Semiconductor Companies Seek Clarity on New BIS ECAD Software Control

The Bureau of Industry and Security should clarify a number of items related to its new upcoming export controls on certain electronic computer-aided design (ECAD) software (see 2208120038 and 2208250036), including its definition for “specially designed,” semiconductor companies told the agency in comments this month. BIS should also consider updating other areas of the control, some said, including making it eligible for License Exception TSR (Technology and software under restriction).

Several companies sought more clarity around the term “specially designed,” including American electronic design automation (EDA) company Synopsys. The company said BIS should “publish a clarification,” either in another rule or in guidance, that confirms “EDA software may be ‘released’ from control under” the new ECAD software restriction “pursuant to Paragraphs (b)(3) and (b)(4) of the definition of ‘specially designed’ in Section 772.1” of the Export Administration Regulations.

Synopsis additionally filed with Cadence and Siemens, saying BIS should publicly confirm how the definition for specially designed in the EAR should be applied to the control, which will be classified under Export Control Classification Number 3D006. The companies specifically said BIS should clarify how “specially designed” should “be applied to ECCN 3D006 analyses of software that is and is not common to developing integrated circuits that do not have” Gate-All-Around Field-Effect Transistor (GAFFET) structures.

“BIS’s response to this binary and threshold question will improve the accuracy of classification self determinations,” the companies said in a joint comment with Synopsys. “It will also help exporters make decisions about whether commodity classification requests are needed to resolve any ambiguities about specific products.”

STMicroelectronics, a global semiconductor company with headquarters in Switzerland and the U.S., said it also “identified challenges of clarity” around the definition “specially designed” in the EAR, including how it correlates to the EU’s dual-use export regulations. While the EAR’s definition is “complex and applies in different ways to all types of items, such as end items, systems, components, parts, accessories, attachments, and software,” the EU has no “standard” definition for “specially designed,” the company said, adding that it’s “subjective to all EU Member State Agencies interpretations.”

“We, along with other industry partners, respectfully request that BIS clarify and confirm that certain ‘ECAD’ ‘software’ will not be described as ‘specially designed’ for the ‘development’ of integrated circuits having a ‘GAAFET’ structure and may also not be ‘specially designed’ for implementing ‘RTL’ to ‘GDSII’ or equivalent standard, or ‘specially designed’ for the optimization of power or timing rules,” STMicroelectronics said. The company asked BIS to clarify the definition in another rule or a set of frequently asked questions.

In another set of comments, a group of semiconductor companies also requested “confirmation that certain ‘ECAD’ ‘software’ ‘specially designed’ for the development of integrated circuits having a ‘GAAFET’ structure may be ‘released’ from control under ECCN 3D006 pursuant to the definition of ‘specially designed.’” The companies, which submitted the comments under the Ad Hoc Working Group on Item 3D6, which they formed after the multilateral Wassenaar Arrangement added the software to its control list last year, also asked BIS to clarify a range of other issues, including which countries will be eligible to receive the ECAD software and which license exceptions are available.

The working group, along with individual comments submitted by STMicroelectronics and Synopsys, urged BIS to make the ECAD software eligible for License Exception TSR. “Approximately 5,000 to 10,000 companies worldwide are customers of the three leading EDA software companies,” the working group said. “Therefore, these customers, many of whom are the chip designers using the EDA software, could require a license to receive software classified under ECCN 3D006 in the future when and if such ‘specially designed’ software is identified.” Synopsys said “users of software classified under ECCN 3D006 have global operations, and License Exception TSR is sufficient to protect the national security interests associated with exporting this software.”

The working group also said BIS and other U.S. agencies should “consider the implications of software piracy” by the destination country when reviewing export license applications. There is an “undisputed prevalence of software piracy” around the world, the working group said. “Pirated software retains all of its essential capabilities and characteristics,” the group said, “but with the important difference that the ultimate end user may not adhere to export licensing controls under the EAR.”

In its nine-page submission, the group also listed suggestions for “alternative language” in the BIS rule, suggestions “with respect to technical notes” and other recommendations.