Rule2022-21658
Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification
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Published
October 13, 2022
Effective
October 7, 2022
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Abstract
In this rule, the Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to implement necessary controls on advanced computing integrated circuits (ICs), computer commodities that contain such ICs, and certain semiconductor manufacturing items. In addition, BIS is expanding controls on transactions involving items for supercomputer and semiconductor manufacturing end uses, for example, this rule expands the scope of foreign-produced items subject to license requirements for twenty-eight existing entities on the Entity List that are located in China. BIS is also informing the public that specific activities of "U.S. persons" that `support' the "development" or "production" of certain ICs in the PRC require a license. Lastly, to minimize short term impact on the semiconductor supply chain from this rule, BIS is establishing a Temporary General License to permit specific, limited manufacturing activities in China related to items destined for use outside China and is identifying a model certificate that may be used in compliance programs to assist, along with other measures, in conducting due diligence. `
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[Federal Register Volume 87, Number 197 (Thursday, October 13, 2022)]
[Rules and Regulations]
[Pages 62186-62215]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21658]
[[Page 62185]]
Vol. 87
Thursday,
No. 197
October 13, 2022
Part II
Department of Commerce
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Bureau of Industry and Security
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15 CFR Parts 734, 736, 740, 742, et al.
Implementation of Additional Export Controls: Certain Advanced
Computing and Semiconductor Manufacturing Items; Supercomputer and
Semiconductor End Use; Entity List Modification; Interim Final Rule
Federal Register / Vol. 87 , No. 197 / Thursday, October 13, 2022 /
Rules and Regulations
[[Page 62186]]
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 734, 736, 740, 742, 744, 762, 772, and 774
[Docket No. 220930-0204]
RIN 0694-AI94
Implementation of Additional Export Controls: Certain Advanced
Computing and Semiconductor Manufacturing Items; Supercomputer and
Semiconductor End Use; Entity List Modification
AGENCY: Bureau of Industry and Security, Department of Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: In this rule, the Bureau of Industry and Security (BIS) is
amending the Export Administration Regulations (EAR) to implement
necessary controls on advanced computing integrated circuits (ICs),
computer commodities that contain such ICs, and certain semiconductor
manufacturing items. In addition, BIS is expanding controls on
transactions involving items for supercomputer and semiconductor
manufacturing end uses, for example, this rule expands the scope of
foreign-produced items subject to license requirements for twenty-eight
existing entities on the Entity List that are located in China. BIS is
also informing the public that specific activities of ``U.S. persons''
that `support' the ``development'' or ``production'' of certain ICs in
the PRC require a license. Lastly, to minimize short term impact on the
semiconductor supply chain from this rule, BIS is establishing a
Temporary General License to permit specific, limited manufacturing
activities in China related to items destined for use outside China and
is identifying a model certificate that may be used in compliance
programs to assist, along with other measures, in conducting due
diligence. `
DATES:
a. Effective on October 7, 2022, are the following instructions: 7
(Sec. 740.2), 9 (Sec. 740.10), 11 (Sec. 742.6), 17 (Sec. 744.23),
and 25 (supplement no. 1 to part 774).
b. Effective on October 12, 2022, is the following instruction: 15
(Sec. 744.6).
c. Effective on October 21, 2022, are the following instructions: 2
(Sec. 734.9), 3 (supplement no. 1 to part 734), 5 (supplement no. 1 to
part 736), 8 (Sec. 740.2), 12 (Sec. 742.6), 14 (Sec. 744.1), 16
(Sec. 744.11), 18 (Sec. 744.23), 19 (supplement no. 4 to part 744),
21 (Sec. 762.2), 23 (Sec. 772.1), and 26 (supplement no. 1 to part
774).
d. Comments must be received by BIS no later than December 12,
2022.
ADDRESSES: Comments on this rule may be submitted to the Federal
rulemaking portal (<a href="http://www.regulations.gov">www.regulations.gov</a>). The <a href="http://regulations.gov">regulations.gov</a> ID for
this rule is: BIS-2022-0025. Please refer to RIN 0694-AI94 in all
comments.
All filers using the portal should use the name of the person or
entity submitting the comments as the name of their files, in
accordance with the instructions below. Anyone submitting business
confidential information should clearly identify the business
confidential portion at the time of submission, file a statement
justifying nondisclosure and referring to the specific legal authority
claimed, and provide a non-confidential version of the submission.
For comments submitted electronically containing business
confidential information, the file name of the business confidential
version should begin with the characters ``BC.'' Any page containing
business confidential information must be clearly marked ``BUSINESS
CONFIDENTIAL'' on the top of that page. The corresponding non-
confidential version of those comments must be clearly marked
``PUBLIC.'' The file name of the non-confidential version should begin
with the character ``P.'' Any submissions with file names that do not
begin with either a ``BC'' or a ``P'' will be assumed to be public and
will be made publicly available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For questions on the license
requirements in this interim final rule, contact Eileen Albanese,
Director, Office of National Security and Technology Transfer Controls,
Bureau of Industry and Security, Department of Commerce, Phone: (202)
482-0092, Fax: (202) 482-482-3355, Email: <a href="/cdn-cgi/l/email-protection#bdcfcdd98ffddfd4ce93d9d2de93dad2cb"><span class="__cf_email__" data-cfemail="3c4e4c580e7c5e554f1258535f125b534a">[email protected]</span></a>. For emails,
include ``Advanced computing controls'' or ``Semiconductor
manufacturing items control'' as applicable in the subject line.
For questions on the Entity List revisions, contact: Chair, End-
User Review Committee, Office of the Assistant Secretary for Export
Administration, Bureau of Industry and Security, Department of
Commerce, Phone: (202) 482-5991, Email: <a href="/cdn-cgi/l/email-protection#a8edfaebe8cac1db86ccc7cb86cfc7de"><span class="__cf_email__" data-cfemail="91d4c3d2d1f3f8e2bff5fef2bff6fee7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
With this interim final rule, the Commerce Department's Bureau of
Industry and Security (BIS) makes critical changes to the Export
Administration Regulations (EAR) in two areas to address U.S. national
security and foreign policy concerns. First, BIS imposes additional
export controls on certain advanced computing semiconductor chips
(chips, advanced computing chips, integrated circuits, or ICs),
transactions for supercomputer end-uses, and transactions involving
certain entities on the Entity List. Second, BIS adopts additional
controls on certain semiconductor manufacturing items and on
transactions for certain IC end use. Additional information about both
areas of change is provided in the Overview of New Controls section.
Some changes made in this interim final rule to address these two areas
involve the same EAR provisions; in those cases, the preamble provides
cross references to other areas in the rule that provide relevant
additional information. This rule also solicits public comments on the
changes included in this rule.
The restrictions implemented in this rule follow extensive United
States government consideration of the impact of advanced computing
ICs, ``supercomputers,'' and semiconductor manufacturing equipment on
enabling military modernization, including the development of weapons
of mass destruction (WMD), and human rights abuses. The Government of
the People's Republic of China (PRC or China) has mobilized vast
resources to support its defense modernization, including the
implementation of its military-civil fusion development strategy, in
ways that are contrary to U.S. national security and foreign policy
interests.
A. Additional Export Controls: Certain Advanced Computing Integrated
Circuits (ICs); Supercomputer End-Uses; Entity List Modifications
With this rule, BIS imposes new export controls on certain advanced
computing semiconductor chips and computer commodities that contain
such chips. Further, this rule implements an end-use control for
certain items intended for a ``supercomputer'' located in or destined
to the PRC.
Advanced computing items and ``supercomputers'' can be used to
enhance data processing and analysis capabilities, including through
artificial intelligence (AI) applications. The PRC is rapidly
developing exascale supercomputing capabilities and has announced its
intent to become the world leader in AI by 2030. These advanced systems
are capable of sophisticated data processing and analysis that has
multiple uses, and are enabled by advanced ICs. These systems
[[Page 62187]]
are being used by the PRC for its military modernization efforts to
improve the speed and accuracy of its military decision making,
planning, and logistics, as well as of its autonomous military systems,
such as those used for cognitive electronic warfare, radar, signals
intelligence, and jamming. Furthermore, these advanced computing items
and ``supercomputers'' are being used by the PRC to improve
calculations in weapons design and testing including for WMD, such as
nuclear weapons, hypersonics and other advanced missile systems, and to
analyze battlefield effects. In addition, advanced AI surveillance
tools, enabled by efficient processing of huge amounts of data, are
being used by the PRC without regard for basic human rights to monitor,
track, and surveil citizens, among other purposes. With this rule, BIS
seeks to protect U.S. national security and foreign policy interests by
restricting the PRC's access to advanced computing for its military
modernization, including nuclear weapons development, facilitation of
advanced intelligence collection and analysis, and for surveillance.
BIS intends to impose controls on items subject to the EAR and U.S.
person activities to limit the PRC's ability to obtain advanced
computing chips or further develop AI and ``supercomputer''
capabilities for uses that are contrary to U.S. national security and
foreign policy interests.
These controls are being imposed through this interim final rule to
address immediate concerns with the PRC's demonstrated intent and
ability to use these items for activities of national security and
foreign policy concern to the United States. As such, the advanced
computing ICs and computer commodities that contain such ICs identified
by this rule have been controlled for Regional Stability (RS) purposes.
This rule also expands the scope of licensing requirements for 28
existing entities on the Entity List in supplement no. 4 to part 744 of
the EAR that are located in China and were added to the Entity List
between 2015 and 2021 to further address the national security and
foreign policy concerns described above. BIS is interested in receiving
comments regarding whether a broader or different scope of control is
warranted for these ICs.
B. Additional Export Controls: Certain Semiconductor Manufacturing
Items; Integrated Circuits End Use
Also with this rule, BIS imposes new export controls on certain
semiconductor manufacturing items and activities involving the
``development'' or ``production'' of advanced integrated circuits
(packaged or unpackaged) in the PRC that meet specified criteria.
Semiconductor manufacturing equipment can be used to produce ICs
(packaged or unpackaged) for commercial applications, which has helped
to transform the world and holds great commercial promise across a wide
variety of industries and applications, including communications,
health care, and transportation. However, semiconductor manufacturing
equipment can also be used to produce various ICs (packaged or
unpackaged) for WMD or other military applications, as well as
applications that enable human rights violations or abuses, including
but not limited to the advanced systems and ``supercomputers''
described above. Similar to their use in commercial products, the use
of semiconductors has become vital in the ``production'' of military
systems, particularly for advanced military systems, and may be used
for purposes that are contrary to U.S. national security and foreign
policy interests. The PRC government expends extensive resources to
eliminate barriers between China's civilian research and commercial
sectors, and its military and defense industrial sectors. It also is
developing and producing advanced integrated circuits (packaged or
unpackaged) for use in weapons systems.
Under the Export Control Reform Act of 2018 (ECRA), the United
States shall control U.S. person activity related to nuclear explosive
devices, missiles chemical or biological weapons, whole plants for
chemical weapons precursors, foreign maritime nuclear projects, and
foreign military intelligence services; BIS has already imposed some of
these controls in Sec. 744.6 of the EAR. But these controls generally
only apply when the ``U.S. person'' has knowledge that their activities
are contributing to prohibited end uses or end users. China's military-
civil fusion effort makes it more difficult to tell which items are
made for restricted end uses, thereby diminishing the effect of these
existing controls. Accordingly, with this rule the United States is
taking additional steps to inform the public that `support' by ``U.S.
persons'' related to the provision of items used to produce the most
advanced semiconductors necessary for military programs of concern,
such as missile programs or programs related to nuclear explosive
devices, requires a license, even when the precise end use of such
items cannot be determined by the ``U.S. person.''
BIS has already identified on the Entity List 28 entities in the
PRC that are of concern for the national security and foreign policy
reasons identified in this rule. For example, four of these entities
were determined to be involved with supercomputers in the PRC that are
believed to be used in nuclear explosive activities. See 80 FR 8527,
Feb. 18, 2015. Five of the other entities were added to the Entity List
due to their involvement in exascale high performance computing and
ties to military end uses and end users. See 84 FR 29373, June 24,
2019. Finally, seven of the remaining entities were added to the Entity
List due to their involvement in activities that support China's
military actors, its destabilizing military modernization efforts, and/
or its WMD programs. See 86 FR 18438, April 9, 2021.
In addition, BIS notes that according to the April 9, 2021, Annual
Threat Assessment of the U.S. Intelligence Community, China ``will
continue the most rapid expansion and platform diversification of its
nuclear arsenal in its history, intending to at least double the size
of its nuclear stockpile during the next decade and to field a nuclear
triad'' and ``is building a larger and increasingly capable nuclear
missile force that is more survivable, more diverse, and on higher
alert than in the past, including nuclear missile systems designed to
manage regional escalation and ensure an intercontinental second-strike
capability.'' The types of semiconductor manufacturing items controlled
in this rule under new item-based and end-use-based controls produce
advanced integrated circuits that can be used in the ``development,''
``production,'' or ``use'' of such military items with WMD application.
In particular, the ability to produce indigenously within China these
types of advanced ICs (packaged or unpackaged) would be contrary to
U.S. national security and foreign policy interests.
As more fully discussed in Section IV.C below, this rule will more
comprehensively control ``U.S. persons'' `support' for the
``development'' or ``production'' of ICs (packaged or unpackaged) that
could contribute to WMD applications. Advanced logic, certain NOT AND
(NAND), and dynamic random-access memory (DRAM) chips have more
significant military, intelligence, and security applications,
including missile, nuclear, and conventional weapons applications.
Advanced ICs (packaged or unpackaged) with smaller physical dimensions
(e.g., produced at more advanced technology nodes) are of national
security concern because of the faster and more efficient
microelectronic operation, greater data storage capability, and greater
[[Page 62188]]
computational efficiencies that these ICs (packaged or unpackaged)
possess.
For example, a BIS rule from August 15, 2022 (87 FR 49981), stated
that reasons why Gate-All-Around transistor technology are the key to
next generation integrated circuits. This architecture allows for
higher current capability and lower parasitic capacitances that enable
50 percent faster chip operation compared to bulk technologies. It is
also inherently radiation hardened. Chips with these characteristics
would advance many commercial as well as military applications,
including defense and communication satellites. Because faster and more
efficient chip operation enables superior processing and aggregation
critical for WMD applications (e.g., data volumes and computational
loads necessary to model nuclear explosions, and missile simulations),
it is necessary and consistent with the Export Control Reform Act of
2018 (ECRA) to impose this ``U.S. persons'' activity control under the
EAR for `support,' including the provision of services and foreign-
produced items not subject to the EAR, but capable of producing such
integrated circuits (e.g., advanced logic, NAND, and DRAM integrated
circuits).
With this rule, BIS intends to limit the PRC's ability to obtain
semiconductor manufacturing capabilities to produce ICs (packaged or
unpackaged) for uses that are contrary to U.S. national security and
foreign policy interests.
II. Item-Based Controls on Semiconductor Manufacturing Equipment
As of the effective date of this rule on October 7, 2022, the
specified semiconductor manufacturing equipment is controlled for RS
reasons under the EAR, in order to immediately address concerns with
the PRC's demonstrated intent and ability to use the specified items
for activities of U.S. national security and foreign policy concern.
Due to the urgent need for this rule to counter China's actions, it
will not be published as a Section 1758 technology rule, which would
include a notice and comment period (50 U.S.C. 4817(a)(2)(C)). However,
BIS is interested in hearing from the public about the items in this
rule and the scope of the new control.
III. Overview of New Controls for Certain Advanced Computing Integrated
Circuits (ICs); Supercomputer End-Uses; Entity List Modifications
This rule addresses U.S. national security and foreign policy
concerns by: (1) adding to the Commerce Control List (CCL) (supplement
no. 1 to part 774 of the EAR) certain advanced computing chips and the
computers, ``electronic assemblies,'' and ``components'' that contain
them; (2) establishing a new end-use control for certain CCL items
destined for ``supercomputers''; and (3) creating two new Foreign
Direct Product (FDP) rules related to advanced computing and
``supercomputers'' and expanding an existing FDP rule for certain
entities listed on the Entity List.
A. Addition of Advanced Computing Chips, Computer Commodities That
Contain Them, and Associated ``Software'' and ``Technology'' to the
Commerce Control List (Supplement no. 1 to Part 774 of the EAR)
In the CCL, this rule adds new Export Control Classification
Numbers (ECCNs) 3A090 for specified high-performance ICs and 4A090
(computers, ``electronic assemblies,'' and ``components,'' not
elsewhere specified (n.e.s.), containing ICs in ECCN 3A090). Both new
ECCNs are controlled for RS reasons for exports or reexports to the
PRC, through the addition of a new RS control in Sec. 742.6(a)(6) of
the EAR. The two ECCNs are also controlled for anti-terrorism (AT)
reasons when destined to a country that has an AT:1 license requirement
(Iran Sec. 742.8, Syria Sec. 742.9, or N. Korea Sec. 742.19); see
also parts 744 and 746 of the EAR for additional controls on items
controlled for AT reasons. Associated ``software'' and ``technology''
controls on the CCL for the items controlled in ECCNs 3A090 and 4A090
are found in ECCNs 3D001, 3E001, 4D090, and 4E001, respectively, this
rule controls the ``software'' and ``technology'' for RS reasons when
destined to the PRC, in addition to the other reasons described in
those ECCN entries.
This rule revises Category 3, Product Group A, Note 3 because
controls for wafers (finished or unfinished) are now in multiple ECCNs
in Category 3.
As discussed above, to align the new RS license requirements for
ECCNs 3A090 and 4A090 in the associated ``technology'' and ``software''
ECCNs, the new RS license requirement has been added to the License
Requirement tables within ECCNs 3D001, 3E001, and 4E001 for these
items. Additionally, BIS is adding RS license requirements to the
License Requirement tables within ECCNs 5A992 and 5D992 to address
circumstances when these ECCNs meet or exceed the performance
parameters of ECCN 3A090 or 4A090.
New ECCN 4D090 is also created to accommodate the software
associated with the items controlled in ECCN 4A090, as such controls
could not be readily added to ECCN 4D001.
B. License Requirements for New Advanced Computing Items
This rule establishes a new unilateral RS control and brings the
newly identified advanced computing integrated circuits and related
computers under the control. If a relevant multilateral export control
regime adopts controls for the identified technology, BIS will adopt
multilateral controls in place of the unilateral control. This rule
also adds a new basis for RS controls to Sec. 742.6 of the EAR. This
newly added RS control imposes a license requirement for exports,
reexports, and transfers (in-country) of identified items to or within
the PRC. The license requirements under this new RS control for
advanced computing chips and computer commodities that contain them
found in new Sec. 742.6(a)(6). The license requirements in Sec.
742.6(a)(6) do not apply to deemed exports or reexports.
In addition, this RS control imposes a license requirement for the
export from the PRC to any destination worldwide of technology for the
design, development, or production of advanced computing chips (i.e.,
3E001 for 3A090), which has been developed by an entity headquartered
in the PRC, is the ``direct product'' of certain software subject to
the EAR, and is for the ``production'' of certain advanced computing
integrated circuits and computers or assemblies containing them,
consistent with Sec. 734.9(h)(1)(i)(B)(1) and (h)(2)(ii). BIS is
implementing this license requirement given the historical precedent of
chips designed by PRC entities being diverted for use in the PRC to
support PRC military modernization, and the inherent risk of this
occurring with these advanced computing chips. Parties to such
transactions should consider obtaining proof of the ultimate end use,
such as the Model Certificate described in supplement no. 1 to part
734. Entities outside of the PRC that receive 3E001 for 3A090
technology from China should consider confirming that a license was
obtained to export such technology from China. If no such license was
obtained, General Prohibition 10 (Sec. 736.2(b)(10) of the EAR)
prohibits any person from taking any further action with respect to
such technology that has been exported without a required BIS license.
The license review policy for this new RS control is added to a new
Sec. 742.6(b)(10) of the EAR. Most license applications for items
controlled under this RS control will be reviewed under a presumption
of denial based on the
[[Page 62189]]
risk of these items being used contrary to the national security or
foreign policy interests of the United States, including the foreign
policy interest of promoting the observance of human rights throughout
the world. The exception to the presumption of denial is for license
applications for semiconductor manufacturing items destined to end
users located in China that are headquartered in the United States or
in a country in Country Group A:5 or A:6; license applications
involving such end users will be considered on a case-by-case basis,
taking into account factors including technology level, customers and
compliance plans.
C. Anti-Terrorism Controls for Lower-Level Computing ICs and Computer
Commodities That Contain Them
In the CCL, this rule also revises ECCN 3A991 by adding a new
paragraph 3A991.p (specified high-performance ICs) and revises ECCN
4A994 by adding new paragraph 4A994.l (computers, ``electronic
assemblies,'' and ``components,'' not elsewhere specified (n.e.s.),
containing ICs in 3A991.p). These ECCNs, including these new
paragraphs, are controlled for anti-terrorism (AT Column 1) reasons.
Associated ``software'' and ``technology'' controls for ECCNs 3A991.p
and 4A994.l are found in ECCNs 3D991, 3E991, 4D994, and 4E992,
respectively. The Related Control Notes of ECCNs 3A991 and 4A994 are
amended to alert the reader about associated technology and software
ECCNs. As noted above, license requirements for AT Column 1 items are
identified in parts 742, 744, and 746 of the EAR.
Deemed exports and reexports of technology and software that
previously did not require a license, but now require a license because
of the controls implemented by this rule, will only require licenses if
the technology or software release exceeds the scope of the technology
or software that the foreign national already had lawful access to
prior to the controls implemented in this rule, e.g., a foreign
national who lawfully accessed technology or software specified in new
ECCN paragraphs 3A991.p or 4A994.l items prior to the effective date
would not need a new license to continue receiving the same technology
or software for ECCN paragraphs 3A991.p or 4A994.l items, but would
require a license for the release of controlled technology or software
different from that previously release, even if the technology or
software is classified under the same ECCNs.
This rule makes an editorial revision to the heading of ECCNs 3D001
and 4D994 by replacing the word ``equipment'' with ``commodities.''
This is to ensure that these ECCNs control software for not only
equipment, but also parts, components, and assemblies.
D. License Exception Eligibility for New Advanced Computing Items
The only license exceptions available for exports or reexports of
items controlled under the new ECCNs (3A090, 4A090, and the associated
software and technology in 3D001, 3E001, 4D090, and 4E001) are listed
in new Sec. 740.2(a)(9) of the EAR. Similar to existing paragraph
(a)(8), this new paragraph contains a list of appropriate license
exceptions for the license requirements implemented in this rule. This
restriction on the availability of license exceptions also applies to
any integrated circuit, computer, or assembly meeting the performance
parameters of new ECCNs 3A090 and 4A090 but classified elsewhere on the
CCL (e.g., under ECCN 5A002 due to encryption functionality). The only
license exceptions available for the foregoing items are: Servicing and
replacement of parts and equipment (RPL) under Sec. 740.10;
Governments, international organizations, International Inspections
Under the Chemical Weapons Convention, and the International Space
Station (GOV), restricted to eligibility under the provisions of Sec.
740.11(b)(2)(ii) (exports, reexports, and transfers (in-country) made
by or consigned to a department or agency of the United States
Government); and Technology and Software Unrestricted (TSU), under the
provisions of Sec. 740.13(a) and (c). License Exceptions RPL and TSU
require that the equipment or software must have been shipped to their
current location in accordance with U.S. law and continue to be legally
used, therefore these license exceptions will authorize support, i.e.,
repairs and software updates, for items that were lawfully exported.
These license exceptions will not overcome the new license requirement
imposed in this interim final rule under new Sec. 744.23
``Supercomputer'' and semiconductor manufacturing end use''),''
implemented in this interim final rule, because no license exceptions
are available to overcome the license requirement in that provision of
the EAR. As discussed further below, new Sec. 744.23 applies
restrictions on the use of license exceptions to or within China.
BIS estimates these new license requirements will result in an
additional 1,600 license applications being submitted to BIS annually.
E. Revising the Entity List Foreign Direct Product Rule Under Sec.
734.9(e) and Establishing Two New Foreign Direct Product Rules for
Advanced Computing and ``Supercomputers'' Under Sec. 734.9(h) and (i)
In Sec. 734.9 (Foreign-Direct Product (FDP) Rules), this rule
revises Sec. 734.9(e) (Entity List FDP rule) to add a new product
scope and end-user scope for entities on the Entity List identified
with a new footnote 4 and adds new paragraphs (h) (Advanced computing
FDP rule) and (i) (``Supercomputer'' end-use FDP rule) to the EAR. As
with the other FDP rules, these new FDP rules define when certain
foreign made items are subject to the EAR. License requirements
associated with these foreign direct products are found in Sec.
742.6(a)(6) of the EAR, as well as in new Sec. 744.23, described
below. The license requirement for the Entity List entities designated
with footnote 4, is found in a new Sec. 744.11(a)(2)(ii) of the EAR
and in such entities' entries in supplement no. 4 to part 744, as
described below.
1. Revised Entity List FDP Rule
The revised Entity List FDP rule, set forth in Sec. 734.9(e), now
identifies two footnotes on the Entity List that indicate application
of an Entity List FDP rule. The revision made in this interim final
rule does not alter the scope or requirements of the existing Entity
List FDP rule that applies to entities designated with footnote 1 on
the Entity List, but this revision required BIS to renumber the
paragraphs of the existing Entity List FDP rule. This rule also revises
the heading of paragraph (e)(1)(i)(B) to reflect alignment with the
unchanged scope of the paragraph, as the plant or `major component' of
the plant that must be a ``direct product'' of U.S.-origin
``technology'' or ``software.'' This new Entity List FDP rule states
that any foreign-produced item is subject to the EAR if: (1) it meets
the product scope in Sec. 734.9(e)(2)(i)--either paragraph
(e)(2)(i)(A) or (B); and (2) there is ``knowledge'' that an entity
designated with footnote 4 on the Entity List is either involved in any
of the activities in paragraph (e)(2)(ii)(A) or is a party to the
transaction as described in paragraph (e)(2)(ii)(B).
2. Advanced Computing FDP Rule
The new ``Advanced computing FDP rule'' under paragraph (h)
indicates that any foreign-produced item is subject to the EAR if it
meets the product scope in Sec. 734.9(h)(1)--either paragraph
(h)(1)(i)
[[Page 62190]]
or (ii)--and destination scope in paragraph (h)(2). Paragraph (h)(1)(i)
(``Direct product'' of ``technology'' or ``software'') specifies that a
foreign-produced item meets the product scope of this new advanced
computing FDP rule if it meets the conditions identified in (both)
paragraphs (h)(1)(i)(A) (i.e., the foreign-produced item is the
``direct product'' of certain specified ``software'' or ``technology''
subject to the EAR) and (B) (the foreign-produced item is specified in
new ECCN 3A090 or 4A090 or is an integrated circuit, computer,
``electronic assembly,'' or ``component'' specified elsewhere on the
CCL which meets or exceeds the limit in the performance parameters of
ECCN 3A090 or 4A090, or is an item used in the ``development,''
``production,'' ``use,'' operation, installation (including on-site
installation), maintenance (checking), repair, overhaul, or
refurbishing of any item in the PRC used in the ``development'' or
``production,'' of certain integrated circuits).
The product scope in Sec. 734.9(h) also includes foreign-produced
items specified in ECCN 3A090 or 4A090 or other specified items that
are products of a complete plant or `major component' of a plant,
whether made in the United States or a foreign country, that itself is
a ``direct product'' of certain specified U.S.-origin ``technology'' or
``software.''
Paragraph (h)(2) (Destination scope) specifies that a foreign-
produced item meets the destination scope of this paragraph if there is
``knowledge'' that the foreign-produced item is being exported,
reexported, or transferred (in-country) to or within the PRC, or being
incorporated into any ``part,'' ``component,'' ``computer,'' or
``equipment'' destined to the PRC.
3. Supercomputer End-Use FDP Rule
The new ``Supercomputer end-use FDP rule'' under Sec. 734.9(i) of
the EAR makes any foreign-produced item subject to the EAR if it meets
the product scope in paragraph (i)(1)--either paragraph (i)(1)(i) or
(ii)--and the end-use and country scope in paragraph (i)(2) of Sec.
734.9. Paragraph (i)(1)(i) (``Direct product'' of ``technology'' or
``software'') of this new Supercomputer end-use FDP rule specifies that
a foreign-produced item meets the product scope if it meets the
conditions identified in paragraph (i)(1)(i), i.e., meaning the
foreign-produced item is the ``direct product'' of certain specified
``technology'' or ``software'' subject to the EAR. The product scope
also includes foreign-produced items that are the products of a
complete plant or `major component' of a plant, whether made in the
United States or a foreign country, that itself is a ``direct product''
of certain specified U.S.-origin ``technology'' or ``software.'' The
product scope for this FDP rule generally matches the product scope for
the new ``supercomputer'' end use rule in Sec. 744.23 of the EAR.
Paragraph (i)(2) (Country and end-use scope) of Sec. 734.9(i)
specifies that a foreign-produced item meets the country and end-use
scope if there is ``knowledge'' that the foreign produced items will be
1) used in the design, ``development,'' ``production,'' operation,
installation (including on-site installation), maintenance (checking),
repair, overhaul, or refurbishing of a ``supercomputer'' located in or
destined to the PRC; or 2) incorporated into, or used in the
``development,'' or ``production,'' of any ``part,'' ``component,'' or
``equipment'' that will be used in a ``supercomputer'' located in or
destined to the PRC.
The end-use scope for this FDP rule generally matches the end-use
requirement for the new ``supercomputer'' end-use control in Sec.
744.23 of the EAR. Because the product scope, end-use scope, and
country scope of this FDP rule generally match the license requirements
in Sec. 744.23 of the EAR, items that meet the terms of this foreign
direct product rule should also require a license under Sec. 744.23 of
the EAR.
Relatedly, Sec. 772.1 of the EAR is amended by adding a definition
for ``supercomputer,'' as follows: ``A computing ``system'' having a
collective maximum theoretical compute capacity of 100 or more double-
precision (64-bit) petaflops or 200 or more single-precision (32-bit)
petaflops within a 41,600 ft\3\ or smaller envelope.''
F. Instituting a New End-Use and End-User Control for
``Supercomputers'' Under Sec. 744.23 of the EAR
In part 744 (End-Use and End-User Controls), this rule adds a new
Sec. 744.23 (``Supercomputer'' and semiconductor end use). New Sec.
744.23 imposes an end-use control that is supplemental to CCL-based
license requirements and adds two prohibitions under paragraphs (a) and
(b). Paragraph (a) specifies that you may not export, reexport, or
transfer (in-country) an item meeting the product scope in paragraph
(a)(1) when you have ``knowledge'' at the time of export, reexport, or
transfer (in-country) that the item will be used, directly or
indirectly, in an applicable end use in paragraph (a)(2). In addition,
new paragraph (a)(1)(iii) imposes a license requirement on any item
subject to the EAR when you have ``knowledge'' at the time of the
export, reexport, or transfer (in-country) that the item is destined
for a specified end use, i.e., the ``development'' or ``production'' of
integrated circuits at a semiconductor fabrication ``facility'' located
in China that fabricates certain integrated circuits.
Paragraph (a)(1) sets forth the product scope, which generally
aligns with the new Supercomputer FDP rule in Sec. 734.9(i), but this
license requirement also applies to U.S.-origin items and other items
subject to the EAR--not just the foreign-produced items subject to the
EAR under the Supercomputer FDP rule.
Paragraph (a)(2) specifies the end-use scope, which includes the
design, ``development,'' ``production,'' operation, installation
(including on-site installation), maintenance (checking), repair,
overhaul, or refurbishing of a ``supercomputer'' located in or destined
to the PRC; incorporation of an item meeting the product scope of
paragraph (a)(1) into any ``component'' or ``equipment'' that will be
used in a ``supercomputer'' located in or destined to the PRC; the
``development'' or ``production,'' of integrated circuits at a
semiconductor fabrication ``facility'' located in the PRC that
fabricates integrated circuits with specified parameters or if you do
not know whether such semiconductor fabrication ``facility'' can
produce such integrated circuits; or the ``development,''
``production,'' ``use,'' operation, installation (including on-site
installation), maintenance (checking), repair, overhaul, or
refurbishing of any item in the PRC used in the ``development'' or
``production,'' of integrated circuits.
This rule adds paragraph (b) (Additional prohibition on persons
informed by BIS) to new Sec. 744.23 to include an ``is informed''
process similar to other part 744 end-use controls. New paragraph (b)
specifies that BIS may inform persons, either individually by specific
notice or through amendment to the EAR, that a license is required for
certain exports, reexports, or transfers (in-country) of any item
subject to the EAR to a certain end user because there is an
unacceptable risk of use in, or diversion to, the activities specified
in paragraph (a)(1) of Sec. 744.23. Consistent with other ``is
informed'' provisions of the EAR, this rule specifies in paragraph (b)
that a specific notice may be given only by, or at the direction of,
the Deputy Assistant Secretary for Export Administration. In addition,
paragraph (b) specifies that when such notice is provided orally, it
will be followed by a written notice within two working
[[Page 62191]]
days. This rule also clarifies that the absence of any such
notification under paragraph (b) does not excuse persons from
compliance with the license requirements of paragraph (a)(1) or (2) of
Sec. 744.23 of the EAR.
This rule also adds paragraph (c) to new Sec. 744.23 to specify
that no license exceptions are available to overcome the license
requirements in Sec. 744.23. As with other end-use controls in part
744 of the EAR, this limitation on license exceptions applies even if
the items also require a license under another provision of the EAR
that is not so limited. For example, even if an item categorized under
ECCN 3A001 is ordinarily eligible for export to China under License
Exception RPL (for replacement parts), it would not be eligible for
License Exception RPL if it is for a ``supercomputer'' that is located
in or destined to the PRC.
Finally, this rule adds paragraph (d) (License Review Standards) to
specify that there is a presumption of denial for applications to
export, reexport, or transfer (in-country) of items that meet the
product scope in paragraph (a)(1) of Sec. 744.23 and the end use scope
of paragraph (a)(2) of that section, except for certain end users in
China that are headquartered in the United States or in a Country Group
A:5 or A:6 country. This license review standard applies even though
the items subject to this end-use control may require licenses to the
PRC or other destinations for multiple reasons, including for reasons
that have a more favorable licensing policy (e.g., 3A001 items require
a license for China and would normally be reviewed under the license
review policy described in Sec. 742.4(b)(7), but for an end-use
described in new Sec. 744.23, BIS will review the license application
under the presumption of denial policy described above). The new
paragraph also specifies that when an entity listed under supplement
no. 4 to part 744 of the EAR (i.e., the Entity List) and designated
with a reference to footnote 4 are a party to the transaction, the
license review policy for foreign-produced items subject to a license
requirement is set forth in such entity's entry in supplement no. 4 to
part 744 of the EAR.
BIS estimates new license requirements under Sec. 744.23 will
result in an additional five (5) license applications being submitted
to BIS annually.
In Sec. 744.1 (General provisions), as a conforming change to
addition of Sec. 744.23, this rule adds one sentence to specify that
the end use and end-user controls in part 744 also extend to those in
new Sec. 744.23.
Provisions of this paragraph regarding the ``development'' or
``production,'' of integrated circuits at certain semiconductor
manufacturing ``facilities'' located in China are described below in
Section IV.B of this preamble.
G. Revisions to the Entity List Under Supplement No. 4 to Part 744 of
the EAR
1. Overview of Entity List
The Entity List (supplement no. 4 to part 744 of the EAR)
identifies entities for which there is reasonable cause to believe,
based on specific and articulable facts, that the entities have been
involved, are involved, or pose a significant risk of being or becoming
involved in activities contrary to the national security or foreign
policy interests of the United States. The EAR imposes additional
license requirements on and limits the availability of most license
exceptions for exports, reexports, and transfers (in-country) to listed
entities.
The license review policy for each listed entity is identified in
the ``License Review Policy'' column on the Entity List, and the impact
on the availability of license exceptions is described in the relevant
Federal Register document that added the entity to the Entity List. Any
license application for an export, reexport, or transfer (in-country)
involving an entity on the Entity List that is subject to an additional
EAR license requirement will also be reviewed in accordance with the
license review policies in the sections of the EAR applicable to those
license requirements. For example, for Russian entities on the Entity
List, if the export, reexport, or transfer (in-country) is subject to a
license requirement in Sec. 746.6, Sec. 746.8, or Sec. 746.10, the
license application will be reviewed in accordance with the license
review policies in those sections in addition to the specified license
review policy under the Entity List entry.
BIS places entities on the Entity List pursuant to parts 744
(Control Policy: End-User and End-Use Based) and 746 (Embargoes and
Other Special Controls) of the EAR. Paragraphs (b)(1) through (5) of
Sec. 744.11 include an illustrative list of activities contrary to the
national security or foreign policy interests of the United States.
The End-User Review Committee (ERC), composed of representatives of
the Departments of Commerce (Chair), State, Defense, Energy and, where
appropriate, the Treasury, makes all decisions regarding additions to,
removals from, or other modifications to the Entity List. The ERC makes
all decisions to add an entry to the Entity List by majority vote and
makes all decisions to remove or modify an entry by unanimous vote.
2. Entity List Decisions: Revisions to the Entity List
This rule expands the scope of licensing requirements for 28
existing entities on the Entity List that are located in the PRC and
were added to the Entity List between 2015 and 2021. Certain of the
entities are developing supercomputers believed to be used in nuclear
explosive activities; these entities have been placed on the Entity
List triggering license requirements for items destined to those
specific entities. For example, see 80 FR 8527, Feb. 18, 2015
(``National University of Defense Technology (NUDT) has used U.S.-
origin multicores, boards, and (co)processors to produce the TianHe-1A
and TianHe-2 supercomputers located at the National Supercomputing
Centers in Changsha, Guangzhou, and Tianjin. The TianHe-1A and TianHe-2
supercomputers are believed to be used in nuclear explosive activities
as described in Sec. 744.2(a) of the EAR.'') Similarly, BIS has added
multiple other Chinese entities involved in the ``development'' and
``production'' of integrated circuits to the Entity List based on their
involvement with WMD as well as military end uses and end users. For
example, on April 9, 2021 (86 FR 18437), BIS added seven Chinese
entities to the Entity List ``on the basis of their procurement of
U.S.-origin items for activities contrary to the national security and
foreign policy interests of the United States. Specifically, these
entities are involved in activities that support China's military
actors, its destabilizing military modernization efforts, and/or its
[WMD] programs.'' The types of computing facilities located at these
entities are used for designing stealth technologies, space planes,
hypersonic missiles, and other military applications including nuclear
weapons design. Most specifically, with the April 9 rule, BIS added
chip developer Tianjin Phytium Information Technology (also known as
Phytium) to the Entity List.
Even though the license requirement for these entities remains all
items subject to the EAR, this rule changes the scope of items subject
to the EAR for transactions involving these entities through the
revised Entity List FDP rule in Sec. 734.9(e)(2) of the EAR and adds a
new license requirement in Sec. 744.11 of the EAR that is specific to
foreign produced items for these entities, both discussed elsewhere in
this interim final
[[Page 62192]]
rule. This rule adds a footnote 4 to the entities, and a reference to
the Entity List FDP rule in the license requirements column of the
Entity List. With these changes, additional foreign-produced items will
now be subject to the EAR and require a license when destined to or for
these 28 entities. The agencies represented on the ERC have approved
the changes.
The 28 revised entities are:
<bullet> Beijing Institute of Technology;
<bullet> Beijing Sensetime Technology Development Co., Ltd.;
<bullet> Changsha Jingjia Microelectronics Co., Ltd.;
<bullet> Chengdu Haiguang Integrated Circuit;
<bullet> Chengdu Haiguang Microelectronics Technology;
<bullet> China Aerospace Science and Technology Corporation (CASC)
9th Academy 772 Research Institute
<bullet> Dahua Technology;
<bullet> Harbin institute of technology;
<bullet> Higon;
<bullet> IFLYTEK;
<bullet> Intellifusion;
<bullet> Megvii Technology;
<bullet> National Supercomputer Center Zhengzhou;
<bullet> National Supercomputing Center Changsha (NSCC-CS);
<bullet> National Supercomputing Center Guangzhou (NSCC-GZ);
<bullet> National Supercomputing Center Jinan;
<bullet> National Supercomputing Center Shenzhen;
<bullet> National Supercomputing Center Tianjin (NSCC-TJ);
<bullet> National Supercomputing Center Wuxi (NSCC-WX);
<bullet> National University of Defense Technology;
<bullet> New H3C Semiconductor Technologies Co., Ltd.;
<bullet> Northwestern Polytechnical University;
<bullet> Shanghai High-Performance Integrated Circuit Design
Center;
<bullet> Sugon;
<bullet> Sunway Microelectronics;
<bullet> Tianjin Phytium Information Technology;
<bullet> Wuxi Jiangnan Institute of Computing Technology; and
<bullet> Yitu Technologies.
To assist with clarity, this rule revises Sec. 744.11 by making
editorial changes to the paragraph that imposes a license requirement
on foreign-produced items for footnote 1 entities. This rule adds
double quotes around the term ``direct product'' in the paragraph
heading for footnote 1 entities, because that term is defined in part
772, and updates the citation and description of the prohibition for
footnote 1 entities in paragraph (e)(1)(i). This rule also adds
paragraph (a)(2) to impose a license requirement on foreign-produced
items for footnote 4 entities. The new paragraph prohibits, without a
license, the reexport, export from abroad, or transfer (in-country) of
any foreign-produced item subject to the EAR pursuant to Sec.
734.9(e)(2)(i) of the EAR when an entity designated with footnote 4 on
the Entity List in supp. no. 4 to part 744 of the EAR is a party to the
transaction. This prohibition on foreign-produced items for these
identified Chinese entities is necessary because many supercomputer
parts and components based on U.S. technology and software are not
produced in the United States, and more conventional export control
measures would not effectively limit the U.S. contribution to Chinese
advanced computing efforts by these entities.
IV. Overview of New Controls: Certain Semiconductor Manufacturing
Items; and Integrated Circuits End Use
This rule further addresses U.S. national security and foreign
policy concerns by making three changes related to semiconductor
manufacturing equipment. First, BIS adds to the CCL certain advanced
semiconductor manufacturing equipment under a new ECCN 3B090,
controlled for RS and AT reasons of control with limited license
exception availability. It also adds references to the new ECCN 3B090
under the related ``software'' and ``technology'' controls under ECCNs
3D001 and 3E001. Second, this rule establishes a new end-use control
for any item subject to the EAR when the exporter, reexporter, or
transferor knows the item is for ``development'' or ``production'' of
ICs (packaged or unpackaged) at a semiconductor fabrication
``facility'' located in the PRC that fabricates ICs (packaged or
unpackaged) that meet certain specified criteria under Sec. 744.23.
Finally, this rule informs the public that certain specific ``U.S.
persons'' activity to `support' the ``development'' or ``production''
of ICs (packaged or unpackaged) that meet certain criteria under Sec.
744.6 of the EAR requires a license.
A. Addition of Semiconductor Manufacturing Equipment, and Associated
``Software'' and ``Technology'' to the Commerce Control List
(Supplement No. 1 to Part 774 of the EAR)
This rule adds new ECCN 3B090 to the CCL for specified
semiconductor manufacturing equipment. The new ECCN is controlled for
RS reasons and a license is required when the items it controls are
destined to the PRC. This rule imposes this license requirement by
adding ECCN 3B090 to an RS control in Sec. 742.6(a)(6) of the EAR.
ECCN 3B090 will also be controlled for AT reasons when destined to a
country that has AT:1 license requirement (Iran Sec. 742.8, Syria
Sec. 742.9, or North Korea Sec. 742.19); see also parts 744 and 746
of the EAR for additional controls on items controlled for AT reasons.
Associated ``software'' and ``technology'' controls in the CCL for
items in ECCN 3B090 are found in ECCNs 3D001 and 3E001, respectively;
the ``software'' and ``technology'' is also controlled for RS reasons
(which this rule adds as a new reason for control) when destined to the
PRC, and for other reasons described in the ECCN entries. Specifically,
this rule adds the new RS license requirement to the License
Requirement tables within ECCNs 3D001 and 3E001.
As described in new Sec. 742.6(b)(10), license applications for
semiconductor manufacturing items, such as semiconductor equipment,
destined to end users in China that are headquartered in the United
States or in a country in Country Group A:5 or A:6 will be considered
on a case-by-case basis, taking into account factors including
technology level, customers and compliance plans.
License requirements for AT Column 1 items are identified in part
742 of the EAR; the items subject to these requirements are also
subject to the end-use and end-user controls in part 744 of the EAR as
well as many of the country and sector controls imposed in part 746 of
the EAR, including controls that apply to Russia and Belarus under
Sec. 746.8(a)(1) of the EAR. If, in the future, a multilateral export
control regime adopts controls for the specified items controlled in
this interim final rule, BIS will amend the controls implemented in
this rule as needed to implement multilateral controls in place of the
unilateral control.
The only license exception available for exports or reexports of
items controlled under new ECCN 3B090 (and the associated software and
technology in ECCNs 3D001 and 3E001) is listed under Sec. 740.2(a)(9)
of the EAR, which is an existing paragraph that contains a list of
license exceptions that are appropriate for the license requirements
implemented in this rule. The only available license exception is
License Exception Governments, International organizations,
international inspections under the Chemical Weapons Convention, and
the International Space Station (GOV), restricted to eligibility under
the provision of Sec. 740.11(b)(2)(ii)
[[Page 62193]]
(exports, reexports, and transfers (in-country) made by or consigned to
a department or agency of the United States Government).
BIS estimates these new license requirements and the restrictions
on license exceptions described below will result in an additional
fifty (50) license applications being submitted to BIS annually.
B. Instituting a New End-Use Control for Any Item Subject to the EAR
for the ``Development'' or ``Production,'' of Integrated Circuits at
Certain Semiconductor Manufacturing ``Facilities'' Located in the PRC
In part 744 (End-Use and End-User Controls), this rule adds Sec.
744.23 (``Supercomputers'' and semiconductor manufacturing end use), to
impose an end-use control that is supplemental to CCL-based license
requirements. BIS imposes the new end-use control by adding
prohibitions under paragraphs (a)(1)(iii) through (v). Paragraph (a)
specifies that you may not export, reexport, or transfer (in-country)
an item meeting the product scope in paragraph (a)(1) when you have
``knowledge'' at the time of export, reexport, or transfer (in-country)
that the item will be used, directly or indirectly, in an applicable
end use in paragraph (a)(2).
As with all end-use controls under the EAR, exporters, reexporters,
and transferors are responsible for reviewing their transactions in
accordance with the ``Know Your Customer'' Guidance in supplement no. 3
to part 732 of the EAR. If your customer is a semiconductor
manufacturing ``facility'' involved in the end uses set forth in
paragraph (a)(2) of Sec. 744.23, in addition to the best practice of
obtaining and end-use statement from your customer, you should also
evaluate all other available information to determine whether a license
is required pursuant to Sec. 744.23. If your customer is a reseller,
distributor, or other intermediary transaction party, it is a good
compliance practice to attempt to obtain confirmation of the actual end
use and end user of your products. If the intermediary party (e.g.,
reseller, distributor) cannot furnish these details at the time of the
proposed export or reexport because it is a prospective order and no
specific customer has yet been identified, as a good compliance
practice you may attempt to obtain a written statement that the
intermediary party understands the license requirements in Sec. 744.23
and will either: (a) inform you of the actual end use and end user,
once known, so you may evaluate whether a license is required for any
proposed in-country transfer, or (b) evaluate the end use and end user
and apply for any required license for any proposed in-country
transfer. The new prohibition this rule adds to Sec. 744.23(a)(1)(iii)
through (v) and (a)(2)(iii) through (v) is subject to BIS's ``is
informed'' process under paragraph (b) (Additional prohibition on
persons informed by BIS).
As specified under paragraph (c) to newly added Sec. 744.23, no
license exceptions are available to overcome the license requirements
in Sec. 744.23.
Paragraph (d) (License Review Standards) specifies that there is a
presumption of denial for applications to export, reexport, or transfer
(in-country) items subject to the license requirements of Sec. 744.23,
which will also apply for the ``development'' or ``production,'' of
integrated circuits at a semiconductor fabrication ``facility'' located
in the PRC that fabricates certain integrated circuits and the
``development'' or ``production'' in the PRC of any ``parts,''
``components'' or ``equipment'' specified under certain ECCNs. This
license review standard applies even though the items subject to this
end-use control may require licenses to the PRC or other destinations
for multiple reasons, including for reasons that have a more favorable
licensing policy.
BIS estimates new license requirements under Sec.
744.23(a)(1)(iii) through (v) and (a)(2)(iii) through (vi) will result
in an additional twenty-five (25) license applications being submitted
to BIS annually.
Provisions of this paragraph regarding ``supercomputers'' are
described above in Section III.F of this preamble.
C. Providing Public Notice That ``U.S. Person'' `Support' for
``Development'' or ``Production,'' of Integrated Circuits That Meet
Certain Specified Criteria Implicates the General Prohibitions in Sec.
744.6(b) of the EAR
In part 744, this rule revises Sec. 744.6 (Restrictions on
specific activities of ``U.S. persons'') to inform ``U.S. persons''
that `support' for the ``development'' or ``production,'' of integrated
circuits that meet certain specified criteria in the PRC implicates the
general prohibitions set forth in Sec. 744.6(b) of the EAR and is
therefore subject to a BIS license requirement. As authorized in ECRA
(50 U.S.C. 4812(a)(2)), Sec. 744.6 specifies that no ``U.S. person''
may without a license from BIS `support' the WMD- and military-
intelligence-related end uses and end users set forth in paragraphs
(b)(1) through (5). `Support' is defined in paragraph (b)(6) to
encompass a number of activities, including, but not limited to,
shipping, transmitting, or transferring (in-country) items not subject
to the EAR; facilitating such shipment, transmission, or transfer (in-
country); or servicing items not subject to the EAR.
As described above, semiconductor manufacturing items enable the
``development'' or ``production'' of advanced ICs that may contribute
to the WMD-related end uses set forth in Sec. 744.6(b). Section
744.6(c) of the EAR provides that BIS may inform ``U.S. persons''
through amendment to the EAR published in the Federal Register that a
license is required because an activity could involve the type of
`support' defined in paragraph (b)(6) to the end uses and end users set
forth in paragraphs (b)(1) through (5). Accordingly, BIS is amending
the EAR in this rule to set forth the current text of Sec. 744.6(c) in
new Sec. 744.6(c)(1) and to add a new Sec. 744.6(c)(2) to inform
``U.S. persons'' of activities related to the ``development'' or
``production'' of ICs that could involve `support' to WMD and missile
end uses set forth in paragraph (b) and are therefore subject to a BIS
license requirement.
Specifically, new paragraph (c)(2) informs ``U.S. persons'' that
the shipment, transmission, or transfer (in-country) to or within the
PRC of any item not subject to the EAR; facilitation of such shipment,
transmission, or transfer (in-country); or servicing of any item not
subject to the EAR to or within the PRC when such activity would assist
the ``development'' or ``production'' of ICs meeting certain parameters
is subject to a license requirement. Likewise, BIS is informing ``U.S.
persons'' that the shipment, transmission, or transfer (in-country) of
certain items not subject to the EAR that meet specific technical
parameters set forth on the CCL; facilitation of such shipment,
transmission, or transfer (in-country); or servicing of such items to
or within the PRC when such activity would assist the ``development''
or ``production'' of ICs, but you cannot determine the technical
parameters of those ICs requires a license. A license is also required
for ``U.S. persons'' activities involving shipping, transmitting, or
transferring (in-country) or facilitating the shipment, transmission,
or transfer (in-country) to or within the PRC any item not subject to
the EAR and meeting the parameters of ECCN 3B090, 3D001 (for 3B090), or
3E001 (for 3B090) regardless of end use or end user; or servicing any
item not subject to the EAR located in the PRC and meeting the
parameters of ECCN 3B090, 3D001 (for 3B090), or 3E001 (for
[[Page 62194]]
3B090), regardless of end use or end user.
This is consistent with the scope of the end-use restriction for
items subject to the EAR in new Sec. 744.23(a)(2)(iii).
As specified under paragraph (d)(1) (Exceptions), no license
exceptions are available to overcome the license requirements in Sec.
744.6(b)(1) through (4) or (c)(2).
Under paragraph (e)(3) (License Review Standards), there is a
presumption of denial for applications to export, reexport, or transfer
(in-country) items subject to the license requirements of Sec.
744.6(c)(2) except for license applications for end users in China
headquartered in the United States or in a country in Country Group A:5
or A:6, which will be considered on a case-by-case basis taking into
account factors including technology level, customers and compliance
plans.
BIS estimates new license requirements under Sec. 744.6(c)(2)(i)
will result in an additional five (5) license applications being
submitted to BIS annually.
V. Measures To Minimize Short Term Impacts on Supply Chains
BIS is imposing the controls described in this rule to protect
critical U.S. national security and foreign policy interests. BIS is
aware that the new controls being imposed in this rule may result in
the disruption of certain companies' activities involving China, in
particular in relation to their supply chains. In order to give
companies time to become familiar with the new controls being
implemented, this rule implements two changes to minimize the short
term impact on supply chains in transactions that do not appear to
implicate national security or foreign policy concerns.
A. Certification of Compliance With New FDP Rule
In Sec. 734.9(h), this rule adds a new paragraph (h)(3)
(Certification) to assist exporters, reexporters, and transferors in
determining whether the items being exported, reexported, or
transferred (in-country) are subject to the EAR based on the advanced
computing FDP rule under Sec. 734.9(h). The model certificate provided
by BIS in new supplement no. 3 to part 734, is not required under the
EAR, but is provided to assist exporters, reexporters, and transferors
with the process of resolving potential red flags regarding whether an
item is subject to the EAR based on Sec. 734.9(h). The model
certificate contemplates inclusion of information described in
paragraph (b) of supplement no. 1 to part 734 and the signature by an
official or designated employee of the certifying company. If a person
in the supply chain is unable to obtain the certification due diligence
is suggested and a BIS authorization may be required for the next set
of recipients in the supply chain. While BIS expects that this
certificate will be useful in facilitating understanding the
application of the EAR to an item, BIS does not view use of this
certificate alone to be a comprehensive due diligence process.
BIS has determined that use of the certificate will protect U.S.
national security and foreign policy interests. BIS expects it will
also limit the burden on entities participating in supply chains by
allowing them to proceed with transactions within their supply chains.
In Sec. 762.2 this rule revises paragraph (b) to add a reference
to the FDP supply chain certification that this rule added under new
Sec. 734.9(h). This interim final rule makes this change by
redesignating paragraphs (b)(3) through (31) as paragraphs (b)(4)
through (32) and adding new paragraph (b)(3). In Sec. 740.10
(Servicing and replacement of parts and equipment (RPL)), this interim
final rule makes a conforming change to paragraph (c)(2) in Sec. 762.2
to remove the references to Sec. 762.2(b)(4), (47), and (48) and
instead include a reference to Sec. 762.2(b).
B. Temporary General License--Supply Chain
This rule establishes a temporary general license (TGL) in new
paragraph (d) of supplement no. 1 to part 736 that allows, from October
21, 2022, through April 7, 2023, exports, reexports, in-country
transfers, and exports from abroad destined to or within China by
companies not headquartered in Country Groups D:1 or D:5 or E to
continue or to engage in integration, assembly (mounting), inspection,
testing, quality assurance, and distribution of items covered by ECCN
3A090, 4A090, and associated software and technology in ECCN 3D001,
3E001, 4D090, or 4E001; or any item that is a computer, integrated
circuit, ``electronic assembly'' or ``component'' and associated
software and technology, specified elsewhere on Commerce Control List
(supplement no. 1 to part 774), which meets or exceeds the performance
parameters of ECCN 3A090 or 4A090. The purpose of this TGL is to avoid
disruption of supply chains for items covered by ECCNs that are
ultimately destined to customers outside of China. This TGL does not
authorize the export, reexport, in-country transfer, or export from
abroad to ``end-users'' or ``ultimate consignees'' in China. This TGL
is only for companies that engage in the specific activities authorized
under this TGL. The TGL does not overcome any license requirements set
forth in the EAR involving an entity on the Entity List or other
prohibited end use and end user restrictions (e.g., those applicable to
military end uses and end users). Prior to any export, reexport, or
transfer (in-country) to China pursuant to this TGL, the exporter,
reexporter, or transferor, must retain the name of the entity receiving
the item and the complete physical address of where the item is
destined in China and the location of that company's headquarters.
In response to this interim final rule, BIS welcomes comments on
the temporary general license, including comments on how important the
temporary general license is for supply chains to continue functioning,
comments on dependency of certain aspects of the supply chain on
companies in China, overview of steps taken by companies to reduce
dependency on China for those aspects of their supply chains, and if a
request to extend the temporary license is made to provide a rationale
for why an extension may be warranted. BIS, in consultation with the
other agencies, will solely determine whether any extension or
modification of the TGL is warranted, but comments from the public are
welcome and may help inform any subsequent decisions on the TGL. Upon
expiration of the TGL, exporters will need to apply for an
individually-validated export license to export such advanced computing
chips, assemblies containing them, and related software and technology
to the PRC for supply chain-related activities, such as assembly,
inspection, quality assurance, and distribution. Such license
applications will be reviewed consistent with the licensing policy set
forth in new Sec. 742.6(b)(10), as described above in Section III.B.
Savings Clause
Shipments of items removed from license exception eligibility or
eligibility for export, reexport or transfer (in-country) without a
license as a result of this regulatory action that were on dock for
loading, on lighter, laden aboard an exporting carrier, or en route
aboard a carrier to a port of export, on October 7, 2022, may continue
to the destination under the previous license exception eligibility or
without a license so long as they have been exported, reexported or
transferred (in-country) before November 7, 2022. Any such items not
actually exported, reexported or transferred (in-country) before
midnight, on November 7, 2022, require a license
[[Page 62195]]
in accordance with this interim final rule.
Deemed exports and reexports of technology and software related to
ECCNs 3A991.p and 4A994.l that previously did not require a license,
but now require a license because of the controls implemented by this
rule, will only require licenses if the technology or software release
exceeds the scope of the technology or software that the foreign
national already had access to prior to the implementation of controls
in this rule.
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 the Export Control Reform Act of 2018 (ECRA) (codified, as
amended, at 50 U.S.C. Sections 4801-4852). ECRA provides the legal
basis for BIS's principal authorities and serves as the authority under
which BIS issues this rule. To the extent it applies to certain
activities that are the subject of this rule, the Trade Sanctions
Reform and Export Enhancement Act of 2000 (TSRA) (codified, as amended,
at 22 U.S.C. Sections 7201-7211) also serves as authority for this
rule.
Rulemaking Requirements
1. This interim final rule is not a ``significant regulatory
action'' because it ``pertain[s]'' to a ``military or foreign affairs
function of the United States'' under sec. 3(d)(2) of Executive Order
12866.
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.
This rule involves the following OMB-approved collections of
information subject to the PRA:
<bullet> 0694-0088, ``Multi-Purpose Application,'' which carries a
burden hour estimate of 29.4 minutes for a manual or electronic
submission;
<bullet> 0694-0096 ``Five Year Records Retention Period,'' which
carries a burden hour estimate of less than 1 minute; and
<bullet> 0607-0152 ``Automated Export System (AES) Program,'' which
carries a burden hour estimate of 3 minutes per electronic submission.
BIS estimates that these new controls under the EAR imposed by this
rule will result in an increase of 1,700 license applications submitted
annually to BIS. However, the additional burden falls within the
existing estimates currently associated with these control numbers.
Additional information regarding these collections of information--
including all background materials--can be found at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a> by 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 the Export Control Reform Act of
2018 (50 U.S.C. 4821) (ECRA), 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. While section 1762 of ECRA provides
sufficient authority for such an exemption, this action is also
independently exempt from these APA requirements because it involves a
military or foreign affairs function of the United States (5 U.S.C.
553(a)(1)).
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.
List of Subjects
15 CFR Part 734
Administrative practice and procedure, Exports, Inventions and
patents, Research, Science and technology.
15 CFR Parts 736 and 772
Exports.
15 CFR Part 740
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism.
15 CFR Part 762
Administrative practice and procedure, Business and industry,
Confidential business information, Exports, Reporting and recordkeeping
requirements.
15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, parts 734, 736, 740, 742,
744, 762, 772, and 774 of the Export Administration Regulations (15 CFR
parts 730 through 774) are amended as follows:
PART 734--SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS
0
1. The authority citation for part 734 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. 13637, 78 FR 16129, 3 CFR, 2014 Comp.,
p. 223; Notice of November 10, 2021, 86 FR 62891 (November 12,
2021).
0
2. Effective on October 21, 2022, Sec. 734.9 is amended by revising
paragraph (e) and adding paragraphs (h) and (i) to read as follows:
Sec. 734.9 Foreign-Direct Product (FDP) Rules.
* * * * *
(e) Entity List FDP rule. A foreign-produced item is subject to the
EAR if it meets the product scope and end-user scope in either Entity
List FDP rule footnote 1 provision in paragraph (e)(1) of this section
or the Entity List FDP rule Footnote 4 provision in paragraph (e)(2) of
this section.
(1) Entity List FDP rule: Footnote 1. A foreign-produced item is
subject to the EAR if it meets both the product scope in paragraph
(e)(1)(i) of this section and the end-user scope in paragraph
(e)(1)(ii) of this section. See Sec. 744.11(a)(2)(i) of the EAR for
license requirements, license review policy, and license exceptions
applicable to foreign-produced items that are subject to the EAR
pursuant to this paragraph (e)(1).
(i) Product Scope Entity List FDP rule: Footnote 1. The product
scope applies if a foreign-produced item meets the conditions of either
paragraph (e)(1)(i)(A) or (B) of this section.
(A) ``Direct product'' of ``technology'' or ``software.'' A
foreign-produced item meets the product scope of this paragraph
(e)(1)(i)(A) if the foreign-produced item is a ``direct product'' of
``technology'' or ``software'' subject to the EAR and specified in ECCN
3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994, 4E001,
4E992,
[[Page 62196]]
4E993, 5D001, 5D991, 5E001, or 5E991 of the Commerce Control List (CCL)
in supplement no. 1 to part 774 of the EAR; or
(B) Product of a complete plant or `major component' of a plant
that is a ``direct product.'' A foreign-produced item meets the product
scope of this paragraph (e)(1)(i)(B) if the foreign-produced item is
produced by any plant or `major component' of a plant that is located
outside the United States, when the plant or `major component' of a
plant, whether made in the U.S. or a foreign country, itself is a
``direct product'' of U.S.-origin ``technology'' or ``software'' that
is specified in ECCN 3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001,
4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D991, 5E001, or 5E991 of the
CCL.
Note 2 to paragraph (e)(1)(i): A foreign-produced item includes
any foreign-produced wafer whether finished or unfinished.
(ii) End-user scope of the Entity List FDP rule: Footnote 1. A
foreign-produced item meets the end-user scope of this paragraph
(e)(1)(ii) if there is ``knowledge'' that:
(A) Activities involving Footnote 1 designated entities. The
foreign-produced item will be incorporated into, or will be used in the
``production'' or ``development'' of any ``part,'' ``component,'' or
``equipment'' produced, purchased, or ordered by any entity with a
footnote 1 designation in the license requirement column of the Entity
List in supplement no. 4 to part 744 of the EAR; or
(B) Footnote 1 designated entities as transaction parties. Any
entity with a footnote 1 designation in the license requirement column
of the Entity List in supplement no. 4 to part 744 of the EAR is a
party to any transaction involving the foreign-produced item, e.g., as
a ``purchaser,'' ``intermediate consignee,'' ``ultimate consignee,'' or
``end-user.''
(2) Entity List FDP rule: Footnote 4. A foreign-produced item is
subject to the EAR if it meets both the product scope in paragraph
(e)(2)(i) of this section and the end-user scope in paragraph
(e)(2)(ii) of this section. See Sec. 744.11(a)(2)(ii) of the EAR for
license requirements, license review policy, and license exceptions
applicable to foreign-produced items that are subject to the EAR
pursuant to this paragraph (e)(2).
(i) Product Scope Entity List FDP rule: Footnote 4. The product
scope applies if a foreign-produced item meets the conditions of either
paragraph (e)(2)(i)(A) or (B) of this section.
(A) ``Direct product'' of ``technology'' or ``software.'' The
foreign-produced item is a ``direct product'' of ``technology'' or
``software'' subject to the EAR and specified in ECCN 3D001, 3D991,
3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994, 4E001, 4E992, 4E993,
5D001, 5D002, 5D991, 5E001, 5E002, or 5E991 of the CCL; or
(B) Product of plant or `major component' that is a ``direct
product.'' The foreign-produced item is produced by any plant or `major
component' of a plant when the plant or `major component' of a plant,
whether made in the U.S. or a foreign country, itself is a ``direct
product'' of U.S.-origin ``technology'' or ``software'' that is
specified in ECCN 3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001,
4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D991, 5E001, 5E991, 5D002,
or 5E002 of the CCL.
(ii) End user scope of the Entity List FDP rule: Footnote 4. A
foreign-produced item meets the end-user scope of this paragraph
(e)(2)(ii) if there is ``knowledge'' that:
(A) Activities involving Footnote 4 designated entities. The
foreign-produced item will be incorporated into, or will be used in the
``production'' or ``development'' of any ``part,'' ``component,'' or
``equipment'' produced, purchased, or ordered by any entity with a
footnote 4 designation in the license requirement column of the Entity
List in supplement no. 4 to part 744 of the EAR; or
(B) Footnote 4 designated entities as transaction parties. Any
entity with a footnote 4 designation in the license requirement column
of the Entity List in supplement no. 4 to part 744 of the EAR is a
party to any transaction involving the foreign-produced item, e.g., as
a ``purchaser,'' ``intermediate consignee,'' ``ultimate consignee,'' or
``end-user.''
* * * * *
(h) Advanced computing FDP rule. A foreign-produced item is subject
to the EAR if it meets both the product scope in paragraph (h)(1) of
this section and the destination scope in paragraph (h)(2) of this
section. See Sec. 742.6(a)(6) of the EAR for license requirements and
license exceptions and Sec. 742.6(b)(10) for license review policy
applicable to foreign-produced items that are subject to the EAR under
this paragraph (h).
(1) Product scope of advanced computing FDP rule. The product scope
applies if a foreign-produced item meets the conditions of either
paragraph (h)(1)(i) or (ii) of this section.
(i) ``Direct product'' of ``technology'' or ``software.'' A
foreign-produced item meets the product scope of this paragraph (h) if
it meets both the following conditions:
(A) The foreign-produced item is the ``direct product'' of
``technology'' or ``software'' subject to the EAR and specified in
3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D090, 4D993, 4D994,
4E001, 4E992, 4E993, 5D001, 5D002, 5D991, 5E001, 5E991, or 5E002 of the
CCL; and
(B) The foreign-produced item is:
(1) Specified in ECCN 3A090, 3E001 (for 3A090), 4A090, or 4E001
(for 4A090) of the CCL; or
(2) An integrated circuit, computer, ``electronic assembly,'' or
``component'' specified elsewhere on the CCL and meets the performance
parameters of ECCN 3A090 or 4A090.
(ii) Product of a complete plant or `major component' of a plant
that is a ``direct product.'' A foreign-produced item meets the product
scope of this paragraph (h) if it meets both of the following
conditions:
(A) The foreign-produced item is produced by any complete plant or
`major component' of a plant that is located outside the United States,
when the plant or `major component' of a plant, whether made in the
United States or a foreign country, itself is a ``direct product'' of
U.S.-origin ``technology'' or ``software'' that is specified in ECCN
3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D090, 4D993, 4D994,
4E001, 4E992, 4E993, 5D001, 5D991, 5E001, 5E991, 5D002, or 5E002 of the
CCL; and
(B) The foreign-produced item is:
(1) Specified in ECCN 3A090, 3E001 (for 3A090), 4A090, or 4E001
(for 4A090) of the CCL; or
(2) An integrated circuit, computer, ``electronic assembly,'' or
``component'' specified elsewhere on the CCL and meets the performance
parameters of ECCN 3A090 or 4A090.
(2) Destination or end use scope of the advanced computing FDP
rule. A foreign-produced item meets the destination scope of this
paragraph (h)(2) if there is ``knowledge'' that the foreign-produced
item is:
(i) Destined to the PRC or will be incorporated into any ``part,''
``component,'' ``computer,'' or ``equipment'' not designated EAR99 that
is destined to the PRC; or
(ii) Technology developed by an entity headquartered in the PRC for
the ``production'' of a mask or an integrated circuit wafer or die.
(3) Certification. Exporters, reexporters, and transferors may
obtain a written certification from a supplier that asserts an item
being provided would be subject to the EAR if future transaction meet
the destination scope in paragraph (h)(2)(i) or (ii) of this section.
The model certificate provided
[[Page 62197]]
by BIS in supplement no. 1 to this part is not required under the EAR,
but through its provision, the certificate may assist exporters,
reexporters, and transferors with the process of resolving potential
red flags regarding whether an item is subject to the EAR based on this
paragraph (h). The model certificate provided by BIS contemplates
signature by an official or designated employee of the certifying
company and inclusion of all the information described in paragraph (b)
of supplement no. 1 to this part. If the exporter, reexporter, or
transferors has not obtained such a certification, due diligence needs
to be conducted to determine if the items meets the scope in this
paragraph (h). While this certificate is expected to be useful for a
company to understand the application of the EAR to an item, BIS does
not view this as the only step to be completed during a company's due
diligence process. See supplement no. 1 to this part and supplement no.
3 to part 732 of the EAR.
(i) ``Supercomputer'' FDP rule. A foreign-produced item is subject
to the EAR if it meets both the product scope in paragraph (i)(1) of
this section and the country and end-use scope in paragraph (i)(2) of
this section. See Sec. 744.23 of the EAR for license requirement,
license review policy, and license exceptions applicable to foreign-
produced items that are subject to the EAR pursuant to this paragraph
(i).
(1) Product scope. The product scope applies if a foreign-produced
item meets the conditions of either paragraph (i)(1)(i) or (ii) of this
section.
(i) ``Direct product'' of ``technology'' or ``software.'' The
foreign-produced item meets the product scope of this paragraph
(i)(1)(i) if the foreign-produced item is a ``direct product'' of
``technology'' or ``software'' subject to the EAR and specified in ECCN
3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994, 4E001,
4E992, 4E993, 5D001, 5D991, 5E001, 5E991, 5D002, or 5E002 of the CCL;
or
(ii) Product of a complete plant or `major component' of a plant
that is a ``direct product.'' A foreign-produced item meets the product
scope of this paragraph (i)(1)(ii) if the foreign-produced item is
produced by any plant or `major component' of a plant that is located
outside the United States, when the plant or `major component' of a
plant, whether made in the United States or a foreign country, itself
is a ``direct product'' of U.S.-origin ``technology'' or ``software''
that is specified in ECCN 3D001, 3D991, 3E001, 3E002, 3E003, 3E991,
4D001, 4D994, 4E001, 4E992, 4E993, 5D001, 5D991, 5E001, 5E991, 5D002,
or 5E002 of the CCL.
(2) Country and end-use scope. A foreign-produced item meets the
country and end-use scope of this paragraph (i)(2) if there is
``knowledge'' that the foreign produced item will be:
(i) Used in the design, ``development,'' ``production,'' operation,
installation (including on-site installation), maintenance (checking),
repair, overhaul, or refurbishing of, a ``supercomputer'' located in or
destined to the PRC; or
(ii) Incorporated into, or used in the ``development,'' or
``production,'' of any ``part,'' ``component,'' or ``equipment'' that
will be used in a ``supercomputer'' located in or destined to the PRC.
0
3. Effective on October 21, 2022, add supplement no. 1 to part 734 to
read as follows:
Supplement No. 1 to Part 734--Model Certification for Purposes of
Advanced Computing FDP Rule
(a) General. This supplement is included in the EAR to assist
exporters, reexporters, and transferors in determining whether the
items being exported, reexported, or transferred (in-country) are
subject to the EAR based on the advanced computing FDP rule under Sec.
734.9(h). The model certificate provided by BIS in this supplement is
not required under the EAR, but through its provision, the certificate
may assist exporters, reexporters, and transferors with the process of
resolving potential red flags regarding whether an item is subject to
the EAR based on Sec. 734.9(h). The model certificate provided in this
supplement by BIS contemplates signature by an official or designated
employee of the certifying company and inclusion of all the information
described in paragraph (b) of this supplement. Any certification relied
on for this part must be retained pursuant to part 762 of the EAR.
Obtaining the certification set forth in this supplement does not
relieve exporters, reexporters, and transferors of their obligation to
exercise due diligence in determining whether items are subject to the
EAR, including by following the ``Know Your Customer'' guidance in
supplement no. 3 to part 732 of the EAR.
(b) Model Criteria. A certification meets the criteria described in
this supplement if it contains at least the following information:
(1) The certification must be signed by an organization official
specifically authorized to certify the document as being accurate and
complete. The undersigned certifies that the information herein
supplied in response to this paragraph is complete and correct to the
best of his/her knowledge. By signing the certification below, I attest
that:
(2) My organization is aware that the items, [INSERT A DESCRIPTION
OF THE ITEMS], provided to this exporter, reexporter, or transferor,
[INSERT NAME OF EXPORTER, REEXPORTER, OR TRANSFEROR], could be subject
to the U.S. Export Administration Regulations (EAR) (15 CFR 730-774) if
future transactions are within the destination scope of Sec.
734.9(h)(2)(i) or (ii) and exported or reexported to or transferred
within the People's Republic of China (China);
(3) My organization has reviewed the criteria for the advanced
computing Foreign Direct Product (FDP) rule under Sec. 734.9(h) and
attests that from my organization's ``knowledge'' of the item, it would
be subject to the EAR if the destination criteria are met in Sec.
734.9(h)(2)(i) or (ii); and
(4) My organization affirms its commitment to apply with all
applicable requirements under the EAR.
[INSERT NAME(S) OF CONSIGNEE(S)]
[INSERT DATE(S) SIGNED]
Note 1 to paragraph (b): When multiple consignees who form a
network engaged in a production process (or other type of
collaborative activity, such as joint development) will be receiving
items under the EAR, a single model certification statement for
multiple consignees may be used for any export, reexport, or
transfer (in-country) under the EAR.
(c) Additional Information. Because this is only a model
certification, exporters, reexporters, or transferors may add
additional elements to the certification and/or use it for multiple
purposes as part of their compliance program. For example, if a company
has ten affiliated companies in a multi-step supply chain, instead of
obtaining a model certification for each export, reexport, or transfer
(in-country), the initial exporter, reexporter, or transferor may get
all ten parties to sign the certification, which may further reduce the
burden on parties participating in the supply chain.
PART 736--GENERAL PROHIBITIONS
0
4. 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 10, 2021, 86 FR
[[Page 62198]]
62891 (November 12, 2021); Notice of May 9, 2022, 87 FR 28749 (May
10, 2022).
0
5. Effective on October 21, 2022, supplement no. 1 to part 736 is
amended by adding paragraph (d) to read as follows:
Supplement No. 1 to Part 736--General Orders
* * * * *
(d) General Order No. 4: The purpose of this General Order is to
avoid disruption of supply chains for items specified in paragraph
(d)(1) of this supplement that are ultimately destined to customers
outside of People's Republic of China (China).
(1) Temporary General License (TGL). BIS authorizes, from October
21, 2022, through April 7, 2023, exports, reexports, in-country
transfers, and exports from abroad destined to or within China by
companies not headquartered in Country Groups D:1 or D:5 or E (see
supplement no. 1 to part 740 of the EAR) to continue or engage in
integration, assembly (mounting), inspection, testing, quality
assurance, and distribution of items covered by ECCN 3A090, 4A090, and
associated software and technology in ECCN 3D001, 3E001, 4D090, or
4E001; or any item that is a computer, integrated circuit, ``electronic
assembly'' or ``component'' and associated software and technology,
specified elsewhere on Commerce Control List (supplement no. 1 to part
774 of the EAR), which meets or exceeds the performance parameters of
ECCN 3A090 or 4A090. This does not authorize the export, reexport, in-
country transfer, or export from abroad to ``end-users'' or ``ultimate
consignees'' in China. This TGL does not overcome the license
requirements of Sec. 744.11 or Sec. 744.21 of the EAR when an entity
listed in supplements no. 4 or 7 to part 744 is a party to the
transaction as described in Sec. 748.5(c) through (f) of the EAR, or
when there is knowledge of any other prohibited end use or end user.
This TGL is only for companies that engage in the specific activities
authorized under this TGL.
(2) Recordkeeping requirement. Prior to any export, reexport, or
transfer (in-country) to China pursuant to this TGL, the exporter,
reexporter, or transferor, must retain the name of the entity receiving
the item and the complete physical address of where the item is
destined in China and the location of that company's headquarters.
* * * * *
PART 740--LICENSE EXCEPTIONS
0
6. The authority citation for part 740 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.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR
58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR,
2001 Comp., p. 783.
0
7. Effective on October 7, 2022, Sec. 740.2 is amended by adding
paragraph (a)(9) to read as follows:
Sec. 740.2 Restrictions on all License Exceptions.
* * * * *
(a) * * *
(9) The item is identified in paragraph (a)(9)(i) of this section,
being exported, reexported, or transferred (in-country) to or within
the People's Republic of China (PRC), and the license exception is
other than: RPL (excluding 3B090, 3D001 (for 3B090), and 3E001 (for
3B090)), under the provisions of Sec. 740.10, including Sec.
740.10(a)(3)(v), which prohibits exports and reexports of replacement
parts to countries in Country Group E:1 (see supplement no. 1 to this
part)); GOV, restricted to eligibility under the provisions of Sec.
740.11(b)(2)(ii); or TSU (excluding 3B090, 3D001 (for 3B090), and 3E001
(for 3B090)), under the provisions of Sec. 740.13(a) and (c). Items
restricted to eligibility only for the foregoing license exceptions
are:
(i) Controlled under ECCNs 3B090, or associated software and
technology in 3D001, or 3E001; or
(ii) [Reserved]
* * * * *
0
8. Effective on October 21, 2022, Sec. 740.2 is further amended by
revising paragraph (a)(9) to read as follows:
Sec. 740.2 Restrictions on all License Exceptions.
* * * * *
(a) * * *
(9) The item is identified in paragraphs (a)(9)(i) and (ii) of this
section, being exported, reexported, or transferred (in-country) to or
within the People's Republic of China (PRC), and the license exception
is other than: RPL (excluding 3B090, 3D001 (for 3B090), and 3E001 (for
3B090)), under the provisions of Sec. 740.10, including Sec.
740.10(a)(3)(v), which prohibits exports and reexports of replacement
parts to countries in Country Group E:1 (see supplement no. 1 to this
part)); GOV, restricted to eligibility under the provisions of Sec.
740.11(b)(2)(ii); or TSU (excluding 3B090, 3D001 (for 3B090), and 3E001
(for 3B090)), under the provisions of Sec. 740.13(a) and (c). Items
restricted to eligibility only for the foregoing license exceptions
are:
(i) Controlled under ECCNs 3A090, 3B090, 4A090, or associated
software and technology in 3D001, 3E001, 4D090, and 4E001; or
(ii) A computer, integrated circuit, ``electronic assembly'' or
``component'' specified elsewhere on the CCL which meets or exceeds the
performance parameters of ECCN 3A090 or 4A090.
* * * * *
0
9. Effective on October 7, 2022, Sec. 740.10 is amended by revising
paragraph (c)(2) to read as follows:
Sec. 740.10 License Exception Servicing and replacement of parts and
equipment (RPL).
* * * * *
(c) * * *
(2) Records maintained pursuant to this section may be requested at
any time by an appropriate BIS official as set forth in Sec. 762.7 of
the EAR. Records that must be included in the annual or semi-annual
reports of exports and reexports of ``600 Series'' items under the
authority of License Exception RPL are described in Sec. Sec. 743.4
and 762.2(b) of the EAR.
PART 742--CONTROL POLICY--CCL BASED CONTROLS
0
10. The authority citation for part 742 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.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; Sec. 1503, Pub. L. 108-11, 117
Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O.
12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR
59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004
Comp., p. 320; Notice of November 10, 2021, 86 FR 62891 (November
12, 2021).
0
11. Effective on October 7, 2022, Sec. 742.6 is amended by adding
paragraphs (a)(6) and (b)(10) to read as follows:
Sec. 742.6 Regional stability.
(a) * * *
(6) RS requirement that applies to the People's Republic of China
(China) for semiconductor manufacturing items--(i) Exports, reexports,
transfers (in-country). A license is required for items specified in
ECCN 3B090 and associated software and technology in 3D001 (for 3B090),
3E001 (for 3B090)) being exported, reexported, or transferred (in-
country) to or within the China.
(ii) Deemed exports. The license requirements in this paragraph
(a)(6) do not apply to deemed exports or deemed reexports.
* * * * *
(b) * * *
(10) Semiconductor manufacturing items when destined to China.
There is
[[Page 62199]]
a presumption of denial for applications for items specified in
paragraph (a)(6) of this section being exported, reexported, or
transferred (in-country) to or within the China. See Sec.
744.11(a)(2)(ii) of the EAR for license requirements, license review
policy, and license exceptions applicable to specific entities. License
applications for semiconductor manufacturing items, such as
semiconductor equipment, destined to end users in China that are
headquartered in the United States or in a country in Country Group A:5
or A:6 will be considered on a case-by-case basis, taking into account
factors including technology level, customers and compliance plans.
* * * * *
0
12. Effective on October 21, 2022, Sec. 742.6 is further amended by
revising paragraphs (a)(6) and (b)(10) to read as follows:
Sec. 742.6 Regional stability.
(a) * * *
(6) RS requirement that applies to the People's Republic of China
(China) for advanced computing and semiconductor manufacturing items--
(i) Exports, reexports, transfers (in-country). A license is required
for items specified in ECCNs 3A090, 3B090, 4A090, 5A992 (that meet or
exceed the performance parameters of ECCNs 3A090 or 4A090) and
associated software and technology in 3D001 (for 3A090 or 3B090), 3E001
(for 3A090 or 3B090), 3B090, or 3D001 (for 3A090 or 3B090), 4D090,
4E001 (for 4A090 and 4D090), and 5D992 (that meet or exceed the
performance parameters of ECCNs 3A090 or 4A090) being exported,
reexported, or transferred (in-country) to or within the China. A
license is also required for the export from the China to any
destination worldwide of 3E001 (for 3A090) technology developed by an
entity headquartered in the China that is the direct product of
software subject to the EAR and is for the ``production'' of
commodities identified in ECCNs 3A090, 4A090, or identified elsewhere
on the CCL that meet or exceed the performance parameters of ECCNs
3A090 or 4A090, consistent with Sec. 734.9(h)(1)(i)(B)(1) and
(h)(2)(ii) of the EAR.
(ii) Deemed exports. The license requirements in this paragraph
(a)(6) do not apply to deemed exports or deemed reexports.
* * * * *
(b) * * *
(10) Advanced computing and semiconductor manufacturing items when
destined to China. There is a presumption of denial for applications
for items specified in paragraph (a)(6) of this section being exported,
reexported, or transferred (in-country) to or within the China. See
Sec. 744.11(a)(2)(ii) of the EAR for license requirements, license
review policy, and license exceptions applicable to specific entities.
License applications for semiconductor manufacturing items, such as
semiconductor equipment, destined to end users in China that are
headquartered in the United States or in a country in Country Group A:5
or A:6 will be considered on a case-by-case basis, taking into account
factors including technology level, customers and compliance plans.
* * * * *
PART 744--END-USE AND END-USER CONTROLS
0
13. The authority citation for part 744 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.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR,
1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p.
608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3
CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp.,
p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice
of November 10, 2021, 86 FR 62891 (November 12, 2021); Notice of
September 19, 2022, 87 FR 57569 (September 19, 2022).
0
14. Effective on October 21, 2022, Sec. 744.1 is amended by adding a
sentence at the end of paragraph (a)(1) to read as follows:
Sec. 744.1 General provisions.
(a)(1) * * * Section 744.23 sets forth restrictions on exports,
reexports, and transfers (in-country) for certain ``supercomputer'' and
semiconductor manufacturing end use.
* * * * *
0
15. Effective on October 12, 2022, Sec. 744.6 is amended by revising
paragraphs (c) and (d) and adding paragraph (e)(3) to read as follows:
Sec. 744.6 Restrictions on specific activities of ``U.S. persons.''
* * * * *
(c) Additional prohibitions on ``U.S. persons'' informed by BIS.
(1) BIS may inform ``U.S. persons,'' either individually by specific
notice, through amendment to the EAR published in the Federal Register,
or through a separate notice published in the Federal Register, that a
license is required because an activity could involve the types of
`support' (as defined in paragraph (b)(6) of this section) to the end
uses or end users described in paragraphs (b)(1) through (5) of this
section. Specific notice is to be given only by, or at the direction
of, the Deputy Assistant Secretary for Export Administration. When such
notice is provided orally, it will be followed by a written notice
within two working days signed by the Deputy Assistant Secretary for
Export Administration. However, the absence of any such notification
does not excuse the ``U.S. person'' from compliance with the license
requirements of paragraph (b) of this section.
(2) Consistent with paragraph (c)(1) of this section, BIS is hereby
informing ``U.S. persons'' that a license is required for the following
activities, which could involve `support' for the weapons of mass
destruction-related end uses set forth in paragraph (b) of this
section.
(i) Shipping, transmitting, or transferring (in-country) to or
within the PRC any item not subject to the EAR that you know will be
used in the ``development'' or ``production'' of integrated circuits at
a semiconductor fabrication ``facility'' located in the PRC that
fabricates integrated circuits meeting any of the following criteria:
(A) Logic integrated circuits using a non-planar architecture or
with a ``production'' technology node of 16/14 nanometers or less;
(B) NOT-AND (NAND) memory integrated circuits with 128 layers or
more; or
(C) Dynamic random-access memory (DRAM) integrated circuits using a
``production'' technology node of 18 nanometer half-pitch or less; or
(ii) Facilitating the shipment, transmission, or transfer (in-
country) of any item not subject to the EAR that you know will be used
in the ``development'' or ``production'' of integrated circuits at a
semiconductor fabrication ``facility'' located in the PRC that
fabricates integrated circuits that meet any of the criteria in
paragraphs (c)(2)(i)(A) through (C) of this section;
(iii) Servicing any item not subject to the EAR that you know will
be used in the ``development'' or ``production'' of integrated circuits
at a semiconductor fabrication ``facility'' located in the PRC that
fabricates integrated circuits that meet any of the criteria in
paragraphs (c)(2)(i)(A) through (C) of this section;
(iv) Shipping, transmitting, or transferring (in-country) to or
within the PRC any item not subject to the EAR and meeting the
parameters of any ECCN in Product Groups B, C, D, or E in Category 3 of
the CCL that you know will be used in the ``development'' or
``production'' of integrated circuits at
[[Page 62200]]
any semiconductor fabrication ``facility'' located in the PRC, but you
do not know whether such semiconductor fabrication ``facility''
fabricates integrated circuits that meet any of the criteria in
paragraphs (c)(2)(i)(A) through (C) of this section;
(v) Facilitating the shipment, transmission, or transfer (in-
country) to or within the PRC of any item not subject to the EAR and
meeting the parameters of any ECCN in Product Groups B, C, D, or E in
Category 3 of the CCL that you know will be used in the ``development''
or ``production,'' of integrated circuits at any semiconductor
fabrication ``facility'' located in the PRC, but you do not know
whether such semiconductor fabrication ``facility'' fabricates
integrated circuits that meet any of the criteria in paragraphs
(c)(2)(i)(A) through (C) of this section;
(vi) Servicing any item not subject to the EAR and meeting the
parameters of any ECCN in Product Groups B, C, D, or E in Category 3 of
the CCL that you know will be used in the ``development'' or
``production'' of integrated circuits at any semiconductor fabrication
``facility'' located in the PRC, but you do not know whether such
semiconductor fabrication ``facility'' fabricates integrated circuits
that meet any of the criteria in paragraphs (c)(2)(i)(A) through (C) of
this section;
(vii) Shipping, transmitting, or transferring (in-country) to or
within the PRC any item not subject to the EAR and meeting the
parameters of ECCN 3B090, 3D001 (for 3B090), or 3E001 (for 3B090)
regardless of end use or end user;
(viii) Facilitating the shipment, transmission, or transfer (in-
country) to or within the PRC of any item not subject to the EAR and
meeting the parameters of ECCN 3B090, 3D001 (for 3B090), or 3E001 (for
3B090), regardless of end use or end user; or
(ix) Servicing any item not subject to the EAR located in the PRC
and meeting the parameters of ECCN 3B090, 3D001 (for 3B090), or 3E001
(for 3B090), regardless of end use or end user.
(d) Exceptions. (1) No License Exceptions apply to the prohibitions
described in paragraphs (b)(1) through (4) and (c)(2)(i) through (vi)
of this section.
(2) Notwithstanding the prohibitions in paragraphs (b)(5) and
(c)(2)(vii) through (ix) of this section, ``U.S. persons'' who are
employees of a department or agency of the U.S. Government may
`support' a `military-intelligence end use' or a `military-intelligence
end user,' as described in paragraph (b)(5) of this section, or engage
in the activities described in paragraphs (c)(2)(vii) through (ix) of
this section, if the `support' is provided in the performance of
official duties in furtherance of a U.S. Government program that is
authorized by law and subject to control by the President by other
means. This paragraph (d)(2) does not authorize a department or agency
of the U.S. Government to provide `support' that is otherwise
prohibited by other administrative provisions or by statute.
`Contractor support personnel' of a department or agency of the U.S.
Government are eligible for this authorization when in the performance
of their duties pursuant to the applicable contract or other official
duties. `Contractor support personnel' for the purposes of this
paragraph (d)(2) has the same meaning given to that term in Sec.
740.11(b)(2)(ii) of the EAR. This authorization is not available when a
department or agency of the U.S. Government acts as an agent on behalf
of a non-U.S. Government person.
(e) * * *
(3) Applications for licenses submitted pursuant to the notice of a
license requirement set forth in paragraph (c)(2) of this section will
be reviewed with a presumption of denial, except for end users in the
PRC headquartered in the United States or a country in Country Group
A:5 or A:6, which will be considered on a case-by-case basis taking
into account factors including technology level, customers, and
compliance plans.
0
16. Effective on October 21, 2022, Sec. 744.11 is amended by revising
paragraph (a)(2) to read as follows:
Sec. 744.11 License requirements that apply to entities acting or at
significant risk of acting contrary to the national security or foreign
policy interests of the United States.
* * * * *
(a) * * *
(2) Entity List foreign-``direct product'' (FDP) license
requirements, review policy, and license exceptions--(i) Footnote 1
entities. You may not, without a license or license exception,
reexport, export from abroad, or transfer (in-country) any foreign-
produced item subject to the EAR pursuant to Sec. 734.9(e)(1)(i) of
the EAR when an entity designated with footnote 1 on the Entity List in
supplement. no. 4 to this part is a party to the transaction. All
license exceptions described in part 740 of the EAR are available for
foreign-produced items that are subject to this license requirement if
all terms and conditions of the applicable license exception are met
and the restrictions in Sec. 740.2 of this EAR do not apply. The
sophistication and capabilities of technology in items is a factor in
license application review; license applications for foreign-produced
items subject to a license requirement by this paragraph (a)(2) that
are capable of supporting the ``development'' or ``production'' of
telecom systems, equipment, and devices below the 5G level (e.g., 4G,
3G) will be reviewed on a case-by-case basis.
(ii) Footnote 4 entities. You may not, without a license, reexport,
export from abroad, or transfer (in-country) any foreign-produced item
subject to the EAR pursuant to Sec. 734.9(e)(2) of the EAR when an
entity designated with footnote 4 on the Entity List in supp. no. 4 to
this part is a party to the transaction, or that will be used in the
``development'' or ``production'' of any ``part,'' ``component,'' or
``equipment'' produced, purchased, or ordered by any such entity. See
Sec. 744.23 for additional license requirements that may apply to
these entities. The license review policy for foreign-produced items
subject to this license requirement is set forth in the entry in
supplement no. 4 to this part for each entity with a footnote 4
designation.
* * * * *
0
17. Effective on October 7, 2022, add Sec. 744.23 to read as follows:
Sec. 744.23 Semiconductor manufacturing end use.
(a) General prohibition. In addition to the license requirements
for items specified on the CCL, you may not export, reexport, or
transfer (in-country) without a license any item subject to the EAR
meeting the product scope in paragraph (a)(1) of this section when you
have ``knowledge'' at the time of export, reexport, or transfer (in-
country) that the item is destined for the end-use described in
paragraph (a)(2) of this section.
(1) Product scope. Any of the following items meet the product
scope of the prohibition in this section:
(i)-(ii) [Reserved]
(iii) Any item subject to the EAR when you know the items will be
used in an end use described in paragraphs (a)(2)(iii)(A) through (C)
of this section;
(iv) Any item subject to the EAR and classified in an ECCN in
Product Groups B, C, D, or E in Category 3 of the CCL when you know the
items will be used in an end use described in paragraph (a)(2)(iv) of
this section; or
(v) Any item subject to the EAR when you know the item will be used
in an end use described in paragraph (a)(2)(v) of this section.
(2) End-use scope. The following activities meet the end-use scope
of the prohibition in this section:
(i)-(ii) [Reserved]
[[Page 62201]]
(iii) The ``development'' or ``production'' of integrated circuits
at a semiconductor fabrication ``facility'' located in the PRC that
fabricates integrated circuits meeting any of the following criteria:
(A) Logic integrated circuits using a non-planar transistor
architecture or with a ``production'' technology node of 16/14
nanometers or less;
(B) NOT AND (NAND) memory integrated circuits with 128 layers or
more; or
(C) Dynamic random-access memory (DRAM) integrated circuits using a
``production'' technology node of 18 nanometer half-pitch or less; or
(iv) The ``development'' or ``production'' of integrated circuits
at any semiconductor fabrication ``facility'' located in the PRC, but
you do not know whether such semiconductor fabrication ``facility''
fabricates integrated circuits that meet any of the criteria in
paragraphs (a)(2)(iii)(A) through (C) of this section.
(v) The ``development'' or ``production'' in the PRC of any
``parts,'' ``components'' or ``equipment'' specified under ECCN 3B001,
3B002, 3B090, 3B611, 3B991, or 3B992.
(b) Additional prohibition on persons informed by BIS. BIS may
inform persons, either individually by specific notice or through
amendment to the EAR published in the Federal Register, that a license
is required for a specific export, reexport, or transfer (in-country)
of any item subject to the EAR to a certain end-user, because there is
an unacceptable risk of use in, or diversion to, the activities
specified in paragraph (a)(1) of this section. Specific notice is to be
given only by, or at the direction of, the Deputy Assistant Secretary
for Export Administration. When such notice is provided orally, it will
be followed by a written notice within two working days signed by the
Deputy Assistant Secretary for Export Administration or the Deputy
Assistant Secretary's designee. However, the absence of any such
notification does not excuse persons from compliance with the license
requirements of paragraph (a) of this section.
(c) License exceptions. No license exceptions may overcome the
prohibition described in paragraph (a) of this section.
(d) License review standards. There is a presumption of denial for
applications to export, reexport, or transfer (in-country) items
described in paragraph (a)(1) of this section that are for end uses
described in paragraph (a)(2) of this section, except for items
controlled under paragraph (a)(2)(iii) of this section for end users in
China that are headquartered in the United States or in a Country Group
A:5 or A:6 country, which will be considered on a case-by-case basis
taking into account factors including technology level, customers, and
compliance plans.
0
18. Effective on October 21, 2022, revise Sec. 744.23 to read as
follows:
Sec. 744.23 ``Supercomputer'' and semiconductor manufacturing end
use.
(a) General prohibition. In addition to the license requirements
for items specified on the CCL, you may not export, reexport, or
transfer (in-country) without a license any item subject to the EAR
meeting the product scope in paragraph (a)(1) of this section when you
have ``knowledge'' at the time of export, reexport, or transfer (in-
country) that the item is destined for the end-use described in
paragraph (a)(2) of this section.
(1) Product scope. Any of the following items meet the product
scope of the prohibition in this section:
(i) An integrated circuit (IC) subject to the EAR and specified in
ECCN 3A001, 3A991, 4A994, 5A002, 5A004, or 5A992 when you know the item
will be used in an end use described under paragraph (a)(2)(i) or (ii)
of this section;
(ii) A computer, ``electronic assembly,'' or ``component'' subject
to the EAR and specified in ECCN 4A003, 4A004, 4A994, 5A002, 5A004, or
5A992 when you know the item will be used in an end use described under
paragraph (a)(2)(i) or (ii) of this section;
(iii) Any items subject to the EAR when you know the items will be
used in an end use described in paragraphs (a)(2)(iii)(A) through (C)
of this section;
(iv) Any items subject to the EAR and classified in an ECCN in
Product Groups B, C, D, or E in Category 3 of the CCL when you know the
items will be used in an end use described in paragraph (a)(2)(iv) of
this section; or
(v) Any item subject to the EAR when you know the item will be used
in an end use described in paragraph (a)(2)(v) of this section.
(2) End-use scope. The following activities meet the end-use scope
of the prohibition in this section:
(i) The ``development,'' ``production,'' ``use,'' operation,
installation (including on-site installation), maintenance (checking),
repair, overhaul, or refurbishing of a ``supercomputer'' located in or
destined to the PRC;
(ii) The incorporation into, or the ``development'' or
``production'' of any ``component'' or ``equipment'' that will be used
in a ``supercomputer'' located in or destined to the PRC; or
(iii) The ``development'' or ``production,'' of integrated circuits
at a semiconductor fabrication ``facility'' located in the PRC that
fabricates integrated circuits meeting any of the following criteria:
(A) Logic integrated circuits using a non-planar transistor
architecture or with a ``production'' technology node of 16/14
nanometers or less;
(B) NOT AND (NAND) memory integrated circuits with 128 layers or
more; or
(C) Dynamic random-access memory (DRAM) integrated circuits using a
``production'' technology node of 18 nanometer half-pitch or less; or
(iv) The ``development'' or ``production'' of integrated circuits
at any semiconductor fabrication ``facility'' located in the PRC, but
you do not know whether such semiconductor fabrication ``facility''
fabricates integrated circuits that meet any of the criteria in
paragraphs (a)(2)(iii)(A) through (C) of this section; or
(v) The ``development'' or ``production'' in the PRC of any
``parts,'' ``components,'' or ``equipment'' specified under ECCN 3B001,
3B002, 3B090, 3B611, 3B991, or 3B992.
(b) Additional prohibition on persons informed by BIS. BIS may
inform persons, either individually by specific notice or through
amendment to the EAR published in the Federal Register, that a license
is required for a specific export, reexport, or transfer (in-country)
of any item subject to the EAR to a certain end-user, because there is
an unacceptable risk of use in, or diversion to, the activities
specified in paragraph (a)(2) of this section. Specific notice is to be
given only by, or at the direction of, the Deputy Assistant Secretary
for Export Administration. When such notice is provided orally, it will
be followed by a written notice within two working days signed by the
Deputy Assistant Secretary for Export Administration or the Deputy
Assistant Secretary's designee. However, the absence of any such
notification does not excuse persons from compliance with the license
requirements of paragraph (a) of this section.
(c) License exceptions. No license exceptions may overcome the
prohibition described in paragraph (a) of this section.
(d) License review standards. There is a presumption of denial for
applications to export, reexport, or transfer (in-country) items
described in paragraph (a)(1) of this section that are for end uses
described in paragraph (a)(2) of this section, except for items
controlled under paragraph (a)(2)(iii) of this section for end users in
China that are headquartered in the United States or in a Country Group
A:5 or A:6 country,
[[Page 62202]]
which will be considered on a case-by-case basis taking into account
factors including technology level, customers and compliance plans.
0
19. Effective on October 21, 2022, supplement no. 4 is amended by:
0
a. Revising Under CHINA the entries for ``Beijing Institute of
Technology,'' ``Beijing Sensetime Technology Development Co., Ltd.,''
``Changsha Jingjia Microelectronics Co., Ltd.,'' ``Chengdu Haiguang
Integrated Circuit,'' ``Chengdu Haiguang Microelectronics Technology,''
``China Aerospace Science and Technology Corporation (CASC) 9th Academy
772 Research Institute,'' ``Dahua Technology,'' ``Harbin institute of
Technology,'' ``Higon,'' ``IFLYTEK,'' ``Intellifusion,'' ``Megvii
Technology,'' ``National Supercomputing Center Changsha (NSCC-CS),''
``National Supercomputing Center Guangzhou (NSCC-GZ),'' ``National
Supercomputing Center Jinan,'' ``National Supercomputing Center
Shenzhen,'' ``National Supercomputing Center Tianjin (NSCC-TJ),''
``National Supercomputing Center Wuxi,'' ``National Supercomputer
Center Zhengzhou,'' ``National University of Defense Technology
(NUDT),'' ``New H3C Semiconductor Technologies Co., Ltd.,''
``Northwestern Polytechnical University,'' ``Shanghai High-Performance
Integrated Circuit Design Center,'' ``Sugon,'' ``Sunway
Microelectronics,'' ``Tianjin Phytium Information Technology,'' ``Wuxi
Jiangnan Institute of Computing Technology,'' and ``Yitu
Technologies''; and
0
b. Revising footnote 1 and adding footnote 4.
The revisions and addition read as follows:
Supplement No. 4 to Part 744--Entity List
* * * * *
----------------------------------------------------------------------------------------------------------------
License License review Federal Register
Country Entity requirement policy citation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
CHINA, PEOPLE'S * * * * * *
REPUBLIC OF.
Beijing Institute of For all items Presumption of 85 FR 83420, 12/
Technology, No. 5 South subject to the denial. 22/20.
Zhongguancun Street, EAR. (See Sec. 87 FR [INSERT FR
Haidian District, Beijing, Sec. 734.9(e) PAGE NUMBER, 10/
China. and 744.11 of the 13/22.
EAR) \4\.
* * * * * *
Beijing Sensetime Technology For all items Case-by-case 84 FR 54004, 10/9/
Development Co., Ltd., subject to the review for ECCNs 19.
a.k.a., the following two EAR. (See Sec. 1A004.c, 1A004.d, 85 FR 34505, 6/5/
aliases: Sec. 734.9(e) 1A995, 1A999.a, 20.
--Beijing Shangtang and 744.11 of the 1D003, 2A983, 85 FR 44159, 7/22/
Technology Development Co., EAR) \4\. 2D983, and 2E983, 20.
Ltd.; and and for EAR99 87 FR [INSERT FR
--Sense Time. items described PAGE NUMBER, 10/
5F Block B, Science and in the Note to 13/22.
Technology Building, Tsing- ECCN 1A995; case-
hua Science Park, Haidian by-case review
District, Beijing, China. for items
necessary to
detect, identify
and treat
infectious
disease; and
presumption of
denial for all
other items
subject to the
EAR.
* * * * * *
Changsha Jingjia For all items Presumption of 86 FR 71560, 12/
Microelectronics Co., subject to the denial. 17/21.
Ltd.,902, Building B1, Lugu EAR. (See Sec. 87 FR [INSERT FR
Science and Technology Sec. 734.9(e) PAGE NUMBER, 10/
Innovation Pioneer Park, and 744.11 of the 13/22.
1698 Yuelu West Ave., EAR) \4\.
Changsha High-tech
Development Zone; and
Building 3, Changsha
Productivity Promotion
Center, No. 2, Lujing Rd.,
Yuelu District, Changsha
City, Hunan Province; and
No. 1, Meixihu Road, Yuelu
District, Changsha City,
Hunan Province, 410221; and
Room 1501, Aipu Building,
395 Xinshi North Road,
Shijiazhuang City, Hebei
Province, China.
* * * * * *
Chengdu Haiguang Integrated For all items Presumption of 84 FR 29373, 6/24/
Circuit, a.k.a., the subject to the denial. 19.
following two aliases: EAR. (See Sec. 87 FR [INSERT FR
--Hygon; and Sec. 734.9(e) PAGE NUMBER, 10/
--Chengdu Haiguang Jincheng and 744.11 of the 13/22.
Dianlu Sheji. EAR) \4\.
China (Sichuan) Free Trade
Zone, No. 22-31, 11th
Floor, E5, Tianfu Software
Park, No. 1366, Middle
Section of Tianfu Avenue,
Chengdu High-tech Zone,
Chengdu, China.
[[Page 62203]]
Chengdu Haiguang For all items Presumption of 84 FR 29373, 6/24/
Microelectronics subject to the denial. 19.
Technology, a.k.a., the EAR. (See Sec. 87 FR [INSERT FR
following two aliases: Sec. 734.9(e) PAGE NUMBER, 10/
--HMC; and and 744.11 of the 13/22.
--Chengdu Haiguang Wei EAR) \4\.
Dianzi Jishu.
China (Sichuan) Free Trade
Zone, No. 23-32, 12th
Floor, E5, Tianfu Software
Park, No. 1366, Middle
Section of Tianfu Avenue,
Chengdu High-tech Zone,
Chengdu, China.
* * * * * *
China Aerospace Science and For all items Presumption of 87 FR 51877, 8/24/
Technology Corporation subject to the denial. 22.
(CASC) 9th Academy 772 EAR. (See Sec. 87 FR [INSERT FR
Research Institute, a.k.a., Sec. 734.9(e) PAGE NUMBER, 10/
the following four aliases: and 744.11 of the 13/22.
--772 Research Institute; EAR) \4\.
--Beijing Institute of
Microelectronics
Technology;
--Beijing Microelectronics
Technology Institute; and
--BMTI.
No. 2, Siyingmen North Road,
Donggaodi, Fengtai
District, Beijing, China.
* * * * * *
Dahua Technology, 807, Block For all items Presumption of 84 FR 54004, 10/9/
A, Meike Building No. 506, subject to the denial. 19.
Beijing South Road, New EAR. (See Sec. 85 FR 44159, 7/22/
City, Urumqi, Xinjiang, Sec. 734.9(e) 20.
China; 1199 Bin'an Road, and 744.11 of the 87 FR [INSERT FR
Binjiang High-tech Zone, EAR) \4\. PAGE NUMBER, 10/
Hangzhou, China; and 6/F, 13/22.
Block A, Dacheng Erya,
Huizhan Avenue, Urumqi,
China; and No. 1187, Bin'an
Road, Binjiang District,
Hangzhou City, Zhejiang
Province, China.
* * * * * *
Harbin Institute of For all items Presumption of 85 FR 34497, 6/5/
Technology, No. 92 Xidazhi subject to the denial. 20.
Street, Nangang District, EAR. (See Sec. 87 FR [INSERT FR
Harbin, Heilongjiang, Sec. 734.9(e) PAGE NUMBER, 10/
China; and No. 92 West and 744.11 of the 13/22.
Dazhi Street, Nangang EAR) \4\.
District, Harbin,
Heilongjiang, China; and
No. 2 West Wenhua Road,
Weihai, Shandong, China;
and Pingshan 1st Road,
Shenzhen, Guangdong, China.
* * * * * *
Higon, a.k.a., the following For all items Presumption of 84 FR 29373, 6/24/
five aliases: subject to the denial. 19.
--Higon Information EAR. (See Sec. 87 FR [INSERT FR
Technology; Sec. 734.9(e) PAGE NUMBER, 10/
--Haiguang Xinxi Jishu and 744.11 of the 13/22.
Youxian Gongsi; EAR) \4\.
--THATIC;
--Tianjing Haiguang Advanced
Technology Investment; and
--Tianjing Haiguang Xianjin
Jishu Touzi Youxian Gongsi.
Industrial Incubation-3-8,
North 2-204, 18 Haitai West
Road, Huayuan Industrial
Zone, Tianjin, China.
* * * * * *
[[Page 62204]]
IFLYTEK, National For all items Case-by-case 84 FR 54004, 10/9/
Intelligent Speech High- subject to the review for ECCNs 19.
tech Industrialization EAR. (See Sec. 1A004.c, 1A004.d, 85 FR 44159, 7/22/
Base, No. 666, Wangjiang Sec. 734.9(e) 1A995, 1A999.a, 20.
Road West, Hefei City, and 744.11 of the 1D003, 2A983, 87 FR [INSERT FR
Anhui Province, China. EAR) \4\. 2D983, and 2E983, PAGE NUMBER, 10/
and for EAR99 13/22.
items described
in the Note to
ECCN 1A995; case-
by-case review
for items
necessary to
detect, identify
and treat
infectious
disease; and
presumption of
denial for all
other items
subject to the
EAR.
* * * * * *
Intellifusion, a.k.a., the For all items Case-by-case 85 FR 34505, 6/5/
following two aliases: subject to the review for ECCNs 20.
--Shenzhen Yuntian Lifei EAR. (See Sec. 1A004.c, 1A004.d, 85 FR 44159, 7/22/
Technology Co., Ltd.; Sec. 734.9(e) 1A995, 1A999.a, 20.
--Yuntian Lifei. and 744.11 of the 1D003, 2A983, 87 FR [INSERT FR
1st Floor, Building 17, EAR) \4\. 2D983, and 2E983, PAGE NUMBER, 10/
Shenzhen Dayun Software and for EAR99 13/22.
Town, 8288 Longgang Avenue, items described
Yuanshan District, Longgang in the Note to
District, Shenzhen, China. ECCN 1A995; case-
by-case review
for items
necessary to
detect, identify
and treat
infectious
disease; and
presumption of
denial for all
other items
subject to the
EAR.
* * * * * *
Megvii Technology, For all items Case-by-case 84 FR 54004, 10/9/
3rd Floor, Block A, Rongke subject to the review for ECCNs 19.
Information Center, No. 2 EAR. (See Sec. 1A004.c, 1A004.d, 85 FR 44159, 7/22/
South Road, Haidian Sec. 734.9(e) 1A995, 1A999.a, 20.
District, Beijing, China; and 744.11 of the 1D003, 2A983, 87 FR [INSERT FR
and Floor 3rd Unit A Raycom EAR) \4\. 2D983, and 2E983, PAGE NUMBER, 10/
Infotech Park, No 2 and for EAR99 13/22.
Kexueyuan, Beijing, China. items described
in the Note to
ECCN 1A995; case-
by-case review
for items
necessary to
detect, identify
and treat
infectious
disease; and
presumption of
denial for all
other items
subject to the
EAR.
* * * * * *
National Supercomputing For all items Presumption of 80 FR 8527, 2/18/
Center Changsha (NSCC-CS), subject to the denial. 15.
Changsha City, Hunan EAR. (See Sec. 87 FR [INSERT FR
Province, China. Sec. 734.9(e) PAGE NUMBER, 10/
and 744.11 of the 13/22.
EAR) \4\.
National Supercomputing For all items Presumption of 80 FR 8527, 2/18/
Center Guangzhou (NSCC-GZ), subject to the denial. 15.
Sun Yat-Sen University, EAR. (See Sec. 87 FR [INSERT FR
University City, Guangzhou, Sec. 734.9(e) PAGE NUMBER, 10/
China. and 744.11 of the 13/22.
EAR) \4\.
National Supercomputing For all items Presumption of 86 FR 18438, 4/9/
Center Jinan, a.k.a., the subject to the denial. 21.
following two aliases: EAR. (See Sec. 87 FR [INSERT FR
--Shandong Computing Center; Sec. 734.9(e) PAGE NUMBER, 10/
and and 744.11 of the 13/22.
--NSCC-JN. EAR) \4\.
No. 1768, Xinluo Street,
High-tech Development Zone,
Jinan City, Shandong
Province, China.
[[Page 62205]]
National Supercomputing For all items Presumption of 86 FR 18438, 4/9/
Center Shenzhen, a.k.a., subject to the denial. 21.
the following three EAR. (See Sec. 87 FR [INSERT FR
aliases: Sec. 734.9(e) PAGE NUMBER, 10/
--The National and 744.11 of the 13/22.
Supercomputing Shenzhen EAR) \4\.
Center;
--Shenzhen Cloud Computing
Center; and
--NSCC-SZ.
No. 9 Duxue Road, University
Town Community, Taoyuan
Street, Nanshan District,
Shenzhen, China.
National Supercomputing For all items Presumption of 80 FR 8527, 2/18/
Center Tianjin (NSCC-TJ), subject to the denial. 15.
7th Street, Binhai New Area, EAR. (See Sec. 87 FR [INSERT FR
Tianjin, China. Sec. 734.9(e) PAGE NUMBER, 10/
and 744.11 of the 13/22.
EAR) \4\.
National Supercomputing For all items Presumption of 86 FR 18438, 4/9/
Center Wuxi, a.k.a., the subject to the denial. 21.
following one alias: EAR. (See Sec. 87 FR [INSERT FR
--NSCC-WX. Sec. 734.9(e) PAGE NUMBER, 10/
No. 1, Yinbai Road, Binhu and 744.11 of the 13/22.
District, Wuxi City, China. EAR) \4\.
National Supercomputer For all items Presumption of 86 FR 18438, 4/9/
Center Zhengzhou, a.k.a., subject to the denial. 21.
the following one alias: EAR. (See Sec. 87 FR [INSERT FR
--NSCC-ZZ. Sec. 734.9(e) PAGE NUMBER, 10/
Southeast of the and 744.11 of the 13/22.
intersection of Fengyang EAR) \4\.
Street and Changchun Road,
Zhongyuan District,
Zhengzhou City, China; and
1st Floor, Building 18,
Zhengzhou University (South
Campus), Zhengzhou City,
China; and
Room 213, Institute of Drug
Research, Zhengzhou
University, Changchun Road,
High-tech Zone, Zhengzhou
City, China.
National University of For all items Presumption of 80 FR 8527, 2/18/
Defense Technology (NUDT), subject to the denial. 15.
a.k.a., the following three EAR. (See Sec. 84 FR 29373, 6/24/
aliases: Sec. 734.9(e) 19,
--Central South CAD Center; and 744.11 of the 87 FR 38925, 6/30/
--CSCC; and EAR) \4\. 22.
--Hunan Guofang Keji 87 FR [INSERT FR
University. PAGE NUMBER, 10/
Garden Road (Metro West), 13/22.
Changsha City, Kaifu
District, Hunan Province,
China; and 109 Deya Road,
Kaifu District, Changsha
City, Hunan Province,
China; and 47 Deya Road,
Kaifu District, Changsha
City, Hunan Province,
China; and 147 Deya Road,
Kaifu District, Changsha
City, Hunan Province,
China; and 47 Yanwachi,
Kaifu District, Changsha,
Hunan, China; and Wonderful
Plaza, Sanyi Avenue, Kaifu
District, Changsha, China;
and No. 54 Beiya Road,
Changsha, China; and No. 54
Deya Road, Changsha, China.
* * * * * *
New H3C Semiconductor For all items Presumption of 86 FR 67319. 11/
Technologies Co., Ltd., subject to the denial. 26/21.
No. 1, Floor 1, Unit 1, EAR. (See Sec. 87 FR [INSERT FR
Building 4, No. 219, Sec. 734.9(e) PAGE NUMBER, 10/
Tianhua 2nd Rd., Chengdu and 744.11 of the 13/22.
High-Tech Zone, EAR) \4\.
China (Sichuan) Pilot Free
Trade Zone, China; and
Beijing Branch--Room 401,
4th Floor, Building 1, No.
8 Yard, Yongjia North Road,
Haidian District, Beijing,
China; and
Shanghai Branch--No. 666
Shengxia Rd., 122 Yindong
Rd., China (Shanghai) Pilot
Free Trade Zone, China.
* * * * * *
[[Page 62206]]
Northwestern Polytechnical For all items Presumption of 66 FR 24266, 5/14/
University, a.k.a., the subject to the denial. 01.
following three aliases: EAR. (See Sec. 75 FR 78883, 12/
--Northwestern Polytechnic Sec. 734.9(e) 17/10.
University; and 744.11 of the 77 FR 58006, 9/19/
--Northwest Polytechnic EAR) \4\. 12.
University; and 81 FR 64696, 9/20/
--Northwest Polytechnical 16.
University. 84 FR 40241, 8/14/
127 Yonyi Xilu, Xi'an 71002 19.
Shaanxi, China; and Youyi 87 FR [INSERT FR
Xi Lu, Xi'an, Shaanxi, PAGE NUMBER, 10/
China; and No. 1 Bianjia 13/22.
Cun, Xi'an; and West
Friendship Rd. 59, Xi'an;
and 3 10 W Apt 3, Xi'an.
* * * * * *
Shanghai High-Performance For all items Presumption of 86 FR 18438, 4/9/
Integrated Circuit Design subject to the denial. 21.
Center, a.k.a., the EAR. (See Sec. 87 FR [INSERT FR
following two aliases: Sec. 734.9(e) PAGE NUMBER, 10/
--Shenwei Micro; and and 744.11 of the 13/22.
--Shanghai High-Performance EAR) \4\.
IC Design Center.
No. 399, Bi sheng Road,
Zhangjiang Hi-Tech Park,
Pudong New Area, Shanghai,
China; and
428 Zhanghen Rd, Zhangjiang
High Tech Park, Pudong
District, Shanghai, China.
* * * * * *
Sugon, a.k.a., the following For all items Presumption of 84 FR 29373, 6/24/
nine aliases: subject to the denial. 19.
--Dawning; EAR. (See Sec. 87 FR [INSERT FR
--Dawning Information Sec. 734.9(e) PAGE NUMBER, 10/
Industry; and 744.11 of the 13/22.
--Sugon Information EAR) \4\.
Industry;
--Shuguang;
--Shuguang Information
Industry;
--Zhongke Dawn;
--Zhongke Shuguang;
--Dawning Company; and
--Tianjin Shuguang Computer
Industry.
Sugon Building, No. 36
Zhongguancun Software Park,
No. 8 Dongbeiwang West
Road, Haidian District,
Beijing; and No. 15, Haitai
Huake Street, Huayuan
Industrial Zone, Tianjin;
and Sugon Science and
Technology Park, No. 64
Shuimo West Street, Haidian
District, Beijing, China.
* * * * * *
Sunway Microelectronics, For all items Presumption of 86 FR 18438, 4/9/
a.k.a., the following two subject to the denial. 21.
aliases: EAR. (See Sec. 87 FR [INSERT FR
--Chengdu Shenwei Sec. 734.9(e) PAGE NUMBER, 10/
Technology; and and 744.11 of the 13/22.
--Chengdu Sunway Technology. EAR) \4\.
Building D22, Electronic
Science and Technology
Park, Section 4, Huafu
Avenue, Chengdu, China; and
Shuangxing Avenue, Gongxing
Street, Southwest Airport
Economic Development Zone,
Shuangliu District,
Chengdu, China.
* * * * * *
[[Page 62207]]
Tianjin Phytium Information For all items Presumption of 86 FR 18438, 4/9/
Technology, a.k.a., the subject to the denial. 21.
following three aliases: EAR. (See Sec. 87 FR [INSERT FR
--Phytium; Sec. 734.9(e) PAGE NUMBER, 10/
--Phytium Technology; and and 744.11 of the 13/22.
--Tianjin Feiteng EAR) \4\.
Information Technology.
Bldg 5 Xin'an Venture Plaza
1 Haiyuan M Rd Binhai New
Area Tianjin, 300450 China;
and Building 5, Xin'an
Chuangye Plaza, No. 1,
Haiyuan Middle Road, Binhai
New District, Tianjin,
China; and 8th Floor,
Quantum Core Tower, No.27
Zhichun Road, Haidian
District, Beijing, China;
and 10th Floor, Office
Building, Wangdefu Kaiyue
International Building,
No.526 Sanyi Avenue, Kaifu
District, Changsha City,
Hunan Province; China; and
Room 101, No. 1012, Hulin
Road, Huangpu District,
Guangzhou, China; and 100
Waihuanxi Rd, 3F-326
Science Pavilion, Panyu
District, Guangdong,
Guangzhou, China.
* * * * * *
Wuxi Jiangnan Institute of For all items Presumption of 84 FR 29373, 6/24/
Computing Technology, subject to the denial. 19.
a.k.a., the following two EAR. (See Sec. 87 FR [INSERT FR
aliases: Sec. 734.9(e) PAGE NUMBER, 10/
--Jiangnan Institute of and 744.11 of the 13/22.
Computing Technology; and EAR) \4\.
--JICT.
No. 699, Shanshui East Road,
Binhu District, Wuxi City,
China, and No. 188,
Shanshui East Road, Binhu
District, Wuxi City, China.
* * * * * *
Yitu Technologies, For all items Case-by-case 84 FR 54004, 10/9/
23F, Shanghai Arch Tower I, subject to the review for ECCNs 19.
523 Loushanguan Rd, EAR. (See Sec. 1A004.c, 1A004.d, 85 FR 44159, 7/22/
Changning District, Sec. 734.9(e) 1A995, 1A999.a, 20.
Shanghai, China. and 744.11 of the 1D003, 2A983, 87 FR [INSERT FR
EAR) \4\. 2D983, and 2E983, PAGE NUMBER, 10/
and for EAR99 13/22.
items described
in the Note to
ECCN 1A995; case-
by-case review
for items
necessary to
detect, identify
and treat
infectious
disease; and
presumption of
denial for all
other items
subject to the
EAR.
* * * * * *
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ For this entity, ``items subject to the EAR'' includes foreign-produced items that are subject to the EAR
under Sec. 734.9(e)(1) of the EAR. See Sec. 744.11(a)(2)(i) for related license requirements and license
review policy for these items.
* * * * * * *
\4\ For this entity, ``items subject to the EAR'' includes foreign-produced items that are subject to the EAR
under Sec. 734.9(e)(2) of the EAR. See Sec. 744.11(a)(2)(ii) for related license requirements and license
review policy.
PART 762--RECORDKEEPING
0
20. The authority citation for part 762 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. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
0
21. Effective on October 21, 2022, Sec. 762.2 is amended by
redesignating paragraphs (b)(3) through (31) as paragraphs (b)(4)
through (32) and adding new paragraph (b)(3) to read as follows:
Sec. 762.2 Records to be retained.
* * * * *
(b) * * *
(3) Section 734.9(h), Foreign Direct Product (FDP) supply chain
certification;
* * * * *
[[Page 62208]]
PART 772--DEFINITIONS OF TERMS
0
22. The authority citation for part 772 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. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
0
23. Effective on October 21, 2022, Sec. 772.1 is amended by adding a
definition for ``Supercomputer'' in alphabetical order to read as
follows:
Sec. 772.1 Definitions of terms as used in the Export Administration
Regulations (EAR).
* * * * *
Supercomputer. (734, 744) A computing ``system'' having a
collective maximum theoretical compute capacity of 100 or more double-
precision (64-bit) petaflops or 200 or more single-precision (32-bit)
petaflops within a 41,600 ft\3\ or smaller envelope.
Note 1 to ``Supercomputer'': The 41,600 ft\3\ envelope corresponds,
for example, to a 4x4x6.5 ft rack size and therefore 6,400 ft\2\ of
floor space. The envelope may include empty floor space between racks
as well as adjacent floors for multi-floor systems.
Note 2 to ``Supercomputer'': Typically, a `supercomputer' is a
high-performance multi-rack system having thousands of closely coupled
compute cores connected in parallel with networking technology and
having a high peak power capacity requiring cooling elements. They are
used for computationally intensive tasks including scientific and
engineering work. Supercomputers may include shared memory, distributed
memory, or a combination of both.
* * * * *
PART 774--THE COMMERCE CONTROL LIST
0
24. The authority citation for part 774 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. 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.
0
25. Effective on October 7, 2022, supplement no. 1 to part 774 is
amended by adding ECCN 3B090 after ECCN 3B002 and revising ECCNs 3B991,
3D001, and 3E001 to read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
3B090 Semiconductor manufacturing equipment, not Controlled by
3B001, as follows (see List of Items Controlled) and ``specially
designed'' ``parts,'' ``components,'' and ``accessories'' therefor.
License Requirements
Reason for Control: RS, AT
Country chart (See Supp.
Control(s) No. 1 to part 738)
RS applies to entire entry................ China (see Sec.
742.6(a)(6))
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
LVS: N/A
GBS: N/A
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A Items:
a. Semiconductor manufacturing deposition equipment, as follows:
a.1. Equipment for depositing cobalt through electroplating
processes.
a.2. Chemical vapor deposition equipment capable of deposition
of cobalt or tungsten fill metal having a void/seam having a largest
dimension less than or equal to 3 nm in the fill metal using a
bottom-up fill process.
a.3 Equipment capable of fabricating a metal contact within one
processing chamber by:
a.3.a. Depositing a layer using an organometallic tungsten
compound while maintaining the wafer substrate temperature between
100 [deg]C and 500 [deg]C; and
a.3.b. Conducting a plasma process where the chemistries include
hydrogen, including H<INF>2</INF>+N<INF>2</INF> and NH<INF>3</INF>.
a.4. Equipment capable of fabricating a metal contact in a
vacuum environment by:
a.4.a. Using a surface treatment during a plasma process where
the chemistries include hydrogen, including H<INF>2</INF>,
H<INF>2</INF>+N<INF>2</INF>, and NH<INF>3</INF>, while maintaining
the wafer substrate temperature between 100 [deg]C and 500 [deg]C;
a.4.b. Using a surface treatment consisting of a plasma process
where the chemistries include oxygen (including O<INF>2</INF> and
O<INF>3</INF>) while maintaining the wafer substrate temperature
between 40 [deg]C and 500 [deg]C; and
a.4.c. Depositing a tungsten layer while maintaining the wafer
substrate temperature between 100 [deg]C and 500 [deg]C.
a.5. Equipment capable of depositing a cobalt metal layer
selectively in a vacuum environment where the first step uses a
remote plasma generator and an ion filter, and the second step is
the deposition of the cobalt layer using an organometallic compound.
Note: This control does not apply to equipment that is non-
selective.
a.6. Physical vapor deposition equipment capable of depositing a
cobalt layer with a thickness of 10 nm or less on a top surface of a
copper or cobalt metal interconnect.
a.7. Atomic layer deposition equipment capable of depositing a
`work function metal' for the purpose of adjusting transistor
electrical parameters by delivering an organometallic aluminum
compound and a titanium halide compound onto a wafer substrate.
Technical note: `Work function metal' is a material that
controls the threshold voltage of a transistor.
a.8. Equipment capable of fabricating a metal contact in a
vacuum environment by depositing all of the following:
a.8.a. A titanium nitride (TiN) or tungsten carbide (WC) layer
using an organometallic compound while maintaining the wafer
substrate temperature between 20 [deg]C and 500 [deg]C;
a.8.b. A cobalt layer using a physical sputter deposition
technique where the process pressure is 1-100 mTorr while
maintaining the wafer substrate temperature below 500 [deg]C; and
a.8.c. A cobalt layer using an organometallic compound, where
the process pressure is 1-100 Torr, and the wafer substrate
temperature is maintained between 20 [deg]C and 500 [deg]C.
a.9. Equipment capable of fabricating copper metal interconnects
in a vacuum environment that deposits all of the following:
a.9.a. A cobalt or ruthenium layer using organometallic compound
where the process pressure is 1-100 Torr, and the wafer substrate
temperature is maintained between 20 [deg]C and 500 [deg]C; and
a.9.b. A copper layer using a physical vapor deposition
technique where the process pressure is 1-100m Torr and the wafer
substrate temperature is maintained below 500 [deg]C.
a.10. Equipment capable of area selective deposition of a
barrier or liner using an organometallic compound.
Note: 3B090.a.10 includes equipment capable of area selective
deposition of a barrier layer to enable fill metal contact to an
underlying electrical conductor without a barrier layer at the fill
metal via interface to an underlying electrical conductor.
a.11. Atomic layer deposition equipment capable of producing a
void/seam free fill of tungsten or cobalt in a structure having an
aspect ratio greater than 5:1, with openings smaller than 40 nm, and
at temperatures less than 500 [deg]C.
* * * * *
3B991 Equipment, not controlled by 3B001 or 3B090, for the
manufacture of electronic ``parts,'' ``components'' and materials,
and ``specially designed'' ``parts,'' ``components'' and
``accessories'' therefor.
License Requirements
Reason for Control: AT
Country chart (See Supp.
Control(s) No. 1 to part 738)
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
LVS: N/A
GBS: N/A
[[Page 62209]]
List of Items Controlled
Related Controls: N/A
Related Definitions: `Sputtering' is an overlay coating process
wherein positively charged ions are accelerated by an electric field
towards the surface of a target (coating material). The kinetic
energy of the impacting ions is sufficient to cause target surface
atoms to be released and deposited on the substrate. (Note: Triode,
magnetron or radio frequency sputtering to increase adhesion of
coating and rate of deposition are ordinary modifications of the
process.)
Items:
a. Equipment ``specially designed'' for the manufacture of
electron tubes, optical elements and ``specially designed''
``parts'' and ``components'' therefor controlled by 3A001 or 3A991;
b. Equipment ``specially designed'' for the manufacture of
semiconductor devices, integrated circuits and ``electronic
assemblies'', as follows, and systems incorporating or having the
characteristics of such equipment:
Note: 3B991.b also controls equipment used or modified for use
in the manufacture of other devices, such as imaging devices,
electro-optical devices, acoustic-wave devices.
b.1. Equipment for the processing of materials for the
manufacture of devices, ``parts'' and ``components'' as specified in
the heading of 3B991.b, as follows:
Note: 3B991 does not control quartz furnace tubes, furnace
liners, paddles, boats (except ``specially designed'' caged boats),
bubblers, cassettes or crucibles ``specially designed'' for the
processing equipment controlled by 3B991.b.1.
b.1.a. Equipment for producing polycrystalline silicon and
materials controlled by 3C001;
b.1.b. Equipment ``specially designed'' for purifying or
processing III/V and II/VI semiconductor materials controlled by
3C001, 3C002, 3C003, 3C004, or 3C005 except crystal pullers, for
which see 3B991.b.1.c below;
b.1.c. Crystal pullers and furnaces, as follows:
Note: 3B991.b.1.c does not control diffusion and oxidation
furnaces.
b.1.c.1. Annealing or recrystallizing equipment other than
constant temperature furnaces employing high rates of energy
transfer capable of processing wafers at a rate exceeding 0.005 m\2\
per minute;
b.1.c.2. ``Stored program controlled'' crystal pullers having
any of the following characteristics:
b.1.c.2.a. Rechargeable without replacing the crucible
container;
b.1.c.2.b. Capable of operation at pressures above 2.5 x 10\5\
Pa; or
b.1.c.2.c. Capable of pulling crystals of a diameter exceeding
100 mm;
b.1.d. ``Stored program controlled'' equipment for epitaxial
growth having any of the following characteristics:
b.1.d.1. Capable of producing silicon layer with a thickness
uniform to less than <plus-minus>2.5% across a distance of 200 mm or
more;
b.1.d.2. Capable of producing a layer of any material other than
silicon with a thickness uniformity across the wafer of equal to or
better than <plus-minus> 3.5%; or
b.1.d.3. Rotation of individual wafers during processing;
b.1.e. Molecular beam epitaxial growth equipment;
b.1.f. Magnetically enhanced `sputtering' equipment with
``specially designed'' integral load locks capable of transferring
wafers in an isolated vacuum environment;
b.1.g. Equipment ``specially designed'' for ion implantation,
ion-enhanced or photo-enhanced diffusion, having any of the
following characteristics:
b.1.g.1. Patterning capability;
b.1.g.2. Beam energy (accelerating voltage) exceeding 200 keV;
b.1.g.3 Optimized to operate at a beam energy (accelerating
voltage) of less than 10 keV; or
b.1.g.4. Capable of high energy oxygen implant into a heated
``substrate'';
b.1.h. ``Stored program controlled'' equipment for the selective
removal (etching) by means of anisotropic dry methods (e.g.,
plasma), as follows:
b.1.h.1. Batch types having either of the following:
b.1.h.1.a. End-point detection, other than optical emission
spectroscopy types; or
b.1.h.1.b. Reactor operational (etching) pressure of 26.66 Pa or
less;
b.1.h.2. Single wafer types having any of the following:
b.1.h.2.a. End-point detection, other than optical emission
spectroscopy types;
b.1.h.2.b. Reactor operational (etching) pressure of 26.66 Pa or
less; or
b.1.h.2.c. Cassette-to-cassette and load locks wafer handling;
Notes: 1. ``Batch types'' refers to machines not ``specially
designed'' for production processing of single wafers. Such machines
can process two or more wafers simultaneously with common process
parameters, e.g., RF power, temperature, etch gas species, flow
rates.
2. ``Single wafer types'' refers to machines ``specially
designed'' for production processing of single wafers. These
machines may use automatic wafer handling techniques to load a
single wafer into the equipment for processing. The definition
includes equipment that can load and process several wafers but
where the etching parameters, e.g., RF power or end point, can be
independently determined for each individual wafer.
b.1.i. ``Chemical vapor deposition'' (CVD) equipment, e.g.,
plasma-enhanced CVD (PECVD) or photo-enhanced CVD, for semiconductor
device manufacturing, having either of the following capabilities,
for deposition of oxides, nitrides, metals or polysilicon:
b.1.i.1. ``Chemical vapor deposition'' equipment operating below
10\5\ Pa; or
b.1.i.2. PECVD equipment operating either below 60 Pa (450
millitorr) or having automatic cassette-to-cassette and load lock
wafer handling;
Note: 3B991.b.1.i does not control low pressure ``chemical vapor
deposition'' (LPCVD) systems or reactive ``sputtering'' equipment.
b.1.j. Electron beam systems ``specially designed'' or modified
for mask making or semiconductor device processing having any of the
following characteristics:
b.1.j.1. Electrostatic beam deflection;
b.1.j.2. Shaped, non-Gaussian beam profile;
b.1.j.3. Digital-to-analog conversion rate exceeding 3 MHz;
b.1.j.4. Digital-to-analog conversion accuracy exceeding 12 bit;
or
b.1.j.5. Target-to-beam position feedback control precision of 1
micrometer or finer;
Note: 3B991.b.1.j does not control electron beam deposition
systems or general purpose scanning electron microscopes.
b.1.k. Surface finishing equipment for the processing of
semiconductor wafers as follows:
b.1.k.1. ``Specially designed'' equipment for backside
processing of wafers thinner than 100 micrometer and the subsequent
separation thereof; or
b.1.k.2. ``Specially designed'' equipment for achieving a
surface roughness of the active surface of a processed wafer with a
two-sigma value of 2 micrometer or less, total indicator reading
(TIR);
Note: 3B991.b.1.k does not control single-side lapping and
polishing equipment for wafer surface finishing.
b.1.l. Interconnection equipment which includes common single or
multiple vacuum chambers ``specially designed'' to permit the
integration of any equipment controlled by 3B991 into a complete
system;
b.1.m. ``Stored program controlled'' equipment using ``lasers''
for the repair or trimming of ``monolithic integrated circuits''
with either of the following characteristics:
b.1.m.1. Positioning accuracy less than <plus-minus> 1
micrometer; or
b.1.m.2. Spot size (kerf width) less than 3 micrometer.
b.2. Masks, mask ``substrates,'' mask-making equipment and image
transfer equipment for the manufacture of devices, ``parts'' and
``components'' as specified in the heading of 3B991, as follows:
Note: The term ``masks'' refers to those used in electron beam
lithography, X-ray lithography, and ultraviolet lithography, as well
as the usual ultraviolet and visible photo-lithography.
b.2.a. Finished masks, reticles and designs therefor, except:
b.2.a.1. Finished masks or reticles for the production of
unembargoed integrated circuits; or
b.2.a.2. Masks or reticles, having both of the following
characteristics:
b.2.a.2.a. Their design is based on geometries of 2.5 micrometer
or more; and
b.2.a.2.b. The design does not include special features to alter
the intended use by means of production equipment or ``software'';
b.2.b. Mask ``substrates'' as follows:
b.2.b.1. Hard surface (e.g., chromium, silicon, molybdenum)
coated ``substrates'' (e.g., glass, quartz, sapphire) for the
preparation of masks having dimensions exceeding 125 mm x 125 mm; or
b.2.b.2. ``Substrates'' ``specially designed'' for X-ray masks;
b.2.c. Equipment, other than general purpose computers,
``specially designed'' for computer aided design (CAD) of
semiconductor devices or integrated circuits;
b.2.d. Equipment or machines, as follows, for mask or reticle
fabrication:
[[Page 62210]]
b.2.d.1. Photo-optical step and repeat cameras capable of
producing arrays larger than 100 mm x 100 mm, or capable of
producing a single exposure larger than 6 mm x 6 mm in the image
(i.e., focal) plane, or capable of producing line widths of less
than 2.5 micrometer in the photoresist on the ``substrate'';
b.2.d.2. Mask or reticle fabrication equipment using ion or
``laser'' beam lithography capable of producing line widths of less
than 2.5 micrometer; or
b.2.d.3. Equipment or holders for altering masks or reticles or
adding pellicles to remove defects;
Note: 3B991.b.2.d.1 and b.2.d.2 do not control mask fabrication
equipment using photo-optical methods which was either commercially
available before the 1st January, 1980, or has a performance no
better than such equipment.
b.2.e. ``Stored program controlled'' equipment for the
inspection of masks, reticles or pellicles with:
b.2.e.1. A resolution of 0.25 micrometer or finer; and
b.2.e.2. A precision of 0.75 micrometer or finer over a distance
in one or two coordinates of 63.5 mm or more;
Note: 3B991.b.2.e does not control general purpose scanning
electron microscopes except when ``specially designed'' and
instrumented for automatic pattern inspection.
b.2.f. Align and expose equipment for wafer production using
photo-optical or X-ray methods, e.g., lithography equipment,
including both projection image transfer equipment and step and
repeat (direct step on wafer) or step and scan (scanner) equipment,
capable of performing any of the following functions:
Note: 3B991.b.2.f does not control photo-optical contact and
proximity mask align and expose equipment or contact image transfer
equipment.
b.2.f.1. Production of a pattern size of less than 2.5
micrometer;
b.2.f.2. Alignment with a precision finer than <plus-minus> 0.25
micrometer (3 sigma);
b.2.f.3. Machine-to-machine overlay no better than <plus-minus>
0.3 micrometer; or
b.2.f.4. A light source wavelength shorter than 400 nm;
b.2.g. Electron beam, ion beam or X-ray equipment for projection
image transfer capable of producing patterns less than 2.5
micrometer;
Note: For focused, deflected-beam systems(direct write systems),
see 3B991.b.1.j or b.10.
b.2.h. Equipment using ``lasers'' for direct write on wafers
capable of producing patterns less than 2.5 micrometer.
b.3. Equipment for the assembly of integrated circuits, as
follows:
b.3.a. ``Stored program controlled'' die bonders having all of
the following characteristics:
b.3.a.1. ``Specially designed'' for ``hybrid integrated
circuits'';
b.3.a.2. X-Y stage positioning travel exceeding 37.5 x 37.5 mm;
and
b.3.a.3. Placement accuracy in the X-Y plane of finer than
<plus-minus> 10 micrometer;
b.3.b. ``Stored program controlled'' equipment for producing
multiple bonds in a single operation (e.g., beam lead bonders, chip
carrier bonders, tape bonders);
b.3.c. Semi-automatic or automatic hot cap sealers, in which the
cap is heated locally to a higher temperature than the body of the
package, ``specially designed'' for ceramic microcircuit packages
controlled by 3A001 and that have a throughput equal to or more than
one package per minute.
Note: 3B991.b.3 does not control general purpose resistance type
spot welders.
b.4. Filters for clean rooms capable of providing an air
environment of 10 or less particles of 0.3 micrometer or smaller per
0.02832 m\3\ and filter materials therefor.
* * * * *
3D001 ``Software'' ``specially designed'' for the ``development'' or
``production'' of commodities controlled by 3A001.b to 3A002.h, or
3B (except 3B991 and 3B992).
License Requirements
Reason for Control: NS, RS, AT
Country chart (See Supp. No.
Control(s) 1 to part 738)
NS applies to ``software'' for commodities NS Column 1
controlled by 3A001.b to 3A001.h, 3A002,
and 3B.
RS applies to ``software'' for commodities China (see Sec.
controlled by 3B090. 742.6(a)(6))
AT applies to entire entry................ AT Column 1
Reporting Requirements
See Sec. 743.1 of the EAR for reporting requirements for
exports under License Exceptions, Special Comprehensive Licenses,
and Validated End-User authorizations.
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
TSR: Yes, except for ``software'' ``specially designed'' for the
``development'' or ``production'' of Traveling Wave Tube Amplifiers
described in 3A001.b.8 having operating frequencies exceeding 18
GHz.
Special Conditions for STA
STA: License Exception STA may not be used to ship or transmit
``software'' ``specially designed'' for the ``development'' or
``production'' of equipment specified by 3A002.g.1 or 3B001.a.2 to
any of the destinations listed in Country Group A:6 (See Supplement
No.1 to part 740 of the EAR).
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
* * * * *
3E001 ``Technology'' according to the General Technology Note for
the ``development'' or ``production'' of commodities controlled by
3A (except 3A980, 3A981, 3A991, 3A992, or 3A999), 3B (except 3B991
or 3B992) or 3C (except 3C992).
License Requirements
Reason for Control: NS, MT, NP, RS, AT
Country chart (See Supp. No.
Control(s) 1 to part 738)
NS applies to ``technology'' for NS Column 1
commodities controlled by 3A001, 3A002,
3A003, 3B001, 3B002, or 3C001 to 3C006..
MT applies to ``technology'' for MT Column 1
commodities controlled by.
3A001 or 3A101 for MT reasons.............
NP applies to ``technology'' for NP Column 1
commodities controlled by.
3A001, 3A201, or 3A225 to 3A234 for NP
reasons.
RS applies to ``technology'' for China (See Sec.
commodities controlled by 3B090 or 742.6(a)(6)).
``software'' specified by 3D001 (for
3B090 commodities)..
AT applies to entire entry................ AT Column 1
License Requirements Note: See Sec. 744.17 of the EAR for
additional license requirements for microprocessors having a
processing speed of 5 GFLOPS or more and an arithmetic logic unit
with an access width of 32 bit or more, including those
incorporating ``information security'' functionality, and associated
``software'' and ``technology'' for the ``production'' or
``development'' of such microprocessors.
Reporting Requirements
See Sec. 743.1 of the EAR for reporting requirements for
exports under License Exceptions, Special Comprehensive Licenses,
and Validated End-User authorizations.
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
TSR: Yes, except N/A for MT, and ``technology'' for the
``development'' or ``production'' of: (a) vacuum electronic device
amplifiers described in 3A001.b.8, having operating frequencies
exceeding 19 GHz; (b) solar cells, coverglass-interconnect-cells or
covered-interconnect-cells (CIC) ``assemblies'', solar arrays and/or
solar panels described in 3A001.e.4; (c) ``Monolithic Microwave
Integrated Circuit'' (``MMIC'') amplifiers in 3A001.b.2; and (d)
discrete microwave transistors in 3A001.b.3.
Special Conditions for STA
STA: License Exception STA may not be used to ship or transmit
``technology''
[[Page 62211]]
according to the General Technology Note for the ``development'' or
``production'' of equipment specified by ECCNs 3A002.g.1 or
3B001.a.2 to any of the destinations listed in Country Group A:6
(See Supplement No.1 to part 740 of the EAR). License Exception STA
may not be used to ship or transmit ``technology'' according to the
General Technology Note for the ``development'' or ``production'' of
components specified by ECCN 3A001.b.2 or b.3 to any of the
destinations listed in Country Group A:5 or A:6 (See Supplement No.1
to part 740 of the EAR).
List of Items Controlled
Related Controls: (1)``Technology'' according to the General
Technology Note for the ``development'' or ``production'' of certain
``space-qualified'' atomic frequency standards described in Category
XV(e)(9), MMICs described in Category XV(e)(14), and oscillators
described in Category XV(e)(15) of the USML are ``subject to the
ITAR'' (see 22 CFR parts 120 through 130). See also 3E101, 3E201 and
9E515. (2) ``Technology'' for ``development'' or ``production'' of
``Microwave Monolithic Integrated Circuits'' (``MMIC'') amplifiers
in 3A001.b.2 is controlled in this ECCN 3E001; 5E001.d refers only
to that additional ``technology'' ``required'' for
telecommunications.
Related Definition: N/A
Items:
The list of items controlled is contained in the ECCN heading.
Note 1: 3E001 does not control ``technology'' for equipment or
``components'' controlled by 3A003.
Note 2: 3E001 does not control ``technology'' for integrated
circuits controlled by 3A001.a.3 to a.14, having all of the
following:
(a) Using ``technology'' at or above 0.130 [micro]m; and
(b) Incorporating multi-layer structures with three or fewer
metal layers.
Note 3: 3E001 does not apply to `Process Design Kits' (`PDKs')
unless they include libraries implementing functions or technologies
for items specified by 3A001.
Technical Note: A `Process Design Kit' (`PDK') is a software
tool provided by a semiconductor manufacturer to ensure that the
required design practices and rules are taken into account in order
to successfully produce a specific integrated circuit design in a
specific semiconductor process, in accordance with technological and
manufacturing constraints (each semiconductor manufacturing process
has its particular `PDK').
0
26. Effective on October 21, 2022, supplement no. 1 to part 774 is
further amended by:
0
a. Under Category 3, Product Group A, revising Note 3;
0
b. Adding ECCN 3A090 after ECCN 3A003;
0
c. Revising ECCNs 3A991, 3D001, and 3E001;
0
d. Adding ECCN 4A090 after ECCN 4A005;
0
e. Revising ECCN 4A994;
0
f. Adding ECCN 4D090 after ECCN 4D004; and
0
g. Revising ECCNs 4D994, 4E001, 5A992, and 5D992.
The additions and revisions read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
Category 3--Electronics A. ``End Items,'' ``Equipment,''
``Accessories,'' ``Attachments,'' ``Parts,'' ``Components,'' and
``Systems''
* * * * *
Note 3: The status of wafers (finished or unfinished), in which
the function has been determined, is to be evaluated against the
parameters of items in 3A.
* * * * *
3A090 Integrated circuits as follows (see List of Items Controlled).
License Requirements
Reason for Control: RS, AT
Country chart (See Supp. No.
Control(s) 1 to part 738)
RS applies to entire entry................ China (See Sec.
742.6(a)(6))
AT applies to entire entry................ AT Column 1
List Based License Exceptions (See Part 740 for a description of
all license exceptions)
LVS: N/A
GBS N/A
List of Items Controlled
Related Controls: See ECCNs 3D001 and 3E001 for associated
technology and software controls.
Related Definitions: N/A
Items:
a. Integrated circuits that have or are programmable to have an
aggregate bidirectional transfer rate over all inputs and outputs of
600 Gbyte/s or more to or from integrated circuits other than
volatile memories, and any of the following:
a.1. One or more digital processor units executing machine
instructions having a bit length per operation multiplied by
processing performance measured in TOPS, aggregated over all
processor units, of 4800 or more;
a.2. One or more digital `primitive computational units,'
excluding those units contributing to the execution of machine
instructions relevant to the calculation of TOPS for 3A090.a.1,
having a bit length per operation multiplied by processing
performance measured in TOPS, aggregated over all computational
units, of 4800 or more;
a.3. One or more analog, multi-value, or multi-level `primitive
computational units' having a processing performance measured in
TOPS multiplied by 8, aggregated over all computational units, of
4800 or more; or
a.4. Any combination of digital processor units and `primitive
computational units' whose calculations according to 3A090.a.1,
3A090.a.2, and 3A090.a.3 sum to 4800 or more.
Note: Integrated circuits specified by 3A090.a include graphical
processing units (GPUs), tensor processing units (TPUs), neural
processors, in-memory processors, vision processors, text
processors, co-processors/accelerators, adaptive processors, field-
programmable logic devices (FPLDs), and application-specific
integrated circuits (ASICs). Examples of integrated circuits are in
the Note to 3A001.a.
Technical Notes:
1. A `primitive computational unit' is defined as containing
zero or more modifiable weights, receiving one or more inputs, and
producing one or more outputs. A computational unit is said to
perform 2N-1 operations whenever an output is updated based on N
inputs, where each modifiable weight contained in the processing
element counts as an input. Each input, weight, and output might be
an analog signal level or a scalar digital value represented using
one or more bits. Such units include:
--Artificial neurons
-- Multiply accumulate (MAC) units
--Floating-point units (FPUs)
--Analog multiplier units
--Processing units using memristors, spintronics, or magnonics
--Processing units using photonics or non-linear optics
--Processing units using analog or multi-level nonvolatile weights
--Processing units using multi-level memory or analog memory
-- Multi-value units
--Spiking units
2. Operations relevant to the calculation of TOPS for 3A090.a
include both scalar operations and the scalar constituents of
composite operations such as vector operations, matrix operations,
and tensor operations. Scalar operations include integer operations,
floating-point operations (often measured by FLOPS), fixed-point
operations, bit-manipulation operations, and/or bitwise operations.
3. TOPS is Tera Operations Per Second or 10\12\ Operations per
Second.
4. The rate of TOPS is to be calculated at its maximum value
theoretically possible when all processing elements are operating
simultaneously. The rate of TOPS and aggregate bidirectional
transfer rate is assumed to be the highest value the manufacturer
claims in a manual or brochure for the integrated circuit. For
example, the threshold of 4800 bits x TOPS can be met with 600 tera
integer operations at 8 bits or 300 tera FLOPS at 16 bits. The bit
length of an operation is equal to the highest bit length of any
input or output of that operation. Additionally, if an item
specified by this entry is designed for operations that achieve
different bits x TOPS value, the highest bits x TOPS value should be
used for the purposes of 3A090.a.
5. For integrated circuits specified by 3A090.a that provide
processing of both sparse and dense matrices, the TOPS values are
the values for processing of dense matrices (e.g., without
sparsity).
[[Page 62212]]
b. [Reserved]
* * * * *
3A991 Electronic devices and ``components,'' not controlled by
3A001.
License Requirements
Reason for Control: AT
Country chart (See Supp. No.
Control(s) 1 to part 738)
AT applies to entire entry................ AT Column 1
License Requirements Note: See Sec. 744.17 of the EAR for
additional license requirements for microprocessors having a
processing speed of 5 GFLOPS or more and an arithmetic logic unit
with an access width of 32 bit or more, including those
incorporating ``information security'' functionality, and associated
``software'' and ``technology'' for the ``production'' or
``development'' of such microprocessors.
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
LVS: N/A
GBS: N/A
List of Items Controlled
Related Controls: For associated ``software'' for commodities in
this ECCN, see 3D991 and for associated ``technology for commodities
in this ECCN, see 3E991.
Related Definitions: N/A
Items:
a. ``Microprocessor microcircuits'', ``microcomputer
microcircuits'', and microcontroller microcircuits having any of the
following:
a.1. A performance speed of 5 GFLOPS or more and an arithmetic
logic unit with an access width of 32 bit or more;
a.2. A clock frequency rate exceeding 25 MHz; or
a.3. More than one data or instruction bus or serial
communication port that provides a direct external interconnection
between parallel ``microprocessor microcircuits'' with a transfer
rate of 2.5 Mbyte/s;
b. Storage integrated circuits, as follows:
b.1. Electrical erasable programmable read-only memories
(EEPROMs) with a storage capacity;
b.1.a. Exceeding 16 Mbits per package for flash memory types; or
b.1.b. Exceeding either of the following limits for all other
EEPROM types:
b.1.b.1. Exceeding 1 Mbit per package; or
b.1.b.2. Exceeding 256 kbit per package and a maximum access
time of less than 80 ns;
b.2. Static random access memories (SRAMs) with a storage
capacity:
b.2.a. Exceeding 1 Mbit per package; or
b.2.b. Exceeding 256 kbit per package and a maximum access time
of less than 25 ns;
c. Analog-to-digital converters having any of the following:
c.1. A resolution of 8 bit or more, but less than 12 bit, with
an output rate greater than 200 million words per second;
c.2. A resolution of 12 bit with an output rate greater than 105
million words per second;
c.3. A resolution of more than 12 bit but equal to or less than
14 bit with an output rate greater than 10 million words per second;
or
c.4. A resolution of more than 14 bit with an output rate
greater than 2.5 million words per second;
d. Field programmable logic devices having a maximum number of
single-ended digital input/outputs between 200 and 700;
e. Fast Fourier Transform (FFT) processors having a rated
execution time for a 1,024 point complex FFT of less than 1 ms;
f. Custom integrated circuits for which either the function is
unknown, or the control status of the equipment in which the
integrated circuits will be used is unknown to the manufacturer,
having any of the following:
f.1. More than 144 terminals; or
f.2. A typical ``basic propagation delay time'' of less than 0.4
ns;
g. Traveling-wave ``vacuum electronic devices,'' pulsed or
continuous wave, as follows:
g.1. Coupled cavity devices, or derivatives thereof;
g.2. Helix devices based on helix, folded waveguide, or
serpentine waveguide circuits, or derivatives thereof, with any of
the following:
g.2.a. An ``instantaneous bandwidth'' of half an octave or more;
and
g.2.b. The product of the rated average output power (expressed
in kW) and the maximum operating frequency (expressed in GHz) of
more than 0.2;
g.2.c. An ``instantaneous bandwidth'' of less than half an
octave; and
g.2.d. The product of the rated average output power (expressed
in kW) and the maximum operating frequency (expressed in GHz) of
more than 0.4;
h. Flexible waveguides designed for use at frequencies exceeding
40 GHz;
i. Surface acoustic wave and surface skimming (shallow bulk)
acoustic wave devices (i.e., ``signal processing'' devices employing
elastic waves in materials), having either of the following:
i.1. A carrier frequency exceeding 1 GHz; or
i.2. A carrier frequency of 1 GHz or less; and
i.2.a. A frequency side-lobe rejection exceeding 55 Db;
i.2.b. A product of the maximum delay time and bandwidth (time
in microseconds and bandwidth in MHz) of more than 100; or
i.2.c. A dispersive delay of more than 10 microseconds;
j. Cells as follows:
j.1. Primary cells having an energy density of 550 Wh/kg or less
at 293 K (20[ordm]C);
j.2. Secondary cells having an energy density of 350 Wh/kg or
less at 293 K (20[ordm]C);
Note: 3A991.j does not control batteries, including single cell
batteries.
Technical Notes:
1. For the purpose of 3A991.j energy density (Wh/kg) is
calculated from the nominal voltage multiplied by the nominal
capacity in ampere-hours divided by the mass in kilograms. If the
nominal capacity is not stated, energy density is calculated from
the nominal voltage squared then multiplied by the discharge
duration in hours divided by the discharge load in Ohms and the mass
in kilograms.
2. For the purpose of 3A991.j, a `cell' is defined as an
electrochemical device, which has positive and negative electrodes,
and electrolyte, and is a source of electrical energy. It is the
basic building block of a battery.
3. For the purpose of 3A991.j.1, a `primary cell' is a `cell'
that is not designed to be charged by any other source.
4. For the purpose of 3A991.j.2, a `secondary cell' is a `cell'
that is designed to be charged by an external electrical source.
k. ``Superconductive'' electromagnets or solenoids ``specially
designed'' to be fully charged or discharged in less than one
minute, having all of the following:
Note: 3A991.k does not control ``superconductive''
electromagnets or solenoids designed for Magnetic Resonance Imaging
(MRI) medical equipment.
k.1. Maximum energy delivered during the discharge divided by
the duration of the discharge of more than 500 kJ per minute;
k.2. Inner diameter of the current carrying windings of more
than 250 mm; and
k.3. Rated for a magnetic induction of more than 8T or ``overall
current density'' in the winding of more than 300 A/mm \2\;
l. Circuits or systems for electromag
[…truncated; see source link]Indexed from Federal Register on October 13, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.