BIS Issues EAR Updates, Revisions From 2021 Wassenaar
The Bureau of Industry and Security announced a range of updates to its export regulations stemming from agreements made during the 2021 Wassenaar Arrangement plenary meeting, including revisions to the Commerce Control List and the license exceptions Adjusted Peak Performance (APP) and Strategic Trade Authorization (STA). The agency also made several corrections to the Export Administration Regulations, including to align the scope of its Significant Item (SI) license requirements throughout the EAR.
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The changes come about six months after BIS implemented the first set of export control changes from Wassenaar’s 2021 plenary, which placed new license requirements on four technologies that can be used to produce advanced semiconductors and gas turbine engines (see 2208120038). This latest round, announced in a final rule released Feb. 23, implements the “remaining controls” agreed to by the regime’s members, with some control updates taking effect Feb. 24 and others effective March 14.
The revisions affect CCL categories 0, 1, 2, 3, 4, 5, 6, 7 and 9, including by adding two “explosives” under category 1; raising the “control threshold" for certain “digital computers” controlled under Category 4; and clarifying the scope of controls for certain items used for “non-cryptographic ‘information security” under category 5. The updates also added aircraft “‘specially designed’ or modified to be air-launch platforms for ‘sub-orbital craft’” to a category 9 control; broadened the control of certain manufacturing equipment, tooling or fixtures in category 9; amended the definitions for “compensation systems” and “diffusion bonding”; and more.
The update made several changes to license exceptions, including APP, which authorizes exports of certain high-performance computer products and technology. The exception was updated to raise the eligibility levels for deemed exports of “technology” and “software” source code destined to foreign nationals of Computer Tiers 1 and 3 Countries. BIS said it raised the eligibility level after receiving recommendations from industry groups, adding that the changes will “better enable the advancement” of activities in “the area of computer manufacturing, which in turn promotes advancements in military technology that bolster the national security of the United States.”
License Exception STA, which authorizes certain exports to trusted U.S. allies if the foreign importer certifies that they won’t reexport the item outside a list of STA countries, was updated to harmonize this license exception with a “special condition” under Export Control Classification Number 9B001. That condition states that the license can’t be used for nations in Country Group A:6. BIS said the change “aligns” with its goal of clarifying availability restrictions for STA.
The change also is “responsive to a public comment received” from an October 2021 proposed rule that sought to expand restrictions on the license (see 2110210019), BIS said. The agency said it’s “reviewing other public comments that it received in response to that rule and will address them in a separate final rule at a future date.”
All exports that now require a license as a result of the changes that were aboard a carrier to a port as of Feb. 24 may proceed to their destinations under the previous eligibility without a license as long as they are exported before April 18, BIS said. Any items not exported by midnight April 18 will require a license.