BIS Updates Commerce Control List Provisions for New Technologies

The Commerce Department’s Bureau of Industry and Security is adding five new national security-related technologies to the Export Administration Regulations’ Commerce Control List, according to a notice in the Federal Register. The additions stem from changes made to the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies agreed to during the 2018 Plenary meeting, the notice said. The changes add “recently developed or developing technologies” that are “essential” to U.S. national security: “discrete microwave transistors,” “continuity of operation software,” “post-quantum cryptography,” “underwater transducers designed to operate as hydrophones” and “air-launch platforms.” The notice is scheduled for publication and the changes take effect on May 23.

All shipments of products that were removed from license exception eligibility, or eligibility to export without a license, as a result of this notice that were “on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier” to a foreign destination on or before May 23 may proceed to the destination, the notice said. This is allowed under the condition that the products have been exported or re-exported within 60 days of the notice’s publication in the Federal Register, i.e., by July 22. Any products that do not meet these requirements require a license.

The notice amends Export Control Classification Number 3A001 to control “discrete microwave transistors” with certain frequency conditions. BIS said that new microwave transistors cover “wider frequency bands at higher power levels” than older devices, “opening up new possibilities for radar and other transmitting applications.” The transistors have civilian uses, such as in cell phone “base stations” and weather radars, the notice said, but they also have military uses, such as “fire control radars, decoys and jammers.” The discrete microwave transistors are also increasingly used in “wideband semiconductors,” BIS said. The transistors are subject to national security, regional stability and anti-terrorism license requirements, the notice said, except if they are exported or re-exported in “civil telecommunications applications.” BIS said “transactions-based license exceptions” may be allowed, depending on the transaction.

The notice also adds new ECCN 3D005 to control “software that ensures continuity of operation when electronics are exposed to Electromagnetic Pulse (EMP) or Electrostatic Discharge (ESD).” Although research and development related to software that offers protection from EMPs and ESDs is still ongoing and availability in the commercial marketplace is a “few years” away, BIS said it is adding the software to the CCL because it could be “beneficial to military applications.” The software is subject to national security and anti-terrorism license requirements, BIS said, and a license is “required worldwide, except for Canada.” No “list-based exceptions are applicable,” BIS said, but “License Exception Strategic Trade Authorization” is available for certain countries.

The notice amends ECCN 5A002 to control “certain types of post-quantum cryptographic algorithms.” The changes are being made for “technical accuracy,” the notice said, because “methods for establishing equivalence between modern classical and post-quantum cryptography (PQC) are not settled.” The rule also revises a note that certain items that include post-quantum asymmetric algorithms are “subject to the classification or self-classification reporting requirements for mass market items.” The control is being added because cryptography researchers are trying to develop new algorithms that “resist attacks” from quantum computers, the notice said. BIS said there is a possibility that if “large scale quantum computers are built,” they will “likely undermine the security of current cryptographic systems.” As a result, a goal of post-quantum cryptography is to “develop and deploy quantum-resistant algorithms well in advance of a potential attack from a quantum computer.” The algorithms are being added to the CCL to ensure “consistent treatment and a level playing field between modern classical and post-quantum cryptography,” BIS said. The algorithms are subject to national security, anti-terrorism and encryption items license requirements, the notice said. BIS said “no changes to License Exception ENC are required to accommodate this change,” and products with post-quantum algorithms described by this control are “treated the same under License Exception ENC as products using classical algorithms.”

ECCN 6A001 is amended to clarify that “underwater acoustic transducers designed to operate as passive receivers are hydrophones.” Any underwater transducer that is designed as a hydrophone and that operates under certain conditions is controlled because of its potential use in anti-submarine warfare, BIS said. The transducers are subject to national security and anti-terrorism license requirements, the notice said, and “License Exception Low Value Shipment” may be available depending on the “operating frequency.” BIS also said “License Exception Strategic Trade Authorization and transaction-based license exceptions” may also be available depending on the transaction and destination.

BIS also is amending ECCN 9A004 to add “air launch platforms” to the heading. The amended ECCN now also controls specially designed aircraft modified to “be air-launch platforms for space launch vehicles,” BIS said. The air launch platforms are being added, BIS said, because commercial companies are building “space-bound craft that will utilize an air-launch rather than traditional ground launch” and because the “increase in commercial space activities” is pushing space-related companies toward launch platforms. The new control expands existing space-launch controls to include this “developing technology,” the notice said. The air launch platforms are subject to national security and anti-terrorism license requirements, BIS said. There are no list-based exceptions, the notice said, “but transaction-based license exceptions may be available.”