U.S. Commerce Department Implements Export Controls on Four New Emerging and Foundational Technologies

On August 15, 2022, the Department of Commerce’s Bureau of Industry and Security (BIS) published an interim final rule introducing new controls on four “emerging and foundational technologies” that were identified during the December 2021 plenary meeting of the multilateral Wassenaar Arrangement. These items are two substrates of ultra-wide bandgap semiconductors (gallium oxide and diamond), electronic computer aided design (ECAD) software specially designed for the development of integrated circuits with Gate-All-Around Field-Effect Transistor (GAAFET) structure, and pressure gain combustion (PGC) engine technology for the production and development of gas turbine engines.

The new controls were implemented effective on August 15, 2022, with the exception of the controls for ECAD software, which will be effective on October 14, 2022. BIS has requested public comments only on the new ECAD controls, which are due by September 14, 2022.

Scope of Export Controls
Section 1758 of the Export Control Reform Act of 2018 (ECRA) authorizes BIS to control the export, reexport, or transfer (in-country) of emerging and foundational technologies that are essential to the national security of the United States (“Section 1758 technologies”). ECRA also directs the U.S. Government to propose that such technologies be added to multilateral control regimes, such as the Wassenaar Arrangement lists, which are regularly updated. In the Federal Register notice announcing the new rule, BIS explained that during the December 2021 plenary meeting of the Wassenaar Arrangement, participating governments had agreed to add these four technologies to the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies—meaning that other countries should be adopting similar restrictions. BIS further explained that it decided to move forward with implementing the controls on an expedited basis because they are Section 1758 technologies. BIS stated that it intended to implement other decisions made by the Wassenaar Arrangement in a separate rule.

The four newly controlled Section 1758 technologies include the following:

(1) Gallium oxide (Ga2O3) substrate and (2) diamond substrate that enable semiconductors to work under severe conditions (e.g., at higher voltages or higher temperatures);

(3) ECAD software specially designed for the development of integrated circuits or printed circuit boards with GAAFET structures; and

(4) PCG engine technology that can improve the efficiency of gas turbine engine components or systems, including those used in rockets and hypersonic systems.

To address these technologies, BIS revised five export control classification numbers (ECCNs) and added one ECCN to the CCL:

• Ga2O3 and Diamond substrates are addressed in ECCNs 3C001.d-f, 3C005.a and .b, 3C006, and 3E003 (effective on Sept. 14, 2022);
• ECAD software for the development of integrated circuits having any GAAFET structure is covered by newly added ECCN 3D006 (effective on Oct. 14, 2022); and
• PGC Technology for gas turbine engines is addressed by 9E003.a.2.e (effective on Sept. 14, 2022).

The newly added Section 1758 technologies are controlled for national security and anti-terrorism reasons. License exceptions will be available for some destinations, but a license will be required for a number of countries.

Request for Comments
As noted above, BIS also has requested public comment on its implementation of controls on the ECAD software. BIS stated that it is “particularly interested in description of software features or functions that assists the designer to optimize interconnects, synthesis, placements & routes, multicorner multi-mode, timing/clock-tree, power and thermal, or signal integrity necessary for GAAFET circuits.” BIS also specifically invited comments on license exception eligibility, notes that may clarify the scope of the control, recommendations to overcome compliance difficulties and recommendations for future revisions of the control text to keep up with technological advancements.

Comments regarding the implementation of ECCN 3D006 must be received by BIS no later than September 14, 2022.