country is a member of all international regimes for export control and non-proliferation of weapons of mass destruction (the Wassenaar Arrangement, the Missile Technology Control Regime, the Nuclear Suppliers Group and the Zangger Committee) and as a member of the EU it actively participates in the working groups on conventional arms exports (COARM) and dual-use items and technologies at the Council of the EU and the European Commission. Bulgaria submits regularly data for the general and specific information exchange within the framework of those organizations and regimes and thus contributes to the principles of enhancing transparency in arms and dual-use items transfers.
Council Regulation No 428/2009 of 5th May 2009is the basic legal act setting up a Community regime for control of exports of dual-use items and technologies. On the basis of the Council Regulation 1334/2000 and its subsequent amendments as well as numerous acts and decision of the EC and the international regimes in the field of the export controls of conventional arms and dual-use items the National Assembly of the Republic of Bulgaria adopted the Law on Export Control of Arms and Dual-use Items and Technologies on 18th January 2007 (SG, ed. 11 of 2nd Feb. 2007).
II. How to determine whether an item falls into the Lists of controlled items:
- for export, transfer and re-export, respectively, in Annex I to Council Regulation (EC) No. 428/2009
- and for import in Decree (CoM) 213/2008.
Firstly, in case of export, look at 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 given dual-use items, not listed in Annex I depending on the end-user and the end-use.
For example, this is a case when the exporter has been informed by the competent authorities of the Member State in which he is established that the items in question are or may be intended, in their entirety or in part, for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons.
A similar case is the export of dual-use items not listed in Annex I if the purchasing country or country of destination is subject to an arms embargo decided by a common position or joint action adopted by the Council or a decision of the OSCE or an arms embargo imposed by a binding resolution of the Security Council of the United Nations and if the exporter has been informed by the authorities referred to in paragraph 1 that the items in question are or may be intended, in their entirety or in part, for a military end-use. For the purposes of this paragraph, “military end-use” shall mean:
(a) incorporation into military items listed in the military list of Member States;
(b) use of production-, test- or analytical equipment and components therefor, for the development, production or maintenance of military items listed in the abovementioned list;
(c) use of any unfinished products in a plant for the production of military items listed in the abovementioned list.
Catch all clause (authorization requirement) is applyed 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 authorities referred to in paragraph 1, which will decide whether or not it is expedient to make the export concerned subject to authorisation.
The Council of ministers may impose an authorization requirement on the export of dual-use items not listed in Annex I for reasons of public security or human rights considerations.
Import, Export, Transfer and Re-export
In case you need to know whether your item falls under control, you have to search for items that are comparable (similar) to yours from the Lists of the controlled items, namely:
for import: Decree (CoM) No. 213 / 2008
for export and re-export: Annex I to Council Regulation (EC) No. 428/2009
for transfer: Annex IV of Council Regulation (EC) No. 428/2009
Find which technical or functional characteristics are controlled and compare them to the characteristics given by the item manufacturer.
There are 3 options:
1. When your item has no analogue in the Lists of the controlled items.
2. When your item has analogue in the Lists for the controlled items.
It is crucial to explore all possible options and make you sure that you have studied the possible similar items and compared their technical characteristics.
For example if you want to export CNC turning machine, starting from p. 2B001 of Annex I to Council Regulation (EC) No. 1334/2000 you will see that subject to control are:
2B001 Machine tools and any combinations of them for removing (or cutting) of metals, ceramics or „composites” that according to the manufacturer’s technical specification can be equipped with digital control electronic devices “DPC/CNC” and specially manufactured equipment as follows:
NOTE: SEE ALSO 2B201./when you find a reference of this type, you must follow the controlled characteristics there prior to drawing the conclusion whether dual-use items or not/.
Note 1: 2B001 does not control machine tools, specifically limited to the manufacturing of gears. For such machines see 2B003
Note 2: 2B001 does not control machine tools, specifically limited to the manufacturing of one of the following parts:
a. crank and cam shafts
b. tools or cutters
c. extruder worm shaft
d. engraved or facetted jewelry parts
Note 3: Processing machines, having at least two of the three capabilities: turning, milling, grinding (e.g. a turning machine with a milling capability), should be compared with each sub-item from 2B001 (a,b or ñ)
In order to make the requirements more specific, you need to have in mind that there is a case in which a whole group of characteristic is controlled, and a case in which only separate characteristics are controlled
à/ all characteristics are controlled
It is important to note that in such cases the wording contains the conjunction “and”, i.e. all of the listed characteristics should be present and only then the conclusion that the item is of dual-use can be drawn.
One example: According to item 2B001 à
2B001
a. Machines for turning, having all specified characteristics:
1. Positioning accuracy along any linear axis, with “all compensations”, equal to or less (better) than 0.006 mm in compliance with ISO 230/2 (1988)4 or equivalent national standards;
and
2. One or more axes, simultaneously coordinated for contouring control;
It is clear from this example that even if your turning machine has DPC, even if it has one or more axes, simultaneously coordinated for the contouring control, if the positioning accuracy along any of the linear axis, with “all compensations” is higher than 0.006 mm (e.g. 0.007 mm) – than you will unequivocally draw the conclusion that your turning machine does not fall under control according to the meaning of the Law on Export Control of Arms and Dual-use Items and Technologies.
However, if the positioning accuracy along any linear axis, with “all compensations” is equal to or less than (better) than 0.006 mm (e.g. 0.005 mm) – then you will rightly draw the conclusion that your turning machine falls under control according to the meaning of the Law on Export Control of Arms and Dual-use Items and Technologies.
b/ a separate characteristic is controlled
Note that in such cases the wording contains the conjunction “or”, e.g. at least one of all listed characteristics should be present in order to draw the conclusion that the item is of dual use.
Example
2B201 Machine tools different than the described in 2B001, as follows, for removing or cutting metals, ceramics or “composites”, which, according to the manufacturer’s technical specification can be equipped with electronic devices for simultaneous “contouring control” in two or more axes:
a. Machine tools for milling, having any of the following characteristics:
1. Positioning accuracies with "all types of compensations" equal to or less (better) than 6 *m, according to standard ISO 230/2 (1988)6 or equivalent national standards, along any linear axis; or
2. Two or more contouring rotary axes;
It is clear from this example that even if the positioning accuracy with "all types of compensations " is equal to e.g. 7 *m, if the machine for milling has two or more contouring rotary axes, then you will unequivocally draw the conclusion that this milling machine falls under control according to the meaning of the Law on Export Control of Arms and Dual-use Items and Technologies.
3. When the designated purpose is controlled
Example
1A004 Protective and detection equipment and components other than the described in the control measures for military items, as follows:
IMPORTANT: SEE ALSO 2B351 and 2B352
c. Nuclear, biological and chemical (NBC) substances detection systems for the detection and identification of biological agents or radioactive materials, "designated for use in the time of war", chemical warfare agents (CW agents) and components specifically designed for them;
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 and Energy (MEE) for classification of items or technologies in compliance with Council Regulation 1334/2000, 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 may be submitted at the Ministry of economy, energy and tourism, room No 4, Lege Str., Sofia.
The classification will be prepared within five days of the date of the request submission. |
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