State and BIS Issue Final Rules on Licensing Jurisdiction for Certain Microelectronic Circuits

The State Department has issued a final rule, effective July 17, 2007, which amends 22 CFR Part 121 of the International Traffic in Arms Regulations with respect to radiation-hardened microelectronic circuits in Category XV(d) of the U.S. Munitions List (USML).

In a related notice, the Bureau of Industry and Security has issued a final rule, effective July 17, 2007, providing clarifying guidance for distinguishing the export and reexport licensing jurisdiction of the State Department from that of the Commerce Department concerning microelectronic circuits, and to assist exporters in evaluating agency licensing jurisdiction while taking into account the new standard in Category XV(d) of the USML.

States Moves Jurisdiction of Certain Microelectronic Circuits from ITAR to CCL

The State Department is amending 22 CFR 121.1(c), Category XV - Spacecraft Systems and Associated Equipment, by revising paragraph (d)(4) to change the exponential measure describing the single event upset rate parameter to 1 x 10^-10 (from 1 x 10^-7).

As a result, radiation-hardened microelectronic circuits that meet or exceed the four unchanged parameters in Category XV(d) and whose single event upset rate parameter lies between the old (1 x 10^-7) and new (1 x 10^-10) standard, are moved to the Commerce Control List (CCL) under Export Control Classification Number (ECCN) 3A001.a.1.

(This change reflects the minimal performance standard for space applications, and addresses the outcome of evolving refinements in the manufacturing process for these circuits.)

The following textual clarifications are also made to XV(d)(2)-(5): the word ''threshold'' is inserted in (d)(2) and (d)(5) for purposes of technical clarity. In (d)(3), the insertion of the expression ''1 MeV Equivalent'' describes the energetic activity of neutrons. Finally, in (d)(4), an expression is added to clarify the representative environment for performance in space.

(According to the results of an interagency review of these changes, any microelectronic circuit that is specifically designed, developed, configured, adapted, or modified for a military or space application, to include its incorporation into any defense article described on the USML, remains subject to the licensing requirements of the State Department's ITAR.

In addition, the State Department advises that companies must be able to demonstrate, either through testing, statistical analyses, design analyses, or other means, whether semiconductors meet or fail to meet the parameters established in USML Category XV(d). Records of such testing, analyses, or other means must be retained and made available as appropriate to demonstrate compliance.)

BIS Reflects New Licensing Jurisdiction in "Related Controls" of ECCN

To reflect the new licensing jurisdiction standard in the USML, BIS' final rule adds language to the ''Related Controls'' paragraph¹ of ECCN 3A001 to assist readers in correctly determining whether certain microelectronic circuits are covered by the CCL and subject to BIS' licensing jurisdiction (Commerce Department) or are on the USML and subject to the licensing jurisdiction of Directorate of Defense Trade Controls (DDTC) (State Department).

Specifically, BIS adds note (3) to this "Related Controls" paragraph which states that the following commodities are under the export licensing authority of the DDTC (22 CFR Part 121): (a) Radiation-hardened microelectronic circuits controlled by Category XV (d) of the USML; and (b) All specifically designed or modified systems or subsystems, components, parts, accessories, attachments, and associated equipment controlled by Category XV (e) of the USML.

¹''Related Controls'' paragraphs alert readers to the possible application of export controls administered by other U.S. government agencies or that of export controls set forth in other similar ECCNs. The ''Related Controls'' paragraph of ECCN 3A001 currently provides guidance on the licensing jurisdiction of DDTC with respect to certain ''space qualified'' and certain radiation-hardened commodities.

BIS notice (D/N 070426097-7099-01, FR Pub 07/17/07) available http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-13364.pdf

State Dept. notice (Public Notice 5867, FR Pub 07/17/07) available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-13826.pdf