Commerce Control List Additions and Revisions; Implementation of Controls on Advanced Technologies Consistent With Controls Implemented by International Partners

SUPPLEMENTARY INFORMATION:

I. Background

In remarks made on February 4, 2021, regarding America's place in the world, President Biden noted that America's alliances are some of our greatest assets and that leading with diplomacy means standing shoulder to shoulder and working closely with our allies and key partners, thereby protecting the world against those who do not share our values. This is especially true in export controls, as controls adopted by supplier countries, working together, are typically the most effective path to protect our national security and advance our foreign policy objectives. This is reflected in the Statement of Policy in the Export Control Reform Act of 2018 (ECRA): export controls that are multilateral are the most effective (50 U.S.C. 4811(5)).

BIS seeks to achieve these objectives by harmonizing controls with like-minded countries. Accordingly, the United States is implementing new controls, including a limited number of deemed export requirements in the sectors of quantum computers, materials, and related electronic assemblies; aerospace technology; and integrated circuit “development” or “production.” With this rule, BIS imposes controls on items in these categories that warrant export controls because of national security concerns. Given the national security basis for these controls, BIS is implementing them immediately through an interim final rule. These controls are consistent with controls implemented by several international partners. While not currently controlled by the relevant multilateral regime, pursuant to ECRA Section 1758(c)(1), the United States shall pursue addition of these technologies to the list of items controlled by the relevant multilateral export control regime.

To identify items for which controls are harmonized with the Implemented Export Controls (IEC) of international partners, and to distinguish between such items and those items controlled through multilateral regimes, BIS is establishing a new framework in the EAR.

• IEC items will be identified in the 900 series of the CCL,i.e., in Export Control Classification Numbers (ECCNs) for which the third digit is a 9 and the fourth digit is a number from 0 to 7 ( e.g., 3A901). Such items have worldwide license requirements and more limited license exception availability as compared to the ECCNs implementing multilateral regime controls.
• License Exception IEC will authorize exports and reexports to specified destinations whose governments have implemented equivalent controls on the same items as the United States.
• Finally, this rule amends certain existing ECCNs where the proposal applied to an existing ECCN and it would have been more confusing to the public to create a separate ECCN,e.g., ECCN 3B001. For these items, rather than establish new ECCNs, BIS is revising the item's current ECCN, even if such entry was initially adopted as a multilateral ECCN.

BIS encourages the public to comment on: (1) this framework for IEC, especially as it may impact supply chains and compliance programs; (2), the scope and clarity of the new ECCNs; and (3) the scope of the license exceptions.

BIS also seeks public comment on the deemed export requirements in this rule and the potential impacts that a deemed export control would have if it was applied to the quantum items and the General License in General Order no. 6 in paragraph (f)(3) in supplement no. 1 to part 736 were removed in this rule or at a future date. Specific illustrative questions are included below in section II.G.vii.

II. Details of Revisions to the EAR

A. Supplement No. 1 to Part 736—General Order No. 6—General License

BIS adds General Order No. 6 to implement three authorizations in paragraph (f) of supplement no. 1 to part 736 of the EAR.

A GAAFET General License (GL) is implemented in paragraphs (f)(1) and (f)(2) to support the U.S. technology leadership through ongoing collaboration with established partners in allied countries, i.e., when that “development” or “production” began to be performed on or prior to September 6, 2024. In paragraph (f)(1), this GL authorizes exports, reexports, and transfers (in-country) to certain end users in destinations specified in Country Groups A:5 and A:6 in supplement no. 1 to part 740 of the EAR. The GL does not authorize deemed exports and reexports, because deemed exports and reexports to these countries are excluded from NS and RS controls under §§ 742.4(a)(5) and 742.6(a)(10) of the EAR.

In paragraph (f)(2), the GL does, however, authorize deemed exports or deemed reexports of “technology” specified in ECCN 3E905 (including for future advancements or versions of the same “technology”) to foreign person employees or contractors already employed by entities as of September 6, 2024 whose most recent country of citizenship or permanent residency is a destination specified in Country Group D:1 or D:5, and who are not prohibited persons under part 744 of the EAR.

In paragraph (f)(3), the General License authorizes deemed exports or deemed reexports of quantum “technology” and “software” to foreign persons whose most recent country of citizenship or permanent residency is a destination specified in Country Group D:1 or D:5 and who are not prohibited persons under part 744 of the EAR.

These authorizations in paragraph (f) are subject to annual reporting requirements in (f)(4), end-use and end-user restrictions in paragraph (f)(5), and recordkeeping requirements in paragraph (f)(6).

B. § 738.2 Commerce Control List (CCL) Structure

BIS is revising paragraph (d) to revise the explanation of the composition of an Export Control Classification Number (ECCN), especially focusing on the meaning of the digits in the ECCN. The 500 series is currently being utilized to cover firearms in the 0x5xx ECCNs and “Spacecraft” in 9x515 ECCNs. The new ECCNs that establish controls implemented by partners are now being placed in the 900 series ECCNs. Crime control and short supply controls have long shared the 980-989 series of ECCNs. Lastly, the 990-999 series ECCNs are being used for unilateral Anti-terrorism (AT), Regional Stability (RS), and United Nations Sanctions (UN) controls. BIS notes that while this is the overall structure of an ECCN, there will be the rare exception, e.g., ECCN 3B001, because there are some items mirroring controls by allies rather than pursuant to the formal multilateral regime controls.

C. § 740.2 Restrictions on all License Exceptions

BIS is amending § 740.2 by adding paragraph (a)(22) to restrict the use of all license exceptions other than License Exceptions IEC, TMP, RPL, GOV, and TSU for the items described herein. License Exception IEC is available for exports, reexports, or transfers (in-country) of eligible items (currently ECCNs 2B910, 2D910, 2E903, 2E910, 3A901, 3A904, 3B001.c.1.a, 3B001.c.1.c, 3B001.q, 3B903, 3B904, 3C907, 3C908, 3C909, 3D001 (for 3B001.c.1.a, 3B001.c.1.c, 3B001.q), 3D002 (for 3B001.c.1.a, 3B001.c.1.c), 3D901, 3D907, 3E001 (for 3B001.c.1.a, 3B001.c.1.c, 3B001.q), 3E901, 3E905, 4A906, 4D906, and 4E906) to the eligible destinations specified in § 740.24 of the EAR. Section 740.2(a)(22) further specifies that such items may only be exported to other destinations pursuant to TMP, restricted to eligibility under the provisions of § 740.9(a)(3) and (6); RPL, under the provisions of § 740.10; GOV, restricted to eligibility under the provisions of § 740.11(b); or TSU under the provisions of § 740.13(a) and (c).

D. § 740.24 Implemented Export Controls (IEC)

i. Country Scope

BIS is implementing license exception eligibility for specified countries that have implemented equivalent technical national controls for specific items, in accordance with License Exception IEC Eligible Items and Destinations which is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. This material is available for inspection on the BIS website.

This authorization supports collaboration and innovation in those technologies for countries that have implemented equivalent technical parameters for these items in their export controls.

ii. Product Scope

Therefore, BIS is adding License Exception IEC to authorize exports and reexports to and among, and transfers (in-country) within, specified countries that have implemented export controls for items subject to the NS worldwide controls in newly added § 742.4(a)(5) and the RS worldwide controls in newly added § 742.6(a)(10). See description below in the national security and regional stability sections about these newly added paragraphs. Currently these items include the following ECCNs: 2B910, 2D910, 2E903, 2E910, 3A901, 3A904, 3B001.c.1.a, 3B001.c.1.c, 3B001.q, 3B903, 3B904, 3C907, 3C908, 3C909, 3D001 (for 3B001.c.1.a, 3B001.c.1.c, 3B001.q), 3D002 (for 3B001.c.1.a, 3B001.c.1.c), 3D901, 3D907, 3E001 (for 3B001.c.1.a, 3B001.c.1.c, 3B001.q), 3E901, 3E905, 4A906, 4D906, and 4E906. For ease of reference, the CCL entry for each of these ECCNs indicates “IEC: Yes” in the respective license exception section and references § 740.2(a)(22) and § 740.24 of the EAR. License Exception IEC Eligible Items and Destinations will be revised on the BIS website as additional countries implement these controls.

ECCNs eligible for License Exception IEC state “IEC: Yes” in the List-based License Exception paragraph of the ECCN. These items are controlled for export and reexport worldwide for national security reasons under § 742.4(a)(5), for regional stability reasons under § 742.6(a)(10), and for anti-terrorism reasons to destinations specified in AT column 1 in supplement no. 1 to part 738 of the EAR.

iii. Incorporation by Reference: Eligibility Table Entitled “License Exception IEC Eligible Items and Destinations”

License Exception IEC eligibility is based on implementation of export controls for the items described in License Exception IEC Eligible Items and Destinations (incorporated by reference and available on the BIS website at https://www.bis.gov/articles/license-exceptions#license-exception-IEC-eligibility ) by specified countries that have implemented equivalent technical parameters for these items in their export controls that substantially align with those implemented by the United States. License Exception IEC Eligible Items and Destinations identifies the items authorized under License Exception IEC to be exported, reexported, or transferred (in-country) to, among, or within the countries that have implemented export controls for these items. See paragraph § 740.24(c) for specific information about the incorporate by reference approval.

E. § 742.4 National Security

BIS adds paragraph (a)(5) to set forth a worldwide license requirement for national security reasons when an ECCN references § 742.4(a)(5) in an NS license requirement paragraph in the license requirement table of the ECCN. This rule also adds paragraph (b)(10) to set forth the license review policy for the items in paragraph (a)(5), which is a presumption of approval when the export or reexport is to a country in Country Group A:1 of supplement no. 1 to part 740 of the EAR. For exports or reexports of such items to destinations specified in Country Group D:1 or D:5, license applications will be reviewed with a presumption of denial. A case-by-case review policy will be applied for such items to all other destinations, to assess the risk that the export or reexport would contribute to the military potential of a country specified in Country Group D:1 or D:5 or to the destabilization of the region to which the item is destined. These items are also subject to regional stability and anti-terrorism controls. ECCNs currently subject to this NS control are: 2B910, 2D910, 2E903, 2E910, 3A901, 3A904, 3B001.c.1.a, 3B001.c.1.c, 3B001.q, 3B903, 3B904, 3C907, 3C908, 3C909, 3D001 (for 3B001.c.1.a, 3B001.c.1.c, 3B001.q), 3D002 (for 3B001.c.1.a, 3B001.c.1.c), 3D901, 3D907, 3E001 (for 3B001.c.1.a, 3B001.c.1.c, 3B001.q), 3E901, 3E905, 4A906, 4D906, and 4E906.

There is a 60-day delayed compliance for exports, reexports, and transfers (in-country) for quantum items specified in ECCNs 3A901, 3A904, 3B904, 3C907, 3C908, 3C909, 3D901 (for 3A901.b, 3B904), 3E901 (for 3A901, 3A904, 3B904, 3C907, 3C908, 3C909), 4A906, 4D906, or 4E906 controls to destinations in Country Group A:1; see compliance date at the beginning of the rule. This delay in compliance is to allow for submission and processing of license applications or implementation of internal compliance procedures on items covered by these ECCNs.

License requirements for deemed exports and deemed reexports for national security and regional stability controls are discussed in Section G of this rule, as the license requirements are identical for both.

F. § 742.6 Regional Stability

Generally, regional stability controls are not added in conjunction with national security controls for conventional weapons-related items, because the controls are agreed upon unanimously by a multilateral regime. However, the additional CCL controls BIS is implementing in this rule have not yet been adopted by the relevant multilateral regime. Therefore, BIS is also unilaterally controlling these items for regional stability reasons at this time. Exporters should also note 50 U.S.C. 4565(a)(6), which defines “critical technologies” for purposes of the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS). Additional information about CFIUS can be found on Treasury's website at: https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius.

This rule adds paragraph (a)(10) to set forth a worldwide license requirement for regional stability reasons when an ECCN references § 742.6(a)(10) in an RS license requirement in the license requirement table of the ECCN. This rule also adds paragraph (b)(11) to set forth the license review policy for the items in paragraph (a)(10), which is a presumption of approval for destinations specified in Country Group A:1. For exports or reexports of such items to destinations specified in Country Groups D:1 or D:5 of supplement no. 1 to part 740 of the EAR, license applications will be reviewed under a presumption of denial. A case-by-case review policy will be applied for such items to all other destinations, to assess the risk the export or reexport would contribute significantly to the destabilization of the region to which the equipment is destined. These items are also subject to national security and anti-terrorism controls. ECCNs currently subject to this RS control are: 2B910, 2D910, 2E903, 2E910, 3A901, 3A904, 3B001.c.1.a, 3B001.c.1.c, 3B001.q, 3B903, 3B904, 3C907, 3C908, 3C909, 3D001 (for 3B001.c.1.a, 3B001.c.1.c, 3B001.q), 3D002 (for 3B001.c.1.a, 3B001.c.1.c), 3D901, 3D907, 3E001 (for 3B001.c.1.a, 3B001.c.1.c, 3B001.q), 3E901, 3E905, 4A906, 4D906, and 4E906.

There is a 60-day delayed compliance for exports, reexports, and transfers (in-country) for quantum items specified in ECCNs 3A901, 3A904, 3B904, 3C907, 3C908, 3C909, 3D901 (for 3A901.b, 3B904), 3E901 (for 3A901, 3A904, 3B904, 3C907, 3C908, 3C909), 4A906, 4D906, or 4E906 controls to destinations in Country Group A:1; see compliance date at the beginning of the rule. This delay in compliance is to allow for submission and processing of license applications or implementation of internal compliance procedures on items covered by these ECCNs.

License requirements for deemed exports and deemed reexports are discussed in the section below, as the license requirements are identical to the national security controls.

G. Deemed Export and Deemed Reexport Controls

i. Grandfathering Clauses

This rule includes grandfathering clauses, allowing the continued and future access to “technology” and “software” (including for future advancements or versions of the same “technology” and “software”) that require a license for national security or regional stability reasons in § 742.4(a)(5)(i) and § 742.6(a)(10)(i) of the EAR for foreign person employees and contractors that already have access to such “technology” or “software” and are employed by an entity as of the effective date of this rule. The only exception to these grandfathering clauses is for GAAFET “technology” specified in ECCN 3E905 to foreign persons whose most recent country of citizenship or permanent residency is a destination specified in Country Group D:1 or D:5. However, this rule implements authorization for employees and contractors to continue access to GAAFET technology under General License in General Order no. 6, paragraph (f) of supplement no. 1 to part 736 of the EAR subject to reporting requirements and conditions.

ii. Full Deemed Export and Deemed Reexport Exclusion

This rule implements a full deemed export and deemed reexport license requirement exclusion from license requirements imposed under the national security and regional stability control in § 742.4(a)(5)(i) and § 742.6(a)(10)(i) of the EAR for “technology” and “software” in ECCNs 3D001, 3D002, and 3E001 for anisotropic dry plasma etch equipment and isotropic dry etch equipment in 3B001.c.1.a and c.1.c. This is in alignment with the full deemed export and deemed reexport exclusion that is already in place for this “technology” and “software” that was established by the rule entitled “Export Controls on Semiconductor Manufacturing Items” published in the Federal Register on October 25, 2023 (88 FR 73424).

iii. Limited Deemed Export and Deemed Reexport Exclusion

For specified items, this rule implements a limited deemed export and deemed reexport license requirement exclusion from license requirements imposed under the national security and regional stability control in § 742.4(a)(5)(i) and § 742.6(a)(10)(i) of the EAR, except to foreign persons whose most recent country of citizenship or permanent residency is a destination specified in Country Group D:1 or D:5. The specified items include “software” or “technology” ECCNs: ECCNs 2D910; 2E910; 3D001 (“software” for “EUV” masks and reticles in ECCN 3B001.q); 3D901 (for “software” for quantum items in ECCNs 3A901.b, 3B904 and scanning electron microscopes (SEM) in ECCN 3B903); 3D907 (“software” designed to extract “GDSII” or equivalent data); 3E001 (“technology” for “EUV” masks and reticles in ECCN 3B001.q); 3E901 (for “technology” for quantum items in 3A901, 3A904, 3B904, 3C907, 3C908, and 3C909, and for SEMs in ECCN 3B903); 3E905 “technology” according to the General Technology Note for the “development” or “production” of integrated circuits or devices, using “Gate all-around Field-Effect Transistor” (“GAAFET”) structures; and “technology” for quantum items in ECCNs 4D906 or 4E906.

iv. Quantum Technology

U.S. technology leadership is based in part upon the ability of U.S. companies to benefit from the expertise of foreign persons. While this is true in many technology sectors, access to foreign expertise is particularly necessary in quantum computing. Quantum computing research and development is substantially a global endeavor, with major innovation occurring in academic labs, small companies, large companies, and national laboratories distributed throughout the world. Key foundational concepts, capabilities, and discoveries from one side of the globe are often borrowed, improved, and/or incorporated to advance efforts on the other side of the world. In this dynamic environment, the entities that can access and incorporate new technology developments quickly will have a major advantage over those who cannot. In addition, many leading quantum computing companies have built deep and enduring relationships with academics from around the world to facilitate the influx of technology. At the same time, there is a global shortage of quantum computing expertise, with demand currently outstripping supply. This has led to a substantial world-wide competition to attract the top talent. Academia and industry have described the talent bottleneck as one of the largest impediments to acceleration.

The domestic development of quantum information science and technology (QIST) experts, including in quantum computing, is insufficient to fill the United States' QIST strategic goals. The United States will continue to rely on foreign talent to fill critical workforce gaps. Currently, much of the QIST talent developed in the U.S. are foreign persons. Foreign persons are subject to visa requirements as administered by the Department of State. More than half of QIST-related degrees conferred in the U.S. are awarded to temporary U.S. residents. Additionally, stakeholders report that offshore companies are becoming increasingly attractive places to pursue a career in quantum computing, driven both by increases in public and private investments internationally, but also uncertainty in the ability to work in the United States due to immigration policies.

While the license requirements for deemed exports and deemed reexports of quantum technology and software only apply to foreign persons whose most recent country of citizenship or permanent residency is a destination specified in Country Group D:1 or D:5, this hardship would be devastating to the continued progress of future developments in the quantum field, which depends on foreign person employees from these destinations. Therefore, this rule is implementing a new General License (GL) in General Order no 6 paragraph (f)(3) of supplement no. 1 to part 736 that authorizes deemed exports and deemed reexports of quantum technology and software to foreign persons whose most recent country of citizenship or permanent residency is a destination specified in Country Group D:1 or D:5. This GL authorization will be subject to annual reporting requirements in new § 743.8 in this rule. Annual reports will allow for visibility to ensure access is consistent with U.S. national security and foreign policy interests. When access appears inconsistent with U.S. national security and foreign policy interests, BIS has the authority to impose a license requirement on the foreign national's continued access to the relevant technology. Not complying with the reporting requirement or falsifying or omitting information required by the reporting requirement would be a violation of the EAR.

BIS is adding § 743.8 to set forth provisions for a report of release under the General License in General Order no. 6 in paragraph (f)(3) in supplement no. 1 to part 736 of the EAR of quantum “software” or “technology” to foreign persons from destinations specified in Country Group D:1 or D:5 for the “development” or “production” of items controlled by ECCNs 3A901, 3A904, 3B904, 3C907, 3C908, 3C909, or 4A906. The report must include information typically included in a deemed export license application, see guidelines for deemed export license applications under the learn and support tab of the BIS website at www.bis.gov. The first report is due 60 days after the publication of this rule, then it will be required annually thereafter. In addition to the annual report, the host entity must report to BIS the voluntary or involuntary termination of a foreign person's employment at the host entity within 30 days of the termination. This approach supports U.S. technology leadership by authorizing continued collaboration on quantum technology development and production, while providing BIS with the necessary visibility for national security oversight.

v. Technology Related to Gate-All-Around Field-Effect Transistor and Semiconductor Manufacturing Equipment

U.S. companies designing and producing semiconductor manufacturing equipment as well as integrated circuits with Gate-All-Around Field-Effect Transistor (GAAFET) technology (ECCN 3E905) face challenges regarding the ability to hire and retain foreign persons with substantial expertise.

To ensure continued technology leadership of U.S. companies and prevent disruption of the current semiconductor manufacturing supply chain, BIS has added two authorizations in General License to supplement no. 1 to part 736 General Order no. 4 for GAAFET exports, reexports, and transfers (in-country) to entities currently in collaboration with U.S. industry in destinations specified in Country Group A:5 or A:6 of the EAR and deemed exports and deemed reexports of “technology” and “software” for GAAFET “technology” specified in ECCN 3E905 to foreign person employees or contractors already employed by entities as of [September 6, 2024 whose most recent citizenship or permanent residency is a destination specified in Country Group D:1 or D:5, including for future advancements or versions of the same “technology”. This authorization includes a reporting requirement that is added to § 743.7 of the EAR, and the first report is due 60 days after the publication of this rule on November 5, 2024, thereby followed by annual reporting to BIS.

BIS is adding § 743.7 to set forth provisions for an annual report of any export, reexport, or transfer (in-country) of “technology” specified in ECCN 3E905 that is not authorized by an individual validated license but is authorized pursuant the GAAFET General License in General Order No. 6 in paragraph (f)(1) or (f)(2) in supplement no. 1 to part 736 of the EAR. The first report is due 60 days after the publication of this rule, then it will be required annually thereafter.

BIS and its interagency partners made this assessment to avoid undercutting U.S. technology leadership and in recognition that software and technology related to semiconductor items is generally proprietary information, which companies have a strong incentive to protect by utilizing substantial internal controls, including imposing limitations on access, vetting employees, and executing non-disclosure agreements. This approach supports U.S. technology leadership by authorizing continued collaboration on GAAFET technology development and production, while providing BIS with the necessary visibility for national security oversight. BIS assesses that this approach enables continued U.S. technology leadership while providing the U.S. government visibility into foreign persons working in this technology.

vi. ECCN 2B910 Additive Manufacturing Equipment

Lacking comparable information on the remaining technology, BIS is implementing deemed export and reexport controls for foreign persons for “technology” and “software” in ECCNs 2D910 and 2E910 for additive manufacturing equipment (2B910).

vii. Request for Public Comments Regarding Deemed Exports

BIS is seeking to understand the potential impacts that a deemed export control would have if the General License in General Order no. 6 in paragraph (f)(3) in supplement no. 1 to part 736 were removed in this rule or at a future date. BIS is also seeking public input and suggestions on how U.S. national security concerns could be addressed in the absence of a quantum technology deemed export licensing requirement. BIS encourages consideration of the following list of questions when preparing input, but also welcomes any other relevant input and suggestions.

A. Anticipated challenges associated with compliance with deemed-export restrictions:

1. Do you already implement deemed export controls for other technologies?

2. Do you have the necessary staff with appropriate training to manage deemed export controls for these items? If not, how many additional staff would you expect to need to hire?

3. Approximately how many individuals, including external consultants and subject matter experts, would require licenses if deemed export controls were implemented? What approximate percentage of your total workforce does that constitute and how do you anticipate that changing in the future? Are there particular countries from which a significant fraction of relevant individuals come? How do you anticipate deemed exports altering future hiring practices?

4. If deemed export controls are implemented, how would that impact future siting decisions for R&D and manufacturing?

5. Are there other anticipated challenges or impacts to competitiveness associated with deemed exports on the quantum items not covered in the above questions? How would the implementation of deemed exports on these items alter R&D activities?

b. Anticipated aspects of technology development and interactions relevant for potential deemed-export restrictions:

1. For the quantum items, is your development or use of those items not related to quantum computers? If so, which items?

2. For which quantum items are deemed exports potentially relevant because you develop or produce those items? For which are deemed exports potentially relevant only because you use or operate those items?

3. Are there quantum items you develop or produce as part of basic scientific research for which deemed exports would be potentially relevant? Is this true for research that is intended for open publication, research for which details will be kept restricted or proprietary, or both?

Comments received will be used to contemplate future imposition of deemed export requirements.

H. Part 772—Definitions of Terms

This rule adds a definition for “GDSII” or “Graphic Design System II” to § 772.1 “ Definitions of terms as used in the Export Administration Regulations (EAR).” GDSII is a database file format for data exchange of integrated circuit artwork or integrated circuit layout artwork. This term is used in ECCNs in Category 3 of the CCL, e.g., ECCN 3D907.

I. Specific Changes to the Commerce Control List in Supplement No. 1 to Part 774 of the EAR

Adds the following 18 ECCNs: 2B910, 2D910, 2E903, 2E910, 3A901, 3A904, 3B903, 3B904, 3C907, 3C908, 3C909, 3D901, 3D907, 3E901, 3E905, 4A906, 4D906, and 4E906.

Revises the following 9 ECCNs: 2E003, 3A001, 3B001, 3C001, 3D001, 3D002, 3E001, 4D001, and 4E001.

2B910 Additive manufacturing equipment, designed to produce metal or metal alloy components.

The current state-of-the-art additive manufacturing (AM) technology builds upon more than 30 years of research and development. Today, metal AM equipment is used to produce parts and components in military devices, such as aircraft, missiles and propulsion systems. Ultimately, next-generation metal AM equipment with high levels of precision and control will enable significant improvements in part performance properties and advanced military capabilities not yet realistically achievable with current standard metal AM equipment.

For these reasons, BIS is adding ECCN 2B910 to the CCL to control specified AM equipment designed to produce metal or metal alloy components, and “specially designed” “components” therefor for national security, regional stability, and anti-terrorism reasons. A license is required to export or reexport AM equipment, designed to produce metal or metal alloy components, having all of the specified parameters in the List of Items Controlled of ECCN 2B910, and “specially designed” “components” therefor to all destinations as specified pursuant to the national security controls and reviewed under the licensing policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and reviewed under the licensing policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

2D910 “Software”, not specified elsewhere, “specially designed” or modified for the “development” or “production” of equipment specified in ECCN 2B910.

BIS is adding ECCN 2D910 to the CCL to control “software”, not specified elsewhere, “specially designed” or modified for the “development,” “production,” operation, or maintenance of equipment specified in ECCN 2B910.

A license is required to export or reexport ECCN 2D910 “software” to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

2E003 Other “technology”.

ECCN 2E003 is amended by adding a Related Control note to reference ECCN 2E903 for “technology”, not specified elsewhere, for the “development” or “production” of coating systems (as defined in 2E903).

2E903 “Technology”, not specified elsewhere, for the “development” or “production” of `coating systems'.

While current gas turbine engines that propel aircraft and generate electricity are highly efficient, there is always demand for even higher performance, better fuel efficiency, and lower air polluting emissions. Ceramic matrix composites (CMCs) are used in gas turbine engines, aircraft and missile structures, radomes and hypersonics. CMCs have two main benefits over nickel alloys: higher temperature capability and lower density.

For these reasons, BIS is adding ECCN 2E903 to the CCL to control “technology”, not specified elsewhere, for the “development” or “production” of `coating systems.' This addition also includes a technical note to explain that `coating systems' consist of one or more layers ( e.g., bond, interlayer, top coat) of material deposited on the substrate. These coatings are designed to protect substrates made from CMC materials from water vapor or corrosive gases generated during combustion reactions. This corrosiveness results in rapid surface recession, which erodes structural integrity and mechanical strength.

A license is required to export or reexport ECCN 2E903 “technology”, not specified elsewhere, for the “development” or “production” of `coating systems' to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

2E910 “Technology”, not specified elsewhere, “specially designed” or modified for the “development” or “production” of equipment specified in ECCN 2B910.

BIS is adding ECCN 2E910 to the CCL to control “technology”, not specified elsewhere, “specially designed” or modified for the “development” or “production” of equipment specified in ECCN 2B910.

A license is required to export or reexport ECCN 2E910 “technology” to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

Category 3, Product Group A: Notes.

This rule revises Note 1 by moving the list of 3A001 paragraphs into a parenthetical that is now located after 3A001. This rule adds 3A001.z within the parenthetical, which means that if an item specified in 3A001.z is “specially designed” for or has the same functional characteristics as other equipment, that it will still be classified and treated as an item specified in 3A001.z instead of as that equipment. This rule also adds ECCN 3A901 to Note 1, which means that if a 3A901 electronic item, such as a cryogenic CMOS or cryo-CMOS chip or a parametric signal amplifier were “specially designed” or had the same function as other equipment, then it would be classified and treated as that other equipment.

BIS is adding 3A001.z and 3A901 to Note 2, which means that if these integrated circuits “are unalterably programmed or designed for a specific function for other equipment” then it would be classified and treated as the other equipment.

BIS is also adding 3A001.z and 3A901 to the Nota Bene (N.B.), which means that “When the manufacturer or applicant cannot determine the control status [classification] of the other equipment” then the ICs would be classified as 3A001.z or 3A901, respectively.

3A001 Electronic items.

BIS adds a nota bene (N.B.) before 3A001.a.3 that states, “For cryogenic Complementary Metal Oxide Semiconductor (CMOS) integrated circuits not specified by 3A001.a.2, see 3A901.a.” The same note is added to the Related Controls notes.

Paragraph 3A001.a.9 neural network integrated circuits is removed and reserved, because of the addition of ECCN 3A090, which controls integrated circuits that may be used for machine learning of artificial intelligence systems, to the CCL.

BIS adds a nota bene (N.B.) after 3A001.b that states, “For parametric signal amplifiers or Quantum-limited amplifiers (QLAs) not specified by 3A001.b, see ECCN 3A901.b.” The same note is added to the Related Controls notes.

3A901 Electronic items not specified by 3A001.

Quantum processors based on superconducting arrays must operate at extremely low temperatures (typically 20 mK or below), and other quantum computing implementations require cooling below 200 mK. To allow conventional complimentary metal-oxide semiconductor (CMOS) memory and logic circuits to operate, and to avoid them heating the cryogenically cooled components, the controls are placed some distance away from the cryogenic features and are linked by multiple cables. The amount of cabling required for all the qubits presents a significant barrier to scaling up quantum bit (qubit) capacity as well as causing high processing latencies.

As larger quantum computers with more qubits are developed, the control circuitry must be moved inside the cryostat to reduce these latencies. Currently, conventional CMOS devices have a general lower temperature limit of −40 °C (233K). CMOS designs are currently being developed that are suitable for operating around 4K temperatures or below for the purposes of quantum computing.

For these reasons, BIS adds 3A901.a to the CCL to control CMOS integrated circuits, not specified by 3A001.a.2, designed to operate at an ambient temperature equal to or less (better) than 4.5 K (−268.65 °C). A technical note accompanies this addition stating that “CMOS integrated circuits are also referred to as cryogenic CMOS or cryo-CMOS integrated circuits.”

A critical function in quantum computing projects is the ability to read out very weak signals. To perform that function, the qubit and signal amplifiers need to be cooled down to a very low temperature to suppress the noise. For this reason, BIS adds 3A901.b to the CCL to control parametric signal amplifiers that operate at very low temperatures, at specified frequencies, and a noise figure parameter. A note and a technical note are also added stating, “parametric signal amplifiers include Travelling Wave Parametric Amplifiers (TWPAs)” and “parametric signal amplifiers may also be referred to as Quantum-limited amplifiers (QLAs).”

CMOS integrated circuits specified in 3A901.a and parametric signal amplifiers specified in 3A901.b require a license to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

3A904 Cryogenic cooling systems and components.

The cooling power limit for complete cryogenic systems is the focus of this control and is based on the currently commercially available cooling systems. The systems with the smallest cooling power tend to be used for basic research, whereas development of larger quantum computers is typically done using systems with the highest cooling power. However, this distinction is not clear-cut. This control focuses on items that are relevant for research on quantum systems with a larger quantity of physical qubits. This type of cryogenic cooling system warrants national security, regional stability, and anti-terrorism controls.

For these reasons, BIS is adding ECCN 3A904 to the CCL to control cryogenic cooling systems and specified components. ECCN 3A904 controls “systems rated to provide a cooling power greater than or equal to 600 µW at or below a temperature of 0.1 K (−273.05 °C) for a period of greater than 48 hours,” as well as specified two-stage pulse tube cryocoolers.

Items specified in ECCN 3A904 are controlled for NS and RS to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

3B001 Equipment for the manufacturing of semiconductor devices, materials, or related equipment, as specified and “specially designed” “components” and “accessories” therefor.

GAAFETs and similar 3D structures with different brand names require lateral etching with high selectivity. Isotropic dry etching is required for lateral etching.

Anisotropic dry plasma etching can only etch vertically. Atomic layer etching, enhanced by the features described in 3B001.c.1.a and c.1.c, produces the vertical edges required in high-quality, leading-edge advanced devices and structures, including GAAFET and similar 3D structures. These tools precisely remove monolayers without damaging other layers.

Anisotropic dry etching is critical for GAAFET and similar 3D structure fabrication. It is also an important tool for Fin-shaped Field Effect Transistor (FinFET) fabrication. As taller and straighter fins are required for scaling, anisotropic dry etching is used by FinFET manufacturers to uniformly scale the critical dimension of the Fin, improving its profile and thus enhancing its performance. Anisotropic dry etching is also used for self-aligned contact and minimum pitch via etching. Polysilicon dummy gate patterning, and its removal in a Replacement Metal Gate (RMG) process for FinFETs and GAAFET, are also enabled by anisotropic etching. Highly selective isotropic/anisotropic etching is routinely used in multi-patterning applications such as hard-mask.

Masks and reticles are each made from complex multiple layer mask blanks. They have to be designed for “extreme ultraviolet” (“EUV”) lithography. As masks and reticles are critical components for EUV lithography, BIS is adding 3B001.q to control “EUV” masks and “EUV” reticles designed for integrated circuits, not specified by 3B001.g, and having a mask “substrate blank” specified by 3B001.j.” A technical note is added to clarify that masks or reticles with a mounted pellicle are considered masks and reticles.

For the reasons stated above, BIS is adding worldwide NS and RS license requirements to the license requirement table for 3B001.c.1.a isotropic dry etching equipment, c.1.c anisotropic dry etching equipment and 3B001.q (“EUV” masks and “EUV” reticles designed for integrated circuits, not specified by 3B001.g, and having a mask “substrate blank” specified by 3B001.j). Items specified in ECCN 3B001.c.1.a, 3B001.c.1.c, and 3B001.q are newly controlled for NS and RS to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and have an existing control for Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

BIS is removing License Exception GBS eligibility for 3B001.c.1.a (Equipment designed or modified for isotropic dry etching), 3B001.c.1.c (Equipment designed or modified for anisotropic dry etching), and 3B001.q (“EUV” masks and “EUV” reticles designed for integrated circuits, not specified by 3B001.g, and having a mask “substrate blank” specified by 3B001.j). BIS is adding License Exception IEC to the List-based License Exceptions section of 3B001.

BIS adds a reference to ECCN 3B903 in the Related Controls paragraph of the List of Items Controlled section.

3B903 Scanning Electron Microscope (SEM) equipment designed for imaging semiconductor devices or integrated circuits.

This rule adds ECCN 3B903 to control Scanning Electron Microscopes (SEM) designed for imaging of semiconductor devices or integrated circuits for national security, regional stability, and anti-terrorism reasons. A specialized SEM can be used to reverse engineer integrated circuits and perform chip design recovery and for this reason warrants national security controls to protect innovation in integrated circuit development of the United States and other supplier countries.

Therefore, BIS is adding ECCN 3B903 to the CCL to control SEM designed for imaging of semiconductor devices or integrated circuits. Items specified in ECCN 3B903 are controlled for NS and RS to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

3B904 Cryogenic wafer probing equipment.

Cryogenic wafer probers are targeted to scaling up quantum computing based on solid-state qubits, among other types of qubits. Development of cryogenic quantum devices, electronics, and detectors can benefit from better device characterization offered by a cryogenic wafer prober. Certain cryogenic wafer probers will speed up the testing and characterization (collection of high-volume data) from qubit devices under test. This offers a distinct advantage during development which has traditionally taken much more time for low temperature testing. For this reason, BIS believes this equipment warrants export controls for national security, regional stability, and anti-terrorism reasons.

Therefore, BIS is adding ECCN 3B904 to the CCL to control specified cryogenic wafer probing equipment. Items specified in ECCN 3B904 are controlled for NS and RS to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

3C001 Hetero-epitaxial materials consisting of a “substrate” having stacked epitaxially grown multiple layers.

ECCN 3C001 is revised by adding a new Related Control note paragraph 2 to reference ECCNS 3C907, 3C908, and 3C909. In addition, a new nota bene (N.B.) is added after paragraph 3C001.f to reference ECCN 3C907.

3C907 Epitaxial materials consisting of a “substrate” having at least one epitaxially grown layer and containing other specified materials.

3C908 Fluorides, hydrides, chlorides, of silicon or germanium, containing other specified materials.

3C909 Silicon, silicon oxides, germanium or germanium oxides, containing any other specified materials.

Semiconducting qubits consisting of certain silicon (Si) or germanium (Ge) isotopes, which have no nuclear spin, or mixture thereof, are one of the key technologies to develop spin-based quantum computers. Therefore, this rule adds three ECCNs for controlling these materials: 3C907, 3C908, and 3C909. ECCN 3C907 controls “Epitaxial materials consisting of a “substrate” having at least one epitaxially grown layer” of silicon or germanium containing a specified percentage of silicon or germanium isotopes. ECCN 3C908 controls “Fluorides, hydrides, chlorides, of silicon or germanium” containing a specified percentage of silicon or germanium isotopes. ECCN 3C909 controls “Silicon, silicon oxides, germanium or germanium oxides” containing a specified percentage of silicon or germanium isotopes. Isotopic enriched Si and Ge are exported with certificates which indicate isotopic distribution or combination, regardless of their chemical forms, by commercial practice. Those documents would facilitate examination of whether isotopic purity of the exported item is below or above the control threshold.

Therefore, BIS is adding ECCNs 3C907, 3C908, and 3C909 to the CCL because semiconducting qubits consisting of certain silicon (Si) or germanium (Ge) isotopes, which have no nuclear spin, or a mixture thereof are key materials needed to develop spin-based quantum computers. Materials specified in ECCNs 3C907, 3C908, and 3C909 are controlled for NS and RS to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

3D001 “Software”.

ECCN 3D001 is amended by revising the heading to add ECCN 3B903 and 3B904 to the exception parenthetical for 3B. In addition, BIS is adding to the license requirement table two new rows for NS and RS worldwide controls for “software” “specially designed” for the “development” or “production” of commodities controlled by 3B001.c.1.a, 3B001.c.1.c, and 3B001.q. Such “software” controlled by commodities in ECCN 3B001.c.1.a, 3B001.c.1.c, or 3B001.q are controlled for NS and RS to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

BIS is also adding an STA restriction for “software” “specially designed” for the “development” or “production” of equipment specified by 3B001.c.1.a, 3B001.c.1.c, or 3B001.q to any of the destinations listed in Country Group A:5.

3D002 “Software” “specially designed” for the “use” of equipment controlled by 3B001.a to .f and .j to .p, or 3B002.

BIS is adding to the license requirement table two new rows for NS and RS worldwide controls for “software” “specially designed” for “use” of equipment controlled by 3B001.c.1.a and c.1.c. Such “software” is controlled for NS and RS to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

BIS is also adding an STA restriction for “software” “specially designed” for the “development” or “production” of equipment specified by 3B001.c.1.a or c.1.c to any of the destinations listed in Country Group A:5.

3D901 “Software”, not specified elsewhere, “specially designed” or modified for the “development,” “production,” of items controlled in ECCN 3A901.b, 3B903, or 3B904.

BIS is adding ECCN 3D901 to control “software” not specified elsewhere, “specially designed” or modified for the “development,” “production,” operation, or maintenance of items controlled in ECCNs 3A901.b, 3B903, or 3B904.

“Software” specified in ECCN 3D901 is controlled for NS and RS reasons to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

3D907 “Software” designed to extract “GDSII” or equivalent standard layout data and perform layer-to-layer alignment from SEM images, and generate multi-layer “GDSII” data or the circuit netlist.

BIS is adding ECCN 3D907 to control “software” designed to extract “Graphic Design System II” (“GDSII”) or equivalent standard layout data and perform layer-to-layer alignment from SEM images, as well as having the ability to generate multi-layer “GDSII” data or the circuit netlist. “GDSII” is an industry standard binary file format representing wire paths, boundaries, structures, arrays, text labels and other information about the layout of an integrated circuit in hierarchical form for Electronic Design Automation (EDA) data exchange of integrated circuit or IC layout artwork. This type of software aids in the reverse engineering of integrated circuits and warrants national security controls to protect the innovation of integrated circuits by the U.S. and other supplier countries. An example of an equivalent standard to “GDSII” would be Open Artwork System Interchange Standard (OASIS).

Therefore, BIS is adding ECCN 3D907 to the CCL to control “software” designed to extract “GDSII” or equivalent standard layout data and perform layer-to-layer alignment from SEM images, as well as having the ability to generate multi-layer “GDSII” data or the circuit netlist. BIS is also adding to the Related Controls paragraph, “An example of an equivalent standard to “GDSII” would be Open Artwork System Interchange Standard (OASIS).” “Software” specified in ECCN 3D907 is controlled for NS and RS reasons to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

3E001 “Technology” according to the General Technology Note for the “development” or “production” of commodities controlled by 3A (except 3A901, 3A904, 3A980, 3A981, 3A991, 3A992, or 3A999), 3B (except 3B903, 3B904, 3B991 or 3B992) or 3C (except 3C907, 3C908, 3C909, or 3C992).

The heading of 3E001 is amended by adding to the exception parentheticals ECCNs 3A901, 3A904, 3B903, 3B904, 3C907, 3C908, and 3C909.

In addition, BIS is adding to the license requirement table two new rows for NS and RS worldwide controls for “technology” for equipment controlled by 3B001.c.1.a, 3B001.c.1.c, and 3B001.q. “Technology” for equipment controlled by ECCN 3B001.c.1.a, 3B001.c.1.c, or 3B001.q is controlled for NS and RS to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

ECCN 3E001 is amended by removing Note 3 and the Technical Note that follows it related to Process Design Kits (PDKs). In addition, this rule adds a Note 1 to Category 3, Product Group E to inform the exporting community that the controls in ECCN 3E001 and new ECCN 3E905 do not apply to PDKs unless they include libraries implementing functions or technologies for items specified by 3A001. The Technical Note that defined `PDK' that was formerly in ECCN 3E001 is moved to Cat. 3 Product Group E.

3E901 “Technology” according to the General Technology Note for the “development” or “production” of items controlled by 3A901, 3A904, 3B903, 3B904, 3C907, 3C908, or 3C909.

BIS is adding ECCN 3E901 to control “technology” for items controlled by 3A901, 3A904, 3B903, 3B904, 3C907, 3C908, or 3C909.

“Technology” specified in ECCN 3E901 is controlled for NS and RS reasons to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

3E905 “Technology” according to the General Technology Note for the “development” or “production” of integrated circuits or devices, using “Gate all-around Field-Effect Transistor (“GAAFET”) structures.

BIS adds ECCN 3E905 to the CCL to control “technology” according to the General Technology Note for the “development” or “production” of integrated circuits or devices, using GAAFET structures. Integrated circuits produced with GAAFET technology are more efficient and capable than those produced with earlier architectures. It is expected that the scaled and dense microchips produced with GAAFET technology will also be more tolerant to the effects of radiation. The greater efficiency and lower power consumption of GAAFET-produced chips enable faster and more robust artificial intelligence and other military and commercial applications.

ECCN 3E905 focuses on the “technology” (“required”) for the “development” and “production” of GAAFET structures, while existing technology controls in ECCNs 3E001 and 3E002 focus on integrated circuits and devices regardless of the transistor structure used, i.e., the transistor structure is not a “required” element of the 3E001 or 3E002 controls. The items paragraph includes a note that states that “3E905 includes `process recipes',” which are defined in a technical note as “a set of conditions and parameters for a particular process step.” BIS is adding a note to the Related Control paragraph to assist industry in applying the controls of this ECCN. The text in Related Control Note 1 reads, “ECCN 3E905 applies to process “technology” exclusively for the “development” or “production” of GAAFET structures of integrated circuits at a semiconductor wafer production facility. ECCN 3E905 does not, for example, control an integrated circuit design such as the physical layout file in GDSII format or EDA tools, or any other technology used to produce the physical layout file for integrated circuit design.” For these reasons, BIS does not believe there is an overlap of controls between ECCN 3E905 and 3E001 or 3E002. Industry is invited to submit comments on the clarity of the control text of this ECCN, as well as the clarification statement BIS input in the Related Control paragraph.

Because ECCN 3E905 was never intended to control GAAFET architecture for 3D NAND, i.e., vertical GAAFET architecture, note 2 is added to the Related Controls paragraph to state: “2. ECCN 3E905 does not apply to vertical GAAFET architectures, e.g., those used for 3D NAND.”

A license is required to export, reexport, or transfer (in-country) “technology” specified in ECCN 3E905 to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

4A906 Quantum computers and related “electronic assemblies” and “components” therefor.

The addition of controls in ECCN 4A906 relies on two main criteria: first, the number of physical qubits that are connected and fully controllable, and second, the average error rate of the Controlled NOT (C-NOT) gate. The first is a measure of engineering advances in component design and system integration that will enable scaling of quantum computers to very large systems. To reach a scale in the hundreds to thousands of qubits requires many advances in the design, manufacturing, and integration of the main components of the system such as the qubit processor, readout, qubit control, etc. The second criterion is a measure of the quality of the qubits. The combination of both metrics is more indicative of technological advances in the development of quantum computers of concern than either criterion on its own. For example, very advanced systems that have extremely good quality qubits and gates, but a relatively small qubit count, could be more scalable than systems with a higher qubit count but lower quality qubits and gates and are captured by the thresholds for the C-NOT gate error rates. However, this second metric still depends on the number of qubits. Systems with a higher number of qubits can tolerate higher error rates but still support error rate mitigation or error correction techniques. The physical error rate needed to support these operations increases ( i.e., can tolerate higher error rates) with increased qubit count and plateaus around 2,000 qubits at an error rate at 10⁻².

BIS has determined that a near-term generation of quantum computers will support 34 or more `fully controlled', `connected' and `working' `physical qubits' at the specified error rates, and that this number of qubits and error rate represents a high level of technological sophistication warranting national security, regional stability, and anti-terrorism controls.

For these reasons, BIS adds ECCN 4A906 to the CCL to control quantum computers and related “electronic assemblies” and “components” therefor. Paragraph 4A906.a controls specified quantum computers. Paragraph 4A906.b controls qubit devices and qubit circuits, containing or supporting arrays of `physical qubits', and “specially designed” for items specified by 4A906.a. Paragraph 4A906.c controls quantum control components and quantum measurement devices, “specially designed” for items specified by 4A906.a. ECCN 4A906 includes several notes that should assist the public in determining the application of these controls. The technical notes to ECCN 4A906 include definitions for terms such as `physical qubit,' `fully controlled,' `connected,' `working,' `C-NOT error,' as well as an explanation of the phrase “ `fully controlled', `connected', `working' `physical qubits'.”

Items specified in ECCN 4A906 are controlled for national security reasons to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

4D001 “Software”.

Paragraph 4D001.a is revised by adding ECCN 4A906 to the exception parenthetical for 4D.

4D906 “Software” “specially designed” or modified for the “development” or “production”, of commodities controlled by 4A906.b or 4A906.c.

BIS is adding ECCN 4D906 to the CCL to control “software” “specially designed” or modified for the “development” or “production” of commodities controlled by 4A906.b or 4A906.c.

“Software” specified in ECCN 4D906 is controlled for national security reasons to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

4E001 “Technology”.

Paragraph 4E001.a is amended by adding 4A906 and 4D906 to the exception parentheticals of 4A and 4D, respectively.

4E906 “Technology” according to the General Technology Note.

BIS adds ECCN 4E906 to the CCL to control in 4E906.a “technology” for the “development” or “production” of items controlled by 4A906.b, 4A906.c, or 4D906; and to control in 4E906.b “technology” for the “use” of “software” controlled by 4D906.

“Technology” specified in ECCN 4E906 is controlled for national security reasons to all destinations as specified pursuant to the national security controls and license review policy set forth in § 742.4(a)(5) and (b)(10) of the EAR, and regional stability controls and license review policy set forth in § 742.6(a)(10) and (b)(11) of the EAR, and Anti-terrorism (AT) column 1 of the Commerce Country Chart in supplement no. 1 to part 738 of the EAR.

Export Control Reform Act of 2018

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included ECRA (codified, as amended, at 50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

Rulemaking Requirements

1. Executive Orders 12866, 13563, and 14094 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects and distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules, and promoting flexibility.

This interim final rule has been designated a “significant regulatory action” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. Although this rule makes important changes to the EAR for items controlled for national security reasons, BIS believes that the overall increases in burdens and costs associated with the following information collections due to this rule are estimated to increase the number of submissions by 800 which is not expected to exceed the current approved estimates.

• 0694-0088 “Simplified Network Application Processing System,” which carries a burden-hour estimate of 29.6 minutes for a manual or electronic submission;
• 0694-0137 “License Exceptions and Exclusions,” which carries a burden- hour estimate average of 1.5 hours per submission (Note: submissions for License Exceptions are rarely required);
• 0694-0096 “Five Year Records Retention Period,” which carries a burden-hour estimate of less than 1 minute; and
• 0607-0152 “Automated Export System (AES) Program,” which carries a burden-hour estimate of 3 minutes per electronic submission.

Additional information regarding these collections of information—including all background materials—can be found at https://www.reginfo.gov/public/do/PRAMain and using the search function to enter either the title of the collection or the OMB Control Number.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

Accordingly, parts 736, 738, 740, 742, 743, 772, and 774 of the Export Administration Regulations (15 CFR parts 730 through 774) are amended as follows:

1. The authority citation for part 736 continues to read as follows:

Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.;E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., p. 168; Notice of November 8, 2022, 87 FR 68015, 3 CFR, 2022 Comp., p. 563; Notice of May 8, 2023, 88 FR 30211 (May 10, 2023).

2. Supplement No. 1 is amended by adding paragraph (f) to read as follows:

Supplement No. 1 to Part 736—General Orders

(f) General Order No. 6. General Order No. 6 of September 6, 2024.

(1) GAAFET exports, reexports, and transfers (in-country). This General License (GL) authorizes the export, reexport, or transfer (in-country) of GAAFET “technology” specified in ECCN 3E905 for the “development” or “production” of integrated circuits to end users located in a destination specified in Country Group A:5 or A:6 of supplement no. 1 to part 740 of the EAR when that “development” or “production” began to be performed on or prior to September 6, 2024.

(2) GAAFET grandfather clause for deemed exports and deemed reexports. This GL authorizes deemed exports or deemed reexports of GAAFET “technology” specified in ECCN 3E905 (including for future advancements or versions of the same “technology”) to foreign person employees or contractors already employed by entities as of September 6, 2024 whose most recent country of citizenship or permanent residency is a destination specified in Country Group D:1 or D:5, and who are not prohibited persons under part 744 of the EAR, e.g., not listed on the Entity List (supplement no. 4 to part 744), Unverified List (supplement no. 6 to part 744), Military End-User List (supplement no. 7 to part 744), or listed on the Denied Persons List ( https://www.bis.gov ). BIS notes that for purposes of §§ 742.4(a)(5) and 742.6(a)(10), the employee need not be a permanent and regular employee as that term is defined in § 734.20(d), e.g., they may be newly hired.

(3) Quantum deemed exports and deemed reexports. This GL authorizes deemed exports or deemed reexports of quantum “technology” and “software” in ECCNs 3D901 (for “software” for quantum items in ECCNs 3A901.b, 3B904), 3E901 (for “technology” for quantum items in 3A901, 3A904, 3B904, 3C907, 3C908, 3C909), and “technology” for quantum items in ECCNs 4D906 or 4E906, to foreign persons whose most recent country of citizenship or permanent residency is a destination specified in Country Group D:1 or D:5 and who are not prohibited persons under part 744 of the EAR, e.g., not listed on the Entity List (supplement no. 4 to part 744), Unverified List (supplement no. 6 to part 744), Military End-User List (supplement no. 7 to part 744), or listed on the Denied Persons List ( https://www.bis.gov ). BIS notes that for purposes of §§ 742.4(a)(5) and 742.6(a)(10), the employee need not be a permanent and regular employee as that term is defined in § 734.20(d), e.g., they may be newly hired.

(4) Reporting requirements. Exports, reexports, and transfers (in-country), including deemed exports and deemed reexports, under this GL are subject to annual reporting requirements in accordance with § 743.7 of the EAR for GAAFET items in paragraph (f)(1) and (f)(2) of this general order and § 743.8 for quantum items in paragraph (f)(3) of this general order.

(5) End-use and end-user restrictions— (i) Restrictions related to part 744 of the EAR. The GL under paragraph (f) of this supplement does not overcome the license requirements of § 744.11 or § 744.21 of the EAR when an entity listed in supplements no. 4 or 7 to part 744 of the EAR is a party to the transaction as described in § 748.5(c) through (f) of the EAR, or when there is knowledge of any other prohibited end use or end user (other than the provisions of § 744.23 of the EAR).

(ii) End-user restriction. The GL under paragraph (f)(1) or (f)(2) of this supplement cannot be used for the “development” or “production” of any item identified under paragraph (d)(2)(i) of this supplement where the “part,” “component,” or “equipment” is “developed” or “produced” at the direction of an entity that is headquartered in, or whose ultimate parent company is headquartered in a destination specified in Country Group D:1 or D:5 in supplement no. 1 to part 740 of the EAR.

(6) Recordkeeping requirement. All exports, reexports, transfer (in-country), and exports from abroad shipped under the authorization of this GL, including deemed exports and deemed reexports of “technology” and “software,” are subject to the recordkeeping requirements of part 762 of the EAR.

3. The authority citation for part 738 continues to read as follows:

Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C. 287c; 22 U.S.C. 2151 note; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 U.S.C. 1824; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.

4. Section 738.2 is amended by revising paragraph (d)(1) to read as follows:

(d) Entries —(1) Composition of an entry. Within each group, individual items are identified by an Export Control Classification Number (ECCN). Each number consists of a set of digits and a letter. The first digit identifies the general category within which the entry falls ( e.g., 3A001). The letter immediately following this first digit identifies under which of the five groups the item is listed ( e.g., 3A001). The second and third digits differentiate individual entries by identifying the type of controls associated with the items contained in the entry ( e.g., 3A001). Table 1 lists the Reasons for Control associated with this second and third digits.