73424 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

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. 

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: 

RPD2@bis.doc.gov, please include ‘‘RIN: 

0694–AJ23’’ in the subject line. 

• For technical questions, contact 

Carlos Monroy at 202–482–3246 or 

Carlos.Monroy@bis.doc.gov. 

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 advancednode 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). 


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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 armsembargoed 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 advancednode 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 MilitaryCivil 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 longterm detriment of U.S.-based companies 

and their technological leadership 

within the semiconductor industry. 

Accordingly, commenters argue the 


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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 welldocumented 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 § 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 

§§ 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 


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‘‘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 electrolessplating 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 bottomup 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 

§ 744.23(a)(4) (Former § 744.23(a)(1)(v) 

and (a)(2)(v)) 

The following is a summary of public 

comments regarding § 744.23 and BIS’s 

responses thereto. Additional 

discussion about § 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 

§ 744.23(a)(2)(v) of the October 7 IFR 

(and now in § 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 § 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 § 744.23(a)(2)(v) of the 

October 7 IFR (and now in 

§ 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. 


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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 § 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 

§ 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 (incountry) 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 § 744.23(a)(4) 

(former § 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 

§ 744.23(a)(4). Also, BIS clarifies in this 

rule that the product scope of 

§ 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 § 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 § 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 

§ 744.23(a)(4) (former § 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, § 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 § 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 

§ 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 

§ 744.23), these items similarly fall 

outside the scope of § 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 § 748.3(c) for clarification. 

Topic 19: A commenter noted that the 

semiconductor end-use control in 

§ 744.23(a)(4) (former § 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 § 744.23(a)(4) (former 

§ 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 § 744.23(a)(4). Consistent with 

its response to Topic 43, BIS notes that 

an export, reexport, or transfer (incountry) 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 § 744.23(a)(4) and would need to be 

analyzed separately under other end-use 

controls, particularly § 744.23(a)(2). 

Topic 20: A commenter requested that 

BIS limit the scope of § 744.23(a)(4) 

(former § 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 


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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 § 744.23(a)(4) 

(former § 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 § 744.23(a)(4) (former 

§ 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 

§ 744.23 or § 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 § 744.23 or ‘‘U.S. person’’ 

controls under § 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 

§ 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 § 744.23(a)(4) (former 

§ 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 § 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 

§ 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,’’ 

§ 744.23(a)(2) does not apply. 

Furthermore, § 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, 


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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 § 744.23(a)(4) 

(former § 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 ‘frontend integrated circuit ‘‘production’’ 

equipment,’ and items on the CCL 

therefor, is critical for the effectiveness 

of the end-use controls in § 744.23(a)(2). 

BIS welcomes additional comments on 

the scope of § 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 

§ 744.23(a)(4) (former § 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 § 744.23(a)(4). 

However, BIS notes that end-use control 

§ 744.23(a)(2) could still capture a mask, 

reticle, or mask substrate excluded from 

§ 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’’ ‘‘advancednode 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 § 744.23(a)(4) 

(former § 744.23(a)(2)(v)). This 

commenter seeks BIS’s confirmation 

that no license would be required for 

exports, reexports, or transfers (incountry) 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 § 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 enduse scope of § 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 

§ 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 §§ 744.23(a)(1) and (2) 

(former § 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 postproduction 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 postproduction 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 § 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-advancedcomputing-and-semiconductormanufacturing-equipment-rule/file, 

posted on January 25, 2023, this SME 

IFR adds a new paragraph (a)(5) (Backend exclusion) to § 744.23 and specifies 

under this paragraph that for purposes 

of § 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 § 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 §§ 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 onsite 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 § 734.9(e), 

§ 744.6(c)(2), or § 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 

§ 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 § 744.23(a)(5). 

Topic 31: A commenter requested that 

BIS exclude certain items from 

§ 744.23(a)(4) (former § 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 


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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 § 744.23(a)(5) should 

also apply to § 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 §§ 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 § 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 §§ 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 §§ 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 § 772.1. This 

definition specifies the calculation 

methodology for determining whether a 

DRAM IC uses a ‘‘production 

technology node of 18 nanometer halfpitch 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 § 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 frontend 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 enduse scope in paragraphs § 744.23(a)(2) or 

§ 744.6(c)(2)(i) and (ii), because this type 

of test equipment qualifies for the backend exclusion under paragraph 

§ 744.23(a)(5) and the exclusion in 

§ 744.6(d)(3). 

SME End-Use Controls and Their 

Relationship to Nodes of Concern 

Topic 35: A commenter noted that 

§ 744.23(a)(4) (former § 744.23(a)(2)(v)) 

overreaches because it is not tied to the 

end use of concern. This commenter 

noted that because § 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 § 744.23(a)(2). 

BIS response: BIS has narrowed both 

the product scope and end use scope of 

§ 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, § 744.23(a)(4) restricts 

the ‘‘development’’ and ‘‘production’’ of 

items, including node-agnostic frontend 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 § 744.23(a)(4) (former 

§ 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 § 744.23(a)(4) on 

exports of 3B991 items to China or 

Macau to items capable of use in higherend 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 


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73432 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

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 § 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 

§ 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 § 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 

§ 744.21, but after BIS developed 

outreach materials, including FAQs for 

the application of § 744.21, these trends 

were reduced considerably. BIS 

anticipates that the addition of § 744.23 

and the expanded U.S. person control 

under § 744.6 will follow a similar 

pattern. 

Narrow the Scope of § 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 

§ 744.23 and the ‘‘U.S. persons’’ control 

under § 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 § 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 § 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 § 744.23(a)(4) (former 

§ 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 § 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 § 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 § 744.23(a)(4) (former 

§ 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 enditem equipment. 

BIS response: BIS does not believe 

this result is inconsistent with the 

policy objectives of the October 7 IFR. 

The purpose of § 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, 


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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 73433 

particularly § 744.23(a)(2). This 

objective is not affected by the export, 

reexport, or transfer (in-country) of ATcontrolled equipment that is already 

developed or produced, assuming the 

equipment is not destined for a 

prohibited end use (e.g., those 

enumerated in § 744.23(a)(1) and (2)). 

Topic 43: A commenter stated that 

§ 744.23(a)(4) (former § 744.23(a)(2)(v)) 

does not include ‘‘incorporation’’ of 

EAR99 items into Category 3B items. 

This commenter notes that the wording 

in § 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 § 744.23(a)(4), just as it did in 

§ 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 

§ 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 § 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 § 744.23(a)(4). These types of 

transactions are instead addressed 

under end-use controls in § 744.23(a)(2). 

At the same time, BIS reiterates that 

§ 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, § 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, 

§ 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 § 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 

§ 744.23(a)(4) (former § 744.23(a)(2)(v)). 

This commenter noted that they asked 

for this clarification because 

§ 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 § 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, § 744.6 of the EAR does. 

Depending on the classification of the 

foreign item and the specific end use of 

the item, § 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 Enduser 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 § 744.23(a)(4) (former 

§ 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 § 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 

§§ 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 § 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 

§ 744.23(a)(5), § 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 § 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 


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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 (incountry). 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 § 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 

§§ 734.9(e) and 744.23(a)(1)(ii)(B) to 

capture items for use in a foreignproduced 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 

§ 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 § 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 

§ 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 (incountry). 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 § 764.2(e). See also 

BIS response to Topic 45. 

Topic 47: A commenter noted that 

clarification of § 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 

§ 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 § 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 § 744.23, if the prohibitions 

under § 744.23(a)(2) and (4) (former 

§ 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 

§ 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 § 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 § 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 

§ 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 § 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 enduse controls in § 744.23(a) now have 

specific product scopes. 

Acceptable Level of Due Diligence for 

§ 744.6(c)(2) 

Topic 49: A commenter requested BIS 

clarify whether it would be sufficient 

under § 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 


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3B001, 3B002, 3B090, 3B611, 3B991, or 

3B992. 

BIS response: BIS interprets this 

comment to refer to the end-use control 

under § 744.23(a)(4) (former 

§ 744.23(a)(2)(v)), as there is no U.S. 

person control under § 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 selfblind to avoid these license 

requirements and that the act of selfblinding 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 § 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 § 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 majorityowned 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 

§ 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 § 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 § 744.23(a)(2)(iv), now 

redesignated as paragraph (a)(2)(ii), and 

those that are not transparent will see an 

increased impact of § 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 § 744.23(a)(4) 

(former § 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 allieddestination 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 § 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 


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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— 

§ 734.9(h) 

Topic 56: A commenter noted that the 

new § 734.9(h) Advanced computing 

FDP rule is not needed because it is 

already covered by pre-existing 

§ 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 § 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 § 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 (incountry), 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 § 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 

§ 744.6(c)(2). As such, it is intended to 

provide exhaustive guidance for 

paragraph (c)(2), but not otherwise limit 

the scope of § 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 § 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 

§ 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 § 744.6. 

BIS response: Yes, the ‘‘U.S. person’’ 

control under § 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 


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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 

§ 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 

§ 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 § 744.6. 

BIS response: First, the entity and 

natural persons all should identify 

whether they are ‘‘U.S. persons’’ as 

defined in § 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 § 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 § 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 § 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 

§ 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 § 744.6 as 

well as § 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 § 772.1, ‘‘advancednode 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 


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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 

§§ 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 §§ 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 § 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 

§ 742.4(a)(4) and RS reasons under 

§ 742.6(a)(6)(i). Consistent with 

§ 742.4(b)(2) and (10), items specified in 

ECCN 3B001.a.4 will be reviewed 

consistent with license review policies 

in § 744.23(d) of the EAR, except 

applications will be reviewed on a caseby-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 highvacuum 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 highquality, 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 electrolessplating deposition’’ in response to 

feedback from public comments. 

Electroplating has long been used to 

deposit metal on substrates in the 

semiconductor industry. In advancednode IC manufacturing, a barrier layer 

such as cobalt (Co) is necessary to block 

the diffusion of copper into the 

surrounding material. 


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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 tungstenbased 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 nonselective. 

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 advancednode 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 


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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 lowk 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 

§ 734.4(a)(3) of the EAR as described 

below in section C.5. This change 

recognizes the advancement of the stateof-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 

§ 772.1 as an EAR defined term, because 

the term is used in ECCNs 3B001, 

3B002, and 3D003. The addition of this 

term to § 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 

§ 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 § 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 


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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 

§ 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 

§§ 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 

§ 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 

§ 740.2(a)(9) of the EAR may be used for 

technology or software for specified 

semiconductor manufacturing 

equipment. 

5. Addition of § 734.4(a)(3) 0% De 

Minimis Rule for ECCN 3B001.f.1.b.2.b 

Items 

This rule revises § 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 foreignmade 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 foreignmade 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 § 744.23(a)(4). The TGL overcomes 

the license requirements described in 

§ 744.23(a)(4) (former § 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 § 744.23(a)(4) 

(former § 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 § 744.23(a)(2) 

obsolete. BIS has narrowed the scope of 

§ 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 


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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 § 744.11 or 

§ 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 § 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 (incountry), 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 § 740.2 License 

Exception Restrictions 

This rule also restructures 

§ 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 § 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 

§ 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 § 740.2(a)(9)(ii) to 

add eligibility for License Exception 

TMP under § 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 § 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 § 742.4 

National Security Controls 

This rule amends § 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 § 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 § 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 § 744.23(d) of the EAR, except 

applications will be reviewed on a caseby-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 crossreferences the restrictions that apply to 

all license exceptions in § 740.2 of the 

EAR. 

9. Revision of § 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 


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harmonize the destination scope to 

Macau and destinations specified in 

Country Group D:5 and state that the 

license review will be consistent with 

§ 744.23(d) of the EAR, except 

applications will be reviewed on a caseby-case basis if no license would be 

required under part 744 of the EAR. 

10. Revision of § 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 (incountry), 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 § 744.6, 

and in response to this comment, BIS is 

clarifying this by adding ‘‘if you know 

your export, reexport, or transfer (incountry) 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 overcapture ‘‘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 § 772.1 of the EAR and has added a 

heading to each paragraph. The term 

servicing in § 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 § 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 § 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 § 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 


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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 § 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 § 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 § 744.23. 

§ 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)(2)(i) ............................................

(a)(2)(ii) ...........................................

(a)(1)(i). 

(a)(1)(ii)(A). 

(a)(1)(ii)(B). 

‘‘Advanced-node ICs’’ .................................................................................................... (a)(1)(iii) and (a)(2)(iii) .....................

(a)(1)(iv) and (a)(2)(iv) ....................

(a)(2)(i). 

(a)(2)(ii). 

Reserved ........................................................................................................................ N/A .................................................. (a)(3). 

Semiconductor Manufacturing Equipment (SME) ......................................................... (a)(1)(v) and (a)(2)(v) ...................... (a)(4). 

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 § 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 § 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 latestage 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 overcapture ‘‘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 § 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 


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whether a manufacturing stage is ‘‘backend’’ or whether a back-end activity 

‘‘alter[s] the semiconductor technology 

level,’’ you may submit an advisory 

opinion request to BIS pursuant to 

§ 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 § 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 § 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 enduse scope of § 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 ‘‘advancednode integrated circuits,’’ must still be 

assessed against the license 

requirements in § 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 

§ 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 § 744.23(a)(4) (former 

§ 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 majorityowned 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 § 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 § 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 §§ 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 


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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 

■ 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). 

■ 2. Section 734.4 is amended by adding 

paragraph (a)(3) to read as follows: 

§ 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 ‘‘advancednode integrated circuits’’ meet the 

parameter specified in paragraph (1) of 

that definition in § 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. 

* * * * * 

---------------- 

1The 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 

■ 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). 

■ 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 § 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 § 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 majorityowned 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 § 744.11 or § 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 § 748.5(c) through 

(f) of the EAR, or when there is knowledge 


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of any other prohibited end use or end user 

(other than the § 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] 

■ 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 

■ 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. 

■ 7. Section 740.2 is amended by 

revising paragraph (a)(9) to read as 

follows: 

§ 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 § 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 

§ 740.9(a)(6); RPL, under the provisions 

of § 740.10, including § 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 § 740.11(b); or TSU under 

the provisions of § 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 

■ 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). 

■ 9. Section 742.4 is amended by: 

■ a. Revising paragraph (a); 

■ b. Adding introductory text to 

paragraph (b); 

■ c. Revising paragraphs (b)(1) and (2); 

■ d. Removing and reserving paragraph 

(b)(3); 

■ e. Revising paragraph (c); and 

■ f. Adding paragraph (d). 

The revisions and additions read as 

follows: 

§ 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 Dualuse 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 

§ 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 


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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 § 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 § 740.4 of the EAR) 

and TSR (see § 740.6 of the EAR), but 

other license exceptions may also be 

available for national security items, 

such as License Exception STA (see 

§ 740.20 of the EAR) or license 

exceptions based on the facts of the 

transaction, such as License Exceptions 

TMP (see § 740.9 of the EAR) or GOV 

(see § 740.11 of the EAR). See part 740 

of the EAR for a full list of license 

exceptions and § 740.2 of the EAR for 

license exception restrictions that apply 

to every license exception. 

■ 10. Section 742.6 is amended by 

revising paragraphs (a)(6) and (b)(10) to 

read as follows: 

§ 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 § 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 § 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 

■ 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). 

■ 12. Section 744.6 is amended by 

revising paragraphs (c)(2), (d), and (e)(3) 

to read as follows: 

§ 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 (incountry); 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 


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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 ‘militaryintelligence end use’ or a ‘militaryintelligence 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 § 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 backend or a back-end activity alters the 

technology level, you may submit an 

advisory opinion request to BIS 

pursuant to § 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 § 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 

§ 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. 

■ 12. Section 744.23 is revised to read 

as follows: 

§ 744.23 ‘‘Supercomputer,’’ ‘‘advancednode 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 


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‘‘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 ‘‘advancednode 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 

§ 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 backend or whether a back-end activity 

alters the technology level, you may 

submit an Advisory Opinion request to 

BIS pursuant to § 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 

■ 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. 

■ 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: 

§ 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 ‘‘ADVANCEDNODE 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: 

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. 

* * * * * 


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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 73451 

PART 774—THE COMMERCE 

CONTROL LIST 

■ 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. 

■ 16. Supplement no. 1 to part 774 is 

amended by: 

■ a. Revising ECCNs 3B001 and 3B002; 

■ b. Removing ECCN 3B090; and 

■ 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 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to 

3B001.a.1 to a.3, 

b, e, f.1.a, f.2 to 

f.4, g to j.

NS Column 2. 

NS applies to 

3B001.a.4, c, d, 

f.1.b, k to p.

To or within Macau or 

a destination specified in Country 

Group D:5 of supplement no. 1 to 

part 740 of the 

EAR. See 

§ 742.4(a)(4) of the 

EAR. 

RS applies to 

3B001.a.4, c, d, 

f.1.b, k to p.

To or within Macau or 

a destination specified in Country 

Group D:5 of supplement no. 1 to 

part 740 of the 

EAR. See 

§ 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 multichamber 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 °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 °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 nonsequential 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 °C and less than 500 °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 °C and less than 

500 °C; 

d.4.a.2. Surface treatment plasma process 

using oxygen (O2) or ozone (O3), while 

maintaining the wafer substrate at a 


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temperature greater than 40 °C and less than 

500 °C; and 

d.4.a.3. Deposition of a tungsten layer 

while maintaining the wafer substrate 

temperature greater than 100 °C and less than 

500 °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 °C and less than 

500 °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 °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 °C and less than 

500 °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 °C and less than 

500 °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 °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 °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 °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 1019 atoms/cm3) 

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 °C and less than 

500 °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 °C and less than 500 °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 °C 

and less than 500 °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 °C and less than 650 °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: 


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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 73453 

(an exposure light source wavelength in 

nm) × (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 

Control(s) 

Country chart 

(see supp. No. 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 

§ 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 

§ 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 

Control(s) 

Country chart 

(see supp. No. 1 to 

part 738) 

NS applies to ‘‘software’’ for commodities 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 Column 1. 

NS applies to ‘‘software’’ for commodities controlled by 

3B001.a.4, c, d, 

f.1.b, k to p, 

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 

§ 742.4(a)(4) of the 

EAR. 

RS applies to ‘‘software’’ for commodities controlled by 

3B001.a.4, c, d, 

f.1.b, k to p, 

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 

§ 742.6(a)(6) of the 

EAR. 

RS applies to ‘‘software’’ for commodities controlled by 

3A090.

China and Macau 

See § 742.6(a)(6). 

AT applies to entire 

entry.

AT Column 1. 

Reporting Requirements 

See § 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). 


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73454 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

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 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry, except ‘‘software’’ for 

3B001.a.4 c, d, 

f.1.b, k to p, 

3B002.b and c.

NS Column 1. 

NS applies to ‘‘software’’ for 

3B001.a.4, c, d, 

f.1.b, k to p, 

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 

§ 742.4(a)(4) of the 

EAR. 

RS applies to ‘‘software’’ for 

3B001.a.4, c, d, 

f.1.b, k to p, 

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 

§ 742.6(a)(6) of the 

EAR. 

AT applies to entire 

entry.

AT Column 1. 

License Requirements Note: See 

§ 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 

Control(s) 

Country chart 

(see Supp. No. 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 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to ‘‘technology’’ for 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 Column 1. 

NS applies to ‘‘technology’’ for 

3B001.a.4, c, d, 

f.1.b, k to p, 

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 

§ 742.4(a)(4) of the 

EAR. 

MT applies to ‘‘technology’’ for commodities controlled 

by 3A001 or 3A101 

for MT Reasons.

MT Column 1. 

NP applies to ‘‘technology’’ for commodities controlled 

by 3A001, 3A201, 

or 3A225 to 3A234 

for NP reasons.

NP Column 1. 

RS applies to ‘‘technology’’ for commodities controlled 

by 3A090.

China and Macau 

(See § 742.6(a)(6)). 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

RS applies to ‘‘technology’’ for commodities controlled 

by 3A090, when 

exported from 

China or Macau.

Worldwide (See 

§ 742.6(a)(6)). 

RS applies to ‘‘technology’’ for commodities controlled 

by 3B001.a.4, c, d, 

f.1.b, k to p, 

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 

§ 742.6(a)(6) of the 

EAR. 

AT applies to entire 

entry.

AT Column 1. 

License Requirements Note: See 

§ 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 § 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). 


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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 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 

mm; 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 


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