International Law Advisory - Certain Toxic Gas Monitoring Systems No Longer Subject to Chem-Bio Export Controls

On December 23, 2004, the Bureau of Industry and Security (BIS) of the Department of Commerce published a final rule to amend the Export Administration Regulations (EAR) by revising the Commerce Control List (CCL) entry that describes controls on certain toxic gas monitoring systems to conform with the Australia Group (AG) control list.  The AG is a multilateral forum, consisting of 38 participating countries that maintains export controls on a list of chemicals, biological agents and related equipment and technology that could be used in chem-bio weapons programs.  Periodically the AG reviews and revises its control list.

The final rule removes a technical note contained in ECCN 2B351 that contained an overly broad description of the types of toxic gas monitoring systems and detectors subject to chemical/biological (CB) controls under the EAR.  The note covered a number of toxic gas monitoring systems and detectors not included on the AG control list, e.g., environmental air pollution detectors, anesthetic gas monitors for patients and sulfur hexaflouride detectors -- all of which have a detection capability for chemicals which contain phosphorus, sulfur, flourine or chlorine, but are not separately controlled under ECCN 1C350 (which contains a list of chemicals that may be used as precursors for toxic chemical agents).  

By removing the technical note, the final rule eliminates the CB license requirement for these systems, although such systems may still require a license for reasons specified elsewhere in the EAR (e.g., embargoes, end-use and end-user restrictions, etc.)  Significantly, that means that in most instances these items may now be shipped to China and India, among other locations, without an export license.  Other toxic gas monitoring systems previously covered by ECCN 2B351 continue to require a license, for CB reasons, to certain destinations.(e.g., systems designed for continuous operation that are capable of detecting chemical warfare agents or any of the chemicals controlled under ECCN 1C350 (including those containing phosphorous, sulfur, fluorine or chlorine) at concentrations of less than .3 mg per cubic meter and systems designed for the detection of cholinesterase-inhibiting activity).

If you have questions regarding this rule, or regarding the export of chemicals and biological agents generally, please feel free to contact Ed Krauland at (202) 429-8083 or Sara Beth Watson at (202) 429-6640.