BIS Issues Six New Emerging Tech Controls Agreed to at Wassenaar

• Hybrid additive manufacturing (AM)/computer numerically controlled (CNC) tools
• Computational lithography software designed for the fabrication of extreme ultraviolet (EUV) masks
• Technology for finishing wafers for 5nm production
• Digital forensics tools that circumvent authentication or authorization controls on a computer (or communications device) and extract raw data
• Software for monitoring and analysis of communications and metadata acquired from a telecommunications service provider via a handover interface
• Sub-orbital craft.

The final rule, which takes effect Oct. 5, also makes several technical changes to the Export Administration Regulations, including a correction to one Export Control Classification Number, a revision of three other ECCNs and changes to one license exception. All exports, reexports and in-country transfers that now require a license as a result of the changes but are aboard a carrier to a port as of Oct. 5 will be able to proceed to their destinations under the previous eligibility as long as they are exported, reexported or transferred by Dec. 4, BIS said. Any items not exported, reexported or transferred before midnight on Dec. 4 will require a license.

The first control on additive manufacturing and certain machine tools was added because BIS has seen a recent increase in machine tool manufacturers adding “more functionality” to their products. The agency said manufacturers have integrated “additive manufacturing and 5-axis computer numerically controlled (CNC) machines” over the last several years. Goods captured under this new control will require an export license to certain countries for national security reasons, BIS said. These items will be eligible for License Exception STA (Strategic Trade Authorization) and “any applicable transaction-based license exceptions.”

A second control was designed to update restrictions on emerging “Electronic Design Automation (EDA) or computational lithography software” developed for extreme ultraviolet masks, BIS said. The software will require export licenses for certain countries for national security reasons and anti-terrorism reasons and will be eligible for license exceptions TSR (Technology and Software Under Restrictions), STA and other transaction-based license exceptions.

The third control will restrict technology for the production of “substrates for high-end integrated circuits,” BIS said. The agency said the control specifications are “an appropriate parameter to control the minimum guaranteed quality for the production of high-end integrated circuits designed for feature size of 5 nm or less taking into account the yield rate for integrated circuit production.” The technology will require an export license for certain countries for national security reasons and anti-terrorism reasons and will be eligible for license exception TSR, STA and other transactions-based license exceptions.

The next restriction adds an export control for “digital forensics or investigative tools” by targeting items that “circumvent authentication or authorization mechanisms and extract raw data from a computer or communications device,” BIS said. Although these items were once “primarily” used by law enforcement, they are now increasingly being used by militaries to “extract time-critical information from devices found on the battlefield,” BIS said. The agency said it is aiming to control items “that can quickly analyze a device and recover protected information,” but is not intending to control items “that extract data that is completely unprotected on a device; nor is it intended to capture production or test equipment, system administrator tools, or tools that are used for retail purposes,” such as unlocking cell phones. The control requires an export license to certain countries for national security and anti-terrorism reasons, and an “encryption item (EI) license requirement” applies, BIS said. The item is eligible for License Exception LVS (Limited Value Shipment) and ENC (Encryption Commodities, Software, and Technology).

The fifth control restricts software specially designed or modified for use by law enforcement “to analyze the content of communications acquired from a handover interface.” BIS said the software can be used by “international actors” in ways “contrary” to U.S. national security and must meet certain parameters in order to fall under the export control. BIS clarified that the control does not restrict exports of “network management tools or banking software.” The software is eligible for License Exception STA and eligible for exception TSR for Country Group A:5 countries.

The final control restricts exports of sub-orbital aircraft, or aircraft “designed to operate above the stratosphere and land on Earth without completing an orbit.” BIS stressed that the control does “not meet the definition” of spacecraft, which is “limited to satellites and space probes.” The agency also said certain types of suborbital aircraft may already be controlled as space launch vehicles, but “an overall space launch system may consist of several stages, one of which may be a re-usable spaceplane. This item would generally not be considered a space launch vehicle.” The aircraft will be eligible for License Exception STA and may be eligible for License exception LVS at $1,500.

A BIS spokesperson previewed the controls Oct. 1 after the Republican-led China Task Force criticized the agency for taking too long to issue emerging technology controls under the Export Control Reform Act (see 2010010020). BIS said it plans to issue more controls from the Wassenaar’s 2019 plenary in a separate rule.