What does this mean for Berkeley Lab?
- Review the new and updated Export Control Classification Numbers (ECCNs) to determine if your “technology” is impacted. U.S. Government authorization may be required if your work involves exporting the listed items or sharing related “technology” with foreign persons unless a license exception or general license applies.
- Perform restricted party screening using Visual Compliance to ensure parties to agreements or transactions are not restricted parties.
- For questions or guidance, reach out to us at exportcontrol@lbl.gov.
Please note fundamental research results intended for publication and public domain information are not subject to export controls.
Please share this information with others in your Division who may be impacted by these changes.
Background
In coordination with international partners and in furtherance of the United States national security and foreign policy interests, the Bureau of Industry and Security (BIS) released an interim final rule on September 6, 2024, revising the Export Administration Regulations (EAR) for certain items, which are categorized under specific Export Control Classification Numbers (ECCNs) on the Commerce Control List (CCL). These items include:
- Quantum Computing Items: Quantum computers, related equipment, components, materials, software, and technology that can be used in the development and maintenance of quantum computers. Please refer to the ‘Items Controlled’ section of these ECCNs: 3A001, 3E001, 3A901, 3D901, 3E901, 3A904, 3B904, 3C907, 3C908, 3C909, 4D001, 4E001, 4A906, 4D906, or 4E906.
- Advanced Semiconductor Manufacturing Equipment: Tools and machines that are essential for the production of advanced semiconductor devices. Please refer to the ‘Items Controlled’ section of these ECCNs: 3A001, 3B001, 3C001, 3D001, 3E001, 3D002, 3B903, 3B904, 3C907, 3C908, 3C909, 3D901, 3D907, 3E901, or 3E905.
- Gate All-Around Field-Effect Transistor (GAAFET) Technology: Technology that produces or develops high-performance computing chips that can be used in supercomputers. Please refer to the ‘Items Controlled’ section of these ECCNs: 3D006, and 3E905.
- Additive Manufacturing Items: Equipment, components, and related technology and software designed to produce metal or metal alloy components. Please refer to the ‘Items Controlled’ section of these ECCNs: 2E003, 2B910, 2D910, 2E903, and 2E910.
This rule also (1) establishes new license exception Implemented Export Controls (IEC), which will allow license-free exports of subject items to countries implementing equivalent national controls (2) implements certain exclusion clauses for deemed exports (i.e., the sharing or release of controlled technology or source code to a foreign person within the U.S.) and reexports to avoid disrupting ongoing research and development, and (3) adds a general license for deemed exports/reexports of certain technology/software, subject to annual reporting requirements.
Deemed Export and Deemed Reexport Exclusion
This rule implements a full deemed export and deemed reexport license requirement exclusion 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 “Export Controls on Semiconductor Manufacturing Items” rule published on October 25, 2023 (88 FR 73424).
Grandfathering Clauses
This rule includes grandfathering clauses, allowing foreign employees and contractors already employed as of the rule’s effective date to continue accessing “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.
The exception is for GAAFET technology (ECCN 3E905) for foreign persons from Country Group D:1 or D:5. However, continued access to GAAFET technology is authorized under GGL with reporting requirements and conditions. The GAAFET General License (GGL) is available for ongoing collaborations with established partners in allied countries (Country Group A:5 and A:6), i.e., when that ‘‘development’’ or ‘‘production’’ began to be performed on or prior to September 6, 2024. There are no deemed export1 concerns with these countries2.
- The GGL also provides limited authorization for:
- 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 persons3.
- Deemed exports 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 persons4.
Applicable Definitions:
- Deemed Export – Any “release” in the United States of “technology” or source code to a foreign person is a deemed export to the foreign person’s most recent country of citizenship or permanent residency. ↩︎
- GGL paragraph f(1) ↩︎
- GGL paragraph f(2) ↩︎
- GGL paragraph f(3) ↩︎