[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Rules and Regulations]
[Pages 73424-73455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23049]
[[Page 73423]]
Vol. 88
Wednesday,
No. 205
October 25, 2023
Part II
Department of Commerce
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Bureau of Industry and Security
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15 CFR Parts 734, 736, et al.
Export Controls on Semiconductor Manufacturing Items; Final Rule
Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 /
Rules and Regulations
[[Page 73424]]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 734, 736, 740, 742, 744, 772, and 774
[Docket No. 231013-0246]
RIN 0694-AJ23
Export Controls on Semiconductor Manufacturing Items
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: On October 7, 2022, the Bureau of Industry and Security (BIS)
released the interim final rule (IFR) ``Implementation of Additional
Export Controls: Certain Advanced Computing and Semiconductor
Manufacturing Items; Supercomputer and Semiconductor End Use'' (October
7 IFR), which amended the Export Administration Regulations (EAR) to
implement controls on advanced computing integrated circuits (ICs),
computer commodities that contain such ICs, and certain semiconductor
manufacturing items. The October 7 IFR also made other EAR changes to
ensure appropriate related controls, including on certain ``U.S.
person'' activities. This IFR addresses comments received in response
to only the part of the October 7 IFR that controls semiconductor
manufacturing equipment (SME) and amends the EAR to implement SME
controls more effectively and to address ongoing national security
concerns.
DATES:
Effective dates: This rule is effective November 17, 2023, except
for amendatory instruction 5, which is effective January 1, 2026.
Comment due date: Comments must be received by BIS no later than
December 18, 2023.
ADDRESSES: Comments on this rule may be submitted to the Federal
rulemaking portal (www.regulations.gov). The regulations.gov ID for
this rule is: BIS-2023-0016. Please refer to RIN 0694-AJ23 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 https://www.regulations.gov.
Commenters submitting business confidential information are encouraged
to scan a hard copy of the non-confidential version to create an image
of the file, rather than submitting a digital copy with redactions
applied, to avoid inadvertent redaction errors which could enable the
public to read business confidential information.
FOR FURTHER INFORMATION CONTACT:
For general questions, contact Regulatory Policy Division,
Office of Exporter Services, Bureau of Industry and Security, U.S.
Department of Commerce at 202-482-2440 or by email: [email protected],
please include ``RIN: 0694-AJ23'' in the subject line.
For technical questions, contact Carlos Monroy at 202-482-
3246 or [email protected].
SUPPLEMENTARY INFORMATION:
Background
A. Introduction
On October 7, 2022, BIS released interim final rule (IFR)
``Implementation of Additional Export Controls: Certain Advanced
Computing and Semiconductor Manufacturing Items; Supercomputer and
Semiconductor End Use'' (October 7 IFR) and requested public comments
on the newly imposed measures. (87 FR 62186, October 13, 2022) BIS
imposed these new controls to protect U.S. national security interests
by restricting the People's Republic of China (China's) military
modernization efforts and degrading its ability to violate human
rights. With a calibrated and measured approach, focused on key, force-
multiplying technologies, the October 7 IFR accomplished U.S. national
security objectives while interfering with commercial trade no more
than necessary to accomplish those objectives.
The advanced computing integrated circuits (ICs), semiconductor
manufacturing equipment (SME) essential to producing advanced-node ICs,
and items used to further supercomputing capacity controlled through
the October 7 IFR are critical for the development of weapons of mass
destruction (WMD), advanced weapons systems, exascale supercomputing,
and artificial intelligence (AI) capabilities, as well as high-tech
surveillance applications. The use of such items in development and
deployment of advanced weapons systems and advanced AI to support
military applications would further U.S. military adversaries' goals of
surpassing the United States and its allies in military capability,
thereby destabilizing regional and global security status quos. This
includes logic integrated circuits needed for future advanced weapon
systems and memory needed for high volume and high-performance data
storage in such systems. Additionally, AI capabilities, facilitated by
supercomputing and built on advanced-node ICs made by SME, lead to
improved speed and accuracy of military decision-making, planning, and
logistics. They can also be used for cognitive electronic warfare,
radar, signals, intelligence, and jamming. These ongoing national
security concerns motivated the October 7 IFR and require the controls
set forth in this SME IFR.
The October 7 IFR imposed controls on two sets of items and
activities. First, the rule established new Export Control
Classification Numbers (ECCNs) and controls for certain advanced
computing ICs and computer commodities that contain such ICs, as well
as end-use and end-user controls related to ``supercomputers.'' Second,
it established a new ECCN and controls for certain SME essential to
producing advanced-node ICs, end-use controls related to the
``development'' and ``production'' of those advanced ICs, and end-use
controls related to the ``development'' and ``production'' of SME. BIS
later imposed the same controls implemented on China in the October 7
IFR to Macau because of Macau's position as a Special Administrative
Region of China and the potential risk of diversion of items subject to
the EAR from Macau to China. See ``Implementation of Additional Export
Controls: Certain Advanced Computing and Semiconductor Manufacturing
Items; Supercomputer and Semiconductor End Use Updates to the Controls
to Add Macau'' (88 FR 2821, January 18, 2023).
[[Page 73425]]
In this rule, BIS updates the SME controls through publication of
this SME IFR while publishing elsewhere in this issue of the Federal
Register a separate IFR, ``Implementation of Additional Export
Controls: Certain Advanced Computing Items; Supercomputer and
Semiconductor End Use; Updates to the Controls and Corrections'' (AC/S
IFR). Together, these IFRs advance the U.S. national security
objectives identified above and discussed more extensively in the
chapeau of section C of this rule.
This SME IFR amends the EAR by refining the scope of the October 7
IFR to more effectively achieve national security objectives while
responding to public comments about the semiconductor manufacturing and
SME controls adopted in the October 7 IFR. This SME IFR: (1) includes
additional types of SME to those previously described under ECCN 3B090
and controls all such items under ECCNs 3B001 and 3B002; (2) revises
ECCNs 3D001, 3D002, 3D003, and 3E001 to make conforming changes for the
license requirements for the items moved from ECCN 3B090 to ECCNs 3B001
and 3B002; (3) revises the license exception restrictions to reflect
the removal of 3B090 and makes other changes related to the
availability of license exceptions for these SME items; (4) revises the
national security license requirements and review policy to impose
national security controls on newly added SME and those items moved
from ECCN 3B090 to ECCNs 3B001 and 3B002 for Macau and destinations
specified in Country Group D:5; (5) revises the regional stability
license requirements and license review policy to, among other things,
remove references to ECCN 3B090 and expand the license requirement to
Macau and destinations specified in Country Group D:5; (6) revises the
de minimis provisions to add a 0% de minimis rule for items described
in new ECCN 3B001.f.1.b.2.b; (7) revises and reformats the ``U.S.
persons'' activities controls and ``supercomputer'' and semiconductor
manufacturing end-use controls to better achieve the objectives of the
October 7 IFR and improve clarity; (8) adds two new defined terms to
the EAR for ``extreme ultraviolet'' (``EUV'') and ``advanced-node
integrated circuits;'' (9) adds a new Temporary General License (TGL)
to provide SME producers in the United States and Country Groups A:5
and A:6 countries additional time to identify alternative sources of
supply outside of arms-embargoed countries, or to acquire individually
validated licenses; and (10) revises license requirements based on
destination.
B. Public Comments and BIS's Responses
BIS received 43 responsive public comments in response to the
October 7 IFR. This rule summarizes and addresses the comments under 63
topics that were specific to controls related to SMEs and the
production of advanced-node ICs. The AC/S IFR, published elsewhere in
this issue of the Federal Register, summarizes and addresses comments
on the advanced computing provisions of the October 7 IFR, as well as
general comments applicable to all aspects of the October 7 IFR that
are not otherwise addressed in this SME IFR. BIS appreciates the many
public comments it received and encourages continued engagement and
feedback. This SME rule is published as an IFR with a 60-day comment
period and 30-day delayed effective date for most changes for the
purpose of gathering valuable public input.
Breadth of the October 7 IFR and Its Unilateral Imposition
Topic 1: Many commenters expressed concern and surprise about the
breadth of the October 7 IFR, in some cases arguing that existing
multilateral (i.e., the Wassenaar Arrangement) controls were sufficient
to address BIS's stated objectives.
BIS Response: BIS understands the importance of predictability and
specific focus in export controls, particularly given the complexity
and interdependence of the global semiconductor industry. The U.S.
Government has frequently and consistently raised its concerns about
China's military modernization, particularly in light of China's
Military-Civil Fusion (MCF) strategy, which deliberately blurs the
lines between commercial sectors and military programs, and the ability
of China's government to demand information and assistance from
companies. The U.S. Government, including BIS, has been clear that MCF,
combined with China's government system, has led to additional U.S.
export controls on items including emerging technologies that have
military applications. Consistent with this view, BIS has specifically
signaled intent during speeches at BIS's 2022 Annual Update Conference
and various other public engagements to pursue additional controls in
this area to address U.S. national security and foreign policy
concerns, including with respect to military modernization and human
rights.
Moreover, while some may argue against the breadth of the October 7
IFR controls, in fact BIS sought to use a scalpel approach, seeking to
restrict China's military modernization efforts through the narrowest
possible restrictions of sensitive technologies without unduly
interfering with commercial trade. While items that are the subject of
this SME IFR are not yet formally controlled under a multilateral
regime, the urgency and criticality of the U.S. national security
concerns described herein dictate control pending adoption through the
Wassenaar Arrangement.
Topic 2: Many commenters expressed concern about the unilateral
nature of new controls in the October 7 IFR. These commenters
highlighted the established congressional preference for multilateral
controls set forth in the Export Control Reform Act of 2018 (ECRA),
urging that BIS should not have acted, and should not act in the
future, without first securing multilateral support for any new
controls, particularly those related to SME and semiconductor
production because foreign available items not subject to U.S. control
may undercut the effectiveness of U.S. action. For example, a commenter
noted that, in function, new ECCN 3B090 on SME expands existing 3B001
by adding new parameters controlled only to China. Before becoming
effective, Wassenaar Arrangement approval of a U.S. proposal should be
obtained.
BIS response: BIS continues to work with interagency partners to
obtain formal multilateral regime agreement for all new controls,
including those imposed in this IFR, consistent with ECRA. There are
circumstances, however, consistent with ECRA, in which action pending
formal multilateral regime agreement is warranted to protect U.S.
national security interests. BIS's imposition of National Security (NS)
controls on the items in this SME IFR is consistent with these
principles. These controls are being implemented in anticipation of
formal multilateral regime adoption.
Topic 3: Many commenters agreed with BIS's objectives but argued
that the unilateral controls in the October 7 IFR have already been,
and will be, both damaging and ineffective particularly because they
encourage foreign companies to ``design out'' or avoid products subject
to the EAR. This ``design out'' is to the short- and long-term
detriment of U.S.-based companies and their technological leadership
within the semiconductor industry. Accordingly, commenters argue the
[[Page 73426]]
controls are, or over time will become, ineffective.
BIS response: BIS's goal is to implement effective and focused
controls that do not diminish U.S. technology leadership. To this end,
BIS's revisions in this SME IFR focus controls on specific capabilities
related to military advancement and activities or technologies that
enable those capabilities. At the same time, BIS has refined controls
to minimize negative consequences including by encouraging replacement
of items subject to the EAR with items not subject to the EAR. Among
other things, BIS has adopted more nuanced license review policies that
account for end use and the replaceability of items subject to control
and made available new general authorizations to allied-destination
companies to facilitate their transition to the new controls. These
steps recognize China's role in the global semiconductor industry and
electronics ecosystem. BIS's focus is on the development and production
of advanced-node ICs, given their national security implications and
China's well-documented MCF policy. Finally, BIS understands and
appreciates the significant efforts by global industry to comply with
new export controls. Corporate compliance activities are the keystone
of effective controls, and BIS reiterates its interest in feedback from
the export community. BIS also notes that, when warranted, we will
consider requests for expedited review or other forms of authorization,
as it did in the days, weeks, and months following the October 7 IFR.
Topic 4: A commenter noted that allies have not imposed similar
semiconductor end-use controls on their nationals. This commenter noted
that although the Enhanced Proliferation Control Initiative (EPCI) is a
decades-old initiative that was the basis for U.S. and allied partner
export control authorities to impose licensing obligations for the
provision of services and exports involving otherwise uncontrolled
items, no ally has similarly informed its citizens that support for
advanced-node IC development or production in China could per se
support the development or production of WMD.
BIS response: BIS has revised the ``U.S. persons'' controls related
to SME set forth in Sec. 744.6 to ensure that EPCI controls are
calibrated to address the national security concerns described above
without unduly undermining the ability of U.S. persons to work for
companies headquartered in the United States and closely allied
countries. Additional discussion on the changes made to U.S. person
controls are discussed in section C.10 of this rule.
Topic 5: A commenter requested that BIS should consider the impact
on potential public benefits derived from advanced technologies
developed through cross-border cooperation, especially in the realm of
global health and environmental issues.
BIS response: BIS has considered this impact and notes that
existing licensing policies are designed to be flexible, enabling
authorization of certain types of collaboration when warranted, such as
to maintain supply chains, assuming the risks of diversion to
prohibited end uses are sufficiently mitigated.
Topic 6: A commenter noted that the United States will be hurt by
not having access to technology developed in China and the United
States may be left behind in the technology race because it will be
harder to share information needed for technological development.
BIS response: The EAR controls do not restrict the importation of
items from China. However, BIS understands that this commenter likely
means that because U.S. companies will be restricted in the types of
items they will be able to export, reexport, or transfer to or within
China or Macau and the types of end uses or end users they can engage
with in China or Macau, it may be more difficult to collaborate with
parties in China and Macau. BIS does not seek to disrupt existing
supply chains through this rulemaking. These controls are necessary to
protect national security and have been tailored in as focused a way as
possible to affect this result.
Topic 7: A commenter noted that when some People's Republic of
China (PRC) semiconductor foundries buy semiconductor manufacturing
equipment, they may (without BIS authorization) resell part or the
entire semiconductor production line to an entity that makes military
products. The commenter expressed doubt that the U.S. Government would
be able to control how the semiconductor equipment will be used after
it is shipped to China. It is vital that much stricter controls be
implemented.
BIS response: BIS acknowledges that transfers within China or Macau
are a concern, but the existing EAR requirements, including the
controls imposed in the October 7 IFR, conditions on BIS licenses, and
the license requirement imposed by Sec. Sec. 744.21 and 744.22 for
such transfers (in-country), already impose an authorization
requirement for these types of transfers. In addition, equipment
exporters typically have staff on-site to assist in operating the
semiconductor manufacturing equipment. Further, PRC Import Certificates
are required for certain licenses, which facilitates U.S. Government
oversight in identifying diversion. BIS is continually assessing how
these efforts can be strengthened to address this issue of concern.
ECCN 3B090
BIS summarizes below the comments received on ECCN 3B090 and
highlights how these comments are addressed in the new controls added
in this SME IFR in ECCNs 3B001 and 3B002. Additional discussion of the
specific revisions made to ECCNs 3B001 and 3B002 can be found in
sections C.1 and C.2 of this rule, respectively. The removal of ECCN
3B090 is discussed in section C.3, and revisions to ECCNs 3D001 and
3E001 are discussed in section C.4.
Topic 8: BIS received various comments on the addition of ECCN
3B090. Some commenters raised concerns over certain commodities that
fell under ECCN 3B090 if they believed that there is foreign
availability of the same technology. Several commenters highlighted
areas in which they thought additional clarifications or changes were
needed to the 3B090 control parameters.
BIS response: As a general matter, BIS believes that the revisions
made to the Commerce Control List (CCL) in this SME IFR respond to the
concerns raised in response to the October 7 IFR for CCL-based controls
for semiconductor manufacturing items. This SME IFR removes ECCN 3B090
and makes conforming changes to ECCNs 3B001, 3B002, 3D001, and 3E001,
as BIS determined that use of existing ECCNs would facilitate global
compliance and enforcement. Because of the removal of ECCN 3B090 and
the other changes in the SME CCL-based controls implemented, the
comments submitted in response to the October 7 IFR on ECCN 3B090 and
related software and technology under ECCNs 3D001 and 3E001 are
generally no longer applicable. BIS encourages these commenters to
review the SME IFR revisions to the CCL, along with the conforming
changes made to other parts of the EAR and submit any additional
comments that may be warranted. BIS also encourages public comment on
any changes in foreign availability since the October 7 IFR.
Topic 9: A commenter noted that ECCN 3B090.a.1 under-controls the
types of equipment at issue and could be available from non-U.S.
manufacturers. This commenter also requested BIS add the words ``or
electroless'' after ``electroplating'' to ECCN 3B090.a.1. This
commenter noted that the control does not refer to
[[Page 73427]]
``electroless'' plating, which is an alternative means to enable the
selective cobalt process described in ECCN 3B090.a.5. In other words,
equipment for depositing an alloy of cobalt through electroless plating
is also equipment that is specific to the production of semiconductors
at 14 nm nodes or smaller.
BIS response: This SME IFR removes ECCN 3B090.a.1 and adds these
items to the new ECCN 3B001.d.1. BIS accepts this commenter's
recommendation. BIS has also added a note to ECCN 3B001.d.1 to clarify
that this control applies to semiconductor wafer processing equipment,
but not necessarily other equipment that may nevertheless be designed
for cobalt electroplating or cobalt electroless-plating deposition.
Topic 10: A commenter noted that ECCN 3B090.a.2 applies to tools
available outside the United States used to produce mature node
semiconductors. This commenter requested BIS remove the words ``or
tungsten'' in ECCN 3B090.a.2 or, in the alternative, remove ECCN
3B090.a.2 completely because ECCN 3B090.a.8 covers the same scope of
equipment. ECCN 3B090.a.2 controls ``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.'' The inclusion of the
words ``or tungsten'' in this control appears to be a mistake because
equipment capable of chemical vapor deposition of tungsten has been in
use for producing semiconductors at the 90nm and larger technology
nodes for more than two decades. To fix this apparent error, the words
``or tungsten'' could be removed. Another option would be to remove
ECCN 3B090.a.2 because the equipment described in the paragraph are all
already within the scope of the tools described in ECCN 3B090.a.8,
which describes the equipment for cobalt fill.
BIS response: BIS has removed ECCN 3B090.a.2 and adds related items
to ECCN 3B001.d.2. BIS has also revised the scope of the control to
provide greater specificity on the types of tungsten-based capabilities
subject to control. The new ECCN 3B001.d.2 also includes the phrase
``Equipment designed for'' at the beginning of ECCN 3B001.d.2 and
removes the phrase ``capable of'' and adds in its place the phrase ``by
performing'' in ECCN 3B001.d.2.a to make the control parameter more
precise. BIS encourages commenters that submitted comments on ECCN
3B090 to submit any additional comments they consider relevant.
Topic 11: A commenter noted that ECCN 3B090.a.6 applies to tools
available outside the United States used to produce mature node
semiconductors. This commenter requested BIS remove ECCN 3B090.a.6
because it is not limited to the production of advanced-node ICs and
ECCN 3B090.a.8 already controls the types of equipment apparently
intended to be controlled by the ECCN. ECCN 3B090.a.6. controls
``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.'' BIS apparently inadvertently worded the
control in such a way that it is not limited to equipment specific to
the production of advanced-node ICs. That is, the control text is not
limited in scope to the production of cobalt interconnects on
semiconductors at the 14 nm or smaller technology nodes. Rather, it
applies equally to equipment that is widely used to produce mature node
ICs (e.g., at the 65 nm technology node) that have been in production
for more than a decade.
BIS response: This SME IFR removes ECCN 3B090.a.6 and, unlike other
ECCN 3B090 controls, does not re-establish a similar control under ECCN
3B001.d. The objective of former ECCN 3B090 was to focus controls on
items used in the production of advanced-node ICs. Based on feedback
from industry, including from this commenter, BIS agrees that ECCN
3B090.a.6 did not effectively tailor the scope of control to this
objective, and as a result BIS has decided not to re-establish this
control at this time.
Topic 12: A commenter requested BIS remove ECCN 3B090.a.7 and add
alternative text, which would be clearer and better achieve the
intended objectives of the October 7 IFR.
BIS response: This IFR removes ECCN 3B090.a.7 and adds controls on
these commodities to ECCN 3B001.d.12. BIS has not adopted this
commenter's recommendations but continues to study the controls to
ensure appropriate coverage. BIS encourages commenters that submitted
comments on ECCN 3B090 to submit any additional comments they consider
relevant.
Topic 13: A commenter noted that ECCN 3B090.a.11 applies to tools
available outside the United States used to produce mature node
semiconductors. This commenter requested BIS revise slightly ECCN
3B090.a.11 so that it is limited in scope to equipment specific to
producing advanced-node ICs. Although BIS apparently intended this
control to only apply to equipment specific to producing advanced-node
ICs, the commenter believes the control is worded in such a way that it
also applies to tools that have been used for more than a decade to
produce mature node ICs. Instead, the language would need to be
slightly revised so that it is focused only on the atomic layer
deposited fill process.
BIS response: This SME IFR removes ECCN 3B090.a.11 and adds new
controls on these commodities to ECCN 3B001.d.11. BIS has not adopted
this commenter's recommendations but continues to study the controls to
ensure appropriate coverage. BIS encourages commenters that submitted
comments on ECCN 3B090 to submit any additional comments they consider
relevant.
SME End-Use Control Under Sec. 744.23(a)(4) (Former Sec.
744.23(a)(1)(v) and (a)(2)(v))
The following is a summary of public comments regarding Sec.
744.23 and BIS's responses thereto. Additional discussion about Sec.
744.23 can be found in section C.11 of this rule.
Topic 14: Many commenters argued that the end-use control set out
in Sec. 744.23(a)(2)(v) of the October 7 IFR (and now in Sec.
744.23(a)(4)) is too broad, expressing concern about unintended
consequences for the ``development'' and ``production'' of legacy ICs.
BIS response: BIS agrees that this provision is overbroad and has
narrowed the product scope to any item subject to the EAR and specified
on the CCL. Allowing continued development and production of indigenous
SME in China would erode the effectiveness of the end-use controls in
Sec. 744.23(a)(2). However, BIS believes that this narrowed scope will
capture the parts, components, and accessories for SME that are of
greatest concern.
Topic 15: Several commenters expressed concern that the end-use
control set out in Sec. 744.23(a)(2)(v) of the October 7 IFR (and now
in Sec. 744.23(a)(4)) goes far beyond the advanced production
objectives of the October 7 IFR by prohibiting exports of even EAR99
designated items to China for basic semiconductor development and
production applications. These commenters warned against cutting off
U.S.-based producers of EAR99 items from large segments of the global
semiconductor supply chain or risking the loss of long-held supply
positions to non-U.S. and producers of raw materials from China.
[[Page 73428]]
BIS response: Neither the October 7 IFR nor this SME IFR cut off
U.S.-based suppliers of EAR99 items from the global semiconductor
supply chain, and BIS disagrees with these commenters' characterization
of the scope of these end-use controls. BIS notes that it has narrowed
the ``Product Scope'' specified in Sec. 744.23(a)(4) to items subject
to the EAR specified on the CCL, and the ``End-Use Scope'' is now
narrowed to the ``development'' or ``production'' of certain CCL-
listed, Category 3 front-end SME in either Macau or a destination
specified in Country Group D:5. This said, the end-use control under
Sec. 744.23(a)(4) is not related to the ``development'' or
``production'' of ICs or other semiconductor items. Further, there is
no general end-use control on the export, reexport, or transfer (in-
country) of EAR99 items to China or Macau when destined only for use in
the ``development'' or ``production'' of non-``advanced-node ICs,''
absent other prohibited end uses or end users.
Topic 16: A commenter noted that including ECCN 3B991 significantly
broadens the scope of Sec. 744.23(a)(4) (former Sec. 744.23(a)(2)(v))
beyond items only used for semiconductors. This commenter requests BIS
to provide clarity as to why the rule should restrict exports of
``parts,'' ``components,'' or ``equipment'' for the development or
production of these types of equipment that are not related to
semiconductor device manufacturing.
BIS response: BIS disagrees with this commenter's characterization
of the controls. Specifically, BIS is not aware of items in ECCN 3B991
that are unrelated to semiconductor device manufacturing. However, BIS
welcomes additional comments identifying specific Category 3, Group B
ECCNs that are unrelated to semiconductor device manufacturing, and
which may warrant consideration for exclusion from Sec. 744.23(a)(4).
Also, BIS clarifies in this rule that the product scope of Sec.
744.23(a)(4) covers any items subject to the EAR specified on the CCL
(not just ``parts,'' ``components,'' or ``equipment'') when destined
for use in the ``development'' or ``production'' of SME specified in
the listed ECCNs under Sec. 744.23(a)(4).
Topic 17: A commenter noted that controlling EAR99 materials for
use in China's semiconductor industry unnecessarily harms early stages
of semiconductor supply chains that feed a wide range of commercial
applications. This commenter believes that former Sec. 744.23(a)(1)(v)
and (a)(2)(v) do not distinguish between suppliers at different stages
of the semiconductor supply chain and treats basic material suppliers
equally to advanced IC suppliers, subjecting all to an effective ban on
exports to China when for use in Group 3B ECCN equipment.
BIS response: BIS disagrees with the commenter's characterization
of these controls. The end-use control under Sec. 744.23(a)(4) (former
Sec. 744.23(a)(2)(v)) does not capture items that are merely ``used''
by Group 3B ECCN items, but rather only items used in the
``development'' or ``production'' of specified Group 3B ECCN items. For
example, Sec. 744.23(a)(4) would not control the shipment of CCL items
to be used in or consumed by `front-end integrated circuit
``production'' equipment' specified in a Group 3B ECCN in an IC
production setting, assuming the equipment is not involved in the
``development'' or ``production'' of ``advanced-node integrated
circuits,'' as that term is now defined in Sec. 772.1. Similarly,
these sections do not prohibit providing spare parts or materials for
3B ECCN items (again, assuming the 3B items are already ``developed''
or ``produced''). In addition, this rule eases the compliance burden
associated with license requirements arising from Sec. 744.23(a)(4)
controls by providing a TGL in supplement no. 1 to part 736 for
entities headquartered in the United States or in a destination
specified in Country Group A:5 or A:6 that are not majority-owned by an
entity headquartered in either Macau or a destination specified in
Country Group D:5.
Topic 18: A commenter noted that controls are catching items that
are purely used for civil applications. This commenter noted that
initial processing steps for basic silicon wafers can involve
semiconductor production equipment and processes employed for solely
commercial applications, such as photovoltaic cells and battery
technologies.
BIS response: BIS disagrees with this commenter's characterization
of the controls. Section 744.23(a)(2) only controls items destined for
the ``development'' or ``production'' of ICs. The controls do not
generally capture the ``development'' or ``production'' of photovoltaic
cells or battery technologies simply because such activity involves
semiconductor production equipment. If the commenter is referring to
the ``development'' or ``production'' of basic silicon wafers or ICs
(other than ``advanced-node ICs''), including those that are
subsequently used in these types of commercial applications (and not
any of the end uses described in Sec. 744.23), these items similarly
fall outside the scope of Sec. 744.23. If BIS has misunderstood the
commenter's characterization, additional comments may be submitted in
response to this SME IFR or guidance may be sought directly from BIS,
including in the form of an Advisory Opinion request to BIS pursuant to
Sec. 748.3(c) for clarification.
Topic 19: A commenter noted that the semiconductor end-use control
in Sec. 744.23(a)(4) (former Sec. 744.23(a)(2)(v)) could potentially
apply to shipments of U.S.-origin EAR99-designated raw materials to
non-U.S. fabricators of parts for Group 3B ECCN equipment, if the non-
U.S. fabricator intends to export at least one of its products, which
are not otherwise subject to the EAR, to China. The commenter
recommends BIS address these circumstances in its revision to the
October 7 IFR or in BIS published guidance.
BIS response: This rule narrows the product scope of Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)) to items subject to the EAR
and specified on the CCL. Authorization would be required if there is
``knowledge'' at the time of export, reexport, or transfer (in-country)
that an item on the CCL will ultimately be used (including by
incorporation into another item such as a ``part'' or ``component'') in
the ``development'' or ``production'' of specified Group 3B ECCN
equipment in Macau or a destination specified in Country Group D:5.
This commenter should also review BIS's responses to Topics 42 through
45, below, for additional guidance on the scope of Sec. 744.23(a)(4).
Consistent with its response to Topic 43, BIS notes that an export,
reexport, or transfer (in-country) of a replacement ``part'' or
``component'' destined for incorporation into Group 3B equipment in
Macau or a destination specified in Country Group D:5 that is already
``developed'' and ``produced'' (e.g., finished equipment that is
already in operation in an integrated circuit production facility)
would not fall within the scope of Sec. 744.23(a)(4) and would need to
be analyzed separately under other end-use controls, particularly Sec.
744.23(a)(2).
Topic 20: A commenter requested that BIS limit the scope of Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)) by exempting (1) legacy SME
and SME components, (2) exports to companies located in China but
headquartered in the United States and allied partners, and (3) exports
of items to China intended for incorporation into SME or SME components
that will be utilized outside of China.
BIS response: In this rule, BIS has added a TGL in paragraph (d)(1)
of supplement no. 1 to part 736, which permits companies headquartered
in the United States or in Country Group A:5
[[Page 73429]]
or A:6 countries to continue to use suppliers in China and other
destinations in Country Group D:5 and Macau, subject to certain
conditions. BIS believes this TGL will mitigate or resolve the concerns
raised by this commenter. See the discussion in section C.6 of this
rule for additional information about this TGL.
Topic 21: A commenter noted that the SME restrictions under Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)) will create a strong
incentive for companies operating in China, including those
headquartered in the United States and allied partners, to replace
U.S.-origin items with non-U.S. alternatives. When U.S.-origin
components cannot be designed out, it will create a major incentive for
companies to move their supply chains out of China even when U.S. and
allied companies are the economic beneficiaries of these supply chains.
BIS response: BIS has established a new TGL in in paragraph (d)(1)
of supplement no. 1 to part 736 to permit the activities described by
this commenter and mitigate the commenter's concerns. Separately, BIS
agrees with the commenter's suggestion that difficulty procuring
certain U.S.-origin items may incentivize companies to move supply
chains out of China. Separate from release of the October 7 IFR,
companies are also analyzing the risks of continued operation in China
related to economic coercion and intellectual property theft, among
other concerns.
Topic 22: A commenter noted that given lower production costs in
China, without modification, the SME restriction under Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)) will result in greater
fabrication costs for ``Western'' semiconductor equipment manufacturers
and the entire electronics sector in the United States. These costs do
not appear to be balanced by a substantial strategic benefit.
BIS response: The national security imperative for the October 7
IFR and this subsequent rulemaking is explained in section C and, with
respect to the ``development'' and ``production'' of indigenous SME,
immediately below in response to Topic 23. BIS's effort to regulate
only the most advanced and important technologies with these rules
reflects a focus on national security without interfering with
commercial trade any more than necessary to accomplish national
security objectives.
Topic 23: Several commenters requested that BIS publish a list of
fabs of concern. These commenters noted that to reduce uncertainty
around what facilities fall under the scope of the October 7 IFR, BIS
should consider publishing a list of fabs manufacturing advanced nodes
covered by the October 7 IFR. These comments noted that BIS should
publish an affirmative list of ``semiconductor fabrication facilities''
that engage in covered ``development'' or ``production'' of NOT AND
(NAND), logic, or dynamic random-access memory (DRAM) integrated
circuits. These commenters noted that the Entity List should be used
instead of relying on Sec. 744.23 or Sec. 744.6. Several commenters
noted that untold hours of due diligence efforts by companies could be
eliminated if BIS would simply identify the covered entities. These
commenters also noted that the due diligence conclusions reached by one
exporter may be different from another, even for the same PRC end user,
leading to an unlevel playing field.
BIS response: BIS is aware of, and generally shares, industry's
preference that BIS use the Entity List where possible in lieu of end-
use controls under Sec. 744.23 or ``U.S. person'' controls under Sec.
744.6. BIS reflected this approach in the October 7 IFR by identifying
28 entities involved in the use of advanced computing items or
supercomputers and intends to add additional entities to the Entity
List as they are identified and approved by the End-User Review
Committee (ERC). The use of the Entity List for this purpose will, like
the Military End-User (MEU) List, be non-exhaustive, so exporters,
reexporters, and transferors will still need to do their own due
diligence when dealing with parties not identified on the Entity List
with a footnote 4 designation. This SME IFR does not add any additional
entities to the Entity List, but a separate Entity List rule that is on
public inspection October 17, 2023, and publishing in the Federal
Register of October 19, 2023, adds multiple entities that the ERC
determined should be added to the Entity List. That rule, ``Entity List
Additions,'' adds 13 entities to the Entity List for acquiring and
attempting to acquire U.S.-origin items in support of China's military
modernization. Specifically, these entities have developed large AI
models and AI chips for defense purposes using U.S.-origin items. They
are also given a footnote 4 designation, which means that items subject
to the EAR, for the purpose of these license requirements, include
foreign-produced items that are subject to the EAR pursuant to Sec.
734.9(e)(2) of the EAR. As the ERC identifies and approves additional
entities, those entities will be added to the Entity List on a timely
basis.
Appropriate Scope of the SME Development and Production End-Use Control
for Lower-Level Items
Topic 24: A commenter requests that BIS remove ECCNs controlled
only for Anti-Terrorism (AT) reasons, i.e., 3B991 and 3B992, from Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)). The commenter noted that
the removal of these AT-only ECCNs will prevent excessive and
unnecessary use of unilateral controls and limit the impact of the
October 7 IFR on legacy semiconductor manufacturing. The commenter
noted that ECCNs 3B991 and 3B992 generally did not require a license to
China prior to the October 7 IFR and have utility across the spectrum,
including legacy manufacturing nodes.
BIS response: BIS disagrees with the commenter's characterization
of the scope of controls. ECCNs 3B991 and 3B992 remain uncontrolled to
China generally, and Sec. 744.23 does not impose a license requirement
for the export, reexport, or transfer (in-country) of a ECCN 3B991 or
3B992 item to Macau or a destination specified in Country Group D:5
unless the item is destined for one of the end uses specified in Sec.
744.23(a)(1) through (4), such as the ``development'' or ``production''
of integrated circuits at a facility where ``production'' of
``advanced-node integrated circuits'' occurs, or for ``development'' or
``production'' of `front-end integrated circuit ``production''
equipment,' and ``components,'' ``assemblies,'' and ``accessories''
specified in ECCN 3B001 (except 3B001.g, .h, and .j), 3B002, 3B611,
3B991 (except 3B991.b.2), or 3B992. If an exporter has ``knowledge''
that its 3B991 or 3B992 equipment will be used only at a facility that
``produces'' ICs at a legacy technology node but not ``advanced-node
ICs,'' Sec. 744.23(a)(2) does not apply. Furthermore, Sec.
744.23(a)(4) does not restrict the export of ECCN 3B991 and 3B992 items
destined for use in the production of ICs. Rather, it only restricts
these items (among all other items subject to the EAR and specified on
the CCL) destined for use in the ``development'' or ``production'' of
other SME (or ``parts'' or ``components'' therefor), which if
indigenized would erode the effectiveness of BIS's end-use and list-
based controls.
Topic 25: A commenter noted that it is very unlikely restrictions
on the development or production of ECCN 3B991 and 3B992 items would
ever be adopted by our allies and that these commodities and items used
in their development and production are already widely available in
China,
[[Page 73430]]
which means even if other countries were to add these controls on
exports to China, the controls would still be ineffective.
BIS response: Consistent with ECRA, BIS prioritizes engagement with
relevant governments to achieve multilateral coordination of controls,
including through the Wassenaar Arrangement.
Topic 26: A commenter requests that the SME restriction under Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)) should not apply to the
production of legacy SME or SME components. This commenter notes that
the production of SME and SME components used for the manufacture of
legacy semiconductors devices, which can generally be sent to China
without a license under current multilateral and U.S. export controls
(notwithstanding the October 7 IFR), can be permitted in China without
affecting the ability of the United States to restrict advanced-node IC
manufacturing in China.
BIS response: BIS believes that restricting the indigenization of
`front-end integrated circuit ``production'' equipment,' and items on
the CCL therefor, is critical for the effectiveness of the end-use
controls in Sec. 744.23(a)(2). BIS welcomes additional comments on the
scope of Sec. 744.23(a)(4), including the identification of specific
SME items (and related ECCNs) that are exclusively used in the
manufacture of legacy-node ICs.
Topic 27: A commenter asked for clarification whether BIS intended
to include the development or production in China of masks, reticles,
and mask substrates within the scope of Sec. 744.23(a)(4) (former
Sec. 744.23(a)(2)(v)). This commenter notes that the policy purpose of
the rule appears to be focused on limiting the development and
production in China of semiconductor production equipment, such as
etch, deposition, inspection, and lithography tools. ECCNs 3B001.g,
3B001.h, 3B001.j, and 3B991.b.2, however, refer to various types of
masks, reticles, and mask substrate blanks. This commenter notes that
while these items are essential in the fabrication of semiconductors,
these are not production ``equipment'' in the traditional sense of the
word as they are developed in a process that immediately precedes the
front-end integrated circuit fabrication process. If BIS did not intend
to affect exports for use in producing masks, reticles, or mask
substrates, this commenter asks that BIS amend the provision to exclude
them from its scope.
BIS response: BIS agrees and has excluded masks and related items
from the end-use scope of Sec. 744.23(a)(4). However, BIS notes that
end-use control Sec. 744.23(a)(2) could still capture a mask, reticle,
or mask substrate excluded from Sec. 744.23(a)(4) if it is subject to
the EAR and destined for use in the ``development'' or ``production''
of ICs at a facility that ``produces'' ``advanced-node integrated
circuits'' (or if the technology node of the ICs is unknown) in China
or Macau.
Topic 28: A commenter noted that photomasks are not ``parts,''
``components,'' or ``equipment,'' so they are outside the scope of
Sec. 744.23(a)(4) (former Sec. 744.23(a)(2)(v)). This commenter seeks
BIS's confirmation that no license would be required for exports,
reexports, or transfers (in-country) of items subject to the EAR that
are intended for use in photomask manufacturing in China because
photomasks, even if specified in ECCN 3B001 or 3B991, are not captured
within the end-use scope of Sec. 744.23(a)(4).
BIS response: Under the EAR, a photo mask is ``equipment.'' ECCN
3B991 controls ``[e]quipment not controlled by 3B001 for the
manufacture of electronic ``parts,'' ``components,'' and materials (See
List of Items Controlled), and ``specially designed'' ``parts,''
``components'' and ``accessories'' therefor.'' ECCN 3B991.b.2.a
controls ``[f]inished masks.'' Nonetheless, BIS has excluded these
items from the end-use scope of Sec. 744.23(a)(4) as masks are not
used in the ``development'' or ``production'' of SME. See the response
to Topic 27, above, for additional guidance on the treatment of masks,
reticles, and mask substrates under Sec. 744.23(a)(4) and other end-
use controls.
Appropriate Scope of SME End-Use Controls for Back-End Testing
Equipment
Topic 29: A commenter requested that BIS exclude items that are
exclusively for use in back-end activities, including ECCN 3A992.a or
3B992.b.4, and EAR99 items, from Sec. Sec. 744.23(a)(1) and (2)
(former Sec. 744.23(a)(1)(iii) and (iv), (a)(2)(iii) and (iv)) and
744.6(c)(2). This commenter noted that these controls impose licensing
obligations over the export, reexport, and transfer to or within China
or Macau of their post-production test equipment, whether subject to
the EAR or not, if they would be for use in the ``production'' of
semiconductors ``at'' a covered facility. This commenter noted that
this location-specific control makes no policy sense with respect to
their post-production test equipment, because their products have no
bearing on the key characteristics of advanced-node ICs described in
the definition of ``advanced-node integrated circuit'' (former Sec.
744.23(a)(1)(iii)(A), (B), or (C)).
BIS response: BIS agrees. Consistent with BIS's October 7 IFR
Frequently Asked Questions (FAQ) II.A.1, which may be found at https://www.bis.doc.gov/index.php/documents/product-guidance/3211-2023-1-25-updated-faqs-for-oct-7-advanced-computing-and-semiconductor-manufacturing-equipment-rule/file, posted on January 25, 2023, this SME
IFR adds a new paragraph (a)(5) (Back-end exclusion) to Sec. 744.23
and specifies under this paragraph that for purposes of Sec.
744.23(a)(2), the term ``production'' does not apply to back-end steps,
such as assembly, test, or packaging that do not alter the integrated
circuit technology level. If there is a question at the time of export,
reexport, or transfer (in-country) about whether a manufacturing stage
is ``back-end'' or whether a back-end activity ``alter[s] the
semiconductor technology level,'' you may submit an Advisory Opinion
request to BIS pursuant to Sec. 748.3(c) for clarification.
Topic 30: A commenter noted that semiconductor automated test
equipment (ATE) should be considered ``use'' equipment rather than
``production'' equipment. The commenter requested BIS confirm in its
response to the comments that semiconductor ATE are, for purposes of
the controls at issue in Sec. Sec. 734.9(e), 744.6(c)(2), and 744.23,
``use'' equipment and not ``production'' equipment, as these terms are
defined in the EAR. The commenter noted that the EAR define ``use'' as
meaning the ``operation, installation (including on-site installation),
maintenance (checking), repair, overhaul, and refurbishing.'' This
commenter's ATE is used to check already-produced items and is not part
of the semiconductor production process that is the policy concern that
BIS is seeking to address in implementing the controls in Sec.
734.9(e), Sec. 744.6(c)(2), or Sec. 744.23.
BIS response: BIS does not agree that testing equipment is ``use''
equipment because testing is specifically listed under the definition
of ``production'' in Sec. 772.1 of the EAR. However, this commenter's
concerns should be addressed by the new exclusion for certain ``back-
end'' equipment under new paragraph Sec. 744.23(a)(5).
Topic 31: A commenter requested that BIS exclude certain items from
Sec. 744.23(a)(4) (former Sec. 744.23 (a)(2)(v)), particularly ECCN
3B992.b.4.b and related EAR99 items for use in developing or producing
other ECCN 3B992.b.4.b items, that are exclusively
[[Page 73431]]
for use in back-end activities. This commenter believes that
controlling the export to China or Macau of these items is an
unintended impact of the October 7 IFR. These controls have a far
bigger and even more unintended impact on this commenter's U.S.
suppliers of parts and components that ship to China for use in
producing ECCN 3B992.b.4.b items. This commenter also requested that if
a carve out for certain ECCN 3B992.b.4.b items cannot be added for
``back-end'' activities, BIS should issue a temporary general license
(TGL) to allow continued development and production of these items in
China.
BIS response: BIS agrees that the principal underlying the
exclusion for back-end testing in Sec. 744.23(a)(5) should also apply
to Sec. 744.23(a)(4), see discussion below under section C.11. BIS has
also added a new TGL to allow companies to continue exporting less
restricted SME ``parts,'' ``components,'' or ``equipment'' to
destinations in Country Group D:5 countries (including China) and Macau
if the recipient is ``developing'' or ``producing'' ``parts,''
``components, or ``equipment'' at the direction of a U.S. or Country
Group A:5 or A:6-headquartered company that is not majority owned by an
entity headquartered in either Macau or a destination specified in
Country Group D:5.
Technology Nodes Under Advanced Node ``Facility'' End-Use Controls
Topic 32: A commenter noted that the phrase ``technology node'' in
Sec. Sec. 744.6 and 744.23 does not have a consistent technical
meaning and could refer to the smallest resolvable feature at varying
fields or pitch characteristics. To illustrate the complexity of this
issue, clever proprietary techniques (e.g., double patterning, multi-
pass) can make equipment exclusively intended for larger features
capable of producing smaller features.
BIS response: BIS agrees. This SME IFR adds a new Note to the
definition of ``advanced-node integrated circuits'' in Sec. 772.1 to
define the term ``technology node'' to refer to the Logic Industry
``Node Range'' figure described in the ``International Roadmap for
Devices and Systems,'' 2016 edition (``More Moore'' White Paper). BIS
welcomes comment on this definition in response to this SME IFR.
Topic 33: A commenter noted that BIS needs to define half-pitch or
otherwise describe how one determines whether a DRAM IC ``uses a
production technology node of 18 nm half-pitch or less for purposes of
Sec. Sec. 744.6(c)(2)(i) and 744.23(a)(2).'' The commenter noted that
the October 7 IFR did not do so and requested that BIS publicly
identify the correct methodology.
BIS response: BIS agrees. This rule revises Sec. Sec. 734.4(a)(3),
744.6(c)(2)(i) and (ii), and 744.23(a)(2) to refer to a new definition
of ``advanced-node integrated circuits'' set forth in Sec. 772.1. This
definition specifies the calculation methodology for determining
whether a DRAM IC uses a ``production technology node of 18 nanometer
half-pitch or less.''
Topic 34: A commenter requested that BIS draw a distinction between
semiconductor fabrication processing test equipment, which does warrant
control, and semiconductor screening test equipment, which does not.
This commenter noted that there are two primary categories of
semiconductor test equipment: (1) semiconductor fabrication processing
test equipment, which provides measurements for process control
parameters and ensures that Chemical Vapor Deposition (CVD), Physical
Vapor Deposition (PVD), lithography, and other pieces of equipment and
additive manufacturing processes work as required to produce the
semiconductor; and (2) semiconductor screening test equipment, which
provides measurements used to establish if individual manufactured
devices satisfy quality requirements and can be shipped. This commenter
noted that former items are necessary to the proper operation of a
semiconductor fabrication plant, and include essential elements used
during the fabrication process to produce a viable semiconductor.
BIS response: This comment is addressed by the addition of new
paragraph Sec. 744.23(a)(5) in this SME IFR, described in greater
detail below in section C.11. BIS has created a distinction between
these two types of test equipment. As described by this commenter,
semiconductor fabrication processing test equipment appears to include
equipment that is used in front-end integrated circuit fabrication
steps, while semiconductor screening test equipment would appear to be
used only in back-end production steps. If the semiconductor screening
test equipment is used exclusively in back-end production stages that
do not alter the technology level of the ICs produced, the equipment
does not trigger the end-use scope in paragraphs Sec. 744.23(a)(2) or
Sec. 744.6(c)(2)(i) and (ii), because this type of test equipment
qualifies for the back-end exclusion under paragraph Sec. 744.23(a)(5)
and the exclusion in Sec. 744.6(d)(3).
SME End-Use Controls and Their Relationship to Nodes of Concern
Topic 35: A commenter noted that Sec. 744.23(a)(4) (former Sec.
744.23(a)(2)(v)) overreaches because it is not tied to the end use of
concern. This commenter noted that because Sec. 744.23(a)(4) is so
broad, vendors cannot supply any U.S.-origin equipment or parts that
will be used in the ``development'' or ``production'' in China or Macau
of any ``parts,'' ``components,'' or ``equipment'' specified under ECCN
3B001, 3B002, 3B090, 3B611, 3B991, or 3B992, even though such activity
does not require a license under Sec. 744.23(a)(2).
BIS response: BIS has narrowed both the product scope and end use
scope of Sec. 744.23(a)(4) in light of U.S. national security
concerns. That section has been narrowed to items subject to the EAR
and specified on the CCL by this rule. As noted above, Sec.
744.23(a)(4) restricts the ``development'' and ``production'' of items,
including node-agnostic front-end tools, that would erode the
effectiveness of other end-use controls on the ``development'' or
``production'' of advanced-node ICs. Section 744.23(a)(4) also more
broadly inhibits the development of an indigenous ecosystem in Macau or
destinations specified in Country Group D:5 for the ``development'' and
``production'' of front-end SME, which supports the longer-term
effectiveness of controls with respect to advanced-node IC controls. As
noted elsewhere, BIS welcomes comment on whether there are specific
front-end SME items that are used exclusively in legacy production.
Moreover, to address the commenter's concerns about the breadth of this
control, BIS is issuing a new TGL in this SME IFR. See discussion in
section C.6 of this rule.
Topic 36: A commenter asked BIS to limit the scope of Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)) to higher-end advanced-node
capabilities and exclude items used in legacy ``production.'' The
commenter also suggested that BIS consider limiting the end-use
restrictions under Sec. 744.23(a)(4) on exports of 3B991 items to
China or Macau to items capable of use in higher-end advanced-node
capabilities and exclude items in paragraphs of 3B991 that are not
designed for semiconductor manufacturing.
BIS response: BIS partially adopted this recommendation by
narrowing both the product scope and end-use scope of paragraph (a)(4),
but not by technology level. See discussion in section C.11.c. BIS also
notes that the presumption of denial license review policy leaves room
for an applicant to make a case for
[[Page 73432]]
approval, unlike a policy of denial. Also note that many of the
parameters for SME in ECCN 3B001 have been changed from ``capable of''
to ``designed for.'' Separately, BIS welcomes additional feedback from
this commenter, or any other interested party, on whether specific
3B991 items warrant exclusion from the scope of Sec. 744.23(a)(4), for
reasons including if they are not used in IC manufacturing or are
exclusively used at legacy production technology nodes.
Requested Changes or Clarifications to Sec. 744.23
Topic 37: A commenter noted that difficulty in identifying fabs of
concern will lead to overcompliance or delays relating to obtaining
licenses that may not be needed. This commenter noted that in
situations where a company is unable to determine whether a fabrication
facility is a covered fabrication facility, the most likely course of
action is (i) to over-comply and abandon a transaction for fear of
potential non-compliance or (ii) seek a license and risk loss of the
business as a result of delay, even when ultimately the fabrication
facility in question is not a covered fabrication facility.
BIS response: BIS shares concerns that the new Sec. 744.23 from
the October 7 IFR may result in over compliance or delays related to
obtaining unnecessary licenses. BIS recognized similar issues with the
expanded MEU List and Sec. 744.21, but after BIS developed outreach
materials, including FAQs for the application of Sec. 744.21, these
trends were reduced considerably. BIS anticipates that the addition of
Sec. 744.23 and the expanded U.S. person control under Sec. 744.6
will follow a similar pattern.
Narrow the Scope of Sec. 744.23 Fabrication Controls
Topic 38: A commenter noted that there does not appear to be a
national security basis for excluding equipment sales to NAND memory
fabricating facilities in China because NAND memory is so widely
available on the commercial market. This regulation will harm U.S.
companies and jobs while boosting the market share gain of our allies
where the majority of NAND memory is manufactured.
BIS response: BIS disagrees with this commenter's characterization
of the controls. The end use control under Sec. 744.23 and the ``U.S.
persons'' control under Sec. 744.6 both now reference the newly
defined term ``advanced-node integrated circuits'' added by the SME
IFR. That term specifies NAND memory as part of the criteria as well as
the level of NAND memory that is a concern (i.e., NOT AND (NAND) memory
integrated circuits with 128 layers or more). This higher threshold for
NAND memory was intended to distinguish between the type of items
easily obtained on the open market and the types of NAND memory that
represent national security and foreign policy concerns under the
October 7 IFR.
Changes to License Review Policies
Topic 39: A commenter requested BIS replace the current one-size-
fits-all presumption of denial for all license requests (under Sec.
744.23(d)) with a review policy that accounts for the specific items
involved and their potential for direct use in sensitive or advanced-
node IC manufacturing.
BIS response: BIS revised the license review policy under Sec.
744.23(d) to include a presumption of approval license review policy
when there is a foreign-made item available that is not subject to the
EAR and performs the same function as the item subject to the EAR, and
for end users headquartered in the United States or a destination in
Country Group A:5 or A:6, that are not majority-owned by an entity
headquartered in either Macau or a destination specified in Country
Group D:5. As a result, the presumption of denial license review policy
does not cover all transactions. In addition, the license review will
take into account factors including technology level, customers, and
compliance plans.
Topic 40: A commenter noted that their company's very existence
requires being able to obtain a license to continue to engage in their
activities in China that would otherwise be restricted under Sec.
744.23(a)(4) (former Sec. 744.23(a)(1)(v)) and that the financial
impact of these new regulations to this company is massive. This
commenter noted that the company's engineering team has been advised to
cease all operations and the company's supply chain team has no work
because all exports have been put on hold. The company depends on
receiving authorization to export parts, software, and technology for
the development and production of ECCN 3A991.b.1.c crystal pullers,
used to produce ingots and wafers, to China.
BIS response: Upon request, BIS has authorized certain types of
transactions requiring a license under Sec. 744.23(a)(4) with
authorization letters (ALs). BIS is not able to publicly confirm
whether this specific commenter obtained an AL because of
confidentiality requirements under ECRA. The ALs reflect a policy to
impact ``development'' and ``production'' of SME by indigenous
companies located in China. BIS has transitioned away from using ALs to
address these types of issues to BIS licenses and other more standard
means of authorization.
Topic 41: One commenter expressed concern that the time required to
obtain a license would eliminate one of its key competitive advantages
for supplying EAR99 items. The commenter feared that even if they were
granted a license, the delays caused by the application process for
each order of their commodities would eliminate their lead-time
advantage over its foreign competitors.
BIS response: Recognizing the availability of EAR99 items from
multiple sources, BIS has narrowed the product scope of Sec.
744.23(a)(4) to items subject to the EAR and specified on the CCL,
which eliminates the license requirement for EAR99 items for SME.
Separately, BIS acknowledges that exports that can be made without a
license are more quickly executed. However, because a purchase order is
not required under the EAR to apply for a BIS license, it is possible
to obtain licenses in advance, which may help address the potential for
delays. BIS also notes that licenses are generally valid for a four-
year period. Once the license is in place, a company may ship with the
same speed at which it did previously when the items could be exported
without a license. There is also the possibility that the transaction
may be eligible for a TGL or exclusion. The license applicant would
need to know the particulars of the transaction to apply for a BIS
license.
Additional Guidance on the Scope of SME End-Use Controls
Topic 42: A commenter stated it is inconsistent that Sec.
744.23(a)(4) (former Sec. 744.23(a)(1)(v)) does not establish a
license requirement for AT-controlled end-item equipment when not for
``development'' or ``production'' in the China or Macau of any
``parts,'' ``components,'' or ``equipment'' specified under ECCN 3B001,
3B002, 3B090, 3B611, 3B991, or 3B992, but a license is required for
items destined for use in the ``development'' or ``production'' of
``parts'' or ``components'' for AT-controlled end-item equipment.
BIS response: BIS does not believe this result is inconsistent with
the policy objectives of the October 7 IFR. The purpose of Sec.
744.23(a)(4) is to prevent the indigenous ``development'' or
``production'' of items having national security implications that
could erode or circumvent the effectiveness of other end-use controls,
[[Page 73433]]
particularly Sec. 744.23(a)(2). This objective is not affected by the
export, reexport, or transfer (in-country) of AT-controlled equipment
that is already developed or produced, assuming the equipment is not
destined for a prohibited end use (e.g., those enumerated in Sec.
744.23(a)(1) and (2)).
Topic 43: A commenter stated that Sec. 744.23(a)(4) (former Sec.
744.23(a)(2)(v)) does not include ``incorporation'' of EAR99 items into
Category 3B items. This commenter notes that the wording in Sec.
744.23(a)(4) prohibits the ``development'' or ``production'' of
Category 3B items. This commenter believes that if BIS wanted to
prohibit the incorporation of EAR99 items (e.g., screws and tubing)
into Category 3B items, it should have prohibited the incorporation of
any item that is subject to the EAR into a Category 3B item under Sec.
744.23(a)(4), just as it did in Sec. 744.23(a)(2).
BIS response: BIS has narrowed the product scope in paragraph
(a)(4) to items subject to the EAR and specified on the CCL. This said,
former Sec. 744.23(a)(2)(v) would have captured the incorporation of
an EAR99 item into a Category 3B item if the incorporation occurred
during the ``development'' or ``production'' of the 3B item. The term
``production'' is defined to include all production stages, such as
manufacture, integration, and assembly, each of which could encompass
the activity described by the commenter, depending on the details of
the scenario. However, as noted below, BIS omitted the term
``incorporation'' from Sec. 744.23(a)(4) to avoid capturing
incorporation of an item (e.g., a replacement part) subject to the EAR
into a 3B item after that 3B item is already ``developed'' or
``produced.'' Such incorporation would be addressed by other end-use
controls. For this reason, incorporation of an EAR99 item into an item
that is already ``produced'' (e.g., a tool already in operation in
volume production) is not within the scope of Sec. 744.23(a)(4). These
types of transactions are instead addressed under end-use controls in
Sec. 744.23(a)(2). At the same time, BIS reiterates that Sec.
744.23(a)(4) still captures items destined for use in all stages of the
``development'' or ``production'' of such 3B equipment, up to and
including qualification for ultimate use. For example, Sec.
744.23(a)(4) would capture exports of CCL items destined for use by a
research and development facility involved in qualifying unfinished 3B
equipment as part of the final ``development'' or ``production'' stages
for that equipment. By contrast, Sec. 744.23(a)(4) does not capture
exports of CCL items (among others) destined for the operation,
installation (including on-site installation), maintenance (checking),
repair, overhaul, or refurbishing of equipment that is already
``developed'' and ``produced.'' Other provisions in Sec. 744.23(a)(2)
may be applicable to this scenario.
Topic 44: A commenter asked BIS to confirm that a U.S. person's
shipment to China, from outside the United States, of foreign-origin
items that are not subject to the EAR, but which are destined for use
in developing or producing items described in a Group 3B ECCN, are not
subject to EAR licensing requirements under Sec. 744.23(a)(4) (former
Sec. 744.23(a)(2)(v)). This commenter noted that they asked for this
clarification because Sec. 744.23(a)(4) prohibits the unlicensed
export, reexport, and transfer of items subject to the EAR if there is
knowledge the items will be for the development or production of
commodities described in Group 3B ECCNs. The commenter clarified that
this question assumes that there are no Footnote 1 or Footnote 4
entities or other Sec. 734.9 issues involved in the transaction. This
commenter noted that the difference in scope indicates that a U.S.
person's shipment of items not subject to the EAR for use in producing
Group 3B items in China is not covered by the new rules.
BIS response: Section 744.23 does not control the export, reexport,
or transfer (in-country) of items not subject to the EAR, however,
Sec. 744.6 of the EAR does. Depending on the classification of the
foreign item and the specific end use of the item, Sec.
744.6(c)(2)(ii) or (iii) may impose a license requirement for items
that will be for the development or production of commodities described
in Group 3B ECCNs. However, foreign persons engaged in such conduct or
directing U.S. persons to do so may be viewed as engaging in activities
contrary to U.S. national security or foreign policy interests.
Accordingly, the End-user Review Committee could add such foreign
person to the Entity List. For example, see BIS's publication of Entity
List additions published on December 19, 2022 (87 FR 77505).
Topic 45: A commenter asked BIS to clarify whether a license would
be required under Sec. 744.23(a)(4) (former Sec. 744.23(a)(2)(v)) to
export an item subject to the EAR to a third party Original Equipment
Manufacturer (OEM) in a third country, where there is ``knowledge'' at
the time of the export that the item would be incorporated into a
foreign-made 3B991 item (not subject to the EAR) by the OEM in the
third country, and that the OEM would then send the 3B991 item to a
manufacturer of Category 3 items in China. This commenter noted that
Sec. 744.23(a) does not expressly state that the ``End Use Scope''
includes the end use of the item into which the exported item is
incorporated, and this differs from other EAR provisions, such as the
foreign direct product (FDP) rules under Sec. Sec. 734.9 and
744.23(a)(1)(ii)(B), which expressly include ``incorporated into'' as
part of the end-use scope.
BIS response: This commenter did not clarify whether they intended
the ``Category 3'' items (i.e., the items being developed or produced
in China) to mean only items in Category 3A (e.g., ICs) or other items
in Category 3 (e.g., items in Category 3B). Assuming the commenter
refers to Category 3A items, more information would be required to
determine whether the 3B991 item is ``destined for'' a prohibited end
use, e.g., under Sec. 744.23(a)(2). However, if the commenter refers
to Category 3B items in ECCN 3B001 (except 3B001.g, .h, and .j), 3B002,
3B611, 3B991 (except 3B991.b.2), or 3B992, a license would be required
to export the initial item subject to the EAR (if specified on the CCL)
to the third-party OEM. Unless captured by an exclusion in Sec.
744.23(a)(5), Sec. 744.23(a) requires a license when there is
``knowledge'' at the time of export, reexport, or transfer (in-country)
that an item subject to the EAR described in paragraphs (a)(1) through
(4) is ``destined for'' a destination, end use, or type of end user
described in paragraphs (a)(1) through (4) of Sec. 744.23. Paragraph
(a) of this section captures items when ``you have ``knowledge'' at the
time of export, reexport, or transfer (in-country) that the item is
destined for a destination, end use, or type of end user described in
paragraphs (a)(1) through (4) of this section. . . .''. Paragraph
(a)(4) then describes the activities that meet the end-use scope of the
prohibition, specifically the ``development'' or ``production'' of
`front-end integrated circuit ``production'' equipment' and
``components,'' ``assemblies'' and ``accessories'' specified in certain
Category 3, Group B ECCNs. Read together, these provisions prohibit the
export, reexport, or transfer (in-country) when you have ``knowledge,''
at the time of export, that the item subject to the EAR that is
identified on the CCL ``is destined for'' the ``development'' or
``production'' of `front-end integrated circuit ``production''
equipment' and ``components,'' ``assemblies'' and ``accessories'' of
the covered SME set forth in paragraph (a)(4). This ``knowledge'' that
the item ``is destined for'' (either in its original form or as
subsequently incorporated into a
[[Page 73434]]
foreign-made product) a prohibited activity is sufficient to trigger
the applicable license requirement at the time the item subject to the
EAR is exported, reexported, or transferred (in-country). For this
reason, BIS does not consider the incorporation of the item into a
foreign-made product not subject to the EAR to be relevant to the Sec.
744.23 license requirement. BIS officials have provided similar and
consistent guidance on these types of upstream transactions that
involve ``knowledge'' that the item ``is destined for'' a prohibited
end use, including in the context of other part 744 end uses. As to the
relevance of the term incorporation, BIS uses this term in Sec. Sec.
734.9(e) and 744.23(a)(1)(ii)(B) to capture items for use in a foreign-
produced item or a ``supercomputer,'' respectively, that may already be
``produced.'' As indicated in response to other comments in this rule,
the absence of the term incorporation from Sec. 744.23(a)(4) avoids
capturing the incorporation (outside the context of ``production'') of,
e.g., replacement parts or components into SME that is already
produced. If the SME is otherwise involved in a separate prohibited end
use (e.g., it is used in the ``production'' of ``advanced-node
integrated circuits''), the transaction must be analyzed separately
with respect to any other relevant provisions of the EAR. Note: In this
scenario, such knowledge similarly triggers a license requirement for
the items identified in Sec. 744.23(a)(4) when a person knows at the
time of export that an item subject to the EAR and specified on the CCL
``is destined for'' (either in its original form or as subsequently
incorporated into a foreign-made ECCN 3B991 product) a party listed in
supplement no. 4 to part 744 of the EAR.
Other Requested Clarifications to Sec. 744.23
Topic 46: A commenter asked BIS to confirm how far back up the
supply chain the licensing obligation extends for an export of an item
to a third party for use in developing or producing a whole new
foreign-made item that will only later be used in the development or
production of ICs at a covered facility. This commenter described a
scenario in which someone exports an item to produce a foreign-made
item, which will be used to produce another foreign-made item, which
will later be used at a covered fabrication facility, and asked whether
the original export is caught by the new licensing obligations if there
is knowledge that this supply chain will ultimately result in the
creation of an item used to produce ICs at a covered fabrication
facility. The commenter further inquired about the transfer outside the
United States of items subject to the EAR to produce foreign-made items
when only a small percentage of the foreign-made items will be for use
at a covered fabrication facility. Specifically, the commenter asked
whether BIS takes the position that 100% of all such transfers require
a license by the foreign parties even when only an unknown small
percentage will be used in the production of items that will ultimately
be destined to covered fabrication facilities.
BIS response: If the exporter has ``knowledge'' at the time of
export, reexport, or transfer (in-country) that the item is ultimately
destined for a prohibited end use, the license requirement would extend
to the original export, reexport, or transfer (in-country). If not
properly authorized, then a subsequent party would be prohibited from
relying on de minimis for an item that was involved in an EAR violation
pursuant to Sec. 764.2(e). See also BIS response to Topic 45.
Topic 47: A commenter noted that clarification of Sec.
744.23(a)(2)(iv), which has been redesignated as paragraph (a)(2)(ii)
in this SME IFR is needed if this imposes an affirmative duty to know
or otherwise be subject to a license requirement. The commenter asks
whether this means that a license is required when a company is
exporting products to China and cannot confirm whether the
semiconductor fabrication facility is producing products that meet the
specified criteria in paragraphs (a)(2)(iii)(A) through (C), which has
been redesignated as paragraphs (a)(2)(i) and (ii) in this SME IFR.
BIS response: Yes, if the exporter, reexporter, or transferor has
``knowledge'' that an item identified in Sec. 744.23(a)(2)(iv), which
has been redesignated as paragraph (a)(2)(ii) in this SME IFR will be
used in the ``development'' or ``production'' of ICs in China or Macau,
but does not have ``knowledge'' of whether such ICs are or will be
``advanced-node integrated circuits,'' a license is required. This BIS
response would also apply to a similar scenario in which an exporter,
reexporter, or transferor has positive ``knowledge'' that their 3B/C/D/
E products are used by some number of entities engaged in legacy
development/production, but they do not know how 100% of their product
is used (e.g., because they are an upstream distributor and cannot keep
track of all of it). A license is required to ship 100% of the items,
unless the exporter, reexporter, or transferor can determine which
items of the 100% will not be used in the ``development'' or
``production'' of ICs in China or Macau, which would be excluded from
the license requirement under Sec. 744.23(a)(2)(iv), redesignated as
paragraph (a)(2)(ii) in this SME IFR.
Separate SME End-Use Controls Into Their Own Section and Provide More
Specificity on Items Covered
Topic 48: A commenter requested that it would be easier to navigate
the controls in Sec. 744.23, if the prohibitions under Sec.
744.23(a)(2) and (4) (former Sec. 744.23(a)(1)(iii) and (a)(2)(iii)
and (a)(1)(v) and (a)(2)(v)) were in separate sections. Also given the
broad scope of Sec. 744.23(a)(4), this commenter requested creating
new items level paragraphs under ECCNs 3B001, 3B002, 3B090, 3B611,
3B991, and 3B992 that identify the types of equipment that BIS intends
to control under Sec. 744.23(a)(4) rather than ``catching'' such a
broad spectrum of semiconductor manufacturing and test equipment.
BIS response: BIS has reformatted the controls in Sec. 744.23(a)
by combining the product scope and end use scope into one paragraph for
each type of item: (a)(1) ``supercomputers,'' (a)(2) ``advanced-node
integrated circuits,'' and (a)(4) semiconductor manufacturing
equipment. With respect to Sec. 744.23(a)(4), BIS clarifies here and
elsewhere in this rule that a license is required for items subject to
the EAR specified on the CCL when destined to an entity headquartered
and located in either Macau or a destination specified in Country Group
D:5 for use in the ``development'' or ``production'' of `front-end
integrated circuit ``production'' equipment' and certain
``components,'' ``assemblies'' and ``accessories'' in ECCN 3B001
(except 3B001.g, .h, and .j), 3B002, 3B611, 3B991 (except 3B991.b.2),
or 3B992. If the exporter ``does not know'' the technology node for
which a 3B item will be used (see Sec. 744.23(a)(2)), then that is the
only situation where the catch-all license requirement would apply for
the export, reexport, or transfer (in-country). All the other end-use
controls in Sec. 744.23(a) now have specific product scopes.
Acceptable Level of Due Diligence for Sec. 744.6(c)(2)
Topic 49: A commenter requested BIS clarify whether it would be
sufficient under Sec. 744.6 to have an end user certify that the
exported item will not be used in ``the ``development'' or
``production'' in China of any ``parts,'' ``components,'' or
``equipment'' specified under ECCN
[[Page 73435]]
3B001, 3B002, 3B090, 3B611, 3B991, or 3B992.
BIS response: BIS interprets this comment to refer to the end-use
control under Sec. 744.23(a)(4) (former Sec. 744.23(a)(2)(v)), as
there is no U.S. person control under Sec. 744.6(c)(2) with the
characteristics described by the commenter. Obtaining an end-user
statement, even if not required under the EAR, is a good compliance
practice, but is not by itself determinative. The exporter, reexporter,
or transferor must evaluate all the information that it obtains during
the normal course of business to determine if it has ``knowledge'' that
the item is ultimately destined for use in a prohibited activity. BIS
also reminds exporters, reexporters, and transferors that they may not
self-blind to avoid these license requirements and that the act of
self-blinding would be a violation of the EAR.
Topic 50: A commenter expressed concern about the October 7 IFR's
restrictions on U.S. persons' activities under Sec. 744.6(c)(2),
including at semiconductor fabrication facilities and branches of
certain multinational companies in China that are headquartered in the
United States, South Korea, Taiwan, and other destinations. The
application of such restrictions to the ``shipping, transmitting, or
transferring (in-country) of any item not subject to the EAR to
development [of] a chip at a proscribed level'' is extremely broad.
BIS response: This SME IFR adds an exclusion in Sec. 744.6(d)(4)
for companies headquartered in the United States or in a destination
specified in Country Group A:5 or A:6 and not majority-owned by an
entity that is headquartered in either Macau or a destination specified
in Country Group D:5. The exclusion will authorize ``U.S. persons'' to
engage in activities that would otherwise be prohibited under Sec.
744.6(c)(2)(i) through (iii).
Information Needed From Other Parties To Comply With These Controls
Topic 51: A commenter noted that most companies that ship items
caught under 3B, 3C, 3D, or 3E, will not be able to determine whether
items are going to a prohibited semiconductor fabrication facility,
e.g., for companies that supply components or materials, as there may
be many layers of purchasing between themselves and any covered
fabrication facility engaged in the ``development'' or ``production''
of NAND, logic, or DRAM integrated circuits. This commenter noted that
it is also possible that some companies will conclude that the new
controls require exporters, reexporters, and transferors of such items
to find out the answer to this question for each shipment or for group
transactions.
BIS response: BIS is aware that the end-use control under Sec.
744.23(a)(2)(iv), which has been redesignated as paragraph (a)(2)(ii)
in the AC/S IFR, may present a compliance challenge for certain
exporters, reexporters, or transferors, but this control is important
for protecting U.S. national security and foreign policy interests.
Companies in China that are transparent with their capabilities with
exporters, reexporters, and transferors will see a reduced impact of
Sec. 744.23(a)(2)(iv), now redesignated as paragraph (a)(2)(ii), and
those that are not transparent will see an increased impact of Sec.
744.23(a)(2)(ii).
Temporary General License and Supply Chain Authorization Letters (ALs)
Topic 52: A commenter noted that the TGL played a major role in
avoiding disruptions to supply chains and that the TGL was critical to
maintain continuing operations and avoid major business disruptions.
This commenter also requested that the TGL be extended for at least one
year to allow time to build the capacity to relocate supply chain
activities outside of China.
BIS response: BIS interprets this comment's reference to the
``TGL'' to refer to the supply chain ALs issued in the wake of the
October 7 IFR. BIS addresses issues related to the existing TGL for
3A090 and related items in this second IFR. Separately, with respect to
SME, BIS has issued a new TGL for less restricted SME ``parts,''
``components,'' or ``equipment'' to address other more significant
supply chain disruptions arising from the October 7 IFR. BIS's
experience with the original TGL was that it played a helpful role in
the initial transition to the October 7 IFR, but that it was only used
by a small set of companies engaged in making ECCN 3A090 ICs and
related items. Prior to April 7, 2023, when that TGL expired, these
exporters, reexporters, and transferors were able to obtain other
authorizations as needed to continue with these types of activities in
China or Macau. For this reason, BIS does not intend to reinstate the
TGL that expired.
Topic 53: A commenter noted that the TGL from the October 7 IFR did
not go far enough to eliminate all disruptions in semiconductor supply
chains. This commenter noted that by forcing the termination of ``non-
listed activities'' that had already been occurring in China, the U.S.
Government caused disruptions and supply chain related delays.
BIS response: BIS regrets that companies may have paused or ceased
activities that were not ultimately restricted by the October 7 IFR and
encourages industry to engage with BIS to confirm the scope of controls
when needed. Separately, BIS agrees that the original TGL was not broad
enough in scope to address other unintended consequences of the October
7 IFR, including those related to Sec. 744.23(a)(4) (former Sec.
744.23(a)(2)(v)). However, BIS addressed these issues with ALs as
warranted in consideration of supply chains, and BIS has subsequently
issued licenses to address other specific unintended consequences
related to the supply chains of U.S. and allied-destination companies.
This issue is further addressed with the issuance of a new TGL and an
exclusion in this SME IFR. The TGL is further discussed in section C.6
of this rule and the exclusion to Sec. 744.23 is discussed in section
C.11.
Topic 54: Many commenters noted that industry needs longer-term and
more permanent solutions than the ALs to relieve the unintended
consequences of the October 7 IFR. These comments covered concerns both
with respect to multinational fabrication facilities as well as
companies that employ foreign nationals from China in the
``development'' or ``production'' of Category 3B items. With respect to
multinational fabrication facilities, one commenter requested that the
ALs be extended with a two-year validity period.
BIS response: BIS agrees that longer term authorizations are
warranted, and that the one-year ALs were intended merely as a short-
term bridge. The new TGL in this SME IFR, which is valid until December
31, 2025, temporarily authorizes specific activities with certain
conditions and requirements, as applicable. BIS also notes that
exporters, reexporters, and transferors may apply for BIS licenses to
obtain long-term predictability or amendments to their Validated End
Users (VEU) authorizations.
Other Ways That BIS Can Consult With Industry To Better Improve the
Effectiveness of Policies in This Area
Topic 55: A commenter noted that ECRA section 1765 (50 U.S.C. 4824)
requires BIS to submit to Congress by the end of the year a report on
the implementation of ECRA during the previous year. Subsection (a)(2)
requires that the annual report include a description of ``the impact
of [all that year's] controls on the scientific and technological
leadership of the United States.'' In addition, ECRA section
[[Page 73436]]
1752(1) (50 U.S.C. 4811(1)) states that the United States should ``use
export controls only after full consideration of the impact on the
economy of the United States.'' Similarly, ECRA section 1752(3) states
that the impact of the implementation of new controls on U.S.
leadership and competitiveness ``must be evaluated on an ongoing basis
and applied in imposing controls . . . to avoid negatively affecting
such leadership.'' This commenter believes that it is important for BIS
to obtain formal industry input on this specific topic so that its
report to Congress is accurate and complete.
BIS response: BIS agrees that it may be beneficial to allow for
public input to assist BIS in preparing this annual report. BIS intends
in the next annual cycle for this report to publish a notice to solicit
comments in the area. BIS will then evaluate the amount and type of
public input provided to the agency to determine if continuing to
publish this type of notice is worthwhile in the future.
Advanced Computing FDP Rule--Sec. 734.9(h)
Topic 56: A commenter noted that the new Sec. 734.9(h) Advanced
computing FDP rule is not needed because it is already covered by pre-
existing Sec. 734.9(b) National Security FDP rule.
BIS response: BIS does not agree. There is some cross over between
these two FDP rules, but the Advanced Computing FDP rule extends to
certain items that the National Security FDP rule does not, so the
Advanced Computing FDP rule is necessary to address the national
security and foreign policy concerns included in the October 7 IFR.
Meaning and Scope of `Support' Under U.S. Person Control in Sec.
744.6(b)(6)
Topic 57: A commenter noted that the exact definition of
``support'' is not clear under the October 7 IFR. BIS should consider
reconfiguring certain definitions to factor in business processes in
the logistics sector. This commenter requested that BIS publish
additional guidance on how logistics firms can understand and apply
``support'' requirements to their supply chains without inducing severe
operational disruptions.
BIS response: The term `support' is defined for purposes of Sec.
744.6 under paragraph (b)(6). BIS also notes that the term `support' is
not a new term added in the October 7 IFR. However, based on the
comments received in response to the October 7 IFR, BIS agrees that
additional clarifications should be made on what types of activities
involving `support' are excluded, such as certain logistics activities.
The AC/S IFR states here that for logistics companies, the prohibited
act is the actual delivery, by shipment, transmittal, or transfer (in-
country), of the item and the act of authorizing the same.
Topic 58: A commenter noted that it is unclear whether U.S. person
``support'' for semiconductor fabrication is limited to shipping,
transmitting, transferring or servicing items for advanced PRC
fabrication facilities, or if it also includes the broad scope of
``support'' in Sec. 744.6(b), including performing any contract,
service, or employment that you ``know'' may assist or benefit advanced
semiconductor fabrication in China.
BIS response: BIS's answer to FAQ IV.A2, published on its website,
specifies that it only applies to Sec. 744.6(c)(2). As such, it is
intended to provide exhaustive guidance for paragraph (c)(2), but not
otherwise limit the scope of Sec. 744.6(b) or apply to other uses of
the term facilitate or facilitation found elsewhere in the EAR.
However, BIS also cautions ``U.S. persons,'' as well as any other
person, that may have acquired technology or software source code in
the United States, that the subsequent release of that ``technology''
or software source code to PRC nationals would be regulated under the
EAR as a release, and if subject to the October 7 controls or the
controls in either the AC/S IFR or SME IFR, will require a license.
What activities are considered `facilitating' under the U.S. person
control?
Topic 59: Some commenters noted that there is not an adequate
definition of ``facilitation'' under Sec. 744.6 or any other EAR
provision that provides the industry with sufficient detail to comply
with the law and request licenses when necessary.
BIS response: For purposes of Sec. 744.6(b)(6)(iii), BIS intends
facilitating such shipment, transmission or transfer (in-country) to
means to make easier by helping to bring about. Facilitation does not
include administrative, clerical, legal advice, or regulatory advice
activities, but does include any other activity that is directly
responsible for bringing about such a prohibited activity is covered
under facilitation.
Topic 60: One commenter asked BIS to assess eight types of
activities and provide guidance on whether they amount to
``facilitation.''
BIS response: BIS would not consider the following five activities
to be ``facilitation,'' provided that they are performed by
administrative or clerical staff and are undertaken only to carry out a
decision maker's decision to export, reexport, or transfer (in-country)
items that may require a license under the EAR: provision of back-
office services that help the business to function, such as IT
services, financial services, or human resources support; order intake
and processing; invoicing and cash or receivables collection
activities; legal advice and counseling on the requirements of the EAR
or other compliance obligations; and referring any matters or
opportunities to non-U.S. persons. Two other activities raised by the
commenter would not require a license because although they are a type
of facilitation that would otherwise be prohibited, they have been
authorized and, as such, the ``U.S. person'' could engage in these
types of authorized facilitation activities: trade compliance clearance
of licensed shipments or other authorized activities with PRC
semiconductor customers including Entity List parties and providing
administrative and limited servicing support for shipments to Entity
List parties authorized by BIS licenses.
Finally, with respect to ``management oversight by U.S. persons
located in China or abroad,'' BIS would need additional information on
whether the oversight involves decisions to export, reexport, or
transfer (in-country) items that require a license under the EAR. If it
did, the oversight as a type of facilitation would require a license.
Topic 61: A commenter asked whether knowledge of a violation is a
requirement to trigger the license requirements under Sec. 744.6.
BIS response: Yes, the ``U.S. person'' control under Sec. 744.6 is
triggered by ``knowledge.'' This SME IFR revises the paragraph (c)(2)
introductory text to make this point more clearly.
Topic 62: A commenter asked whether BIS will presume that a
company's executives (e.g., chief executive officer (CEO), chief
financial officer (CFO), chief operating officer (COO), President,
Board of Directors) ``facilitated'' a restricted transaction, even if
those company executives were ``U.S. persons'' but did not have
knowledge of a violative transaction. The commenter further asks BIS to
provide distinguishing examples.
BIS response: These types of scenarios would be case specific and
may lead to different outcomes depending on the nature of the company's
work and the role that the official plays in that company and in the
activity at issue. If, as posited by the commenter, the official later
asserted that they lacked the requisite knowledge, BIS would assess
what the official knew or should have
[[Page 73437]]
known with respect to the prohibited activity. Limiting the information
that would normally be coming to these officers may result in a
violation of the EAR, if it is determined these steps were taken to try
to avoid EAR license requirements. For officers that do receive
information about transactions that may otherwise be prohibited under
Sec. 744.6, BIS would look at the role of that corporate officer and
whether their decisions on behalf of the company would otherwise be
prohibited under one of the `support' activities under Sec. 744.6.
Topic 63: A commenter asked BIS to identify what compliance methods
the agency recommends for U.S. persons employed by multinational
companies that engage in restricted transactions listed under Sec.
744.6.
BIS response: First, the entity and natural persons all should
identify whether they are ``U.S. persons'' as defined in Sec. 772.1.
If the company is a ``U.S. person,'' then all activities of that
company will need to be reviewed in accordance with the ``U.S. person''
control. If it is only certain natural persons at a company that are
``U.S. persons,'' then those ``U.S. persons'' need to be aware of the
Sec. 744.6 end-use controls and comply with those as applicable, which
may involve simply excluding themselves from those types of activities
or obtaining a BIS license as needed. BIS notes that the SME IFR
published elsewhere in this issue of the Federal Register also adds
several exclusions to Sec. 744.6(d), which may be applicable as well.
C. Expansion of Export Controls on Semiconductor Manufacturing Items
This section describes the specific EAR revisions adopted in this
IFR, which expand and refine the October 7 IFR with respect to
semiconductor manufacturing and SME and addresses the national security
concerns that led to an expansion of the country scope for SME and
related software and technology.
Overview of EAR Amendments
Principally, this rule removes ECCN 3B090 and replaces and expands
its provisions in ECCNs 3B001 and 3B002. This rule also harmonizes
revisions to controls on associated software and technology therefor.
Among other harmonizing changes, BIS revises the heading of ECCN 3B001
by adding the phrase ``and equipment for manufacturing semiconductor
manufacturing equipment'' to reflect the expanded scope of items in
this ECCN. BIS also adds a definition for ``Extreme Ultraviolet''
(``EUV'') to Sec. 772.1 because this term is now used within multiple
ECCNs under 3B001, 3B002, and 3D003. Specific changes to ECCNs 3B001,
3B002, 3D001, and 3E001 as well as information about the removal of
ECCN 3B090 are described below, in sequential order of the ECCNs; see
sections C.1 through C.4 of this rule. The rule also imposes 0% de
minimis for ECCN 3B001.f.1.b.2.b (specified lithography equipment),
discussed in section C.5 of this rule. The addition of a new TGL is
discussed in section C.6. BIS also notes restrictions under Sec.
740.2(a)(9) on the use of license exceptions for any of these ECCNs,
discussed in section C.7 of this rule.
BIS has determined that the newly added items under ECCNs 3B001 and
3B002, and associated software and technology therefor, are, with
limited exceptions, only used for fabricating logic ICs with non-planar
transistor architecture or with a ``production'' `technology node' of
16/14 nanometers or less. These items are controlled for National
Security (NS) and Regional Stability (RS) reasons, and those changes
are discussed in sections C.8 and C.9, respectively. As noted above,
although these items are not yet formally controlled under a
multilateral regime, the urgency and criticality of the U.S. national
security concerns stated in section A dictate control pending adoption
through the Wassenaar Arrangement. Each of the items added with this
SME IFR are key to production of ``advanced-node integrated circuits,''
such as, advanced memory integrated circuits that will be necessary to
enable new platforms to leverage advanced analytics or autonomy in ways
that will be essential to the twenty-first century battlefield. Their
inclusion in these controls reflect BIS's focused approach based on the
critical national security applications of the most advanced ICs. For
those that already hold a license that covers the expanded scope of
controls, there is no need to reapply for a license.
This rule also revises the activities of ``U.S. persons'' controls
in Sec. 744.6 as well as Sec. 744.23 regarding ``supercomputer,''
``advanced-node integrated circuits,'' and semiconductor manufacturing
equipment end use controls, and those changes are discussed in sections
C.10 and C.11, respectively. The rule also adds two new definitions to
Sec. 772.1, ``advanced-node integrated circuits'' and ``extreme
ultraviolet,'' which are discussed in section C.12.
National Security Considerations for Expanding Controls and Country
Scope
This rule also expands the country scope of the controls for the
items in this rule from ``China and Macau'' to ``Macau or destinations
specified in Country Group D:5'' of supplement no. 1 to part 740. BIS
imposed these new controls to protect U.S. national security interests
by restricting China's military modernization efforts and degrading its
ability to violate human rights, as well as the national security
threats posed by other arms embargoed countries. The advanced computing
integrated circuits (ICs), semiconductor manufacturing equipment (SME)
essential to producing advanced-node ICs, and items used to further
supercomputing capacity controlled through the October 7 IFR have
profound implications for the future of international security. They
are critical for the further development of not only weapons of mass
destruction (WMD) but also many concerning emerging technologies such
as advanced AI systems, autonomous weapons, cyberweapons, hypersonics,
as well as high-tech surveillance applications which China has stated
it will use in its next generation military capabilities and to engage
in activities contrary to democratic values. These advances will result
in future challenges to the United States' and partners' militaries as
China pushes towards its goal of fielding a military by 2027 designed
to deter U.S. intervention in a future cross-Strait crisis.
The destinations described in Country Group D:5 and Macau are those
BIS has previously identified as being destinations of national
security concern, WMD developing countries, diversion countries of
concern or as a country subject to a U.S. arms embargo or sanction,
United Nations Security Council sanction, or countries that the
Secretary of State has determined to be State Sponsors of Terrorism.
Adding a license requirement for destinations in Country Group D:5
(which includes all the countries in Country Group E, plus countries
such as Afghanistan, Belarus, China, Iraq, Libya, Syria, Russia, and
Venezuela) will provide greater visibility into the flow of
semiconductor manufacturing equipment, associated development and
production technology and software, as well as specially designed
parts, components and assemblies therefor to other countries and their
intended end uses. As noted in the February 6, 2023 Annual Threat
Assessment of the U.S. Intelligence Community, ``foreign intelligence
services are adopting cutting-edge technologies--from
[[Page 73438]]
advanced cyber tools to unmanned systems to enhanced technical
surveillance equipment--that improve their capabilities and challenge
U.S. defenses.'' The report noted that potential advances in
semiconductors and high-performance computers by adversaries, including
China, could pose challenges to the U.S. military.
China in its latest Five-Year Plan is attempting to generate a
self-sufficient design and production capacity of ``advanced-node
integrated circuits'' to create ``secure and controllable'' indigenous
supply chains. The United States--as a leader in the SME industry--must
focus on and regulate the next increment of semiconductor development
by controlling the export of critical SME and associated development
and production technology and software, as well as activities of U.S.
persons that support such SME development and production in countries
of concern. These measures will help ensure ``advanced-node ICs'' are
not going to end users and end uses of concern, which would threaten
national security.
The expanded country scope is implemented through amendments to
Sec. Sec. 742.4 and 742.6, national security and regional stability
reasons for control respectively, which are discussed in sections C.8
and C.9 of this rule.
1. Revisions to ECCN 3B001
This section discusses the amendments to ECCN 3B001. No changes
were made to ECCN 3B001 paragraphs .b, .e, or .g through .j. The
heading of ECCN 3B001 is revised by adding the phrase ``and equipment
for manufacturing semiconductor manufacturing equipment'' after the
word ``materials.''
The License Requirement table is revised to apply NS:2 controls
only to items listed in ECCN 3B001 prior to adoption of this rule.
Newly listed ECCNs (3B001.a.4, c, d, f.1.b, and k to p, described
below) are controlled for NS, RS, and AT reasons, as identified in new
paragraphs under Sec. Sec. 742.4(a)(4) (NS) and 742.6(a)(6) (RS),
which applies only to Macau and destinations specified in Country Group
D:5. All of the items in the ECCN continue to be controlled for Anti-
Terrorism (AT) reasons and subject to an AT:1 license requirement. The
License Requirement table is revised to identify these reasons for
control.
License Exception Shipments of Limited Value (LVS) eligibility is
revised by removing eligibility for semiconductor manufacturing
equipment specified in ECCN 3B001.a.4, c, d, f.1.b, k to p. Only
license exceptions found in Sec. 740.2(a)(9) of the EAR may be used
for specified semiconductor manufacturing equipment such as this.
ECCN 3B001.a.4 is added to control equipment designed for silicon
(Si), carbon doped silicon, silicon germanium (SiGe), or carbon doped
SiGe epitaxial growth with specified parameters. BIS notes that the
material referred to in 3B001.a.1 do not contain silicon and that the
material in ECCN 3B001.a.4 includes silicon and silicon plus other
specified elements. Items that are specified in ECCN 3B001.a.4 are
controlled for NS reasons under Sec. 742.4(a)(4) and RS reasons under
Sec. 742.6(a)(6)(i). Consistent with Sec. 742.4(b)(2) and (10), items
specified in ECCN 3B001.a.4 will be reviewed consistent with license
review policies in Sec. 744.23(d) of the EAR, except applications will
be reviewed on a case-by-case basis if no license would be required
under other provisions in part 744 of the EAR. The equipment included
in ECCN 3B001.a.4 uses high-vacuum or inert environment technology to
ensure highly clean and controlled conditions during the epitaxial
growth process.
ECCN 3B001.b is revised to add ``Semiconductor wafer fabrication''
in front of ``equipment designed for ion implantation'' in order to
limit the application of this control to specific equipment.
ECCN 3B001.c previously was used to control anisotropic plasma dry
etching that was decontrolled in 2015 due to availability from
countries that do not participate in the Wassenaar Arrangement. ECCN
3B001.c.1 is now added to establish controls on equipment designed for
dry etching, including isotropic dry etching as specified (ECCN
3B001.c.1.a) and anisotropic dry etching as specified (ECCN 3B001.c.1.b
and c.1.c). The atomically precise equipment described in this rule is
only available from Wassenaar Arrangement Participating States.
Isotropic dry etching is required for lateral etching. Gate-All-Around
Field Effect Transistors (GAAFETs) and similar 3D structures with
different brand names require lateral etching with high selectivity.
Atomic layer etching enhanced by the features described in ECCN
3B001.c.1.a., b., and c. produce the vertical edges required in high-
quality, leading-edge advanced devices and structures, including GAAFET
and similar 3D structures. Note 1 is added to inform the public that
ECCN 3B001.c includes etching by `radicals', ions, sequential
reactions, or non-sequential reactions. Note 2 is added to inform the
public of the types of etching that are included in the scope of ECCN
3B001.c.1.b, e.g., etching using RF pulse excited plasma, plasma atomic
layer etching, and plasma quasi-atomic layer etching. In addition, two
technical notes are added to define two terms used in the control text
of ECCN 3B001.c.1.a, c.2, and ECCN 3B001.c Note 1, which are `silicon
germanium-to-silicon (SiGe:Si) etch selectivity' and `radical,' now
defined in Technical Notes 1 and 2, respectively.
ECCN 3B001.c.2 is added to control equipment designed for wet
chemical processing and having a largest `silicon germanium-to-silicon
etch selectivity' ratio of greater than or equal to 100:1. The
definition for the term `silicon germanium-to-silicon (SiGe:Si) etch
selectivity' is found in Technical Note 1 to ECCN 3B001.c. Wet chemical
processing is used for a variety of purposes, from chemical removal of
material (wet etching) to deposition of material (electroplating), to
sample cleaning, to the creation of patterns on the surface using
optical lithography techniques. This particular equipment is controlled
because of its high etch selectivity ratio, which is important to IC
fabrication at more advanced technology nodes.
ECCN 3B001.d historically was applied to control deposition
equipment that was then decontrolled because of technological
advancements and foreign availability. The paragraph was reserved but
is now being utilized again to control semiconductor wafer fabrication
deposition equipment used today to manufacture advanced-node ICs.
Contacts and lower interconnects are the smallest and most critical
wiring layers delivering current to transistors, and due to continued
geometric scaling of logic semiconductors, these metal layers now
create a bottleneck to transistor performance. The items added to ECCN
3B001.d.3, d.4, d.5, and d.8 include advanced fabrication equipment
designed for metal deposition of the barrier layer, liner layer, seed
layer, or cap layer of metal interconnects.
ECCN 3B001.d.1 (former ECCN 3B090.a.1) is revised by adding the
word ``designed,'' to better focus controls. This rule also revises the
control to include ``cobalt (Co) electroplating or cobalt electroless-
plating deposition'' in response to feedback from public comments.
Electroplating has long been used to deposit metal on substrates in the
semiconductor industry. In advanced-node IC manufacturing, a barrier
layer such as cobalt (Co) is necessary to block the diffusion of copper
into the surrounding material.
[[Page 73439]]
ECCN 3B001.d.2 (former ECCN 3B090.a.2) is revised by adding the
phrase ``equipment designed for'' and replacing the phrase ``capable
of'' with ``by performing,'' to better focus the controls. The phrase
``capable of'' was replaced because BIS determined the phrase could
unintentionally capture equipment used to produce logic ICs at legacy
technology nodes. Using ``by performing'' more precisely controls
equipment that is used to produce logic ICs at the advanced technology
node. Therefore, consistent with BIS's focused approach to these
controls and to aid with export control compliance, these controls are
based on the designed performance of the equipment. In addition,
periodic table symbols for elements are also added throughout this
ECCN. Finally, BIS revised the scope of this control to provide greater
specificity on the types of tungsten-based capabilities subject to
control.
ECCN 3B001.d.3 (former ECCN 3B090.a.3) is revised by replacing
``capable of fabricating'' with ``designed to fabricate,'' for the
reasons noted above in relation to ECCN 3B001.d.2, and by replacing
``within'' with ``by multistep processing within a single chamber.''
ECCN 3B001.d.3.a (former ECCN 3B090.a.3.a) is revised by replacing
``depositing a layer using'' with ``deposition of a tungsten layer,
using an organometallic tungsten (W) compound'' and replacing
``between'' with ``greater than'' and ``less than.'' Subparagraph
3B001.d.3.b (former ECCN 3B090.a.3.b) is revised by replacing
``conducting a'' with ``a plasma process using hydrogen
(H2),'' and replacing ``where the chemistries include'' with
``including hydrogen and nitrogen (H2 +N2) or
ammonia (NH3),'' and adding periodic table symbols or names
for elements in this subparagraph.
ECCN 3B001.d.4 contains descriptive introductory text that includes
two common parameters that apply to all the paragraphs in ECCN
3B001.d.4, which establishes control of SME or systems designed for
multistep processing in multiple chambers or stations and maintaining
high vacuum (equal to or less than 0.01 Pa) or inert environment
between process steps. Introductory text in ECCN 3B001.d.4.a (former
ECCN 3B090.a.4) is revised by replacing ``capable of'' with ``designed
to fabricate,'' for the reasons noted above in relation to ECCN
3B001.d.2. Clarifications are made to ECCN 3B001.d.4.a.1 through a.3
(former ECCN 3B090.a.4.a, a.4.b, and a.4.c), such as adding periodic
table symbols or chemistry formulas and replacing ``between'' with
``greater than'' and ``less than.''
ECCN 3B001.d.4.b (formerly ECCN 3B090.a.5) is revised by cascading
the control text into a header and two subparagraphs for easier
readability and clarity. A note is retained that followed what had been
ECCN 3B090.a.5 and indicating that the control does not apply to
equipment that is non-selective.
ECCN 3B001.d.4.c (formerly ECCN 3B090.a.8) is revised by replacing
``capable of'' with ``designed for,'' for the reasons noted above in
relation to ECCN 3B001.d.2 and tightening up other text referring to
pressure and temperature in the related items paragraphs.
ECCN 3B001.d.4.d (formerly ECCN 3B090.a.9) controls equipment
designed to fabricate copper interconnects, including those performing
all the following processes: deposition of cobalt or ruthenium layer
using an organometallic compound (see ECCN 3B001.d.4.d.1) and
deposition of a copper layer using a physical vapor deposition
technique (see ECCN 3B001.d.4.d.2).
ECCN 3B001.d.5 is added to control equipment designed for plasma
enhanced chemical vapor deposition of carbon hard masks meeting
specified parameters. As the feature size of semiconductor devices
decreased, a carbon hard mask film with higher etching selectivity and
higher transparency is required for manufacturing.
ECCN 3B001.d.6 (formerly ECCN 3B090.a.10) is revised to add
``Atomic Layer Deposition (ALD)'' to clarify the type of equipment that
is designed for area selective deposition of a barrier or liner using
an organometallic compound. Atomic layer deposition (ALD) equipment has
become a critical enabler of today's most advanced devices and the
industry's transition to 3D architectures. On the wafer substrate, the
ALD processes build up material directly, a fraction of a monolayer at
a time to build the thinnest, most uniform films possible. The self-
limiting nature of the processes and the related capacity for conformal
deposition are the basis for its importance as a 3D scaling enabler,
such as in the fabrication of 3D DRAM, 3D NAND, and FinFET/GAAFET
logic.
The ECCN 3B001.d.7 (formerly ECCN 3B090.a.11) control for Atomic
Layer Deposition (ALD) equipment is revised by replacing the words
``capable of'' with ``designed to'' for the reasons noted above in
relation to ECCN 3B001.d.2. BIS also revised the control to remove
``cobalt,'' which is addressed by other revisions in ECCN 3B001.d.2.
Further, BIS removed the phrase ``void free fill'' in favor of ``fill
an entire interconnect'' to clarify that equipment designed only for
ALD of a tungsten layer (rather than to fill an entire interconnect) or
for ALD in channels of specified width) is not controlled. BIS also
removed the phrase ``having an aspect ratio greater than 5:1.''
ECCN 3B001.d.8 (formerly ECCN 3B090.a.7) controls certain ALD
equipment of `work function metals,' however the parameters are
clarified to be more specific. A technical note that defines `work
function metal' is moved to this paragraph but remains unchanged.
ECCN 3B001.d.9 is added to establish control of spatial ALD
equipment having a wafer support platform that rotates around an axis
having any of the following: a spatial plasma enhanced ALD mode of
operation, a plasma source, or a plasma shield or means to confine the
plasma to the plasma exposure process region. These features help
reduce unwanted particles in the deposition process to a degree needed
for the fabrication of advanced-node ICs.
ECCN 3B001.d.10 is added to establish control of equipment designed
for ALD or chemical vapor deposition (CVD) of plasma enhanced low
fluorine tungsten films. This equipment is critical in filling voids in
advanced-node device structures with higher and increasingly narrow
aspect ratios, which minimizes resistance and improves performance.
ECCN 3B001.d.11 is added to control equipment designed to deposit a
metal layer and maintain a specified vacuum or inert gas environment,
including equipment designed for a chemical vapor deposition or cyclic
deposition process by performing deposition of a tungsten nitride
layer. This equipment is needed to achieve defect-free deposition of
tungsten, which is critical to the production of advanced-node ICs.
ECCN 3B001.d.12 is added to establish control of equipment designed
for depositing a metal layer and maintaining a specified vacuum or
inert gas environment, including equipment designed for selective
tungsten growth without a barrier and equipment designed for selective
molybdenum growth without a barrier. This equipment enables the
manufacture of contacts with significantly lower resistivity, which is
important to the fabrication of advanced-node ICs.
ECCN 3B001.d.13 is added to establish control of equipment designed
for depositing a ruthenium (Ru) layer using an organometallic compound,
while maintaining the wafer substrate at
[[Page 73440]]
a specified temperature. The deposition of a Ru layer under the
specified conditions is important to achieving lower resistivity
interconnects needed for the fabrication of advanced-node ICs.
ECCN 3B001.d.14 is added to control deposition equipment assisted
by remotely generated radicals enabling the fabrication of a silicon
and carbon containing film having specified properties. This specific
process promotes good cycle stability of the film, which is important
in the fabrication of advanced-node ICs.
ECCN 3B001.d.15 is added to control equipment designed for void
free plasma enhanced deposition of a low-k dielectric layer in gaps
between metal lines with specified parameters. A low-k CVD barrier film
reduces the dielectric constant (k) of copper damascene structures to
lower capacitance (power consumption), which enables fabrication of
more advanced integrated circuits.
ECCN 3B001.d.16 is added to control deposition equipment with
capabilities similar to those described in new ECCN 3B001.d.14, but
which also meets certain temperature requirements, has the capability
to hold multiple vertically stacked wafers, and has certain injector
configurations, as specified.
ECCN 3B001.f.1 ``Align and expose step and repeat (direct step on
wafer) or step and scan (scanner) equipment for wafer processing using
photo-optical or X-ray methods'' is revised to establish controls in
ECCN 3B001.f.1.b for equipment that have a light source wavelength
equal to or longer than 193 nm meeting certain parameters, and adding
two paragraphs under ECCN 3B001.f.1.b.2 to capture items with a maximum
`dedicated chuck overlay' less than or equal to 1.50 nm, or greater
than 1.50 nm but less than or equal to 2.4nm, respectively. The
technical note for ECCN 3B001.f.1.b is also revised to add a definition
for `dedicated chuck overlay.' The equipment meeting the parameters in
ECCN 3B001.f.1.b.2.b is not eligible for de minimis treatment with one
exception as set forth in Sec. 734.4(a)(3) of the EAR as described
below in section C.5. This change recognizes the advancement of the
state-of-the-art in immersion lithography equipment and the
corresponding decrease in minimum resolvable feature (MRF) size of
advanced-node ICs. This equipment is necessary to improve resolution by
reducing the total edge placement error, which is a measure of the
accuracy between pattern overlays on the same exposure mask level. The
definition for ``Extreme Ultraviolet'' (``EUV'') is moved from the
technical note located after ECCN 3B001.j.2 to Sec. 772.1 as an EAR
defined term, because the term is used in ECCNs 3B001, 3B002, and
3D003. The addition of this term to Sec. 772.1 is described below in
section C.12.
ECCN 3B001.k is added to establish controls on equipment designed
for ion beam deposition or physical vapor deposition of multi-layer
reflector for ``EUV'' masks. ECCN 3B001.l is added to establish
controls on ``EUV'' pellicles and ECCN 3B001.m is added to establish
controls on equipment for manufacturing ``EUV'' pellicles. Masks,
reticles, and associated pellicles are critical components for EUV
lithography, which itself enables fabrication of very small feature
sizes used at more advanced production nodes. Masks for EUV lithography
have many features that uniquely suit them for EUV lithography, e.g.,
they have a low thermal expansion low defect glass blank and operate in
the reflection mode, whereas masks for 193 nm and 248 nm lithography
technology operate in the transmission mode.
ECCN 3B001.n is added to establish controls on equipment designed
for coating, depositing, baking, or developing photoresist formulated
for ``EUV'' lithography, which as noted above is critical for
production of advanced-node ICs.
ECCN 3B001.o is added to establish controls of semiconductor wafer
fabrication annealing equipment with specified parameters. In the case
of silicon wafers, annealing is often used to improve the surface
roughness and crystal quality of the wafer. It can also be used to
remove defects and impurities from the surface of the wafer. This
removal is even more critical in the production of wafers used to
fabricate advanced-node ICs given their smaller feature sizes.
ECCN 3B001.p is added to establish control of three types of
semiconductor wafer fabrication cleaning and removal equipment.--
Frequent removal of contaminants and wafer cleansing is critical during
the manufacture of advanced-node integrated circuits. At advanced
technology nodes any contaminant, unwanted particles or debris, in the
nanometer range, can easily cause short circuits that would disable an
IC.
ECCN 3B001.p.1 controls equipment designed for removing polymeric
residue and copper oxide film and enabling deposition of copper metal
in a vacuum (equal to or less than 0.01 Pa) environment. BIS notes that
this control does not capture deposition equipment that is not
elsewhere specified, but which may also have the capability described
in the control.
ECCN 3B001.p.2 controls single wafer wet cleaning equipment with
surface modification drying. BIS notes that this control is not
intended to capture planarization equipment that may incorporate
``cleaning'' and ``drying'' steps as part of its overall process.
Planarization is a process used in semiconductor manufacturing to
polish wafers, rather than to clean wafers.
ECCN 3B001.p.3 controls equipment designed for dry surface oxide
removal preclean or dry surface decontamination. As with ECCN
3B001.p.1, BIS notes that this control does not capture deposition
equipment not elsewhere specified, but which may also have the
capability described in the control. However, BIS notes that any
components or attached chambers providing such capability would be
controlled when exported, reexported, or transferred (in-country) as a
separate item.
2. Revisions to ECCN 3B002
The heading to ECCN 3B002 is revised by adding ``or inspection''
before equipment and ``or inspecting'' after testing because inspection
equipment is added to this ECCN. License Exception LVS eligibility is
revised to remove eligibility for semiconductor manufacturing equipment
specified in ECCN 3B002.b and c. Only license exceptions found in Sec.
740.2(a)(9) of the EAR may be used for specified semiconductor
manufacturing equipment such as this. Former paragraph 3B002.c is
redesignated as paragraph 3B002.b and new paragraph 3B002.c is added to
establish control of inspection equipment designed for ``EUV'' mask
blanks or ``EUV'' patterned masks. Semiconductor inspection tools
increase production throughputs by optimizing processes and improving
quality and yields, and specialized versions of these tools are
required for inspection at advanced technology nodes enabled by EUV,
and therefore warrant NS and RS controls for EUV (high-end) masks. The
definition for ``Extreme Ultraviolet'' (``EUV'') that this rule adds to
Sec. 772.1, as described below in section C.12, applies to that term
as it is used in ECCN 3B002.c.
3. Removal of ECCN 3B090 and Conforming Changes
BIS added ECCN 3B090 to the CCL in the October 7 IFR. This rule
removes ECCN 3B090 because it was determined that controls on SME
should be placed with similar equipment specified in previously
existing ECCNs, e.g., 3B001, for ease of compliance, enforcement, and
because BIS anticipates that these items will be the subject of future
formal
[[Page 73441]]
multilateral controls, as discussed above.
Licenses issued by BIS for equipment that was classified under ECCN
3B090, but is now under ECCN 3B001, remain valid until expiration,
unless suspended or revoked. For export clearance purposes for licenses
involving ECCN 3B090 items, exporters must use the new 3B001,
consistent with Sec. 750.7(c)(1)(viii). This concept also applies to
all other ECCN redesignations that occur as a result of this SME IFR.
Exporters must list the new ECCN classification on any export clearance
documentation filed after the effective date of this rule.
4. Revisions to ECCNs 3D001, 3D002, 3D003, and 3E001
The license requirement tables of ECCNs 3D001, 3D002, and 3E001 are
revised following the same pattern as the table revisions for ECCNs
3B001 and 3B002, described above. For all three ECCNs, new NS and RS
license requirements rows are added for software and technology related
to newly added SME in ECCN 3B001.a.4, c, d, f.1.b and k to p when
destined to or within Macau or destinations specified in Country Group
D:5 of supplement no. 1 to part 740 of the EAR. The related changes to
Sec. Sec. 742.4(a)(4) and 742.6(a)(6) of the EAR are discussed in
section C.8 and C.9, respectively. All items in these ECCNs, including
these newly listed SME, are also controlled for AT reasons and subject
to an AT:1 license requirement. The License Requirement table is
revised to identify these reasons for control.
Because of the addition of RS controls, in ECCNs 3D001 and 3D002,
License Exception TSR eligibility is revised to include ``N/A for RS,''
as TSR eligibility is for items that require a license for NS reasons
only. For ECCN 3E001, TSR eligibility is also revised for the same
reasons, but adds N/A for NP and RS.
In addition to the changes described above, the heading of ECCN
3D002 is revised by expanding the scope to include newly added SME in
ECCN 3B001.k to p. In addition, the reporting requirement is removed,
as ECCN 3D002 does not appear in supplement no. 2 to part 774--
Sensitive List.
The heading of ECCN 3D003 is revised by adding double quotes around
the newly defined term ``EUV,'' because that term is defined now
defined in Sec. 772.1 of the EAR.
This rule also makes an additional clarification to ECCN 3E001. In
ECCN 3E001, this rule revises the Regional Stability control in the
License Requirements section Control(s) column to remove the phrase
``or ``software'' specified by ECCN 3D001 (for ECCN 3A090 or 3B090
commodities)'' because it is no longer needed. This rule is removing
technology controls for ECCN 3D001 software (for ECCNs 3A090 and 3B090
commodities) because the technology related to software is simply
source code, which is generally classified as software, so there is no
need for a separate technology control under ECCN 3E001 for ECCN 3D001
software.
Only license exceptions found in Sec. 740.2(a)(9) of the EAR may
be used for technology or software for specified semiconductor
manufacturing equipment.
5. Addition of Sec. 734.4(a)(3) 0% De Minimis Rule for ECCN
3B001.f.1.b.2.b Items
This rule revises Sec. 734.4 by adding a new paragraph (a)(3) to
specify that there is no de minimis level for lithography equipment and
``specially designed'' items therefor meeting the parameters in ECCN
3B001.f.1.b.2.b when destined for use in the ``development'' or
``production'' of ``advanced-node integrated circuits,'' except when
the country from which the foreign-made item was originally exported or
reexported has the item listed on its export control list. In other
words, if the other country maintains an equivalent export control for
equipment meeting the parameters of ECCN 3B001.f.1.b.2.b, BIS does not
need to impose additional controls on the export from abroad, or the
reexport or transfer (in-country) of these foreign-made items. BIS is
adding a footnote with information concerning any countries that
maintain an equivalent export control.
Retention of BIS Jurisdiction
For exports from abroad from any other country, and subsequent
reexports or transfers to or within any other country of items that
were exported from abroad from a country that does not maintain
equivalent controls, BIS retains jurisdiction over such foreign-made
equipment to protect U.S. national security and foreign policy
interests.
6. Revisions to the Temporary General License in Supplement no. 1 to
Part 736--General Orders
Effective November 17, 2023, this rule revises paragraph (d) of
(General Order No. 4) under supplement no. 1 to part 736 by removing
the October 7 IFR TGL and adding a new TGL.
This SME IFR adds a new TGL under paragraph (d)(1) for companies
headquartered in the United States or a destination specified in
Country Group A:5 or A:6 that send CCL items to manufacturing
facilities in a Country Group D:5 country or Macau for the
``development'' or ``production'' of ``parts,'' ``components,'' or
``equipment'' of certain Category 3B ECCNs specified in Sec.
744.23(a)(4). The TGL overcomes the license requirements described in
Sec. 744.23(a)(4) (former Sec. 744.23(a)(2)(v)) when (1) the items
exported, reexported, or transferred (in-country) are subject to the
EAR, specified on the CCL, and controlled only for AT reasons, and (2)
the items are exported, reexported, or transferred (in-country) at the
direction of a company that is headquartered in the United States or a
destination specified in Country Groups A:5 or A:6, and not majority-
owned by a company headquartered in either Macau or a destination
specified in Country Group D:5. The purpose of this TGL is to provide
SME producers in the United States and Country Groups A:5 and A:6
countries additional time to identify alternative sources of supply
outside of arms-embargoed countries, or to acquire individually
validated licenses to continue manufacturing `front-end integrated
circuit ``production'' equipment' and related ``parts'' and
``components'' in such countries. In keeping with that goal, this TGL
is valid from November 17, 2023, through December 31, 2025.
As noted below in section C.11, the overarching purpose of Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)) is to inhibit the
indigenization of `front-end integrated circuit ``production''
equipment' and related ``parts'' and ``components'' that would render
the end-use controls in Sec. 744.23(a)(2) obsolete. BIS has narrowed
the scope of Sec. 744.23(a)(4) to focus on the types of equipment
(i.e., front-end) that are most likely relevant to the ``production''
of ``advanced-node integrated circuits,'' which may include node-
agnostic tools specified in ECCNs controlled for only AT reasons. As
noted in section C.11, BIS welcomes comment on whether there are ECCNs
that should be excluded from the end-use scope because they are
exclusively used in the ``production'' of legacy-node integrated
circuits.
In keeping with that goal, new paragraph (d)(4) (End-use and end-
user restrictions) states that the TGL cannot be used for the
indigenous ``development'' or ``production'' of Category 3B tools in
either Macau or a destination specified in Country Group D:5, i.e.,
where the ``part,'' ``component,'' or ``equipment'' is ``developed'' or
``produced'' at the
[[Page 73442]]
direction of an entity that is headquartered in either Macau or a
destination specified in Country Group D:5. Paragraph (d)(4)(i) also
specifies that the 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.
Lastly, new paragraph (d)(5) (Recordkeeping requirements) specifies
that all exports, reexports, transfers (in-country), and exports from
abroad shipped under the authorization of the TGL are subject to the
recordkeeping requirements of part 762. Paragraph (d)(5) states that
the records subject to this recordkeeping requirement include but are
not limited to directives to the parties that are eligible to use this
TGL and a list of the parties that have received directives. Each party
that issues or acts upon a directive is responsible for keeping a
record of that directive.
7. Revisions to Sec. 740.2 License Exception Restrictions
This rule also restructures Sec. 740.2(a)(9) by addressing SME in
paragraph (a)(9)(i) and advanced computing and supercomputer items in
paragraph (a)(9)(ii). This rule also revises Sec. 740.2(a)(9) by
replacing references to 3B090 with references to new ECCNs 3B001.a.4,
c, d, f.1.b, k to p, 3B002.b and c, or associated software and
technology in ECCN 3D001, 3D002, 3D003, or 3E001. As a result, these
items remain ineligible for all license exceptions other than License
Exception GOV. This SME IFR expands the availability of License
Exception GOV for both SME and advanced computing and supercomputer
items to all of the United States Government under Sec. 740.11(b),
consistent with policy that GOV should be available for U.S. Government
use or for those acting for or on behalf of the U.S. Government.
In addition, for ECCNs 3A090 and 4A090 items, as requested in
public comments on the October 7 IFR, this SME IFR also amends Sec.
740.2(a)(9)(ii) to add eligibility for License Exception TMP under
Sec. 740.9(a)(6), so that eligible companies may temporarily send
foreign-produced advanced computing items for inspection, test,
calibration, and repair to Macau or destinations specified in Country
Group D:5, as well as transfer within those destinations for
inspection, test, calibration, and repair. Not including License
Exception TMP for Sec. 740.9(a)(6) in the October 7 IFR was an
inadvertent oversight, which as the commenters correctly noted would
undermine the usefulness of License Exception RPL, which was included
in the October 7 IFR for these items.
8. Addition and Reformatting of Sec. 742.4 National Security Controls
This rule amends Sec. 742.4 by reformatting paragraph (a) for
easier navigation and readability, as well adding a new paragraph
(b)(2) and paragraph (d) for license exception guidance. Specifically,
a sentence is added to the introductory text of paragraph (a) to
explain the basis for most of the items controlled for National
Security reasons on the CCL. Paragraph (a) is now cascaded into
separate paragraphs for ease of reading and navigation. Paragraph
(a)(1) describes NS:1 license requirements, paragraph (a)(2) describes
NS:2 license requirements, paragraph (a)(3) describes NS-related
license requirements for ECCN 6A003.b.4.b, and paragraph (a)(4) is
added to describe NS related license requirements for certain SME and
associated software and technology, which is for the newly added SME in
ECCNs 3B001 and 3B002, associated software in ECCNs 3D001 and 3D002,
and associated technology in 3E001. A license is required for exports
and reexports to either Macau or destinations specified in Country
Group D:5 of commodities specified in ECCNs 3B001.a.4, c, d, f.1.b, k
to p, and 3B002.b and c and their associated software and technology.
Paragraph (b) is amended by adding an introductory sentence that
includes former paragraph (b)(3) and explains that if a license
application meets the criteria of more than one of the paragraphs in
(b), then the most restrictive license policy will be applied. This
rule also adds subject headings to each license policy paragraph to
assist with navigation within paragraph (b). This rule moves the text
from paragraph (b)(2) to the end of paragraph (b)(1)(i), because this
further explains license review policy for exports and reexports to
destinations in Country Group D:1. The license policy in former
paragraph (b)(1)(iii) for 9x515 to China and destinations in Country
Group E:1 is combined with the license policy for ``600 series'' items
in former paragraph (b)(1)(ii), because these destinations are also in
Country Group D:5 and the corresponding licensing policy, consistent
with Sec. 126.1 of the International Traffic in Arms Regulations
(ITAR) (22 CFR chapter I, subchapter M) for such destinations, would be
a policy of denial. The combined license policy is now in paragraph
(b)(1)(ii).
This rule adds a new paragraph (b)(2) indicating license
applications will be reviewed consistent with license review policies
in Sec. 744.23(d) of the EAR, except applications will be reviewed on
a case-by-case basis if no license would be required under part 744 of
the EAR. License applications for items specified in paragraph (a)(4)
will be reviewed consistent with license review policies in Sec.
744.23(d) of the EAR, except applications will be reviewed on a case-
by-case basis if no license would be required under part 744 of the
EAR.
Paragraph (c), regarding the applicability of contract sanctity,
has been revised to note that contract sanctity will be available as a
factor for consideration for license applications involving the new SME
items identified in paragraph (a)(4) of this section.
The previously reserved paragraph (d) is now a paragraph for
license exceptions guidance. This paragraph is added to provide
references to specific license exceptions that are for national
security-controlled items, as well as other useful license exceptions
for national security items. It also cross-references the restrictions
that apply to all license exceptions in Sec. 740.2 of the EAR.
9. Revision of Sec. 742.6 Regional Stability
Section 742.6(a)(6)(i) is revised to remove references to ECCN
3B090 and associated software and technology to conform to the removal
of that ECCN from the CCL. See section C.3 of this rule for the
description of the removal of 3B090 and addition of items to 3B001,
3B002, and associated software and technology ECCNs. This SME IFR
separates from paragraph (a)(6)(i) sentences about exports from abroad
from China or Macau and adds them to a new paragraph (a)(6)(ii). In
addition, the deemed export/reexport paragraph in former paragraph
(a)(6)(ii) is now redesignated as paragraph (a)(6)(iii).
BIS specifically seeks public comment on the applicability of
deemed exports and deemed reexports in paragraph (a)(6)(iii).
Commenters are asked to provide feedback regarding the impact of this
provision on their business and operations, in particular, what if any
impact companies would experience if the deemed export and deemed
reexport provision was removed and a license were to be required.
Commenters are also asked to provide guidance on what if any practices
are utilized to safeguard technology and intellectual property and the
role of foreign person employees in obtaining and maintaining U.S.
technology leadership.
Lastly, this rule revises the license review policy under paragraph
(b)(10) to
[[Page 73443]]
harmonize the destination scope to Macau and destinations specified in
Country Group D:5 and state that the license review will be consistent
with Sec. 744.23(d) of the EAR, except applications will be reviewed
on a case-by-case basis if no license would be required under part 744
of the EAR.
10. Revision of Sec. 744.6 Activities of ``U.S. Persons''
Paragraph (c) is restructured by consolidating the nine former
paragraphs (c)(2)(i) through (ix), which included redundant text, into
three paragraphs (c)(2)(i) through (iii). Paragraph (c)(2) now captures
the types of prohibited activities, i.e., shipping, transmitting, or
transferring (in-country), applicable to the destinations and end uses
described in three paragraphs (c)(2)(i) through (iii). A commenter
asked whether knowledge of a violation is a requirement to trigger the
license requirements under Sec. 744.6, and in response to this
comment, BIS is clarifying this by adding ``if you know your export,
reexport, or transfer (in-country) meets any of the specified
activities described in paragraphs (c)(2)(i) through (iii) of this
section, then'' to the paragraph (c)(2) introductory text to make this
point.
Other paragraph specific changes are described below.
a. Revisions related to former paragraphs (c)(2)(i) through (iii)
regarding semiconductor ``development'' and ``production'' activities
and related exclusions in paragraph (d).
Section 744.6(c)(2)(i) and (ii) (former paragraphs (c)(2)(i)
through (vi)) are revised to clarify the types of end uses captured by
the controls, as well as the types of ``facilities'' where a prohibited
end use must occur. First, the phrase ``that fabricates'' is replaced
with ``where ``production'' . . . occurs.'' Second, the phrase
``semiconductor fabrication'' is removed and therefore no longer
qualifies the term ``facility.'' BIS opted to leverage the existing
defined term ``production'' rather than create a new defined term for
``fabrication.'' These changes are intended to retain BIS's focus on
specific ``facilities'' (i.e., buildings) at locations that may
maintain multiple production lines at different production technology
nodes, not all of which may ``produce'' ``advanced-node integrated
circuits.'' However, the changes also allow more flexibility in
identifying relevant facilities where ``production'' may occur beyond a
fabrication facility, which some in industry interpreted narrowly to
encompass only a clean room or production floor. In contrast to the
term ``fabrication,'' the term ``production'' better captures
facilities where important late-stage product engineering or early-
stage manufacturing steps (among others) may occur, which aligns with
BIS's intended focus. In addition, because the controls still capture
``development'' activities that may occur at the same ``facility''
where ``production'' of ``advanced-integrated circuits'' occur, this
change also better captures ``development'' and product engineering
activities at research and development (R&D) fabrication ``facilities''
that may not engage in volume manufacturing of integrated circuits. On
the other hand, BIS also clarifies that a ``facility'' where only
``development'' activities occur would not fall within the scope of
controls, primarily because this could over-capture ``facilities''
engaged exclusively in design or other forms of ``development'' of
consumer items (e.g., smartphone ICs) that will be ``produced'' outside
of China or at approved ``facilities'' in China and therefore do not
necessarily warrant control. BIS welcomes comments on the implications
of these changes relative to the objectives and considerations stated
throughout this IFR.
To enhance readability and simplify the structure of the controls
under paragraphs (c)(2)(i) and (ii) (former paragraphs (c)(2)(i)
through (vi)), BIS has moved and clarified the criteria for three types
of ``advanced-node integrated circuits'' to a new definition in Sec.
772.1 of the EAR and has added a heading to each paragraph. The term
servicing in Sec. 744.6(c) is revised to add the term installation, so
it is clear that the prohibition under these two paragraphs on
servicing also extends to installing any item not subject to the EAR
that you know will be used in the ``development'' or ``production'' of
``advanced-node ICs'' or specified SME.
b. Revisions to former paragraphs (c)(2)(vii) through (ix) related
to certain SME not subject to the EAR.
Section 744.6(c)(2)(iii) is revised to remove references to ECCN
3B090 and associated software and technology to conform with the
removal of that ECCN from the CCL. See above for the description of the
removal of ECCN 3B090 and addition of items to ECCNs 3B001, 3B002, and
associated software and technology ECCNs, found in sections C.3, C.1,
and C.2, respectively. The country scope is changed from ``PRC and
Macau'' to ``either Macau or a destination specified in Country Group
D:5,'' which is explained in section C. Specifically, paragraph
(c)(2)(iii) of Sec. 744.6 is revised to add references to ECCN
3B001.a.4, c, d, f.1.b, k to p; 3B002.b and c; 3D001 (for 3B001.a.4, c,
d, f.1.b, k to p, 3B002.b and c); 3D002 (for 3B001 a.4, c, d, f.1.b, k
to p, 3B002.b and c); or 3E001 (for 3B001.a.4, c, d, f.1.b, k to p,
3B002.b and c).
c. Revisions related to paragraph (d) license exceptions and
exclusions.
Section 744.6(d) is amended by revising the heading from
``exceptions'' to ``exceptions and exclusions,'' as well as adding
headings to the paragraphs in (d) for easier readability and
navigation. This rule also moves the text of paragraph (d)(1) to the
introductory paragraph, where it continues to state that paragraphs
(b)(1) through (4) are not eligible for license exceptions. The
paragraph is also amended to indicate that no license exceptions are
available for Sec. 744.6(c)(2). The license exception that was
formerly in paragraph (d)(2) has been converted into an exclusion in
paragraph (d)(2). Paragraph (d)(1) is now reserved. In addition, this
rule differentiates between exclusions from the license requirements of
this section and license exceptions found in part 740 of the EAR.
Also consistent with revisions to related sections of Sec. 744.23,
BIS has added an exclusion under paragraph (d)(3) to limit the scope of
``production'' steps captured by paragraphs (c)(2)(i) and (ii). In line
with BIS's response in its Jan. 25, 2023 FAQ II.A1, this exclusion
excludes ``back-end'' production steps, such as assembly, test, or
packaging steps that do not alter the technology level of an integrated
circuit.
Additionally, this rule adds an exclusion that applies to
paragraphs (c)(2)(i) through (iii) of this section in paragraph (d)(4)
for natural ``U.S. persons'' employed or working on behalf of a company
headquartered in the United States or a destination specified in
Country Group A:5 or A:6 and not majority-owned by an entity that is
headquartered in Macau or a destination specified in Country Group D:5.
This exclusion is intended to ease the compliance burden and
corresponding disincentive to employ U.S. persons in activities for
which governments of closely allied destinations maintain or may
establish appropriate controls. This rule also adds a new Note to
paragraph (d)(4) to provide additional context on when activities of
``U.S. persons'' are excluded, including providing guidance on how
these criteria apply to ``U.S. persons'' working as freelancers for
companies headquartered in the United States or in a destination
specified in Country Group A:5 or A:6, on behalf of a company not
headquartered in the United States or in a destination
[[Page 73444]]
specified in Country Group A:5 or A:6, or some combination of these
scenarios.
Finally, this rule adds an exclusion that applies to paragraph
(c)(2)(iii) of this section in paragraph (d)(5) for servicing
(including installation) activities unless such activities occur at a
facility where ``production'' of ``advanced-node integrated circuits''
occurs. This will exclude servicing (including installation) of items
specified in the ECCNs listed by paragraph (c)(2)(iii), when in a
facility that does not produce ``advanced-node integrated circuits'' to
avoid restricting servicing (including installation) at legacy-node
facilities. This type of provision is included to ensure the controls
remain focused on transactions and activities of national security
concern.
d. Revisions related to paragraph (e) license review standards.
Section 744.6(e) is amended by revising paragraph (e)(3) to focus
on countries of concern and provide an additional exclusion for the
presumption of denial policy. BIS will review applications with a
presumption of denial when they include destinations in Macau and
destinations in Country Group D:5, except when there is a foreign-made
item available that is not subject to the EAR and has the same function
as an item subject to the EAR, which will be reviewed with a
presumption of approval. All other applications will be considered on a
case-by-case basis taking into account factors including technology
level, customers, and compliance plans.
11. Revisions of Sec. 744.23 ``Supercomputer,'' ``Advanced-Node
Integrated Circuits,'' and Semiconductor Manufacturing Equipment End
Use Controls
a. General Revisions and Context for These Changes.
BIS received comments from the public to simplify the format of
Sec. 744.23 by combining the product scope paragraphs with the end-use
scope paragraphs. BIS agrees and has done this. Here is a table to help
the public find the new locations of paragraphs within Sec. 744.23.
Sec. 744.23 ``Supercomputer,'' ``Advanced-Node Integrated Circuit,'' and Semiconductor Manufacturing Equipment
End-Use Controls
----------------------------------------------------------------------------------------------------------------
Topic Prior to this rule In this rule
----------------------------------------------------------------------------------------------------------------
``Supercomputer''................ (a)(1)(i) and (ii)............................. (a)(1)(i).
(a)(2)(i)...................................... (a)(1)(ii)(A).
(a)(2)(ii)..................................... (a)(1)(ii)(B).
``Advanced-node ICs''............ (a)(1)(iii) and (a)(2)(iii).................... (a)(2)(i).
(a)(1)(iv) and (a)(2)(iv)...................... (a)(2)(ii).
Reserved......................... N/A............................................ (a)(3).
Semiconductor Manufacturing (a)(1)(v) and (a)(2)(v)........................ (a)(4).
Equipment (SME).
Exclusions....................... None........................................... (a)(5).
Is informed by BIS............... (b)............................................ (b).
License Exceptions............... (c)............................................ (c).
License review standards......... (d)............................................ (d).
----------------------------------------------------------------------------------------------------------------
The introductory text of paragraph (a) in Sec. 744.23 is revised
to reference the new exclusions in paragraph (a)(5) that apply to the
license requirements of this section. Paragraphs (a)(1) and (2) are
combined under three topical paragraphs: (a)(1) ``supercomputers,''
(a)(2) ``advanced-node ICs,'' and (a)(4) SME. This rule adds a new
paragraph (a)(5) for an exclusion to the license requirements.
Paragraphs (b) and (d) have not been amended. The country scope is
changed from ``China and Macau'' to ``Macau or a destination specified
in Country Group D:5'' throughout this section for reasons explained in
section C of the preamble of this rule.
Paragraph (a)(2)(ii) (former paragraph (a)(1)(iv)) is also revised
to replace the words ``and classified'' with ``specified,'' so that the
public does not incorrectly conclude that one must formally submit a
classification request to have the item classified by BIS to make a
license requirement determination under this provision.
b. Revisions related to paragraphs (a)(2)(i) and (ii) (former
paragraphs (a)(2)(iii) and (iv)) regarding the ``development'' and
``production'' of ICs.
Consistent with revisions described above to Sec. 744.6, the
phrase ``that fabricates'' is replaced with ``where ``production'' . .
. occurs,'' and the phrase ``semiconductor fabrication'' is removed and
therefore no longer qualifies the term ``facility.'' BIS opted to
leverage the existing defined term ``production'' rather than create a
new defined term for ``fabrication.'' These changes are intended to
retain BIS's focus on specific ``facilities'' (i.e., buildings) at
locations that may maintain multiple production lines at different
production technology nodes, not all of which may ``produce''
``advanced-node integrated circuits.'' However, the changes also allow
more flexibility in identifying relevant facilities where
``production'' may occur beyond a fabrication facility. For example,
the term ``production'' better captures facilities where important
late-stage product engineering or early-stage manufacturing steps
(among others) may occur. In addition, because the controls still
capture ``development'' activities that may occur at the same
``facility'' where ``advanced-integrated circuits'' are ``produced,''
this change also better captures ``development'' and product
engineering activities at R&D fabrication ``facilities'' that may not
engage in volume manufacturing of integrated circuits. On the other
hand, BIS also clarifies that a ``facility'' where only ``development''
activities occur would not fall within the scope of controls, primarily
because this could over-capture ``facilities'' engaged exclusively in
``design'' or other forms of ``development'' of consumer items (e.g.,
smartphone ICs). BIS welcomes comments on the implications of these
changes relative to the objectives and considerations stated throughout
this IFR.
In addition, BIS has added an exclusion under paragraph (a)(5) to
limit the scope of ``production'' steps captured by paragraphs (a)(2)
(former paragraphs (a)(2)(iii) and (iv)). As relayed in BIS's Jan. 25,
2023, FAQ II.A.1, for purposes of Sec. 744.23(a)(2), the term
``production'' does not apply to back-end steps, such as assembly,
test, or packaging that do not alter the semiconductor technology
level. If there is a question at the time of export, reexport, or
transfer (in-country) about
[[Page 73445]]
whether a manufacturing stage is ``back-end'' or whether a back-end
activity ``alter[s] the semiconductor technology level,'' you may
submit an advisory opinion request to BIS pursuant to Sec. 748.3(c)
for clarification.
Further, to enhance readability and simplify the structure of the
controls under paragraphs (a)(2) (former paragraphs (a)(2)(iii) and
(iv)), BIS has moved and clarified the criteria for three types of
``advanced-node integrated circuits'' to a new definition in Sec.
772.1 of the EAR.
Paragraphs (a)(1) through (4) are revised to add paragraph headings
to make it easier for exporters, reexporters, and transferors to
identify the scope of each of these paragraphs.
c. Revisions related to paragraph (a)(4)(former paragraph
(a)(2)(v)) regarding the ``development'' or ``production'' of SME.
As noted above in response to public comments, BIS has narrowed the
product scope of Sec. 744.23(a)(4) to items subject to the EAR and
specified on the CCL in supplement no. 1 to part 774 of the EAR, and it
has narrowed the end-use scope of Sec. 744.23(a)(4) to `front-end
integrated circuit ``production'' equipment' and other items specified
in 3B ECCNs. The term `front-end integrated circuit ``production''
equipment' does not include equipment used exclusively in back-end
steps or other applications (e.g., outside of integrated circuit
``production'') that do not alter the integrated circuit technology
level. BIS welcomes comments on this revision, including identification
of any specific items that warrant exclusion from the product scope or
end use scope, e.g., because they are exclusively used in the
production of integrated circuits at legacy production technology
nodes.
In addition, BIS has revised the scope of paragraph (a)(4) to
exclude masks and other items specified in ECCNs 3B001.g, 3B001.h,
3B001.j, and 3B991.b.2. This exclusion will allow the export, reexport,
and transfer (in-country) of items subject to the EAR destined for use
in the ``development'' or ``production'' in either Macau and
destinations specified in Country Group D:5 of masks and reticles in
the specified ECCNs for fabricating ICs that are not ``advanced-node
integrated circuits.'' Any item subject to the EAR, including one
specified in these ECCNs, that is destined for use in the
``development'' or ``production'' in either Macau or destinations
specified in Country Group D:5 of ``advanced-node integrated
circuits,'' must still be assessed against the license requirements in
Sec. 744.23(a)(2).
ECCN 3B090 is also removed from the list of ECCNs in paragraph
(a)(4), because the equipment controlled in that ECCN has been moved to
ECCN 3B001, which is already listed in this paragraph.
d. Exclusion
BIS added an exclusion to Sec. 744.23(a)(5) to limit the scope of
``production'' steps captured by paragraphs (a)(2)(i) and (ii). In line
with BIS's response in its Jan. 25, 2023 FAQ II.A1, this exclusion
excludes back-end production steps, such as assembly, test, or
packaging steps that do not alter the technology level of an integrated
circuit.
e. License exception
As noted above, BIS has narrowed the product scope of Sec.
744.23(a)(4) (former Sec. 744.23(a)(2)(v)) to items subject to the EAR
and specified on the CCL. BIS considered adding license exception
availability for License Exceptions TSU, RPL, and TMP for updates and
repairs for SME equipment. However, we came to the conclusion that
there isn't a need for License Exceptions TSU for paragraphs (a)
(Operation technology and software) and (c) (Software updates) to allow
for updates of items that were legally exported, reexported, or
transferred (in-country) or License Exception TMP or RPL for repairs,
because paragraph (a)(4) only captures ``development'' and
``production'' of SME. However, we welcome comments providing differing
conclusions on this topic.
f. License review standards
There is a presumption of denial for Macau and destinations in
Country Group D:5 of supplement no. 1 to part 740, with two exceptions.
BIS is expanding the exception that could only be applied to one
paragraph (a)(2)(i) (former paragraph (a)(2)(iii)) for ``end users in
China or Macau that are headquartered in the United States or in a
Country Group A:5 or A:6 country'' by allowing the exception to be
applied to all paragraphs for end users in either Macau or a
destination in Country Group D:5 that are headquartered in the United
States or in a Country Group A:5 or A:6 country that are not majority-
owned by an entity headquartered in either Macau or a destination
specified in Country Group D:5. In addition, BIS is adding another
exception that may be applied to all the paragraphs when there is a
foreign-made item available that is not subject to the EAR and has the
same function as the item subject to the EAR. Applications that meet
either of these exceptions will be reviewed with a presumption of
approval.
12. Addition to Sec. 772.1 Definitions of Terms as Used in the EAR
Section 772.1 is revised to add a definition for the term ``extreme
ultraviolet'' (``EUV''). To specify that this term means
electromagnetic spectrum wavelengths greater than 5 nm and less than
124 nm. This rule adds this new defined term to Sec. 772.1 because the
term is used in ECCNs 3B001, 3B002 and 3D003.
Section 772.1 is also revised to add a definition for the term
``advanced-node integrated circuit.'' BIS added this definition to
simplify the regulatory text in several places in Sec. Sec. 744.6 and
744.23 that previously described the criteria for ``advanced'' ICs. As
noted above under section C.11, this definition also now includes notes
clarifying the meaning of ``production technology node'' for two types
of ``advanced-node integrated circuits.''
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 ECRA, 50 U.S.C. 4801-4852. ECRA, as amended, provides the
legal basis for BIS's principal authorities and serves as the authority
under which BIS issues this rule.
Rulemaking Requirements
1. Executive Orders 12866, 13563, and 14094 direct agencies to
assess all costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects and distributive impacts and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits and of reducing costs, harmonizing rules, and
promoting flexibility.
This interim final rule has been designated a ``significant
regulatory action'' under Executive Order 12866. This rule does not
contain policies with federalism implications as that term is defined
under Executive Order 13132.
2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) (PRA), unless that collection of information displays a currently
valid Office of Management and Budget (OMB) Control Number. Although
this rule makes important changes to the
[[Page 73446]]
EAR for items controlled for national security reasons, BIS believes
that the added exclusions and narrowing of scope on key paragraphs
outweigh the expansion in country scope, so that the overall burden
will decrease. Therefore, the burdens and costs associated with the
following information collections due to this rule are within the
approved burden estimates for the following:
0694-0088, ``Simplified Network Application Processing
System,'' which carries a burden- hour estimate of 29.6 minutes for a
manual or electronic submission. The burden associated with Supplement
no. 1 to part 736, General order 4, paragraph (d)(5) Temporary General
License burden for recordkeeping is accounted for under 0694-0088 and
is minimal due to the limited scope of those required to keep records
(11 companies). The recordkeeping does not go beyond that which the
exporter is already under obligation to keep pursuant to part 762
recordkeeping provisions of the EAR. There is a sunset clause on this
requirement effective August 1, 2024, when this provision will be
removed from the EAR.
0694-0137 ``License Exceptions and Exclusions,'' which
carries a burden-hour estimate average of 1.5 hours per submission
(Note: submissions for License Exceptions are rarely required);
0694-0096 ``Five Year Records Retention Period,'' which
carries a burden-hour estimate of less than 1 minute; and
0607-0152 ``Automated Export System (AES) Program,'' which
carries a burden-hour estimate of 3 minutes per electronic submission.
Additional information regarding these collections of information--
including all background materials--can be found at https://www.reginfo.gov/public/do/PRAMain and using the search function to
enter either the title of the collection or the OMB Control Number.
3. Pursuant to section 1762 of ECRA (50 U.S.C. 4821), this action
is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553)
requirements for notice of proposed rulemaking, opportunity for public
participation and delay in effective date. Although this rule is exempt
from public comments, BIS is seeking them anyway on a number of issues.
4. 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 Part 736
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 772
Exports.
15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 734, 736, 740, 742, 744, 772, and 774 of the
Export Administration Regulations (15 CFR parts 730-774) 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 8, 2022, 87 FR 68015 (November 10, 2022).
0
2. Section 734.4 is amended by adding paragraph (a)(3) to read as
follows:
Sec. 734.4 De minimis U.S. content.
(a) * * *
(3) There is no de minimis level for equipment meeting the
parameters in ECCN 3B001.f.1.b.2.b of the Commerce Control List in
supplement no. 1 to part 774 of the EAR, when the equipment is destined
for use in the ``development'' or ``production'' of ``advanced-node
integrated circuits'' and the ``advanced-node integrated circuits''
meet the parameter specified in paragraph (1) of that definition in
Sec. 772.1 of the EAR, unless the country from which the foreign-made
item was first exported \1\ has a commodity specified on an export
control list.
* * * * *
----------------
\1\ The Government of Japan added ArF-wet lithography equipment
and other advanced semiconductor manufacturing equipment to its
control list for all regions on July 23, 2023.
PART 736--GENERAL PROHIBITIONS
0
3. The authority citation for part 736 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3
CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp.,
p. 168; Notice of November 8, 2022, 87 FR 68015, 3 CFR, 2022 Comp.,
p. 563; Notice of May 8, 2023, 88 FR 30211 (May 10, 2023).
0
4. Supplement no. 1 to part 736 is amended by revising paragraph (d) to
read as follows:
Supplement No. 1 to Part 736--General Orders
* * * * *
(d) General Order No. 4: Exports, reexports, or transfers (in-
country) authorized under the Temporary General License (TGL)
specified under paragraph (d)(1) of this supplement must also comply
with the terms and conditions under paragraphs (d)(4) through (5) of
this supplement.
(1) TGL--Less restricted SME ``parts,'' ``components,'' or
``equipment.'' This TGL only overcomes the license requirements
described in Sec. 744.23(a)(4) of EAR when:
(i) Product scope. The items subject to the EAR that are
specified on the Commerce Control List (CCL) in supplement no. 1 to
part 774 of the EAR that are designated as controlled on the CCL
only for AT reasons; and
(ii) End-use scope. The recipient is ``developing'' or
``producing'' ``parts,'' ``components,'' or ``equipment'' (as
specified in Sec. 744.23(a)(4) of the EAR) at the direction of a
company that is headquartered in the United States or a destination
specified in Country Group A:5 or A:6 and not majority-owned by an
entity headquartered in either Macau or a destination specified in
Country Group D:5.
(2) [Reserved]
(3) Validity date. The TGL under paragraph (d)(1) of this
supplement expires on December 31, 2025.
(4) End-use and end-user restrictions.
(i) Restrictions related to part 744 of the EAR. The TGL under
paragraph (d)(1) of this supplement 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
[[Page 73447]]
of any other prohibited end use or end user (other than the Sec.
744.23 of the EAR provisions specified above in the TGL).
(ii) Indigenous production. The TGL under paragraph (d)(1) of
this supplement cannot be used for the indigenous ``development'' or
``production'' of Category 3B tools in either Macau or a destination
specified in Country Group D:5, i.e., where the ``part,''
``component,'' or ``equipment'' is ``developed'' or ``produced'' at
the direction of an entity that is headquartered in either Macau or
a destination specified in Country Group D:5.
(5) Recordkeeping requirement. All exports, reexports, transfer
(in-country), and exports from abroad shipped under the
authorization of this TGL are subject to the recordkeeping
requirements of part 762 of the EAR. The records subject to this
recordkeeping requirement include but are not limited to directives
to the parties that are eligible to use this TGL and a list of the
parties that have received directives. Each party that issues or
acts upon a directive is responsible for keeping a record of that
directive.
* * * * *
Supplement No. 1 to Part 736 [Amended]
0
5. Effective on January 1, 2026, supplement no. 1 to part 736 is
further amended by removing and reserving paragraph (d).
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. Section 740.2 is amended by revising paragraph (a)(9) to read as
follows:
Sec. 740.2 Restrictions on all License Exceptions.
(a)* * *
(9)(i) The item is controlled under ECCN 3B001.a.4, c, d, f.1.b, k
to p, 3B002.b or c, or associated software and technology in ECCN
3D001, 3D002, 3D003, or 3E001 and is being exported, reexported, or
transferred (in-country) to or within either Macau or a destination
specified in Country Group D:5 of supplement no. 1 to this part, and
the license exception is other than License Exception GOV, restricted
to eligibility under the provisions of Sec. 740.11(b).
(ii) The item is identified in paragraph (a)(9)(ii)(A) or (B) of
this section, is being exported, reexported, or transferred (in-
country) to or within Macau or a destination specified in Country
GroupD:5, and the license exception is other than: TMP, restricted to
eligibility under the provisions of Sec. 740.9(a)(6); RPL, under the
provisions of Sec. 740.10, including Sec. 740.10(a)(3)(v), which
prohibits exports and reexports of replacement parts to a destination
specified in Country Group E:1 (see supplement no. 1 to this part);
GOV, restricted to eligibility under the provisions of Sec. 740.11(b);
or TSU under the provisions of Sec. 740.13(a) and (c). Items
restricted to eligibility only for the foregoing license exceptions
are:
(A) Controlled under ECCNs 3A090, 4A090, or associated software and
technology in 3D001, 3E001, 4D090, and 4E001;
(B) 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.
* * * * *
PART 742--CONTROL POLICY--CCL BASED CONTROLS
0
8. 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 8, 2022, 87 FR 68015 (November 10,
2022).
0
9. Section 742.4 is amended by:
0
a. Revising paragraph (a);
0
b. Adding introductory text to paragraph (b);
0
c. Revising paragraphs (b)(1) and (2);
0
d. Removing and reserving paragraph (b)(3);
0
e. Revising paragraph (c); and
0
f. Adding paragraph (d).
The revisions and additions read as follows:
Sec. 742.4 National security.
(a) License requirements. It is the policy of the United States to
restrict the export and reexport of items that would make a significant
contribution to the military potential of any other destination or
combination of destinations that would prove detrimental to the
national security (NS) of the United States. Generally, items on the
Commerce Control List in supplement no. 1 to part 774 of the EAR that
have a reason for control of NS are those that are also listed on the
Wassenaar Arrangement's ``List of Dual-use Goods and Technologies,'' as
well as some items listed on the Wassenaar Arrangement's ``Munitions
List.'' ``600 series'' items and 9x515 items are also controlled for NS
reasons.
(1) National Security column 1 (NS:1). A license is required for
exports and reexports to all destinations, except Canada, for all items
in ECCNs on the CCL that include NS Column 1 in the Country Chart
column of the ``License Requirements'' section.
(2) National Security column 2 (NS:2). A license is required to all
destinations except those specified in Country Group A:1 (see
supplement no. 1 to part 740 of the EAR), for all items in ECCNs on the
CCL that include NS column 2 in the Commerce Country Chart column of
the ``License Requirements'' section except those cameras in ECCN
6A003.b.4.b that have a focal plane array with 111,000 or fewer
elements and a frame rate of 60 Hz or less.
(3) 6A003.b.4.b. A license is required to all destinations except
those specified in Country Group A:1 (see supplement no. 1 to part 740
of the EAR) for those cameras in ECCN 6A003.b.4.b that have a focal
plane array with 111,000 or fewer elements and a frame rate of 60 Hz or
less and for cameras being exported or reexported pursuant to an
authorization described in Sec. 742.6(a)(2)(iii) or (v). The purpose
of this control is to ensure that these items do not contribute to the
military potential of destinations specified in Country Group D:1 (see
supplement no. 1 to part 740 of the EAR) that would prove detrimental
to the national security of the United States.
(4) Certain semiconductor manufacturing equipment and associated
software and technology. A license is required for exports, reexports,
and transfers (in-country) to or within either Macau or a destination
specified in Country Group D:5 in supplement no. 1 to part 740 of the
EAR of items specified in 3B001.a.4, c, d, f.1.b, k to p; 3B002.b and
c; 3D001 (for 3B001.a.4, c, d, f.1.b, k to p, 3B002.b and c); 3D002
(for 3B001 a.4, c, d, f.1.b, k to p, 3B002.b and c); or 3E001 (for
3B001.a.4, c, d, f.1.b, k to p, 3B002.b and c). The license
requirements in this paragraph (a)(4) do not apply to deemed exports or
deemed reexports.
(b) Licensing policy. Each application is reviewed in light of
prevailing policies with full consideration of all aspects of the
proposed transaction. When the license application meets the criteria
of more than one licensing policy, then the most restrictive licensing
policy will be applied. The review generally includes: an analysis of
the kinds and quantities of items to be
[[Page 73448]]
shipped; their military or civilian uses; the unrestricted availability
abroad of the same or comparable items; the country of destination; the
ultimate end users in the country of destination; and the intended end
use.
(1)(i) Country Group D:1. The policy for national security-
controlled items exported or reexported to any destination except a
destination specified in Country Group D:1 (see supplement no. 1 to
part 740 of the EAR) is to approve applications unless there is a
significant risk that the items will be diverted to a destination
specified in Country Group D:1. Except for those countries described in
paragraphs (b)(5) through (7) and (9) of this section, the general
policy for exports and reexports of items to Country Group D:1 (see
supplement no. 1 to part 740 of the EAR) is to approve applications
when BIS determines, on a case-by-case basis, that the items are for
civilian use or would otherwise not make a significant contribution to
the military potential of the country of destination that would prove
detrimental to the national security of the United States.
(ii) 9x515 and ``600 series'' items. When destined to a country
listed in Country Group D:5 in supplement no. 1 to part 740 of the EAR,
however, items classified under 9x515 or ``600 series'' ECCNs will be
reviewed consistent with United States arms embargo policies in 22 CFR
126.1 (International Traffic in Arms Regulations (ITAR)). When destined
to the People's Republic of China or a country listed in Country Group
E:1 in supplement no. 1 to part 740 of the EAR, items classified under
any 9x515 ECCN will be subject to a policy of denial.
(2) License applications for items specified in paragraph (a)(4) of
this section will be reviewed consistent with license review policies
in Sec. 744.23(d) of the EAR, except applications will be reviewed on
a case-by-case basis if no license would be required under part 744 of
the EAR.
* * * * *
(c) Contract sanctity. Contract sanctity provisions are not
available for license applications reviewed under this section, except
for applications for items in paragraph (a)(4) of this section. For
paragraph (a)(4), contract sanctity provisions are available for
contracts signed before October 18, 2023.
(d) License exceptions. Certain license exceptions are available
only for national security items, such as License Exceptions GBS (see
Sec. 740.4 of the EAR) and TSR (see Sec. 740.6 of the EAR), but other
license exceptions may also be available for national security items,
such as License Exception STA (see Sec. 740.20 of the EAR) or license
exceptions based on the facts of the transaction, such as License
Exceptions TMP (see Sec. 740.9 of the EAR) or GOV (see Sec. 740.11 of
the EAR). See part 740 of the EAR for a full list of license exceptions
and Sec. 740.2 of the EAR for license exception restrictions that
apply to every license exception.
0
10. Section 742.6 is 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 advanced computing and
semiconductor manufacturing items--(i) Exports, reexports, transfers
(in-country) to or within either Macau or Country Group D:5. A license
is required for items specified in ECCNs 3A090, 3B001.a.4, c, d, f.1.b,
k to p, 3B002.b and c, 4A090, 5A992 (that meet or exceed the
performance parameters of ECCNs 3A090 or 4A090); and associated
software and technology in 3D001 (for 3A090, 3B001.a.4, c, d, f.1.b, k
to p, 3B002.b and c), 3D002 (for 3B001a.4, c, d, f.1.b, k to p, 3B002.b
and c), 3E001 (for 3A090, 3B001a.4, c, d, f.1.b, k to p, 3B002.b and
c), 4D090, and 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 either
Macau or a destination specified in Country Group D:5 in supplement no.
1 to part 740 of the EAR.
(ii) Exports from abroad originating in either China or Macau. A
license is also required for the export from abroad originating in
either China or Macau to any destination worldwide of 3E001 (for 3A090)
technology developed by an entity headquartered in either China or
Macau 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.
(iii) Deemed exports and reexports. The license requirements in
paragraphs (a)(6)(i) and (ii) of this section do not apply to deemed
exports or deemed reexports.
* * * * *
(b) * * *
(10) Advanced computing and semiconductor manufacturing items.
License applications for items specified in paragraph (a)(6) of this
section will be reviewed consistent with license review policies in
Sec. 744.23(d) of the EAR, except applications will be reviewed on a
case-by-case basis if no license would be required under part 744 of
the EAR.
* * * * *
PART 744--CONTROL POLICY: END-USER AND END-USE BASED
0
11. 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 8, 2022, 87 FR 68015, 3 CFR, 2022 Comp., p. 563; Notice
of September 7, 2023, 88 FR 62439 (September 11, 2023).
0
12. Section 744.6 is amended by revising paragraphs (c)(2), (d), and
(e)(3) to read as follows:
Sec. 744.6 Restrictions on specific activities of ``U.S. persons.''
* * * * *
(c) * * *
(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. Specifically, if you know your export, reexport, or transfer
(in-country) meets any of the specified activities described in
paragraphs (c)(2)(i) through (iii) of this section, then a license is
required for shipping, transmitting, or transferring (in-country);
facilitating the shipment, transmission, or transfer (in-country); or
servicing (including installation) activities associated with any item,
end use, or end user described in any of the following paragraphs:
(i) ``Development'' or ``production'' of ``advanced-node ICs.'' To
or within China or Macau, any item not subject to the EAR that you know
will be used in the ``development'' or ``production'' of integrated
circuits at a ``facility'' of an entity headquartered in either China
or Macau, where ``production'' of ``advanced-node integrated circuits''
occurs;
(ii) Category 3 items for ``development'' or ``production'' of
``advanced-node ICs.'' To or within China or Macau, any item not
subject to
[[Page 73449]]
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 a
``facility'' of an entity headquartered in either China or Macau where
``production'' of integrated circuits occurs, but you do not know
whether ``production'' of ``advanced-node integrated circuits'' occurs
at such ``facility''; or
(iii) Semiconductor manufacturing equipment. To or within either
Macau or a destination specified in Country Group D:5, any item not
subject to the EAR and meeting the parameters of ECCNs 3B001.a.4, c, d,
f.1.b, k to p; 3B002.b and c; 3D001 (for 3B001.a.4, c, d, f.1.b, k to
p, 3B002.b and c); 3D002 (for 3B001 a.4, c, d, f.1.b, k to p, 3B002.b
and c); or 3E001 (for 3B001.a.4, c, d, f.1.b, k to p, 3B002.b and c)
regardless of end use or end user.
(d) Exceptions and exclusions. No license exceptions apply to the
prohibitions described in paragraphs (b)(1) through (4) or paragraph
(c)(2) of this section.
(1) [Reserved]
(2) Exclusion to paragraphs (b)(5) and (c)(2)(iii) of this section.
Notwithstanding the prohibitions in paragraphs (b)(5) and (c)(2)(iii),
``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 paragraphs (b)(5) and
(c)(2)(iii), 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.
(3) Exclusion to paragraphs (c)(2)(i) and (ii) of this section. The
term ``production'' in paragraphs (c)(2)(i) and (ii) does not apply to
back-end steps such as assembly, test, or packaging that do not alter
the integrated circuit technology level. If there is a question at the
time of export, reexport, or transfer (in-country) about whether a
manufacturing stage is back-end or whether a manufacturing stage is
back-end or a back-end activity alters the technology level, you may
submit an advisory opinion request to BIS pursuant to Sec. 748.3(c) of
the EAR for clarification.
(4) Exclusion to paragraphs (c)(2)(i) through (iii) of this
section. (i) Paragraphs (c)(2)(i) through (iii) do not apply to a
natural ``U.S. person,'' as defined in paragraphs (a)(1) and (3) of the
definition in Sec. 772.1 of the EAR, employed or working on behalf of
a company headquartered in the United States or a destination specified
in Country Group A:5 or A:6 and not majority-owned by an entity that is
headquartered in either Macau or a destination specified in Country
Group D:5.
(ii) Any activities a natural ``U.S. person,'' as defined in
paragraphs (a)(1) and (3) of that term's definition in Sec. 772.1 of
the EAR, undertakes when employed or acting on behalf of a company not
headquartered in the United States or a destination specified in
Country Group A:5 or A:6 must comply with the requirements in this
paragraph (d)(4) as applicable. For example, if a natural ``U.S.
person'' is a freelancer who works or acts on behalf of a company
headquartered in the United States or a destination specified in
Country Group A:5 or A:6, those activities would not be prohibited
under paragraphs (c)(2)(i) through (iii) of this section. However, if
that same natural ``U.S. person'' was also working or acting on behalf
of a company headquartered somewhere other than the United States or a
destination specified in Country Group A:5 or A:6, the activities
performed on behalf of such a company would not be excluded under
paragraphs (c)(2)(i) through (iii) and a license would be required.
(5) Exclusion to paragraph (c)(2)(iii) of this section. Paragraph
(c)(2)(iii) does not apply to servicing (including installation)
activities unless at a ``facility'' where ``production'' of ``advanced-
node integrated circuits'' occurs, which would require a license under
paragraph (c)(2)(i) of this section.
* * * * *
(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 for Macau and destinations in
Country Group D:5, except activities involving a foreign-made item that
is not subject to the EAR and performs the same function as an item
subject to the EAR, which will be reviewed with a presumption of
approval. All other applications will be reviewed with a license review
policy of case-by-case and consider factors, such as technology level,
customers, and compliance plans.
0
12. Section 744.23 is revised to read as follows:
Sec. 744.23 ``Supercomputer,'' ``advanced-node integrated
circuits,'' and semiconductor manufacturing equipment end use controls.
(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
described in paragraphs (a)(1) through (4) of this section when you
have ``knowledge'' at the time of export, reexport, or transfer (in-
country) that the item is destined for a destination, end use, or type
of end user described in paragraphs (a)(1) through (4) of this section,
unless excluded by paragraph (a)(5) of this section.
(1) ``Supercomputers''--(i) Item scope. (A) An integrated circuit
(IC) subject to the EAR and specified in ECCN 3A001, 3A991, 4A994,
5A002, 5A004, or 5A992; or
(B) A computer, ``electronic assembly,'' or ``component'' subject
to the EAR and specified in ECCN 4A003, 4A004, 4A994, 5A002, 5A004, or
5A992.
(ii) Destination and end-use scope. (A) The ``development,''
``production,'' ``use,'' operation, installation (including on-site
installation), maintenance (checking), repair, overhaul, or
refurbishing of a ``supercomputer'' located in or destined to China or
Macau; or
(B) 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 China or Macau.
(2) ``Advanced-node ICs''--(i) Any item to ``production''
``facility'' of ``advanced-node ICs.'' Any items subject to the EAR
when you know the items will be used in the ``development'' or
``production'' of ICs at a ``facility'' located in China or Macau where
``production'' of ``advanced-node ICs'' occurs.
(ii) Category 3 items to ``facility'' where the technology node is
unknown. Any item subject to the EAR specified in an ECCN in Product
Groups B, C, D, or E in Category 3 of the CCL when you know the item
will be used in the
[[Page 73450]]
``development'' or ``production'' of ICs at a ``facility'' located in
China or Macau where ``production'' of integrated circuits occurs, but
you do not know whether ``production'' of ``advanced-node ICs'' occurs
at such ``facility.''
(3) [Reserved]
(4) Semiconductor manufacturing equipment (SME). Any item subject
to the EAR and specified on the CCL when destined to either Macau or a
destination specified in Country Group D:5 for the ``development'' or
``production'' of `front-end integrated circuit ``production''
equipment' and ``components,'' ``assemblies,'' and ``accessories''
therefor specified in ECCN 3B001 (except 3B001.g, .h, and .j), 3B002,
3B611, 3B991 (except 3B991.b.2), or 3B992.
Note 1 to paragraph (a)(4): Front-end integrated circuit
``production'' equipment includes equipment used in the production
stages from a blank wafer or substrate to a completed wafer or
substrate (i.e., the integrated circuits are processed but they are
still on the wafer or substrate). If there is a question at the time
of export, reexport, or transfer (in-country) about whether
equipment is used in front-end integrated circuit ``production,''
you may submit an advisory opinion request to BIS pursuant to Sec.
748.3(c) of the EAR for clarification.
(5) Back-end exclusion. For purposes of paragraph (a)(2) of this
section, the term ``production'' does not apply to back-end steps such
as assembly, test, or packaging that do not alter the integrated
circuit technology level. If there is a question at the time of export,
reexport, or transfer (in-country) about whether a manufacturing stage
is back-end or whether a back-end activity alters the technology level,
you may submit an Advisory Opinion request to BIS pursuant to Sec.
748.3(c) of the EAR for clarification.
(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 end uses specified
in paragraphs (a)(1) through (4) 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. Applications will be reviewed with a
presumption of denial for Macau and destinations specified in Country
Group D:5. However, there is a presumption of approval license review
policy when there is a foreign-made item available that is not subject
to the EAR and performs the same function as the item subject to the
EAR, and for end users headquartered in the United States or a
destination in Country Group A:5 or A:6, that are not majority-owned by
an entity headquartered in either Macau or a destination specified in
Country Group D:5. For all other applications, there is a case-by-case
license review policy. License review will take into account factors
including technology level, customers, and compliance plans. Contract
sanctity will be a factor in the review of all applications.
PART 772--DEFINITIONS OF TERMS
0
13. 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
14. Section 772.1 is amended by adding definitions for ``Advanced-Node
Integrated Circuits (Advanced-Node IC)'' and ``Extreme Ultraviolet
(EUV)'' in alphabetical order to read as follows:
Sec. 772.1 Definitions of terms as used in the Export Administration
Regulations (EAR).
* * * * *
Advanced-Node Integrated Circuits (Advanced-Node IC). For parts 734
and 744 of the EAR, advanced-node integrated circuits include
integrated circuits that meet any of the following criteria:
(1) Logic integrated circuits using a non-planar transistor
architecture or with a ``production'' `technology node' of 16/14
nanometers or less;
(2) NOT AND (NAND) memory integrated circuits with 128 layers or
more; or
(3) Dynamic random-access memory (DRAM) integrated circuits using a
``production'' `technology node' of 18 nanometer half-pitch or less.
Note 1 to definition of ``Advanced-Node Integrated Circuits'': For
the purposes of paragraphs (1) and (3) of this definition, the term
technology node refers to the Logic Industry ``Node Range'' figure
described in the International Roadmap for Devices and Systems, 2016
edition (``More Moore'' White Paper), available at https://irds.ieee.org/images/files/pdf/2016_MM.pdf).
Technical Note to definition of ``Advanced-Node Integrated
Circuits'': For the purposes of paragraph (3) of this definition, the
calculation methodology to be used in determining whether a DRAM
integrated circuit uses a production technology node of 18 nanometer
half-pitch or less is the calculated half-pitch method developed,
adopted, and used by the Institute of Electrical and Electronics
Engineers (IEEE) and published in the International Roadmap for Devices
and Systems (IRDS), as follows:
[GRAPHIC] [TIFF OMITTED] TR25OC23.000
Cell size factor is 8, 6 or 4 depending on the DRAM architectures. Cell
area is defined as Wordline*Bitline (which takes into consideration
both transistor and capacitor dimensions)
* * * * *
Extreme Ultraviolet (EUV). Extreme Ultraviolet (EUV) means
electromagnetic spectrum wavelengths greater than 5 nm and less than
124 nm.
* * * * *
[[Page 73451]]
PART 774--THE COMMERCE CONTROL LIST
0
15. 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
16. Supplement no. 1 to part 774 is amended by:
0
a. Revising ECCNs 3B001 and 3B002;
0
b. Removing ECCN 3B090; and
0
c. Revising ECCNs 3D001, 3D002, 3D003, and 3E001.
The revisions read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
3B001 Equipment for the manufacturing of semiconductor devices,
materials, or related equipment, as follows (see List of Items
Controlled) and ``specially designed'' ``components'' and
``accessories'' therefor.
License Requirements
Reason for Control: NS, RS, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to 3B001.a.1 to a.3, b, e, NS Column 2.
f.1.a, f.2 to f.4, g to j.
NS applies to 3B001.a.4, c, d, f.1.b, k to To or within Macau or a
p. destination specified in
Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.4(a)(4) of the EAR.
RS applies to 3B001.a.4, c, d, f.1.b, k to To or within Macau or a
p. destination specified in
Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.6(a)(6) of the EAR.
AT applies to entire entry................ AT Column 1.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $500, except semiconductor manufacturing equipment specified in
3B001.a.4, c, d, f.1.b, k to p.
GBS: Yes, except a.3 (molecular beam epitaxial growth equipment
using gas sources), .e (automatic loading multi-chamber central
wafer handling systems only if connected to equipment controlled by
3B001.a.3, or .f), and .f (lithography equipment).
List of Items Controlled
Related Controls: See also 3B991
Related Definitions: N/A
Items:
a. Equipment designed for epitaxial growth as follows:
a.1. Equipment designed or modified to produce a layer of any
material other than silicon with a thickness uniform to less than
2.5% across a distance of 75 mm or more;
Note: 3B001.a.1 includes atomic layer epitaxy (ALE) equipment.
a.2. Metal Organic Chemical Vapor Deposition (MOCVD) reactors
designed for compound semiconductor epitaxial growth of material
having two or more of the following elements: aluminum, gallium,
indium, arsenic, phosphorus, antimony, or nitrogen;
a.3. Molecular beam epitaxial growth equipment using gas or
solid sources;
a.4. Equipment designed for silicon (Si), carbon doped silicon,
silicon germanium (SiGe), or carbon doped SiGe epitaxial growth, and
having all of the following:
a.4.a. Multiple chambers and maintaining high vacuum (equal to
or less than 0.01 Pa) or inert environment (water and oxygen partial
pressure less than 0.01 Pa) between process steps;
a.4.b. At least one preclean chamber designed to provide a
surface preparation means to clean the surface of the wafer; and
a.4.c. An epitaxial deposition operating temperature of 685
[deg]C or below;
b. Semiconductor wafer fabrication equipment designed for ion
implantation and having any of the following:
b.1. [Reserved]
b.2. Being designed and optimized to operate at a beam energy of
20 keV or more and a beam current of 10 mA or more for hydrogen,
deuterium, or helium implant;
b.3. Direct write capability;
b.4. A beam energy of 65 keV or more and a beam current of 45 mA
or more for high energy oxygen implant into a heated semiconductor
material ``substrate''; or
b.5. Being designed and optimized to operate at beam energy of
20 keV or more and a beam current of 10mA or more for silicon
implant into a semiconductor material ``substrate'' heated to 600
[deg]C or greater;
c. Etch equipment.
c.1. Equipment designed for dry etching as follows:
c.1.a. Equipment designed or modified for isotropic dry etching,
having a largest `silicon germanium-to-silicon (SiGe:Si) etch
selectivity' of greater than or equal to 100:1; or
c.1.b. Equipment designed or modified for anisotropic etching of
dielectric materials and enabling the fabrication of high aspect
ratio features with aspect ratio greater than 30:1 and a lateral
dimension on the top surface of less than 100 nm, and having all of
the following:
c.1.b.1. Radio Frequency (RF) power source(s) with at least one
pulsed RF output; and
c.1.b.2. One or more fast gas switching valve(s) with switching
time less than 300 milliseconds; or
c.1.c. Equipment designed or modified for anisotropic dry
etching, having all of the following;
c.1.c.1. Radio Frequency (RF) power source(s) with at least one
pulsed RF output;
c.1.c.2. One or more fast gas switching valve(s) with switching
time less than 300 milliseconds; and
c.1.c.3. Electrostatic chuck with twenty or more individually
controllable variable temperature elements;
c.2. Equipment designed for wet chemical processing and having a
largest `silicon germanium-to-silicon (SiGe:Si) etch selectivity' of
greater than or equal to 100:1;
Note 1: 3B001.c includes etching by `radicals', ions, sequential
reactions, or non-sequential reaction.
Note 2: 3B001.c.1.c includes etching using RF pulse excited
plasma, pulsed duty cycle excited plasma, pulsed voltage on
electrodes modified plasma, cyclic injection and purging of gases
combined with a plasma, plasma atomic layer etching, or plasma
quasi-atomic layer etching.
Technical Notes:
1. For the purposes of 3B001.c, `silicon germanium-to-silicon
(SiGe:Si) etch selectivity' is measured for a Ge concentration of
greater than or equal to 30% (Si0.70Ge0.30).
2. For the purposes of 3B001.c Note 1 and 3B001.d.14, `radical'
is defined as an atom, molecule, or ion that has an unpaired
electron in an open electron shell configuration.
d. Semiconductor manufacturing deposition equipment, as follows:
d.1. Equipment designed for cobalt (Co) electroplating or cobalt
electroless-plating deposition processes;
Note: 3B001.d.1 controls semiconductor wafer processing
equipment.
d.2. Equipment designed for:
d.2.a. Chemical vapor deposition of cobalt (Co) fill metal; or
d.2.b. Selective bottom-up chemical vapor deposition of tungsten
(W) fill metal;
d.3. Equipment designed to fabricate a metal contact by
multistep processing within a single chamber by performing all of
the following:
d.3.a. Deposition of a tungsten layer, using an organometallic
compound, while maintaining the wafer substrate temperature greater
than 100 [deg]C and less than 500 [deg]C; and
d.3.b. A plasma process using hydrogen (H2),
including hydrogen and nitrogen (H2 + N2) or
ammonia (NH3);
d.4. Equipment or systems designed for multistep processing in
multiple chambers or stations and maintaining high vacuum (equal to
or less than 0.01 Pa) or inert environment between process steps, as
follows:
d.4.a. Equipment designed to fabricate a metal contact by
performing the following processes:
d.4.a.1. Surface treatment plasma process using hydrogen
(H2), including hydrogen and nitrogen (H2 +
N2) or ammonia (NH3), while maintaining the
wafer substrate at a temperature greater than 100 [deg]C and less
than 500 [deg]C;
d.4.a.2. Surface treatment plasma process using oxygen
(O2) or ozone (O3), while maintaining the
wafer substrate at a
[[Page 73452]]
temperature greater than 40 [deg]C and less than 500 [deg]C; and
d.4.a.3. Deposition of a tungsten layer while maintaining the
wafer substrate temperature greater than 100 [deg]C and less than
500 [deg]C;
d.4.b. Equipment designed to fabricate a metal contact by
performing the following processes:
d.4.b.1 Surface treatment process using a remote plasma
generator and an ion filter; and
d.4.b.2. Deposition of a cobalt (Co) layer selectively onto
copper (Cu) using an organometallic compound;
Note: This control does not apply to equipment that is non-
selective.
d.4.c. Equipment designed to fabricate a metal contact by
performing all the following processes:
d.4.c.1. Deposition of a titanium nitride (TiN) or tungsten
carbide (WC) layer, using an organometallic compound, while
maintaining the wafer substrate at a temperature greater than 20
[deg]C and less than 500 [deg]C;
d.4.c.2. Deposition of a cobalt (Co) layer using a physical
sputter deposition technique and having a process pressure greater
than 133.3 mPa and less than 13.33 Pa, while maintaining the wafer
substrate at a temperature below 500 [deg]C; and
d.4.c.3. Deposition of a cobalt (Co) layer using an
organometallic compound and having a process pressure greater than
133.3 Pa and less than 13.33 kPa, while maintaining the wafer
substrate at a temperature greater than 20 [deg]C and less than 500
[deg]C;
d.4.d. Equipment designed to fabricate copper (Cu) interconnects
by performing all of the following processes:
d.4.d.1. Deposition of a cobalt (Co) or ruthenium (Ru) layer
using an organometallic compound and having a process pressure
greater than 133.3 Pa and less than 13.33 kPa, while maintaining the
wafer substrate at a temperature greater than 20 [deg]C and less
than 500 [deg]C; and
d.4.d.2. Deposition of a copper layer using a physical vapor
deposition technique and having a process pressure greater than
133.3 mPa and less than 13.33 kPa, while maintaining the wafer
substrate at a temperature below 500 [deg]C;
d.5. Equipment designed for plasma enhanced chemical vapor
deposition of carbon hard masks more than 100 nm thick and with
stress less than 450 Mpa;
d.6. Atomic Layer Deposition (ALD) equipment designed for area
selective deposition of a barrier or liner using an organometallic
compound;
Note: 3B001.d.6 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.
d.7. Equipment designed for Atomic Layer Deposition (ALD) of
tungsten (W) to fill an entire interconnect or in a channel less
than 40 nm wide, while maintaining the wafer substrate at a
temperature less than 500 [deg]C.
d.8 Equipment designed for Atomic Layer Deposition (ALD) of
`work function metal' having all of the following:
d.8.a. More than one metal source of which one is designed for
an aluminum (Al) precursor;
d.8.b. Precursor vessel designed and enabled to operate at a
temperature greater than 30 [deg]C; and
d.8.c. Designed for depositing a `work function metal' having
all of the following:
d.8.c.1. Deposition of titanium-aluminum carbide (TiAlC); and
d.8.c.2. Enabling a work function greater than 4.0eV;
Technical Note: For the purposes of 3B001.d.8, `work function
metal' is a material that controls the threshold voltage of a
transistor.
d.9. Spatial Atomic Layer Deposition (ALD) equipment having a
wafer support platform that rotates around an axis having any of the
following:
d.9.a. A spatial plasma enhanced atomic layer deposition mode of
operation;
d.9.b. A plasma source; or
d.9.c. A plasma shield or means to confine the plasma to the
plasma exposure process region;
d.10. Equipment designed for Atomic Layer Deposition (ALD) or
Chemical Vapor Deposition (CVD) of plasma enhanced of low fluorine
tungsten (FW) (fluorine (F) concentration less than 10\19\ atoms/
cm\3\) films;
d.11. Equipment designed to deposit a metal layer, in a vacuum
(equal to or less than 0.01 Pa) or inert gas environment, and having
all of the following:
d.11.a. A Chemical Vapor Deposition (CVD) or cyclic deposition
process for depositing a tungsten nitride (WN) layer, while
maintaining the wafer substrate at a temperature greater than 20
[deg]C and less than 500 [deg]C; and
d.11.b. A Chemical Vapor Deposition (CVD) or cyclic deposition
process for depositing a tungsten (W) layer having a process
pressure greater than 133.3 Pa and less than 53.33 kPa, while
maintaining the wafer substrate at a temperature greater than 20
[deg]C and less than 500 [deg]C.
d.12. Equipment designed for depositing a metal layer, in a
vacuum (equal to or less than 0.01 Pa) or inert gas environment, and
having any of the following:
d.12.a. Selective tungsten (W) growth without a barrier; or
d.12.b. Selective molybdenum (Mo) growth without a barrier;
d.13. Equipment designed for depositing a ruthenium layer (Ru)
using an organometallic compound, while maintaining the wafer
substrate at a temperature greater than 20 [deg]C and less than 500
[deg]C;
d.14. Equipment designed for deposition assisted by remotely
generated `radicals', enabling the fabrication of a silicon (Si) and
carbon (C) containing film, and having all of the following
properties of the deposited film:
d.14.a. A dielectric constant (k) of less than 5.3;
d.14.b. An aspect ratio greater than 5:1 in features with
lateral openings of less than 70 nm; and
d.14.c. A feature-to-feature pitch of less than 100 nm;
d.15. Equipment designed for void free plasma enhanced
deposition of a low-k dielectric layer in gaps between metal lines
less than 25 nm and having an aspect ratio greater than or equal to
1:1 with a less than 3.3 dielectric constant;
d.16. Equipment designed for deposition of a film, containing
silicon and carbon, and having a dielectric constant (k) of less
than 5.3, into lateral openings having widths of less than 70 nm and
aspect ratios greater than 5:1 (depth: width) and a feature-to-
feature pitch of less than 100 nm, while maintaining the wafer
substrate at a temperature greater than 400 [deg]C and less than 650
[deg]C, and having all of the following:
d.16.a. Boat designed to hold multiple vertically stacked
wafers;
d.16.b. Two or more vertical injectors; and
d.16.c. A silicon source and propene are introduced to a
different injector than a nitrogen source or an oxygen source;
e. Automatic loading multi-chamber central wafer handling
systems having all of the following:
e.1. Interfaces for wafer input and output, to which more than
two functionally different `semiconductor process tools' controlled
by 3B001.a.1, 3B001.a.2, 3B001.a.3 or 3B001.b are designed to be
connected; and
e.2. Designed to form an integrated system in a vacuum
environment for `sequential multiple wafer processing';
Note: 3B001.e does not control automatic robotic wafer handling
systems ``specially designed'' for parallel wafer processing.
Technical Notes:
1. For the purposes of 3B001.e, `semiconductor process tools'
refers to modular tools that provide physical processes for
semiconductor production that are functionally different, such as
deposition, implant or thermal processing.
2. For the purposes of 3B001.e, `sequential multiple wafer
processing' means the capability to process each wafer in different
`semiconductor process tools', such as by transferring each wafer
from one tool to a second tool and on to a third tool with the
automatic loading multi-chamber central wafer handling systems.
f. Lithography equipment as follows:
f.1. Align and expose step and repeat (direct step on wafer) or
step and scan (scanner) equipment for wafer processing using photo-
optical or X-ray methods and having any of the following:
f.1.a. A light source wavelength shorter than 193 nm; or
f.1.b. A light source wavelength equal to or longer than 193 nm
and having all of the following:
f.1.b.1. The capability to produce a pattern with a ``Minimum
Resolvable Feature size'' (MRF) of 45 nm or less; and
f.1.b.2. Having any of the following:
f.1.b.2.a. A maximum `dedicated chuck overlay' value of less
than or equal to 1.50 nm; or
f.1.b.2.b. A maximum `dedicated chuck overlay' value greater
than 1.50 nm but less than or equal to 2.4 nm;
Technical Notes: For the purposes of 3B001.f.1.b:
1. The `Minimum Resolvable Feature size' (MRF), i.e.,resolution,
is calculated by the following formula:
[[Page 73453]]
(an exposure light source wavelength
in nm) x (K factor)
--------------------------------------
MRF --------------------
maximum numerical aperture
where, for the purposes of 3.B.1.f.1.b, the K factor = 0.25 `MRF' is
also known as resolution.
2. `Dedicated chuck overlay' is the alignment accuracy of a new
pattern to an existing pattern printed on a wafer by the same
lithographic system. `Dedicated chuck overlay' is also known as
single machine overlay.
f.2. Imprint lithography equipment capable of production
features of 45 nm or less;
Note: 3B001.f.2 includes:
--Micro contact printing tools
--Hot embossing tools
--Nano-imprint lithography tools
--Step and flash imprint lithography (S-FIL) tools
f.3. Equipment ``specially designed'' for mask making having all
of the following:
f.3.a. A deflected focused electron beam, ion beam or ``laser''
beam; and
f.3.b. Having any of the following:
f.3.b.1. A Full-Width Half-Maximum (FWHM) spot size smaller than
65 nm and an image placement less than 17 nm (mean + 3 sigma); or
f.3.b.2. [Reserved]
f.3.b.3. A second-layer overlay error of less than 23 nm (mean +
3 sigma) on the mask;
f.4. Equipment designed for device processing using direct
writing methods, having all of the following:
f.4.a. A deflected focused electron beam; and
f.4.b. Having any of the following:
f.4.b.1. A minimum beam size equal to or smaller than 15 nm; or
f.4.b.2. An overlay error less than 27 nm (mean + 3 sigma);
g. Masks and reticles, designed for integrated circuits
controlled by 3A001;
h. Multi-layer masks with a phase shift layer not specified by
3B001.g and designed to be used by lithography equipment having a
light source wavelength less than 245 nm;
Note: 3B001.h. does not control multi-layer masks with a phase
shift layer designed for the fabrication of memory devices not
controlled by 3A001.
N.B.: For masks and reticles, ``specially designed'' for optical
sensors, see 6B002.
i. Imprint lithography templates designed for integrated
circuits by 3A001;
j. Mask ``substrate blanks'' with multilayer reflector structure
consisting of molybdenum and silicon, and having all of the
following:
j.1. ``Specially designed'' for ``Extreme Ultraviolet''
(``EUV'') lithography; and
j.2. Compliant with SEMI Standard P37;
k. Equipment designed for ion beam deposition or physical vapor
deposition of a multi-layer reflector for ``EUV'' masks;
l. ``EUV'' pellicles;
m. Equipment for manufacturing ``EUV'' pellicles;
n. Equipment designed for coating, depositing, baking, or
developing photoresist formulated for ``EUV'' lithography;
o. Annealing equipment, operating in a vacuum (equal to or less
than 0.01 Pa) environment, performing any of the following:
o.1. Reflow of copper (Cu) to minimize or eliminate voids or
seams in copper (Cu) metal interconnects; or
o.2. Reflow of cobalt (Co) tungsten (W) fill metal to minimize
or eliminate voids or seams;
p. Removal and cleaning equipment as follows:
p.1. Equipment designed for removing polymeric residue and
copper oxide (CuO) film and enabling deposition of copper (Cu) metal
in a vacuum (equal to or less than 0.01 Pa) environment;
p.2. Single wafer wet cleaning equipment with surface
modification drying; or
p.3. Equipment designed for dry surface oxide removal preclean
or dry surface decontamination.
Note to 3B001.p.1 and p.3: These controls do not apply to
deposition equipment.
3B002 Test or inspection equipment ``specially designed'' for
testing or inspecting finished or unfinished semiconductor devices
as follows (see List of Items Controlled) and ``specially designed''
``components'' and ``accessories'' therefor.
License Requirements
Reason for Control: NS, RS, AT
Country chart (see supp. No.
Control(s) 1 to part 738)
NS applies to 3B002.a..................... NS Column 2.
NS applies to 3B002.b and c............... To or within Macau or a
destination specified in
Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.4(a)(4) of the EAR.
RS applies to 3B002.b and c............... To or within Macau or a
destination specified in
Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.6(a)(6) of the EAR.
AT applies to entire entry................ AT Column 1.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
LVS: $500, except semiconductor manufacturing equipment specified in
3B002.b and c.
GBS: Yes
List of Items Controlled
Related Controls: See also 3A999.a and 3B992
Related Definitions: N/A
Items:
a. For testing S-parameters of items specified by 3A001.b.3;
b. For testing microwave integrated circuits controlled by
3A001.b.2;
c. Inspection equipment designed for ``EUV'' mask blanks or
``EUV'' patterned masks.
* * * * *
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 (except 3B001.a.4, c, d, f.1.b, k
to p, 3B002.b and c).
NS applies to ``software'' for commodities To or within Macau or a
controlled by 3B001.a.4, c, d, f.1.b, k destination specified in
to p, 3B002.b and c. Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.4(a)(4) of the EAR.
RS applies to ``software'' for commodities To or within Macau or a
controlled by 3B001.a.4, c, d, f.1.b, k destination specified in
to p, 3B002.b and c. Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.6(a)(6) of the EAR.
RS applies to ``software'' for commodities China and Macau See Sec.
controlled by 3A090. 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 N/A for RS and 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 specified in Country Group A:6 (See
Supplement No.1 to part 740 of the EAR).
[[Page 73454]]
List of Items Controlled
Related Controls: N/A
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
3D002 ``Software'' ``specially designed'' for the ``use'' of
equipment controlled by 3B001.a to .f and .k to .p, or 3B002.
License Requirements
Reason for Control: NS, RS, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry, except NS Column 1.
``software'' for 3B001.a.4 c, d, f.1.b, k
to p, 3B002.b and c.
NS applies to ``software'' for 3B001.a.4, To or within Macau or a
c, d, f.1.b, k to p, 3B002.b and c. destination specified in
Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.4(a)(4) of the EAR.
RS applies to ``software'' for 3B001.a.4, To or within Macau or a
c, d, f.1.b, k to p, 3B002.b and c. destination specified in
Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.6(a)(6) of the EAR.
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)
TSR: Yes, except N/A for RS.
List of Items Controlled
Related Controls: Also see 3D991.
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
3D003 `Computational lithography' ``software'' ``specially
designed'' for the ``development'' of patterns on ``EUV''-
lithography masks or reticles.
License Requirements
Reason for Control: NS, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry................ NS Column 1.
AT applies to entire entry................ AT Column 1.
List Based License Exceptions (See Part 740 for a Description of All
License Exceptions)
TSR: Yes
List of Items Controlled
Related Controls: N/A
Related Definitions: For the purposes of 3D003, `computational
lithography' is the use of computer modelling to predict, correct,
optimize and verify imaging performance of the lithography process
over a range of patterns, processes, and system conditions.
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 (except 3B001.a.4, c, d,
f.1.b, k to p), 3B002 (except 3B002.b and
c), or 3C001 to 3C006.
NS applies to ``technology'' for To or within Macau or a
3B001.a.4, c, d, f.1.b, k to p, 3B002.b destination specified in
and c. Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.4(a)(4) of the EAR.
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 and Macau (See Sec.
commodities controlled by 3A090. 742.6(a)(6)).
RS applies to ``technology'' for Worldwide (See Sec.
commodities controlled by 3A090, when 742.6(a)(6)).
exported from China or Macau.
RS applies to ``technology'' for To or within Macau or a
commodities controlled by 3B001.a.4, c, destination specified in
d, f.1.b, k to p, 3B002.b and c. Country Group D:5 of
supplement no. 1 to part
740 of the EAR. See Sec.
742.6(a)(6) of the EAR.
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, NP, and RS, 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'' 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 specified 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 specified in Country
Group A:5 or A:6 (See Supplement No. 1 to part 740 of the EAR).
[[Page 73455]]
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 [mu]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 or 3A090.
Technical Note: For the purposes of 3E001 Note 3, 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').
* * * * *
Thea D. Rozman Kendler,
Assistant Secretary for Export Administration.
[FR Doc. 2023-23049 Filed 10-18-23; 8:45 am]
BILLING CODE 3510-33-P