On May 23, 2019, the Department of Commerce, Bureau of Industry and Security (BIS), issued a final rule that added five recently developed or developing technologies that are essential to the national security of the United States to the Export Administration Regulations’ (EAR) Commerce Control List (CCL).
BIS amended four Export Control Classification Numbers (ECCNs) and added a new one. These changes were effective on May 23, 2019, and therefore have immediate impact for parties exporting the newly controlled goods. The five additions implemented changes made to the Wassenaar Arrangement List of Dual Use Goods and Technologies at the December 2018 Wassenaar Arrangement Plenary meeting. These additions are independent of the December 2018 request for comments by the BIS on criteria for identifying and defining “emerging technologies” essential to US’s national security.
Below is a summary of the additions and the reasoning provided by BIS. Before export, reexporting, or transferring commodities that may fall into these revised and new ECCNs, the full text of the entry should be reviewed.
3A001 Electronic Items
ECCN 3A001 was amended by adding paragraph b.3.f to control discrete microwave transistors ‘‘rated for operation with a peak saturated power output greater than 5 W (37.0 dBm) at all frequencies exceeding 8.5 GHz up to and including 31.8 GHz.” BIS also amended Note 1 that appears after paragraph b.3.f. so that the control status of a transistor in b.3.f. is not determined by the lowest peak saturated power output control threshold.
BIS explained that it added paragraph b.3.f. because “new microwave transistors cover wider frequency bands at higher power levels which open up new possibilities for radar and other transmitting applications.” Among other uses, “wideband semiconductors will likely be a technology used in new electrical grid and alternative energy devices, in which such semiconductors will reduce energy loss and enable longer performance life in solar and wind energy power converters and eliminate bulky grid substation transformers. In addition, these robust and efficient power components are expected to be used in high energy vehicles, including electric trains and plug-in electric vehicles. It has been predicted that wideband semiconductors will facilitate simpler and higher efficiency charging for hybrid and all-electric vehicles.”
3D005 Continuity of Operation Software
ECCN 3D005 was added to the CCL to control software that ensures continuity of operation when electronics are exposed to the Electromagnetic Pulse (EMP) or Electrostatic Discharge (ESD).
BIS explained that “research and development activities related to integrated circuit software that provides electromagnetic pulse (EMP) protective function to electronic devices is currently underway, and it is predicted that these products will be in the commercial marketplace in a few years. Because continuity of operation software would also be beneficial to military applications, it was added to the CCL in this final rule.”
ECCN 5A002 Post-quantum Cryptographic Algorithms
BIS made several changes related to cryptographic algorithms.
First, ECCN 5A002 was amended to add a control on certain types of post-quantum cryptographic algorithms. BIS added paragraph 2.c to the Technical Notes that follow paragraph 5A002.a.4 to include a new paragraph addressing certain post-quantum asymmetric algorithms.
Second, BIS revised paragraphs 5A002.a, a.4, paragraph 2 of the Technical Notes that follow paragraph 5A002.a.4, paragraph a.1.a.1.b in Note 2 to 5A002.a, and paragraph (4)(a) of Related Controls to 5A002, to replace the term “in excess of 56 bits of symmetric key length, or equivalent” with “described security algorithm.” “Described security algorithm” is used for technical accuracy since methods for establishing equivalence between modern classical and postquantum cryptography (PQC) are not settled.
Third, the Nota Bene to Note 3 (the Cryptography Note) was revised to specify that items that include post-quantum asymmetric algorithms described by the new paragraph 2.c. of the Technical Notes are subject to the classification or self-classification reporting requirements for mass market items.
Post-quantum asymmetric algorithms were added to the CCL to address concerns that when large scale quantum computers are built, they will likely undermine the security of the current cryptographic systems (symmetric algorithms based on key-length and asymmetric algorithms based on factorization of integers or on the computation of discrete logarithms). Because such algorithms are becoming increasingly common, this control was added to ensure that there is consistent treatment and a level playing field between modern classical and post-quantum cryptography.
ECCN 6A001 Acoustic Systems, Equipment and “Components”
ECCN 6A001 was amended by moving the Note previously located below Item paragraph a.2.g.4 to below the introductory Item paragraph a.2. for better readability. This Note informs the public that Item paragraph a.2 ‘‘applies to receiving equipment, whether or not related in normal application to separate active equipment, and ‘‘specially designed’’ components therefor’’. This rule also adds a Technical Note 2 after paragraph a.2.a to alert the public that underwater acoustic transducers designed to operate as passive receivers are hydrophones. This rule revises paragraph a.2.a.6 to add the parameter ‘‘and having a ‘hydrophone sensitivity’ better than - 230 dB below 4 kHz’’, to remove any transducers or hydrophones that are not of strategic concern.
“An underwater transducer that is designed to operate as a hydrophone, designed for operation below 1000 m and that has a useful sensitivity below 4 kHz, is being controlled because of its utility in Anti-Submarine Warfare (ASW).” BIS explained that “these amendments will bridge the control gap that previously treated underwater acoustic transducers and receivers separately. Newer underwater acoustic devices can more readily operate in both transmit and receive mode. The new control structure resulting from these amendments allows each aspect of these multifunction devices to be evaluated.”
ECCN 9A004 Air-Launch Platforms
ECCN 9A004 was amended by revising the Heading to add air-launch platforms. The rule added new a new Item paragraph 9A004.g, which controls ‘‘aircraft’’ ‘‘specially designed’’ or modified to be air-launch platforms for space launch vehicles (SLV). The license requirements table is revised to add 9A004.g to the NS and AT license requirements paragraphs.
Air-launch platforms were added to ECCN 9A004 because of commercial entities that are building space-bound craft that will utilize an air launch rather than traditional ground launch. “Originally, military aircraft were used for air-launched rockets to carry satellites specifically for military applications. Now, air-launch platforms allow the use of specialized commercial aircraft instead of rockets or military aircraft to facilitate the transport and launch of commercial satellites. The increase in commercial space activities has commercial satellite owners and space tourism companies moving toward air-launch platforms to support their endeavours. [sic]”