Alerts and Updates
Commerce Department's Bureau of Industry and Security Issues New Controls on Emerging Technologies
May 29, 2019
The final rule adds to the CCL five recently developed or developing technologies that BIS describes as "essential to the national security of the United States."
On May 23, 2019, the U.S. Department of Commerce Bureau of Industry and Security (BIS) published in the Federal Register, Vol 84, No. 100, certain revisions, additions, amendments and modifications to the Export Administration Regulations Commerce Control List (CCL). Effective immediately, this final rule implements certain changes to the Wassenaar Arrangement List of Dual-Use Goods and Technologies that specifically address issues pertaining to certain emerging technologies that are essential to the national security of the United States.
The final rule contains numerous complex, technical specifications for covered items, including software. Due to these complexities, impacted companies should consider consulting technical advisors as well as the BIS contact persons identified in the Federal Register notice and listed at the end of this Alert.
The final rule adds to the CCL five recently developed or developing technologies that BIS describes as "essential to the national security of the United States: discrete microwave transistors [with specified operational ratings] (a major component of wideband semiconductors), continuity of operation software, post-quantum cryptography, underwater transducers designed to operate as hydrophones, and air-launch platforms."
Discrete Microwave Transistors
Under the category electronic items, BIS states that certain discrete microwave transistors with specified operational ratings are to be controlled under ECCN 3A001’s new section b.3.f. The applicable license requirement note, listed exemptions and license exception requirements are set forth within the amended ECCN 3A001.
Continuity of Operation Software
BIS has also added a new ECCN 3D005 to cover continuity of operation software. This ECCN covers software specially designed to restore normal operation of a microcomputer, microprocessor microcircuit or microcomputer microcircuit within one-thousandth of a second after an electromagnetic pulse (EMP) or electrostatic discharge (ESD) disruption, without loss of continuation of operation. Please refer to the new ECCN 3D005 for technical details.
With respect to information security, BIS has revised ECCN 5A002—information security systems, equipment and components—to add controls on certain post-quantum cryptographic algorithms (paragraph 2.c of the technical notes that follow EECN 5A002.a.4). For complete details concerning this category of product and the new controls, please refer to pages 23887, and 23894 through 23896 of the Federal Register notice.
The final rule has revised ECCN 6A001, relating to certain acoustic systems, equipment and components. BIS advises that underwater transducers designed to operate as a hydrophone below 1,000 meters and with certain “useful sensitivity” must be controlled because of its utility in anti-submarine warfare. For full details concerning this class of items, please refer to the Federal Register notice, pages 23887, and 23896 through 23898.
The final rule also revises ECCN 9A004 which covers a range of space launch vehicles and spacecraft, payloads, on-board systems or equipment, and a new addition: air-launch platforms. BIS has revised its license requirements table to add 9A004.g to the national security (NS column 1) and anti-terrorism (AT column 1) license requirements paragraph. There are no list-based license exceptions; however, transaction-based license exceptions may be available pursuant to part 740 of the EAR.
BIS Contact Information
Category 3 (electronics): Brian Baker – 202.482.5534
Category 5 (information security): Aaron Amundson or Anita Zinzuvadia – 202.482.0707
Category 6 (acoustic projector/transducer): Michael Tu – 202.482.6462
Category 9 (satellites): Michael Tu – 202.482.6462
For More Information
If you have any questions about this Alert, please contact Brian S. Goldstein, Sandra A. Jeskie, any member of our International Practice Group or the attorney in the firm with whom you are regularly in contact.
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