73458 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Parts 732, 734, 736, 740, 742, 

744, 746, 748, 758, 770, 772, and 774 

[Docket No. 231013–0248] 

RIN 0694–AI94 

Implementation of Additional Export 

Controls: Certain Advanced 

Computing Items; Supercomputer and 

Semiconductor End Use; Updates and 

Corrections 

AGENCY: Bureau of Industry and 

Security, Department of 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; Entity List 

Modification’’ (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, and to make other EAR changes 

to implement appropriate related 

controls, including on certain ‘‘U.S. 

person’’ activities. This Advanced 

Computing/Supercomputing IFR (AC/S 

IFR) addresses comments received in 

response to only the part of the October 

7 IFR that controls advanced computing 

ICs and computer commodities that 

contain such ICs. This rule also makes 

other changes to make the controls more 

effective and less burdensome, 

including by correcting and clarifying 

the controls to more effectively achieve 

the policy objectives identified in the 

October 7 IFR. This AC/S IFR is 

published concurrently with a second 

BIS IFR, ‘‘Export Controls on 

Semiconductor Manufacturing Items,’’ 

which addresses public comments 

received in response to other portions of 

the October 7 IFR. Together, these IFRs 

revise the October 7 IFR controls to 

more effectively achieve BIS’s focused 

national security policy objectives. 

These revisions protect U.S. national 

security interests by further restricting 

China’s ability to obtain critical 

technologies to modernize its military 

capabilities in ways that threaten the 

national security interests of the United 

States and its allies. 

DATES: This rule is effective November 

17, 2023, except for amendatory 

instruction 11 amending supplement 

no. 1 to part 736 of the EAR, which is 

effective from November 17, 2023, to 

January 1, 2026. 

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– 

2022–0025. Please refer to RIN 0694– 

AI94 in all comments. 

All filers using the portal should use 

the name of the person or entity 

submitting the comments as the name of 

their files, in accordance with the 

instructions below. Anyone submitting 

business confidential information 

should clearly identify the business 

confidential portion at the time of 

submission, file a statement justifying 

nondisclosure and referring to the 

specific legal authority claimed, and 

provide a non-confidential version of 

the submission. 

For comments submitted 

electronically containing business 

confidential information, the file name 

of the business confidential version 

should begin with the characters ‘‘BC.’’ 

Any page containing business 

confidential information must be clearly 

marked ‘‘BUSINESS CONFIDENTIAL’’ 

on the top of that page. The 

corresponding non-confidential version 

of those comments must be clearly 

marked ‘‘PUBLIC.’’ The file name of the 

non-confidential version should begin 

with the character ‘‘P.’’ Any 

submissions with file names that do not 

begin with either a ‘‘BC’’ or a ‘‘P’’ will 

be assumed to be public and will be 

made publicly available through 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 

questions on the license requirements in 

the October 7 IFR or the revisions 

included in this AC/S IFR, contact 

Aaron Amundson, Director, Information 

Technology Controls Division, Bureau 

of Industry and Security, Department of 

Commerce, Phone: (202) 482–5299, 

Email: rpd2@bis.doc.gov. For emails, 

include ‘‘Advanced computing 

controls’’ in the subject line. 

SUPPLEMENTARY INFORMATION: 

Background 

A. Introduction 

On October 7, 2022, BIS released the 

interim final rule (IFR), 

‘‘Implementation of Additional Export 

Controls: Certain Advanced Computing 

and Semiconductor Manufacturing 

Items; Supercomputer and 

Semiconductor End Use; Entity List 

Modification,’’ which made critical 

changes to the Export Administration 

Regulations (15 CFR parts 730–774) 

(EAR) in two areas to address U.S. 

national security concerns and 

requested public comments on the 

newly imposed measures. This IFR was 

published in the Federal Register on 

October 13, 2022 (October 7 IFR) (87 FR 

62186). BIS imposed these new controls 

to protect U.S. national security 

interests by restricting certain exports to 

China that would advance China’s 

military modernization and surveillance 

efforts. With a calibrated approach, 

focused on key, cutting-edge 

technologies, BIS also sought not to 

undercut U.S. technology leadership or 

unduly interfere with commercial trade. 

As noted in the Export Control Reform 

Act of 2018 (50 U.S.C. 4801–4852, 

ECRA), the national security of the 

United States requires that the United 

States maintain its leadership in the 

science, technology, engineering, and 

manufacturing sectors, including 

technology that is essential to 

innovation. 

The advanced computing ICs and 

supercomputing capacity controlled 

through the October 7 IFR are critical for 

preventing or limiting the further 

development of weapons of mass 

destruction, advanced weapons systems, 

and high-tech surveillance applications 

that create national security concerns, 

including through their use in exascale 

supercomputing, and artificial 

intelligence (AI) capabilities. Advanced 

AI models, trained on advanced 

computing ICs, can be used to improve 

the design and use of the items listed 

above. The PRC seeks to use advanced 

computing ICs and supercomputing 

capacity in the development and 

deployment of these AI models to 

further its goal of surpassing the 

military capabilities of the United States 

and its allies. 

The October 7 IFR imposed controls 

on two sets of items and activities. First, 

the rule established new Export Control 

Classification Numbers (ECCNs) and 

end-use controls on certain advanced 

computing ICs, computer commodities 

that contain such ICs, and 

supercomputers. Second, it established 

a new ECCN for certain semiconductor 

manufacturing equipment (SME) and 


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end-use controls related to the 

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

three types of ‘‘advanced-node ICs,’’ as 

well as end-use controls on the 

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

SME. 

Today, BIS addresses these two issues 

separately through publication of this 

AC/S IFR and a second BIS IFR, ‘‘Export 

Controls on Semiconductor 

Manufacturing Items’’ (SME IFR). 

Together, these IFRs further advance the 

U.S. national security objectives 

identified above and further discussed 

in section C of this rule. This AC/S IFR 

focuses on the advanced computing 

controls and related end use provisions 

of the October 7 IFR and amends the 

EAR to expand the scope of the October 

7 IFR while responding to comments 

from stakeholders about the advanced 

computing controls and related end use 

controls adopted in the October 7 IFR. 

This AC/S IFR: (1) revises ECCN 3A090 

to remove paragraph a, including 

paragraphs a.1 through a.4, and adds in 

its place simplified control paragraphs 

.a and .b, along with a conforming 

change to ECCN 3A991.p; (2) replaces 

the criterion ‘‘any other item on CCL 

that meet or exceed the performance 

parameters of 3A090 or 4A090’’ by 

positively identifying those ECCNs in 

new .z paragraphs in nine ECCNs, along 

with various conforming changes 

related to the new .z paragraphs in other 

parts of the EAR; (3) clarifies the scope 

of ‘‘U.S. person’’ and end-use controls 

related to supercomputers and advanced 

computing items; (4) makes ECCNs 

3A991.p and 4A994.l eligible for 

License Exception Consumer 

Communication Devices (CCD, 15 CFR 

740.19); (5) expands the Regional 

Stability (RS) license requirements and 

amends the RS licensing policy to adopt 

an additional case-by-case license 

review policy for certain RS items and 

adopts a presumption of approval for 

license applications for destinations 

other than Macau and Country Group 

D:5, except for items destined to an 

entity headquartered in or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5 and with licenses for items destined 

to Macau and Country Group D:5 being 

reviewed under a presumption of denial 

license review policy; (6) broadens the 

country scope for these controls, with 

respect to the items controlled for RS 

reasons as well as the advanced 

computing Foreign Direct Product (FDP) 

rule and advanced computing 

provisions in § 744.23, to destinations 

specified in Country Groups D:1, D:4, 

and D:5 in supplement no. 1 to part 740 

that are not also specified in Country 

Groups A:5 or A:6, and with respect to 

the supercomputer and advanced-node 

integrated circuit § 744.23 provisions, 

broadens the country scope from China 

and Macau to Macau and destinations in 

Country Group D:5; (7) clarifies that the 

model certificate published in the 

October 7 IFR may be used for all FDP 

rules; (8) adds five new red flags to 

assist with compliance, including for 

recognizing ‘‘direct products’’ under the 

FDP rules; (9) adds one new Temporary 

General License (TGL); (10) creates a 

new license exception for Notified 

Advanced Computing (NAC); and (11) 

makes other corrections and 

clarifications. 

B. Public Comments and BIS’s 

Responses 

BIS received 43 responsive public 

comments, covering 78 specific topics, 

in response to the October 7 IFR. This 

rule summarizes and addresses 

comments on the advanced computing 

provisions, 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, including comments on the 

SME and AC/S IFRs which allow for a 

60-day comment period and, for most 

provisions, a 30-day delayed effective 

date. 

Complexity and Compliance Burden 

Topic 1: A commenter noted that the 

October 7 IFR is so complex that only 

a small group of people with significant 

expertise in the EAR and 

semiconductors can fully understand 

the rulemaking. This commenter noted 

that many small and medium 

enterprises, or even large foreign 

multinationals, not highly versed in 

these details will either not know if they 

are following the rule, or out of an 

abundance of caution, ‘‘over-comply’’ 

by restricting legitimate exports and 

trade not otherwise subject to these 

rules. Another commenter noted that 

ensuring compliance will result in 

dramatic increases in compliancerelated costs and associated burdens. 

This commenter noted that the number 

of specific components, other 

commodities, software, and technology 

affected by the new rules is in the tens 

of millions, and each item requires 

marking, analysis, or other handling to 

ensure compliance. Another commenter 

noted that this complexity may result in 

misunderstandings and noncompliance, so simpler controls are 

more effective in furthering BIS’s 

objectives. 

BIS response: BIS does not agree that 

the rules are so complex that only a 

handful of people with expertise will be 

able to understand the controls. 

Nevertheless, BIS is revising the October 

7 IFR to facilitate the public’s 

understanding of the IFR and to 

simplify the provisions, e.g., changing 

the text of ECCN 3A090 to simplify the 

calculations required. BIS has taken into 

account the commenters’ concerns over 

increases in compliance-related controls 

and associated burdens and made 

changes in this AC/S IFR to make the 

controls more focused, which should 

help reduce these burdens and 

compliance costs where possible. In 

addition, Section C.10 discusses 

changes to enhance compliance, 

including the addition of five new red 

flags to assist with compliance. BIS has 

conducted a robust outreach program 

and posted FAQs on the October 7 IFR 

to assist public understanding. 

Reducing complexity and improving 

clarity are also two key objectives of this 

AC/S IFR and the SME IFR. 

Topic 2: A member of Congress noted 

that they had been told by one of their 

constituents that the October 7 IFR is 

overly broad in its current form and will 

damage and disrupt both American 

industry and global semiconductor 

supply chains by excluding basic U.S. 

products that are not subject to specific 

export controls. This commenter has 

also been assured by their constituent 

that the resulting vacuum will be filled 

by foreign-produced products, including 

those made in China. This member of 

Congress shares BIS’s stated goal of 

protecting ‘‘critical U.S. national 

security and foreign policy interests.’’ 

However, this member of Congress 

believes that we must ensure these 

regulations are focused and do not 

extend beyond their intended national 

security objectives. 

BIS response: BIS shares concerns 

about imposing unilateral controls that 

create an unlevel playing field for U.S. 

products and companies. BIS intends 

the controls to be as focused as possible, 

while at the same time achieving U.S. 

national security and foreign policy 

objectives. One example is adding .z 

paragraphs to nine ECCNs in order to 

replace the broad regional stability 

control for all items that contain 

‘‘advanced-node ICs,’’ see discussion in 

Section C.3.A. BIS is adopting 

additional changes to better achieve 

these objectives in this AC/S IFR and in 

the SME IFR. 


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Dialogue With Industry for the October 

7 IFR, Taking Into Account Potential 

Burden to Industry, Unintended 

Consequences, and Economic Impacts 

Topic 3: Some commenters noted that 

taking time to have meaningful 

engagement with industry will help 

head off unintended consequences. 

These commenters noted that while 

there will be emergencies that require 

swift action without time for industry 

consultation, the U.S. government, and 

particularly BIS, should endeavor to 

conduct meaningful engagement with 

industry and relevant Technical 

Advisory Committees (TACs) whenever 

possible. These commenters 

emphasized it is critical that BIS 

prioritize and meaningfully leverage 

this engagement when a rule of this 

breadth and complexity is under 

consideration, including prior to 

publishing a final rule for the October 

7 IFR. These commenters noted that 

given the complexity of the October 7 

IFR and the global supply chain, BIS 

should conduct in-depth consultations 

with industry experts—both in 

semiconductor companies and more 

broadly in industries that incorporate 

semiconductors—in advance of 

releasing a final rule. Another 

commenter noted that the economic 

analysis that needs to be done for the 

impact of this October 7 IFR and similar 

rules requires industry input. 

BIS response: BIS agrees that having 

meaningful engagement with industry 

through the BIS TACs and soliciting 

public comments prior to implementing 

controls is beneficial for the agency as 

well as the private sector and can 

reduce unintended consequences. BIS 

also agrees that it is important to obtain 

input on the economic impact of export 

controls. BIS’s primary objective is 

protecting U.S. national security and 

foreign policy interests, so at times the 

agency must act quickly and decisively 

to ensure those national security and 

foreign policy interests are protected. 

For the October 7 IFR, BIS did consult 

with its TACs, but the national security 

and foreign policy concerns at stake 

required that controls be put in place 

expeditiously. Because BIS was aware 

that there may be some unintended 

impacts from the October 7 IFR, BIS 

published the October 7 IFR as an 

interim final rule with a request for 

comments, which allowed for BIS in 

this AC/S IFR and SME IFR to make 

additional changes to the control 

structure and address some of those 

unintended consequences. Since the 

rule was published, BIS has engaged 

extensively with its TACs to revise the 

control parameters of ECCN 3A090. 

Topic 4: A commenter noted that 

longer delayed effective dates would 

ease company confusion and help 

improve compliance. This commenter 

suggested that BIS consider 

implementing such rules in the future 

with a delayed implementation period 

to allow for industry to study the rules 

and implement effective compliance 

programs. This approach would have 

significantly avoided the unintended 

confusion that this new complex rule 

created. One commenter noted that BIS 

would have benefitted from having 

more time to consider the October 7 IFR 

prior to publication and noted that 

based on this commenter’s interactions 

with BIS shortly after the October 7 IFR 

was published, BIS did not seem ready 

to advise the public on its own rule. 

BIS response: In this AC/S IFR and 

SME IFR, BIS is adopting a 30-day 

delayed effective date, except as noted 

in the AC/S IFR and SME IFR where a 

sooner effective date is warranted. BIS 

agrees that longer delayed effective 

dates can ease confusion by companies 

and help improve compliance, but BIS 

also needs to account for the national 

security and foreign policy concerns it 

is addressing. An extended delayed 

effective date can undermine those 

national security and foreign policy 

concerns. For example, a six-month 

delayed effective date for the October 7 

IFR would have provided additional 

time for outreach and for companies to 

adjust to the controls, but that six month 

delay would have also allowed end 

users in China substantial time to 

acquire key pieces of SME needed to 

help them achieve advanced nodes of 

semiconductor fabrication and to 

stockpile various ‘‘parts’’ and 

‘‘components’’ needed for future 

development of supercomputers. BIS 

acted expeditiously in imposing 

controls because of national security 

and foreign policy concerns. In 

addition, to better enable compliance 

and understanding of the rule, the 

agency provided FAQs to the public 

(which were updated as needed), 

conducted a public hour-long briefing 

on the rule by BIS leadership the day of 

publication, and extended the public 

comment period for the October 7 IFR 

to enable industry to raise concerns for 

the agency’s consideration. To ensure 

BIS was providing fulsome public 

guidance, the agency also held internal 

training for staff responsible for primary 

public interactions. BIS takes this type 

of deliberative approach to ensure, as 

much as possible, that there is 

consistency and accuracy in the 

responses being given to the public. 

Topic 5: A commenter noted that in 

the past, BIS had sought industry input 

prior to publishing rules and should 

return to that practice. This commenter 

noted that until recent years, it had been 

the long-standing practice for BIS to 

obtain technical and other inputs from 

both the public and the TACs before 

publishing rules (other than those 

implementing new controls agreed to 

with the multilateral regimes) given that 

there is much about commercial supply 

chains, technologies, and economics 

that the U.S. Government does not fully 

understand. 

BIS response: This commenter may be 

referring to agency practice during 

Export Control Reform (ECR), during 

which the Departments of Commerce 

and State generally published related 

rules on a proposed basis. At that time, 

the items that were being proposed to be 

moved to the EAR were already 

controlled under the ITAR, so there was 

not the same urgent national security 

imperative as was present with the 

October 7 IFR. Before that time, the vast 

majority of BIS’s rules were published 

as direct final or interim final rules. 

Accordingly, the commenter is not 

correct that recently BIS has deviated 

from past precedent. Since ECR, BIS has 

continued to publish notices and 

proposed rules, such as with the Section 

1758 rules (other than those 

implementing multilateral agreements). 

When BIS has needed to quickly 

implement controls for national security 

or foreign policy reasons, BIS has 

published interim final rules with 

requests for public comment to gain 

public input while simultaneously 

allowing the agency to impose needed 

controls, and if necessary, amend those 

controls in response to public comment, 

as BIS is doing in this AC/S IFR. The 

imposition of controls without first 

issuing a proposed rule is consistent 

with BIS’s statutory authority in ECRA, 

enacted in 2018, and is thus another 

distinction from rules promulgated 

before 2018. 

Other Ways That BIS Can Consult With 

Industry To Better Improve the 

Effectiveness of Policies in This Area 

Topic 6: A commenter requested that 

BIS should publish, or at least make 

available for TAC review, the policy 

justifications for current Category 3 and 

4 controls. BIS is increasingly asking 

industry for input on significant new 

controls related to semiconductors and 

associated technology in Categories 3 

and 4 and to provide effective feedback 

and assessment, and it would be helpful 

to understand the specific policy 

rationale for new and existing control 

classifications. Another commenter 

requested if required by Congress or 

other parties to publicly release 


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licensing data surrounding the October 

7 IFR, that BIS should strive to provide 

the most complete data possible, while 

still protecting confidential business 

information. This commenter requested 

that the data should include statistics on 

licenses that (i) are still pending review, 

(ii) received an ‘‘intent to deny’’ 

response, (iii) were ‘‘returned without 

action,’’ and (iv) issued with restrictive 

conditions. The data on approvals and 

denials should also be connected to 

what the licensing policy is for such 

items and when those licensing policies 

were created. 

BIS response: This comment is 

somewhat outside the scope of the 

October 7 IFR, but BIS is addressing it 

given its relevance to overall controls. 

BIS understands the commenter’s intent 

by asking for this type of engagement 

with the TACs. BIS does attempt to 

share background information on how 

controls developed over the years as 

well as the basis and policy goals of 

those controls with the BIS TACs, 

particularly during closed TAC sessions. 

BIS subject matter experts and its TACs 

are also encouraged to take a fresh look 

at the controls on a regular basis 

regardless of what the original rationale 

may have been for imposing controls. 

Similarly, whether in response to a 

proposed rule or IFR, the agency seeks 

the public’s input on controls so that the 

public can help assess whether policy 

goals are being met. BIS has made every 

effort to share open source information 

related to its policy objectives for this 

rule and the SME IFR as part of this 

rulemaking. 

In response to the comment that the 

agency should release specific 

information to the public or Congress, 

BIS notes that, with limited exceptions 

related to requests from Congressional 

committees of appropriate jurisdiction, 

the agency is required by statute to 

withhold from disclosure certain 

categories of information absent a 

determination that the release is in the 

U.S. national interest. That statutory 

restriction on release is intended to 

protect the business confidential 

information noted by the commenter. 

BIS agrees that when such licensing 

data is released, it will provide an 

accurate account of the relevant 

licensing information. 

Topic 7: 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 

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. 

Free Trade, Addressing U.S. 

Relationship With China, and Benefits 

From Trade With China 

Topic 8: A commenter requested that 

especially at a time when U.S.-China 

relations are fraught, we should aim to 

strengthen ties and increase cooperation 

to reduce the risk of military conflict 

and to allow the United States and the 

whole world to benefit from the fruits of 

our shared innovations. 

BIS response: The U.S. Government 

works with China in multiple ways to 

reduce tensions and find areas in which 

the two governments can work together. 

Where the policies of the Chinese 

Communist Party (CCP) run counter to 

U.S. national security and foreign policy 

interests, the U.S. Government takes 

appropriate actions to address its 

concerns, including by ensuring that 

items subject to the EAR are not used to 

assist CCP military advancement. 

Topic 9: A commenter noted that 

trade with China brings many important 

benefits to the U.S. economy and 

American workers. This commenter 

noted that advanced U.S. manufacturers 

of all sizes and their American business 

partners and consumers have benefitted 

from globally integrated supply chains 

that have improved efficiency and 

lowered production costs for U.S. firms. 

Revenues generated in China are often 

reinvested in global and U.S. research 

and development (R&D) activities, 

which in turn allows U.S. companies to 

maintain their competitive edge over 

PRC and foreign competition. Another 

commenter noted a belief that the 

October 7 IFR is counter to U.S. free 

trade advocacy and could boomerang 

negatively on the United States if China 

retaliates with similar trade restrictions. 

BIS response: BIS agrees with the 

importance of continued trade with 

China. China’s military-civil fusion 

policy has made it much more 

challenging for the U.S. Government, as 

well as exporters, reexporters, and 

transferors, to be able to clearly identify 

items and transactions that will be only 

for civil end uses. BIS has tried to 

address this circumstance by imposing 

focused controls. Focused controls can 

be more complex than the imposition of 

broad controls (such as on an entire 

country), but BIS has adopted focused 

controls to restrict trade as necessary for 

national security or foreign policy 

reasons while not impairing trade for 

civil applications. 

Regarding the comment that the 

October 7 IFR is counter to U.S. free 

trade advocacy and could lead to the 

imposition of trade controls by China, 

BIS notes the national security and 

foreign policy reasons described in that 

rule as the reasons for the imposition of 

those controls. See 87 FR 62186–88 

(noting, among other things, China’s use 

of advanced computers for its military 

modernization efforts, military decision 

making, planning, and logistics, 

cognitive electronic warfare, radar, 

signals intelligence, and jamming, as 

well as China’s use of supercomputers 

to improve calculations in weapons 

design and testing including for WMD 

such as nuclear weapons and 

hypersonics and other advanced missile 

systems). These controls were not 

implemented as protective trade 

measures, but rather were imposed to 

protect U.S. national security. BIS is 

aware of and takes into account 

concerns about the implications of 

imposing controls, but those concerns 

cannot deter BIS from taking actions to 

protect U.S. national security and 

foreign policy interests. 

Importance of Regular Review of These 

Controls To Achieve the National 

Security and Foreign Policy Objectives 

Outlined in the October 7 IFR, and for 

Consistency With ECRA 

Topic 10: A commenter noted that 

ECRA requires that any controls 

imposed under section 4812, which 

include end-use controls, ‘‘must be 

evaluated on an ongoing basis . . . to 

avoid negatively affecting U.S. 

leadership in the science, technology, 

engineering, and manufacturing sectors, 

including foundational technology that 

is essential to innovation.’’ ECRA 

section 4811(3). The commenter noted 

that the October 7 IFR needs to be 


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reviewed regularly. Another commenter 

noted that the October 7 IFR 

demonstrates a significant U.S. policy 

shift, as articulated by U.S. National 

Security Advisor Jake Sullivan, that the 

previous U.S. ‘‘sliding scale approach 

. . . to stay only a couple of generations 

ahead . . . is not the strategic 

environment we are in today.’’ Yet, the 

United States will struggle to maintain 

‘‘as large a lead as possible’’ if the 

government pursues a unilateral 

approach that alienates allies and 

trading partners and restricts companies 

from selling consumer technologies 

worldwide. 

BIS response: BIS intends, consistent 

with all export controls administered 

under the EAR, to review the controls 

from the October 7 IFR on a regular 

basis to determine if any updates are 

needed to make those controls more 

effective. Since the October 7 IFR was 

announced, BIS has been reviewing 

these controls, not just in response to 

the public comments received, but also 

based on BIS’s experience in 

administering and enforcing the 

controls, as well as discussions with 

allies. These considerations have 

resulted in the changes made to the 

October 7 IFR included in this AC/S IFR 

and SME IFR. BIS will continue to 

review these controls on an ongoing 

basis and make changes as warranted, 

including to controls that use specified 

control parameters that over time may 

need to be reevaluated. BIS notes that 

National Security Advisor Sullivan’s 

remarks provide an example of the 

Administration previewing policy and 

related controls and are responsive to 

other comments requesting this type of 

guidance. Consistent with the policy 

described by National Security Adviser 

Sullivan, the October 7 IFR controls 

resulted from the speed of the 

technological advancements that could 

be leveraged for the most sensitive 

national security activities, as well as 

furthering human rights violations. The 

controls established in the October 7 

IFR and these rules are needed to 

address the current national security 

threats presented by China. 

Agrees With the National Security and 

Foreign Policy Concerns Identified in 

the October 7 IFR for Why These 

Changes Were Needed 

Topic 11: A commenter noted that 

monitoring the production of more 

supercomputers and AI will benefit the 

world at large. The commenter sees the 

October 7 IFR as the best option for 

national security and regional stability 

purposes because it addresses the 

military use of these computers. If these 

AI and supercomputers are left 

unmonitored, they may fall into the 

wrong hands and become a threat to the 

world at large. 

BIS response: BIS agrees. 

Topic 12: A commenter noted that 

given the likely importance of AI 

capabilities to national security and 

economic prosperity, the commenter 

expects significant pressure for China to 

stay at the frontier of AI. The 

commenter noted that all viable paths 

for doing so may be explored. This 

pressure will mount over time, as the 

importance of AI technology grows and 

as the AI-relevant ICs produced outside 

of China outpace the technology to 

which AI-developers in China, 

including the People’s Liberation Army 

(PLA), have access. Another commenter 

noted that the October 7 IFR chip 

controls were implemented to prevent 

human rights abuses and protect 

international security interests by 

making it more difficult for the 

government of China to attain advanced 

AI capabilities. This commenter noted 

that the use of these supercomputers to 

monitor the activities of PRC citizens is 

inappropriate and this is why the 

October 7 IFR is the best option. 

BIS response: BIS acknowledges both 

comments and takes PRC human rights 

abuses seriously. China has been 

transparent about its military-civil 

fusion (MCF) strategy and the 

importance it places on advanced AI as 

part of MCF. China has already 

demonstrated on numerous occasions 

how it has been leveraging advanced 

technologies against its own people. 

See, e.g., 84 FR 54002 (Oct. 2, 2019) 

(adding Xinjiang Uighur Autonomous 

Region (XUAR) People’s Government 

Public Security Bureau, eighteen of its 

subordinate municipal and county 

bureaus, and several other entities in 

China to the Entity List because they 

were implicated in human rights 

violations and abuses in the 

implementation of China’s campaign of 

repression, mass arbitrary detention, 

and high-technology surveillance 

against Uighurs, Kazakhs, and other 

members of Muslim minority groups in 

the XUAR). 

U.S. CHIPS Act and Sufficiency of 

Existing Company Compliance 

Programs 

Topic 13: A commenter noted that the 

U.S. CHIPS Act will help keep the 

United States in the lead for 

semiconductors. The U.S. CHIPS Act, 

which appropriated over $52 billion to 

shore up the semiconductor ecosystem 

in the United States, will enable 

continued U.S. leadership in leadingedge semiconductors and SME, and 

help preserve the large technological 

differential vis-a`-vis China. 

BIS response: The October 7 IFR was 

designed to address the U.S. national 

security and foreign policy concerns 

with China over acquiring these 

capabilities and their use in WMDrelated applications. BIS agrees that the 

U.S. CHIPS Act is important for helping 

to promote U.S. to maintain its 

leadership in semiconductors. The most 

comprehensive and effective policy both 

restricts key technologies from China 

where needed to address national 

security and foreign policy concerns 

and promotes U.S. and allied country 

technology leadership. 

Topic 14: A commenter noted that 

companies’ sophisticated export 

compliance programs should mitigate 

the need for additional controls. This 

commenter noted that many U.S. 

companies—as well as multinational 

companies from U.S. allied countries 

and partners with a U.S. presence—have 

longstanding, sophisticated export 

control compliance programs to acquire 

export licenses and ensure that their 

products and processes are not 

facilitating the technological 

development of items by a sanctioned 

entity, military end user, or military end 

use. 

BIS response: BIS notes that 

compliance programs are designed to 

follow the rules as they are written. 

While BIS applauds efforts by 

companies to conduct extensive due 

diligence, this does not replace the need 

for regulations addressing national 

security and foreign policy concerns. 

China Will Obtain the Items it Needs 

Regardless of U.S. Controls 

Topic 15: A commenter noted that 

research indicates that China’s military 

systems primarily rely on older and less 

sophisticated chips made in China, on 

which U.S. export controls will have 

limited effect. The commenter noted 

should China require more advanced 

chips for AI-driven systems, they will 

likely be able to develop and produce 

them—at significant cost and on a 

slower timeline. 

BIS response: Certain PRC weapons 

systems may not rely on the most 

advanced ICs. However, for the most 

advanced weapons systems such as 

hypersonic missiles or for super 

computers that are used to make more 

advanced WMD or design and produce 

more advanced weapons systems, 

advanced ICs are critical to PRC efforts. 

Topic 16: A commenter noted that 

restricting U.S. persons in assisting 

China’s advanced semiconductor 

manufacturing is not going to be 

enough. This commenter noted that 


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some U.S. persons working in financial 

institutions (e.g., venture capital and 

private equity) help China to invest in 

the semiconductor industry and help 

PRC companies obtain semiconductor 

talent, intellectual property, and 

equipment from all over the world. 

BIS response: BIS shares these 

concerns that certain actors will try to 

evade the regulations imposed through 

the October 7 IFR and these rules. These 

concerns underpinned the October 7 

IFR controls such as the expanded ‘‘U.S. 

persons’’ control under § 744.6, two new 

end use controls under § 744.23, and the 

two new foreign direct product rules 

and expanded Entity List FDP rule 

under § 734.9. To address concerns 

around U.S. investment, the 

Administration issued Executive Order 

14105 that will address outbound 

investment from the United States. 

China and Macau Retaliation To Gain 

Greater Market Share for PRC 

Indigenous Companies Worldwide and 

PRC Companies Filling the Void Left by 

U.S. Companies 

Topic 17: A commenter’s association 

members expressed concern that one 

unintended consequence of the October 

7 IFR may be that China will increase 

its production of legacy node 

semiconductors and flood global 

markets with those products at 

significantly reduced prices. 

BIS response: While the October 7 IFR 

was not intended to impact legacy node 

semiconductors in China, BIS 

acknowledges the possibility that these 

controls may generate spillover effects. 

The type of concern described in the 

comment relate to issues to be 

addressed through other authorities and 

forums and are outside of BIS’s 

authorities. 

Topic 18: A commenter noted that the 

October 7 IFR has given a significant 

boost to China’s own materials 

suppliers. 

BIS response: BIS is aware that the 

restrictions imposed under the October 

7 IFR may give PRC indigenous 

providers an opportunity to try to fill 

potential new voids in the market. The 

October 7 controls, in particular the CCL 

controls, were intended to impose 

license requirements on key gateway 

items that PRC entities would need but 

which are not indigenously 

manufactured in China. BIS intends to 

continue to monitor such developments 

and adjust its controls as warranted. BIS 

encourages the public to provide 

specific information on PRC indigenous 

capabilities in comments responding to 

this AC/S IFR and SME IFR. See section 

D question 5. 

ECCN 3A090 

Topic 19: A commenter noted that 

there needs to be guidance on the 

circumstances in which controls extend 

to components controlled under ECCNs 

4A003.b and 3A090.a. The commenter 

noted that ECCN 4A003.b already 

controls ICs with the 4A003.b 

characteristics of 29 Weighted 

TeraFLOPS (WT), soon to be 70 WT. In 

addition, 4A090 controls devices with 

ICs exceeding 4800 bits x TOPS. The 

commenter noted that there is no 

guidance as to which of these two limits 

is to apply to license applications for 

export to China. This commenter also 

noted that ECCN 4A003.b (Adjusted 

Peak Performance (APP) exceeding 29 

WT) already covers the much higher, by 

an order of magnitude, 4A090.a license 

requirement limit, with no guidance as 

to which of these limits is to apply to 

license applications for export to China. 

The commenter notes that these 

differences present inconsistencies in 

the EAR. 

BIS response: The APP formula in 

ECCN 4A003 and the bits x TOPS metric 

(now modified to a TPP metric) in ECCN 

3A090 apply to different commodities. 

ECCNs 3A090 and 4A090 control items 

based on the performance of a single 

chip, while the APP formula in ECCN 

4A003 describes aggregate performance 

across multiple chips. However, BIS 

acknowledges that a computer or 

component could exceed the 

performance parameters of both ECCNs 

4A003.b and 4A090 or 3A090. The 

October 7 IFR accounted for this 

possibility by applying controls to items 

classified on the Commerce Control List 

(CCL) other than under ECCNs 4A090/ 

3A090 that meet or exceed the 4A090/ 

3A090 performance thresholds. This 

AC/S IFR clarifies this issue by adding 

a .z ‘‘items’’ paragraph to ECCN 4A003 

to control items that meet or exceed 

ECCN 4A090 specifications. This 

change is intended to provide clear 

guidance regarding the relationship 

between ECCNs 4A090 and 4A003.b and 

.z. 

Topic 20: A commenter had a 

question on interpreting Technical Note 

2 under ECCN 3A090. The commenter 

noted that the term ‘‘bit-manipulation 

operations, and/or bitwise operations’’ 

seems susceptible of a broad 

interpretation including any kind of 

data processing, and questioned 

whether this was the intent. The 

commenter asked how exporters should 

think about classifying a component for 

a router or a switch that meets or 

exceeds the technical control 

parameters under ECCN 3A090 but 

which would otherwise be classified 

under an ECCN in Category 5, Part 1 or 

Part 2. 

BIS response: The October 7 controls 

were not intended to apply to 

telecommunications equipment or parts 

and components designed for 

telecommunications equipment. For 

example, 4A090 is in Category 4, which 

applies to computers. BIS would not 

classify a router or switch in Category 4. 

Therefore, a router or switch that meets 

the control parameters of 4A090 would 

not be subject to these controls. 

Category 5 Part 2 could capture some of 

these items, because that category also 

applies to general purpose computing 

equipment with encryption 

functionality. 

Topic 21: A commenter noted that 

with respect to the ‘‘aggregate 

bidirectional transfer rate’’ provision of 

3A090, BIS should incorporate either an 

additional technical note in the CCL 

under 3A090, or a definition of 

‘‘aggregate bidirectional transfer rate’’ 

with a specific explanation of how this 

rate is calculated over all inputs and 

outputs in part 772. 

BIS response: BIS retains this 

parameter in the revised ECCN 3A090 

included in this AC/S IFR. For greater 

clarity, including for providing greater 

clarity on how to apply the criterion of 

‘‘aggregate bidirectional transfer rate,’’ 

the AC/S IFR revises the Technical 

Notes to 3A090 by removing the five 

technical notes and replacing those with 

four technical notes. Most importantly, 

this AC/S IFR replaces bits x TOPS with 

‘Total processing performance’ (‘TPP’) 

values and defines objective criteria that 

can be used to calculate the TPP value. 

See section C.1. below for additional 

information on the revision to these 

technical notes. 

Topic 22: A commenter noted that for 

ECCN 3A090 and programmable ICs, 

there is no inherent communications or 

calculations capability. The commenter 

requested that BIS issue guidance on 

how to (1) address this complex 

calculation/interpretation theoretical 

performance situation, perhaps via a 

practical manual, and (2) leverage 

metrics from other programmable device 

ECCNs that are already on the CCL, such 

as under 3A001.a.7, 3A991.d, or others. 

BIS response: The rewrite of ECCN 

3A090 included in this rule addresses 

this comment. BIS, in consultation with 

its Information Systems Technical 

Advisory Committee (ISTAC), 

considered compiling a practitioner’s 

guide but ultimately decided that 

changing the text of ECCN 3A090 to 

simplify the calculation was a better 

approach. 

Topic 23: A commenter noted that 

performance parameter calculations 


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stated in ECCN 3A090 are unclear and 

requested further guidance, such as a 

formula or additional details regarding 

the types of performance parameters 

that need to be included in the 

calculations. 

BIS response: BIS agrees. This AC/S 

IFR includes a revision to ECCN 3A090 

to adopt alternative control parameters 

to address the concerns identified by the 

commenters. 

Topic 24: A commenter noted that 

guidance needs to be provided on how 

to calculate the 3A090 TOPS 

Performance Metric. ECCN 3A090 

introduces a new performance metric, 

TOPS (trillions of operations per 

second). The commenter noted that 

undertaking a TOPS determination is 

difficult because the definition of TOPS 

relies on the term ‘‘operations.’’ The 

word ‘‘operations’’ is not defined in the 

October 7 IFR and does not have a 

consistent industry definition. 

BIS response: BIS agrees that there is 

ambiguity in the TOPS calculation. For 

this reason, BIS has amended the text of 

ECCN 3A090. This AC/S IFR replaces 

bits x TOPS with ‘Total processing 

performance’ (‘TPP’) values and defines 

objective criteria that can be used to 

calculate the TPP value in ECCN 3A090. 

BIS worked closely with its ISTAC in 

developing this updated technical note. 

ECCN 4A090 

Topic 25: A commenter noted that 

ECCN 4A090 creates a ‘‘see through’’ 

rule similar to something found in the 

State Department’s International Traffic 

in Arms Regulations (ITAR) that is too 

broad for a civilian end item that 

happens to include even a single IC 

classified as 3A090. This commenter 

noted that consistent with § 770.2(b)(1), 

computers and electronic assemblies 

that incorporate a single IC classified as 

3A090 should be excluded from the 

4A090 control if the physical 

incorporation is not used to evade the 

requirement for a license. 

BIS response: BIS does not agree. The 

structure of ECCN 4A090.a is needed to 

ensure that incorporation of ECCN 

3A090 items into higher level items is 

not conducted to circumvent the intent 

of the 3A090 controls. BIS also notes 

that this is not a ‘‘see through’’ rule 

because the high level computer, 

‘‘electronic assembly’’ or ‘‘component’’ 

is still classified under 4A090. The 

incorporation of the 3A090 commodity 

changes the technical characteristics of 

those referenced items, which leads to 

control under 4A090 instead of other 

CCL entries. This structure is not new 

to Category 4. To calculate the APP 

value for a 4A994 computer, an exporter 

has to determine the APP value of the 

CPU. Exporters must apply the same 

analysis to 4A090. 

Topic 26: A commenter requested BIS 

should confirm that an appliance would 

not be considered a ‘‘computer’’ for 

purposes of ECCN 4A090. BIS also 

should confirm that a printed circuit 

board specially designed for such 

appliance would not be considered an 

‘‘electronic assembly’’ for purposes of 

ECCN 4A090. 

BIS response: For control under ECCN 

4A090, an item must be a general 

purpose computer. For example, BIS 

does not classify network security 

appliances or DNA sequencing 

appliances in Category 4. When 

evaluating such systems, exporters 

should determine the classification of 

the item without regard to whether it 

contains a 3A090 IC or has encryption 

functionality. If the appliance would be 

controlled in Category 4, then 4A090 

controls would likely apply. 

Topic 27: A commenter noted the 

ECCN 4E001 has an NS control that is 

likely not intended and should be 

corrected. This technology in ECCN 

4E001 is now subject to both RS and 

NS1 controls, even though the 

discussion in the October 7 IFR focuses 

only on RS controls. The application of 

NS1 controls creates new authorization 

requirements (including deemed export 

requirements) for all countries except 

Canada. The commenter requests that 

BIS revise ECCN 4E001 to exclude 

technology for commodities controlled 

by 4A090 or software specified by 

4D090 from the NS1 controls. 

BIS response: BIS agrees the NS 

control was not intended. This AC/S 

IFR makes this correction. 

Topic 28: A commenter requested BIS 

revise ECCN 4E001 to remove control of 

‘‘use’’ technology for 4A090. The 

commenter noted that this appears to be 

over-controlled and beyond the intent of 

the October 7 IFR. The October 7 IFR 

imposes controls on the technology for 

the ‘‘development,’’ ‘‘production,’’ and 

‘‘use’’ of 4A090 items controlled under 

4E001, but only imposes controls on the 

‘‘development’’ or ‘‘production’’ of 

3A090 items controlled under 3E001— 

but not the ‘‘use’’ technology of 3A090. 

This results in the technology to ‘‘use’’ 

a 4A090 computer part (which happens 

to have a 3A090 IC onboard) having 

higher controls than the ‘‘use’’ 

technology of the 3A090 IC itself. The 

commenter noted that this approach 

appears to be inconsistent as applied to 

other, more-controlled items. 

BIS response: BIS agrees. This AC/S 

IFR revises ECCN 4E001.a to add an 

exclusion for technology for the ‘‘use’’ 

of a 4A003 computer. 

Topic 29: A commenter requests that 

BIS issue a FAQ or regulatory 

clarification on the classification of 

ECCN 4E001 technology when 3A090 or 

4A090 are applicable. The commenter 

noted what it believes is a growing body 

of ambiguity that stems from the ‘‘see 

through’’ nature of 3A090 items 

incorporated into the higher-level 

4A090 items and the impacts that has 

on associated technology. Exporters are 

in a quandary reading 4E001, which 

controls the technology for the 

‘‘development,’’ ‘‘production,’’ or ‘‘use’’ 

of 4A090. 

BIS response: Under ECCN 4E001 for 

4A090 commodities, BIS controls 

technology that is ‘‘required’’ for the 

computer achieving or exceeding the 

3A090 parameters. In some cases, this 

may occur through a relatively 

unsophisticated step, such as inserting a 

card in a slot in the computer, which 

BIS would consider to be 

‘‘development’’ or ‘‘production’’ and as 

noted in the BIS response to Topic 28, 

this AC/S IFR adds an exclusion to 

4E001 for ‘‘use’’ Technology for 4A090. 

Other instances may require more 

technical know-how that may rise to the 

level of controlled 4E001 technology. 

The application ultimately turns on an 

analysis of what is ‘‘required’’ for 

exceeding the control level. BIS intends 

to issue a new FAQ to address this topic 

more broadly. 

Relationship of New Controls to 

Category 5—Part 2, as it Relates to ‘‘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’’ Under 

§ 742.6(a)(6) 

Topic 30: Several commenters raised 

concerns with the October 7 IFR under 

§ 742.6(a)(6), along with other 

provisions in the October 7 IFR, e.g., 

§ 734.9(h)(1)(i)(B)(1) and (h)(2)(ii), using 

the criteria ‘‘or identified elsewhere on 

the CCL that meet or exceed the 

performance parameters of ECCNs 

3A090 or 4A090.’’ These commenters 

had concerns that this approach was 

unprecedented under the EAR in several 

respects and created ambiguity 

regarding the correct classification, such 

as whether an item should be classified 

under 3A090 or 4A090 or under an 

encryption ECCN, e.g., 5A002 or 5A992. 

These commenters emphasized that 

company compliance systems were not 

set up to address this type of dual 

classification complexity and that 

mistakes in classification would likely 

occur and significant questions would 

be raised for managing export clearance. 

These commenters requested BIS to 


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adopt an alternative approach that 

would be more in line with how items 

are typically classified on the CCL by 

either creating additional ECCNs to 

control these items that would 

otherwise meet or exceed the 

performance parameters of ECCN 3A090 

or 4A090 or to add under the relevant 

additional ECCNs an ‘‘items’’ level 

paragraph to identify the items that 

would meet or exceed the performance 

parameters of ECCN 3A090 or 4A090. 

BIS response: BIS is changing this 

aspect of the October 7 IFR. BIS 

recognizes that certain aspects of the 

criteria used in the October 7 IFR 

deviated from standard EAR practices, 

e.g., imposing an RS license 

requirement on certain ECCNs that did 

not contain an RS control. However, BIS 

did not intend to change underlying 

classifications. For example, an ECCN 

5A002 commodity that met or exceeded 

the control parameters in 3A090 or 

4A090, would have still been classified 

under ECCN 5A002, but would require 

a license under § 742.6(a)(6). BIS agrees 

with the commenters that because of the 

special RS license requirements, that 

effectively would mean exporters, 

reexporters, and transferors would have 

to identify and treat that 5A002 

commodity that met or exceeded the 

control parameters in 3A090 or 4A090 

differently. BIS also agrees with the 

concerns raised by these commenters 

that it would create significant burdens 

and possibly confusion for exporters, 

reexporters, or transferors. 

To address this issue, this AC/S IFR 

removes the criteria of concern and 

instead identifies the nine ECCNs on the 

CCL that BIS determined meet or exceed 

the control parameters in ECCNs 3A090 

or 4A090. As a result, when classifying 

an item, review can focus on these nine 

ECCNs, which addresses the 

commenter’s concerns. In addition, BIS 

agrees that creating a distinct 

classification for ‘‘items’’ in each of 

these ECCNs under a new .z ‘‘items’’ 

paragraph is warranted. This AC/S IFR 

also adds an RS control for these nine 

ECCNs, as well as adding Related 

Controls to cross reference 3A090, 

4A090, 3A991.p, and 4A994.l. This rule 

provides additional guidance for export 

clearance of these .z items, as well as 

3A090 and 4A090 to make it easier for 

exporters and recipients outside the 

United States to identify these items, 

and for the U.S. Government to have 

greater transparency into what items are 

being exported. This AC/S IFR also 

revises §§ 734.9(h)(1)(i)(B)(1) and 

(h)(2)(ii) and 742.6(a)(6) to remove the 

criterion and add in their place the .z 

ECCNs. 

Additional discussion about the 

addition of the .z paragraphs can be 

found in section C.3 of this rule. 

Additional Changes for ECCNs in the 

October 7 IFR 

Topic 31: A commenter requested BIS 

change new ECCNs from 000 series to 

900 series. This commenter noted that 

because they are U.S. unilateral 

controls, BIS should change the ECCN 

numbers from 3A090, 3B090, 4A090, 

4D990 to 3A990, 3B990, 4A990, 4D990. 

This same commenter requested 

deleting the term ‘‘specially designed’’ 

in various places as used in the ECCNs 

included in the October 7 IFR and 

replacing the use of the term with other 

technical control parameters. This 

commenter referenced documents from 

the Coordinating Committee for 

Multilateral Export Controls (COCOM), 

including COCOM 1951 Administrative 

Principle 4, in supporting their position 

on the removal of ‘‘specially designed’’ 

from these ECCNs. 

BIS response: BIS does not agree. 

These items will be submitted to the 

Wassenaar Arrangement for adoption as 

multilateral controls, so it is appropriate 

that they are placed in the ‘‘000’’ series. 

BIS also does not agree on the removal 

of ‘‘specially designed.’’ The term 

‘‘specially designed’’ is needed in these 

ECCNs to define the intended scope of 

the control. In addition, BIS notes 

COCOM has been defunct since March 

31, 1994. 

Topic 32: A commenter noted that the 

WTOPs parameters need further study 

in ECCNs 3A991.p, 4A003, and 4A994.b 

and .l. 

BIS response: BIS does not see an 

inconsistency between ECCN 4A994.b 

and 4A994.l. ECCN 4A994.b captures 

computers using 64-bit or greater 

processors, and 4A994.l captures 

processors with lower bit rates. BIS 

agrees that some items could be 

captured under both 4A994.b and 

4A994.l but notes that there are 

computers that fall under 4A994.l but 

not 4A994.b. 

License Exception Eligibility for New 

Advanced Computing and 

Semiconductor Manufacturing Items 

Under § 740.2(a)(9) 

Topic 33: A commenter noted the 

October 7 IFR’s limitations on the use of 

License Exception ENC are difficult to 

implement. The commenter noted that 

many of the items affected were already 

eligible for License Exception ENC, so 

removing license exception eligibility 

will be a challenge for items ‘‘listed 

elsewhere in the CCL which meet or 

exceed the performance parameters of 

ECCN 3A090 or 4A090.’’ This 

commenter requested that BIS consider 

amending the rule to create ECCNs 

5x090 and 5x092 or additional items 

paragraphs in existing ECCNs for 5x002 

and 5x992 items that meet or exceed the 

performance parameters of ECCN 3A090 

or 4A090. This would allow industry to 

set up more manageable rules for their 

electronic inventory control and 

shipping systems. 

BIS response: BIS agrees and 

addressed this with the addition of .z 

‘‘items’’ paragraphs in nine ECCNs on 

the CCL, as described under the BIS 

response to Topic 30. 

Topic 34: A commenter requested 

confirmation that License Exception 

Servicing and Replacement of parts and 

equipment (RPL) covers transfers (incountry), or in the alternative that 

§ 740.2(a)(9) be expanded to authorize 

License Exception Temporary imports, 

exports, reexports, and transfers (incountry) (TMP). This commenter noted 

that the exclusion of ‘‘transfer (incountry)’’ from the scope of § 740.10 

suggests that License Exception RPL 

would not cover in-country movements 

that constitute a transfer (in-country) as 

defined in § 734.16. Alternatively, this 

commenter requested that BIS expand 

the scope of license exceptions available 

for § 740.2(a)(9) to include License 

Exception TMP, specifically 

§ 740.9(a)(6) which authorizes exports, 

reexports, and transfers (in-country) for 

inspection, test, calibration, and repair. 

BIS response: Section 740.1(a) already 

specifies that any license exception 

authorizing reexports also authorizes incountry transfers, provided the terms 

and conditions for reexports under that 

license exception are met. This includes 

License Exception RPL. This SME IFR 

expands the number of license 

exceptions available for advanced 

compute items in § 740.2(a)(9)(ii) by 

adding License Exception TMP under 

§ 740.9(a)(6) because this authorization 

is intended to work with License 

Exception RPL. 

Level of Complexity of New FDP Rules 

Topic 35: A commenter noted that the 

new FDP rules create significant 

complexity when manufacturing 

products outside the United States using 

U.S.-origin technology, software, tools, 

or equipment. The commenter noted 

that with the three new FDP rules, a 

non-U.S. manufacturer using U.S. 

technology or software must now know 

or have additional information about a 

number of things, including whether the 

item: (1) involves one of thirty-eight 

new ‘‘Footnote 4’’ companies on the 

Entity List; (2) is or contains an 

advanced IC that meets ECCN 3A090 or 

4A090, or is their related software or 


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technology, and is ultimately destined 

for Macau or a destination specified in 

Country Group D:5; (3) will ultimately 

be used in a ‘‘supercomputer’’ in Macau 

or a destination specified in Country 

Group D:5; or (4) will be used in the 

development or production of an item 

that will ultimately be used in a 

‘‘supercomputer’’ in Macau or a 

destination specified in Country Group 

D:5. Another commenter noted that 

because of the complexity there will 

likely be some non-compliance simply 

because foreign companies cannot 

understand or do not have enough 

information to make proper 

determinations. This commenter noted 

that this complexity will make 

compliance with the EAR difficult for 

non-U.S. manufacturers, many of whom 

will not comply, not out of 

maliciousness, but simple ignorance or 

misunderstanding. 

BIS response: BIS agrees that with the 

addition of new FDP rules to the EAR, 

foreign manufacturers have increased 

compliance burdens. In adding new 

FDP rules, including the two new FDP 

rules and expanded Entity List FDP rule 

added in the October 7 IFR, BIS has 

tried to be as focused as possible. 

Accordingly, each FDP rule has its own 

criteria that needs to be reviewed. Each 

FDP rule essentially poses a series of 

questions or criteria; if one of the 

required questions or criteria is 

determined to be inapplicable, that FDP 

rule can be ruled out as governing the 

transaction. By taking this approach, 

many of the FDP rules can be ruled out 

fairly quickly. However, if the questions 

as to whether the criteria apply are 

answered in the affirmative, additional 

questions need to be asked based on the 

criteria of the respective FDP rule being 

reviewed to ultimately determine 

whether the foreign made direct product 

is subject to the EAR. BIS included a 

model certificate in the October 7 IFR to 

assist people in applying the FDP rules 

included in the October 7 IFR. In this 

AC/S IFR, the model certificate is 

broadened for use with all the FDP rules 

to ease the compliance burden on 

foreign manufacturers. BIS has been 

conducting a robust outreach program 

and updating its outreach materials on 

the BIS website to address these types 

of issues. As noted above, the basic 

approach to applying the FDP rules has 

been in the EAR for many years and has 

not changed with respect to the need to 

answer a series of questions. What is 

new is some of the additional criteria for 

the new FDP rules, in particular the end 

user and end use-based criteria included 

in some of the FDP rules. Once these 

additional criteria become familiar to 

foreign manufacturers and incorporated 

into compliance programs, these 

concerns should be reduced. BIS will 

conduct outreach on this rulemaking to 

assist exporters as they develop 

experience with the new controls. 

Topic 36: A commenter noted that the 

FDP rules capturing least sensitive items 

will lead to designing out U.S.-origin 

content. Expanding the U.S. export 

control jurisdiction to less sensitive 

items also drives foreign partners away 

from U.S. technology, software, and tool 

suppliers, as those are the basis on 

which BIS hangs its expanded 

jurisdiction. The commenter requested 

that the China-focused FDP rules be 

narrowed to apply only to specific 

products that are listed on the CCL with 

a license requirement to China, and 

should never apply to EAR99 items or 

Anti-Terrorism (AT)-only controlled 

items. 

BIS response: BIS does not agree that 

the scope of these FDP rules should be 

further narrowed. BIS calibrated the 

scope of the commodities controlled 

based on the current national security 

and foreign policy concerns. Because 

many of these lower-level items may be 

technology level agnostic, it is still 

warranted to keep them within the 

product scope of the FDP rules. 

Clarify Relationship Between FDP Rules 

and Other EAR License Requirements 

Topic 37: A commenter requested BIS 

clarify whether reexports or exports 

from abroad of FDP items also must 

consider other EAR license 

requirements in parts 742, 744, and 746. 

BIS response: For a foreign-made 

product that is located outside of the 

United States to be subject to the EAR, 

the foreign made product would need to 

meet the criteria under one or more of 

the FDP rules under § 734.9 or be 

subject to the EAR because it exceeds 

the applicable de minimis threshold. If 

the foreign-made item is not subject to 

the EAR, then none of the other EAR 

license requirements would be 

applicable. However, if the export from 

abroad or reexport of the foreign-made 

item was subject to the EAR, then the 

other EAR license requirements would 

need to also be taken into account. 

Because the export from abroad or 

reexport would already require a 

license, the impact of those other 

license requirements would primarily 

be additional license review policies 

that may be applicable. 

Need To Continuously Monitor the FDP 

Rules and revise license review Policies 

as Needed 

Topic 38: A commenter noted that BIS 

needs to continuously monitor the 

effectiveness of the FDP rules, which are 

unilateral. The commenter noted that if 

BIS cannot succeed at getting allies and 

partners to agree to substantively similar 

controls, BIS should adopt a temporary 

licensing policy that would authorize 

the provision of such services and 

exports by U.S. persons for civil 

applications and if not otherwise 

prohibited by the EAR and readily 

available from non-U.S. providers, in 

both quantity and quality, as substitutes. 

BIS response: BIS is continuously 

reviewing the FDP rules and will make 

any appropriate changes as warranted 

based on activity involving the adoption 

of multilateral and/or effective 

plurilateral controls, as well as trends 

BIS may be seeing or hearing about the 

designing out of U.S.-origin content. 

Topic 39: One commenter raised 

issues related to the legality of the 

amendments made in the FDP rule 

provisions. 

BIS response: BIS has determined that 

these changes are consistent with ECRA. 

Topic 40: A commenter asked if a 

foreign-made item not otherwise subject 

to the EAR is nonetheless subject to the 

EAR under the Entity List FDP rule 

(§ 734.9(e)(2)) if it is shipped by an 

unlisted entity to another unlisted entity 

for incorporation into a commodity 

when the shipper knows all other 

components for the commodity had 

been shipped by a Footnote 4 entity, but 

the foreign-made item will not be 

incorporated into, or used to produce or 

develop, any commodity produced, 

purchased or ordered by a listed entity. 

This same commenter asked whether 

the answer would change if a Footnote 

4 entity is a shareholder, or if a Footnote 

4 entity is a shareholder in the thirdparty assembler/seller. Another 

commenter asked whether a Footnote 4 

entity that profits from a transaction by 

and among unlisted entities, but has no 

other role or involvement, is a party to 

the transaction under § 734.9(e)(2)(ii)(B). 

BIS response: The answer to these 

types of scenarios would be factspecific. While the Footnote 4 entity 

described in these scenarios does not 

necessarily fall under one of the 

illustrative examples of parties to the 

transaction under § 734.9(e)(2)(ii)(B), 

additional analysis would be needed to 

determine whether the Footnote 4 entity 

was actually a party to the transaction. 

For example, if the items will ultimately 

be going to the Footnote 4 entity or 

ultimately for the Footnote 4 entity’s use 

or if profits were obtained by the 

Footnote 4 entity acting as a purchaser, 

or intermediate or ultimate consignee, 

then the Footnote 4 entity would be 

considered a party to the transaction. In 

scenarios where a person is not sure 


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whether the Footnote 4 entity would be 

considered a party to a transaction, they 

may contact BIS to request additional 

guidance by identifying all of the 

relevant information that they have 

regarding the involvement of that party 

in the transaction. 

Topic 41: A commenter asked 

whether BIS will consider providing 

guidance as to what other activities may 

constitute a Footnote 4 entity’s being a 

‘‘party’’ to the transaction for purposes 

of the Entity List FDP rule. We 

understand that the phrase ‘‘e.g., as a 

‘purchaser,’ ‘intermediate consignee,’ 

‘ultimate consignee,’ or ‘end-user,’ ’’ as 

used in § 734.9(e)(2)(ii)(B), signals that 

the list of referenced parties is not 

exhaustive. However, the use of ‘‘e.g.’’ 

creates significant compliance 

uncertainty. 

BIS response: BIS confirms that this 

commenter is correct that the ‘e.g.’ 

signifies that what follows is merely an 

illustrative list of parties to the 

transaction. If an exporter, reexporter, or 

transferor is determining whether an 

additional party that does not fill the 

role of one of the illustrative parties 

identified, but otherwise appears to be 

a party to the transaction, is a party to 

the transaction, they may submit an 

advisory opinion request to BIS in 

which they describe the role of that 

other party. BIS will advise if that party 

is considered a party to the transaction. 

Advanced Computing FDP Rule— 

§ 734.9(h) 

Topic 42: A commenter requested BIS 

clarify the relationship between 

§ 734.9(h) and § 742.6 for ECCN 5A002 

and License Exception ENC. This 

commenter noted that the EAR should 

in the Advanced Computing FDP, 

reference the license requirements 

under § 742.15 Encryption items (EI) 

controls because this is important for 

determining which additional EAR 

restrictions may be applicable. For 

example, § 740.2 restrictions may 

restrict the use of License Exception 

ENC. 

BIS response: This AC/S IFR adds .z 

‘items’ paragraphs to nine ECCNs, 

including to ECCN 5A002.z and makes 

conforming changes to add these .z 

ECCNs, such as 5A002.z, to 

§ 734.9(h)(1)(i)(B)(2) or (h)(1)(ii)(B)(2), 

which is also responsive to this 

comment. 

Topic 43: 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. 

Narrow the Scope of § 744.23 

Fabrication Controls 

Topic 44: A commenter noted that 

§ 744.23 should only apply to the direct 

end use of an item. This commenter 

noted as an example that networking 

equipment used for the enterprise 

network of a semiconductor or 

supercomputer manufacturer is not a 

direct use in the ‘‘development,’’ 

‘‘production,’’ ‘‘use,’’ operation, 

installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of a 

‘‘supercomputer’’ or IC as opposed to 

design software, materials, or test 

equipment and should be excluded from 

the license requirement. 

BIS response: BIS agrees that if the 

item is not used in the ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of a 

‘‘supercomputer,’’ IC, or SME, as 

applicable, the item would not be 

within the scope of § 744.23. However, 

the exporter would need to analyze the 

relationship between the activities 

involving the enterprise network and 

any prohibited end uses to confirm no 

license is required. 

Topic 45: A commenter noted that 

resellers of supercomputers should not 

meet the definition of a company that is 

involved in the ‘‘development,’’ 

‘‘production,’’ ‘‘use,’’ operation, 

installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of a 

‘‘supercomputer’’ under § 744.23. 

BIS response: BIS agrees and confirms 

in this AC/S IFR that the mere act of 

selling a ‘‘supercomputer’’ is not within 

the prohibited scope of § 744.23, but 

selling a ‘‘supercomputer’’ with 

knowledge that a violation of § 744.23 

has occurred, is about to occur, or is 

intended to occur in connection with an 

item subject to the EAR could be a 

violation of § 764.2(e) of the EAR. 

As-a-Service (IaaS) Solutions and the 

October 7 Controls 

Topic 46: A commenter noted that 

PRC ‘‘supercomputer’’ controls may be 

bypassed by as-a-Service (IaaS) 

solutions. The commenter noted that the 

October 7 IFR limits engagements 

towards China ‘‘supercomputer’’ 

activity in China and may preclude 

some high-performance compute 

capability to China. With the 

availability of IaaS solutions, however, 

China compute workloads can be 

offloaded to computers located in other 

states, possibly including those in the 

United States. This commenter noted 

that without a multilateral end use/end 

user control, non-U.S. states, even 

Wassenaar Arrangement partners, may 

give China computational access to their 

equivalent ‘‘supercomputers’’ via an 

IaaS arrangement. The commenter noted 

that while § 744.6 provides controls on 

U.S. persons for various situations 

involving PRC semiconductor 

fabrication, there does not appear to be 

a parallel U.S. person control for 

supercomputing. 

This comment requests that BIS 

clarify intent regarding supercomputing 

IaaS, particularly in light of previous 

Advisory Opinions on computing IaaS, 

including January 2009: Application of 

EAR to Grid and Cloud Computing 

Services, and January 2011: Cloud 

Computing and Deemed Exports. 

BIS response: BIS is also concerned 

regarding the potential for China to use 

IaaS solutions to undermine the 

effectiveness of the October 7 IFR 

controls and continues to evaluate how 

it may approach this through a 

regulatory response. See section D 

question 1 of this rule. 

Information Needed From Other Parties 

To Comply With These Controls 

Topic 47: A commenter noted that the 

burden to detect upgrades of PRC 

computers into ‘‘supercomputers’’ is 

difficult because it is a fluid moving 

target and that a PRC computer 

installation that does not meet the 

threshold at one point may be quietly 

upgraded by the operator (using 3rd 

party items) to exceed the 

‘‘supercomputer’’ threshold later. 

Exporters, reexporters, and transferors 

may not be able to rely on static End 

Use Statements or similar certifications, 

due to this ‘‘moving target’’ 

characteristic and this may require 

exporters to obtain End Use Statements 

to all PRC computer installations 

(regardless of size) for every transaction, 

which presents a high burden. The 

commenter notes this is a situation in 

which publishing a list of known 

§ 744.23 supercomputer targets will 

result in compliance that is more 

effective, more consistent, and less 

burdensome. 

BIS response: BIS intends to continue 

to identify ‘‘supercomputer’’ related 

entities on the Entity List. BIS started 

this process in the October 7 IFR and 

will continue adding more 

‘‘supercomputer’’ entities as they are 


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identified and approved for addition by 

the ERC to the Entity List. BIS 

emphasizes that § 744.23 and the 

expanded § 744.6 both contain 

‘‘knowledge’’ provisions. The 

compliance expectation is that 

exporters, reexporters, and transferors 

will evaluate the information coming to 

them in the normal course of business. 

Obtaining end-user statements is a good 

compliance practice that BIS 

encourages, but BIS does not expect that 

exporters, reexporters, or transferors 

will obtain these from every computer 

user in China, so exporters, reexporters, 

and transferors should look at all 

information they have to determine 

when additional due diligence may be 

warranted. 

Topic 48: A commenter requested that 

BIS confirm that the due diligence 

specified in BIS FAQ, IV.A2, 

‘‘Appropriate due diligence includes 

review of publicly available 

information, capability of items to be 

provided or serviced, proprietary market 

data, and end-use statements’’ 

constitutes a reasonable level of due 

diligence in this context, as well. 

BIS response: BIS confirms here that 

the same type of due diligence specified 

in BIS FAQ IV.A2 that applies for 

§ 744.6 also applies to § 744.23. 

Permit License Exception Eligibility 

Topic 49: A commenter requested BIS 

revise § 744.23(c) to permit the use of 

license exceptions specified in 

§ 740.2(a)(9) for items lawfully exported 

or reexported prior to October 7, 2022. 

BIS response: BIS does not agree. Not 

including License Exceptions RPL and 

TMP in § 744.23(c) will make the 

controls more effective because of the 

importance of parts and components to 

continued operation of items, which 

may have been received by indigenous 

companies in China without a required 

license prior to the October 7 IFR. Based 

on the national security and foreign 

policy concerns identified in the 

October 7 IFR, BIS would no longer 

support the use of these EAR items in 

China. 

Other Requested Clarifications to 

§ 744.23 

Topic 50: A commenter requested BIS 

confirm that standalone data storage 

equipment would not be considered a 

‘‘component’’ subject to 

§ 744.23(a)(1)(ii), which has been 

redesignated as paragraph (a)(1)(ii)(B) in 

this SME IFR. This commenter noted 

that the data storage equipment is selfcontained and not physically 

incorporated into a computer (e.g., it 

consists of a storage controller and an 

array of storage drives in a separate 

enclosure). 

BIS response: BIS does not agree. BIS 

does not consider standalone data 

storage equipment classified as ECCN 

5A002 to be controlled under 

§ 744.23(a)(1)(ii), now redesignated as 

(a)(1)(ii)(B), because standalone storage 

equipment is not a computer or 

component of a computer. Standalone 

data storage equipment classified as 

ECCN 5A002 is considered a 

‘‘component’’ for purposes of 

§ 744.23(a)(1)(ii)(B). This SME IFR 

clarifies this point by adding ‘‘the 

incorporation into, or the 

‘‘development’’ or ‘‘production’’ of any 

‘‘component’’ or ‘‘equipment’’ that will 

be used in, a ‘‘supercomputer’’ ’’ to 

make it clear that § 744.23(a)(1)(ii)(B) is 

intended to cover ‘‘components’’ of a 

separate computer going into a 

supercomputer, e.g., a chip going into a 

server which is going into a 

supercomputer. 

Topic 51: A commenter requested that 

BIS clarify how broadly exporters may 

interpret the term ‘‘used’’ in 

determining the product scope under 

§ 744.23(a)(1), which has been 

redesignated as paragraph (a)(1)(i) in 

this SME IFR. This commenter seeks 

confirmation that their understanding is 

correct that any product that does not 

contribute to the ‘‘development’’ and 

‘‘production’’ of the product would fall 

outside the scope of these controls. For 

example, storage devices and 

networking devices may be present in a 

facility, but they are not ‘‘used’’ for the 

specified end use, and therefore would 

not be subject to control under this 

provision and can be exported without 

a license. Other examples include socalled Facility Monitoring and Control 

Systems (e.g., HVAC, clean room 

temperature, and chillers, pumps and 

boilers, as well as so-called voltage sag 

correctors, which provide protection for 

electric equipment from voltage 

variations). 

BIS response: Section 744.23(a) 

specifies that the license requirements 

apply when the item will be used in an 

end use described under paragraph 

(a)(2)(i) or (ii) of this section, which has 

been redesignated as paragraph 

(a)(1)(ii)(A) and (B) in this SME IFR. The 

terms ‘‘development’’ and ‘‘production’’ 

encompass all of the items used in those 

activities, so BIS takes an expansive 

view of what items would be caught 

under those terms. 

Topic 52: A commenter asked BIS to 

confirm whether the scope and reach of 

§ 744.23(a)(2)(iii), which has been 

redesignated as paragraph (a)(2)(i) in 

this SME IFR, apply equally to 

application of the controls over the 

shipment from outside the United States 

of foreign-origin items not subject to the 

EAR under the requirements of 

§ 744.6(c)(2)(i) and (ii). 

BIS response: For purposes of the 

‘‘U.S. person’’ prohibition under 

§ 744.6(c)(2)(i) and (ii), BIS will attempt 

to maintain consistent approaches in 

interpreting §§ 744.6(c)(2) and 744.23. 

BIS’s response to Topic 61 on § 744.23, 

which lays out how BIS would interpret 

§ 744.6(c)(2) for a similar fact pattern 

involving the U.S. person control. 

Topic 53: A commenter requested BIS 

clarify whether the controls extend to 

projected future activity not yet started 

under § 744.23(a)(2)(iii) and (iv), which 

have been redesignated as paragraphs 

(a)(2)(i) and (ii) in this SME IFR. The 

commenter noted that there is confusion 

regarding the proper tense of the rules 

and asks whether the language as 

written includes aspirational production 

and development in the future. BIS 

should clarify whether ‘‘fabricates’’ 

applies in the context of a fabrication 

facility that has plans for future 

advanced node production or whether 

the rule applies to current advanced 

node production only. 

BIS response: Aspirational 

development or production in the future 

would raise a red flag that would 

require additional due diligence to 

determine whether a license is required 

under § 744.23(a)(2)(iii) and (iv), which 

have been redesignated as paragraphs 

(a)(2)(i) and (ii) in this SME IFR. This 

AC/S IFR adds a new red flag to provide 

additional compliance guidance on 

these types of scenarios. 

Entity List Changes for Footnote 4 

Entities 

Topic 54: A commenter noted that it 

is not clear what specific activities 

involving expanded Entity List 

(Footnote 4) entities may be prohibited, 

assuming the product scope is met, 

especially if the activity does not 

involve providing any products to the 

Footnote 4 entity and the entity is not 

a party to the transaction between the 

parties buying and providing the 

foreign-made item. 

BIS response: The Entity List license 

requirements apply to exports, 

reexports, and transfers (in-country) that 

are subject to the EAR when a listed 

entity is a party to the transaction. This 

is also the scope of the license 

requirement for the entities on the 

Entity List with a footnote 4 

designation, but because of the footnote 

4 designation, the license requirement 

specified in § 744.11(a)(2)(ii) (Footnote 4 

entities) is also applicable, which 

specifies a license is required for 

reexport, export from abroad, or transfer 


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(in-country) of any foreign-produced 

item subject to the EAR pursuant to 

§ 734.9(e)(2) of the EAR when an entity 

designated with footnote 4 on the Entity 

List in supp. no. 4 to this part is a party 

to the transaction, or that will be used 

in the ‘‘development’’ or ‘‘production’’ 

of any ‘‘part,’’ ‘‘component,’’ or 

‘‘equipment’’ produced, purchased, or 

ordered by any such entity. Section 

744.11(a)(2)(ii) also includes a cross 

reference to § 744.23 for additional 

license requirements that may apply to 

these entities, so the § 744.23 license 

requirements also need to be taken into 

account. 

Topic 55: A commenter noted that 

§ 744.11 states that a license is required 

for the incorporation of a foreign-made 

item into any ‘‘part,’’ ‘‘component,’’ or 

‘‘equipment,’’ produced by a Footnote 4 

entity. However, BIS does not specify if 

a license is needed for a scenario in 

which a third-party procures parts, 

components, or equipment made by a 

Footnote 4 entity and incorporates a 

foreign made item into Footnote 4’s 

product, and the procedure is not done 

on behalf of the Footnote 4 entity, nor 

will the final product be destined for a 

Footnote 4 entity. The commenter 

requests BIS release additional 

clarification on whether license 

requirements apply to sales to third 

parties assembling a mixture of foreignmade and Footnote 4 entity components 

that are not destined for a footnote 4 

entity. 

BIS response: The license requirement 

under § 744.11(a)(2)(ii) extends to items 

that will be used in the ‘‘development’’ 

or ‘‘production’’ of any ‘‘part,’’ 

‘‘component,’’ or ‘‘equipment’’ 

produced by any such entity. Therefore, 

in a scenario in which a third-party 

procures items produced by a Footnote 

4 entity and adds to it using a foreignmade item, the license requirements 

would still apply in that scenario to that 

foreign-made item because even if the 

Footnote 4 entity is not subsequently 

receiving the items or receiving 

compensation from the third-party that 

used its item, the further processing 

using the foreign-made item would be 

part of the larger ‘‘production’’ process 

of the Footnote 4 entity. 

Topic 56: A commenter requested BIS 

revise the 28 Entity List footnote entries 

to address an inconsistency in the 

license requirement by inserting ‘‘for 

additional license requirements for 

Foreign-Direct Product)’’ after ‘‘(See 

§ 734.9(e) and 744.11 of the EAR).’’ 

BIS response: BIS does not agree that 

a change needs to be added to these 

entities. The Footnote 4 text provides 

additional context on the meaning and 

scope of this parenthetical phrase 

included in the 28 entities. 

Requested Changes or Clarifications to 

‘‘Supercomputers’’ Definition in § 772.1 

Topic 57: A commenter requested BIS 

clarify what is intended by closely 

coupled compute cores in Note 2 of the 

‘‘supercomputers’’ definition. 

Specifically, the commenter asks BIS to 

clarify whether ‘‘closely coupled 

compute cores’’ refers to a system in 

which all hardware and software 

components are linked together and 

dependent on one another and whether 

the type of interconnect is relevant to 

this analysis. 

BIS response: Note 2 of the 

‘‘supercomputer’’ definition is meant to 

provide a general statement of scope of 

a typical supercomputer. It is not 

intended to impose additional 

requirements beyond the main 

definition. By using the term ‘‘closely 

coupled compute cores,’’ BIS intended 

to note that supercomputers typically 

have thousands of cores working in 

parallel in the same location and 

connected by a high-speed interconnect 

such as Infiniband or Ethernet. BIS also 

intended to make clear that computers 

that are connected together through the 

internet over long distances are not the 

type of computer that would meet the 

definition of ‘‘supercomputer.’’ 

Topic 58: A commenter requested that 

BIS identify the items of real concern 

regarding the ‘‘supercomputer’’ end use. 

Hitting the threshold of 

‘‘supercomputer’’ is not difficult, and 

when triggered under the October 7 IFR, 

even items included in 5A992 will be 

prohibited. The commenter noted that 

could prohibit even a standard laptop 

from being shipped if it is somehow 

being ‘‘used’’ in a supercomputer. 

BIS response: BIS does not agree that 

the area of concern for supercomputers 

was not adequately identified in the 

October 7 IFR and the definition of 

‘‘supercomputer’’ in § 772.1. The 

definition includes clear technical 

parameters for the types of 

supercomputers that are of concern. 

Specifically, a computing ‘‘system’’ 

having a collective maximum 

theoretical compute capacity of 100 or 

more double-precision (64-bit) petaflops 

or 200 or more single-precision (32-bit) 

petaflops within a 41,600 ft3 or smaller 

envelope. The definition includes Note 

1 and 2 to further clarify the types of 

computers of concern. The preamble of 

the October 7 IFR identified the national 

security and foreign policy concerns 

associated with a computer system that 

can operate at these levels. 

Requested Changes or Clarifications to 

Other Definitions 

Topic 59: A commenter noted that the 

definition of ‘‘transfer (in-country)’’ 

should not cover in-country movements 

to effectuate repair services. This 

commenter noted that in considering 

whether an in-country movement 

constitutes a change in end user, this 

commenter believes that an entity 

performing repairs or otherwise 

servicing an item is not an ‘‘end user’’ 

as defined in part 772 of the EAR. 

Specifically, the repair/service company 

is not the party that ultimately uses the 

item, but is instead taking an action on 

behalf of the user and specifically for 

the purpose of returning the repaired 

item to the user. As a service/repair 

company does not fall within the scope 

of an end user under the EAR, 

temporary in-country movements to or 

from repair/service companies should 

not constitute a change in end user. 

BIS response: This commenter’s 

understanding of the scope of transfer 

(in-country) is not correct and is 

inconsistent with long-standing agency 

interpretation of the scope of transfer 

(in-country). The person that receives 

the item is changing the end use of the 

item by using the item for a repair or 

servicing of the item, or, in the case of 

destruction, for destroying the item. The 

definition of end user includes the 

phrase ‘‘ultimately uses the item,’’ but 

does not specify that the item needs to 

be used for its intended end use. 

Someone repairing or servicing an item 

is using the item for a different purpose. 

Someone that is destroying an item is 

using the item for a specific purpose— 

the destruction of the item. Even 

transferring the item to another party for 

storage (a type of end use) would be 

considered a change in end use and end 

user because that other party would be 

using the item by storing it for future 

use by another party. BIS notes that one 

exception to this would be if another 

party came to service or destroy an item 

at the location of the authorized end 

user, such as coming to repair or to 

destroy a machine tool that would not 

be considered a transfer (in-country), 

provided the authorized end user 

maintained possession and control of 

the item at their facility. For most 

transfers (in-country), such as when an 

item is received under a BIS license and 

needs to be transferred (in-country) to a 

repair center, paragraph (a)(6) of License 

Exception TMP is used to authorize the 

transfer (in-country) to a repair facility 

and License Exception RPL is used to 

authorize the transfer (in-country) back 

to the original party. However, for the 

part 744 end use and end user controls, 


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License Exceptions TMP and RPL are 

not available, so a license is required for 

that activity. Lastly, BIS adds that if the 

item had been received with no license 

requirement (i.e., No License Required 

(NLR)) or under authorization of a 

license exception that did not have 

terms specific to end use or end user, 

such as License Exception GBS (not 

applicable for China, but included as an 

example), then a transfer (in-country) to 

a repair center would not require an 

authorization, provided there were no 

parts 744 or 746 license requirements 

applicable that applied to transfers (incountry). BIS also highlights that 

because the RS license requirement 

under § 744.6(a)(6) extends to transfers 

(in-country) for the items controlled for 

RS in this AC/S IFR and SME IFR that 

an EAR authorization is required for all 

transfers (in-country) of items subject to 

the EAR unless the original 

authorization also authorizes 

subsequent transfers (in-country), e.g., if 

a 3A090.a item was received under a 

BIS license by an ultimate consignee 

listed on the license and was being 

transferred within China to authorized 

end users on the license. 

Appropriateness of the Scope of U.S. 

Person Control 

Topic 60: A commenter noted that the 

October 7 IFR is overly broad, 

particularly with respect to the 

prohibitions on U.S. person ‘‘support’’ 

for certain semiconductor 

manufacturing activities in § 744.6(c)(2). 

In the absence of clear scoping 

restrictions, these broad controls create 

difficulty for U.S. companies and 

individuals trying to comply and make 

it almost impossible for them to 

understand what they can and cannot 

do. 

BIS response: This AC/S IFR has 

narrowed the scope of § 744.6 where 

warranted to better focus the controls on 

activities of national security concern. 

This rule has also clarified the scope of 

‘‘U.S. person’’ activities that are caught, 

which incorporates FAQs previously 

published on the BIS website. 

Additional discussion of amendments to 

§ 744.6 can be found in Section C.4 of 

this rule. 

Topic 61: A commenter noted that a 

‘‘U.S. person’’ should not have to obtain 

a license under § 744.23(a)(2)(iv) 

because an item could potentially be 

used in an end use of concern. This 

commenter asked why a U.S. person 

with no knowledge of a proscribed 

activity, but with knowledge of a nonproscribed activity for a dual use 

computer or IC, should be required to 

seek a license involving a non-U.S.- 

origin item, simply because of a BIS 

theory, based on no knowledge, that the 

activity ‘‘could involve’’ WMD use. 

BIS response: The ‘‘U.S. person’’ 

would have a ‘‘knowledge’’ under 

§ 744.6(c)(2)(iv), now redesignated as 

§ 744.6(c)(2)(ii), that the CCL Category 3, 

B, C, D, or E item was for use for 

‘‘development’’ or ‘‘production’’ of 

integrated circuits at a ‘‘facility,’’ which 

this SME IFR updates to ‘‘of an entity 

headquartered in either Macau or a 

destination specified in Country Group 

D:5.’’ When this SME IFR and AC/S IFR 

use the term ‘‘headquartered’’ in these 

two rules, it includes parent entities. 

China’s use of ICs in WMD-related 

activities warrants imposition of a 

higher level of affirmative duty to 

‘‘know’’ in order to not be subject to a 

license requirement. 

‘‘U.S. Person’’ Control Due Diligence 

Requirements, as Well as Certain 

Limitations on Foreign Companies 

Identifying People by Nationality 

Topic 62: Some commenters noted 

that requiring positive knowledge is a 

burden shift for an end use control. This 

commenter noted that the 

§ 744.6(c)(2)(iv)–(vi) requirement 

represents an unprecedented burden 

shift. Whereas BIS has previously 

required that companies not engage in 

willful blindness or ignorance regarding 

the end use of their exports, this 

component of the rule effectively 

mandates diligence via a licensing 

requirement. 

BIS response: BIS does not agree with 

these commenters that the control 

requiring positive knowledge is 

unprecedented. For example, 

§ 744.3(a)(3) (which has been in the EAR 

for about 19 years) imposes a license 

requirement for all items subject to the 

EAR when the exporter, reexporter, or 

transferor has ‘‘knowledge’’ that the 

item subject to the EAR ‘‘will be used 

in the design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of any rocket 

systems or unmanned aerial vehicles in 

or by a country listed in Country Group 

D:4, but you are unable to determine the 

characteristics (i.e., range capabilities) 

of the rocket systems or unmanned 

aerial vehicles, or whether the rocket 

systems or unmanned aerial vehicles, 

regardless of range capabilities, will be 

used in a manner prohibited under 

paragraph (a)(2) of this section.’’ A more 

recent example that was added in 2014 

to part 746 under § 746.5(a)(1)(i) 

specifies that a license is required to 

export, reexport, or transfer (in-country) 

any item subject to the EAR listed in 

supplement no. 2 to this part and items 

specified in ECCNs 0A998, 1C992, 

3A229, 3A231, 3A232, 6A991, 8A992, 

and 8D999 when you ‘‘know’’ that the 

item will be used directly or indirectly 

in exploration for, or production of, oil 

or gas in Russian deepwater (greater 

than 500 feet) or Arctic offshore 

locations or shale formations in Russia 

or Belarus, or are unable to determine 

whether the item will be used in such 

projects. 

Topic 63: A commenter noted that for 

the first time, BIS has used the EAR to 

inform all U.S. persons around the globe 

that certain specific activities of U.S. 

persons are regulated because they 

could support prohibited WMD 

activities in China. This commenter 

noted that the regulated activities all 

involve shipping, transmitting, 

transferring (in-country), or servicing, or 

facilitating the shipment, transmission, 

or transfer (in-country), of certain items 

that are ‘‘not subject to the EAR’’ to or 

within China. 

BIS response: BIS does not agree. The 

regulated activities are consistent with 

other regulated activities under § 744.6 

and the activities are being regulated 

because they could support prohibited 

WMD activities in China and Macau. 

Topic 64: A commenter noted that 

many foreign employers do not track 

whether persons are U.S. persons, 

which will make it harder to comply 

with these U.S. person controls. The 

application of these new controls will 

be complicated, as U.S. person status is 

not widely maintained by non-U.S. 

employers. These new controls raise 

certain specific practical 

implementation concerns. 

BIS response: BIS does not agree that 

a ‘‘U.S. person’’ restriction applies to a 

non-U.S. person entity (e.g., a foreign 

corporation) that employs the U.S. 

person, unless the entity had knowledge 

of the individual’s U.S. person status 

and that the individual was in violation 

of an applicable U.S. person control. 

While a corporation may not track the 

U.S. person status of its personnel, a 

natural person would be positioned to 

‘‘know’’ whether they were a ‘‘U.S. 

person.’’ 

U.S. Person Control Impact on U.S. 

Persons Working Outside the U.S. and 

on Innovation 

Topic 65: A commenter noted that 

without clarification as to the scope of 

what U.S. person activities constitute 

support for the development of certain 

advanced semiconductors and 

associated technologies in China, 

§ 744.6(c)(2) will have a chilling effect 

on U.S. academic collaborations with 

universities in China as well as on U.S. 

university recruitment of highly 


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qualified students and researchers from 

China in the semiconductor field. This 

may detrimentally impact U.S. 

leadership and competitiveness in the 

advanced semiconductor sector. 

Another commenter noted that the U.S. 

person control may result in companies 

not hiring U.S. persons. This commenter 

noted that despite added clarifications 

from BIS regarding the scope of these 

restrictions, the relevant provisions 

continue to be mired in uncertainty. 

Companies, consequently, may choose 

to interpret the U.S. persons provisions 

broadly, and needlessly restrict their 

U.S. person employees and contractors 

from engaging in a number of businesscritical functions, which prevents such 

persons from participating fully in 

company operations. In any event, U.S. 

person individuals can often be readily 

replaced by non-U.S. person individuals 

without impeding the shipment of nonEAR items to a covered fabrication 

facility. 

BIS response: The intent of the 

October 7 IFR and this AC/S IFR and 

SME IFR is to impose controls as 

focused as possible in addressing the 

ongoing U.S. national security and 

foreign policy concerns discussed in 

these rules. BIS does not intend the new 

controls to chill research by U.S. 

universities or undercut U.S. 

technological leadership where such 

activity does not present national 

security or foreign policy concerns. 

With its initial FAQs on the October 7 

IFR, BIS clarified the intended scope of 

the ‘‘U.S. persons’’ controls. This AC/S 

IFR adds those clarifications to the EAR. 

In addition, this AC/S IFR clarifies that 

the scope of § 744.6 does not include 

information or software that would 

otherwise be excluded from the EAR 

based on the exclusion criteria under 

part 734, e.g., under § 734.7 Published 

and § 734.8 ‘‘Technology’’ or ‘‘software’’ 

that arises during, or results from, 

fundamental research, as well as 

specifying this in § 744.6(d)(1)(ii). BIS 

does not intend for the October 7 IFR 

controls to result in foreign companies 

not wanting to hire ‘‘U.S. persons.’’ BIS 

believes the clarifications made to 

§ 744.6 in this AC/S IFR and SME IFR 

should reduce these concerns. The U.S. 

person changes made in this rule are 

discussed in Section C.4. 

Topic 66: A commenter noted that the 

U.S. person control has broad 

applicability to many people outside the 

U.S. and could be discriminatory to 

them. It is important for BIS to take into 

account that many individuals located 

abroad fall within the definition of ‘‘U.S 

person’’ even if they have never lived in 

the United States or are currently 

permanently residing outside of the U.S. 

and these individuals should not be 

singled out due to their citizenship, 

which can lead to discrimination and 

other claims under the laws of certain 

countries. 

BIS response: The intent of the 

October 7 IFR was to be as focused as 

possible in addressing ongoing U.S. 

national security and foreign policy 

concerns. Being a ‘‘U.S. person’’ has 

many benefits, but also certain 

responsibilities that go along with being 

a ‘‘U.S. person,’’ such as not being 

involved in specified activities that are 

of concern for WMD reasons as 

specified under § 744.6. The U.S. 

Department of Treasury’s Office of 

Foreign Assets Controls (OFAC) also has 

certain responsibilities and restrictions 

that go along with being a U.S. person, 

so BIS also directs commenters in this 

area to review the applicable OFAC 

controls on U.S. persons that may be 

applicable. 

Whether To Use Export, Reexport, and 

Transfer (In-Country) Controls or a U.S. 

Person Control To Address This 

National Security Issue 

Topic 67: A commenter requested that 

the new restrictions on semiconductor 

manufacturing be implemented solely 

through BIS’s traditional jurisdiction 

over exports, reexports, and transfers 

(in-country) of items subject to the EAR, 

rather than a new, untested, and overly 

broad restriction on U.S. person 

‘‘support’’ activities. 

BIS response: The national security 

and foreign policy concerns addressed 

in the October 7 IFR required that BIS 

use its full set of regulatory tools under 

the EAR, which included using CCLbased controls, end-use controls, and 

end-user controls. For the end-use 

controls, BIS used both a standard enduse control and expanded the ‘‘U.S. 

person’’ control to appropriately address 

its concerns. This AC/S IFR and SME 

IFR have focused and clarified the scope 

of both §§ 744.6 and 744.23. 

Provide More Information on Restricted 

U.S. Person Activities 

Topic 68: A commenter requested BIS 

amend the list of controlled activities to 

specify whether additional business 

processes are controlled or not. This 

commenter noted that doing so will 

decrease compliance delays arising from 

ambiguous language. For example, it is 

not clear if restrictions apply to a U.S. 

person that processes product payments 

but does not conduct physical transfer 

of subject items. 

BIS response: This AC/S IFR adds 

paragraph (c)(3) (Scope of activities of 

‘‘U.S. persons’’ that require a license 

under § 744.6(c)(2) of the EAR), 

including sub-paragraph (c)(3)(i) that 

provides greater specificity on the ‘‘U.S. 

person’’ activities that are caught, 

consistent with the FAQs posted on the 

BIS website on January 25, 2023 on the 

scope of the ‘‘U.S. persons’’ control in 

§ 744.6(c)(2). This AC/S IFR adds 

paragraph (c)(3)(ii) (Due diligence) to 

provide compliance guidance for this 

‘‘U.S. person’’ control, and adds 

paragraph (d)(1) (Exclusion of certain 

administrative and clerical activities) to 

add greater specificity on the ‘‘U.S. 

person’’ activities that are excluded. 

U.S. Persons Giving Up U.S. Citizenship 

or Permanent Residency in Order To 

Participate in PRC Innovation Efforts 

Topic 69: A commenter noted that 

some U.S. persons may give up their 

U.S. nationality to help China build 

advanced semiconductors, and they 

would be compensated by the PRC 

government to obtain a third country 

passport. This commenter noted in this 

scenario that the now-former U.S. 

persons’ spouses may still be U.S. 

citizens, so these persons will be able to 

return to the United States when they 

retire after making money in China. This 

commenter believes this is a very clear 

loophole in the October 7 IFR. 

BIS response: The October 7 IFR and 

this AC/S IFR and SME IFR used the 

various export control tools that BIS has 

under its jurisdiction to address U.S. 

national security and foreign policy 

concerns. BIS included an expanded 

‘‘U.S. person’’ control because of its 

concerns that these types of items that 

are being used by China are part of their 

WMD programs. BIS highly discourages 

any ‘‘U.S. person’’ from relinquishing 

U.S. nationality to help China engage in 

military advancement and human rights 

violations. BIS does not have regulatory 

authority over immigration matters, so 

BIS is not positioned to respond to that 

aspect of the comment. However, being 

a U.S. citizen or legal permanent 

resident of the U.S. has certain benefits 

and legal rights that are not afforded to 

foreign persons. BIS cautions anyone 

that is considering giving up their U.S. 

nationality for purposes of work in the 

advanced semiconductor industry in 

China to weigh those considerations 

carefully and not assume they would be 

able to return to the United States 

following participation in activities 

contrary to U.S. national security and 

foreign policy interests. BIS also notes 

that a person who relinquished their 

U.S. nationality would become a foreign 

person for purposes of ERC assessment. 


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Meaning and Scope of ‘Support’ Under 

U.S. Person Control in § 744.6(b)(6) 

Topic 70: 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. This 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 71: A commenter noted that 

§ 744.6 prohibits U.S. persons from 

providing ‘‘support’’ for WMD-related 

end uses and § 744.6(c) provides that 

certain specified activities by U.S. 

persons involving items not subject to 

the EAR used in semiconductor 

fabrication could involve ‘‘support’’ for 

a prohibited WMD-related end use, but 

it does not say that these specified 

activities are the only activities by U.S. 

persons related to semiconductor 

fabrication that are considered 

prohibited ‘‘support’’ for WMD-related 

end uses. 

BIS response: This commenter misses 

the intent of the phrase ‘‘which could 

involve ‘support’ for the [WMD]-related 

end uses set forth in paragraph (b) of 

this section’’ in the introductory text of 

§ 744.6(c)(2). The prohibition under 

§ 744.6(c)(2) is limited to the exhaustive 

listing of ‘support’ activities defined 

under § 744.6(b)(6). The phrase ‘‘which 

could involve’’ is an acknowledgement 

that in certain cases these activities 

described under § 744.6(c)(2) may not 

involve WMD-related activities, but BIS 

believes that there is a significant 

possibility that in Macau or a 

destination specified in Country Group 

D:5 such end-uses could involve WMDrelated activities. In cases in which a 

‘‘U.S. person’’ believes the prohibited 

activity does not involve a WMD-related 

activity, the ‘‘U.S. person’’ can set forth 

its reasoning in the license application. 

Topic 72: A commenter asked BIS to 

confirm whether expediting a part or 

component shipment with a supplier or 

vendor, by a ‘‘U.S. person,’’ is within 

the scope of the controls in § 744.6 or 

§ 744.23 if there is knowledge that such 

a part or component will be exported, 

reexported, or transferred to a covered 

fabrication facility. Another commenter 

noted that it is unclear whether the 

reference to ‘‘support’’ in § 744.6(c)(2) 

incorporates all of the definitions of 

‘‘support’’ under § 744.6(b)(6) in the 

activities that are prohibited under 

§ 744.6(c)(2). 

BIS response: For the comment 

regarding expediting a part or 

component, whether that activity is 

captured would depend on whether the 

act was limited to a U.S. person 

conducting administrative or clerical 

activities or otherwise implementing a 

decision already approved by other 

persons, consistent with § 744.6(d)(1)(i), 

added in this rule. In addition, the 

reference to ‘‘support’’ in § 744.6(c)(2) 

incorporates all of the definitions of 

‘‘support’’ under § 744.6(b)(6) in the 

activities that are prohibited under 

§ 744.6(c)(2). 

BIS Has Experience With Regulating 

Facilitating, but Should Adopt a 

Definition That Is Narrower Than That 

Used by OFAC 

Topic 73: A commenter noted that 

restrictions on exports of services by 

U.S. persons are traditionally 

administered by OFAC, which has 

accordingly developed a framework of 

guidance and authorizations over time 

to facilitate the implementation of these 

restrictions. Some commenters noted 

that the scope of ‘‘facilitate’’ should be 

narrower under EAR than under the 

OFAC sanctions. These commenters 

noted that while BIS and OFAC share 

some overlapping jurisdiction, the 

underlying statutory authorities for the 

EAR and the OFAC regulations are no 

longer aligned—the current EAR is 

legally framed by ECRA, not the 

International Emergency Economic 

Powers Act (IEEPA). These commenters 

noted that this distinction underscores 

that controls on ‘‘facilitation’’ or 

‘‘facilitating’’ enacted by BIS under the 

authority of the EAR or ECRA must be 

more limited than controls imposed by 

OFAC under IEEPA’s broad authority. 

BIS response: BIS has long experience 

with regulating activity using the term 

facilitating as Section 744.6 has been in 

the EAR since the early 1990s. Use of 

this term under the EAR is specific to 

BIS, and other interpretations from 

other agencies are not applicable under 

the EAR. Moreover, BIS interpretations 

should not be applied to the regulations 

of any other export control agencies, 

such as OFAC. Questions on the use of 

OFAC regulations terminology should 

be directed to OFAC. 

Topic 74: A commenter requested BIS 

adopt the definition of ‘facilitation’ as, 

‘‘Authorizing, servicing, and conducting 

support on the production of advanced 

nodes.’’ Another commenter requested 

that facilitating should be replaced with 

the term authorizing if that is what is 

really intended, noting that BIS 

guidance indicates that ‘‘facilitating’’ 

such activities means ‘‘authorizing’’ 

such activities. Without such an 

amendment, U.S. persons can be 

unnecessarily cut out from fully 

engaging in the business of their 

employer. 

BIS response: The term ‘facilitation’ 

in the context of § 744.6(b)(6)(iii) has 

broader application than to just 

paragraph (c)(2), so it would not be 

appropriate to adopt the suggested 

definitions. Authorizing is an important 

part of the scope of facilitating, but there 

are additional activities that fall under 

facilitating that also need to be caught, 

so removing facilitating and adding in 

its place authorizing is not accepted. 

Meaning and Scope of Definition of 

‘Production’ 

Topic 75: A commenter requested that 

BIS provide an exact definition of 

‘‘production’’ because it is not clear 

under the October 7 IFR. 

BIS response: ‘‘Production’’ is a 

foundational EAR term that is already 

defined in § 772.1. The term is also 

defined and used in the multilateral 

export control regimes. As a result, there 

should be no ambiguity in how the term 

is used and no need for an additional 

definition for this term. 

Meaning and Scope of Definition of 

‘Servicing’ 

Topic 76: A commenter requested that 

BIS provide an exact definition of 

‘‘servicing’’ because it is not clear under 

the October 7 IFR. 

BIS response: The term servicing has 

been used in the EAR for many decades 

and in various EAR provisions, such as 

under License Exception RPL under 

§§ 740.10 and 764.2(e), and in General 

Prohibition 10 under § 736.2(b)(10). 

This term is intended to have an 

expansive meaning and BIS believes it 

is well understood in the context of the 

EAR. For example, in the context of 

License Exception RPL, servicing means 

inspection, testing, calibration or repair, 

including overhaul and reconditioning 

(see § 740.10(b)(2)(i)). BIS has also 

provided guidance through FAQs on the 

October 7 IFR on what U.S. person 

activities are captured by servicing for 


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purposes of § 744.6. BIS interprets the 

meaning of servicing in the context of 

§ 744.6 consistent with the expansive 

definition provided under License 

Exception RPL. 

Scope of Information Covered Under the 

‘‘U.S. Person’’ Control 

Topic 77: Commenter requests that 

BIS clarify the scope of ‘‘any item not 

subject to the EAR’’ in § 744.6(c)(2) to 

specifically exclude technology and 

software that is published and/or that 

arises during or results from 

fundamental research. Another 

commenter is concerned that, without 

further clarification from BIS regarding 

the scope of ‘‘support’’ and 

‘‘facilitating,’’ these terms could be 

interpreted to include core university 

activities such as training and teaching 

students and researchers from China in 

the United States. This commenter 

requests that BIS expand FAQ IV.A2 to 

further clarify that these terms do not 

include training and teaching of 

students and researchers from China in 

the United States. 

BIS response: BIS agrees. As noted 

above, this AC/S IFR in responding to 

these comments clarifies that the scope 

of § 744.6(c)(2) does not include 

information or software that would 

otherwise be excluded from the EAR 

based on the exclusion criteria under 

part 734, e.g., under § 734.7 Published 

and § 734.8 ‘‘Technology’’ or ‘‘software’’ 

that arises during, or results from, 

fundamental research, which this AC/S 

IFR specifies in § 744.6(d)(1)(ii). 

Exclude Certain Activities When 

Employer Has a BIS Authorization To 

Engage in Those Activities 

Topic 78: A commenter requested BIS 

issue guidance that activities of U.S. 

persons in support of licensed activities 

by their employer are excluded from the 

scope of the controls. It would be 

unfortunate for a U.S. person to 

unintentionally violate the EAR because 

the items subject to the EAR that they 

are exporting or reexporting subject to a 

BIS license happen to include an item 

that was not subject to the EAR, such as 

bundled software or a spare part. 

BIS response: BIS clarifies here in this 

AC/S IFR that existing BIS licenses 

would also cover such ‘‘U.S. person’’ 

activities as described in the 

commenter’s scenario. BIS cautions that 

if the activity being provided goes 

outside the scope of the BIS license, 

then a separate analysis of that ‘‘U.S. 

person’’ activity must be conducted. 

C. Expansion of Export Controls on 

Advanced Computing Items and 

Supercomputers 

This section describes the specific 

EAR revisions adopted in this IFR, 

which expand and refine the October 7 

IFR with respect to advanced computing 

items and supercomputers, and 

addresses the national security concerns 

that led to an expansion of the country 

scope for these commodities and related 

software and technology. 

Overview of EAR Changes 

This AC/S IFR revises ECCN 3A090 to 

remove paragraph a, including 

paragraphs a.1 through a.4, and adds in 

its place a simplified control paragraph. 

Those changes, as well as a conforming 

change to ECCN 3A991.p, are discussed 

below in section C.1 of this rule. This 

rule also introduces License Exception 

Notified Advanced Computing (NAC), 

which is discussed in section C.2. In 

response to public comments, the rule 

also replaces the criteria ‘‘any other item 

on CCL that meet or exceed the 

performance parameters of 3A090 or 

4A090’’ by positively identifying those 

ECCNs in new .z paragraphs, along with 

various conforming changes related to 

the new .z paragraphs in other parts of 

the EAR. The public comments on this 

issue are described in section B under 

Topics 19–24; additional details about 

those changes, and the accompanying 

conforming changes including to the 

Automated Export System (AES), can be 

found in section C.3. 

In addition, this rule broadens the 

country scope for the Regional Stability 

controls to destinations specified in 

Country Groups D:1, D:4, and D:5 in 

supplement no. 1 to part 740 that are 

not also specified in Country Groups 

A:5 or A:6 and amends the licensing 

policy, as described in section C.4. 

Section C.5 discusses clarifications to 

the scope of ‘‘U.S. person’’ and end-use 

controls related to supercomputers and 

advanced computing items. Section 

744.23 is expanded to capture PRC 

operations outside of China in light of 

ongoing national security concerns 

related to diversion and misuse of items 

subject to the EAR; those changes are 

discussed in section C.6. As discussed 

in section C.7, this rule adds ECCNs 

3A991.p and 4A994.l to License 

Exception Consumer Communication 

Device (CCD). 

As discussed in section C.8, this rule 

also broadens the country scope with 

respect to the advanced computing FDP 

rule to destinations specified in Country 

Groups D:1, D:4, and D:5 that are not 

also specified in Country Groups A:5 or 

A:6. Section C.9 describes changes 

clarifying that the model certificate 

published in the October 7 IFR may be 

used for all FDP rules. Section C.10 

discusses changes to enhance 

compliance, including the addition of 

five new red flags to assist with 

compliance, including adding a red flag 

for enhanced FDP guidance for 

recognizing ‘‘direct products.’’ The 

addition of one new TGL is described in 

section C.11. Additional corrections and 

clarifications made in this rule are 

described in section C.12. 

Lastly, BIS requests specific 

comments on several issues, which are 

listed and described in section D. 

National Security and Foreign Policy 

Considerations for Expanding Controls 

and Country Scope 

As noted earlier in the rule, these 

advanced or frontier AI capabilities, 

such as large dual-use AI foundation 

models with capabilities of concern are 

particularly problematic because their 

use can lead to improved design and 

execution of WMD and advanced 

conventional weapons. Military 

decision-making aided by these AI 

models can improve speed, accuracy, 

planning, and logistics. The use of such 

items in development and deployment 

of these AI models would further 

China’s goals of surpassing the military 

capability of the United States and its 

allies, a goal noted in the February 6, 

2023 Annual Threat Assessment of the 

U.S. Intelligence Community. That same 

report indicated that ‘‘China is rapidly 

expanding and improving its artificial 

intelligence (AI) and big data analytics 

capabilities, which could expand 

beyond domestic use.’’ These national 

security concerns were paramount in 

the issuance of this AC/S IFR. 

Consistent with the national security 

and foreign policy concerns described 

in the October 7 IFR, BIS is updating the 

EAR to enhance effectiveness of the 

controls in addressing these ongoing 

concerns. Following the implementation 

of the controls last year, BIS continued 

to study and assess their effectiveness. 

This rule strengthens and improves 

those controls by addressing the 

national security considerations that 

have come to light through open-source 

reporting, public comments, and the 

intelligence community. Through this 

process, BIS learned that certain 

additional ICs could provide nearly 

comparable AI model training capability 

as those controlled in the October 7 IFR 

BIS also seeks to further impair 

diversion channels through third 

countries, particularly those with AI 

commercial and research ties to the 

PRC. 


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In addition, credible open source 

reporting identified PRC companies 

using foreign subsidiaries to purchase 

chips subject to EAR controls, and 

accessing and operating datacenters 

located outside of the PRC with the ICs 

subject to EAR controls. Moreover, BIS 

is also concerned about certain 

additional ICs, which in turn can be 

used to train frontier AI models that 

have the most significant potential for 

advanced warfare applications, 

including unmanned intelligent combat 

systems, enhanced battlefield 

situational awareness and decision 

making, multidomain operations, 

automatic target recognition, 

autopiloting, missile fusion, precise 

guidance for hypersonic platforms, and 

cyber attacks. Accordingly, to address 

these issues, BIS is making several 

changes to the rule. 

First, to prevent technical 

workarounds, BIS is adding a 

performance density parameter to the 

original control and including a new 

structure for the control. A performance 

density parameter prevents the 

workaround of simply purchasing a 

larger number of smaller datacenter AI 

chips which, if combined, would be 

equally powerful as restricted chips. 

Second, to address PRC operations 

inside and outside of China and Macau 

seeking to acquire advanced ICs through 

transshipment and diversion, and 

accessing datacenters with advanced 

ICs, the rule expands controls to 

destinations in country groups D:1, D:4, 

and D:5 that are not also in Country 

Groups A:5 or A:6. Additionally, the 

rule also adds two new end use controls 

to prevent circumvention of the 

controls. Moreover, in section D, this 

rule is also soliciting comment from 

Infrastructure as a Service (IaaS) 

providers and other stakeholders on 

additional regulations in this area, 

including know your customer 

requirements that can be adopted to 

address uses that present a national 

security or foreign policy concern. 

Third, because advanced-ICs have 

varying capabilities implicating national 

security concerns, with this rule, BIS is 

controlling a wider scope of advancedICs through adoption of a tiered 

approach. Thus, first, for the most 

powerful data-center ICs (as described 

in ECCN 3A090.a), which are of the 

greatest national security and foreign 

policy concern, BIS is imposing a 

license requirement to any destination 

specified in Country Groups D:1, D:4, or 

D:5 that are not also in Country Groups 

A:5 or A:6. Second, for advanced-ICs 

that are less powerful but could be used 

to train large-scale AI systems by a 

sufficiently well-resourced actor (as 

described in ECCN 3A090.b, as well as 

certain 3A090.a commodities) BIS is 

providing license exception NAC for 

destinations in Country Groups D:1, D:4, 

or D:5, but use of such license exception 

will require pre-notification of the 

export or reexport to Macau or a 

destination specified in Country Group 

D:5. 

This AC/S IFR also adds a new red 

flag to assist semiconductor fabrication 

facilities’ additional compliance with 

the advanced computing FDP rule as 

described under section C.10.A. 

1. Revision of ECCN 3A090 and 

Conforming Change to 3A991.p 

A. Revisions to 3A090 control 

parameters to ensure ICs for AI training 

are controlled. 

In ECCN 3A090, this AC/S IFR revises 

the ‘‘items’’ paragraph in the List of 

Items Controlled section to remove 

paragraph a, including paragraphs a.1 

through a.4, and adds in its place a 

simplified paragraph .a and .b. The 

revised 3A090.a control parameter will 

control ICs with one or more digital 

processing units having either: (1) a 

‘total processing performance’ of 4800 

or more, or (2) a ‘total processing 

performance’ of 1600 or more and a 

‘performance density’ of 5.92 or more. 

The new ECCN 3A090.b will control ICs 

with one or more digital processing 

units having either: (1) a ‘total 

processing performance’ of 2400 or 

more and less than 4800 and a 

‘performance density’ of 1.6 or more and 

less than 5.92, or (2) a ‘total processing 

performance’ of 1600 or more and a 

‘performance density’ of 3.2 or more and 

less than 5.92. See Technical Notes to 

ECCN 3A090 for calculating ‘total 

processing performance’ and 

‘performance density.’ Together, these 

paragraphs expand the scope of control 

as compared to the October 7 IFR. This 

action is necessary to ensure that ICs 

below the October 7 ECCN 3A090 

parameters that were still useful for 

training advanced AI with military 

applications would be controlled. 

To more precisely control the types of 

ICs presenting the concerns described 

above in section C of this rule, ICs that 

meet certain performance thresholds 

described in Note 2 are not subject to 

3A090 controls. Thus, no license is 

required for these ICs under 3A090; 

however, such ICs may require a license 

under another ECCN. 

The scope of this control is calibrated 

through the addition of several Notes to 

ECCN 3A090 and a new license 

exception, the former discussed below 

in sections C.1.B, C.1.C, and C.1.F and 

the latter discussed in section C.2. BIS 

excludes from ECCN 3A090 ICs that (1) 

are not designed or marketed for use in 

datacenters, and (2) do not have a ‘total 

processing performance’ of 4800 or 

more (see Note 2). As discussed in 

section C.2 of this rule, License 

Exception NAC provides a path for prior 

notification to BIS when exporting or 

reexporting eligible items to the PRC 

and Macau. The notification 

requirements do not apply for transfers 

(in-country) within the PRC and Macau. 

Eligible items for License Exception 

NAC are defined as those ICs under 

ECCN 3A090.b (including ICs that are 

designed or marketed for use in a data 

center) and specific ICs under 3A090.a 

(not designed or marketed for use in a 

data center). 

B. Addition of exclusion for ‘nondatacenter integrated circuits’ from the 

expanded 3A090 control parameter. 

In ECCN 3A090, this AC/S IFR adds 

a new Note 2 to 3A090 to specify that 

3A090 does not apply to non-datacenter 

integrated circuits that are (a) not 

designed or marketed for use in 

datacenters; and (b) do not have a ‘total 

processing performance’ of 4800 or 

more. In response to this AC/S IFR, BIS 

seeks comments on how to refine these 

parameters to more granularly cover 

additional ICs that would not raise 

concerns for use in training large-scale 

AI systems. See section D question 6 of 

this rule. 

The purpose of this Note 2 is to 

ensure that as implementation occurs in 

the future, the expanded ECCN 3A090.a 

and .b control parameters do not 

increasingly control certain nondatacenter ICs. 

C. Revisions to technical notes for 

clarity. 

This AC/S IFR also makes several 

revisions to the Technical Notes to 

address the various comments that BIS 

received noting that there are multiple 

ways to calculate the TOPS calculations 

and identifying that the criteria 

provided in the Technical Notes 

included in the October 7 IFR under 

ECCN 3A090 were not adequate for a 

consistent interpretation on how to 

calculate the TOPS calculation. BIS 

agreed that revisions were needed. This 

AC/S IFR revises the five technical 

notes for clarity. Most importantly, this 

AC/S IFR replaces bits x TOPS with 

‘Total processing performance’ (‘TPP’) 

values and defines clear, objective 

criteria that can be used to calculate the 

‘TPP’ value. 

In ECCN 3A991, this AC/S IFR 

amends Technical Note for 3A991.p, 

paragraph 3, to conform with the 

changes to the Technical Notes to ECCN 

3A090. 

D. Expanded license requirement. 


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This AC/S IFR also revises the 

License Requirements section for the RS 

license requirement that applies to the 

entire ECCN 3A090 to expand the scope 

of the destination-based license 

requirements by removing China and 

Macau and adding in its place any 

destination specified in Country Groups 

D:1, D:4, or D:5 that is not also specified 

in Country Groups A:5 or A:6. This 

expanded license requirement is 

warranted because of the potential 

diversion concern for these activities of 

concern in or with Macau or a 

destination specified in Country Group 

D:5. However, for destinations to or 

within destinations not specified in 

Country Group D:5 (except Macau), 

license applications will generally be 

reviewed under a presumption of 

approval license review policy under 

§ 742.6(b)(10) paragraph (b)(10)(ii) 

(License review policy for paragraph 

(a)(6)(iii)). See section C.4 for fuller 

description of the license review 

policies that will be applicable to these 

destinations referenced in this 

paragraph. 

This AC/S IFR also adds a cross 

reference in the RS control in ECCN 

3A090 to see § 742.6(a)(6)(iii) of the 

EAR. 

E. Addition of Note 3 to 3A090 and 

adding Related Controls cross references 

from related ECCNs. 

This AC/S IFR, as a conforming 

change for the addition of Note 3 to 

3A090, adds a Related Controls 

reference to Note 3 to 3A090 in ECCNs 

3A001.z, 3A090, 4A003.z, 4A004.z, 

4A005.z, 4A090, 5A002.z, 5A004.z, 

5A992.z, 5D002.z, or 5D992.z. 

2. Addition of License Exception 

Notified Advanced Computing (NAC) 

for Consumer-Grade ICs With AI 

Capabilities 

In § 740.8, which prior to the effective 

date of this rule was reserved, this AC/ 

S IFR adds new license exception NAC. 

This license exception is for ICs under 

ECCN 3A090.b (i.e., ICs designed or 

marketed for use in datacenters) and 

non-datacenter ICs under 3A090.a (i.e., 

ICs not designed or marketed for use in 

datacenters and that do have a ‘total 

processing performance’ of 4800 or 

more). NAC is available for exports, 

reexports, and transfers in or within 

Country Groups D:1, D:4, or D:5 with 

different requirements applicable to 

Macau and destinations specified in 

Country Group D:5. The purpose of the 

notification process, which is only 

required for exports and reexports to 

Macau or destinations specified in 

Country Group D:5, is to provide BIS 

and its interagency export controls 

partners the opportunity to evaluate the 

national security risk posed by ICs that 

fall within this parameter. 

This license exception as specified 

under the paragraph (a) (Eligibility 

requirements) will authorize export, 

reexport, and transfer (in-country) of 

any item classified in ECCNs 3A090, 

4A090, 3A001.z, 4A003.z, 4A004.z, 

4A005.z, 5A002.z, 5A004.z, 5A992.z, 

5D002.z, or 5D992.z, except for items 

designed or marketed for use in a 

datacenter and meeting the parameters 

of 3A090.a. License Exception NAC 

authorizes exports, reexports, or 

transfers (in-country) to any destination 

specified in Country Groups D:1, D:4, or 

D:5, provided the applicable criteria 

specified under paragraphs (a) and (b) 

are met. For exports and reexports to 

Macau or destinations specified in 

Country Group D:5, in addition to 

meeting the criteria under paragraphs 

(a) and (b), the notification requirements 

under paragraph (c) of License 

Exception NAC must all be met. The 

notification requirement does not apply 

to exports or reexports to any 

destination specified in Country Groups 

D:1 or D:4 (other than Macau or 

destinations also specified in Country 

Group D:5) nor does it apply to transfers 

(in-country) to any destination. 

Paragraph (a)(1) (Written purchase 

order) requires that any export or 

reexport authorized under License 

Exception NAC must be made pursuant 

to a written purchase order, except for 

commercial samples which are not 

subject to this purchase order 

requirement. Written purchase orders 

are not required for transfers (incountry). Exports, reexports, or transfers 

(in-country) to or within any other 

destination identified under Country 

Groups D:1, D:4, or D:5 are authorized 

under License Exception NAC, provided 

the applicable criteria under paragraphs 

(a) and (b) are met. 

Paragraph (a)(2) (Notification to BIS) 

specifies that for exports or reexports to 

Macau or a destination specified in 

Country Group D:5, you must notify BIS 

prior to exporting or reexporting, 

according to the procedures set forth in 

paragraph (c) of License Exception NAC. 

Paragraph (a)(2) specifies that if you 

intend to engage in multiple exports or 

reexports after the signing of the 

purchase order, you need only notify 

BIS prior to the first export or reexport. 

Paragraph (a)(2) is not required for 

transfers (in-country) within Macau or a 

destination specified in Country Group 

D:5. 

Paragraph (b) (Restrictions) apply to 

all exports, reexports, or transfers (incountry) authorized under License 

Exception NAC. Paragraph (b)(1) 

(Prohibited end uses and end users) 

specifies that License Exception NAC is 

not able to overcome any part 744 or 

746 license requirements, except for a 

license required under § 744.23(a)(3) for 

reexports or exports to any destination 

other than those specified in Country 

Groups D:1, D:4, or D:5 (excluding any 

destination also specified in Country 

Groups A:5 or A:6) for an entity that is 

headquartered in, or whose ultimate 

parent company is headquartered in, 

either Macau or a destination specified 

in Country Group D:5. The restriction 

under paragraph (b)(2) (‘Military end 

use’ or ‘military end user’) specifies that 

no exports, reexports, or transfers (incountry) may be made under License 

Exception NAC to or for a ‘military end 

use’ as defined in § 744.21(f) or ‘military 

end user’ as defined in defined in 

§ 744.21(g). This ‘military end use’ or 

‘military end use’ restriction applies to 

a broader country scope than those 

prohibited under §§ 744.17 and 744.21. 

Paragraph (c) (Prior notification 

procedures) specifies the notification 

requirements that must be followed 

prior to making any export or reexport 

to Macau or a destination specified in 

Country Group D:5 under License 

Exception NAC. Paragraph (c)(1) 

(Procedures) specifies the requirement 

to make this notification prior to using 

License Exception NAC as well as what 

Blocks need to be completed in SNAP– 

R for submitting a notification request. 

You do not need to submit a commodity 

classification determination from BIS 

with your notification, but doing so will 

be helpful in limiting any concerns 

associated with the technical nature of 

the item because BIS will already be 

familiar with the item’s performance 

characteristics if it has conducted a 

classification review. 

Paragraph (c)(2) (Action by BIS) 

specifies that BIS intends during the 25- 

calendar day review period to review 

the notification together with the other 

export control agencies. Paragraph (c)(3) 

(Status of pending NAC notification 

requests) describes the process for 

entities to follow in BIS’s System for 

Tracking Export License Applications 

(STELA) (https://snapr.bis.doc.gov/ 

stela) to obtain the status of a pending 

NAC notification or verify the status in 

BIS’s Simplified Network Applications 

Processing Redesign (SNAP–R) System. 

Paragraph (c)(3) also specifies that if no 

objection to a NAC notification is raised, 

STELA will, on the twenty-fifth 

calendar day following the date of 

registration, provide a confirmation of 

that fact and a NAC confirmation 

number to be submitted in AES. 

Paragraph (c)(3) also indicates that if the 

NAC notification is not approved, on 

the twenty-fifth calendar day following 


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the date of registration, STELA will 

provide you with confirmation if you 

cannot use License Exception NAC. 

BIS intends to post an announcement 

on the BIS website once entities may 

submit License Exception NAC 

notifications with the goal that License 

Exception NAC requests may be 

submitted prior to the effective date of 

this rule. 

This AC/S IFR, as a conforming 

change for the addition of License 

Exception NAC, adds a NAC paragraph 

to the List-Based License Exception 

section under ECCNs 3A001.z, 3A090, 

4A003.z, 4A004.z, 4A005.z, 4A090, 

5A002.z, 5A004.z, 5A992.z, 5D002.z, 

and 5D992.z. 

3. Replacing Criteria for Any Other Item 

on CCL That Meet or Exceed the 

Performance Parameters of 3A090 or 

4A090 by Positively Identifying Those 

ECCNs and Adopting .z Paragraphs 

The October 7 IFR under § 742.6(a)(6), 

along with other provisions in the 

October 7 IFR, used the criteria ‘‘or 

identified elsewhere on the CCL that 

meet or exceed the performance 

parameters of ECCNs 3A090 or 4A090.’’ 

As described above, commenters on the 

October 7 IFR raised significant 

concerns that this type of catch-all text 

deviated from the common structure of 

the CCL under supplement no. 1 to part 

774 of the EAR, would be burdensome 

and possibly unimplementable for many 

exporters, reexporters, and transferors, 

and would lead to confusion regarding 

the appropriate classification and 

control of items on the CCL. 

Commenters strongly encouraged BIS to 

adopt a more conventional approach to 

implementing these changes by either 

adding new ECCNs to control those 

additional items that would otherwise 

meet or exceed the performance 

parameters of ECCNs 3A090 or 4A090, 

or by identifying a positive list of 

additional ECCNs that may warrant this 

additional control on the CCL and then 

creating separate ‘‘items’’ level 

paragraphs in each of these respective 

ECCNs. 

After reviewing the concerns raised 

by the commenters, BIS agrees that a 

more conventional structure is needed 

for imposing this aspect of the October 

7 IFR. Accordingly, BIS is identifying a 

positive list of the nine additional 

ECCNs for which BIS has determined 

also have performance characteristics or 

functions that meet or exceed the 

performance parameters of ECCNs 

3A090 or 4A090 and is adding a new 

‘‘items’’ level paragraph in the List of 

Items Controlled section of each of these 

nine ECCNs by adding .z paragraphs to 

each. This AC/S IFR makes several 

changes to the EAR to implement this 

important change to the October 7 IFR. 

For ease of reference these changes are 

described here under four types of 

changes: (1) adding .z paragraphs to 

nine ECCNs; (2) revising Related 

Controls for 3A090, 3A991, 4A090, 

4A994 and the nine ECCNs to cross 

reference each other to assist with 

classification; (3) making other EAR 

conforming changes needed because of 

the addition of .z paragraphs; and (4) 

changing export clearance requirements 

to increase transparency of .z, 3A090, 

and 4A090 shipments. 

A. Adding .z paragraphs to nine 

ECCNs. 

This final rule revises nine ECCNs 

3A001, 4A003, 4A004, 4A005, 5A002, 

5A004, 5A992, 5D002, and 5D992 to 

address overlapping controls with 

ECCNs 3A090, 4A090, 3A991.p and 

4A994.l by adding .z paragraphs to each 

of these nine ECCNs. These changes are 

intended to make it easier for exporters, 

reexporters, and transferors to identify 

these items subject to controls added in 

the October 7 IFR and to more easily 

distinguish these items from other items 

controlled under these same nine 

ECCNs. Each .z paragraph uses the same 

structure, but there are differences in 

the .z paragraphs because the 

overlapping controls with 3A090 and 

4A090, as well as 3A991.p and 4A994.l, 

are not the same for each of the nine 

ECCNs. Despite the differences in the 

text used for each .z paragraph, the 

commonality in the paragraphs’ 

structure should assist understanding. 

Some of the .z paragraphs are limited to 

one paragraph, but others such as ECCN 

5A002 have several paragraphs under 

the .z paragraph. BIS is adopting the .z 

structure because no ECCN currently 

has a .z ‘‘items’’ level paragraph. Similar 

to the structure used with the .x and .y 

paragraphs for the ‘‘600 series,’’ 9x515, 

and 0x5zz ECCNs, using a common 

‘‘items’’ paragraph designation will 

make it easier for exporters, reexporters, 

and transferors to identify these items, 

as well as for the U.S. Government to 

identify these items under these nine 

ECCNs. 

For each ECCN this rule revises to add 

a .z paragraph, this rule reserves the 

items level paragraph from where the 

items paragraph ended prior to this AC/ 

S IFR becoming effective up through 

paragraph .y. For example under ECCN 

5A002, this rule revises 5A002 to 

reserve paragraphs .f through .y. This 

rule does the same in each of the other 

eight ECCNs that are being revised to 

add the .z paragraphs, but depending on 

how many items paragraphs each ECCN 

had before the effective date of this AC/ 

S IFR, different paragraphs are reserved. 

BIS includes as an illustrative 

example some of the .z paragraphs from 

ECCN 5A002 that this AC/S IFR adds. 

The introductory text of the 5A002.z 

paragraph identifies ‘‘Other 

commodities, as follows’’ and then 

includes additional control parameters 

to identify these .z commodities. ECCN 

5A002, because of the complexity of the 

ECCN and the overlapping controls with 

3A090 and 4A090, has several .z 

subparagraphs that are tied to the other 

‘‘items’’ paragraphs in 5A002. For 

example, 5A002.z.1 controls 

commodities that are described in 

5A002.a and that also meet or exceed 

the performance parameters in 3A090 or 

4A090. Similarly, 5A002.z.2 controls 

commodities that are described in 

5A002.b and that also meet or exceed 

the performance parameters in 3A090 or 

4A090. Some of the other relevant 

ECCNs have a simpler and shorter 

structure and may be limited to a single 

.z paragraph. However, regardless of 

how many .z paragraphs are added, each 

.z paragraph functions the same way 

because it references an item that is 

described elsewhere in the same ECCN 

that also meets or exceeds the 

performance parameters in 3A090, 

4A090, 3A991.p, or 4A994.l, as 

applicable and specified in the 

respective .z paragraph. By classifying 

these items in their own .z paragraph, it 

will be easier for exporters, reexporters, 

and transferors to identify these items 

and the additional controls and other 

restrictions that are applicable to them. 

In ECCN 3A001, this AC/S IFR 

reserves paragraphs j. through y. and 

adds paragraphs z.1 through .4 to the 

‘‘items’’ paragraph in the List of Items 

Controlled section and makes the 

following conforming changes by 

adding certain 3A001.z items to the 

NS1, RS1, MT1 and NP1 Controls 

paragraphs and adding a RS control that 

applies to items controlled by 3A001.z 

for destinations specified in Country 

Groups D:1, D:4, or D:5. This AC/S IFR 

adds 3A001.z to the exclusion on using 

License Exception LVS. 

In ECCN 4A003, this AC/S IFR 

reserves paragraphs h. through y. and 

adds paragraphs .z.1 through .z.4 in the 

List of Items Controlled section and 

makes a corresponding change to the 

Reason for Control section by adding a 

RS control for items controlled by 

4A003.z for destinations specified in 

Country Groups D:1, D:4, or D:5. This 

AC/S IFR adds 4A003.z to the exclusion 

on using License Exception LVS. This 

AC/S IFR also adds a new Note to List 

Based License Exception in ECCN 

4A003 to specify that the related 

equipment specified under ECCN 

4A003.g, z.2, or z.4 are eligible for 


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License Exception GBS if three 

conditions are met. The related 

equipment must be exported, 

reexported, or transferred (in-country) 

as part of a computer system, the 

computer system must either be 

designated as NLR or eligible for 

License Exception APP, and the related 

equipment must be eligible for License 

Exception APP. 

In ECCN 4A004, this AC/S IFR 

reserves paragraphs d. through y. and 

adds paragraph .z in the List of Items 

Controlled section and makes a 

corresponding change to the Reasons for 

Control section by adding a RS control 

that applies to items controlled by 

4A004.z (1) for destinations specified in 

Country Groups D:1, D:4, or D:5 that are 

not also specified in Country Groups 

A:5 or A:6 and (2) to or with any 

destination not specified in Country 

Groups D:1, D:4, or D:5 when the export, 

reexport or transfer (in-country) 

includes an ultimate consignee or end 

user headquartered in a destination in 

Country Groups D:1, D:4, or D:5 that is 

not also specified in Country Groups 

A:5 or A:6. This AC/S IFR adds 4A004.z 

to the exclusion on using License 

Exception LVS. 

In ECCN 4A005, this AC/S IFR revises 

the heading to add the parenthetical 

phrase ‘‘(see List of Items Controlled).’’ 

This AC/S IFR revises the phrase that 

referenced ‘‘[T]he list of items 

controlled is contained in the ECCN 

heading’’ in the ‘‘Items’’ paragraph in 

the List of Items Controlled section to 

add the phrase ‘‘except for the 

commodities controlled under 

4A005.z.’’ This rule reserves paragraphs 

a. through .y, adds paragraph .z, and 

makes a corresponding change to the 

Reasons for Control section to add a RS 

control that applies to items controlled 

by 4A005.z for destinations specified in 

Country Groups D:1, D:4, or D:5 that are 

not also specified in Country Groups 

A:5 or A:6. This AC/S IFR also adds 

4A005.z to the exclusion on using 

License Exception ACE. 

BIS notes that although the general 

restriction on the use of license 

exceptions under § 740.2(a)(9)(ii) and 

the terms and conditions of certain listbased license exceptions, such as LVS 

or GBS, or the terms of License 

Exception STA, would preclude the use 

of these EAR license exceptions for 

destinations specified in Country 

Groups D:1, D:4, or D:5, that are not also 

specified in Country Groups A:5 or A:6, 

that this AC/S IFR as an additional 

safeguard still adds exclusions for the 

new .z paragraphs for these ECCNs as an 

additional reminder to exporters, 

reexporters, and transferors that these 

license exceptions are not available for 

.z items for these destinations. 

In ECCN 5A002, this AC/S IFR 

reserves paragraphs f. through y. and 

adds paragraphs .z.1 through .5 in the 

List of Items Controlled section and 

makes the following conforming 

changes by adding a RS control that 

applies to items controlled by 5A002.z 

for destinations specified in Country 

Groups D:1, D:4, or D:5 that are not also 

specified in Country Groups A:5 or A:6. 

This AC/S IFR also adds 5A002.z to the 

exclusion on using License Exceptions 

LVS and ENC. 

In ECCN 5A992, this AC/S IFR 

reserves paragraphs d. through y. and 

adds paragraphs .z.1 and .2 in the List 

of Items Controlled section and makes a 

corresponding change to the Reasons for 

Control section by revising the RS 

control that applies for 5A992.z items 

destined to or within destinations 

specified in Country Groups D:1, D:4, or 

D:5 that are not also specified in 

Country Groups A:5 or A:6. 

In ECCN 5A004, this AC/S IFR 

reserves paragraphs c. through y. and 

adds paragraphs .z.1 and .2 in the List 

of Items Controlled section and makes 

the following conforming change by 

adding a RS control that applies to items 

controlled by 5A004.z for destinations 

specified in Country Groups D:1, D:4, or 

D:5 that are not also specified in 

Country Groups A:5 or A:6. This AC/S 

IFR also adds 5A004.z to the exclusion 

on using License Exceptions LVS and 

ENC. 

In ECCN 5D002, this AC/S IFR 

reserves paragraphs e. through y. and 

adds paragraphs .z.1 through .9 in the 

List of Items Controlled section and 

makes the following conforming change 

by adding a RS control that applies to 

items controlled by 5D002.z for 

destinations specified in Country 

Groups D:1, D:4, or D:5 that are not also 

specified in Country Groups A:5 or A:6. 

This AC/S IFR also adds 5D002.z to the 

exclusion on using License Exception 

ENC. 

In ECCN 5D992, this AC/S IFR 

reserves paragraphs d. through y. and 

adds paragraph .z in the List of Items 

Controlled section and makes a 

corresponding change to the Reasons for 

Control section by revising the RS 

control that applies for destinations 

specified in Country Groups D:1, D:4, or 

D:5 that are not also specified in 

Country Groups A:5 or A:6. 

B. Revising Related Controls for 

3A090, 4A090, 5E001, and the Nine 

ECCNs to cross reference each other to 

assist with classification. 

BIS includes Related Controls 

paragraphs in the List of Items 

Controlled section of ECCNs to alert 

persons classifying items of related 

controls that may be applicable. This 

rule revises the Related Controls 

paragraphs in ECCNs 3A090 and 4A090 

to add references to the nine ECCNs that 

this final rule adds .z paragraphs to, as 

applicable. Because the cross over that 

is being addressed is not identical for 

each of these nine ECCNs with .z 

paragraphs added, the revisions to the 

Related Controls paragraphs are not 

identical in all cases. 

In ECCN 3A001, this AC/S IFR adds 

a reference to see also ECCN 3A090. 

In ECCN 3A090, this AC/S IFR adds 

a reference to see also 3A001.z, 5A002.z, 

5A004.z, 5A992.z, 5D002.z, and 

5D992.z. 

In ECCN 3A991, this AC/S IFR adds 

a reference to see also ECCNs 5A002.z, 

5A004.z, and 5A992.z. 

In ECCN 4A003, this AC/S IFR adds 

a reference to see also ECCN 4A090. 

In ECCN 4A004, this AC/S IFR adds 

a reference to see also ECCN 4A090. 

In ECCN 4A005, this AC/S IFR adds 

a reference to see also ECCN 4A090. 

In ECCN 4A090, this AC/S IFR adds 

a reference to see also ECCNs 4A003.z, 

4A004.z, 4A005.z, 5A002.z, 5A004.z, 

5A992.z, 5D002.z, and 5D992.z. 

In ECCN 4A994, this AC/S IFR adds 

a reference to see also ECCNs 4A003.z, 

4A004.z, 4A005.z, 5A002.z, 5A004.z, 

and 5A992.z. 

In ECCN 5A002, this AC/S IFR adds 

a reference to see also ECCNs 3A090 

and 4A090. 

In ECCN 5A004, this AC/S IFR adds 

a reference to see also ECCNs 3A090 

and 4A090. 

In ECCN 5A992, this AC/S IFR adds 

a reference to see also ECCNs 3A090 

and 4A090. 

In ECCN 5D002, this AC/S IFR adds 

a reference to see also ECCNs 3D001.z 

and 4D001.z. 

In ECCN 5D992, this AC/S IFR adds 

a reference to see also ECCNs 3D001.z 

and 4D001.z. 

In ECCN 5E001, this AC/S IFR adds 

a reference to see also ECCN 3A001.z. 

C. Other EAR conforming changes 

needed because of addition of .z 

paragraphs. 

This AC/S IFR makes various changes 

to other ECCNs and other parts of the 

EAR to make conforming changes where 

needed as a result of the addition of the 

.z items paragraphs to the nine ECCNs 

3A001, 4A003, 4A004, 4A005, 5A002, 

5A004, 5A992, 5D002, and 5D992. 

These changes are made to ensure that 

certain provisions that currently apply 

for other items controlled under these 

nine ECCNs are not narrowed or 

expanded as a result of the addition of 

the .z paragraphs. In other cases, 

specific ‘‘items’’ paragraphs from these 


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nine ECCNs are identified in other 

provisions where in certain cases, it was 

needed to also add in references to 

ensure the same provisions will apply to 

the .z paragraphs. Because some of the 

nine ECCNs include ECCNs, such as 

5A002 and 5D002, which are referenced 

in various other provisions of the EAR, 

this AC/S IFR needed to make various 

conforming changes to these other 

ECCNs and parts of the EAR. Although 

this appears to be extensive revision, the 

intent in most cases is to ensure that the 

scope of the controls prior to this AC/ 

S IFR generally does not change. The 

changes are described below in the 

order they appear in the EAR. 

Conforming Changes in Part 734 

In § 734.4(b)(2), this AC/S IFR 

removes ECCNs 5A992.c and 5D992.c 

and adds in their place ECCNs 5A992 

and 5D992. These requirements are 

intended to apply to the entire ECCNs, 

so these changes are needed to account 

for the addition of .z to 5A992 and 

5D992. 

In § 734.9(h)(1)(i)(B)(2) and 

(h)(1)(ii)(B)(2), this AC/S IFR revises 

these two paragraphs to remove the 

phrase ‘‘elsewhere on the CCL and 

meets the performance parameters in 

3A090 or 4A090’’ and adds a more 

specific reference to ‘‘meeting the 

performance parameters in ECCNs 

3A001.z, 4A003.z, 4A004.z, 4A005.z, 

5A002.z, 5A004.z, or 5A992.z.’’ By 

adding this more specific reference tied 

to the new .z paragraphs, this AC/S IFR 

will make it easier for foreign 

manufacturers to comply with this 

aspect of the Advanced Computing 

Foreign Direct Product (FDP) rule and to 

more easily apply the de minimis 

provisions. 

Conforming Changes in Part 740 

In § 740.2 Restrictions on all License 

Exceptions, this AC/S IFR revises the 

general restriction on the use of license 

exceptions under paragraph (a)(9)(ii), 

which will now be paragraph 

(a)(9)(ii)(B) because of the revisions 

made in this SME IFR, to remove the 

phrase ‘‘elsewhere on the CCL which 

meets or exceeds the performance 

parameters in ECCNs 3A090 or 4A090’’ 

and adds in its place the more specific 

reference to ‘‘specified in ECCNs 

3A001.z; 3D001 (for ‘‘software’’ for 

commodities controlled by 3A001.z, 

3A090), 3E001 (for ‘‘technology’’ for 

commodities controlled by 3A001.z); 

4A003.z; 4A004.z; 4A005.z; 4D001 (for 

‘‘software’’ for commodities controlled 

by 4A003.z, 4A004.z, and 4A005.z); 

4E001 (for ‘‘technology’’ for 

commodities controlled by 4A003.z, 

4A004.z, and 4A005.z); 5A002.z; 

5A004.z; 5A992.z; 5D002.z; 5D992.z; 

5E002 (for ‘‘technology’’ for 

commodities controlled by 5A002.z or 

5A004.z); ‘‘software’’ specified by 

5D002 (for 5A002.z or 5A004.z 

commodities); 5E992 (for ‘‘technology’’ 

for commodities controlled by 5A992.z 

or ‘‘software’’ controlled by 5D992.z).’’ 

By adding this more specific reference 

tied to the new .z paragraphs, this AC/ 

S IFR will make it easier for exporters, 

reexporters, and transferors to know 

when this general restriction will apply 

on the use of license exceptions. In the 

introductory text of paragraph (a)(9)(ii), 

this AC/S IFR adds a reference to new 

License Exception NAC by adding the 

phrase ‘‘NAC, under the provisions of 

§ 740.8.’’ 

In addition to amending § 740.2(a)(9) 

to prohibit the use of license exceptions 

for certain ECCNs, including those with 

a .z paragraph, BIS also notes 

restrictions for certain license 

exceptions as a reminder for exporters. 

In § 740.7 Computers (APP), this AC/S 

IFR adds a reference to 4A003.z.2 or z.4 

after the reference to 4A003.g in 

paragraph (b)(1) to remind exporters 

that this restriction on the use of 

License Exception APP will also apply 

when a commodity that is described in 

4A003.g is controlled under 4A003.z.2 

or .z.4. 

In § 740.16 Additional permissive 

reexports (APR), this AC/S IFR revises 

paragraphs (a)(2) and (b)(2)(ii) to add a 

reference to 3A001.z to ensure that the 

restrictions under 3A001.b.2 or b.3 will 

continue to apply when a commodity 

described under one of those two 

‘‘items’’ paragraphs is controlled under 

3A001.z. 

In § 740.17 Encryption Commodities, 

Software and Technology (ENC), this 

AC/S IFR makes several conforming 

changes to ensure the intended scope of 

this license exception is not changed as 

a result of the addition of the .z ‘‘items’’ 

paragraphs: 

Under the fifth sentence of the 

introductory text to § 740.17, this AC/S 

IFR removes the reference to 5A992.c 

and 5D992.c and adds in its place a 

reference to 5A992 and 5D992. 

Under paragraph (b)(1) to § 740.17, 

this AC/S IFR adds a reference after 

5A002.a to 5A002.z.1 and removes the 

reference to 5A992.c and 5D992.c and 

adds in its place a reference to 5A992 

and 5D992. BIS could have added a 

reference to 5D992.z, but because ECCN 

5D992 only includes ‘‘items’’ 

paragraphs .c and .z, it was simpler to 

add a reference to 5D992. 

Under paragraph (b)(2)(i)(D) to 

§ 740.17, this AC/S IFR after 5A002.c 

adds a reference to 5A002.z.3 to ensure 

the intended scope of this provision is 

not changed as a result of the addition 

of the .z ‘‘items’’ paragraph. 

Under the Note to paragraph (b)(2) to 

§ 740.17, this AC/S IFR adds after ECCN 

5A002.b a reference to 5A002.z.2 and 

after 5D002.b a reference to 5D002.z.5 to 

ensure the intended scope of this 

provision is not changed as a result of 

the addition of the .z ‘‘items’’ paragraph. 

Under (b)(3) introductory text to 

§ 740.17, this AC/S IFR removes 

5A992.c and 5D992.c and adds in their 

place references to 5A992 and 5D992. 

BIS could have added a reference to 

5D992.z, but because ECCN 5D992 only 

includes ‘‘items’’ paragraphs .c and .z, it 

was simpler to add a reference to 5D992. 

Under (b)(3)(i) introductory text to 

§ 740.17, this AC/S IFR after 5A002.a 

adds a reference to 5A002.z.1 to ensure 

the intended scope of this provision is 

not changed as a result of the addition 

of the .z ‘‘items’’ paragraph. 

Under paragraph (b)(3)(iii)(B) to 

§ 740.17, this AC/S IFR after 5D002.a.3.b 

adds a reference to 5D002.z.4, and after 

5D002.c.3.b adds a reference to 

5D002.z.9 to ensure the intended scope 

of this provision is not changed as a 

result of the addition of the .z ‘‘items’’ 

paragraph. 

Under paragraph (b)(3)(iv) to § 740.17, 

this AC/S IFR after 5A002.b adds a 

reference to 5A002.z.2, and after 

5D002.b adds a reference to 5D002.z.5 to 

ensure the intended scope of this 

provision is not changed as a result of 

the addition of the .z ‘‘items’’ paragraph. 

Under paragraph (e)(3) second 

sentence to § 740.17, this AC/S IFR 

removes the reference to 5A992.c and 

5D992.c and adds in its place a 

reference to 5A992 and 5D992. BIS 

could have added a reference to 

5D992.z, but because ECCN 5D992 only 

includes ‘‘items’’ paragraphs .c and .z, it 

was simpler to add a reference to 5D992. 

Under paragraph (f)(1) to § 740.17, 

this AC/S IFR adds after 5A004.a a 

reference to 5A004.z.1 and z.2, after 

5D002.a.3.a a reference to 5D002.z.3 and 

z.8 to ensure the intended scope of this 

provision is not changed as a result of 

the addition of the .z ‘‘items’’ paragraph. 

Conforming Changes in Parts 742, 746, 

and 748 

In § 742.6 Regional stability, this AC/ 

S IFR revises paragraph (a)(6)(i), to 

remove the phrases beginning with 

‘‘5A992 (that meet or exceed the 

performance parameters of ECCNs 

3A090 or 4A090)’’ and ‘‘5D992 (that 

meet or exceed the performance 

parameters of ECCNs 3A090 or 4A090).’’ 

Also in paragraph (a)(6)(iii), this AC/S 

IFR removes the phrase ‘‘elsewhere on 

the CCL that meet or exceed the 

performance parameters of ECCNs 


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3A090 or 4A090’’ and in its place 

references the nine .z ECCNs ‘‘3A001.z, 

4A003.z, 4A004.z, 4A005.z, 5A002.z, 

5A004.z, 5A992.z, 5D002.z, or 

5D992.z.’’ As noted and requested by 

several commenters, having a positive 

listing of relevant ECCNs will 

significantly ease the burden on 

exporters, reexporters, and transferors 

and the controls will be easier to 

implement. 

In § 746.8 Sanctions against Russia 

and Belarus, this AC/S IFR adds .c after 

5A992 and 5D992. This AC/S IFR makes 

this change to ensure that 5A992.z and 

5D992.z commodities and software will 

not be within the scope of this 

exclusion. 

In § 742.15 (Encryption items), this 

AC/S IFR revises the third sentence of 

paragraph (a)(1) to remove the .c after 

5A992.c and 5D992.c to ensure the 

scope of requirement is not changed by 

the addition of 5A992.z and 5D992.z. 

In § 746.10 ‘Luxury Goods’ Sanctions 

Against Russia and Belarus and Russian 

and Belarusian Oligarchs and Malign 

Actors, this AC/S IFR adds .c after 

5A992 and 5D992. This AC/S IFR makes 

this change to ensure that 5A992.z and 

5D992.z commodities and software will 

not be within the scope of this 

exclusion. 

In supplement no. 7 to part 748— 

Authorization Validated End-User 

(VEU): List of Validated End-Users, 

Respective Items Eligible For Export, 

Reexport And Transfer, And Eligible 

Destinations, this AC/S IFR revises the 

VEU entry for ‘‘Advanced Micro Devices 

China, Inc.’’ in China to remove the 

reference to 4A003 and add in its place 

the more specific reference to 4A003.b 

through .g to ensure that the currently 

approved scope of this VEU entry does 

not change because of the addition of 

4A003.z. In addition, this AC/S IFR 

revises the entry for ‘‘Shanghai Huahong 

Grace Semiconductor Manufacturing 

Corporation’’ in China to remove the 

reference to 5A002 and add in its place 

the more specific reference to 5A002.a 

through .e; remove the reference to 

5A004 and add in its place a more 

specific reference to 5A004.a through .b; 

and remove 5A992 and adds in its place 

a reference to 5A992.c. Also in 

supplement no. 7 to part 748, this AC/ 

S IFR revises the heading of the 

supplement to add the parenthetical 

phrase ‘‘(in-country)’’ after the term 

‘‘transfer’’ for clarity on the scope of the 

VEU authorizations under this 

supplement and for consistency with 

other EAR the provisions, such as the 

definition of ‘‘transfer (in-country).’’ 

Conforming Changes to §§ 770.2 and 

772.1 

In § 770.2 Item interpretations, this 

AC/S IFR after 4A003.g adds a reference 

to 4A003.z.2 and .z.4 in paragraph (l)(2) 

to ensure the intended scope of this 

provision is not changed as a result of 

the addition of the .z ‘‘items’’ paragraph. 

In § 772.1 Definitions of terms as used 

in the Export Administration 

Regulations (EAR), this AC/S IFR 

revises Note 1 to the term ‘‘specially 

designed,’’ to add the parenthetical 

phrase ‘‘(except for .z)’’ after ECCNs 

5A992 and 5D992 to ensure the 

intended scope of this provision is not 

changed as a result of the addition of the 

.z ‘‘items’’ paragraph. 

In ECCNs 3D001, 3E001, 4D001, 

4E001, 5D002 5E002, and 5E992, this 

AC/S IFR revises the License 

Requirement section of each of these 

nine ECCNs to add related ‘‘software’’ 

and ‘‘technology’’ controls for the new 

.z items added to the nine ECCNs 

3A001, 4A003, 4A004, 4A005, 5A002, 

5A004, 5A992, 5D002, and 5D992 to 

impose the same license requirements 

on the related ‘‘software’’ and 

‘‘technology’’ as applies to the .z 

commodities this AC/S IFR adds. 

Conforming Changes to the CCL 

In ECCN 3D001, this AC/S IFR revises 

the TSR paragraph in the List Based 

License Exceptions section to add after 

ECCN 3A001.b.8 a reference to 3A001.z 

to ensure the intended scope of this 

provision is not changed as a result of 

the addition of the .z ‘‘items’’ paragraph. 

In ECCN 3E001, this AC/S IFR revises 

the TSR paragraph in the List Based 

License Exceptions section to add after 

ECCNs 3A001.b.8, 3A001.e.4, 

3A001.b.2, and 3A001.b.3 references to 

3A001.z after each of these items 

paragraphs to ensure the intended scope 

of this provision is not changed as a 

result of the addition of the .z ‘‘items’’ 

paragraph. Also in ECCN 3E001 under 

the Special Conditions for STA section, 

this AC/S IFR adds after ECCN 

3A001.b.2 and .b.3 a reference to 

3A001.z to ensure the intended scope of 

this provision is not changed as a result 

of the addition of the .z ‘‘items’’ 

paragraph. Also in Note 2 in the ‘‘items’’ 

paragraph in the List of Items Controlled 

section, this rule adds after 3A001.a.3 

and .14 a reference to 3A001.z to ensure 

the intended scope of this provision is 

not changed as a result of the addition 

of the .z ‘‘items’’ paragraph. 

In Note 3 to Category 4—Computers, 

this AC/S IFR after 5A002.a adds a 

reference to 5A002.z.1 and z.6, and after 

5A004.b adds a reference to 5A004.z; 

after 5D002.c.3 adds references to 

5D002.z.6, 5D002.z.8, and z.9. These 

changes are made to ensure the 

intended scope of this provision is not 

changed as a result of the addition of the 

.z ‘‘items’’ paragraph. 

In the Technical Note paragraph 2 in 

the TECHNICAL NOTE ON ‘‘ADJUSTED 

PEAK PERFORMANCE’’ (‘‘APP’’) at the 

end Category 4—Computers, this AC/S 

IFR after 4A003.c adds a reference to 

4A003.z.1 and z.3 to ensure the 

intended scope of this provision is not 

changed as a result of the addition of the 

.z ‘‘items’’ paragraph. 

In Note 3 to Category 5— 

Telecommunications and ‘‘Information 

Security’’ Part 1—Telecommunications, 

this AC/S IFR after 5A002.a adds a 

reference to 5A002.z.1 and z.6; after 

5A004.b adds a reference to 5A004.z; 

after 5D002.c.1 adds a reference to 

5D002.z.6; and after 5D002.c.3 adds a 

reference to 5D002.z.8 and z.9 to ensure 

the intended scope of this note is not 

changed as a result of the addition of the 

.z ‘‘items’’ paragraph. 

In Note 3 (Cryptography Note) to 

Category 5—Telecommunications and 

‘‘Information Security’’ Part 2— 

‘‘Information Security,’’ to ensure the 

intended scope of this note is not 

changed as a result of the addition of the 

.z ‘‘items’’ paragraph, this AC/S IFR 

after 5D002.a.1 adds 5D002.z.1; after 

5D002.b adds 5D002.z.5; and after 

5D002.c.1 adds 5D002.z.6 . In addition, 

under the N.B. to Note 3 (Cryptography 

Note), this AC/S IFR removes 5A992.c 

and 5D992.c and adds in their place 

5A992 and 5D992. BIS could have 

added a reference to 5A992.z and 

5D992.z, but because ECCNs 5A992 and 

5D992 only include ‘‘items’’ paragraphs 

.c and .z, it was simpler to add 

references to 5A992 and 5D992. 

In ECCN 5B002 under ‘‘items’’ 

paragraph .b in the List of Items 

Controlled section, this AC/S IFR after 

5D002.a adds a reference to 5D002.z.1 

through z.4 and after 5D002.c adds a 

reference to 5D002.z.6 through z.9 to 

ensure the intended scope of this 

provision is not changed as a result of 

the addition of the .z ‘‘items’’ paragraph. 

In ECCN 5E002, this AC/S IFR under 

‘‘items’’ paragraph a in the List of Items 

Controlled section after 5D002.a adds a 

reference to 5D002.z.1 through .z.3, and 

after 5D002.c adds a reference to 

5D002.z.6 through .z.8. Also in the Note 

to 5E002.a, this AC/S IFR after 

5D002.a.3.b adds a reference to 

5D002.z.4; and after 5D002.c.3.b adds a 

reference to 5D002.z.9. Lastly under 

‘items’’ paragraph b in the List of Items 

Controlled section, this AC/S IFR after 

5A002.b adds a reference to 5A002.z.2. 

All of these changes are made to ECCN 

5E002 to ensure the intended scope of 


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these provisions is not changed as a 

result of the addition of the .z ‘‘items’’ 

paragraph. 

In ECCN 5E992, this AC/S IFR revises 

‘‘items’’ paragraph b in the List of Items 

Controlled section to remove 5D992.c 

and add in its place 5D992. BIS could 

have added a reference to 5D992.z, but 

because ECCN 5D992 only includes an 

‘‘items’’ paragraph .c and .z, it was 

simpler to add a reference to 5D992. 

In ECCN 9A004, this AC/S IFR under 

‘‘items’’ paragraph d in the List of Items 

Controlled section, after 3A001.b.1.a.4 

adds a reference to 3A001.z (if also 

described in 3A001.b.1.a.4), after 

5A002.c adds a reference to 5A002.z.3, 

and after 5A002.e adds a reference to 

5A002.z.5 and z.10 to ensure the 

intended scope of these provisions is 

not changed as a result of the addition 

of the .z ‘‘items’’ paragraph. 

In ECCN 9A515 under Note 2 to 

9A515.d and .e, this AC/S IFR after 

3A001.a adds a reference to 3A001.z to 

ensure the intended scope of this note 

is not changed as a result of the addition 

of the .z ‘‘items’’ paragraph. In addition, 

under ‘‘items’’ paragraph x.4 in the List 

of Items Controlled section, this rule 

after 3A001.e.4 adds a reference to 

3A001.z, after 3A001.b.4 adds a 

reference to 3A001.z; and under ‘‘items’’ 

paragraph x.6 after 3A001.b.8 adds a 

reference to 3A001.z. All of these 

changes to ECCN 9A515 are made to 

ensure the intended scope of these 

provisions is not changed as a result of 

the addition of the .z ‘‘items’’ paragraph. 

Conforming Changes to Supp. No. 6 to 

Part 774 

In supplement no. 6 to part 774— 

Sensitive List, this AC/S IFR revises 

paragraphs: (3)(i) to add after 3A001.b.2 

the parenthetical phrase ‘‘(including 

those described under 3A001.b.2 that 

are controlled by 3A001.z)’’; (3)(ii) to 

add after 3A001.b.3 the parenthetical 

phrase ‘‘(including those described 

under 3A001.b.3 that are controlled by 

3A001.z);’’ (3)(iv) to add after 3A001.b.3 

the phrase ‘‘equipment described under 

3A001.b.2 or 3A001.b.3 that are 

controlled under 3A001.z’’ and after 

3A002.g.1 to add the phrase ‘‘and 

equipment described under 3A002.g.2 

that are controlled under 3A002.z;’’ and 

lastly under (3)(v) after 3A001.b.3, adds 

the phrase ‘‘equipment described under 

3A001.b.2 or 3A001.b.3 that are 

controlled under 3A001.z’’ and after 

3A002.g.1 adds the phrase ‘‘and 

equipment described under 3A002.g.2 

that are controlled under 3A002.z.’’ All 

of these changes to the Sensitive List are 

made to ensure the intended scope of 

these provisions is not changed as a 

result of the addition of the .z ‘‘items’’ 

paragraph. 

D. Export clearance changes to 

increase transparency of .z, 3A090, and 

4A090 shipments. 

i. Identification of .z items in AES. 

The identification of items under .z 

paragraphs will assist exporters, 

reexporters, and transferors by having a 

distinct classification of these items 

under these nine ECCNs, which will 

assist companies in reducing their 

compliance burdens and keeping better 

track of these items. For all shipments 

to China, regardless of dollar value, an 

Electronic Export Information (EEI) 

filing is required in AES for any items 

classified under an ECCN on the CCL 

pursuant to the requirement under 

§ 758.1(b)(10), which includes the nine 

ECCNs that this rule adds .z paragraphs 

to, unless authorized under License 

Exception GOV under § 740.11. The 

mandatory EEI filing requirement in 

AES is important for transparency into 

which CCL items are being shipped to 

China. However, classification 

information filed in AES is at the ECCN 

level and does not include the ‘‘items’’ 

level classification. One exception to 

this practice is in the case of end-item 

firearms for exporters who wish to use 

the EEI filing in AES as the method for 

submitting conventional arms reporting 

to BIS instead of submitting separate 

reports to BIS. They do so by entering 

the items level classification as the first 

text to appear in the Commodity 

description block in the EEI filing in 

AES. 

The benefit for exporters would be 

undermined if they are not allowed to 

identify in the EEI filing in AES the .z 

items level classification because their 

shipments to a destination specified in 

Country Groups D:1, D:4, or D:5, 

excluding any destination also specified 

in Country Groups A:5 or A:6, could 

potentially be stopped if someone from 

the U.S. Government had questions as to 

whether, for example, the item was 

classified under ECCN 5A002.a or under 

5A002.z. The U.S. Government also has 

an interest in being able to easily 

identify the .z items in the EEI filing 

data in AES. The solution to this 

problem, to benefit both exporters and 

the U.S. Government, BIS applies the 

successful model that has been used for 

identifying end-item firearms in the EEI 

data in AES by adopting a similar type 

of requirement for these .z paragraphs 

for EEI filings in AES. In § 758.1 (The 

Electronic Export Information (EEI) 

Filing to the Automated Export System 

(AES)), this rule adds a new paragraph 

(g)(5) (Exports of .z items that meet or 

exceed the performance parameters of 

ECCN 3A090 or 4A090). New paragraph 

(g)(5) imposes a requirement for 

identifying .z items by ‘‘items’’ level 

classification in the EEI filing in AES. 

New paragraph (g)(5) specifies that for 

any export of .z items controlled under 

ECCNs 3A001, 4A003, 4A004, 4A005, 

5A002, 5A004, 5A992, 5D002, or 5D992 

in addition to any other required data 

for the associated EEI filing, the EEI filer 

must include the items paragraph 

classification (i.e., .z), when applicable, 

for ECCNs 3A001.z, 4A003.z, 4A004.z, 

4A005.z, 5A002.z, 5A004.z, or 5A992.z, 

5D002.z, or 5D992.z. as the first text to 

appear in the Commodity description 

block in the EEI filing in AES. 

ii. Identification of 3A090, 4A090, 

and .z commodities on the commercial 

invoice. In § 758.6, this AC/S IFR revises 

paragraph (a)(2) to expand the list of 

ECCNs that an exporter must 

incorporate as an integral part of the 

commercial invoice. Prior to this final 

rule becoming effective, this 

requirement was limited to ECCN(s) for 

any 9x515 or ‘‘600 series’’ ‘‘items’’ being 

shipped (i.e., exported in tangible form). 

This AC/S IFR adds 3A090 and 4A090, 

and the seven commodity .z ECCNs 

3A001.z, 4A003.z, 4A004.z, 4A005.z, 

5A002.z, 5A004.z, and 5A992.z, to the 

requirement. This AC/S IFR does not 

add ECCNs 5D002.z and 5D992.z to 

§ 758.6 because these exports would 

typically be done in an intangible 

format. However, even when EEI is not 

required to be filed in AES for an 

intangible export, BIS still encourages 

exporters, as a good compliance 

practice, to identify the .z classification 

for ECCN 5D002.z and 5D992.z on the 

commercial invoice when applicable. 

For the nine ECCNs with a .z paragraph, 

the requirement to include the 

classification only applies to 

commodities classified under the .z 

paragraphs. If the commodity is 

classified under any other items 

paragraph in one of those nine .z 

ECCNs, then the requirement under 

§ 758.6(a)(2) is not applicable. This AC/ 

S IFR also specifies that the requirement 

for identifying ECCN 3A090 includes 

identifying the commodity as either 

3A090.a or .b. 

BIS is adding this additional export 

clearance requirement to increase the 

transparency of these items for entities 

receiving these items overseas. In 

particular, with the foreign direct 

product rules from the October 7 IFR 

also tied to these ECCNs, it will assist 

foreign manufacturers and other parties 

to be able to more easily identify when 

they receive a 3A090, 4A090, or a 

3A001.z, 4A003.z, 4A004.z, 4A005.z, 

5A002.z, 5A004.z, or 5A992.z ECCN 

item. BIS is aware that companies 

outside the United States have 


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requested in the past on several 

occasions that BIS broaden the 

requirement under § 758.6(a)(2) to 

require additional ECCNs to be included 

on the commercial invoice to assist 

them and reduce their burden. There 

were also a significant number of 

comments in response to the October 7 

IFR that expressed concern that the 

burdens being imposed in particular on 

reexporters may lead to a designing out 

of U.S.-origin content, so broadening 

this requirement for U.S. exporters to 

assist foreign manufacturers is a tangible 

way that BIS can reduce the burden on 

reexporters, while at the same time 

helping to improve the effectiveness of 

the October 7 IFR by ensuring greater 

transparency for these items. BIS does 

not anticipate any change in the burden 

for exporters as a result of this expanded 

requirement. 

4. Expansion of RS License 

Requirements, and Adoption of 

Additional Presumption of Approval 

License Review Policy With Certain 

Exclusions That Will Be Presumption of 

Denial 

A. Expansion of RS license 

requirement from China and Macau to 

include Country Groups D:1, D:4, and 

D:5. 

In § 742.6 Regional stability, the AC/ 

S IFR revises paragraph (a)(6) (RS 

requirement that applies to advanced 

computing and semiconductor 

manufacturing items) to reflect the 

expanded scope of this paragraph for 

certain items. BIS is revising paragraph 

(a)(6)(i) to remove references to 3A090 

and 4A090 and the associated software 

and technology, adding .z items created 

by this AC/S IFR, and imposing a 

license requirement for these items 

under new paragraph (a)(6)(iii) (Exports, 

reexports, transfers (in-country) to or 

within destinations specified in Country 

Groups D:1, D:4, and D:5, excluding 

destinations also specified in Country 

Groups A:5 or A:6). This AC/S IFR adds 

these items under a separate paragraph 

(a)(6)(iii) because of the expanded 

country scope of destinations in 

Country Groups D:1, D:4, and D:5 that 

are not also specified in Country Groups 

A:5 or A:6, which will apply to these 

items. The broader country scope 

license requirement for these items 

identified under paragraph (a)(6)(iii) is 

warranted to address diversion concerns 

from these destinations specified in 

Country Groups D:1, D:4, and D:5 

(excluding destinations also specified in 

Country Groups A:5 or A:6) to China 

and Macau. BIS notes that these 

additional countries are members of 

Country Group D:1, D:4, or D:5 because 

of concerns related to national security 

or missile technology proliferation, or as 

countries subject to a U.S. arms 

embargo, respectively. A fuller 

description of the national security 

concerns that led to these changes can 

be found in section C of this rule, 

including a description of the different 

license review policies that apply to 

some of these additional Country Group 

D:1, D:4, or D:5 destinations compared 

to China and Macau. See section C.4 for 

the description of the license review 

policies. 

Also, in § 742.6(a)(6), the AC/S IFR 

removes § 742.6(a)(6)(ii) (Deemed 

exports) and redesignates that paragraph 

as (a)(6)(iv), as described further below 

under Section C.3.B. In addition, this 

AC/S IFR removes the former license 

requirement under paragraph (a)(6)(i) 

that applied to exports from abroad 

originating in either China or Macau, 

and adds that under paragraph (a)(6)(ii), 

including adding references to the .z 

items this AC/S IFR adds to the EAR, 

consistent with § 734.9(h)(1)(i)(B)(1) and 

(h)(2)(ii) of the EAR. This AC/S IFR 

redesignates this text also under 

paragraph (a)(6)(ii) because BIS is not 

expanding the country scope of the FDP 

rules under § 734.9(h)(1)(i)(B)(1) and 

(h)(2)(ii) of the EAR. This AC/S IFR also 

removes paragraph (a)(6)(ii) (which this 

SME IFR redesignated as (a)(6)(iii) and 

this AC/S IFR redesignates as (a)(6)(iv)), 

as described further below under 

section C.3.B). Also, in § 742.6, this rule 

redesignates the introductory text of 

paragraph (b)(10) (Advanced computing 

and semiconductor manufacturing 

items) as new paragraph (b)(10)(i) 

(License review policy for paragraphs 

(a)(6)(i) and (ii)) to specify the license 

review policy that applies to those two 

new paragraphs. This AC/S IFR 

specified that such 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 rule. 

This AC/S IFR also adds a new 

paragraph (b)(10)(ii) (License review 

policy for paragraph (a)(6)(iii)) to 

specify license applications for items 

specified in paragraph (a)(6)(iii) to or 

within destinations not specified in 

Country Group D:5 (except Macau) will 

be reviewed on a presumption of 

approval basis, unless the export, 

reexport, or transfer (in-country) is to an 

entity headquartered in or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5, in which case license applications 

will be reviewed under a presumption 

of denial. This AC/S IFR also specifies 

that license applications for items to or 

within Macau or destinations specified 

in Country Group D:5 for items 

specified in paragraph (a)(6)(iii) will be 

reviewed under a presumption of 

denial. 

In conformity to the changes 

described above, this AC/S IFR also 

revises ECCNs 3A001, 3D001, 3E001, 

4A003, 4A004, 4A005, 5A002, 5A004, 

and 5D002 to add a RS license 

requirement and a reference to 

destinations specified in Country 

Groups D:1, D:4, or D:5 (excluding 

destinations specified in Country 

Groups A:5 or A:6). Similarly, the RS 

license requirement in ECCNs 3A090, 

4A090, 5A992, and 5D992 is revised to 

remove the reference to ‘‘China and 

Macau’’ and to add in its place a 

reference to destinations specified in 

Country Groups D:1, D:4, or D:5 

(excluding destinations specified in 

Country Groups A:5 or A:6). 

B. Exclusion of deemed exports and 

deemed reexports. 

This AC/S IFR removes 

§ 742.6(a)(6)(iii) that, prior to the 

effective date of this SME IFR, specified 

that deemed exports and deemed 

reexports were excluded from the 

license requirements under paragraph 

(a)(6) and redesignates this paragraph as 

paragraph (a)(6)(iv). See section D 

question 4 for specific public comments 

BIS is seeking on the application of 

deemed exports and deemed reexports. 

5. Clarifications for ‘‘U.S. Person’’ End 

Use Control 

A. Clarification of the scope of ‘‘U.S. 

persons’’ activities controlled under 

§ 744.6(c)(2) with the addition of new 

paragraph (c)(3). 

This AC/S IFR revises paragraphs 

(c)(2)(i) and (ii) to broaden the country 

scope of those controls from Macau and 

China to apply to Macau and 

destinations specified in Country Group 

D:5 when you know the item will be 

used in the ‘‘development’’ or 

‘‘production’’ of ICs at a facility of an 

entity headquartered in or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5. 

This AC/S IFR also adds a paragraph 

(c)(3) (Scope of activities of ‘‘U.S. 

persons’’ that require a license under 

§ 744.6(c)(2) of the EAR) to clarify the 

scope of activities that are caught under 

§ 744.6(c)(2)(i) through (iii). This 

clarification, partially codifying 

previously issued guidance from BIS 

through Frequently Asked Questions for 

the October 7 IFR, addresses questions 

received regarding the types of activities 

of ‘‘U.S. persons’’ that are intended to be 


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caught and are subject to the paragraph 

(c)(2)(i) through (iii) license 

requirements. This AC/IFR adds 

paragraph (c)(3)(i) to specify that the 

‘‘U.S. persons’’ controls in § 744.6(c)(2) 

apply to persons who meet the criteria 

under paragraph (c)(3)(i)(A), (B), or (C). 

The persons subject to the license 

requirements under paragraph 

(c)(3)(i)(A) are ‘‘U.S. persons’’ that 

authorize the shipment, transmittal, or 

transfer (in-country) of items not subject 

to the EAR, under paragraph (c)(3)(i)(B) 

are ‘‘U.S. persons’’ that conduct the 

delivery, by shipment, transmittal, or 

transfer in-country, of items not subject 

to the EAR, and under paragraph 

(c)(3)(i)(C) are ‘‘U.S. person’’ that 

service, including maintaining, 

repairing, overhauling, or refurbishing 

items not subject to the EAR. 

This AC/S IFR also adds paragraph 

(c)(3)(ii) (Due diligence) to illustrate the 

type of due diligence that should be 

undertaken when reviewing a 

transaction for purposes of 

§ 744.6(c)(2)(i) through (iii). ‘‘U.S. 

persons’’ should conduct due diligence 

to determine whether the end use for 

the item not subject to the EAR involves 

the ‘‘development’’ or ‘‘production’’ of 

‘‘advanced-node integrated circuits 

versus other legacy ICs.’’ Paragraph 

(c)(3)(ii) provides examples of what 

appropriate due diligence may include, 

including guidance for how to resolve 

potential red flags. 

Lastly, this AC/S IFR adds a new 

paragraph (d)(1) (Exclusion of certain 

administrative and clerical activities 

and information otherwise excluded), 

which includes adding new paragraph 

(d)(1)(i) (Exclusion of Certain 

administrative and clerical activities) to 

specify the types of ‘‘U.S. person’’ 

activities that are excluded from the 

controls in § 744.6. This AC/S IFR also 

adds new paragraph (d)(1)(ii) that 

clarifies that the scope of § 744.6(c)(2) 

does not include information or 

software that would otherwise be 

excluded from the EAR based on the 

exclusion criteria under part 734, e.g., 

under § 734.7 Published and § 734.8 

‘‘Technology’’ or ‘‘software’’ that arises 

during, or results from, fundamental 

research. This AC/S IFR also adds 

paragraph (d)(1)(iii) to add an exclusion 

of law enforcement and intelligence 

operations of the U.S. Government to 

specify the ‘‘U.S. persons’’ criteria in 

§ 744.6(c)(2)(i)–(iii) do not extend to 

‘‘U.S. persons’’ conducting law 

enforcement and intelligence operations 

of the U.S. Government. 

B. Addition of guidance for 

submitting license applications for 

‘‘U.S. persons’’ activities. 

In supplement no. 2 to part 748— 

Unique Application and Submission 

Requirements, this rule adds a new 

paragraph (s) (‘‘U.S. person’’ support 

activities that require a license under 

§ 744.6), to provide guidance on how to 

apply for a license application for ‘‘U.S. 

person’’ activities that require a license 

application under § 744.6. The 

guidance, codifying and expanding 

upon previously issued BIS Frequently 

Asked Questions on this issue, is under 

new paragraph (s). The provision 

specifies that applicants should use the 

reexport designation on the SNAP–R 

form and in the ‘‘Additional 

Information’’ section of the license 

application, they should note that a 

license is required for the transaction 

under § 744.6 of the EAR. The guidance 

also specifies that in the special purpose 

field, the applicant should describe the 

specific activity the ‘‘U.S. person’’ is 

engaged in that requires a license. In 

addition, the guidance specifies the 

applicant should provide the ECCN of 

the technology or item or, if unknown, 

use EAR99 (regardless of whether the 

items are subject to the EAR), as well as 

a complete explanation of the activity in 

supplemental documentation. 

In § 748.8 (Unique application and 

submission requirements), this rule 

makes a conforming change to add a 

new paragraph (d) (U.S. person support 

activities that require a license under 

§ 744.6). This rule also, as additional 

conforming changes with the existing 

supplement no. 2 to part 748, adds 

paragraphs (s) (Exports of firearms and 

certain shotguns temporarily in the 

United States); (t) (‘‘600 Series Major 

Defense Equipment’’); and (z) 

(Semiautomatic firearms controlled 

under ECCN 0A501.a). Paragraphs (s), 

(t), and (z) were included in supplement 

no. 2 to part 748, but were inadvertently 

omitted from the text in § 748.8, so this 

rule corrects that oversight. 

6. Expansion of § 744.23 To Add Two 

Additional End-Use license 

Requirements 

A. Addition of end-use control for 

Macau and D:5 headquartered 

(headquartered in or whose ultimate 

parent company is headquartered in 

Macau or Country Group D:5), 

companies when located outside of D:1, 

D:4, or D:5. 

In § 744.23 ‘‘Supercomputer’’ and 

semiconductor manufacturing end use, 

this rule expands the scope of the enduse controls under this section by 

adding two new end-use controls. First, 

this AC/S IFR adds under paragraph 

(a)(3)(i) a new advanced computing enduse control which will apply to any 

item subject to the EAR and specified in 

ECCN 3A001.z, 3A090, 4A003.z, 

4A004.z, 4A005.z, 4A090, 5A002.z, 

5A004.z, 5A992.z, 5D002.z, or 5D992.z. 

A license will be required under 

paragraph (a)(3)(i) for the export, 

reexport, or transfer (in-country) to or 

within any destination not specified in 

Country Groups D:1, D:4, or D:5 

(excluding any destination also 

specified in Country Groups A:5 or A:6) 

of commodities identified in ECCNs 

3A001.z, 3A090, 4A003.z, 4A004.z, 

4A005.z, 4A090, 5A002.z, 5A004.z, 

5A992.z, or 5D002.z, or 5D992.z when 

the exporter, reexporter, or transferor 

has ‘‘knowledge’’ at the time of the 

export, reexport, or transfer (in-country) 

that item is destined for any entity that 

is headquartered in, or whose ultimate 

parent company is headquartered in, 

either Macau or a destination specified 

in Country Group D:5. This additional 

end-use control is needed to ensure that 

the national security objectives of the 

October 7 IFR and this AC/S IFR are not 

undermined by Macau, PRC or other 

Country Group D:5 entities setting up 

cloud or data servers in other countries 

to allow these headquartered companies 

of concern to continue to train their AI 

models in ways that would be contrary 

to U.S. national security interests. This 

expanded end-use control is intended to 

target entities of concern, such as a PRCheadquartered cloud or data server 

provider located outside of China in a 

destination other than Country Groups 

D:1, D:4, or D:5, excluding any 

destination also specified in Country 

Groups A:5 or A:6. The license 

requirements under this end-use control 

apply to destinations in Country Group 

A:5 and A:6 and any other destination 

not specified in Country Groups D:1, 

D:4, or D:5. 

B. Addition of end-use control for 

‘‘production’’ of advanced computing 

items in any destination worldwide 

when using certain direct products 

exported from Macau or a destination 

specified in Country Group. 

This AC/S IFR adds an additional 

end-use control for the items identified 

under paragraph (a)(3)(ii) to specify an 

end-use control applies to any 

‘‘technology’’ subject to the EAR and 

specified in ECCN 3E001 (for 3A090) 

‘‘technology’’ when the technology 

meets all of the following: the 

technology is developed by an entity 

headquartered in or whose ultimate 

parent company is headquartered in, 

either Macau or a destination specified 

in Country Group D:5; the technology is 

subject to the EAR pursuant to the FDP 

rule in § 734.9(h)(1)(i)(B)(1) and 

(h)(2)(ii) of the EAR; and the technology 

is for the reexport or transfer (incountry) from or within Macau or a 


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destination specified in Country Group 

D:5to any destination worldwide of 

3E001. The FDP rule requirement 

highlighted above is intended to better 

ensure the intent of these two FDP rules 

are not able to be circumvented by 

trying to conduct these types of 

activities outside of Macau or 

destinations specified in Country Group 

D:5 by entities headquartered in, or 

whose ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5. 

C. Expansion of Country Scope to 

conform to broader country scope 

included in this AC/S IFR. 

This AC/S IFR as a conforming 

change also revises paragraphs 

(a)(1)(ii)(A) and (B) and (a)(2)(i) and (ii) 

to remove China and add in its place the 

broader country scope of Macau and any 

destination specified in Country Group 

D:5. 

D. Revision of Supercomputer end-use 

control. 

This AC/S IFR revises paragraph 

(a)(1)(ii)(A) and (B) to broaden the 

destination scope of the supercomputer 

end-use control by replacing ‘‘China or 

Macau’’ with ‘‘Macau or a destination 

specified in Country Group D:5.’’ 

7. Addition of ECCNs 3A991.p .z, 

4A994.l, or .z to License Exception CCD 

In § 740.19 Consumer 

communications devices (CCD), this 

final rule adds a new paragraph (b)(17) 

to add commodities described under 

3A991.p or 4A994.l, as commodities 

eligible for License Exception CCD. 

ECCNs 3A991.p and 4A994.l were not 

included in the October 7 IFR. BIS 

determined it is warranted to add these 

commodities as eligible commodities 

under License exception CCD because 

these ECCNs are for low-level items and 

are in line with other items identified as 

eligible for License Exception CCD. This 

AC/S IFR as a conforming change also 

revises paragraph (b)(16) to remove the 

period and add a semi-colon and the 

word ‘‘and’’ after the semi-colon to 

reflect the addition of new paragraph 

(b)(17). 

8. Broadening the Country Scope of the 

Advanced Computing FDP Rule 

In § 734.9(h) (Advanced computing 

FDP rule), this AC/S IFR broadens the 

country scope of the advanced 

computing FDP rule by revising 

paragraph (h)(2) (Destination or end use 

scope of the advanced computing FDP 

rule). Specifically, BIS revises 

paragraphs (h)(2)(i) and (ii) by removing 

‘‘PRC or Macau’’ and adding in its place 

a ‘‘destination specified in Country 

Groups D:1, D:4, or D:5, excluding any 

destination also specified in Country 

Groups A:5 or A:6.’’ Under revised 

paragraph (h)(2)(i) the country scope 

also extends worldwide when the 

‘‘direct product’’ is to or for an entity 

headquartered in or whose ultimate 

parent company is headquartered in, 

either Macau or a destination specified 

in Country Groups D:5. This AC/IFR 

also adds a new Note to paragraph (h)(2) 

to clarify that the requirements apply 

when any of these headquartered in or 

whose ultimate parent company is 

headquartered in, companies are a party 

to the transaction involving the foreignproduced item, e.g., as a ‘‘purchaser,’’ 

‘‘intermediate consignee,’’ ‘‘ultimate 

consignee,’’ or ‘‘end-user.’’ Additional 

corrections and clarifications to this 

section are described in Section C.11.A 

of this rule. 

9. Clarification That Model Certificate 

May Be Used for All Foreign Direct 

Product (FDP) Rules 

In supplement no. 1 to part 734— 

Model Certification for Purposes of 

Advanced Computing FDP rule, this 

AC/S IFR revises the heading to Model 

Certification for Purposes of the FDP 

rules, and revises paragraph (a) of that 

supplement to clarify that the model 

certification may be used for any of the 

FDP rules under § 734.9. This AC/S IFR 

revises paragraph (a) to clarify that the 

model certificate may be provided by 

any entity in a supply chain or to an 

exporter, reexporter, or transferor of the 

item. In addition, this rule adds an 

example to improve public 

understanding that the model 

certification may flow more than one 

way (forward or backwards) in a supply 

chain. 

This AC/S IFR also revises paragraph 

(b) (model criteria), to revise the 

introductory text of paragraph (b) and 

the text of paragraph (b)(2) to make the 

model certification applicable for any of 

the FDP rules under § 734.9. New 

paragraphs (b)(2)(i) through (ix) to 

provide model criteria for any of the 

FDP rules that is applicable to their 

scenario. 

This AC/S IFR removes paragraph 

(b)(3) because the substance of 

paragraph (b)(3) is already addressed 

under paragraph (b)(2). 

This AC/S IFR also redesignates 

paragraph (b)(4) as (3) and revises the 

newly redesignated paragraph to make a 

conforming edit to add the phrase ‘‘or 

exporter(s), reexporter(s), or 

transferor(s)’’ to clarify that the model 

certification can flow in either direction 

in a supply chain. This AC/S IFR also 

revises Note 1 to paragraph (b) to clarify 

that the model certification can flow 

from the exporter, reexporter, or 

transferor to another entity in the 

supply chain or may flow the other way 

from a consignee back to an exporter, 

reexporter, or transferor in the supply 

chain. The purpose of the model 

certification is to enhance awareness of 

the potential applicability of the FDP 

rules in supply chains, so there is 

flexibility for how entities use the 

model certification between different 

entities involved in supply chains to 

help achieve that objective. 

10. Changes To Enhance and Assist 

With Compliance 

A. Addition of five new red flags to 

assist with compliance. 

In supplement no. 3 to part 732— 

BIS’s ‘‘Know Your Customer’’ Guidance 

and Red Flags, this AC/S IFR adds five 

new red flags that are intended to 

provide additional compliance guidance 

to assist exporters, reexporters, and 

transferors as part of their compliance 

programs for the October 7 IFR. Several 

commenters on the October 7 IFR 

requested BIS add red flags to the EAR 

that have applicability for the types of 

transactions involving items from the 

October 7 IFR, similar to what was done 

when the ‘‘600 series’’ military items 

were moved to the EAR under Export 

Control Reform. BIS agreed with the 

commenters and adds five new red flags 

to assist exporters, reexports, and 

transfers identify potential red flags. 

New red flag 15 identifies a scenario 

where, prior to the October 7 IFR, a 

customer’s website or other marketing 

materials indicated that the company 

had advertised or otherwise indicated 

its capability for ‘‘developing’’ or 

‘‘producing’’ ‘‘advanced-node integrated 

circuits.’’ This type of activity would 

raise a red flag and require additional 

due diligence. 

New red flag 16 is a variant of some 

of the red flags regarding a mismatch 

between what a customer says an item 

would be used for, and the item’s 

traditional use. New red flag 16 

provides a similar type of example but 

makes it specific to items intended for 

the ‘‘development’’ or ‘‘production’’ of 

‘‘advanced-node integrated circuits.’’ 

New red flag 17 identifies a scenario 

where the customer is ‘‘known’’ to 

‘‘develop’’ or ‘‘produce’’ items for 

companies located in Macau or a 

destination specified in Country Group 

D:5 that are involved with 

supercomputers, which would also 

trigger a red flag under the EAR. This 

type of scenario may be indicative that 

the items that are being ‘‘developed’’ or 

‘‘produced’’ may be for use in 

supercomputers and warrants additional 

due diligence. 


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New red flag 18 addresses how 

exporters, reexporters, or transferors 

should evaluate anticipated future 

capabilities, which was another issue 

about which commenters sought 

additional compliance guidance, in 

particular the end-use controls under 

§ 744.23(a)(2)(i), (ii), or (iii), which have 

been redesignated as paragraph 

(a)(1)(i)(A) and (B) and (a)(2)(i) in this 

SME IFR. New red flag 18 specifies that 

in scenarios where a customer has 

indicated intent to ‘‘develop’’ or 

‘‘produce’’ supercomputers or integrated 

circuits in Macau or a destination 

specified in Country Group D:5 in the 

future that would otherwise be 

restricted under § 744.23(a)(2)(i), (ii), or 

(iii), redesignated as paragraphs 

(a)(1)(i)(A) and (B) and (a)(2)(i), raises a 

red flag under the EAR. 

New red flag 19 addresses how 

semiconductor fabrication facilities can 

identify when they receive an order 

from a destination in Country Groups 

D:1, D:4, or D:5 or worldwide from an 

entity headquartered in or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5 where the item to be produced is 

likely a ‘‘direct product’’ that will be 

subject to the EAR under § 734.9(h). Red 

flag 19 is part of BIS’s efforts to provide 

guidance to semiconductor fabrication 

facilities trying to develop enhanced 

FDP guidance for recognizing ‘‘direct 

products.’’ Specifically, BIS is adding 

this new red flag 19 to better assist any 

semiconductor fabrication facility that is 

or will be producing, for a company 

headquartered in or whose ultimate 

parent company is headquartered in, 

either Macau or a destination specified 

in Country Group D:5 an IC, or a 

computer, ‘‘electronic assembly,’’ or 

‘‘component’’ that incorporates an IC 

that meets certain specified criteria 

under § 734.9(h)(1)(i)(B)(2) and 

(h)(1)(ii)(B)(2) that there is a high degree 

of likelihood (‘‘knowledge’’) that the 

‘‘direct product’’ that is or will be 

‘‘produced’’ is within the product scope 

of § 734.9(h). This criteria specifies that 

if the item that is or will be produced 

is an IC, or a computer, ‘‘electronic 

assembly,’’ or ‘‘component’’ that 

incorporates more than 50 billion 

transistors and high-bandwidth memory 

(HBM), it raises a red flag that there is 

a high degree of likelihood that a license 

is required under the EAR for reexport 

or export from abroad of that ‘‘direct 

product’’ if destined to any destination 

in Country Groups D:1, D:4, or D:5 

excluding destinations also specified in 

Country Groups A:5 or A:6 unless the 

red flag is resolved. BIS emphasizes 

here in this AC/S IFR that red flag 19 

is only applicable if the entity has 

‘‘knowledge’’ the criteria of the red flag 

19 are met. If the entity does not have 

‘‘knowledge’’ that the transaction would 

otherwise meet the criteria under red 

flag 19, then this red flag is not 

applicable. 

A reexporter or transferor may take 

additional steps as part of their 

compliance program to attempt to 

resolve the red flag, e.g., obtaining 

additional information from the entity 

requesting the item to be produced, in 

order to determine whether the item 

being produced is outside the scope of 

§ 734.9(h)(1)(i)(B)(2) and (h)(1)(ii)(B)(2). 

The addition of red flag 19 in this rule 

includes adding a Technical note to 

(b)19, which will provide technical 

guidance on how to calculate the red 

flag criteria under red flag 19. A 

reexporter or transferor may also submit 

a license to BIS to ask for assistance in 

determining whether the foreign item to 

be produced, is subject to the EAR as a 

‘‘direct product’’ on the basis of the 

§ 734.9(h), but BIS encourages 

semiconductor fabrication facilities to 

try to resolve these red flags themselves 

before applying for a license. Direct 

products that are subject to the EAR 

under paragraphs (h)(1)(i)(B)(2) and 

(h)(1)(ii)(B)(2) of § 734.9 require a 

license under the EAR for reexport or 

export from abroad of that direct 

product if destined to any destination 

specified in Country Groups D:1, D:4 or 

D:5 that is not also specified in Country 

Groups A:5 or A:6. BIS notes that this 

red flag 19 can be overcome with 

positive ‘‘knowledge’’ of the 

classification of the item that is or will 

be produced, provided the 

semiconductor fabrication facility has 

positively determined that the item that 

is or will be produced is not an item 

identified under paragraph 

(h)(1)(i)(B)(2) or (h)(1)(ii)(B)(2), then that 

foreign made product is not subject to 

the EAR on the basis of § 734.9(h). 

BIS is also interested in soliciting 

additional public comments in this area 

of identifying ways to assist 

semiconductor fabrication facility 

compliance in recognizing ‘‘direct 

products.’’ See section D of this rule for 

the additional comments BIS is 

interested in receiving in this area. 

11. Changes To Minimize the Impact on 

Supply Chains—Adoption of TGL— 

Advanced Computing Items 

In supplement no. 1 to part 736— 

General Orders, this AC/S IFR, revises 

paragraph (d) (General Order No. 4) to 

add a new paragraph (d)(2) (TGL— 

Advanced computing items). The new 

TGL for advanced computing items will 

overcome the license requirements 

specified in § 742.6(a)(6)(iii), provided 

the terms and conditions under 

paragraphs (d)(3) through (5) are met. 

This AC/S IFR adds new paragraph 

(d)(2)(i) (Product scope) to specify the 

items that may be authorized under this 

new TGL. These items are limited to the 

items subject to the EAR that are 

specified in ECCNs 3A001.z; 3A090; 

3D001 (for ‘‘software’’ for commodities 

controlled by 3A001.z, 3A090); 3E001 

(for ‘‘technology’’ for commodities 

controlled by 3A001.z, 3A090); 4A003.z; 

4A004.z; 4A005.z; 4A090; 4D001 (for 

‘‘software’’ for commodities controlled 

by 4A003.z, 4A004.z, and 4A005.z); 

4D090; 4E001 (for ‘‘technology’’ for 

commodities controlled by 4A003.z, 

4A004.z, 4A005.z, 4A090 or ‘‘software’’ 

specified by 4D001 (for 4A003.z, 

4A004.z, and 4A005.z), 4D090); 

5A002.z; 5A004.z; 5A992.z; 5D002.z; 

5D992.z; 5E002 (for ‘‘technology’’ for 

commodities controlled by 5A002.z or 

5A004.z or ‘‘software’’ specified by 

5D002 (for 5A002.z or 5A004.z 

commodities)); or 5E992 (for 

‘‘technology’’ for commodities 

controlled by 5A992.z or ‘‘software’’ 

controlled by 5D992.z). 

The TGL—Advanced computing 

items is limited to the end use scope 

specified in paragraphs (d)(2)(ii) (Enduse scope). Paragraph (d)(2)(i) has a 

different product scope than the original 

TGL that was included in the October 7 

IFR, but is otherwise similar in the 

scope of activity authorized, although 

the destination scope is broader. 

Paragraph (d)(2)(ii) requires that the 

recipient (1) is located in, but not 

headquartered in or whose ultimate 

parent company is not headquartered in, 

a destination specified in Country 

Groups D:1, D:4, or D:5 that is not also 

specified in Country Groups A:5 or A:6. 

The end-use scope of this paragraph 

authorizes entities to continue or engage 

in integration, assembly (mounting), 

inspection, testing, quality assurance, 

and distribution of items covered by 

items specified in paragraph (d)(2)(i) 

provided the items are for ultimate end 

use (1) outside of destinations specified 

in Country Groups D:1, D:4, or D:5, 

excluding destinations also specified in 

Country Groups A:5 or A:6, and (2) by 

entities that are not headquartered in, or 

whose ultimate parent company is not 

headquartered in, Macau or Country 

Group D:5. 

This AC/S IFR, as additional 

conforming changes to the TGL 

revisions made in the SME IFR, revises 

the introductory text of paragraph (d) 

(General Order No. 4) to add a reference 

to paragraph (d)(2) that this AC/S IFR 

adds. This AC/S IFR also revises 


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paragraph (d)(3) (Validity date) to add a 

sentence to specify the validity date for 

paragraph (d)(2). The TGL under 

paragraph (d)(1) (added in this SME 

IFR) of supplement no. 1 to part 736 and 

the TGL under paragraph (d)(2) (added 

in this AC/S IFR) of supplement no. 1 

to part 736 will both expire on 

December 31, 2025, approximately a 2- 

year validity period. This AC/S IFR also 

revises paragraph (d)(4) (End-use and 

end-user restrictions) to revises 

paragraph (d)(4)(i) (Restrictions related 

to part 744) to add a reference to new 

paragraph (d)(2). This AC/S IFR under 

paragraph (d)(4)(ii) (Indigenous 

production) redesignates the text added 

in this SME IFR as new paragraph 

(d)(4)(ii)(A) and adds a new paragraph 

(d)(4)(ii)(B) to impose a similar 

restriction on indigenous production, 

but specific to the new TGL—Advanced 

computing items added under 

paragraph (d)(2). 

12. Additional Corrections and 

Clarifications 

A. Conforming changes to headings 

for the Foreign Direct Product (FDP) 

rules for clarity and consistency with 

advanced computing rule. 

In § 734.9, this AC/S IFR also revises 

paragraph (a) to: add the paragraph 

heading (Definitions and model 

certification); redesignate the existing 

Definitions text as new paragraph (a)(1) 

(Definitions); and move and redesignate 

existing paragraph (h)(3) as new 

paragraph (a)(2) (Model certification). 

This rule also makes conforming 

changes to reflect that the model 

certification may be used for any of the 

FDP rules in § 734.9 instead of being 

limited for use with the advanced 

computing FDP rule under § 734.9(h). 

In § 734.9 (Foreign Direct Product 

(FDP) Rules), this AC/S IFR makes 

conforming changes to the headings of 

paragraphs (b)(1)(ii), (c)(1)(ii), (d)(1)(ii), 

(f)(1)(ii), and (g)(1)(ii) by removing the 

heading ’’ ‘‘Direct product’’ of a 

complete plant or ‘major component’ of 

a plant’’ and adding in its place the 

heading ‘‘Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product’’.’’ This change is made 

to conform these paragraph headings to 

the headings used in the advanced 

computing rule for paragraphs 

(e)(1)(i)(B), (e)(2)(i)(B), (h)(1)(ii), and 

(i)(1)(i)(B) of § 734.9. 

In § 734.9, this AC/S IFR, as a 

clarifying change, revises the first 

sentence of the introductory text of the 

section, and paragraphs (e)(1)(i)(B), 

(e)(2)(i)(B), (f)(1)(ii)(A), (g)(1)(ii), and 

(i)(1)(ii) to remove the term ‘plant’ and 

add in its place the more precise term 

‘complete plant.’ This AC/S IFR makes 

this change, so the term ‘complete plant’ 

is used consistently throughout the 

section. For purposes of this section, 

prior to publication of this rule, BIS 

interpreted the term ‘plant’ and 

‘complete plant’ the same, so this is not 

a substantive change, but is intended to 

reduce any confusion regarding whether 

the two formulations of the term have 

different meanings. Additional changes 

were made throughout the section to 

ensure that the complete plant 

provisions are identical. 

In § 734.3 (Items subject to the EAR), 

this AC/S IFR makes a conforming 

change to paragraphs (a)(4) and (5) to 

remove the reference to § 736.2(b)(3) 

and add in its place a reference to 

§ 734.9. Also in § 734.3, this AC/S IFR 

as a conforming change to § 734.9, 

revises paragraph (a)(5) to remove the 

term ‘‘direct products’’ and add in its 

place the term products, so it reads 

certain foreign-produced products and 

adds the phrase ‘‘that is a ‘‘direct 

product’’ of specified ‘‘technology’’ or 

‘‘software’’ ’’ after the phrase products of 

a complete plant or major component of 

plant. This change is made to conform 

with the other clarifications made on 

this under § 734.9. 

B. Clarifying changes. 

In supplement no. 1 to part 774— 

Commerce Control List, this AC/S IFR 

revises four ECCNs as follows: 

In ECCN 4A090, this AC/S IFR revises 

‘‘items’’ paragraph (a) in the List of 

Items Controlled section, to add the 

words ‘‘meets or,’’ to make it clear that 

this control parameter applies to 

computers, ‘‘electronic assemblies,’’ and 

‘‘components’’ containing integrated 

circuits, any of which meets or exceeds 

the performance parameters of ECCN 

3A090.a. 

In ECCN 4A994, this AC/S IFR revises 

‘‘items’’ paragraph (l) in the List of Items 

Controlled section, to add the words 

‘‘meets or,’’ to make it clear that this 

control parameter applies to computers, 

‘‘electronic assemblies,’’ and 

‘‘components,’’ n.e.s., containing 

integrated circuits, any of which meets 

or exceeds the performance parameters 

of ECCN 3A991.p. 

In ECCNs 5A992 and 5D992, this AC/ 

S IFR revises the Country Chart column 

in the License Requirements section in 

both of these ECCNs to revise ‘‘RS’’ 

control to specify the RS control applies 

to .z items in these ECCNs and the 

license requirement applies to or within 

destinations specified in Country 

Groups D:1, D:4, and D:5 that are not 

also specified in Country Groups A:5 or 

A:6, along with adding a cross reference 

to see § 742.6(a)(6)(iii) of the EAR. This 

change is made for consistency with the 

other ECCNs that reference § 742.6(a)(6), 

which specify China and Macao. 

C. Conforming changes to ECCNs to 

not undermine deemed export and 

deemed reexport exclusion. 

This AC/S IFR revises two ECCNs: 

4D001 and 4E001 to make conforming 

changes to ensure these National 

Security (NS) controlled software and 

technology controls do not undermine 

the intent of the deemed export and 

deemed reexport exclusion under 

§ 742.6(a)(6)(iv). This AC/S IFR does 

this by adding exclusions where needed 

to each of these NS controlled ECCNs to 

exclude the relevant software and 

technology from these ECCNs that are 

associated with ECCNs 4A090 and 

4D090. This software and technology 

were intended to be excluded from 

these NS controls but were 

inadvertently not excluded in the 

October 7 IFR. To correct this oversight, 

this rule makes the following changes to 

two ECCNs: 

In ECCN 4D001, this rule revises 

‘‘items’’ paragraph (a) in the List of 

Items Controlled section to add an 

exclusion for 4D090 for the software 

controlled under 4D001.a. 

In ECCN 4E001, this rule revises the 

NS control column the License 

Requirements section to exclude 

technology for 4A090 or ‘‘software’’ 

specified by ECCN 4D090 from the NS 

control under 4E001. 

D. Typographical, grammatical, and 

other conforming corrections. 

In § 732.2(b) introductory text, this 

AC/S IFR makes a conforming change to 

the third sentence that referenced 

supplement no. 1 to part 734 which, 

prior to September 1, 2016, described 

several practical examples describing 

publicly available technology and 

software that are outside the scope of 

the EAR. These examples were removed 

from the EAR on September 1, 2016, 

and are now found on the BIS website, 

but the needed conforming change was 

not made at that time to this paragraph 

(b). Subsequently, the October 7 IFR 

added a new supplement no. 1 to part 

734, but also inadvertently did not 

update this reference to supplement no. 

1 to part 734 in § 732.2(b). However, in 

the context of this paragraph, 

supplement no. 1 to part 734 should no 

longer be referenced and instead a 

reference to the FAQ guidance on the 

BIS website at https://www.bis.doc.gov 

should replace this text. This rule 

revises the third sentence to make this 

change and adds a cross reference by 

adding a new fourth sentence to inform 

the public to See the FAQs under the 

heading, EAR Definitions, Technology 

and Software, Fundamental Research, 

and Patents FAQs, for where the 


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guidance can be found on the BIS 

website. This rule also makes this same 

type of conforming change to 

§ 734.2(a)(1). 

In § 734.9, this AC/S IFR revises 

paragraph (h)(3) to make a grammatical 

correction to remove an unneeded ‘‘s’’ 

from the word ‘‘items.’’ As described 

above, this rule also redesignates 

paragraph (h)(3) as new paragraph (a)(2). 

D. BIS Seeks Public Comments on the 

Following Additional Questions 

In addition to welcoming comments 

on the topics and BIS responses and 

description of the regulatory changes 

described above under sections A 

through C, BIS in this AC/S IFR also 

specifically seeks comments on the 

following questions: 

1. Addressing access to 

‘‘development’’ at an infrastructure as a 

service (IaaS) provider by customers to 

develop or with the intent to develop 

large dual-use AI foundation models 

with potential capabilities of concern, 

such as models exceeding certain 

thresholds of parameter count, training 

compute, and/or training data. This AC/ 

S IFR seeks public comments on what 

additional regulations or other 

requirements may be warranted to 

address this national security concern 

relating to AI. BIS also seeks input from 

IaaS providers on the feasibility for 

them in complying with additional 

regulations in this area, how they would 

identify whether a customer is 

‘‘developing’’ or ‘‘producing’’ a dual-use 

AI foundation model, and what actions 

would be needed to address this 

national security concern while 

minimizing the business process 

changes that would be required to 

comply with these regulations. 

2. Developing technical solutions to 

exempt items otherwise classified under 

ECCNs 3A090 and 4A090. This AC/S 

IFR seeks public comments on proposed 

technical solutions that limit items 

specified under ECCN 3A090 or 4A090 

from being used in conjunction with 

large numbers of other such items in 

ways that enable training large dual-use 

AI foundation models with capabilities 

of concern. Such items could then be 

exempted from these ECCNs. An 

example approach would be to limit a 

product that contains a set of ICs, 

including ECCN 3A090 AI accelerators, 

CPUs, and network interface cards— 

which could form a high-bandwidth 

domain including up to e.g., 256 AI 

accelerators, from communicating 

outside the product or set beyond 1 GB/ 

s in at least one of the input or output 

direction. In one possible 

implementation of this concept, each 

device in the set might provide a 

cryptographic signature to other devices 

in the set, and then have a tamperproof 

silicon root-of-trust in each device that 

would hold the private keys for the 

cryptographic signatures. This approach 

could constrain a 3A090 item from 

being used to train large dual-use AI 

foundation models with capabilities of 

concern, while allowing AI training 

capabilities at a small or medium scale. 

In particular, the AC/S IFR seeks 

specific technical proposals that would 

be difficult to circumvent; comments on 

the timeline and costs to bring such 

proposals to market; and comments on 

the demand for such ICs and products. 

The AC/S IFR also seeks additional 

proposals for exemptions involving 

hardware-based technical solutions that 

create the ability to limit training of 

large dual-use AI foundation models 

with capabilities of concern. 

3. Identifying ways to assist 

semiconductor fabrication facility 

compliance in recognizing ‘‘direct 

products.’’ As discussed further under 

section C.10 above, this AC/S IFR adds 

new red flag 19 in supplement no. 3 to 

part 732 of the EAR to assist any facility 

where ‘‘production’’ of ‘‘advanced node 

ICs’’ occurs to follow guidance to 

recognize ‘‘direct products.’’ New red 

flag 19 will assist semiconductor 

fabrication facilities to more easily 

identify ‘‘direct products’’ that they are 

or will be producing that are subject to 

the EAR on the basis of the FDP rule. 

In order to be most effective, this 

enhanced FDP guidance or any 

additional guidance that is developed 

needs to identify criteria that (1) are 

already ‘‘knowable’’ or easily 

determined by the semiconductor 

fabrication facilities and (2) should be 

highly indicative of an IC that will meet 

the FDP scope under 

§ 734.9(h)(1)(i)(B)(2) and (h)(1)(ii)(B)(2). 

BIS believes that the criteria added 

under new red flag 19 meets this twopart test and will assist semiconductor 

manufacturing facilities to more easily 

identify their regulatory obligations 

under the EAR. However, in addition to 

the criteria BIS included in new red flag 

19 in supplement no. 3 to part 732, BIS 

also seeks any refinements to those 

criteria or alternative criteria that would 

better achieve those two objectives. 

4. Deemed exports and deemed 

reexports. BIS specifically seeks public 

comment on the applicability of deemed 

exports and deemed reexports in 

§ 742.6(a)(6)(iv). 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 a license were required for 

deemed exports and deemed reexports. 

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. 

5. Control parameters under 3A090, 

in particular Note 2 to 3A090. In 

response to this AC/S IFR, BIS seeks 

comments on how to refine the 

parameters under ECCN 3A090 to more 

granularly cover only ICs that would 

raise concerns for use in training largescale AI systems and to and to more 

specifically define ICs not designed or 

marketed for us in datacenters. 

6. Definition of headquartered 

companies. BIS seeks comments on the 

definition entities headquartered in, or 

whose ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5, including comments on the ability 

to access information required to assess 

the status of a foreign party and any 

other factors that would support the 

policy goal of limiting access to 

advanced computing capability by 

Macau parties or a destination specified 

in Country Group D:5 parties. 

7. BIS is interested in receiving public 

comments in response to this AC/S IFR 

on the technical parameters included in 

the definition of ‘‘supercomputer’’ and 

how those relate to the end-use control 

under § 744.23(a)(1). BIS is particularly 

interested in whether the definition of 

‘‘supercomputer’’ may result 

increasingly in commercial datacenters 

falling under the definition of 

‘‘supercomputer’’ and the end-use 

control under § 744.23(a)(1). BIS 

welcomes comments on the definition 

of ‘‘supercomputer,’’ as well on what 

additional criteria could be added to 

§ 744.23(a)(1) to better focus the control 

to ensure that supercomputers used to 

support foreign government agencies 

would be caught under the end-use 

control, but other datacenters strictly 

involved in the commercial sector 

would not be covered. 

Export Control Reform Act of 2018 

On August 13, 2018, the President 

signed into law the John S. McCain 

National Defense Authorization Act for 

Fiscal Year 2019, which included the 

Export Control Reform Act of 2018 

(ECRA) (codified, as amended, at 50 

U.S.C. 4801–4852). ECRA 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 


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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 73487 

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. 

2. Notwithstanding any other 

provision of law, no person is required 

to respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.) (PRA), unless that collection of 

information displays a currently valid 

Office of Management and Budget 

(OMB) Control Number. 

This rule involves the following 

OMB-approved collections of 

information subject to the PRA: 

• 0694–0088, ‘‘Multi-Purpose 

Application,’’ which carries a burden 

hour estimate of 29.4 minutes for a 

manual or electronic submission; 

• 0694–0096 ‘‘Five Year Records 

Retention Period,’’ which carries a 

burden hour estimate of less than 1 

minute; 

• 0694–0122, ‘‘Licensing 

Responsibilities and Enforcement;’’ and 

• 0607–0152 ‘‘Automated Export 

System (AES) Program,’’ which carries a 

burden hour estimate of 3 minutes per 

electronic submission. 

This AC/S IFR will affect the 

collection under control number 0694– 

0088, for the multipurpose application 

because of the addition of the 

notification requirement for exports and 

reexports to China in order to use new 

License Exception Notified Advanced 

Computing (NAC) under § 740.8 that 

this rule adds to the EAR. BIS estimates 

that the new License Exception NAC 

notification will result in an increase of 

3,000 multi-purpose applications 

submitted annually to BIS and an 

increase of 950 burden hours under this 

collection. BIS also anticipates the 

submission annually of 200 license 

applications as a result of the revision 

to license requirements included in this 

AC/S IFR, but because the original 

estimate that was included in the 

October 7 IFR (i.e., that BIS estimates 

that these new controls under the EAR 

imposed by the October 7 IFR would 

result in an increase of 1,700 license 

applications submitted annually to BIS) 

was higher than the actual number of 

license applications BIS has received 

over the first year of the October IFR 

changes being in place, BIS does not 

anticipate any changes in these 

estimates as a result of the changes 

include in this AC/S IFR for license 

applications submitted to BIS as a result 

of this AC/S IFR with the one exception 

of the increase in burden hours for the 

License Exception NAC notifications, 

which was not accounted for in the 

October 7 IFR because License 

Exception NAC was not part of the EAR 

at that time. 

This AC/S IFR will affect the 

information collection under control 

number 0607–0152, for filing EEI in 

AES because this rule adds § 758.1(g)(5) 

to impose a requirement for identifying 

.z items by ‘‘items’’ level classification 

in the EEI filing in AES. This change is 

not anticipated to result in a change in 

the burden under this collection 

because filers are already required to 

provide a description in the Commodity 

description block in the EEI filing in 

AES. This regulation also involves a 

collection previously approved by the 

OMB under control number 0694–0122, 

‘‘Licensing Responsibilities and 

Enforcement’’ because this rule under 

the revision to § 758.6(a)(2) will require 

the ECCN(s) for any 3A001.z, 3A090, 

4A003.z, 4A004.z, 4A005.z, 4A090, 

5A002.z, 5A004.z, 5A992.z to be 

included on the commercial invoice, 

similar to the previous requirement to 

include the ‘‘600 series’’ and 9x515 

ECCNs on the commercial invoice. BIS 

does not anticipate a change in the total 

burden hours associated with the PRA 

and OMB control number 0694–0122 as 

a result of this rule. 

Additional information regarding 

these collections of information— 

including all background materials—can 

be found at https://www.reginfo.gov/ 

public/do/PRAMain by using the search 

function to enter either the title of the 

collection or the OMB Control Number. 

3. This rule does not contain policies 

with federalism implications as that 

term is defined in Executive Order 

13132. 

4. Pursuant to section 1762 of 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. While 

section 1762 of ECRA provides 

sufficient authority for such an 

exemption, this action is also 

independently exempt from these APA 

requirements because it involves a 

military or foreign affairs function of the 

United States (5 U.S.C. 553(a)(1)). 

5. Because a notice of proposed 

rulemaking and an opportunity for 

public comment are not required to be 

given for this rule by 5 U.S.C. 553, or 

by any other law, the analytical 

requirements of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., are 

not applicable. Accordingly, no 

regulatory flexibility analysis is 

required, and none has been prepared. 

List of Subjects 

15 CFR Parts 732 and 748 

Administrative practice and 

procedure, Exports, Reporting and 

recordkeeping requirements. 

15 CFR Part 734 

Administrative practice and 

procedure, Exports, Inventions and 

patents, Research, Science and 

technology. 

15 CFR Parts 740 and 758 

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 Parts 746 and 774 

Exports, Reporting and recordkeeping 

requirements. 

15 CFR Parts 736, 770, and 772 

Exports. 

For the reasons stated in the 

preamble, parts 732, 734, 736, 740, 742, 

744, 746, 748, 758, 770, 772, and 774 of 

the Export Administration Regulations 

(15 CFR parts 730 through 774) are 

amended as follows: 

PART 732—STEPS FOR USING THE 

EAR 

■ 1. The authority citation for part 732 

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. 

13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 

228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 

Comp., p. 783. 

■ 2. Effective November 17, 2023, 

§ 732.2 is amended by revising 

paragraph (b) introductory text to read 

as follows: 

§ 732.2 Steps regarding scope of the EAR. 

* * * * * 

(b) Step 2: Publicly available 

technology and software. This step is 

relevant for both exports and reexports. 

Determine if your technology or 


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software is publicly available as defined 

and explained at part 734 of the EAR. 

The Bureau of Industry and Security 

(BIS) website at https://www.bis.doc.gov 

contains several practical examples 

describing publicly available technology 

and software that are outside the scope 

of the EAR under the FAQ section of the 

website. See the FAQs under the 

heading, EAR Definitions, Technology 

and Software, Fundamental Research, 

and Patents FAQs at https://

www.bis.doc.gov/index.php/documents/ 

compliance-training/exportadministration-regulations-training/ 

1554-ear-definitions-faq/file. The 

examples are illustrative, not 

comprehensive. Note that encryption 

software classified under ECCN 5D002 

on the Commerce Control List (refer to 

supplement no.1 to part 774 of the EAR) 

is subject to the EAR even if publicly 

available, except for publicly available 

encryption object code software 

classified under ECCN 5D002 when the 

corresponding source code meets the 

criteria specified in § 740.13(e) of the 

EAR. The following also remains subject 

to the EAR: ‘‘software’’ or ‘‘technology’’ 

for the production of a firearm, or 

firearm frame or receiver, controlled 

under ECCN 0A501, as referenced in 

§ 734.7(c) of the EAR. 

* * * * * 

■ 3. Effective November 17, 2023, 

supplement no. 3 to part 732 is 

amended by adding paragraphs (b)15 

through 19 to read as follows: 

Supplement No. 3 to Part 732—BIS’s 

‘‘Know Your Customer’’ Guidance and 

Red Flags 

* * * * * 

(b) * * * 

15. The customer’s website or other 

marketing materials prior to October 7, 2022, 

indicated that the company had advertised or 

otherwise indicated its capability for 

‘‘developing’’ or ‘‘producing’’ ‘‘advancednode integrated circuits.’’ 

16. The customer has made representations 

that the items in question are not intended 

for use in the ‘‘development’’ or 

‘‘production’’ of ‘‘advanced-node integrated 

circuits,’’ but the items that are being 

requested to be exported, reexported, or 

transferred (in-country) to this customer are 

typically exclusively or predominantly used 

for the production of ‘‘advanced-node 

integrated circuits.’’ 

17. The customer is ‘‘known’’ to ‘‘develop’’ 

or ‘‘produce’’ items for companies located in 

Macau or a destination specified in Country 

Group D:5 that are involved with 

‘‘supercomputers.’’ 

18. The exporter has ‘‘knowledge’’ 

indicating this customer intends to 

‘‘develop’’ or ‘‘produce’’ ‘‘supercomputers’’ 

or integrated circuits in the future that would 

otherwise be restricted under § 744.23(a)(1)(i) 

or (a)(2)(i). 

19. The exporter has ‘‘knowledge’’ that it 

is or seeks to be producing at a facility where 

‘‘production’’ of ‘‘advanced node ICs’’ occur, 

for a company headquartered in either Macau 

or a destination specified in Country Group 

D:5, an integrated circuit, or a computer, 

‘‘electronic assembly,’’ or ‘‘component’’ that 

will incorporate (A) more than 50 billion 

transistors and (B) high-bandwidth memory 

(HBM). This raises a red flag that needs to be 

resolved or a license may be required under 

the EAR for reexport or export from abroad 

of that direct product if destined to Macau or 

a destination specified in Country Group D:5 

(see supplement no. 1 to part 774 and part 

742 of the EAR for the CCL-based license 

requirements for items identified under 

§ 734.9(h)(1)(i)(B)(2) and (h)(1)(ii)(B)(2) of the 

EAR), absent a determination that the item 

being produced is outside the product scope 

of these paragraphs under 

§ 734.9(h)(1)(i)(B)(2) and (h)(1)(ii)(B)(2). 

Technical note to (b)19: To calculate the 

number of transistors within a die, a foundry 

has two options. First, the foundry may take 

the transistor density of the process node 

used to manufacture the die and multiply 

this density by the area of the die. This 

number may be significantly higher than the 

true transistor count, but if the result is 

below the relevant transistor threshold, then 

the foundry can be confident that the die in 

question will not exceed that threshold. 

Second, to adjudicate edge cases, the foundry 

may use standard design verification tools to 

estimate the number of (both active and 

passive) transistors on the die using the GDS 

file. Regardless of approach, if the foundry 

has knowledge that multiple chiplets will be 

included in a single package, then the 

foundry should estimate the aggregate 

number of transistors in any chiplets the 

foundry is responsible for manufacturing. A 

foundry does not need to count the 

transistors of chiplets that it is not 

responsible for manufacturing itself. 

PART 734—SCOPE OF THE EXPORT 

ADMINISTRATION REGULATIONS 

■ 4. Effective November 17, 2023, the 

authority citation for part 734 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. 

13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 

223; Notice of November 8, 2022, 87 FR 

68015, 3 CFR, 2022 Comp., p. 563. 

■ 5. Effective November 17, 2023, 

§ 734.2 is amended by revising the last 

sentence of paragraph (a)(1) and adding 

three sentences at the end of the 

paragraph to read as follows: 

§ 734.2 Subject to the EAR. 

(a) * * * 

(1) * * * Publicly available 

technology and software not subject to 

the EAR are described in §§ 734.7, 

734.8, and 734.10. The Bureau of 

Industry and Security (BIS) website at 

https://www.bis.doc.gov contains 

several practical examples describing 

publicly available technology and 

software that are outside the scope of 

the EAR under the FAQ section of the 

website. See the FAQs under the 

heading, EAR Definitions, Technology 

and Software, Fundamental Research, 

and Patents FAQs. The examples are 

illustrative, not comprehensive. 

* * * * * 

■ 6. Effective November 17, 2023, 

§ 734.3 is amended by revising 

paragraphs (a)(4) and (5) to read as 

follows: 

§ 734.3 Items subject to the EAR. 

(a) * * * 

(4) Certain foreign-produced ‘‘direct 

products’’ of specified ‘‘technology’’ and 

‘‘software,’’ as described in § 734.9 of 

the EAR; and 

Note to paragraph (a)(4): Certain foreignmanufactured items developed or produced 

from U.S.-origin encryption items exported 

pursuant to License Exception ENC are 

subject to the EAR. See § 740.17(a) of the 

EAR. 

(5) Certain foreign-produced products 

of a complete plant or any major 

component of a plant that is a ‘‘direct 

product’’ of specified ‘‘technology’’ or 

‘‘software’’ as described in § 734.9 of the 

EAR. 

* * * * * 

■ 7. Effective November 17, 2023, 

§ 734.4 is amended by revising 

paragraph (b)(2) to read as follows: 

§ 734.4 De minimis U.S. content. 

* * * * * 

(b) * * * 

(2) The U.S.-origin encryption items 

are classified under ECCNs 5A992, 

5D992, or 5E992.b. 

* * * * * 

■ 8. Effective November 17, 2023, 

§ 734.9 is amended by: 

■ a. Revising the first sentence of the 

introductory text and paragraph (a), the 

headings for paragraphs (b)(1)(ii), 

(c)(1)(ii), and (d)(1)(ii), revising 

paragraphs (e)(1)(i)(B), (e)(2)(i)(B), the 

heading for paragraph (f)(1)(ii), and 

revising paragraphs (f)(1)(ii)(A), 

(g)(1)(ii), (h)(1)(i)(B)(2), (h)(1)(ii)(B)(2), 

and (h)(2)(i) and (ii); 

■ b. Adding a note to paragraph (h)(2); 

■ c. Removing paragraph (h)(3); and 

■ d. Revising paragraph (i)(1)(ii). 

The revisions and addition read as 

follows: 

§ 734.9 Foreign-Direct Product (FDP) 

Rules. 

Foreign-produced items located 

outside the United States are subject to 


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the EAR when they are a ‘‘direct 

product’’ of specified ‘‘technology’’ or 

‘‘software,’’ or are produced by a 

complete plant or ‘major component’ of 

a plant that itself is a ‘‘direct product’’ 

of specified ‘‘technology’’ or ‘‘software.’’ 

* * * 

(a) Definitions and model 

certification—(1) Definitions. The terms 

defined in this paragraph are specific to 

§ 734.9 of the EAR. These terms are 

indicated by single quotation marks. 

Terms that are in double quotation 

marks are defined in part 772 of the 

EAR. 

(i) Major component. A major 

component of a plant located outside 

the United States means ‘‘equipment’’ 

that is essential to the ‘‘production’’ of 

an item, including testing ‘‘equipment.’’ 

(ii) [Reserved] 

(2) Model certification. Exporters, 

reexporters, and transferors may obtain 

a written certification from a supplier 

that asserts an item being provided 

would be subject to the EAR if future 

transactions meet the destination or end 

user scope of one or more of the Foreign 

Direct Product (FDP) rules under 

§ 734.9. The model certificate described 

by BIS in supplement no. 1 to part 734 

is not required under the EAR, but 

through its provision, the certificate 

may assist exporters, reexporters, and 

transferors with the process of resolving 

potential red flags regarding whether an 

item is subject to the EAR based on 

§ 734.9. The model certificate provided 

by BIS contemplates signature by an 

official or designated employee of the 

certifying company and inclusion of all 

the information described in paragraph 

(b) of supplement no. 1 to part 734. 

While this certificate is expected to be 

useful for a company to understand the 

application of the EAR to an item, BIS 

does not view this as the only step to 

be completed during a company’s due 

diligence process. See supplement no. 1 

to part 734 and supplement no. 3 to part 

732 of the EAR. 

(b) * * * 

(1) * * * 

(ii) Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product.’’ * * * 

* * * * * 

(c) * * * 

(1) * * * 

(ii) Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product.’’ * * * 

* * * * * 

(d) * * * 

(1) * * * 

(ii) Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product.’’ * * * 

* * * * * 

(e) * * * 

(1) * * * 

(i) * * * 

(B) Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product.’’ A foreign-produced 

item meets the product scope of this 

paragraph if the foreign-produced item 

is produced by any complete plant or 

‘major component’ of a plant that is 

located outside the United States, when 

the complete plant or ‘major 

component’ of a plant, whether made in 

the U.S. or a foreign country, itself is a 

‘‘direct product’’ of U.S.-origin 

‘‘technology’’ or ‘‘software’’ that is 

specified in ECCN 3D001, 3D991, 

3E001, 3E002, 3E003, 3E991, 4D001, 

4D993, 4D994, 4E001, 4E992, 4E993, 

5D001, 5D991, 5E001, or 5E991 of the 

CCL. 

* * * * * 

(2) * * * 

(i) * * * 

(B) Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product.’’ A foreign-produced 

item meets the product scope of this 

paragraph if the foreign-produced item 

is produced by any complete plant or 

‘major component’ of a plant that is 

located outside the United States, when 

the complete plant or ‘major 

component’ of a plant, whether made in 

the U.S. or a foreign country, itself is a 

‘‘direct product’’ of U.S.-origin 

‘‘technology’’ or ‘‘software’’ that is 

specified in ECCN 3D001, 3D991, 

3E001, 3E002, 3E003, 3E991, 4D001, 

4D993, 4D994, 4E001, 4E992, 4E993, 

5D001, 5D002, 5D991, 5E001, 5E002, or 

5E991 of the CCL. 

(f) * * * 

(1) * * * 

(ii) Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product.’’ * * * 

(A) A foreign-produced item meets 

the product scope of this paragraph if 

the foreign-produced item is produced 

by any complete plant or ‘major 

component’ of a plant that is located 

outside the United States, when the 

complete plant or ‘major component’ of 

a plant, whether made in the United 

States or a foreign country, itself is a 

‘‘direct product’’ of U.S.-origin 

‘‘technology’’ or ‘‘software’’ that is 

specified in any ECCN in product 

groups D or E of the CCL; and 

* * * * * 

(g) * * * 

(1) * * * 

(ii) Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product.’’ A foreign-produced 

item meets the product scope of this 

paragraph if the foreign-produced item 

is produced by any complete plant or 

‘major component’ of a plant that is 

located outside the United States, when 

the complete plant or ‘major 

component’ of a plant, whether made in 

the United States or a foreign country, 

itself is a ‘‘direct product’’ of U.S.-origin 

‘‘technology’’ or ‘‘software’’ that is 

specified in any ECCN in product 

groups D or E in any categories of the 

CCL. 

* * * * * 

(h) * * * 

(1) * * * 

(i) * * * 

(B) * * * 

(2) An integrated circuit, computer, 

‘‘electronic assembly,’’ or ‘‘component’’ 

specified in ECCN 3A001.z, 4A003.z, 

4A004.z, 4A005.z, 5A002.z, 5A004.z, or 

5A992.z. 

(ii) * * * 

(B) * * * 

(2) An integrated circuit, computer, 

‘‘electronic assembly,’’ or ‘‘component’’ 

specified in ECCN 3A001.z, 4A003.z, 

4A004.z, 4A005.z, 5A002.z, 5A004.z, or 

5A992.z. 

* * * * * 

(2) * * * 

(i) Destined to a destination specified 

in Country Groups D:1, D:4, or D:5, 

excluding any destination also specified 

in Country Groups A:5 or A:6, or will 

be incorporated into any ‘‘part,’’ 

‘‘component,’’ ‘‘computer,’’ or 

‘‘equipment’’ not designated EAR99 that 

is destined to a destination specified in 

Country Groups D:1, D:4, or D:5, 

excluding any destination also specified 

in Country Groups A:5 or A:6, or 

worldwide to an entity headquartered 

in, or whose ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5; or 

(ii) ‘‘Technology’’ ‘‘developed’’ by an 

entity headquartered in, or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5, for the ‘‘production’’ of a mask or 

an integrated circuit wafer or die. 

Note to paragraph (h)(2): These end-use 

requirements under paragraph (h) apply 

when any entity headquartered in, or whose 

ultimate parent company is headquartered in, 

either Macau or destination specified in 

Country Group D:5, is a party to any 

transaction involving the foreign-produced 

item, e.g., as a ‘‘purchaser,’’ ‘‘intermediate 

consignee,’’ ‘‘ultimate consignee,’’ or ‘‘enduser.’’ 

(i) * * * 

(1) * * * 

(ii) Product of a complete plant or 

‘major component’ of a plant that is a 

‘‘direct product.’’ A foreign-produced 


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item meets the product scope of this 

paragraph if the foreign-produced item 

is produced by any complete plant or 

‘major component’ of a plant that is 

located outside the United States, when 

the complete plant or ‘major 

component’ of a plant, whether made in 

the United States or a foreign country, 

itself is a ‘‘direct product’’ of U.S.-origin 

‘‘technology’’ or ‘‘software’’ that is 

specified in ECCN 3D001, 3D991, 

3E001, 3E002, 3E003, 3E991, 4D001, 

4D994, 4E001, 4E992, 4E993, 5D001, 

5D002, 5D991, 5E001, 5E002, or 5E991 

of the CCL. 

* * * * * 

■ 9. Effective November 17, 2023, 

supplement no. 1 to part 734 is revised 

to read as follows: 

Supplement No. 1 to Part 734—Model 

Certification for Purposes of the FDP 

Rule 

(a) General. This supplement is included 

in the EAR to assist exporters, reexporters, 

and transferors in determining whether the 

items being exported, reexported, or 

transferred (in-country) are subject to the 

EAR based on one or more of the Foreign 

Direct Product (FDP) rules under § 734.9. The 

model certificate provided by BIS in 

supplement no. 1 to this part is not required 

under the EAR, but through its provision, the 

certificate may assist exporters, reexporters, 

and transferors with the process of resolving 

potential red flags regarding whether an item 

is subject to the EAR based on one or more 

of the FDP rules under § 734.9. The model 

certificate provided in this supplement by 

BIS contemplates signature by an official or 

designated employee of the certifying 

company and inclusion of the information 

described in paragraph (b) of this 

supplement. The certificate may be provided 

by any entity in a supply chain or by an 

exporter, reexporter, or transferor of the item. 

For example, the certificate may be provided 

by an exporter, reexporter, or transferor to 

any other entity later in a supply chain. 

Similarly, any entity later in a supply chain 

may request a certificate from an exporter, 

reexporter, or transferor earlier in a supply 

chain. Any certification relied on for this part 

must be retained pursuant to recordkeeping 

provisions in part 762 of the EAR. Obtaining 

the certification set forth in this supplement 

no. 1 to part 734 does not relieve exporters, 

reexporters and transferors of their obligation 

to exercise due diligence in determining 

whether items are subject to the EAR, 

including by following the ‘‘Know Your 

Customer’’ guidance in supplement no. 3 to 

part 732 of the EAR. 

(b) Model criteria. A certification will be 

most useful if it meets the criteria described 

in this supplement and if it contains at least 

the following information: 

(1) The certification must be signed by an 

organization official specifically authorized 

to certify the document as being accurate and 

complete. The certifying official attests that 

the information herein supplied in response 

to this paragraph is complete and correct to 

the best of his/her ‘‘knowledge.’’ 

(2) The organization [INSERT NAME OF 

THE CERTIFYING OFFICIAL’S COMPANY] 

has reviewed the criteria for the foreign 

direct product (FDP) rules under § 734.9 the 

U.S. Export Administration Regulations 

(EAR) (15 CFR 730–774) and attests that from 

the certifying official’s ‘‘knowledge’’ of the 

item, [INSERT A DESCRIPTION OF THE 

ITEMS], provided to [INSERT NAME OF 

THIS CUSTOMER], are subject to the EAR if 

future transactions are within the country/ 

destination and/or end use scope or end-user 

scope of one or more of the following FDP 

rules [include whichever ones are 

applicable]: 

(i) Country scope of § 734.9(b)(2), i.e., 

exported or reexported to or transferred 

within a destination listed in Country Group 

D:1, E:1, or E:2 (see supplement no.1 to part 

740 of the EAR); 

(ii) Country scope of § 734.9(c)(2), i.e., 

exported or reexported to or transferred 

within a destination listed in Country Group 

D:5, E:1, or E:2 (see supplement no.1 to part 

740 of the EAR); 

(iii) Country scope of § 734.9(d)(2), i.e., 

exported or reexported to or transferred 

within a destination listed in Country Group 

D:1, D:3, D:4, D:5, E:1, or E:2 (see supplement 

no.1 to part 740 of the EAR); 

(iv) End-user scope of § 734.9(e)(1)(ii) or 

(e)(2)(ii) for a Footnote 1 or Footnote 4 entity, 

respectively (see supplement no. 4 to part 

744); 

(v) Destination scope of § 734.9(f)(2), i.e., 

exported or reexported to or transferred 

within Russia, Belarus, or the temporarily 

occupied Crimea region of Ukraine or will be 

incorporated into or used in the 

‘‘production’’ or ‘‘development’’ of any 

‘‘part,’’ ‘‘component,’’ or ‘‘equipment’’ 

specified in any ECCN on the CCL or in 

supplement no. 6 or 7 to part 746 of the EAR 

and produced in or destined to Russia, 

Belarus, or the temporarily occupied Crimea 

region of Ukraine; 

(vi) End-user scope of § 734.9(g)(2) for a 

Footnote 3 entity (see supplement no. 4 to 

part 744); 

(vii) Destination and end-use scope of 

§ 734.9(h)(2), i.e., the foreign-produced item 

is: destined to a destination specified in 

Country Groups D:1, D:4, or D:5, excluding 

any destination also specified in Country 

Groups A:5 or A:6, or will be incorporated 

into any ‘‘part,’’ ‘‘component,’’ ‘‘computer,’’ 

or ‘‘equipment’’ not designated EAR99 that is 

destined to a destination specified in Country 

Groups D:1, D:4, or D:5, excluding any 

destination also specified in Country Groups 

A:5 or A:6, or worldwide to an entity 

headquartered in, or whose ultimate parent 

company is headquartered in, either a 

destination specified in Country Groups D:1, 

D:4, or D:5, excluding any destination also 

specified in Country Groups A:5 or A:6; or 

technology developed by an entity 

headquartered in, or whose ultimate parent 

company is headquartered in, either Country 

Groups D:1, D:4, or D:5, excluding any 

destination also specified in Country Groups 

A:5 or A:6, for the ‘‘production’’ of a mask 

or an integrated circuit wafer or die; 

(viii) Country and end-use scope of 

§ 734.9(i)(2), i.e., used in the design, 

‘‘development,’’ ‘‘production,’’ operation, 

installation (including on-site installation), 

maintenance (checking), repair, overhaul, or 

refurbishing of, a ‘‘supercomputer’’ located in 

or destined to Macau or a destination 

specified in Country Group D:5; or 

incorporated into, or used in the 

‘‘development,’’ or ‘‘production,’’ of any 

‘‘part,’’ ‘‘component,’’ or ‘‘equipment’’ that 

will be used in a ‘‘supercomputer’’ located in 

or destined to Macau or a destination 

specified in Country Group D:5; 

(ix) Destination scope of § 734.9(j)(2), i.e., 

is destined to Iran or will be incorporated 

into or used in the ‘‘production’’ or 

‘‘development’’ of any ‘‘part,’’ ‘‘component,’’ 

or ‘‘equipment,’’ including any modified or 

designed ‘‘components,’’ ‘‘parts,’’ 

‘‘accessories,’’ and ‘‘attachments’’ therefor, 

identified in supplement no. 7 to part 746 of 

the EAR or is specified in any ECCN on the 

CCL in Categories 3 through 5 or 7 of the CCL 

that is located in or destined to Iran; and 

(3) My organization affirms its commitment 

to comply with all applicable requirements 

under the EAR. 

[INSERT NAME(S) OF CONSIGNEE(S) OR 

EXPORTER(S), REEXPORTERS), OR 

TRANSFERORS AS APPLICABLE]. 

[INSERT DATE(S) SIGNED] 

Note 1 to paragraph (b): When multiple 

consignees engaged in a production process 

(or other type of collaborative activity, such 

as joint development) will be exporting, 

reexporting, transferring, or receiving items 

subject to the EAR, a single model 

certification statement for multiple 

consignees may be used. 

(c) Additional information. Because this is 

only a model certification, parties to the 

transaction may add additional elements to 

the certification and/or use it for multiple 

purposes as part of their compliance 

program. For example, if a company has ten 

affiliated companies in a multi-step supply 

chain, instead of obtaining a model 

certification for each export, reexport, or 

transfer (in-country), the exporter, reexporter, 

or transferor may request all ten parties to 

sign the certification, if appropriate, which 

may further reduce the burden on parties 

participating in the supply chain. 

PART 736—GENERAL PROHIBITIONS 

■ 10. The authority citation for part 736 

continues to read as follows: 

Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 

4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 

12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 

950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 

Comp., p. 219; E.O. 13026, 61 FR 58767, 3 

CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 

44025, 3 CFR, 2001 Comp., p. 783; E.O. 

13338, 69 FR 26751, 3 CFR, 2004 Comp., p. 

168; Notice of November 8, 2022, 87 FR 

68015 (November 10, 2022); Notice of May 8, 

2023, 88 FR 30211 (May 10, 2023). 

■ 11. Effective November 17, 2023, to 

January 1, 2026, supplement no. 1 to 

part 736 is amended by: 

■ a. Revising paragraph (d) introductory 

text; 

■ b. Adding paragraph (d)(2); and 

■ c. Revising paragraphs (d)(3) and (4). 


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The revisions and addition 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 Licenses (TGL) specified 

under paragraphs (d)(1) and (2) of this 

supplement must also comply with the terms 

and conditions under paragraphs (d)(3) 

through (5) of this supplement. 

* * * * * 

(2) TGL—Advanced computing items. This 

TGL only overcomes the license 

requirements described in § 742.6(a)(6)(iii) of 

EAR when: 

(i) Product scope. The items subject to the 

EAR that are specified in ECCNs 3A001.z; 

3A090; 3D001 (for ‘‘software’’ for 

commodities controlled by 3A001.z, 3A090); 

3E001 (for ‘‘technology’’ for commodities 

controlled by 3A001.z, 3A090); 4A003.z; 

4A004.z; 4A005.z; 4A090; 4D001 (for 

‘‘software’’ for commodities controlled by 

4A003.z, 4A004.z, and 4A005.z); 4D090; 

4E001 (for ‘‘technology’’ for commodities 

controlled by 4A003.z, 4A004.z, 4A005.z, 

4A090 or ‘‘software’’ specified by 4D001 (for 

4A003.z, 4A004.z, and 4A005.z), 4D090); 

5A002.z; 5A004.z; 5A992.z; 5D002.z; 

5D992.z; 5E002 (for ‘‘technology’’ for 

commodities controlled by 5A002.z or 

5A004.z or ‘‘software’’ specified by 5D002 

(for 5A002.z or 5A004.z commodities)); or 

5E992 (for ‘‘technology’’ for commodities 

controlled by 5A992.z or ‘‘software’’ 

controlled by 5D992.z) of the Commerce 

Control List (CCL); and 

(ii) End-use scope. Any item identified 

under the paragraph (d)(2)(i) of this 

supplement, may be exported, reexported, or 

transferred (in-country) to or within a 

destination specified in Country Groups D:1, 

D:4, or D:5 (and not specified in Country 

Groups A:5 or A6) when the recipient is 

located in but is not headquartered or whose 

ultimate parent company is not 

headquartered in Macau or Country Group 

D:5 to continue or engage in integration, 

assembly (mounting), inspection, testing, 

quality assurance, and distribution of items 

covered by items specified in paragraph 

(d)(2)(i) for the ultimate end use of these 

items outside of destinations specified in 

Country Groups D:1, D:4, or D:5 (and not 

specified in Country Groups A:5 or A6) by 

entities not headquartered or whose ultimate 

parent company is not headquartered in 

Macau or a destination specified in Country 

Group D:5. 

(3) Validity date. The TGLs under 

paragraphs (d)(1) and (2) of this supplement 

expire on December 31, 2025. 

(4) End-use and end-user restrictions—(i) 

Restrictions related to part 744 of the EAR. 

The TGL under paragraphs (d)(1) and (2) 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 of any other prohibited end use 

or end user (other than the § 744.23 

provisions specified above in the TGL). 

(ii) Indigenous production. (A) 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, or 

whose ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group D:5. 

(B) The TGL under paragraph (d)(2) of this 

supplement cannot be used for the 

indigenous ‘‘development’’ or ‘‘production’’ 

of any item identified under paragraph 

(d)(2)(i) of this supplement where the ‘‘part,’’ 

‘‘component,’’ or ‘‘equipment’’ is 

‘‘developed’’ or ‘‘produced’’ at the direction 

of an entity that is headquartered in, or 

whose ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group D:5. 

* * * * * 

PART 740—LICENSE EXCEPTIONS 

■ 12. 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. 

■ 13. Effective November 17, 2023, 

§ 740.2 is amended by revising 

paragraphs (a)(9)(ii) introductory text 

and (a)(9)(ii)(B) to read as follows: 

§ 740.2 Restrictions on all License 

Exceptions. 

* * * * * 

(a) * * * 

(9) * * * 

(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 a 

destination specified in Country Group 

D:1, D:4, or D:5, excluding any 

destination also specified in Country 

Groups A:5 or A:6, and the license 

exception is other than: TMP, restricted 

to eligibility under the provisions of 

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

of § 740.8; 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: 

* * * * * 

(B) An integrated circuit, ‘‘electronic 

assembly’’ or ‘‘component’’ or related 

software or technology specified in 

ECCNs 3A001.z; 3D001 (for ‘‘software’’ 

for commodities controlled by 3A001.z, 

3A090); 3E001 (for ‘‘technology’’ for 

commodities controlled by 3A001.z); 

4A003.z; 4A004.z; 4A005.z; 4D001 (for 

‘‘software’’ for commodities controlled 

by 4A003.z, 4A004.z, and 4A005.z); and 

4E001 (for ‘‘technology’’ for 

commodities controlled by 4A003.z, 

4A004.z, 4A005.z); 5A002.z; 5A004.z; 

5A992.z; 5D002.z; 5D992.z; 5E002 (for 

‘‘technology’’ for commodities 

controlled by 5A002.z or 5A004.z); 

‘‘software’’ specified by 5D002 (for 

5A002.z or 5A004.z commodities)); 

5E992 (for ‘‘technology’’ for 

commodities controlled by 5A992.z or 

‘‘software’’ controlled by 5D992.z). 

* * * * * 

■ 14. Effective November 17, 2023, 

§ 740.7 is amended by revising 

paragraph (b)(1) to read as follows: 

§ 740.7 Computers (APP). 

* * * * * 

(b) * * * 

(1) Related equipment controlled 

under ECCN 4A003.g, z.2, or z.4 may 

not be exported or reexported under this 

license exception when exported or 

reexported separately from eligible 

computers authorized under this license 

exception. 

* * * * * 

■ 15. Effective November 17, 2023, 

§ 740.8 is added to read as follows: 

§ 740.8 Notified Advanced Computing 

(NAC). 

(a) Eligibility requirements. License 

Exception NAC permits the export, 

reexport, and transfer (in-country) of 

any item classified in ECCN 3A090, 

4A090, 3A001.z, 4A003.z, 4A004.z, 

4A005.z, 5A002.z, 5A004.z, 5A992.z, 

5D002.z, or 5D992.z, except for items 

designed or marketed for use in a 

datacenter and meeting the parameters 

of 3A090.a. License Exception NAC 

authorizes exports, reexports, and 

transfers (in-country) to or within any 

destination specified in Country Groups 

D:1 or D:4, and transfers (in-country) 

within Macau or any destination 

specified in Country Group D:5, 

provided your export, reexport, or 

transfer (in-country) meets all of the 

applicable criteria identified under 

paragraph (b) of this section. The 

notification requirements do not apply 

for transfers (in-country). License 

Exception NAC also permits exports and 

reexports to Macau or a destination 

specified in Country Group D:5, or to an 

entity headquartered in, or with an 

ultimate parent headquartered in, 

Macau or a destination specified in 


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Country Group D:5, of these items, 

provided your export or reexport meets 

all of the applicable criteria identified 

under paragraphs (b) and (c) of this 

section, as applicable: 

(1) Written purchase order. The 

export or reexport is made pursuant to 

a written purchase order unless 

specifically excepted in this section. 

Exports or reexports of commercial 

samples are not subject to this purchase 

order requirement, but such transactions 

are obligated to comply with paragraph 

(a)(2) of this section. 

(2) Notification to BIS. Prior to any 

exports or reexports to Macau or a 

destination specified in Country Group 

D:5, the exporter or reexporter must 

notify BIS in accordance with the 

procedures set forth in paragraph (c) of 

this section. For multiple exports or 

reexports, the exporter or reexporter 

need only notify BIS prior to the first 

export or reexport. A notification under 

this paragraph is not required for 

transfers (in-country) within Macau or a 

destination specified in Country Group 

D:5. BIS will provide further 

information on the notification process 

in policy guidance. 

(b) Restrictions. License Exception 

NAC may not be used for restricted 

activities under paragraph (b)(1) or (2) of 

this section. 

(1) Prohibited end uses and end users. 

No exports, reexports, or transfers (incountry) may be made under License 

Exception NAC that are subject to a 

license requirement under part 744 or 

746 of the EAR, except for a license 

required under § 744.23(a)(3) for 

reexports or exports to any destination 

other than those specified in Country 

Groups D:1, D:4, or D:5 (excluding any 

destination also specified in Country 

Groups A:5 or A:6) for an entity that is 

headquartered in, or whose ultimate 

parent company is headquartered in, 

either Macau or a destination specified 

in Country Group D:5; and 

(2) ‘Military end use’ or ‘military end 

user.’ No exports, reexports, or transfers 

(in-country) may be made under License 

Exception NAC to or for a ‘military end 

use,’ as defined in § 744.21(f), or 

‘military end user,’ as defined in 

§ 744.21(g). 

(c) Prior notification procedures—(1) 

Procedures. At least twenty-five 

calendar days prior to exports or 

reexports to or within Macau or a 

destination specified in Country Group 

D:5, you must provide prior notification 

under License Exception NAC by 

submitting a completed application in 

SNAP–R in accordance with § 748.1 of 

the EAR. The following blocks must be 

completed, as appropriate: Blocks 1, 2, 

3, 4, 5 (by marking box 5 ‘‘Other’’), 9, 

14, 16, 17, 18, 19, 21, 22 (a), (e), (f), (g), 

(h), (i), (j), 22(d), 23, 24, and 25 

according to the instructions described 

in supplement no. 1 to part 748 of the 

EAR. Box 9 under special purpose must 

include NAC. 

(2) Action by BIS. If the information 

provided is complete, BIS will inform 

you within twenty-five calendar days of 

notification if you may use License 

Exception NAC. Note that the fact that 

you have been advised by BIS that you 

can use License Exception NAC does 

not exempt you from other licensing 

requirements under the EAR, such as 

those based on ‘‘knowledge’’ of a 

prohibited end use or end user as 

referenced in general prohibition five 

(part 736 of the EAR) and set forth in 

part 744 of the EAR. 

(3) Status of pending NAC notification 

requests. You must log into BIS’s 

System for Tracking Export License 

Applications (STELA) (https://

snapr.bis.doc.gov/stela) for status of 

your pending NAC notification or to 

verify the status in BIS’s Simplified 

Network Applications Processing 

Redesign (SNAP–R) System. STELA will 

provide the date the NAC notification is 

registered. STELA will, on the twentyfifth calendar day following the date of 

registration, provide a confirmation of 

the fact that you can use License 

Exception NAC and a NAC confirmation 

number to be submitted in AES or 

provide you with confirmation if you 

cannot use License Exception NAC. In 

addition, BIS may provide such 

confirmation by email, telephone, fax, 

courier service, or other means. 

■ 16. Effective November 17, 2023, 

§ 740.16 is amended by revising 

paragraphs (a)(2) and (b)(2)(ii) to read as 

follows: 

§ 740.16 Additional permissive reexports 

(APR). 

* * * * * 

(a) * * * 

(2) The commodities being reexported 

are not controlled for NP, CB, MT, SI, 

or CC reasons; described in ECCNs 

0A919, 3A001.b.2, b.3 (except those that 

are being reexported for use in civil 

telecommunications applications), or .z, 

6A002, or 6A003; or commodities 

classified under a 0x5zz ECCN; and 

* * * * * 

(b) * * * 

(2) * * * 

(ii) Commodities in 3A001.b.2, b.3 

(except those that are being reexported 

for use in civil telecommunications 

applications), or .z; 

* * * * * 

■ 17. Effective November 17, 2023, 

§ 740.17 is amended by revising the fifth 

sentence of the introductory text and 

revising paragraphs (b)(1), (b)(2)(i)(D), 

the note to paragraph (b)(2), paragraphs 

(b)(3) introductory text (retaining note), 

(b)(3)(i) introductory text, (b)(3)(iii)(B), 

and (b)(3)(iv), the second sentence of 

paragraph (e)(3) introductory text, and 

revising paragraph (f)(1) to read as 

follows: 

§ 740.17 Encryption Commodities, 

Software and Technology (ENC). 

* * * Items described in paragraphs 

(b)(1) and (b)(3)(i), (b)(3)(ii) or (b)(3)(iv) 

of this section that meet the criteria set 

forth in Note 3 to Category 5—Part 2 of 

the Commerce Control List (the ‘‘mass 

market’’ note) are classified under ECCN 

5A992 or 5D992 following selfclassification or classification by BIS 

and are no longer subject to ‘‘EI’’ and 

‘‘NS’’ controls. * * * 

* * * * * 

(b) * * * 

(1) Immediate authorization. This 

paragraph (b)(1) authorizes the exports, 

reexports, and transfers (in-country) of 

the associated commodities selfclassified under ECCNs 5A002.a, z.1, or 

5B002, and equivalent or related 

software therefor classified under 

5D002, except any such commodities, 

software, or components described in 

paragraph (b)(2) or (3) of this section, 

subject to submission of a selfclassification report in accordance with 

§ 740.17(e)(3) of the EAR. Items 

described in this paragraph (b)(1) that 

meet the criteria set forth in Note 3 to 

Category 5—Part 2 of the Commerce 

Control List (the ‘‘mass market’’ note) 

are classified as ECCN 5A992 or 5D992 

following self-classification or 

classification by BIS and are removed 

from ‘‘EI’’ and ‘‘NS’’ controls. 

(2) * * * 

(i) * * * 

(D) Quantum cryptography. ECCN 

5A002.c, z.3, or 5D002 ‘‘quantum 

cryptography’’ commodities or software; 

* * * * * 

Note to paragraph (b)(2): Commodities, 

components, and software classified under 

ECCNs 5A002.b, z.2, or 5D002.b or z.5, for 

the ‘‘cryptographic activation’’ of 

commodities or software specified by 

paragraph (b)(2) of this section are also 

controlled under paragraph (b)(2) of this 

section. 

(3) Classification request required for 

specified commodities, software, and 

components. Thirty (30) days after a 

classification request is submitted to BIS 

in accordance with paragraph (d) of this 

section and subject to the reporting 

requirements in paragraph (e) of this 

section, this paragraph authorizes 

exports, reexports, and transfers (incountry) of the items submitted for 


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classification, as further described in 

this paragraph (b)(3), to any end user, 

provided the item does not perform the 

functions, or otherwise meet the 

specifications, of any item described in 

paragraph (b)(2) of this section. Items 

described in paragraph (b)(3)(ii) or (iv) 

of this section that meet the criteria set 

forth in Note 3 to Category 5—Part 2 of 

the CCL (the ‘‘mass market’’ note) are 

classified under ECCN 5A992 or 5D992 

following classification by BIS. 

* * * * * 

(i) Non-‘‘mass market’’ 

‘‘components,’’ toolsets, and toolkits. 

Specified components classified under 

ECCN 5A002.a, or z.1, and equivalent or 

related software classified under ECCN 

5D002 that do not meet the criteria set 

forth in Note 3 to Category 5—Part 2 of 

the CCL (the ‘‘mass market’’ note) and 

are not described by paragraph (b)(2) or 

(b)(3)(ii) of this section, as follows: 

* * * * * 

(iii) * * * 

(B) Digital forensics and investigative 

tools. Items specified in ECCNs: 

5A004.b, z.3; 5D002.a.3.b or z.4; or 

5D002.c.3.b or z.9 in supplement no. 1 

to part 774 of the EAR. 

(iv) ‘‘Cryptographic activation’’ 

commodities, components, and 

software. Commodities, components, 

and software classified under ECCNs 

5A002.b, z.2, or 5D002.b or z.5, where 

the product or cryptographic 

functionality is not otherwise described 

in paragraph (b)(2) or (b)(3)(i) of this 

section. 

* * * * * 

(e) * * * 

(3) * * * Specifically, this reporting 

requirement applies to ‘‘mass market’’ 

encryption components and ‘executable 

software’ that meet the criteria of the 

Cryptography Note—Note 3 to Category 

5—Part 2 of the CCL (‘‘mass market’’ 

note) and are classified under ECCN 

5A992 or 5D992 following selfclassification, as well as to non-‘‘mass 

market’’ encryption commodities and 

software that remain classified in ECCN 

5A002, 5B002, or 5D002 following selfclassification, provided these items are 

not further described by paragraph (b)(2) 

or (3) of this section. 

* * * * * 

(f) * * * 

(1) ‘‘Cryptanalytic items,’’ classified 

in ECCN 5A004.a, z.1 or z.2, 

5D002.a.3.a, c.3.a, z.3, or z.8, or 5E002; 

* * * * * 

■ 18. Effective November 17, 2023, 

§ 740.19 is amended by revising 

paragraphs (b) introductory text and 

(b)(16) and adding paragraph (b)(17) to 

read as follows: 

§ 740.19 Consumer communications 

devices (CCD). 

* * * * * 

(b) Eligible commodities and software. 

Commodities and ‘‘software’’ in 

paragraphs (b)(1) through (17) of this 

section are eligible for export, reexport, 

or transfer (in-country) under this 

section to and within Cuba, Russia, and 

Belarus. 

* * * * * 

(16) Consumer ‘‘software’’ (except 

‘‘encryption source code’’) classified 

under ECCNs 4D994, 5D991 or 5D992.c 

or designated EAR99 to be used for 

equipment described in paragraphs 

(b)(1) through (17) of this section; and 

(17) Commodities described under 

3A991.p or 4A994.l. 

* * * * * 

PART 742—CONTROL POLICY—CCL 

BASED CONTROLS 

■ 19. 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). 

■ 20. Effective November 17, 2023, 

§ 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 Macau or Country Group 

D:5. A license is required for items 

specified in ECCNs 3B001.a.4, c, d, f.1.b, 

k to p, 3B002.b and c; and associated 

software and technology in 3D001 (for 

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), and 3E001 (for 

3B001a.4, c, d, f.1.b, k to p, 3B002.b and 

c) being exported, reexported, or 

transferred (in-country) to or within 

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 Macau or a destination specified 

in Country Group D:5. A license is also 

required for the export from abroad 

originating in either Macau or a 

destination specified in Country Group 

D:5 to any destination worldwide 

excluding any destination also specified 

in Country Groups A:5 or A:6, of 3E001 

(for 3A090) technology developed by an 

entity headquartered in, or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5 that is the direct product of software 

subject to the EAR and is for the 

‘‘production’’ of commodities identified 

in ECCNs 3A090, 4A090, 3A001.z, 

4A003.z, 4A004.z, 4A005.z, 5A002.z, 

5A004.z, or 5A992.z, consistent with 

§ 734.9(h)(1)(i)(B)(1) and (h)(2)(ii) of the 

EAR. 

(iii) Exports, reexports, transfers (incountry) to or within destinations 

specified in Country Groups D:1, D:4, 

and D:5, excluding destinations also 

specified in Country Groups A:5 or A:6. 

A license is required for items specified 

in ECCNs 3A001.z; 3A090; 3D001 (for 

‘‘software’’ for commodities controlled 

by 3A001.z, 3A090); 3E001 (for 

‘‘technology’’ for commodities 

controlled by 3A001.z, 3A090); 4A003.z; 

4A004.z; 4A005.z; 4A090; 4D001 (for 

‘‘software’’ for commodities controlled 

by 4A003.z, 4A004.z, and 4A005.z); 

4D090 (for ‘‘software’’ for commodities 

controlled by 4A090); 4E001 (for 

‘‘technology’’ for commodities 

controlled by 4A003.z, 4A004.z, 

4A005.z, 4A090 or ‘‘software’’ specified 

by 4D001 (for 4A003.z, 4A004.z, and 

4A005.z), 4D090 (for ‘‘software’’ for 

commodities controlled by 4A090)); 

5A002.z; 5A004.z; 5A992.z; 5D002.z; 

5D992.z; 5E002 (for ‘‘technology’’ for 

commodities controlled by 5A002.z or 

5A004.z or ‘‘software’’ specified by 

5D002 (for 5A002.z or 5A004.z 

commodities)); or 5E992 (for 

‘‘technology’’ for commodities 

controlled by 5A992.z or ‘‘software’’ 

controlled by 5D992.z) being exported, 

reexported, or transferred (in-country) to 

or within a destination specified in 

Country Groups D:1, D:4, and D:5, 

excluding destinations also specified in 

Country Groups A:5 or A:6, in 

supplement no. 1 to part 740 of the 

EAR. 

(iv) Deemed exports and reexports. 

The license requirements in paragraphs 

(a)(6)(i) through (iii) of this section do 

not apply to deemed exports or deemed 

reexports. 

* * * * * 

(b) * * * 

(10) Advanced computing and 

semiconductor manufacturing items—(i) 

License review policy for paragraphs 

(a)(6)(i) and (ii) of this section. License 

applications for items specified in 


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paragraphs (a)(6)(i) and (ii) 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. 

(ii) License review policy for 

paragraph (a)(6)(iii) of this section. 

License applications for items specified 

in paragraph (a)(6)(iii) of this section to 

or within destinations not specified in 

Country Group D:5 (except Macau) will 

be reviewed on a presumption of 

approval basis, unless the export, 

reexport, or transfer (in-country) is to an 

entity headquartered in, whose ultimate 

parent company is headquartered in, 

either Macau or a destination specified 

in Country Group D:5, in which case 

license applications will be reviewed 

under a presumption of denial. License 

applications for items to or within 

Macau or destinations specified in 

Country Group D:5 for items specified 

in paragraph (a)(6)(iii) will be reviewed 

under a presumption of denial. 

* * * * * 

■ 21. Effective November 17, 2023, 

§ 742.15 is amended by revising the 

third, fourth, and fifth sentences of 

paragraph (a)(1) to read as follows: 

§ 742.15 Encryption items. 

* * * * * 

(a) * * * 

(1) * * * Following classification or 

self-classification, items that meet the 

criteria of Note 3 to Category 5—Part 2 

of the Commerce Control List (the ‘‘mass 

market’’ note), are classified under 

ECCN 5A992 or 5D992 and are no 

longer subject to this Section (see 

§ 740.17 of the EAR). Before submitting 

a license application, please review 

License Exception ENC to determine 

whether this license exception is 

available for your item or transaction. 

For exports, reexports, or transfers (incountry) of encryption items that are not 

eligible for a license exception, you 

must submit an application to obtain 

authorization under a license or an 

Encryption Licensing Arrangement. 

* * * * * 

PART 744—CONTROL POLICY: END– 

USER AND END–USE BASED 

■ 22. 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). 

■ 23. Effective November 17, 2023, 

§ 744.6 is amended by revising 

paragraphs (c)(2)(i) and (ii) and adding 

paragraphs (c)(3) and (d)(1) to read as 

follows: 

§ 744.6 Restrictions on specific activities 

of ‘‘U.S. persons.’’ 

* * * * * 

(c) * * * 

(2) * * * 

(i) ‘‘Development’’ or ‘‘production’’ of 

‘‘advanced-node ICs.’’ To or within 

Macau or a destination specified in 

Country Group D:5, 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, or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5 where ‘‘production’’ of ‘‘advancednode integrated circuits’’ occurs; 

(ii) Category 3 items for 

‘‘development’’ or ‘‘production’’ of 

‘‘advanced-node ICs.’’ To or within 

Macau or a destination specified in 

Country Group D:5, any item not subject 

to the EAR and meeting the parameters 

of any ECCN in Product Groups B, C, D, 

or E in Category 3 of the CCL that you 

know will be used in the 

‘‘development’’ or ‘‘production’’ of 

integrated circuits at a ‘‘facility’’ of an 

entity headquartered in, or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5 where ‘‘production’’ of integrated 

circuits occurs, but you do not know 

whether ‘‘production’’ of ‘‘advancednode integrated circuits’’ occurs at such 

‘‘facility’’; 

* * * * * 

(3) Scope of activities of ‘‘U.S. 

persons’’ that require a license under 

paragraph (c)(2) of this section. (i) 

Controlled activities. The U.S. persons 

controls in paragraphs (c)(2)(i) through 

(iii) of this section apply to persons 

who: 

(A) Authorize the shipment, 

transmittal, or transfer (in-country) of 

items not subject to the EAR and 

described in paragraphs (c)(2)(i) through 

(iii) of this section; 

(B) Conduct the delivery, by 

shipment, transmittal, or transfer (incountry), of items not subject to the EAR 

described in paragraphs (c)(2)(i) through 

(iii) of this section; or 

(C) Service, including maintaining, 

repairing, overhauling, or refurbishing 

items not subject to the EAR described 

in paragraphs (c)(2)(i) through (iii) of 

this section. 

(ii) Due diligence. Appropriate due 

diligence includes but is not limited to 

review of publicly available 

information, capability of items to be 

provided, proprietary market data, and 

end-use statements. ‘‘U.S. persons’’ 

should conduct due diligence to assess 

whether the item is for the 

‘‘development’’ or ‘‘production’’ of 

‘‘advanced-node integrated circuits’’ at a 

‘‘facility’’ of an entity headquartered in, 

or whose ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5, consistent with paragraphs (c)(2)(i) 

through (iii) of this section. As set forth 

in paragraph (c)(2)(ii), for items 

specified in Category 3B, 3C, 3D, or 3E 

ECCNs, license requirements may apply 

even when the ‘‘U.S. person’’ does not 

know whether the activity is for the 

‘‘development’’ or ‘‘production’’ of 

‘‘advanced-node integrated circuits.’’ In 

addition, some of the exclusions may 

require due diligence, such as those in 

paragraphs (d)(3) and (5) of this section. 

‘‘U.S. persons’’ should follow the 

‘‘Know Your Customer’’ guidance in 

supplement no. 3 to part 732 of the 

EAR. ‘‘U.S. persons’’ can also submit 

Advisory Opinion requests to BIS 

pursuant to § 748.3(c) of the EAR for 

guidance on specific fabrication 

facilities. To submit an Advisory 

Opinion request, email RPD2@

bis.doc.gov. 

(d) * * * 

(1) Exclusion of certain administrative 

and clerical activities and information 

otherwise excluded—(i) Exclusion of 

certain administrative and clerical 

activities. Given the policy objective of 

these controls, the ‘‘U.S. persons’’ 

criteria in paragraphs (c)(2)(i) through 

(iii) of this section do not extend to 

‘‘U.S. persons’’ conducting 

administrative or clerical activities (e.g., 

arranging for shipment or preparing 

financial documents) or otherwise 

implementing a decision to approve a 

restricted shipment, transmittal, or incountry transfer, or to activities of ‘‘U.S. 

persons’’ that are not directly related to 

the provision or servicing of specific 

items to the ‘‘development’’ or 

‘‘production’’ of ‘‘advanced-node 

integrated circuits.’’ 

(ii) Exclusion of information 

otherwise excluded under the EAR 

under part 734. The exclusion of certain 

activities specified in paragraph (c)(3) of 

this section only applies to paragraph 

(c)(2) of this section, and does not, for 

example, limit the scope of paragraph 


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(b) of this section or apply to other uses 

of the term facilitate or facilitation 

found elsewhere in the EAR. The scope 

of paragraph (c)(2) of this section does 

not include information or software that 

would otherwise be excluded from the 

EAR based on the exclusion criteria 

under part 734, e.g., under § 734.7 

(entitled ‘‘Published’’) Tand § 734.8 

‘‘Technology’’ or ‘‘software’’ that arises 

during, or results from, fundamental 

research. 

(iii) Exclusion of law enforcement and 

intelligence operations of the U.S. 

Government. Given the policy objective 

of these controls, the ‘‘U.S. persons’’ 

criteria in paragraphs (c)(2)(i) through 

(iii) of this section do not extend to 

‘‘U.S. persons’’ conducting law 

enforcement and intelligence operations 

of the U.S. Government. 

* * * * * 

■ 24. Effective November 17, 2023, 

§ 744.23 is amended by revising 

paragraphs (a)(1)(ii) and (a)(2) and 

adding paragraph (a)(3) to read as 

follows: 

§ 744.23 ‘‘Supercomputer’’ and 

semiconductor manufacturing end use. 

* * * * * 

(a) * * * 

(1) * * * 

(ii) Destination and end-use scope. 

(A) The ‘‘development,’’ ‘‘production,’’ 

operation, installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of a 

‘‘supercomputer’’ located in or destined 

to Macau or a destination specified in 

Country Group D:5 of supplement no. 1 

to part 740 of the EAR; 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 Macau or a destination 

specified in Country Group D:5. 

(2) ‘‘Advanced-node ICs’’—(i) Any 

item at a ‘‘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 destined to a 

‘‘facility’’ located in Macau or a 

destination specified in Country Group 

D:5 where ‘‘production’’ of ‘‘advancednode ICs’’ occurs. 

(ii) Category 3 items to a ‘‘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 

‘‘development’’ or ‘‘production’’ of ICs 

destined to a ‘‘facility’’ located in Macau 

or a destination specified in Country 

Group D:5 where ‘‘production’’ of 

integrated circuits occurs, but you do 

not know whether ‘‘production’’ of 

‘‘advanced-node ICs’’ occurs at such 

‘‘facility.’’ 

(3) Advanced computing items. (i) 

Any item subject to the EAR and 

specified in ECCN 3A001.z, 3A090, 

4A003.z, 4A004.z, 4A005.z, 4A090, 

5A002.z, 5A004.z, 5A992.z, 5D002.z, or 

5D992.z destined to any destination 

other than those specified in Country 

Groups D:1, D:4, or D:5 (excluding any 

destination also specified in Country 

Groups A:5 or A:6) for an entity that is 

headquartered in, or whose ultimate 

parent company is headquartered in, 

either Macau or a destination specified 

in Country Group D:5 (e.g., a PRCheadquartered cloud or data server 

provider located in a destination not 

otherwise excluded). 

(ii) ECCN 3E001 (for 3A090) 

‘‘technology’’ when it meets all of the 

following: 

(A) The technology is developed by 

an entity headquartered in, or whose 

ultimate parent company is 

headquartered in, either Macau or a 

destination specified in Country Group 

D:5; 

(B) The ‘‘technology’’ is subject to the 

EAR pursuant to the foreign direct 

product rule in § 734.9(h)(1)(i)(B)(1) and 

(h)(2)(ii) of the EAR; 

(C) The ‘‘technology’’ is for reexport 

or transfer (in-country) from or within a 

destination specified in Country Group 

D:1, D:4, D:5, excluding any destination 

also specified in Country Groups A:5 or 

A:6, to any destination worldwide; and 

(D) The ‘‘technology’’ is for the 

‘‘production’’ of commodities or 

software specified in ECCN 3A001.z, 

3A090, 4A003.z, 4A004.z, 4A005.z, 

4A090, 5A002.z, 5A004.z, or 5A992.z. 

Note 1 to paragraph (a)(3)(ii): This 

paragraph (a)(3)(ii) includes items subject to 

the EAR pursuant to the foreign direct 

product rule in § 734.9(h)(1)(i)(B)(1) and 

(h)(2)(ii) of the EAR. 

* * * * * 

PART 746—EMBARGOES AND OTHER 

SPECIAL CONTROLS 

■ 25. Effective November 17, 2023, the 

authority citation for part 746 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.; 22 U.S.C. 

287c; Sec 1503, Pub. L. 108–11, 117 Stat. 559; 

22 U.S.C. 2151 note; 22 U.S.C. 6004; 22 

U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 

12854, 58 FR 36587, 3 CFR, 1993 Comp., p. 

614; E.O. 12918, 59 FR 28205, 3 CFR, 1994 

Comp., p. 899; E.O. 13222, 66 FR 44025, 3 

CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 

26751, 3 CFR, 2004 Comp., p 168; 

Presidential Determination 2003–23, 68 FR 

26459, 3 CFR, 2004 Comp., p. 320; 

Presidential Determination 2007–7, 72 FR 

1899, 3 CFR, 2006 Comp., p. 325; Notice of 

May 810, 2023, 88 FR 30211 (May 10, 2023). 

■ 26. Effective November 17, 2023, 

§ 746.8 is amended by revising 

paragraph (a) introductory text to read 

as follows: 

§ 746.8 Sanctions against Russia and 

Belarus. 

(a) License requirements. For 

purposes of paragraphs (a)(1) and (2) of 

this section, commodities specified 

under ECCN 5A991, and commodities 

and software classified under ECCNs 

5A992.c or 5D992.c that have been 

‘classified in accordance with § 740.17’ 

do not require a license to or within 

Russia or Belarus for the following civil 

end-users: wholly-owned U.S. 

subsidiaries, branches, or sales offices; 

joint ventures between two or more U.S. 

companies, including the wholly-owned 

subsidiaries, branches, or sales offices of 

such joint ventures; joint ventures 

between U.S. companies and companies 

headquartered in countries from 

Country Group A:5 and A:6 in 

supplement no. 1 to part 740 of the 

EAR, including the wholly-owned 

subsidiaries, branches, or sales offices of 

such joint ventures; wholly-owned 

subsidiaries, branches, or sales offices of 

companies headquartered in countries 

from Country Group A:5 and A:6 in 

supplement no. 1 to part 740; or joint 

ventures between two or more 

companies headquartered in Country 

Group A:5 and A:6 in supplement no. 1 

to part 740, including the wholly-owned 

subsidiaries, branches, or sales offices of 

such joint ventures. 

* * * * * 

■ 27. Effective November 17, 2023, 

§ 746.10 is amended by revising 

paragraph (a) introductory text to read 

as follows: 

§ 746.10 ‘Luxury Goods’ Sanctions 

Against Russia and Belarus and Russian 

and Belarusian oligarchs and malign actors. 

(a) License requirements. For 

purposes of paragraphs (a)(1) and (2) of 

this section, commodities specified 

under ECCN 5A991, and commodities 

and software classified under ECCNs 

5A992.c or 5D992.c that have been 

‘classified in accordance with § 740.17’ 

do not require a license to or within 

Russia or Belarus for the following civil 

end-users: wholly-owned U.S. 

subsidiaries, branches, or sales offices; 

joint ventures between two or more U.S. 

companies, including the wholly-owned 

subsidiaries, branches, or sales offices of 

such joint ventures; joint ventures 

between U.S. companies and companies 

headquartered in countries from 

Country Group A:5 and A:6 in 


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73496 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

supplement no. 1 to part 740 of the 

EAR, including the wholly-owned 

subsidiaries, branches, or sales offices of 

such joint ventures; wholly-owned 

subsidiaries, branches, or sales offices of 

companies headquartered in countries 

from Country Group A:5 and A:6 in 

supplement no. 1 to part 740; or joint 

ventures between two or more 

companies headquartered in Country 

Group A:5 and A:6 in supplement no. 1 

to part 740, including the wholly-owned 

subsidiaries, branches, or sales offices of 

such joint ventures. 

* * * * * 

PART 748—APPLICATIONS 

(CLASSIFICATION, ADVISORY, AND 

LICENSE) AND DOCUMENTATION 

■ 28. Effective November 17, 2023, the 

authority citation for part 748 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. 

13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 

228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 

Comp., p. 783; Notice of August 14, 2023, 88 

FR 55549 (August 16, 2023). 

■ 29. Effective November 17, 2023, 

§ 748.8 is amended by adding 

paragraphs (d), (s), (t), and (z) to read as 

follows: 

§ 748.8 Unique application and 

submission requirements. 

* * * * * 

(d) U.S. person support activities that 

require a license under § 744.6. 

* * * * * 

(s) Exports of firearms and certain 

shotguns temporarily in the United 

States. 

(t) ‘‘600 Series Major Defense 

Equipment.’’ 

* * * * * 

(z) Semiautomatic firearms controlled 

under ECCN 0A501.a. 

■ 30. Effective November 17, 2023, 

supplement No. 2 to part 748 is 

amended by adding paragraph (d) to 

read as follows: 

Supplement No. 2 to Part 748—Unique 

Application and Submission 

Requirements 

* * * * * 

(d) ‘‘U.S. person’’ support activities that 

require a license under § 744.6 of the EAR. 

Use SNAP–R for submitting a license 

application for ‘‘U.S. person’’ activities. 

Applicants should use the reexport 

designation on the SNAP–R form and include 

in the ‘‘Additional Information’’ section of 

the license application that a license is 

required for the transaction under § 744.6 of 

the EAR. In the special purpose field, specify 

the specific activities the ‘‘U.S. person’’ is 

engaged. The applicant should provide, as 

relevant: the ECCN of the technology or item 

or, if unknown, use the EAR99 designation 

(regardless of whether the items being dealt 

with are subject to the EAR); and a complete 

explanation of the activity in supplemental 

documentation. 

* * * * * 

■ 31. Effective November 17, 2023, 

supplement no. 7 to part 748 is 

amended by revising the heading and 

the entries for ‘‘Advanced Micro 

Devices China, Inc’’ and ‘‘Shanghai 

Huahong Grace Semiconductor 

Manufacturing Corporation’’ under 

‘‘China (People’s Republic of)’’ to read 

as follows: 

Supplement No. 7 to Part 748— 

Authorization Validated End-User 

(VEU): List of Validated End-Users, 

Respective Items Eligible for Export, 

Reexport and Transfer (In-Country), 

and Eligible Destinations 

Country Validated end-user Eligible items 

(by ECCN) Eligible destination Federal Register 

*******

China (People’s Republic of).Advanced Micro Devices China, 

Inc.

3D002, 3D003, 3E001 (limited to 

‘‘technology’’ for items classified under 3C002 and 3C004 

and ‘‘technology’’ for use during 

the International Technology 

Roadmap for Semiconductors 

(ITRS) process for items classified under ECCNs 3B001 and 

3B002), 3E002 (limited to 

‘‘technology’’ for use during the 

ITRS process for items classified under ECCNs 3B001 and 

3B002), 3E003.e (limited to the 

‘‘development’’ and ‘‘production’’ of integrated circuits for 

commercial applications), 

4D001 and 4E001 (limited to 

the ‘‘development’’ of products 

under ECCN 4A003.b through 

.g).

Advanced Micro Devices (Shanghai) Co., Ltd., Buildings 33 

(Unit 1), 46, 47, 48 & 49, River 

Front Harbor, Zhangjiang HiTech Park, No. 1387 Zhang 

Dong Road, Pudong District, 

Shanghai, China 201203.

AMD Technology Development 

(Beijing) Co., Ltd., North and 

South Buildings, 

RaycomInfotech, Park Tower 

C, No. 2 Science Institute 

South Rd., Zhong Guan Cun, 

Haidian District, Beijing, China 

100190.

75 FR 25763, 5/10/10. 

76 FR 2802, 1/18/11. 

78 FR 3319, 1/16/13. 

81 FR 40785, 6/23/16. 

88 FR [INSERT PAGE NUMBER], 10/25/23. 

AMD Products (China) Co. Ltd., 

North and South Buildings, 

RaycomInfotech Park Tower C, 

No. 2 Science Institute South 

Rd., Zhong Guan Cun, Haidian 

District, Beijing, China 100190.

******

Shanghai Huahong Grace Semiconductor Manufacturing Corporation.

1C350.c.4, 1C350.d.14, 2B230, 

2B350.d.2, 2B350.g.3, 

2B350.i.4, 3B001.a.1, 3B001.b, 

3B001.e, 3B001.f, 3B001.h, 

3C002, 3C004, 5B002, and 

5E002 (controlled by ECCNs 

5A002.a through .e, 5A004.a 

through .b, or 5A992.c that 

have been successfully reviewed under the encryption review process specified in Sections 740.17(b)(2) or 

740.17(b)(3) of the EAR).

Shanghai Huahong Grace Semiconductor Manufacturing Corporation—HFab 2, 668 

Guoshoujing Road, Zhangjiang 

Hi-Tech Park, Shanghai 

201203 China.

Shanghai Huahong Grace Semiconductor Manufacturing Corporation—HFab 1, 1188 

Chuanqiao Road, Pudong, 

Shanghai 201206 China.

78 FR 32981, 6/3/13. 88 FR [INSERT PAGE NUMBER], 10/25/ 

23. 


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Country Validated end-user Eligible items 

(by ECCN) Eligible destination Federal Register 

Shanghai Huahong Grace Semiconductor Manufacturing Corporation—GFab1, 1399 

Zuchongzhi Road, Zhangjiang 

Hi-Tech Park, Shanghai 

201203 China.

* * * * * * 

*******

PART 758—EXPORT CLEARANCE 

REQUIREMENTS 

■ 32. The authority citation for part 758 

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. 

■ 33. Effective November 17, 2023, 

§ 758.1 is amended by adding paragraph 

(g)(5) to read as follows: 

§ 758.1 The Electronic Export Information 

(EEI) Filing to the Automated Export System 

(AES). 

* * * * * 

(g) * * * 

(5) Exports of .z items that meet or 

exceed the performance parameters of 

ECCN 3A090 or 4A090. This paragraph 

(g)(5) imposes a requirement for 

identifying .z items by ‘‘items’’ level 

classification in the EEI filing in AES. 

For any export of .z items controlled 

under ECCNs 3A001, 4A003, 4A004, 

4A005, 5A002, 5A004, 5A992, 5D002, or 

5D992 in addition to any other required 

data for the associated EEI filing, you 

must include the items paragraph 

classification (i.e., .z), when applicable, 

as the first text to appear in the 

Commodity description block in the EEI 

filing in AES. 

* * * * * 

■ 34. Effective November 17, 2023, 

§ 758.6 is amended by revising 

paragraph (a)(2) to read as follows: 

§ 758.6 Destination control statement and 

other information furnished to consignees. 

(a) * * * 

(2) The ECCN(s) for any 3A001.z, 

3A090, 4A003.z, 4A004.z, 4A005.z, 

4A090, 5A002.z, 5A004.z, 5A992.z, 

9x515 or ‘‘600 series’’ ‘‘items’’ being 

shipped (i.e., exported in tangible form). 

For the seven ECCNs with a .z 

paragraph, the requirement to include 

the classification only applies to 

commodities classified under the .z 

paragraphs. If the commodity is 

classified under any other paragraph in 

one of those seven ECCNs, then the 

requirement under this paragraph is not 

applicable. For ECCN 3A090, identify 

the commodity as either 3A090.a or .b. 

* * * * * 

PART 772—DEFINITIONS OF TERMS 

■ 35. 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. 

■ 36. Effective November 17, 2023, 

§ 772.1 is amended by revising the last 

sentence in note 1 to the definition for 

‘‘specially designed’’ to read as follows: 

§ 772.1 Definitions of terms as used in the 

Export Administration Regulations (EAR). 

* * * * * 

Specially designed. * * * 

NOTE 1: * * * For purposes of 

‘‘specially designed,’’ ECCNs 0B505.c, 

0B999, 0D999, 1B999, 1C992, 1C995, 

1C997, 1C999, 3A991, 4A994, 5A992 

(except for .z), 5D992 (except for .z), 

6A998 (except for .b), and 9A991 are 

treated as ECCNs controlled exclusively 

for AT reasons. 

* * * * * 

PART 774—THE COMMERCE 

CONTROL LIST 

■ 37. 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. 

■ 38. Effective November 17, 2023, 

supplement no. 1 to part 774 is 

amended by: 

■ a. Revising ECCNs 3A001, 3A090, 

3A991, 3D001, 3E001; 

■ b. Revising Note 3 to Category 4— 

Computers; 

■ c. Revising ECCNs 4A003, 4A004, 

4A005, 4A090, 4A994, 4D001, and 

4E001; 

■ d. Revising Technical Note paragraph 

2 in the TECHNICAL NOTE ON 

‘‘ADJUSTED PEAK PERFORMANCE’’ 

(‘‘APP’’) at the end Category 4— 

Computers; 

■ e. Revising the Note 3. to Category 5— 

Telecommunications and ‘‘Information 

Security’’ Part 1—Telecommunications 

introductory text; 

■ f. Revising ECCN 5E001; 

■ g. Revising Note 3 and the N/B. to 

Note 3 (Cryptography Note) to Category 

5—Telecommunications and 

‘‘Information Security’’ Part 2— 

‘‘Information Security’’; and 

■ h. Revising ECCNs 5A002, 5A992, 

5A004, 5B002, 5D002, 5D992, 5E002, 

5E992, 9A004, and 9A515. 

The revisions read as follows: 

Supplement No. 1 to Part 774—The 

Commerce Control List 

* * * * * 

3A001 Electronic items as follows (see List 

of Items Controlled). 

Reason for Control: NS, RS, MT, NP, AT 

Control(s) 

Country chart 

(see supp. No. 1 to 

part 738) 

NS applies to ‘‘Monolithic Microwave 

Integrated Circuit’’ 

(‘‘MMIC’’) amplifiers 

in 3A001.b.2 and 

discrete microwave 

transistors in 

3A001.b.3, except 

those 3A001.b.2 

and b.3 items 

being exported or 

reexported for use 

in civil telecommunications 

applications.

NS Column 1. 

NS applies to entire 

entry, except 

3A001.z.

NS Column 2. 


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73498 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

Control(s) 

Country chart 

(see supp. No. 1 to 

part 738) 

RS applies ‘‘Monolithic Microwave Integrated Circuit’’ 

(‘‘MMIC’’) amplifiers 

in 3A001.b.2 and 

discrete microwave 

transistors in 

3A001.b.3, except 

those 3A001.b.2 

and b.3 items 

being exported or 

reexported for use 

in civil telecommunications 

applications.

RS Column 1. 

RS applies to 

3A001.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

MT applies to 

3A001.a.1.a and .z 

when usable in 

‘‘missiles’’; and to 

3A001.a.5.a and .z 

when ‘‘designed or 

modified’’ for military use, hermetically sealed and 

rated for operation 

in the temperature 

range from below 

¥54 °C to above 

+125 °C.

MT Column 1. 

NP applies to pulse 

discharge capacitors in 3A001.e.2 

and superconducting solenoidal 

electromagnets in 

3A001.e.3 that 

meet or exceed the 

technical parameters in 3A201.a 

and 3A201.b, respectively.

NP Column 1. 

AT applies to entire 

entry.

AT Column 1. 

Reporting Requirements: See § 743.1 of 

the EAR for reporting requirements for 

exports under 3A001.b.2 or b.3 under 

License Exceptions, and Validated EndUser authorizations. 

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) 

LVS: N/A for MT, NP or 3A001.z; N/A for 

‘‘Monolithic Microwave Integrated Circuit’’ 

(‘‘MMIC’’) amplifiers in 3A001.b.2 and 

discrete microwave transistors in 

3A001.b.3, except those that are being 

exported or reexported for use in civil 

telecommunications applications. 

Yes for: 

$1500: 3A001.c 

$3000: 3A001.b.1, b.2 (exported or 

reexported for use in civil 

telecommunications applications), b.3 

(exported or reexported for use in civil 

telecommunications applications), b.9, 

.d, .e, .f, and .g. 

$5000: 3A001.a (except a.1.a and a.5.a 

when controlled for MT), .b.4 to b.7, and 

b.12. 

GBS: Yes for 3A001.a.1.b, a.2 to a.14 (except 

.a.5.a when controlled for MT), b.2 

(exported or reexported for use in civil 

telecommunications applications), b.8 

(except for ‘‘vacuum electronic devices’’ 

exceeding 18 GHz), b.9., b.10, .g, and .h, 

and .i. 

NAC: Yes, for 3A001.z; N/A for all other 

3A001 commodities. 

Special Conditions for STA 

STA: License Exception STA may not be 

used to ship any item in 3A001.b.2 or b.3, 

except those that are being exported or 

reexported for use in civil 

telecommunications applications, to any of 

the destinations listed in Country Group 

A:5 or A:6 (See Supplement No. 1 to part 

740 of the EAR). 

List of Items Controlled 

Related Controls: (1) See Category XV of the 

USML for certain ‘‘space-qualified’’ 

electronics and Category XI of the USML 

for certain ASICs, ‘transmit/receive 

modules,’ or ‘transmit modules’ ‘‘subject to 

the ITAR’’ (see 22 CFR parts 120 through 

130). (2) See also 3A090 (including Note 4 

to 3A090), 3A101, 3A201, 3A611, 3A991, 

and 9A515. 

Related Definitions: ‘Microcircuit’ means a 

device in which a number of passive or 

active elements are considered as 

indivisibly associated on or within a 

continuous structure to perform the 

function of a circuit. For the purposes of 

integrated circuits in 3A001.a.1, 5 × 103

Gy(Si) = 5 × 105 Rads (Si); 5 × 106 Gy (Si)/ 

s = 5 × 108 Rads (Si)/s. 

Items: 

a. General purpose integrated circuits, as 

follows: 

Note 1: Integrated circuits include the 

following types: 

—‘‘Monolithic integrated circuits’’; 

—‘‘Hybrid integrated circuits’’; 

—‘‘Multichip integrated circuits’’; 

—Film type integrated circuits, including 

silicon-on-sapphire integrated circuits’’; 

—‘‘Optical integrated circuits’’; 

—‘‘Three dimensional integrated circuits’’; 

—‘‘Monolithic Microwave Integrated 

Circuits’’ (‘‘MMICs’’). 

a.1. Integrated circuits designed or rated as 

radiation hardened to withstand any of the 

following: 

a.1.a. A total dose of 5 × 103 Gy (Si), or 

higher; 

a.1.b. A dose rate upset of 5 × 106 Gy (Si)/ 

s, or higher; or 

a.1.c. A fluence (integrated flux) of 

neutrons (1 MeV equivalent) of 5 × 1013 n/ 

cm2 or higher on silicon, or its equivalent for 

other materials; 

Note: 3A001.a.1.c does not apply to Metal 

Insulator Semiconductors (MIS). 

a.2. ‘‘Microprocessor microcircuits,’’ 

‘‘microcomputer microcircuits,’’ 

microcontroller microcircuits, storage 

integrated circuits manufactured from a 

compound semiconductor, analog-to-digital 

converters, integrated circuits that contain 

analog-to-digital converters and store or 

process the digitized data, digital-to-analog 

converters, electro-optical or ‘‘optical 

integrated circuits’’ designed for ‘‘signal 

processing’’, field programmable logic 

devices, custom integrated circuits for which 

either the function is unknown or the control 

status of the equipment in which the 

integrated circuit will be used in unknown, 

Fast Fourier Transform (FFT) processors, 

Static Random-Access Memories (SRAMs), or 

‘non-volatile memories,’ having any of the 

following: 

Technical Note: For the purposes of 

3A001.a.2, ‘non-volatile memories’ are 

memories with data retention over a period 

of time after a power shutdown. 

a.2.a. Rated for operation at an ambient 

temperature above 398 K (+125 °C); 

a.2.b. Rated for operation at an ambient 

temperature below 218 K (¥55 °C); or 

a.2.c. Rated for operation over the entire 

ambient temperature range from 218 K 

(¥55 °C) to 398 K (+125 °C); 

Note: 3A001.a.2 does not apply to 

integrated circuits designed for civil 

automobile or railway train applications. 

a.3. ‘‘Microprocessor microcircuits’’, 

‘‘microcomputer microcircuits’’ and 

microcontroller microcircuits, manufactured 

from a compound semiconductor and 

operating at a clock frequency exceeding 40 

MHz; 

Note: 3A001.a.3 includes digital signal 

processors, digital array processors and 

digital coprocessors. 

a.4. [Reserved] 

a.5. Analog-to-Digital Converter (ADC) and 

Digital-to-Analog Converter (DAC) integrated 

circuits, as follows: 

a.5.a. ADCs having any of the following: 

a.5.a.1. A resolution of 8 bit or more, but 

less than 10 bit, with a ‘‘sample rate’’ greater 

than 1.3 Giga Samples Per Second (GSPS); 

a.5.a.2. A resolution of 10 bit or more, but 

less than 12 bit, with a ‘‘sample rate’’ greater 

than 600 Mega Samples Per Second (MSPS); 

a.5.a.3. A resolution of 12 bit or more, but 

less than 14 bit, with a ‘‘sample rate’’ greater 

than 400 MSPS; 

a.5.a.4. A resolution of 14 bit or more, but 

less than 16 bit, with a ‘‘sample rate’’ greater 

than 250 MSPS; or 

a.5.a.5. A resolution of 16 bit or more with 

a ‘‘sample rate’’ greater than 65 MSPS; 

N.B.: For integrated circuits that contain 

analog-to-digital converters and store or 

process the digitized data see 3A001.a.14. 


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Technical Notes: For the purposes of 

3A001.a.5.a: 

1. A resolution of n bit corresponds to a 

quantization of 2n levels. 

2. The resolution of the ADC is the number 

of bits of the digital output that represents 

the measured analog input. Effective Number 

of Bits (ENOB) is not used to determine the 

resolution of the ADC. 

3. For ‘‘multiple channel ADCs’’, the 

‘‘sample rate’’ is not aggregated and the 

‘‘sample rate’’ is the maximum rate of any 

single channel. 

4. For ‘‘interleaved ADCs’’ or for ‘‘multiple 

channel ADCs’’ that are specified to have an 

interleaved mode of operation, the ‘‘sample 

rates’’ are aggregated and the ‘‘sample rate’’ 

is the maximum combined total rate of all of 

the interleaved channels. 

a.5.b. Digital-to-Analog Converters (DAC) 

having any of the following: 

a.5.b.1. A resolution of 10-bit or more but 

less than 12-bit, with an ‘adjusted update 

rate’ of exceeding 3,500 MSPS; or 

a.5.b.2. A resolution of 12-bit or more and 

having any of the following: 

a.5.b.2.a. An ‘adjusted update rate’ 

exceeding 1,250 MSPS but not exceeding 

3,500 MSPS, and having any of the following: 

a.5.b.2.a.1. A settling time less than 9 ns to 

arrive at or within 0.024% of full scale from 

a full scale step; or 

a.5.b.2.a.2. A ‘Spurious Free Dynamic 

Range’ (SFDR) greater than 68 dBc (carrier) 

when synthesizing a full scale analog signal 

of 100 MHz or the highest full scale analog 

signal frequency specified below 100 MHz; or 

a.5.b.2.b. An ‘adjusted update rate’ 

exceeding 3,500 MSPS; 

Technical Notes: For the purposes of 

3A001.a.5.b: 

1. ‘Spurious Free Dynamic Range’ (SFDR) 

is defined as the ratio of the RMS value of 

the carrier frequency (maximum signal 

component) at the input of the DAC to the 

RMS value of the next largest noise or 

harmonic distortion component at its output. 

2. SFDR is determined directly from the 

specification table or from the 

characterization plots of SFDR versus 

frequency. 

3. A signal is defined to be full scale when 

its amplitude is greater than –3 dBfs (full 

scale). 

4. ‘Adjusted update rate’ for DACs is: 

a. For conventional (non-interpolating) 

DACs, the ‘adjusted update rate’ is the rate 

at which the digital signal is converted to an 

analog signal and the output analog values 

are changed by the DAC. For DACs where the 

interpolation mode may be bypassed 

(interpolation factor of one), the DAC should 

be considered as a conventional (noninterpolating) DAC. 

b. For interpolating DACs (oversampling 

DACs), the ‘adjusted update rate’ is defined 

as the DAC update rate divided by the 

smallest interpolating factor. For 

interpolating DACs, the ‘adjusted update 

rate’ may be referred to by different terms 

including: 

• input data rate 

• input word rate 

• input sample rate 

• maximum total input bus rate 

• maximum DAC clock rate for DAC clock 

input. 

a.6. Electro-optical and ‘‘optical integrated 

circuits’’, designed for ‘‘signal processing’’ 

and having all of the following: 

a.6.a. One or more than one internal 

‘‘laser’’ diode; 

a.6.b. One or more than one internal light 

detecting element; and 

a.6.c. Optical waveguides; 

a.7. ‘Field programmable logic devices’ 

having any of the following: 

a.7.a. A maximum number of single-ended 

digital input/outputs of greater than 700; or 

a.7.b. An ‘aggregate one-way peak serial 

transceiver data rate’ of 500 Gb/s or greater; 

Note: 3A001.a.7 includes: 

—Complex Programmable Logic Devices 

(CPLDs); 

—Field Programmable Gate Arrays (FPGAs); 

—Field Programmable Logic Arrays (FPLAs); 

—Field Programmable Interconnects (FPICs). 

N.B.: For integrated circuits having field 

programmable logic devices that are 

combined with an analog-to-digital converter, 

see 3A001.a.14. 

Technical Notes: For the purposes of 

3A001.a.7: 

1. Maximum number of digital input/ 

outputs in 3A001.a.7.a is also referred to as 

maximum user input/outputs or maximum 

available input/outputs, whether the 

integrated circuit is packaged or bare die. 

2. ‘Aggregate one-way peak serial 

transceiver data rate’ is the product of the 

peak serial one-way transceiver data rate 

times the number of transceivers on the 

FPGA. 

a.8. [Reserved] 

a.9. Neural network integrated circuits; 

a.10. Custom integrated circuits for which 

the function is unknown, or the control 

status of the equipment in which the 

integrated circuits will be used is unknown 

to the manufacturer, having any of the 

following: 

a.10.a. More than 1,500 terminals; 

a.10.b. A typical ‘‘basic gate propagation 

delay time’’ of less than 0.02 ns; or 

a.10.c. An operating frequency exceeding 3 

GHz; 

a.11. Digital integrated circuits, other than 

those described in 3A001.a.3 to 3A001.a.10 

and 3A001.a.12, based upon any compound 

semiconductor and having any of the 

following: 

a.11.a. An equivalent gate count of more 

than 3,000 (2 input gates); or 

a.11.b. A toggle frequency exceeding 1.2 

GHz; 

a.12. Fast Fourier Transform (FFT) 

processors having a rated execution time for 

an N-point complex FFT of less than (N log2

N)/20,480 ms, where N is the number of 

points; 

Technical Note: For the purposes of 

3A001.a.12, when N is equal to 1,024 points, 

the formula in 3A001.a.12 gives an execution 

time of 500 ms. 

a.13. Direct Digital Synthesizer (DDS) 

integrated circuits having any of the 

following: 

a.13.a. A Digital-to-Analog Converter 

(DAC) clock frequency of 3.5 GHz or more 

and a DAC resolution of 10 bit or more, but 

less than 12 bit; or 

a.13.b. A DAC clock frequency of 1.25 GHz 

or more and a DAC resolution of 12 bit or 

more; 

Technical Note: For the purposes of 

3A001.a.13, the DAC clock frequency may be 

specified as the master clock frequency or the 

input clock frequency. 

a.14. Integrated circuits that perform or are 

programmable to perform all of the following: 

a.14.a. Analog-to-digital conversions 

meeting any of the following: 

a.14.a.1. A resolution of 8 bit or more, but 

less than 10 bit, with a ‘‘sample rate’’ greater 

than 1.3 Giga Samples Per Second (GSPS); 

a.14.a.2. A resolution of 10 bit or more, but 

less than 12 bit, with a ‘‘sample rate’’ greater 

than 1.0 GSPS; 

a.14.a.3. A resolution of 12 bit or more, but 

less than 14 bit, with a ‘‘sample rate’’ greater 

than 1.0 GSPS; 

a.14.a.4. A resolution of 14 bit or more, but 

less than 16 bit, with a ‘‘sample rate’’ greater 

than 400 Mega Samples Per Second (MSPS); 

or 

a.14.a.5. A resolution of 16 bit or more 

with a ‘‘sample rate’’ greater than 180 MSPS; 

and 

a.14.b. Any of the following: 

a.14.b.1. Storage of digitized data; or 

a.14.b.2. Processing of digitized data; 

N.B. 1: For analog-to-digital converter 

integrated circuits see 3A001.a.5.a. 

N.B. 2: For field programmable logic 

devices see 3A001.a.7. 

Technical Notes: For the purposes of 

3A001.a.14: 

1. A resolution of n bit corresponds to a 

quantization of 2n levels. 

2. The resolution of the ADC is the number 

of bits of the digital output of the ADC that 

represents the measured analog input. 

Effective Number of Bits (ENOB) is not used 

to determine the resolution of the ADC. 

3. For integrated circuits with noninterleaving ‘‘multiple channel ADCs’’, the 

‘‘sample rate’’ is not aggregated and the 

‘‘sample rate’’ is the maximum rate of any 

single channel. 

4. For integrated circuits with ‘‘interleaved 

ADCs’’ or with ‘‘multiple channel ADCs’’ that 

are specified to have an interleaved mode of 

operation, the ‘‘sample rates’’ are aggregated 

and the ‘‘sample rate’’ is the maximum 

combined total rate of all of the interleaved 

channels. 

b. Microwave or millimeter wave items, as 

follows: 

Technical Note: For purposes of 3A001.b, 

the parameter peak saturated power output 

may also be referred to on product data 

sheets as output power, saturated power 

output, maximum power output, peak power 

output, or peak envelope power output. 

b.1. ‘‘Vacuum electronic devices’’ and 

cathodes, as follows: 

Note 1: 3A001.b.1 does not control 

‘‘vacuum electronic devices’’ designed or 

rated for operation in any frequency band 

and having all of the following: 

a. Does not exceed 31.8 GHz; and 

b. Is ‘‘allocated by the ITU’’ for radiocommunications services, but not for radiodetermination. 

Note 2: 3A001.b.1 does not control non- 

‘‘space-qualified’’ ‘‘vacuum electronic 

devices’’ having all the following: 

a. An average output power equal to or less 

than 50 W; and 


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73500 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

b. Designed or rated for operation in any 

frequency band and having all of the 

following: 

1. Exceeds 31.8 GHz but does not exceed 

43.5 GHz; and 

2. Is ‘‘allocated by the ITU’’ for radiocommunications services, but not for radiodetermination. 

b.1.a. Traveling-wave ‘‘vacuum electronic 

devices,’’ pulsed or continuous wave, as 

follows: 

b.1.a.1. Devices operating at frequencies 

exceeding 31.8 GHz; 

b.1.a.2. Devices having a cathode heater 

with a turn on time to rated RF power of less 

than 3 seconds; 

b.1.a.3. Coupled cavity devices, or 

derivatives thereof, with a ‘‘fractional 

bandwidth’’ of more than 7% or a peak 

power exceeding 2.5 kW; 

b.1.a.4. Devices based on helix, folded 

waveguide, or serpentine waveguide circuits, 

or derivatives thereof, having any of the 

following: 

b.1.a.4.a. An ‘‘instantaneous bandwidth’’ of 

more than one octave, and average power 

(expressed in kW) times frequency 

(expressed in GHz) of more than 0.5; 

b.1.a.4.b. An ‘‘instantaneous bandwidth’’ of 

one octave or less, and average power 

(expressed in kW) times frequency 

(expressed in GHz) of more than 1; 

b.1.a.4.c. Being ‘‘space-qualified’’; or 

b.1.a.4.d. Having a gridded electron gun; 

b.1.a.5. Devices with a ‘‘fractional 

bandwidth’’ greater than or equal to 10%, 

with any of the following: 

b.1.a.5.a. An annular electron beam; 

b.1.a.5.b. A non-axisymmetric electron 

beam; or 

b.1.a.5.c. Multiple electron beams; 

b.1.b. Crossed-field amplifier ‘‘vacuum 

electronic devices’’ with a gain of more than 

17 dB; 

b.1.c. Thermionic cathodes, designed for 

‘‘vacuum electronic devices,’’ producing an 

emission current density at rated operating 

conditions exceeding 5 A/cm2 or a pulsed 

(non-continuous) current density at rated 

operating conditions exceeding 10 A/cm2; 

b.1.d. ‘‘Vacuum electronic devices’’ with 

the capability to operate in a ‘dual mode.’ 

Technical Note: For the purposes of 

3A001.b.1.d, ‘dual mode’ means the 

‘‘vacuum electronic device’’ beam current 

can be intentionally changed between 

continuous-wave and pulsed mode operation 

by use of a grid and produces a peak pulse 

output power greater than the continuouswave output power. 

b.2. ‘‘Monolithic Microwave Integrated 

Circuit’’ (‘‘MMIC’’) amplifiers that are any of 

the following: 

N.B.: For ‘‘MMIC’’ amplifiers that have an 

integrated phase shifter see 3A001.b.12. 

b.2.a. Rated for operation at frequencies 

exceeding 2.7 GHz up to and including 6.8 

GHz with a ‘‘fractional bandwidth’’ greater 

than 15%, and having any of the following: 

b.2.a.1. A peak saturated power output 

greater than 75 W (48.75 dBm) at any 

frequency exceeding 2.7 GHz up to and 

including 2.9 GHz; 

b.2.a.2. A peak saturated power output 

greater than 55 W (47.4 dBm) at any 

frequency exceeding 2.9 GHz up to and 

including 3.2 GHz; 

b.2.a.3. A peak saturated power output 

greater than 40 W (46 dBm) at any frequency 

exceeding 3.2 GHz up to and including 3.7 

GHz; or 

b.2.a.4. A peak saturated power output 

greater than 20 W (43 dBm) at any frequency 

exceeding 3.7 GHz up to and including 6.8 

GHz; 

b.2.b. Rated for operation at frequencies 

exceeding 6.8 GHz up to and including 16 

GHz with a ‘‘fractional bandwidth’’ greater 

than 10%, and having any of the following: 

b.2.b.1. A peak saturated power output 

greater than 10 W (40 dBm) at any frequency 

exceeding 6.8 GHz up to and including 8.5 

GHz; or 

b.2.b.2. A peak saturated power output 

greater than 5 W (37 dBm) at any frequency 

exceeding 8.5 GHz up to and including 16 

GHz; 

b.2.c. Rated for operation with a peak 

saturated power output greater than 3 W 

(34.77 dBm) at any frequency exceeding 16 

GHz up to and including 31.8 GHz, and with 

a ‘‘fractional bandwidth’’ of greater than 

10%; 

b.2.d. Rated for operation with a peak 

saturated power output greater than 0.1 nW 

(¥70 dBm) at any frequency exceeding 31.8 

GHz up to and including 37 GHz; 

b.2.e. Rated for operation with a peak 

saturated power output greater than 1 W (30 

dBm) at any frequency exceeding 37 GHz up 

to and including 43.5 GHz, and with a 

‘‘fractional bandwidth’’ of greater than 10%; 

b.2.f. Rated for operation with a peak 

saturated power output greater than 31.62 

mW (15 dBm) at any frequency exceeding 

43.5 GHz up to and including 75 GHz, and 

with a ‘‘fractional bandwidth’’ of greater than 

10%; 

b.2.g. Rated for operation with a peak 

saturated power output greater than 10 mW 

(10 dBm) at any frequency exceeding 75 GHz 

up to and including 90 GHz, and with a 

‘‘fractional bandwidth’’ of greater than 5%; or 

b.2.h. Rated for operation with a peak 

saturated power output greater than 0.1 nW 

(¥70 dBm) at any frequency exceeding 90 

GHz; 

Note 1: [Reserved] 

Note 2: The control status of the ‘‘MMIC’’ 

whose rated operating frequency includes 

frequencies listed in more than one frequency 

range, as defined by 3A001.b.2.a through 

3A001.b.2.h, is determined by the lowest 

peak saturated power output control 

threshold. 

Note 3: Notes 1 and 2 following the 

Category 3 heading for product group A. 

Systems, Equipment, and Components mean 

that 3A001.b.2 does not control ‘‘MMICs’’ if 

they are ‘‘specially designed’’ for other 

applications, e.g., telecommunications, 

radar, automobiles. 

b.3. Discrete microwave transistors that are 

any of the following: 

b.3.a. Rated for operation at frequencies 

exceeding 2.7 GHz up to and including 6.8 

GHz and having any of the following: 

b.3.a.1. A peak saturated power output 

greater than 400 W (56 dBm) at any 

frequency exceeding 2.7 GHz up to and 

including 2.9 GHz; 

b.3.a.2. A peak saturated power output 

greater than 205 W (53.12 dBm) at any 

frequency exceeding 2.9 GHz up to and 

including 3.2 GHz; 

b.3.a.3. A peak saturated power output 

greater than 115 W (50.61 dBm) at any 

frequency exceeding 3.2 GHz up to and 

including 3.7 GHz; or 

b.3.a.4. A peak saturated power output 

greater than 60 W (47.78 dBm) at any 

frequency exceeding 3.7 GHz up to and 

including 6.8 GHz; 

b.3.b. Rated for operation at frequencies 

exceeding 6.8 GHz up to and including 31.8 

GHz and having any of the following: 

b.3.b.1. A peak saturated power output 

greater than 50 W (47 dBm) at any frequency 

exceeding 6.8 GHz up to and including 8.5 

GHz; 

b.3.b.2. A peak saturated power output 

greater than 15 W (41.76 dBm) at any 

frequency exceeding 8.5 GHz up to and 

including 12 GHz; 

b.3.b.3. A peak saturated power output 

greater than 40 W (46 dBm) at any frequency 

exceeding 12 GHz up to and including 16 

GHz; or 

b.3.b.4. A peak saturated power output 

greater than 7 W (38.45 dBm) at any 

frequency exceeding 16 GHz up to and 

including 31.8 GHz; 

b.3.c. Rated for operation with a peak 

saturated power output greater than 0.5 W 

(27 dBm) at any frequency exceeding 31.8 

GHz up to and including 37 GHz; 

b.3.d. Rated for operation with a peak 

saturated power output greater than 1 W (30 

dBm) at any frequency exceeding 37 GHz up 

to and including 43.5 GHz; 

b.3.e. Rated for operation with a peak 

saturated power output greater than 0.1 nW 

(¥70 dBm) at any frequency exceeding 43.5 

GHz; or 

b.3.f. Other than those specified by 

3A001.b.3.a to 3A001.b.3.e and rated for 

operation with a peak saturated power output 

greater than 5 W (37.0 dBm) at all frequencies 

exceeding 8.5 GHz up to and including 31.8 

GHz; 

Note 1: The control status of a transistor 

in 3A001.b.3.a through 3A001.b.3.e, whose 

rated operating frequency includes 

frequencies listed in more than one frequency 

range, as defined by 3A001.b.3.a through 

3A001.b.3.e, is determined by the lowest 

peak saturated power output control 

threshold. 

Note 2: 3A001.b.3 includes bare dice, dice 

mounted on carriers, or dice mounted in 

packages. Some discrete transistors may also 

be referred to as power amplifiers, but the 

status of these discrete transistors is 

determined by 3A001.b.3. 

b.4. Microwave solid state amplifiers and 

microwave assemblies/modules containing 

microwave solid state amplifiers, that are any 

of the following: 

b.4.a. Rated for operation at frequencies 

exceeding 2.7 GHz up to and including 6.8 

GHz with a ‘‘fractional bandwidth’’ greater 

than 15%, and having any of the following: 

b.4.a.1. A peak saturated power output 

greater than 500 W (57 dBm) at any 

frequency exceeding 2.7 GHz up to and 

including 2.9 GHz; 

b.4.a.2. A peak saturated power output 

greater than 270 W (54.3 dBm) at any 

frequency exceeding 2.9 GHz up to and 

including 3.2 GHz; 


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b.4.a.3. A peak saturated power output 

greater than 200 W (53 dBm) at any 

frequency exceeding 3.2 GHz up to and 

including 3.7 GHz; or 

b.4.a.4. A peak saturated power output 

greater than 90 W (49.54 dBm) at any 

frequency exceeding 3.7 GHz up to and 

including 6.8 GHz; 

b.4.b. Rated for operation at frequencies 

exceeding 6.8 GHz up to and including 31.8 

GHz with a ‘‘fractional bandwidth’’ greater 

than 10%, and having any of the following: 

b.4.b.1. A peak saturated power output 

greater than 70 W (48.45 dBm) at any 

frequency exceeding 6.8 GHz up to and 

including 8.5 GHz; 

b.4.b.2. A peak saturated power output 

greater than 50 W (47 dBm) at any frequency 

exceeding 8.5 GHz up to and including 12 

GHz; 

b.4.b.3. A peak saturated power output 

greater than 30 W (44.77 dBm) at any 

frequency exceeding 12 GHz up to and 

including 16 GHz; or 

b.4.b.4. A peak saturated power output 

greater than 20 W (43 dBm) at any frequency 

exceeding 16 GHz up to and including 31.8 

GHz; 

b.4.c. Rated for operation with a peak 

saturated power output greater than 0.5 W 

(27 dBm) at any frequency exceeding 31.8 

GHz up to and including 37 GHz; 

b.4.d. Rated for operation with a peak 

saturated power output greater than 2 W (33 

dBm) at any frequency exceeding 37 GHz up 

to and including 43.5 GHz, and with a 

‘‘fractional bandwidth’’ of greater than 10%; 

b.4.e. Rated for operation at frequencies 

exceeding 43.5 GHz and having any of the 

following: 

b.4.e.1. A peak saturated power output 

greater than 0.2 W (23 dBm) at any frequency 

exceeding 43.5 GHz up to and including 75 

GHz, and with a ‘‘fractional bandwidth’’ of 

greater than 10%; 

b.4.e.2. A peak saturated power output 

greater than 20 mW (13 dBm) at any 

frequency exceeding 75 GHz up to and 

including 90 GHz, and with a ‘‘fractional 

bandwidth’’ of greater than 5%; or 

b.4.e.3. A peak saturated power output 

greater than 0.1 nW (¥70 dBm) at any 

frequency exceeding 90 GHz; or 

b.4.f. [Reserved] 

N.B.: 

1. For ‘‘MMIC’’ amplifiers see 3A001.b.2. 

2. For ‘transmit/receive modules’ and 

‘transmit modules’ see 3A001.b.12. 

3. For converters and harmonic mixers, 

designed to extend the operating or 

frequency range of signal analyzers, signal 

generators, network analyzers or microwave 

test receivers, see 3A001.b.7. 

Note 1: [Reserved] 

Note 2: The control status of an item 

whose rated operating frequency includes 

frequencies listed in more than one frequency 

range, as defined by 3A001.b.4.a through 

3A001.b.4.e, is determined by the lowest 

peak saturated power output control 

threshold. 

b.5. Electronically or magnetically tunable 

band-pass or band-stop filters, having more 

than 5 tunable resonators capable of tuning 

across a 1.5:1 frequency band (fmax/fmin) in 

less than 10 ms and having any of the 

following: 

b.5.a. A band-pass bandwidth of more than 

0.5% of center frequency; or 

b.5.b. A band-stop bandwidth of less than 

0.5% of center frequency; 

b.6. [Reserved] 

b.7. Converters and harmonic mixers, that 

are any of the following: 

b.7.a. Designed to extend the frequency 

range of ‘‘signal analyzers’’ beyond 90 GHz; 

b.7.b. Designed to extend the operating 

range of signal generators as follows: 

b.7.b.1. Beyond 90 GHz; 

b.7.b.2. To an output power greater than 

100 mW (20 dBm) anywhere within the 

frequency range exceeding 43.5 GHz but not 

exceeding 90 GHz; 

b.7.c. Designed to extend the operating 

range of network analyzers as follows: 

b.7.c.1. Beyond 110 GHz; 

b.7.c.2. To an output power greater than 

31.62 mW (15 dBm) anywhere within the 

frequency range exceeding 43.5 GHz but not 

exceeding 90 GHz; 

b.7.c.3. To an output power greater than 1 

mW (0 dBm) anywhere within the frequency 

range exceeding 90 GHz but not exceeding 

110 GHz; or 

b.7.d. Designed to extend the frequency 

range of microwave test receivers beyond 110 

GHz; 

b.8. Microwave power amplifiers 

containing ‘‘vacuum electronic devices’’ 

controlled by 3A001.b.1 and having all of the 

following: 

b.8.a. Operating frequencies above 3 GHz; 

b.8.b. An average output power to mass 

ratio exceeding 80 W/kg; and 

b.8.c. A volume of less than 400 cm3; 

Note: 3A001.b.8 does not control 

equipment designed or rated for operation in 

any frequency band which is ‘‘allocated by 

the ITU’’ for radio-communications services, 

but not for radio-determination. 

b.9. Microwave Power Modules (MPM) 

consisting of, at least, a traveling-wave 

‘‘vacuum electronic device,’’ a ‘‘Monolithic 

Microwave Integrated Circuit’’ (‘‘MMIC’’) and 

an integrated electronic power conditioner 

and having all of the following: 

b.9.a. A ‘turn-on time’ from off to fully 

operational in less than 10 seconds; 

b.9.b. A volume less than the maximum 

rated power in Watts multiplied by 10 cm3/ 

W; and 

b.9.c. An ‘‘instantaneous bandwidth’’ 

greater than 1 octave (fmax > 2fmin) and having 

any of the following: 

b.9.c.1. For frequencies equal to or less 

than 18 GHz, an RF output power greater 

than 100 W; or 

b.9.c.2. A frequency greater than 18 GHz; 

Technical Notes: For the purposes of 

3A001.b.9: 

1. To calculate the volume in 3A001.b.9.b, 

the following example is provided: for a 

maximum rated power of 20 W, the volume 

would be: 20 W × 10 cm3/W = 200 cm3. 

2. The ‘turn-on time’ in 3A001.b.9.a refers 

to the time from fully-off to fully operational, 

i.e.,it includes the warm-up time of the MPM. 

b.10. Oscillators or oscillator assemblies, 

specified to operate with a single sideband 

(SSB) phase noise, in dBc/Hz, less (better) 

than ¥(126 + 20log10F¥20log10f) anywhere 

within the range of 10 Hz ≤ F ≤ 10 kHz; 

Technical Note: For the purposes of 

3A001.b.10, F is the offset from the operating 

frequency in Hz and f is the operating 

frequency in MHz. 

b.11. ‘Frequency synthesizer’ ‘‘electronic 

assemblies’’ having a ‘‘frequency switching 

time’’ as specified by any of the following: 

b.11.a. Less than 143 ps; 

b.11.b. Less than 100 ms for any frequency 

change exceeding 2.2 GHz within the 

synthesized frequency range exceeding 4.8 

GHz but not exceeding 31.8 GHz; 

b.11.c. [Reserved] 

b.11.d. Less than 500 ms for any frequency 

change exceeding 550 MHz within the 

synthesized frequency range exceeding 31.8 

GHz but not exceeding 37 GHz; 

b.11.e. Less than 100 ms for any frequency 

change exceeding 2.2 GHz within the 

synthesized frequency range exceeding 37 

GHz but not exceeding 75 GHz; 

b.11.f. Less than 100 ms for any frequency 

change exceeding 5.0 GHz within the 

synthesized frequency range exceeding 75 

GHz but not exceeding 90 GHz; or 

b.11.g. Less than 1 ms within the 

synthesized frequency range exceeding 90 

GHz; 

Technical Note: For the purposes of 

3A001.b.11, a ‘frequency synthesizer’ is any 

kind of frequency source, regardless of the 

actual technique used, providing a 

multiplicity of simultaneous or alternative 

output frequencies, from one or more 

outputs, controlled by, derived from or 

disciplined by a lesser number of standard 

(or master) frequencies. 

N.B.: For general purpose ‘‘signal 

analyzers’’, signal generators, network 

analyzers and microwave test receivers, see 

3A002.c, 3A002.d, 3A002.e and 3A002.f, 

respectively. 

b.12. ‘Transmit/receive modules,’ 

‘transmit/receive MMICs,’ ‘transmit 

modules,’ and ‘transmit MMICs,’ rated for 

operation at frequencies above 2.7 GHz and 

having all of the following: 

b.12.a. A peak saturated power output (in 

watts), Psat, greater than 505.62 divided by 

the maximum operating frequency (in GHz) 

squared [Psat > 505.62 W * GHz2/fGHz2] for 

any channel; 

b.12.b. A ‘‘fractional bandwidth’’ of 5% or 

greater for any channel; 

b.12.c. Any planar side with length d (in 

cm) equal to or less than 15 divided by the 

lowest operating frequency in GHz [d ≤ 15cm 

* GHz * N/fGHz] where N is the number of 

transmit or transmit/receive channels; and 

b.12.d. An electronically variable phase 

shifter per channel. 

Technical Notes: For the purposes of 

3A001.b.12: 

1. A ‘transmit/receive module’ is a 

multifunction ‘‘electronic assembly’’ that 

provides bi-directional amplitude and phase 

control for transmission and reception of 

signals. 

2. A ‘transmit module’ is an ‘‘electronic 

assembly’’ that provides amplitude and 

phase control for transmission of signals. 

3. A ‘transmit/receive MMIC’ is a 

multifunction ‘‘MMIC’’ that provides bidirectional amplitude and phase control for 

transmission and reception of signals. 

4. A ‘transmit MMIC’ is a ‘‘MMIC’’ that 

provides amplitude and phase control for 

transmission of signals. 


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5. 2.7 GHz should be used as the lowest 

operating frequency (fGHz) in the formula in 

3A001.b.12.c for transmit/receive or transmit 

modules that have a rated operation range 

extending downward to 2.7 GHz and below 

[d ≤ 15cm * GHz * N/2.7 GHz]. 

6. 3A001.b.12 applies to ‘transmit/receive 

modules’ or ‘transmit modules’ with or 

without a heat sink. The value of d in 

3A001.b.12.c does not include any portion of 

the ‘transmit/receive module’ or ‘transmit 

module’ that functions as a heat sink. 

7. ‘Transmit/receive modules’ or ‘transmit 

modules,’ ‘transmit/receive MMICs’ or 

‘transmit MMICs’ may or may not have N 

integrated radiating antenna elements where 

N is the number of transmit or transmit/ 

receive channels. 

c. Acoustic wave devices as follows and 

‘‘specially designed’’ ‘‘components’’ therefor: 

c.1. Surface acoustic wave and surface 

skimming (shallow bulk) acoustic wave 

devices, having any of the following: 

c.1.a. A carrier frequency exceeding 6 GHz; 

c.1.b. A carrier frequency exceeding 1 GHz, 

but not exceeding 6 GHz and having any of 

the following: 

c.1.b.1. A ‘frequency side-lobe rejection’ 

exceeding 65 dB; 

c.1.b.2. A product of the maximum delay 

time and the bandwidth (time in ms and 

bandwidth in MHz) of more than 100; 

c.1.b.3. A bandwidth greater than 250 

MHz; or 

c.1.b.4. A dispersive delay of more than 10 

ms; or 

c.1.c. A carrier frequency of 1 GHz or less 

and having any of the following: 

c.1.c.1. A product of the maximum delay 

time and the bandwidth (time in ms and 

bandwidth in MHz) of more than 100; 

c.1.c.2. A dispersive delay of more than 10 

ms; or 

c.1.c.3. A ‘frequency side-lobe rejection’ 

exceeding 65 dB and a bandwidth greater 

than 100 MHz; 

Technical Note: For the purposes of 

3A001.c.1, ‘frequency side-lobe rejection’ is 

the maximum rejection value specified in 

data sheet. 

c.2. Bulk (volume) acoustic wave devices 

that permit the direct processing of signals at 

frequencies exceeding 6 GHz; 

c.3. Acoustic-optic ‘‘signal processing’’ 

devices employing interaction between 

acoustic waves (bulk wave or surface wave) 

and light waves that permit the direct 

processing of signals or images, including 

spectral analysis, correlation or convolution; 

Note: 3A001.c does not control acoustic 

wave devices that are limited to a single band 

pass, low pass, high pass or notch filtering, 

or resonating function. 

d. Electronic devices and circuits 

containing ‘‘components,’’ manufactured 

from ‘‘superconductive’’ materials, ‘‘specially 

designed’’ for operation at temperatures 

below the ‘‘critical temperature’’ of at least 

one of the ‘‘superconductive’’ constituents 

and having any of the following: 

d.1. Current switching for digital circuits 

using ‘‘superconductive’’ gates with a 

product of delay time per gate (in seconds) 

and power dissipation per gate (in watts) of 

less than 10¥14 J; or 

d.2. Frequency selection at all frequencies 

using resonant circuits with Q-values 

exceeding 10,000; 

e. High energy devices as follows: 

e.1. ‘Cells’ as follows: 

e.1.a ‘Primary cells’ having any of the 

following at 20 °C: 

e.1.a.1. ‘Energy density’ exceeding 550 Wh/ 

kg and a ‘continuous power density’ 

exceeding 50 W/kg; or 

e.1.a.2. ‘Energy density’ exceeding 50 Wh/ 

kg and a ‘continuous power density’ 

exceeding 350 W/kg; 

e.1.b. ‘Secondary cells’ having an ‘energy 

density’ exceeding 350 Wh/kg at 20 °C; 

Technical Notes: 

1. For the purposes of 3A001.e.1, ‘energy 

density’ (Wh/kg) is calculated from the 

nominal voltage multiplied by the nominal 

capacity in ampere-hours (Ah) divided by the 

mass in kilograms. If the nominal capacity is 

not stated, energy density is calculated from 

the nominal voltage squared then multiplied 

by the discharge duration in hours divided by 

the discharge load in Ohms and the mass in 

kilograms. 

2. For the purposes of 3A001.e.1, a ‘cell’ is 

defined as an electrochemical device, which 

has positive and negative electrodes, an 

electrolyte, and is a source of electrical 

energy. It is the basic building block of a 

battery. 

3. For the purposes of 3A001.e.1.a, a 

‘primary cell’ is a ‘cell’ that is not designed 

to be charged by any other source. 

4. For the purposes of 3A001.e.1.b, a 

‘secondary cell’ is a ‘cell’ that is designed to 

be charged by an external electrical source. 

5. For the purposes of 3A001.e.1.a, 

‘continuous power density’ (W/kg) is 

calculated from the nominal voltage 

multiplied by the specified maximum 

continuous discharge current in ampere (A) 

divided by the mass in kilograms. 

‘Continuous power density’ is also referred to 

as specific power. 

Note: 3A001.e does not control batteries, 

including single-cell batteries. 

e.2. High energy storage capacitors as 

follows: 

e.2.a. Capacitors with a repetition rate of 

less than 10 Hz (single shot capacitors) and 

having all of the following: 

e.2.a.1. A voltage rating equal to or more 

than 5 kV; 

e.2.a.2. An energy density equal to or more 

than 250 J/kg; and 

e.2.a.3. A total energy equal to or more 

than 25 kJ; 

e.2.b. Capacitors with a repetition rate of 

10 Hz or more (repetition rated capacitors) 

and having all of the following: 

e.2.b.1. A voltage rating equal to or more 

than 5 kV; 

e.2.b.2. An energy density equal to or more 

than 50 J/kg; 

e.2.b.3. A total energy equal to or more 

than 100 J; and 

e.2.b.4. A charge/discharge cycle life equal 

to or more than 10,000; 

e.3. ‘‘Superconductive’’ electromagnets and 

solenoids, ‘‘specially designed’’ to be fully 

charged or discharged in less than one 

second and having all of the following: 

Note: 3A001.e.3 does not control 

‘‘superconductive’’ electromagnets or 

solenoids ‘‘specially designed’’ for Magnetic 

Resonance Imaging (MRI) medical 

equipment. 

e.3.a. Energy delivered during the 

discharge exceeding 10 kJ in the first second; 

e.3.b. Inner diameter of the current 

carrying windings of more than 250 mm; and 

e.3.c. Rated for a magnetic induction of 

more than 8 T or ‘‘overall current density’’ 

in the winding of more than 300 A/mm2; 

e.4. Solar cells, cell-interconnectcoverglass (CIC) assemblies, solar panels, and 

solar arrays, which are ‘‘space-qualified,’’ 

having a minimum average efficiency 

exceeding 20% at an operating temperature 

of 301 K (28°C) under simulated ‘AM0’ 

illumination with an irradiance of 1,367 

Watts per square meter (W/m2); 

Technical Note: For the purposes of 

3A001.e.4, ‘AM0’, or ‘Air Mass Zero’, refers 

to the spectral irradiance of sun light in the 

earth’s outer atmosphere when the distance 

between the earth and sun is one 

astronomical unit (AU). 

f. Rotary input type absolute position 

encoders having an ‘‘accuracy’’ equal to or 

less (better) than 1.0 second of arc and 

‘‘specially designed’’ encoder rings, discs or 

scales therefor; 

g. Solid-state pulsed power switching 

thyristor devices and ‘thyristor modules’, 

using either electrically, optically, or electron 

radiation controlled switch methods and 

having any of the following: 

g.1. A maximum turn-on current rate of 

rise (di/dt) greater than 30,000 A/ms and offstate voltage greater than 1,100 V; or 

g.2. A maximum turn-on current rate of 

rise (di/dt) greater than 2,000 A/ms and 

having all of the following: 

g.2.a. An off-state peak voltage equal to or 

greater than 3,000 V; and 

g.2.b. A peak (surge) current equal to or 

greater than 3,000 A; 

Note 1: 3A001.g. includes: 

—Silicon Controlled Rectifiers (SCRs) 

—Electrical Triggering Thyristors (ETTs) 

—Light Triggering Thyristors (LTTs) 

—Integrated Gate Commutated Thyristors 

(IGCTs) 

—Gate Turn-off Thyristors (GTOs) 

—MOS Controlled Thyristors (MCTs) 

—Solidtrons 

Note 2: 3A001.g does not control thyristor 

devices and ‘thyristor modules’ incorporated 

into equipment designed for civil railway or 

‘‘civil aircraft’’ applications. 

Technical Note: For the purposes of 

3A001.g, a ‘thyristor module’ contains one or 

more thyristor devices. 

h. Solid-state power semiconductor 

switches, diodes, or ‘modules’, having all of 

the following: 

h.1. Rated for a maximum operating 

junction temperature greater than 488 K (215 

°C); 

h.2. Repetitive peak off-state voltage 

(blocking voltage) exceeding 300 V; and 

h.3. Continuous current greater than 1 A. 

Technical Note: For the purposes of 

3A001.h, ‘modules’ contain one or more 

solid-state power semiconductor switches or 

diodes. 

Note 1: Repetitive peak off-state voltage in 

3A001.h includes drain to source voltage, 

collector to emitter voltage, repetitive peak 


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reverse voltage and peak repetitive off-state 

blocking voltage. 

Note 2: 3A001.h includes: 

—Junction Field Effect Transistors (JFETs) 

—Vertical Junction Field Effect Transistors 

(VJFETs) 

—Metal Oxide Semiconductor Field Effect 

Transistors (MOSFETs) 

—Double Diffused Metal Oxide 

Semiconductor Field Effect Transistor 

(DMOSFET) 

—Insulated Gate Bipolar Transistor (IGBT) 

—High Electron Mobility Transistors 

(HEMTs) 

—Bipolar Junction Transistors (BJTs) 

—Thyristors and Silicon Controlled Rectifiers 

(SCRs) 

—Gate Turn-Off Thyristors (GTOs) 

—Emitter Turn-Off Thyristors (ETOs) 

—PiN Diodes 

—Schottky Diodes 

Note 3: 3A001.h does not apply to 

switches, diodes, or ‘modules’, incorporated 

into equipment designed for civil automobile, 

civil railway, or ‘‘civil aircraft’’ applications. 

i. Intensity, amplitude, or phase electrooptic modulators, designed for analog signals 

and having any of the following: 

i.1. A maximum operating frequency of 

more than 10 GHz but less than 20 GHz, an 

optical insertion loss equal to or less than 3 

dB and having any of the following: 

i.1.a. A ‘half-wave voltage’ (‘Vp’) less than 

2.7 V when measured at a frequency of 1 GHz 

or below; or 

i.1.b. A ‘Vp’ of less than 4 V when 

measured at a frequency of more than 1 GHz; 

or 

i.2. A maximum operating frequency equal 

to or greater than 20 GHz, an optical insertion 

loss equal to or less than 3 dB and having 

any of the following: 

i.2.a. A ‘Vp’ less than 3.3 V when measured 

at a frequency of 1 GHz or below; or 

i.2.b. A ‘Vp’ less than 5 V when measured 

at a frequency of more than 1 GHz. 

Note: 3A001.i includes electro-optic 

modulators having optical input and output 

connectors (e.g., fiber-optic pigtails). 

Technical Note: For the purposes of 

3A001.i, a ‘half-wave voltage’ (‘Vp’) is the 

applied voltage necessary to make a phase 

change of 180 degrees in the wavelength of 

light propagating through the optical 

modulator. 

j. through y. [Reserved] 

z. Any commodity described in 3A001 that 

meets or exceeds the performance parameters 

in 3A090. 

* * * * * 

3A090 Integrated circuits as follows (see 

List of Items Controlled). 

License Requirements 

Reason for Control: RS, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

RS applies to entire 

entry.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) 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: N/A 

GBS: N/A 

NAC: Yes, for 3A090.a, if the item is not 

designed or marketed for use in datacenters 

and has a ‘total processing performance’ of 

4800 or more; yes, for 3A090.b, if the item 

is designed or marketed for use in 

datacenters. 

List of Items Controlled 

Related Controls: (1) See ECCNs 3D001, 

3E001, 5D002.z, and 5D992.z for associated 

technology and software controls. (2) See 

ECCNs 3A001.z, 5A002.z, 5A004.z, and 

5A992.z. 

Related Definitions: N/A 

Items: 

a. Integrated circuits having one or more 

digital processing units having either of the 

following: 

a.1. a ‘total processing performance’ of 

4800 or more, or 

a.2. a ‘total processing performance’ of 

1600 or more and a ‘performance density’ of 

5.92 or more. 

b. Integrated circuits having one or more 

digital processing units having either of the 

following: 

b.1. a ‘total processing performance’ of 

2400 or more and less than 4800 and a 

‘performance density’ of 1.6 or more and less 

than 5.92, or 

b.2. a ‘total processing performance’ of 

1600 or more and a ‘performance density’ of 

3.2 or more and less than 5.92. 

Note 1 to 3A090: Integrated circuits 

specified by 3A090 include graphical 

processing units (GPUs), tensor processing 

units (TPUs), neural processors, in-memory 

processors, vision processors, text processors, 

co-processors/accelerators, adaptive 

processors, field-programmable logic devices 

(FPLDs), and application-specific integrated 

circuits (ASICs). Examples of integrated 

circuits are in the Note to 3A001.a. 

Note 2 to 3A090: 3A090 does not apply to 

items that are not designed or marketed for 

use in datacenters and do not have a ‘total 

processing performance’ of 4800 or more. For 

integrated circuits that are not designed or 

marketed for use in datacenters and that 

have a ‘total processing performance’ of 4800 

or more, see license exception NAC. 

Note 3 to 3A090: For ICs that are excluded 

from ECCN 3A090 under Note 2 or 3 to 

3A090, those ICs are also not applicable for 

classifications made under ECCNs 3A001.z, 

4A003.z, 4A004.z, 4A005.z, 4A090, 5A002.z, 

5A004.z, 5A992.z, 5D002.z, or 5D992.z 

because those other CCL classifications are 

based on the incorporation of an IC that 

meets the control parameters under ECCN 

3A090 or otherwise meets or exceeds the 

control parameters or ECCNs 3A090 or 

4A090 . See the Related Controls paragraphs 

of 3A001.z, 4A003.z, 4A004.z, 4A005.z, 

4A090, 5A002.z, 5A004.z, 5A992.z, 5D002.z, 

or 5D992.z, which reference back to Note 4 

to 3A090. 

Technical Notes: 

1. ‘Total processing performance’ (‘TPP’) is 

2 × ‘MacTOPS’ × ‘bit length of the operation’, 

aggregated over all processing units on the 

integrated circuit. 

a. For purposes of 3A090, ‘MacTOPS’ is the 

theoretical peak number of Tera (1012) 

operations per second for multiplyaccumulate computation (D = A × B + C). 

b. The 2 in the ‘TPP’ formula is based on 

industry convention of counting one 

multiply-accumulate computation, D = A × B 

+ C, as 2 operations for purpose of 

datasheets. Therefore, 2 × MacTOPS may 

correspond to the reported TOPS or FLOPS 

on a datasheet. 

c. For purposes of 3A090, ‘bit length of the 

operation’ for a multiply-accumulate 

computation is the largest bit-length of the 

inputs to the multiply operation. 

d. Aggregate the TPPs for each processing 

unit on the integrated circuit to arrive at a 

total. ‘TPP’ = TPP1 + TPP2 + . . . . + TPPn 

(where n is the number or processing units 

on the integrated circuit). 

2. The rate of ‘MacTOPS’ is to be 

calculated at its maximum value 

theoretically possible. The rate of ‘MacTOPS’ 

is assumed to be the highest value the 

manufacturer claims in annual or brochure 

for the integrated circuit. For example, the 

‘TPP’ threshold of 4800 can be met with 600 

tera integer operations (or 2 × 300 

‘MacTOPS’) at 8 bits or 300 tera FLOPS (or 

2 × 150 ‘MacTOPS’) at 16 bits. If the IC is 

designed for MAC computation with multiple 

bit lengths that achieve different ‘TPP’ 

values, the highest ‘TPP’ value should be 

evaluated against parameters in 3A090. 

3. For integrated circuits specified by 

3A090 that provide processing of both sparse 

and dense matrices, the ‘TPP’ values are the 

values for processing of dense matrices (e.g., 

without sparsity). 

4. ‘Performance density’ is ‘TPP’ divided by 

‘applicable die area’. For purposes of 3A090, 

‘applicable die area’ is measured in 

millimeters squared and includes all die area 

of logic dies manufactured with a process 

node that uses a non-planar transistor 

architecture. 

* * * * * 

3A991 Electronic devices, and 

‘‘components’’ not controlled by 3A001. 

License Requirements 

Reason for Control: AT 


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Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

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) 

LVS: N/A 

GBS: N/A 

List of Items Controlled 

Related Controls: (1) For associated 

‘‘software’’ for commodities in this ECCN, 

see 3D991 and for associated ‘‘technology 

for commodities in this ECCN, see 3E991. 

(2) See also ECCNs 5A002.z, 5A004.z, and 

5A992.z. 

Related Definitions: N/A 

Items: 

a. ‘‘Microprocessor microcircuits’’, 

‘‘microcomputer microcircuits’’, and 

microcontroller microcircuits having any of 

the following: 

a.1. A performance speed of 5 GFLOPS or 

more and an arithmetic logic unit with an 

access width of 32 bit or more; 

a.2. A clock frequency rate exceeding 25 

MHz; or 

a.3. More than one data or instruction bus 

or serial communication port that provides a 

direct external interconnection between 

parallel ‘‘microprocessor microcircuits’’ with 

a transfer rate of 2.5 Mbyte/s; 

b. Storage integrated circuits, as follows: 

b.1. Electrical erasable programmable readonly memories (EEPROMs) with a storage 

capacity; 

b.1.a. Exceeding 16 Mbits per package for 

flash memory types; or 

b.1.b. Exceeding either of the following 

limits for all other EEPROM types: 

b.1.b.1. Exceeding 1 Mbit per package; or 

b.1.b.2. Exceeding 256 kbit per package 

and a maximum access time of less than 80 

ns; 

b.2. Static random access memories 

(SRAMs) with a storage capacity: 

b.2.a. Exceeding 1 Mbit per package; or 

b.2.b. Exceeding 256 kbit per package and 

a maximum access time of less than 25 ns; 

c. Analog-to-digital converters having any 

of the following: 

c.1. A resolution of 8 bit or more, but less 

than 12 bit, with an output rate greater than 

200 million words per second; 

c.2. A resolution of 12 bit with an output 

rate greater than 105 million words per 

second; 

c.3. A resolution of more than 12 bit but 

equal to or less than 14 bit with an output 

rate greater than 10 million words per 

second; or 

c.4. A resolution of more than 14 bit with 

an output rate greater than 2.5 million words 

per second; 

d. Field programmable logic devices 

having a maximum number of single-ended 

digital input/outputs between 200 and 700; 

e. Fast Fourier Transform (FFT) processors 

having a rated execution time for a 1,024 

point complex FFT of less than 1 ms; 

f. Custom integrated circuits for which 

either the function is unknown, or the 

control status of the equipment in which the 

integrated circuits will be used is unknown 

to the manufacturer, having any of the 

following: 

f.1. More than 144 terminals; or 

f.2. A typical ‘‘basic propagation delay 

time’’ of less than 0.4 ns; 

g. Traveling-wave ‘‘vacuum electronic 

devices,’’ pulsed or continuous wave, as 

follows: 

g.1. Coupled cavity devices, or derivatives 

thereof; 

g.2. Helix devices based on helix, folded 

waveguide, or serpentine waveguide circuits, 

or derivatives thereof, with any of the 

following: 

g.2.a. An ‘‘instantaneous bandwidth’’ of 

half an octave or more; and 

g.2.b. The product of the rated average 

output power (expressed in kW) and the 

maximum operating frequency (expressed in 

GHz) of more than 0.2; 

g.2.c. An ‘‘instantaneous bandwidth’’ of 

less than half an octave; and 

g.2.d. The product of the rated average 

output power (expressed in kW) and the 

maximum operating frequency (expressed in 

GHz) of more than 0.4; 

h. Flexible waveguides designed for use at 

frequencies exceeding 40 GHz; 

i. Surface acoustic wave and surface 

skimming (shallow bulk) acoustic wave 

devices (i.e., ‘‘signal processing’’ devices 

employing elastic waves in materials), having 

either of the following: 

i.1. A carrier frequency exceeding 1 GHz; 

or 

i.2. A carrier frequency of 1 GHz or less; 

and 

i.2.a. A frequency side-lobe rejection 

exceeding 55 Db; 

i.2.b. A product of the maximum delay 

time and bandwidth (time in microseconds 

and bandwidth in MHz) of more than 100; or 

i.2.c. A dispersive delay of more than 10 

microseconds; 

j. Cells as follows: 

j.1. Primary cells having an energy density 

of 550 Wh/kg or less at 293 K (20 °C); 

j.2. Secondary cells having an energy 

density of 350 Wh/kg or less at 293 K (20 °C); 

Note: 3A991.j does not control batteries, 

including single cell batteries. 

Technical Notes: 

1. For the purposes of 3A991.j energy 

density (Wh/kg) is calculated from the 

nominal voltage multiplied by the nominal 

capacity in ampere-hours divided by the 

mass in kilograms. If the nominal capacity is 

not stated, energy density is calculated from 

the nominal voltage squared then multiplied 

by the discharge duration in hours divided by 

the discharge load in Ohms and the mass in 

kilograms. 

2. For the purposes of 3A991.j, a ‘cell’ is 

defined as an electrochemical device, which 

has positive and negative electrodes, and 

electrolyte, and is a source of electrical 

energy. It is the basic building block of a 

battery. 

3. For the purposes of 3A991.j.1, a ‘primary 

cell’ is a ‘cell’ that is not designed to be 

charged by any other source. 

4. For the purposes of 3A991.j.2, a 

‘secondary cell’ is a ‘cell’ that is designed to 

be charged by an external electrical source. 

k. ‘‘Superconductive’’ electromagnets or 

solenoids ‘‘specially designed’’ to be fully 

charged or discharged in less than one 

minute, having all of the following: 

Note: 3A991.k does not control 

‘‘superconductive’’ electromagnets or 

solenoids designed for Magnetic Resonance 

Imaging (MRI) medical equipment. 

k.1. Maximum energy delivered during the 

discharge divided by the duration of the 

discharge of more than 500 kJ per minute; 

k.2. Inner diameter of the current carrying 

windings of more than 250 mm; and 

k.3. Rated for a magnetic induction of more 

than 8T or ‘‘overall current density’’ in the 

winding of more than 300 A/mm2; 

l. Circuits or systems for electromagnetic 

energy storage, containing ‘‘components’’ 

manufactured from ‘‘superconductive’’ 

materials ‘‘specially designed’’ for operation 

at temperatures below the ‘‘critical 

temperature’’ of at least one of their 

‘‘superconductive’’ constituents, having all of 

the following: 

l.1. Resonant operating frequencies 

exceeding 1 MHz; 

l.2. A stored energy density of 1 MJ/M3 or 

more; and 

l.3. A discharge time of less than 1 ms; 

m. Hydrogen/hydrogen-isotope thyratrons 

of ceramic-metal construction and rate for a 

peak current of 500 A or more; 

n. Digital integrated circuits based on any 

compound semiconductor having an 

equivalent gate count of more than 300 (2 

input gates); 

o. Solar cells, cell-interconnect-coverglass 

(CIC) assemblies, solar panels, and solar 

arrays, which are ‘‘space qualified’’ and not 

controlled by 3A001.e.4; 

p. Integrated circuits, n.e.s., having any of 

the following: 

p.1. A processing performance of 8 TOPS 

or more; or 

p.2. An aggregate bidirectional transfer rate 

over all inputs and outputs of 150 Gbyte/s or 

more to or from integrated circuits other than 

volatile memories. 

Technical Notes: For the purposes of 

3A991.p: 

1. This ECCN includes but is not limited to 

central processing units (CPU), graphics 

processing units (GPU), tensor processing 

units (TPU), neural processors, in-memory 

processors, vision processors, text processors, 

co-processors/accelerators, adaptive 

processors, and field-programmable logic 

devices (FPLDs). 

2. TOPS is Tera Operations Per Second or 

1012 Operations per Second. 

3. For purposes of 3A991.p, TOPS is 2 × 

‘MacTOPS’ aggregated over all processing 

units on the integrated circuit. 

a. For purposes of 3A991.p, ‘MacTOPS’ is 

the theoretical peak number of Tera (10∧12) 

operations per second for multiplyaccumulate computation (D = A × B + C). 


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b. The 2 in the formula is based on 

industry convention of counting one 

multiply-accumulate computation, D = A × B 

+ C, as 2 operations for purpose of 

datasheets. Therefore, 2 × ‘MacTOPS’ may 

correspond to the reported TOPS or FLOPS 

on a datasheet. 

* * * * * 

3D001 ‘‘Software’’ ‘‘specially designed’’ for 

the ‘‘development’’ or ‘‘production’’ of 

commodities controlled by 3A001.b to 

3A002.h, 3A090, 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 destinations specified in 

Country Group D:5 

of supplement no. 1 

to part 740 of the 

EAR or Macau. See 

§ 742.4(a)(4) of the 

EAR. 

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

3A001.z and 

3A090.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

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 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; or 

commodities specified in 3A001.z, 3A090, 

3B001.a.4, c, d, f.1.b, k to p, and 3B002.b 

and c. 

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 3A001.z, 3A090, 

3A002.g.1, 3B001.a.4, a.2, c, d, f.1.b, k to 

p, or 3B002.b and c to any of the 

destinations listed in Country Group A:6 

(See Supplement No. 1 to part 740 of the 

EAR). 

List of Items Controlled 

Related Controls: N/A 

Related Definitions: N/A 

Items: 

The list of items controlled is contained in 

the ECCN heading. 

* * * * * 

3E001 ‘‘Technology’’ according to the 

General Technology Note for the 

‘‘development’’ or ‘‘production’’ of 

commodities controlled by 3A (except 

3A980, 3A981, 3A991, 3A992, or 

3A999), 3B (except 3B991 or 3B992) or 

3C (except 3C992). 

License Requirements 

Reason for Control: NS, MT, NP, RS, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to ‘‘technology’’ for commodities controlled 

by 3A001 (except 

3A001.z), 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 (except 

for 3A001.z) or 

3A101 for MT Reasons.

MT Column 1. 

NP applies to ‘‘technology’’ for commodities controlled 

by 3A001 (except 

3A001.z), 3A201, 

or 3A225 to 3A234 

for NP reasons.

NP Column 1. 

RS applies to ‘‘technology’’ for commodities controlled 

in 3A090, when exported from Macau 

or a destination 

specified in Country Group D:5.

Worldwide (See 

§ 742.6(a)(6)(ii). 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

RS applies to ‘‘technology’’ for commodities controlled 

by 3A001.z, 3A090.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

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 destinations specified in 

Country Group D:5 

of supplement no. 1 

to part 740 of the 

EAR or Macau. See 

§ 742.6(a)(6)(i) 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, 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, coverglassinterconnect-cells or covered-interconnectcells (CIC) ‘‘assemblies’’, solar arrays and/ 

or solar panels described in 3A001.e.4; (c) 

‘‘Monolithic Microwave Integrated Circuit’’ 

(‘‘MMIC’’) amplifiers in 3A001.b.2; (d) 

discrete microwave transistors in 

3A001.b.3; and (e) commodities described 

in 3A001.z, 3A090, 3B001.a.4, c, d, f.1.b, k 

to p, 3B002.b and c. 

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 

listed in Country Group A:6 (See 

Supplement No. 1 to part 740 of the EAR). 

License Exception STA may not be used to 

ship or transmit ‘‘technology’’ according to 

the General Technology Note for the 

‘‘development’’ or ‘‘production’’ of 


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components specified by ECCN 3A001.b.2, 

b.3, commodities specified in 3A001.z, 

3A090, 3B001.a.4, c, d, f.1.b, k to p, or 

3B002.b and c, to any of the destinations 

listed in Country Group A:5 or A:6 (See 

Supplement No. 1 to part 740 of the EAR). 

List of Items Controlled 

Related Controls: (1) ‘‘Technology’’ according 

to the General Technology Note for the 

‘‘development’’ or ‘‘production’’ of certain 

‘‘space-qualified’’ atomic frequency 

standards described in Category XV(e)(9), 

MMICs described in Category XV(e)(14), 

and oscillators described in Category 

XV(e)(15) of the USML are ‘‘subject to the 

ITAR’’ (see 22 CFR parts 120 through 130). 

See also 3E101, 3E201 and 9E515. (2) 

‘‘Technology’’ for ‘‘development’’ or 

‘‘production’’ of ‘‘Microwave Monolithic 

Integrated Circuits’’ (‘‘MMIC’’) amplifiers 

in 3A001.b.2 is controlled in this ECCN 

3E001; 5E001.d refers only to that 

additional ‘‘technology’’ ‘‘required’’ for 

telecommunications. 

Related Definition: N/A 

Items: 

The list of items controlled is contained in 

the ECCN heading. 

Note 1: 3E001 does not control 

‘‘technology’’ for equipment or 

‘‘components’’ controlled by 3A003. 

Note 2: 3E001 does not control 

‘‘technology’’ for integrated circuits 

controlled by 3A001.a.3 to a.14 or .z, 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. 

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’). 

* * * * * 

CATEGORY 4—COMPUTERS 

* * * * * 

Note 3: Commodities and ‘‘software’’ in 

ECCNs 4A005 and 4D004 that are also 

controlled in ECCNs 5A002.a, 5A002.z.1, 

5A002.z.6, 5A004.a, 5A004.b, 5A004.z, 

5D002.c.1, 5D002.c.3, 5D002.z.6, 5D002.z.8, 

or 5D002.z.9, remain controlled in Category 

5—Part 2 by those entries. Category 5—Part 

2 does not apply to elements of source code 

that implement functionality controlled by 

these Category 4 ECCNs, or to any item 

subject to the EAR where Encryption Item 

(EI) functionality is absent, removed or 

otherwise non-existent. 

* * * * * 

4A003 ‘‘Digital computers’’, ‘‘electronic 

assemblies’’, and related equipment 

therefor, as follows (see List of Items 

Controlled) and ‘‘specially designed’’ 

‘‘components’’ therefor. 

License Requirements 

Reason for Control: NS, RS, CC, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to 

4A003.b and .c.

NS Column 1. 

NS applies to 

4A003.g.

NS Column 2. 

RS applies to 

4A003.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

CC applies to ‘‘digital 

computers’’ for 

computerized finger-print equipment.

CC Column 1. 

AT applies to entire 

entry (refer to 

4A994 for controls 

on ‘‘digital computers’’ with a APP 

>0.0128 but ≤70 

WT).

AT Column 1. 

Note: For all destinations, except those 

countries in Country Group E:1 or E:2 of 

Supplement No. 1 to part 740 of the EAR, 

no license is required (NLR) for computers 

with an ‘‘Adjusted Peak Performance’’ 

(‘‘APP’’) not exceeding 70 Weighted 

TeraFLOPS (WT) and for ‘‘electronic 

assemblies’’ described in 4A003.c that are 

not capable of exceeding an ‘‘Adjusted 

Peak Performance’’ (‘‘APP’’) exceeding 70 

Weighted TeraFLOPS (WT) in aggregation, 

except certain transfers as set forth in 

§ 746.3 (Iraq). 

Reporting Requirements 

Special Post Shipment Verification reporting 

and recordkeeping requirements for 

exports of computers to destinations in 

Computer Tier 3 may be found in § 743.2 

of the EAR. 

List Based License Exceptions (See Part 740 

for a Description of All License Exceptions) 

LVS: $5000; N/A for 4A003.b, .c, and .z. 

GBS: Yes, for 4A003.g and ‘‘specially 

designed’’ ‘‘parts’’ and ‘‘components’’ 

therefor, exported separately or as part of 

a system. 

APP: Yes, for computers controlled by 

4A003.b, and ‘‘electronic assemblies’’ 

controlled by 4A003.c, to the exclusion of 

other technical parameters. See § 740.7 of 

the EAR. 

NAC: Yes, for 4A003.z; N/A for all other 

4A003 commodities. 

Note to List Based License Exceptions: 

Related equipment specified under ECCN 

4A003.g, z.2, or z.4 are eligible for License 

Exception GBS if all the following 

conditions are met: 

■ 1. The related equipment is exported, 

reexported, or transferred (in-country) as part 

of a computer system, 

■ 2. The computer system is either 

designated as NLR or eligible for License 

Exception APP, and 

■ 3. The related equipment is eligible for 

License Exception APP. 

List of Items Controlled 

Related Controls: (1) See also ECCNs 4A090, 

4A994 and 4A980. (2) See also Note 4 to 

ECCN 3A090. 

Related Definitions: N/A 

Items: 

Note 1: 4A003 includes the following: 

—‘Vector processors’ (as defined in Note 7 of 

the ‘‘Technical Note on ‘‘Adjusted Peak 

Performance’’ (‘‘APP’’)’’); 

—Array processors; 

—Digital signal processors; 

—Logic processors; 

—Equipment designed for ‘‘image 

enhancement.’’ 

Note 2: The control status of the ‘‘digital 

computers’’ and related equipment described 

in 4A003 is determined by the control status 

of other equipment or systems provided: 

a. The ‘‘digital computers’’ or related 

equipment are essential for the operation of 

the other equipment or systems; 

b. The ‘‘digital computers’’ or related 

equipment are not a ‘‘principal element’’ of 

the other equipment or systems; and 

N.B. 1: The control status of ‘‘signal 

processing’’ or ‘‘image enhancement’’ 

equipment ‘‘specially designed’’ for other 

equipment with functions limited to those 

required for the other equipment is 

determined by the control status of the other 

equipment even if it exceeds the ‘‘principal 

element’’ criterion. 

N.B. 2: For the control status of ‘‘digital 

computers’’ or related equipment for 

telecommunications equipment, see Category 

5, Part 1 (Telecommunications). 

c. The ‘‘technology’’ for the ‘‘digital 

computers’’ and related equipment is 

determined by 4E. 

a. [Reserved] 

b. ‘‘Digital computers’’ having an 

‘‘Adjusted Peak Performance’’ (‘‘APP’’) 

exceeding 70 Weighted TeraFLOPS (WT); 

c. ‘‘Electronic assemblies’’ ‘‘specially 

designed’’ or modified to be capable of 

enhancing performance by aggregation of 

processors so that the ‘‘APP’’ of the 

aggregation exceeds the limit in 4A003.b.; 

Note 1: 4A003.c applies only to ‘‘electronic 

assemblies’’ and programmable 

interconnections not exceeding the limit in 

4A003.b when shipped as unintegrated 

‘‘electronic assemblies.’’ 

Note 2: 4A003.c does not control 

‘‘electronic assemblies’’ ‘‘specially designed’’ 

for a product or family of products whose 

maximum configuration does not exceed the 

limit of 4A003.b. 

d. to f. [Reserved] 

N.B.: For ‘‘electronic assemblies,’’ modules 

or equipment, performing analog-to-digital 

conversions, see 3A002.h. 


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g. Equipment ‘‘specially designed’’ for 

aggregating the performance of ‘‘digital 

computers’’ by providing external 

interconnections which allow 

communications at unidirectonal data rates 

exceeding 2.0 Gbyte/s per link. 

Note: 4A003.g does not control internal 

interconnection equipment (e.g., backplanes, 

buses) passive interconnection equipment, 

‘‘network access controllers’’ or 

‘‘communication channel controllers’’. 

h. through y. [Reserved] 

z. Commodities specified in 4A003 that 

also meet or exceed the performance 

parameters in 4A090. 

4A004 Computers as follows (see List of 

Items Controlled) and ‘‘specially 

designed’’ related equipment, 

‘‘electronic assemblies’’ and 

‘‘components’’ therefor. 

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 

4A004.z).

NS Column 2. 

RS applies to 

4A004.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) 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: $5000; N/A 4A004.z 

GBS: N/A 

NAC: Yes, for 4A004.z; N/A for all other 

4A004 commodities. 

List of Items Controlled 

Related Controls: (1) See also ECCN 4A090. 

(2) See also Note 4 to ECCN 3A090. 

Related Definitions: N/A 

Items: 

a. ‘Systolic array computers’; 

b. ‘Neural computers’; 

c. ‘Optical computers’. 

Technical Notes: 

1. For the purposes of 4A004.a, ‘systolic 

array computers’ are computers where the 

flow and modification of the data is 

dynamically controllable at the logic gate 

level by the user. 

2. For the purposes of 4A004.b, ‘neural 

computers’ are computational devices 

designed or modified to mimic the behaviour 

of a neuron or a collection of neurons, i.e., 

computational devices which are 

distinguished by their hardware capability to 

modulate the weights and numbers of the 

interconnections of a multiplicity of 

computational components based on 

previous data. 

3. For the purposes of 4A004.c, ‘optical 

computers’ are computers designed or 

modified to use light to represent data and 

whose computational logic elements are 

based on directly coupled optical devices. 

d. through y. [Reserved] 

z. Commodities that are described in 

4A004 and that also meet or exceed the 

performance parameters in 4A090. 

4A005 ‘‘Systems,’’ ‘‘equipment,’’ and 

‘‘components’’ therefor, ‘‘specially 

designed’’ or modified for the 

generation, command and control, or 

delivery of ‘‘intrusion software’’ (see List 

of Items Controlled). 

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 

4A005.z).

NS Column 1. 

RS applies to items 

controlled by 

4A005.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

AT applies to entire 

entry.

AT Column 1. 

Reporting Requirements 

See § 743.1 of the EAR for reporting 

requirements for exports under License 

Exceptions, and Validated End-User 

authorizations. 

List Based License Exceptions (See Part 740 

for a Description of All License Exceptions) 

LVS: N/A 

GBS: N/A 

APP: N/A 

ACE: Yes, except to Country Group E:1 or E:2 

and for 4A005.z. See § 740.22 of the EAR 

for eligibility criteria. 

NAC: Yes, for 4A005.z; N/A for all other 

4A005 commodities. 

Special Conditions for STA 

STA: License Exception STA may not be 

used to ship items specified by ECCN 

4A005. 

List of Items Controlled 

Related Controls: (1) Defense articles 

described in USML Category XI(b), and 

software directly related to a defense 

article, are ‘‘subject to the ITAR’’; see 

§ 120.33(a)(4). (2) See also ECCNs 4A090. 

(3) See also Note 4 to ECCN 3A090. 

Related Definitions: N/A 

Items: 

The list of items controlled is contained in 

the ECCN heading, except for the 

commodities controlled under 4A005.z. 

a. through y. [Reserved] 

z. Commodities that are specified in 4A005 

that also meet or exceed the performance 

parameters in 4A090. 

4A090 Computers as follows (see List of 

Items Controlled) and related 

equipment, ‘‘electronic assemblies,’’ and 

‘‘components’’ therefor. 

License Requirements 

Reason for Control: RS, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

RS applies to entire 

entry.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) 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: N/A 

GBS: N/A 

NAC: Yes, for 4A090, if the item incorporates 

a 3A090.a IC that is not designed or 

marketed for use in datacenters and has a 

‘total processing performance’ of 4800 or 

more, or if the 4A090 item incorporates a 

3A090.b IC, if the item is designed or 

marketed for use in datacenters. 

List of Items Controlled 

Related Controls: (1) For associated 

‘‘software’’ for commodities in this ECCN, 

see 4D090, 5D002.z, and 5D992.z and for 

associated ‘‘technology’’ for commodities 

in this ECCN, see 4E001. (2) Also ECCNs 

4A003.z, 4A004.z, 4A005.z, 5A002.z, 

5A004.z, and 5A992.z. (3) See also Note 4 

to ECCN 3A090. 

Related Definitions: N/A 

Items: 

a. Computers, ‘‘electronic assemblies,’’ and 

‘‘components’’ containing integrated circuits, 

any of which meets or exceeds the limit in 

3A090.a. 

Technical Note: For purposes of 4A090.a, 

computers include ‘‘digital computers,’’ 

‘‘hybrid computers,’’ and analog computers. 

b. [Reserved] 

* * * * * 

4A994 Computers, ‘‘electronic assemblies’’ 

and related equipment, not controlled 

by 4A001 or 4A003, and ‘‘specially 

designed’’ ‘‘parts’’ and ‘‘components’’ 

therefor (see List of Items Controlled). 

License Requirements 

Reason for Control: AT 


lotter on DSK11XQN23PROD with RULES3
73508 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

AT applies to entire 

entry.

AT Column 1. 

List Based License Exceptions (See Part 740 

for a Description of All License Exceptions) 

LVS: N/A 

GBS: N/A 

List of Items Controlled 

Related Controls: (1) For associated 

‘‘software’’ for commodities in this ECCN, 

see 4D994 and for associated ‘‘technology’’ 

for commodities in this ECCN, see 4E992. 

(2) See also ECCNs 4A003.z, 4A004.z, 

4A005.z, 5A002.z, 5A004.z, and 5A992.z. 

Related Definitions: N/A 

Items: 

Note 1: The control status of the ‘‘digital 

computers’’ and related equipment described 

in 4A994 is determined by the control status 

of other equipment or systems provided: 

a. The ‘‘digital computers’’ or related 

equipment are essential for the operation of 

the other equipment or systems; 

b. The ‘‘digital computers’’ or related 

equipment are not a ‘‘principal element’’ of 

the other equipment or systems; and 

N.B. 1: The control status of ‘‘signal 

processing’’ or ‘‘image enhancement’’ 

equipment ‘‘specially designed’’ for other 

equipment with functions limited to those 

required for the other equipment is 

determined by the control status of the other 

equipment even if it exceeds the ‘‘principal 

element’’ criterion. 

N.B. 2: For the control status of ‘‘digital 

computers’’ or related equipment for 

telecommunications equipment, see Category 

5, Part 1 (Telecommunications). 

c. The ‘‘technology’’ for the ‘‘digital 

computers’’ and related equipment is 

determined by 4E. 

a. Electronic computers and related 

equipment, and ‘‘electronic assemblies’’ and 

‘‘specially designed’’ ‘‘parts’’ and 

‘‘components’’ therefor, rated for operation at 

an ambient temperature above 343 K (70 °C); 

b. ‘‘Digital computers’’, including 

equipment of ‘‘signal processing’’ or image 

enhancement’’, having an ‘‘Adjusted Peak 

Performance’’ (‘‘APP’’) equal to or greater 

than 0.0128 Weighted TeraFLOPS (WT); 

c. ‘‘Electronic assemblies’’ that are 

‘‘specially designed’’ or modified to enhance 

performance by aggregation of processors, as 

follows: 

c.1. Designed to be capable of aggregation 

in configurations of 16 or more processors; 

c.2. [Reserved]; 

Note 1: 4A994.c applies only to ‘‘electronic 

assemblies’’ and programmable 

interconnections with a ‘‘APP’’ not exceeding 

the limits in 4A994.b, when shipped as 

unintegrated ‘‘electronic assemblies’’. It does 

not apply to ‘‘electronic assemblies’’ 

inherently limited by nature of their design 

for use as related equipment controlled by 

4A994.k. 

Note 2: 4A994.c does not control any 

‘‘electronic assembly’’ ‘‘specially designed’’ 

for a product or family of products whose 

maximum configuration does not exceed the 

limits of 4A994.b. 

d. [Reserved]; 

e. [Reserved]; 

f. Equipment for ‘‘signal processing’’ or 

‘‘image enhancement’’ having an ‘‘Adjusted 

Peak Performance’’ (‘‘APP’’) equal to or 

greater than 0.0128 Weighted TeraFLOPS 

WT; 

g. [Reserved]; 

h. [Reserved]; 

i. Equipment containing ‘‘terminal 

interface equipment’’ exceeding the limits in 

5A991; 

j. Equipment ‘‘specially designed’’ to 

provide external interconnection of ‘‘digital 

computers’’ or associated equipment that 

allows communications at data rates 

exceeding 80 Mbyte/s. 

Note: 4A994.j does not control internal 

interconnection equipment (e.g., backplanes, 

buses) passive interconnection equipment, 

‘‘network access controllers’’ or 

‘‘communication channel controllers’’. 

k. ‘‘Hybrid computers’’ and ‘‘electronic 

assemblies’’ and ‘‘specially designed’’ 

‘‘parts’’ and ‘‘components’’ therefor 

containing analog-to-digital converters 

having all of the following characteristics: 

k.1. 32 channels or more; and 

k.2. A resolution of 14 bit (plus sign bit) 

or more with a conversion rate of 200,000 

conversions/s or more. 

l. Computers, ‘‘electronic assemblies,’’ and 

‘‘components,’’ n.e.s., containing integrated 

circuits, any of which meets or exceeds the 

limit of ECCN 3A991.p. 

Technical Note: For the purposes of 

4A994.l, computers include ‘‘digital 

computers,’’ ‘‘hybrid computers,’’ and analog 

computers. 

* * * * * 

4D001 ‘‘Software’’ as follows (see List of 

Items Controlled). 

License Requirements 

Reason for Control: NS, RS, CC, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry, except 

4A003.z, 4A004.z, 

and 4A005.z.

NS Column 1. 

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

4A003.z, 4A004.z, 

and 4A005.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

CC applies to ‘‘software’’ for computerized finger-print 

equipment controlled by 4A003 for 

CC reasons.

CC Column 1. 

AT applies to entire 

entry.

AT Column 1. 

Reporting Requirements 

See § 743.1 of the EAR for reporting 

requirements for exports under License 

Exceptions, and Validated End-User 

authorizations. 

List Based License Exceptions (See Part 740 

for a Description of All License Exceptions) 

TSR: Yes, except for ‘‘software’’ for the 

‘‘development’’ or ‘‘production’’ of the 

following: 

(1) Commodities with an ‘‘Adjusted Peak 

Performance’’ (‘‘APP’’) exceeding 29 WT; 

or 

(2) Commodities controlled by 4A003.z, 

4A004.z, 4A005 or ‘‘software’’ controlled 

by 4D004. 

APP: Yes to specific countries (see § 740.7 of 

the EAR for eligibility criteria), except 

‘‘software’’ for commodities controlled by 

4A003.z, 4A004.z, and 4A005.z. 

ACE: (1) Yes for 4D001.a (for the 

‘‘development’’, ‘‘production’’ or ‘‘use’’ of 

equipment or ‘‘software’’ specified in 

ECCN 4A005 or 4D004), except to Country 

Group E:1 or E:2. See § 740.22 of the EAR 

for eligibility criteria. (2) No for ‘‘software’’ 

for commodities controlled by 4A003.z, 

4A004.z, and 4A005.z 

Special Conditions for STA 

STA: License Exception STA may not be 

used to ship or transmit ‘‘software’’ 

‘‘specially designed’’ or modified for the 

‘‘development’’ or ‘‘production’’ of 

equipment specified by ECCN 4A001.a.2 or 

for the ‘‘development’’ or ‘‘production’’ of 

‘‘digital computers’’ having an ‘Adjusted 

Peak Performance’ (‘APP’) exceeding 29 

Weighted TeraFLOPS (WT) to any of the 

destinations listed in Country Group A:6 

(See Supplement No.1 to part 740 of the 

EAR); and may not be used to ship or 

transmit ‘‘software’’ specified in 4D001.a 

‘‘specially designed’’ for the 

‘‘development’’ or ‘‘production’’ of 

equipment specified by ECCN 4A003.z, 

4A004.z, or 4A005 to any of the 

destinations listed in Country Group A:5 or 

A:6. 

List of Items Controlled 

Related Controls: N/A 

Related Definitions: N/A 

Items: 

a. ‘‘Software’’ ‘‘specially designed’’ or 

modified for the ‘‘development’’ or 

‘‘production’’, of equipment or ‘‘software’’ 

controlled by 4A001, 4A003, 4A004, 4A005 

or 4D (except 4D090, 4D980, 4D993 or 

4D994). 

b. ‘‘Software’’, other than that controlled by 

4D001.a, ‘‘specially designed’’ or modified 

for the ‘‘development’’ or ‘‘production’’ of 

equipment as follows: 

b.1. ‘‘Digital computers’’ having an 

‘‘Adjusted Peak Performance’’ (‘‘APP’’) 

exceeding 24 Weighted TeraFLOPS (WT); 

b.2. ‘‘Electronic assemblies’’ ‘‘specially 

designed’’ or modified for enhancing 

performance by aggregation of processors so 

that the ‘‘APP’’ of the aggregation exceeds the 

limit in 4D001.b.1. 

* * * * * 

4E001 ‘‘Technology’’ as follows (see List of 

Items Controlled). 


lotter on DSK11XQN23PROD with RULES3
Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 73509 

License Requirements 

Reason for Control: NS, MT, RS, CC, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry, except for 

technology for 

4A003.z, 4A004.z, 

4A005.z, 4A090 or 

‘‘software’’ specified by 4D001 (for 

4A003.z, 4A004.z 

or 4A005.z), 4D090.

NS Column 1. 

MT applies to ‘‘technology’’ for items 

controlled by 

4A001.a and 

4A101 for MT reasons.

MT Column 1. 

RS applies to ‘‘technology’’ for commodities controlled 

by 4A003.z, 

4A004.z, 4A005.z, 

4A090 or ‘‘software’’ specified by 

4D001 (for 

4A003.z, 4A004.z, 

and 4A005.z), 

4D090.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

CC applies to ‘‘software’’ for computerized finger-print 

equipment controlled by 4A003 

(except 4A003.z) 

for CC reasons.

CC Column 1. 

AT applies to entire 

entry.

AT Column 1. 

Reporting Requirements 

See § 743.1 of the EAR for reporting 

requirements for exports under License 

Exceptions, and Validated End-User 

authorizations. 

List Based License Exceptions (See Part 740 

for Description of All License Exceptions) 

TSR: Yes, except for the following: 

(1) ‘‘Technology’’ for the ‘‘development’’ or 

‘‘production’’ of commodities with an 

‘‘Adjusted Peak Performance’’ (‘‘APP’’) 

exceeding 70 WT or for the ‘‘development’’ 

or ‘‘production’’ of commodities controlled 

by 4A005 or ‘‘software’’ controlled by 

4D004; 

(2) ‘‘Technology’’ for the ‘‘development’’ of 

‘‘intrusion software’’; or 

(3) ‘‘Technology’’ for the ‘‘development’’ or 

‘‘production’’ of commodities controlled by 

4A003.z, 4A004.z, 4A005.z, 4A090 or 

‘‘software’’ specified by 4D001 (for 

4A003.z, 4A004.z, and 4A005.z), 4D090 

when destined to destinations in Country 

Group D:1, D:4, or D:5 of supplement no. 

1 to part 740 of the EAR. 

APP: Yes to specific countries (see § 740.7 of 

the EAR for eligibility criteria). No, for 

‘‘technology’’ for the ‘‘development’’ or 

‘‘production’’ of commodities controlled by 

4A003.z, or ‘‘software’’ specified by 4D001 

(for 4A003.z) when destined to 

destinations in Country Group D:1, D:4, or 

D:5 of supplement no. 1 to part 740 of the 

EAR. 

ACE: Yes for 4E001.a (for the ‘‘development’’, 

‘‘production’’ or ‘‘use’’ of equipment or 

‘‘software’’ specified in ECCN 4A005 

(except 4A005.z to destinations in Country 

Group D:1, D:4, or D:5) or 4D004) and for 

4E001.c, except to Country Group E:1 or 

E:2. See § 740.22 of the EAR for eligibility 

criteria. 

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 

any of the following equipment or 

‘‘software’’: a. Equipment specified by 

ECCN 4A001.a.2; b. ‘‘Digital computers’’ 

having an ‘Adjusted Peak Performance’ 

(‘APP’) exceeding 70 Weighted TeraFLOPS 

(WT); or c. ‘‘software’’ specified in the 

License Exception STA paragraph found in 

the License Exception section of ECCN 

4D001 to any of the destinations listed in 

Country Group A:6 (See Supplement No. 1 

to part 740 of the EAR); and may not be 

used to ship or transmit ‘‘technology’’ 

specified in 4E001.a (for the 

‘‘development’’, ‘‘production’’ or ‘‘use’’ of 

equipment or ‘‘software’’ specified in 

ECCN 4A003.z, 4A004.z, 4A005, 4A090, or 

‘‘software’’ specified by 4D001 (for 

4A003.z, 4A004.z, and 4A005.z), 4D004, or 

4D090); and 4E001.c to any of the 

destinations listed in Country Group A:5 or 

A:6. 

List of Items Controlled 

Related Controls: N/A 

Related Definitions: N/A 

Items: 

a. ‘‘Technology’’ according to the General 

Technology Note, for the ‘‘development’’, 

‘‘production’’, or ‘‘use’’ of equipment or 

‘‘software’’ controlled by 4A (except 4A980 

or 4A994 and ‘‘use’’ of equipment controlled 

under 4A090 or ‘‘software’’ controlled under 

4D001 (for 4A090)) or 4D (except 4D980, 

4D993, 4D994 and ‘‘use’’ of software 

controlled under 4D090). 

b. ‘‘Technology’’ according to the General 

Technology Note, other than that controlled 

by 4E001.a, for the ‘‘development’’ or 

‘‘production’’ of equipment as follows: 

b.1. ‘‘Digital computers’’ having an 

‘‘Adjusted Peak Performance’’ (‘‘APP’’) 

exceeding 24 Weighted TeraFLOPS (WT); 

b.2. ‘‘Electronic assemblies’’ ‘‘specially 

designed’’ or modified for enhancing 

performance by aggregation of processors so 

that the ‘‘APP’’ of the aggregation exceeds the 

limit in 4E001.b.1. 

c. ‘‘Technology’’ for the ‘‘development’’ of 

‘‘intrusion software.’’ 

Note 1: 4E001.a and 4E001.c do not apply 

to ‘‘vulnerability disclosure’’ or ‘‘cyber 

incident response’’. 

Note 2: Note 1 does not diminish national 

authorities’ rights to ascertain compliance 

with 4E001.a and 4E001.c. 

* * * * * 

TECHNICAL NOTE ON ‘‘ADJUSTED PEAK 

PERFORMANCE’’ (‘‘APP’’) 

* * * * * 

Technical Notes 

* * * * * 

2. Processor combinations share memory 

when any processor is capable of accessing 

any memory location in the system through 

the hardware transmission of cache lines or 

memory words, without the involvement of 

any software mechanism, which may be 

achieved using ‘‘electronic assemblies’’ 

specified in 4A003.c, z.1, or z.3. 

* * * * * 

CATEGORY 5—TELECOMMUNICATIONS 

AND ‘‘INFORMATION SECURITY’’ 

Part 1—TELECOMMUNICATIONS 

* * * * * 

Notes: 

* * * * * 

3. Commodities in ECCN 5A001.j, and 

related ‘‘software’’ specified in 5D001.c (for 

5A001.j) that are also controlled in ECCNs 

5A002.a, 5A002.z.1, 5A002.z.6, 5A004.a, 

5A004.b, 5A004.z, 5D002.c.1, 5D002.c.3, 

5D002.z.6, 5D002.z.8, or z 5D002.z.9, remain 

controlled in Category 5—Part 2 by those 

entries. Category 5—Part 2 does not apply to 

elements of source code that implement 

functionality controlled by these Category 5 

Part 1 ECCNs, or to any item subject to the 

EAR where Encryption Item (EI) functionality 

is absent, removed or otherwise non-existent. 

* * * * * 

5E001 ‘‘Technology’’ as follows (see List of 

Items Controlled). 

License Requirements 

Reason for Control: NS, SL, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry.

NS Column 1. 

SL applies to ‘‘technology’’ for the 

‘‘development’’ or 

‘‘production’’ of 

equipment, functions or features 

controlled by 

5A001.f.1, or for 

the ‘‘development’’ 

or ‘‘production’’ of 

‘‘software’’ controlled by ECCN 

5D001.a (for 

5A001.f.1).

A license is required 

for all destinations, 

as specified in 

§ 742.13 of the 

EAR. Accordingly, a 

column specific to 

this control does 

not appear on the 

Commerce Country 

Chart (Supplement 

No. 1 to Part 738 of 

the EAR). 

Note to SL paragraph: 

This licensing requirement does not 

supersede, implement, construe or 

limit the scope of 

any criminal statute, 

including, but not 

limited to, the Omnibus Safe Streets 

Act of 1968, as 

amended. 

AT applies to entire 

entry.

AT Column 1. 


lotter on DSK11XQN23PROD with RULES3
73510 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 

Reporting Requirements 

See § 743.1 of the EAR for reporting 

requirements for exports under License 

Exceptions and Validated End-User 

authorizations. 

List Based License Exceptions (See Part 740 

for Description of All License Exceptions) 

TSR: Yes, except for exports or reexports to 

destinations outside of those countries 

listed in Country Group A:5 (See 

Supplement No. 1 to part 740 of the EAR) 

of ‘‘technology’’ controlled by 5E001 for 

the ‘‘development’’ or ‘‘production’’ of the 

following: 

(1) Items controlled by 5A001.b.5, .h or .j; 

(2) ‘‘Software’’ controlled by 5D001.a that is 

‘‘specially designed’’ for the 

‘‘development’’ or ‘‘production’’ of 

equipment, functions or features controlled 

by 5A001.b.5, 5A001.h, 5A001.j, or 

5B001.a (for 5A001.j); or 

(3) ‘‘Software’’ controlled by 5D001.c (for 

5A001.j or 5B001.a (for 5A001.j)). 

ACE: Yes, for 5E001.a (for 5A001.j, 5B001.a 

(for 5A001.j), 5D001.a (for 5A001.j), or 

5D001.c (for 5A001.j or 5B001.a (for 

5A001.j))) except to Country Group E:1 or 

E:2. See § 740.22 of the EAR for eligibility 

criteria. 

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, functions or features specified 

by 5A001.b.3, .b.5 or .h; or for ‘‘software’’ 

in 5D001.a or .c, that is specified in the 

STA paragraph in the License Exception 

section of ECCN 5D001 to any of the 

destinations listed in Country Group A:6 

(See Supplement No.1 to part 740 of the 

EAR); or ‘‘technology’’ specified in 5E001.a 

according to the General Technology Note 

for the ‘‘development’’ or ‘‘production’’ of 

equipment, functions or features specified 

by 5A001.j, 5B001.a (for 5A001.j), 5D001.a 

(for 5A001.j), 5D001.c (for 5A001.j or 

5B001.a) to any destinations listed in 

Country Group A:5 or A:6. 

List of Items Controlled 

Related Controls: (1) See also 5E101, 5E980 

and 5E991. (2) ‘‘Technology’’ for 

‘‘development’’ or ‘‘production’’ of 

‘‘Monolithic Microwave Integrated Circuit’’ 

(‘‘MMIC’’) amplifiers that meet the control 

criteria given at 3A001.b.2 or .z (for 

commodities also described in 3A001.b.2) 

is controlled in 3E001; 5E001.d refers only 

to that additional ‘‘technology’’ ‘‘required’’ 

for telecommunications. 

Related Definitions: N/A 

Items: 

a. ‘‘Technology’’ according to the General 

Technology Note for the ‘‘development’’, 

‘‘production’’ or ‘‘use’’ (excluding operation) 

of equipment, functions or features, 

controlled by 5A001 or ‘‘software’’ controlled 

by 5D001.a or 5D001.e. 

b. Specific ‘‘technology’’, as follows: 

b.1. ‘‘Technology’’ ‘‘required’’ for the 

‘‘development’’ or ‘‘production’’ of 

telecommunications equipment ‘‘specially 

designed’’ to be used on board satellites; 

b.2. ‘‘Technology’’ for the ‘‘development’’ 

or ‘‘use’’ of ‘‘laser’’ communication 

techniques with the capability of 

automatically acquiring and tracking signals 

and maintaining communications through 

exoatmosphere or sub-surface (water) media; 

b.3. ‘‘Technology’’ for the ‘‘development’’ 

of digital cellular radio base station receiving 

equipment whose reception capabilities that 

allow multi-band, multi-channel, multimode, multi-coding algorithm or multiprotocol operation can be modified by 

changes in ‘‘software’’; 

b.4. ‘‘Technology’’ for the ‘‘development’’ 

of ‘‘spread spectrum’’ techniques, including 

‘‘frequency hopping’’ techniques. 

Note: 5E001.b.4 does not apply to 

‘‘technology’’ for the ‘‘development’’ of any of 

the following: 

a. Civil cellular radio-communications 

systems; or 

b. Fixed or mobile satellite Earth stations 

for commercial civil telecommunications. 

c. ‘‘Technology’’ according the General 

Technology Note for the ‘‘development’’ or 

‘‘production’’ of any of the following: 

c.1. [Reserved] 

c.2. Equipment employing a ‘‘laser’’ and 

having any of the following: 

c.2.a. A transmission wavelength 

exceeding 1,750 nm; 

c.2.b. [Reserved] 

c.2.c. [Reserved] 

c.2.d. Employing wavelength division 

multiplexing techniques of optical carriers at 

less than 100 GHz spacing; or 

c.2.e. Employing analog techniques and 

having a bandwidth exceeding 2.5 GHz; 

Note: 5E001.c.2.e does not control 

‘‘technology’’ for commercial TV systems. 

N.B.: For ‘‘technology’’ for the 

‘‘development’’ or ‘‘production’’ of nontelecommunications equipment employing a 

‘‘laser’’, see Product Group E of Category 6, 

e.g., 6E00x 

c.3. Equipment employing ‘‘optical 

switching’’ and having a switching time less 

than 1 ms; or 

c.4. Radio equipment having any of the 

following: 

c.4.a. Quadrature-Amplitude-Modulation 

(QAM) techniques above level 1,024; or 

c.4.b. Operating at input or output 

frequencies exceeding 31.8 GHz; or 

Note: 5E001.c.4.b does not control 

‘‘technology’’ for equipment designed or 

modified for operation in any frequency band 

which is ‘‘allocated by the ITU’’ for radiocommunications services, but not for radiodetermination. 

c.4.c. Operating in the 1.5 MHz to 87.5 

MHz band and incorporating adaptive 

techniques providing more than 15 dB 

suppression of an interfering signal; or 

c.5. [Reserved] 

c.6. Mobile equipment having all of the 

following: 

c.6.a. Operating at an optical wavelength 

greater than or equal to 200nm and less than 

or equal to 400nm; and 

c.6.b. Operating as a ‘‘local area network’’; 

d. ‘‘Technology’’ according to the General 

Technology Note for the ‘‘development’’ or 

‘‘production’’ of ‘‘Monolithic Microwave 

Integrated Circuit’’ (‘‘MMIC’’) amplifiers 

‘‘specially designed’’ for telecommunications 

and that are any of the following: 

Technical Note: For purposes of 5E001.d, 

the parameter peak saturated power output 

may also be referred to on product data 

sheets as output power, saturated power 

output, maximum power output, peak power 

output, or peak envelope power output. 

d.1. Rated for operation at frequencies 

exceeding 2.7 GHz up to and including 6.8 

GHz with a ‘‘fractional bandwidth’’ greater 

than 15%, and having any of the following: 

d.1.a. A peak saturated power output 

greater than 75 W (48.75 dBm) at any 

frequency exceeding 2.7 GHz up to and 

including 2.9 GHz; 

d.1.b. A peak saturated power output 

greater than 55 W (47.4 dBm) at any 

frequency exceeding 2.9 GHz up to and 

including 3.2 GHz; 

d.1.c. A peak saturated power output 

greater than 40 W (46 dBm) at any frequency 

exceeding 3.2 GHz up to and including 3.7 

GHz; or 

d.1.d. A peak saturated power output 

greater than 20 W (43 dBm) at any frequency 

exceeding 3.7 GHz up to and including 6.8 

GHz; 

d.2. Rated for operation at frequencies 

exceeding 6.8 GHz up to and including 16 

GHz with a ‘‘fractional bandwidth’’ greater 

than 10%, and having any of the following: 

d.2.a. A peak saturated power output 

greater than 10W (40 dBm) at any frequency 

exceeding 6.8 GHz up to and including 8.5 

GHz; or 

d.2.b. A peak saturated power output 

greater than 5W (37 dBm) at any frequency 

exceeding 8.5 GHz up to and including 16 

GHz; 

d.3. Rated for operation with a peak 

saturated power output greater than 3 W 

(34.77 dBm) at any frequency exceeding 16 

GHz up to and including 31.8 GHz, and with 

a ‘‘fractional bandwidth’’ of greater than 

10%; 

d.4. Rated for operation with a peak 

saturated power output greater than 0.1 nW 

(¥70 dBm) at any frequency exceeding 31.8 

GHz up to and including 37 GHz; 

d.5. Rated for operation with a peak 

saturated power output greater than 1 W (30 

dBm) at any frequency exceeding 37 GHz up 

to and including 43.5 GHz, and with a 

‘‘fractional bandwidth’’ of greater than 10%; 

d.6. Rated for operation with a peak 

saturated power output greater than 31.62 

mW (15 dBm) at any frequency exceeding 

43.5 GHz up to and including 75 GHz, and 

with a ‘‘fractional bandwidth’’ of greater than 

10%; 

d.7. Rated for operation with a peak 

saturated power output greater than 10 mW 

(10 dBm) at any frequency exceeding 75 GHz 

up to and including 90 GHz, and with a 

‘‘fractional bandwidth’’ of greater than 5%; or 

d.8. Rated for operation with a peak 

saturated power output greater than 0.1 nW 

(¥70 dBm) at any frequency exceeding 90 

GHz; 

e. ‘‘Technology’’ according to the General 

Technology Note for the ‘‘development’’ or 

‘‘production’’ of electronic devices and 

circuits, ‘‘specially designed’’ for 

telecommunications and containing 

‘‘components’’ manufactured from 

‘‘superconductive’’ materials, ‘‘specially 

designed’’ for operation at temperatures 


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below the ‘‘critical temperature’’ of at least 

one of the ‘‘superconductive’’ constituents 

and having any of the following: 

e.1. Current switching for digital circuits 

using ‘‘superconductive’’ gates with a 

product of delay time per gate (in seconds) 

and power dissipation per gate (in watts) of 

less than 10¥14 J; or 

e.2. Frequency selection at all frequencies 

using resonant circuits with Q-values 

exceeding 10,000. 

* * * * * 

Category 5—Telecommunications and 

‘‘Information Security’’ 

Part 2—‘‘Information Security’’ 

* * * * * 

Note 3: Cryptography Note: ECCNs 5A002, 

5D002.a.1, .b, .c.1, z.1, z.5, and z.6, do not 

control items as follows: 

* * * * * 

N.B. to Note 3 (Cryptography Note): 

You must submit a classification request or 

self-classification report to BIS for certain 

mass market encryption commodities and 

software eligible for the Cryptography Note 

employing a key length greater than 64 bits 

for the symmetric algorithm (or, for 

commodities and software not implementing 

any symmetric algorithms, employing a key 

length greater than 768 bits for asymmetric 

algorithms described by Technical note 2.b to 

5A002.a or greater than 128 bits for elliptic 

curve algorithms, or any asymmetric 

algorithm described by Technical Note 2.c to 

5A002.a) in accordance with the 

requirements of § 740.17(b) of the EAR in 

order to be released from the ‘‘EI’’ and ‘‘NS’’ 

controls of ECCN 5A002 or 5D002. For mass 

market commodities and software that do not 

require a self-classification report pursuant 

to § 740.17(b) and (e)(3) of the EAR, such 

items are also released from ‘‘EI’’ and ‘‘NS’’ 

controls and controlled under ECCN 5A992 

or 5D992. 

* * * * * 

5A002 ‘‘Information security’’ systems, 

equipment and ‘‘components,’’ as follows 

(see List of Items Controlled). 

License Requirements 

Reason for Control: NS, RS, AT, EI 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry (except 

5A002.z).

NS Column 1. 

RS applies to items 

controlled by 

5A002.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

AT applies to entire 

entry.

AT Column 1. 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

EI applies to entire 

entry.

Refer to § 742.15 of 

the EAR. 

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 Description of All License Exceptions) 

LVS: Yes: $500 for ‘‘components,’’ except for 

5A002.z. 

N/A for systems and equipment. 

GBS: N/A 

ENC: Yes for certain EI controlled 

commodities, see § 740.17 of the EAR for 

eligibility, except for 5A002.z. 

NAC: Yes, for 5A002.z; N/A for all other 

5A002 commodities. 

List of Items Controlled 

Related Controls: (1) ECCN 5A002.a 

controls ‘‘components’’ providing the means 

or functions necessary for ‘‘information 

security.’’ All such ‘‘components’’ are 

presumptively ‘‘specially designed’’ and 

controlled by 5A002.a. (2) See USML 

Categories XI (including XI(b)) and XIII(b) 

(including XIII(b)(2)) for controls on systems, 

equipment, and components described in 

5A002.d or .e that are subject to the ITAR. 

(3) For ‘‘satellite navigation system’’ 

receiving equipment containing or employing 

decryption see 7A005, and for related 

decryption ‘‘software’’ and ‘‘technology’’ see 

7D005 and 7E001. (4) Noting that items may 

be controlled elsewhere on the CCL, 

examples of items not controlled by ECCN 

5A002.a.4 include the following: (a) An 

automobile where the only ‘cryptography for 

data confidentiality’ having a ‘described 

security algorithm’ is performed by a 

Category 5—Part 2 Note 3 eligible mobile 

telephone that is built into the car. In this 

case, secure phone communications support 

a non-primary function of the automobile but 

the mobile telephone (equipment), as a 

standalone item, is not controlled by ECCN 

5A002 because it is excluded by the 

Cryptography Note (Note 3) (See ECCN 

5A992.c). (b) An exercise bike with an 

embedded Category 5—Part 2 Note 3 eligible 

web browser, where the only controlled 

cryptography is performed by the web 

browser. In this case, secure web browsing 

supports a non-primary function of the 

exercise bike but the web browser 

(‘‘software’’), as a standalone item, is not 

controlled by ECCN 5D002 because it is 

excluded by the Cryptography Note (Note 3) 

(See ECCN 5D992.c). (5) After classification 

or self-classification in accordance with 

§ 740.17(b) of the EAR, mass market 

encryption commodities that meet eligibility 

requirements are released from ‘‘EI’’ and 

‘‘NS’’ controls. These commodities are 

designated 5A992.c. (6) See also ECCNs 

3A090 (including Note 4 to ECCN 3A090), 

and 4A090. 

Related Definitions: N/A 

Items: 

a. Designed or modified to use 

‘cryptography for data confidentiality’ having 

a ‘described security algorithm’, where that 

cryptographic capability is usable, has been 

activated, or can be activated by any means 

other than secure ‘‘cryptographic activation’’, 

as follows: 

a.1. Items having ‘‘information security’’ as 

a primary function; 

a.2. Digital communication or networking 

systems, equipment or components, not 

specified in paragraph 5A002.a.1; 

a.3. Computers, other items having 

information storage or processing as a 

primary function, and components therefor, 

not specified in paragraphs 5A002.a.1 or .a.2; 

N.B.: For operating systems see also 

5D002.a.1 and .c.1. 

a.4. Items, not specified in paragraphs 

5A002.a.1 to a.3, where the ‘cryptography for 

data confidentiality’ having a ‘described 

security algorithm’ meets all of the following: 

a.4.a. It supports a non-primary function of 

the item; and 

a.4.b. It is performed by incorporated 

equipment or ‘‘software’’ that would, as a 

standalone item, be specified by ECCNs 

5A002, 5A003, 5A004, 5B002 or 5D002. 

N.B. to paragraph a.4: See Related 

Control Paragraph (4) of this ECCN 5A002 for 

examples of items not controlled by 

5A002.a.4. 

Technical Notes: 

1. For the purposes of 5A002.a, 

‘cryptography for data confidentiality’ means 

‘‘cryptography’’ that employs digital 

techniques and performs any cryptographic 

function other than any of the following: 

1.a. ‘‘Authentication;’’ 

1.b. Digital signature; 

1.c. Data integrity; 

1.d. Non-repudiation; 

1.e. Digital rights management, including 

the execution of copy-protected ‘‘software;’’ 

1.f. Encryption or decryption in support of 

entertainment, mass commercial broadcasts 

or medical records management; or 

1.g. Key management in support of any 

function described in paragraphs 1.a to 1.f of 

this Technical Note paragraph 1. 

2. For the purposes of 5A002.a, ‘described 

security algorithm’ means any of the 

following: 

2.a. A ‘‘symmetric algorithm’’ employing a 

key length in excess of 56 bits, not including 

parity bits; 

2.b. An ‘‘asymmetric algorithm’’ where the 

security of the algorithm is based on any of 

the following: 

2.b.1. Factorization of integers in excess of 

512 bits (e.g., RSA); 

2.b.2. Computation of discrete logarithms 

in a multiplicative group of a finite field of 

size greater than 512 bits (e.g., Diffie-Hellman 

over Z/pZ); or 

2.b.3. Discrete logarithms in a group other 

than mentioned in paragraph 2.b.2 of this 

Technical Note in excess of 112 bits (e.g., 

Diffie-Hellman over an elliptic curve); or 

2.c. An ‘‘asymmetric algorithm’’ where the 

security of the algorithm is based on any of 

the following: 


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2.c.1. Shortest vector or closest vector 

problems associated with lattices (e.g., 

NewHope, Frodo, NTRUEncrypt, Kyber, 

Titanium); 

2.c.2. Finding isogenies between 

Supersingular elliptic curves (e.g., 

Supersingular Isogeny Key Encapsulation); or 

2.c.3. Decoding random codes (e.g., 

McEliece, Niederreiter). 

Technical Note: An algorithm described 

by Technical Note 2.c. may be referred to as 

being post-quantum, quantum-safe or 

quantum-resistant. 

Note 1: Details of items must be accessible 

and provided upon request, in order to 

establish any of the following: 

a. Whether the item meets the criteria of 

5A002.a.1 to a.4; or 

b. Whether the cryptographic capability for 

data confidentiality specified by 5A002.a is 

usable without ‘‘cryptographic activation.’’ 

Note 2: 5A002.a does not control any of 

the following items, or specially designed 

‘‘information security’’ components therefor: 

a. Smart cards and smart card ‘readers/ 

writers’ as follows: 

a.1. A smart card or an electronically 

readable personal document (e.g., token coin, 

e-passport) that meets any of the following: 

a.1.a. The cryptographic capability meets 

all of the following: 

a.1.a.1. It is restricted for use in any of the 

following: 

a.1.a.1.a. Equipment or systems, not 

described by 5A002.a.1 to a.4; 

a.1.a.1.b. Equipment or systems, not using 

‘cryptography for data confidentiality’ having 

a ‘described security algorithm’; or 

a.1.a.1.c. Equipment or systems, excluded 

from 5A002.a by entries b. to f. of this Note; 

and 

a.1.a.2. It cannot be reprogrammed for any 

other use; or 

a.1.b. Having all of the following: 

a.1.b.1. It is specially designed and limited 

to allow protection of ‘personal data’ stored 

within; 

a.1.b.2. Has been, or can only be, 

personalized for public or commercial 

transactions or individual identification; and 

a.1.b.3. Where the cryptographic capability 

is not user-accessible; 

Technical Note to paragraph a.1.b.1 of 

Note 2: For the purposes of 5A002.a Note 

2.a.1.b.1,‘personal data’ includes any data 

specific to a particular person or entity, such 

as the amount of money stored and data 

necessary for ‘‘authentication.’’ 

a.2. ‘Readers/writers’ specially designed or 

modified, and limited, for items specified by 

paragraph a.1 of this Note; 

Technical Note to paragraph a.2 of 

Note 2: ‘For the purposes of 5A002.a Note 

2.a.2, ‘readers/writers’ include equipment 

that communicates with smart cards or 

electronically readable documents through a 

network. 

b. Cryptographic equipment specially 

designed and limited for banking use or 

‘money transactions’; 

Technical Note to paragraph b. of Note 

2: For the purposes of 5A002.a Note 

2.b,‘money transactions’ in 5A002 Note 2 

paragraph b. includes the collection and 

settlement of fares or credit functions. 

c. Portable or mobile radiotelephones for 

civil use (e.g., for use with commercial civil 

cellular radio communication systems) that 

are not capable of transmitting encrypted 

data directly to another radiotelephone or 

equipment (other than Radio Access Network 

(RAN) equipment), nor of passing encrypted 

data through RAN equipment (e.g., Radio 

Network Controller (RNC) or Base Station 

Controller (BSC)); 

d. Cordless telephone equipment not 

capable of end-to-end encryption where the 

maximum effective range of unboosted 

cordless operation (i.e., a single, unrelayed 

hop between terminal and home base station) 

is less than 400 meters according to the 

manufacturer’s specifications; 

e. Portable or mobile radiotelephones and 

similar client wireless devices for civil use, 

that implement only published or 

commercial cryptographic standards (except 

for anti-piracy functions, which may be nonpublished) and also meet the provisions of 

paragraphs a.2 to a.4 of the Cryptography 

Note (Note 3 in Category 5—Part 2), that have 

been customized for a specific civil industry 

application with features that do not affect 

the cryptographic functionality of these 

original non-customized devices; 

f. Items, where the ‘‘information security’’ 

functionality is limited to wireless ‘‘personal 

area network’’ functionality implementing 

only published or commercial cryptographic 

standards; 

g. Mobile telecommunications Radio 

Access Network (RAN) equipment designed 

for civil use, which also meet the provisions 

of paragraphs a.2 to a.4 of the Cryptography 

Note (Note 3 in Category 5—Part 2), having 

an RF output power limited to 0.1W (20 dBm) 

or less, and supporting 16 or fewer 

concurrent users; 

h. Routers, switches, gateways or relays, 

where the ‘‘information security’’ 

functionality is limited to the tasks of 

‘‘Operations, Administration or 

Maintenance’’ (‘‘OAM’’) implementing only 

published or commercial cryptographic 

standards; 

i. General purpose computing equipment 

or servers, where the ‘‘information security’’ 

functionality meets all of the following: 

i.1. Uses only published or commercial 

cryptographic standards; and 

i.2. Is any of the following: 

i.2.a. Integral to a CPU that meets the 

provisions of Note 3 in Category 5—Part 2; 

i.2.b. Integral to an operating system that 

is not specified by 5D002; or 

i.2.c. Limited to ‘‘OAM’’ of the equipment; 

or 

j. Items specially designed for a ‘connected 

civil industry application’, meeting all of the 

following: 

j.1. Being any of the following: 

j.1.a. A network-capable endpoint device 

meeting any of the following: 

j.1.a.1. The ‘‘information security’’ 

functionality is limited to securing ’nonarbitrary data’ or the tasks of ‘‘Operations, 

Administration or Maintenance’’ (‘‘OAM’’); 

or 

j.1.a.2. The device is limited to a specific 

’connected civil industry application’; or 

j.1.b. Networking equipment meeting all of 

the following: 

j.1.b.1. Being specially designed to 

communicate with the devices specified by 

paragraph j.1.a. above; and 

j.1.b.2. The ‘‘information security’’ 

functionality is limited to supporting the 

‘connected civil industry application’ of 

devices specified by paragraph j.1.a. above, 

or the tasks of ‘‘OAM’’ of this networking 

equipment or of other items specified by 

paragraph j. of this Note; and 

j.2. Where the ‘‘information security’’ 

functionality implements only published or 

commercial cryptographic standards, and the 

cryptographic functionality cannot easily be 

changed by the user. 

Technical Notes: 

1. For the purposes of 5A002.a Note 

2.j,‘connected civil industry application’ 

means a network-connected consumer or 

civil industry application other than 

‘‘information security’’, digital 

communication, general purpose networking 

or computing. 

2. For the purposes of 5A002.a Note 

2.j.1.a.1,‘non-arbitrary data’ means sensor or 

metering data directly related to the stability, 

performance or physical measurement of a 

system (e.g., temperature, pressure, flow rate, 

mass, volume, voltage, physical location, 

etc.), that cannot be changed by the user of 

the device. 

b. Being a ‘cryptographic activation token’; 

Technical Note: For the purposes of 

5A002.b, a ‘cryptographic activation token’ is 

an item designed or modified for any of the 

following: 

1. Converting, by means of ‘‘cryptographic 

activation’’, an item not specified by Category 

5—Part 2 into an item specified by 5A002.a 

or 5D002.c.1, and not released by the 

Cryptography Note (Note 3 in Category 5— 

Part 2); or 

2. Enabling by means of ‘‘cryptographic 

activation’’, additional functionality 

specified by 5A002.a of an item already 

specified by Category 5—Part 2; 

c. Designed or modified to use or perform 

‘‘quantum cryptography’’; 

Technical Note: For the purposes of 

5A002.c,’’quantum cryptography’’ is also 

known as Quantum Key Distribution (QKD). 

d. Designed or modified to use 

cryptographic techniques to generate 

channelizing codes, scrambling codes or 

network identification codes, for systems 

using ultra-wideband modulation techniques 

and having any of the following: 

d.1. A bandwidth exceeding 500 MHz; or 

d.2. A ‘‘fractional bandwidth’’ of 20% or 

more; 

e. Designed or modified to use 

cryptographic techniques to generate the 

spreading code for ‘‘spread spectrum’’ 

systems, not specified by 5A002.d, including 

the hopping code for ‘‘frequency hopping’’ 

systems. 

f. through y. [Reserved] 

z. Other commodities, as follows: 

z.1. Commodities that are described in 

5A002.a and that also meet or exceed the 

performance parameters in 3A090 or 4A090; 

z.2. Commodities that are described in 

5A002.b and that also meet or exceed the 

performance parameters in 3A090 or 4A090; 

z.3. Commodities that are described in 

5A002.c and that also meet or exceed the 

performance parameters in 3A090 or 4A090; 

z.4. Commodities that are described in 

5A002.d and that also meet or exceed the 


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performance parameters in 3A090 or 4A090; 

or 

z.5. Commodities that are described in 

5A002.e and that also meet or exceed the 

performance parameters in 3A090 or 4A090. 

5A992 Equipment not controlled by 5A002 

(see List of Items Controlled) 

License Requirements 

Reason for Control: RS, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

RS applies to items 

controlled by 

5A992.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) 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) 

LVS: N/A 

GBS: N/A 

NAC: Yes, for 5A992.z; N/A for all other 

5A992 commodities. 

List of Items Controlled 

Related Controls: See also ECCNs 3A090 

(including Note 4 to ECCN 3A090) and 

4A090. 

Related Definitions: N/A 

Items: 

a. [Reserved] 

b. [Reserved] 

c. Commodities classified as mass market 

encryption commodities in accordance with 

§ 740.17(b) of the EAR. 

d. through y. [Reserved] 

z. Commodities that are described in 

5A992.c and that also meet or exceed the 

performance parameters in 3A090 or 4A090. 

* * * * * 

5A004 ‘‘Systems,’’ ‘‘equipment’’ and 

‘‘components’’ for defeating, weakening 

or bypassing ‘‘information security,’’ as 

follows (see List of Items Controlled). 

License Requirements 

Reason for Control: NS, RS, AT, EI 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry (except 

5A004.z).

NS Column 1. 

RS applies to items 

controlled by 

5A004.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

AT applies to entire 

entry.

AT Column 1. 

EI applies to entire 

entry.

Refer to § 742.15 of 

the EAR. 

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) 

LVS: Yes: $500 for ‘‘components,’’ except for 

5A004.z. 

N/A for systems and equipment. 

GBS: N/A 

ENC: Yes for certain EI controlled 

commodities, except for 5A004.z. See 

§ 740.17 of the EAR for eligibility. 

NAC: Yes, for 5A004.z; N/A for all other 

5A004 commodities. 

List of Items Controlled 

Related Controls: (1) ECCN 5A004.a controls 

‘‘components’’ providing the means or 

functions necessary for ‘‘information 

security.’’ All such ‘‘components’’ are 

presumptively ‘‘specially designed’’ and 

controlled by 5A004.a. (2) See also ECCNs 

3A090 (including Note 4 to ECCN 3A090) 

and 4A090. 

Related Definitions: N/A 

Items: 

a. Designed or modified to perform 

‘cryptanalytic functions.’ 

Note: 5A004.a includes systems or 

equipment, designed or modified to perform 

‘cryptanalytic functions’ by means of reverse 

engineering. 

Technical Note: For the purposes of 

5A004.a,‘cryptanalytic functions’ are 

functions designed to defeat cryptographic 

mechanisms in order to derive confidential 

variables or sensitive data, including clear 

text, passwords or cryptographic keys. 

b. Items, not specified by ECCNs 4A005 or 

5A004.a, designed to perform all of the 

following: 

b.1. ‘Extract raw data’ from a computing or 

communications device; and 

b.2. Circumvent ‘‘authentication’’ or 

authorisation controls of the device, in order 

to perform the function described in 

5A004.b.1. 

Technical Note: For the purposes of 

5A004.b.1, ‘extract raw data’ from a 

computing or communications device means 

to retrieve binary data from a storage 

medium, e.g., RAM, flash or hard disk, of the 

device without interpretation by the device’s 

operating system or filesystem. 

Note 1: 5A004.b does not apply to systems 

or equipment specially designed for the 

‘‘development’’ or ‘‘production’’ of a 

computing or communications device. 

Note 2: 5A004.b does not include: 

a. Debuggers, hypervisors; 

b. Items limited to logical data extraction; 

c. Data extraction items using chip-off or 

JTAG; or 

d. Items specially designed and limited to 

jail-breaking or rooting. 

c. through y. [Reserved] 

z. Other commodities, as follows: 

z.1. Commodities that are described in 

5A004.a and that also meet or exceed the 

performance parameters in 3A090 or 4A090; 

or 

z.2. Commodities that are described in 

5A004.b and that also meet or exceed the 

performance parameters in 3A090 or 4A090. 

5B002 ‘‘Information Security’’ test, 

inspection and ‘‘production’’ equipment, 

as follows (see List of Items Controlled). 

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) 

LVS: N/A 

GBS: N/A 

ENC: Yes for certain EI controlled equipment, 

see § 740.17 of the EAR for eligibility. 

List of Items Controlled 

Related Controls: N/A 

Related Definitions: N/A 

Items: 

a. Equipment ‘‘specially designed’’ for the 

‘‘development’’ or ‘‘production’’ of 

equipment controlled by 5A002, 5A003, 

5A004 or 5B002.b; 

b. Measuring equipment ‘‘specially 

designed’’ to evaluate and validate the 

‘‘information security’’ functions of 

equipment controlled by 5A002, 5A003 or 

5A004, or of ‘‘software’’ controlled by 

5D002.a, z.1 through z.4, or 5D002.c or z.6 

through z.9. 

* * * * * 

5D002 ‘‘Software’’ as follows (see List of 

Items Controlled). 

License Requirements 

Reason for Control: NS, RS, AT, EI 


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Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry (except 

5D002.z).

NS Column 1. 

RS applies to ‘‘software’’ controlled by 

5D002.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

AT applies to entire 

entry.

AT Column 1. 

EI applies to ‘‘software’’ in 

5D002.a.1, a.3, .b, 

c.1 and c.3, for 

commodities or 

‘‘software’’ controlled for EI reasons in ECCN 

5A002, 5A004 or 

5D002.

Refer to § 742.15 of 

the EAR. Note: 

Encryption software 

is controlled because of its functional capacity, and 

not because of any 

informational value 

of such software; 

such software is not 

accorded the same 

treatment under the 

EAR as other ‘‘software’; and for export licensing purposes, encryption 

software is treated 

under the EAR in 

the same manner 

as a commodity included in ECCN 

5A002. 

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: N/A 

ENC: Yes for certain EI controlled software, 

except for 5D002.z. See § 740.17 of the EAR 

for eligibility. 

NAC: Yes, for 5D002.z; N/A for all other 

5D002 software. 

List of Items Controlled 

Related Controls: (1) After classification or 

self-classification in accordance with 

§ 740.17(b) of the EAR, mass market 

encryption software that meets eligibility 

requirements is released from ‘‘EI’’ and 

‘‘NS’’ controls. This software is designated 

as 5D992.c. (2) See also ECCNs 3D001.z 

and 4D001.z. (3) See also Note 4 to ECCN 

3A090. 

Related Definitions: 5D002.a controls 

‘‘software’’ designed or modified to use 

‘‘cryptography’’ employing digital or 

analog techniques to ensure ‘‘information 

security.’’ 

Items: 

a. ‘‘Software’’ ‘‘specially designed’’ or 

modified for the ‘‘development,’’ 

‘‘production’’ or ‘‘use’’ of any of the 

following: 

a.1. Equipment specified by 5A002 or 

‘‘software’’ specified by 5D002.c.1; 

a.2. Equipment specified by 5A003 or 

‘‘software’’ specified by 5D002.c.2; or 

a.3. Equipment or ‘‘software’’, as follows: 

a.3.a. Equipment specified by 5A004.a or 

‘‘software’’ specified by 5D002.c.3.a; 

a.3.b. Equipment specified by 5A004.b or 

‘‘software’’ specified by 5D002.c.3.b; 

b. ‘‘Software’’ having the characteristics of 

a ‘cryptographic activation token’ specified 

by 5A002.b; 

c. ‘‘Software’’ having the characteristics of, 

or performing or simulating the functions of, 

any of the following: 

c.1. Equipment specified by 5A002.a, .c, .d 

or .e; 

Note: 5D002.c.1 does not apply to 

‘‘software’’ limited to the tasks of ‘‘OAM’’ 

implementing only published or commercial 

cryptographic standards. 

c.2. Equipment specified by 5A003; or 

c.3. Equipment, as follows: 

c.3.a. Equipment specified by 5A004.a; 

c.3.b. Equipment specified by 5A004.b. 

Note: 5D002.c.3.b does not apply to 

‘‘intrusion software’’. 

d. [Reserved] 

N.B.: See 5D002.b for items formerly 

specified in 5D002.d. 

e. through y. [Reserved] 

z. Other software, as follows: 

z.1. Software that is described in 

5D002.a.1, and that also meet or exceed the 

performance parameters in 3D001 for 3A090 

or 4D001 for 4A090; 

z.2. Software that is described in 

5D002.a.2, and that also meet or exceed the 

performance parameters in 3D001 for 3A090 

or 4D001 for 4A090; 

z.3. Software that is described in 

5D002.a.3a, and that also meet or exceed the 

performance parameters in 3D001 for 3A090 

or 4D001 for 4A090; 

z.4. Software that is described in 

5D002.a.3.b, and that also meet or exceed the 

performance parameters in 3D001 for 3A090 

or 4D001 for 4A090; 

z.5. Software that is described in 5D002.b 

and that also meet or exceed the performance 

parameters in 3D001 for 3A090 or 4D001 for 

4A090; 

z.6 Software that is described in 5D002.c.1 

and that also meet or exceed the performance 

parameters in 3D001 for 3A090 or 4D001 for 

4A090; 

z.7 Software that is described in 5D002.c.2 

and that also meet or exceed the performance 

parameters in 3D001 for 3A090 or 4D001 for 

4A090; 

z.8 Software that is described in 

5D002.c.3.a and that also meet or exceed the 

performance parameters in 3D001 for 3A090 

or 4D001 for 4A090; or 

z.9 Software that is described in 

5D002.c.3.b and that also meet or exceed the 

performance parameters in 3D001 for 3A090 

or 4D001 for 4A090. 

5D992 ‘‘Information Security’’ ‘‘software,’’ 

not controlled by 5D002, as follows (see 

List of Items Controlled). 

License Requirements 

Reason for Control: RS, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

RS applies to ‘‘software’’ controlled by 

5D992.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) 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: N/A 

NAC: Yes, for 5D992.z; N/A for all other 

5D992.z software. 

List of Items Controlled 

Related Controls: (1) This entry does not 

control ‘‘software’’ designed or modified to 

protect against malicious computer 

damage, e.g., viruses, where the use of 

‘‘cryptography’’ is limited to 

authentication, digital signature and/or the 

decryption of data or files. (2) See also 

ECCNs 3D001.z and 4D001.z. (3) See also 

Note 4 to ECCN 3A090. 

Related Definitions: N/A 

Items: 

a. [Reserved] 

b. [Reserved] 

c. ‘‘Software’’ classified as mass market 

encryption software in accordance with 

§ 740.17(b) of the EAR. 

d. through y. [Reserved] 

z. Other software that is described in 

5D992 and that also meet or exceed the 

performance parameters in 3D001 for 3A090 

or 4D001 for 4A090. 

* * * * * 

5E002 ‘‘Technology’’ as follows (see List of 

Items Controlled). 

License Requirements 

Reason for Control: NS, AT, EI 


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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 73515 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry (except 

‘‘technology’’ for 

commodities controlled by 5A002.z 

or 5A004.z or 

‘‘software’’ specified by 5D002 (for 

5A002.z or 

5A004.z commodities).

NS Column 1. 

RS applies to ‘‘technology’’ for commodities controlled 

by 5A002.z or 

5A004.z or ‘‘software’’ specified by 

5D002 (for 5A002.z 

or 5A004.z commodities).

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) of 

the EAR. 

AT applies to entire 

entry.

AT Column 1. 

EI applies to ‘‘technology’’ in 5E002.a 

for commodities or 

‘‘software’’ controlled for EI reasons in ECCNs 

5A002, 5A004 or 

5D002, and to 

‘‘technology’’ in 

5E002.b.

Refer to § 742.15 of 

the EAR. 

License Requirements Notes: 

(1) 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. 

(2) When a person performs or provides 

technical assistance that incorporates, or 

otherwise draws upon, ‘‘technology’’ that 

was either obtained in the United States or 

is of U.S.-origin, then a release of the 

‘‘technology’’ takes place. Such technical 

assistance, when rendered with the intent 

to aid in the ‘‘development’’ or 

‘‘production’’ of encryption commodities or 

software that would be controlled for ‘‘EI’’ 

reasons under ECCN 5A002, 5A004 or 

5D002, may require authorization under 

the EAR even if the underlying encryption 

algorithm to be implemented is from the 

public domain or is not of U.S.-origin. 

List Based License Exceptions (See Part 740 

for a Description of All License Exceptions) 

TSR: N/A 

ENC: Yes for certain EI controlled 

technology. See § 740.17 of the EAR for 

eligibility. 

List of Items Controlled 

Related Controls: See also 5E992. This entry 

does not control ‘‘technology’’ ‘‘required’’ 

for the ‘‘use’’ of equipment excluded from 

control under the Related Controls 

paragraph or the Technical Notes in ECCN 

5A002 or ‘‘technology’’ related to 

equipment excluded from control under 

ECCN 5A002. 

Related Definitions: N/A 

Items: 

a. ‘‘Technology’’ according to the General 

Technology Note for the ‘‘development,’’ 

‘‘production’’ or ‘‘use’’ of equipment 

controlled by 5A002, 5A003, 5A004 or 

5B002, or of ‘‘software’’ controlled by 

5D002.a, z.1 through z.3, or 5D002.c, z.6 

through z.8. 

Note: 5E002.a does not apply to 

‘‘technology’’ for items specified by 5A004.b, 

z.3 or z.4, 5D002.a.3.b, z.4, or 5D002.c.3.b. 

b. ‘‘Technology’’ having the characteristics 

of a ‘cryptographic activation token’ specified 

by 5A002.b, z.2. 

Note: 5E002 includes ‘‘information 

security’’ technical data resulting from 

procedures carried out to evaluate or 

determine the implementation of functions, 

features or techniques specified in Category 

5—Part 2. 

* * * * * 

5E992 ‘‘Information Security’’ 

‘‘technology’’ according to the General 

Technology Note, not controlled by 

5E002, as follows (see List of Items 

Controlled). 

License Requirements 

Reason for Control: AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

RS applies to ‘‘technology’’ for commodities controlled 

by 5A992.z or 

‘‘software’’ controlled by 5D992.z.

To or within destinations specified in 

Country Groups 

D:1, D:4, and D:5 

of supplement no. 1 

to part 740 of the 

EAR, excluding any 

destination also 

specified in Country 

Groups A:5 or A:6. 

See 

§ 742.6(a)(6)(iii) 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: N/A 

List of Items Controlled 

Related Controls: N/A 

Related Definitions: N/A 

Items: 

a. [Reserved] 

b. ‘‘Technology’’, n.e.s., for the ‘‘use’’ of 

mass market commodities controlled by 

5A992 or mass market ‘‘software’’ controlled 

by 5D992. 

* * * * * 

9A004 Space launch vehicles and 

‘‘spacecraft,’’ ‘‘spacecraft buses’’, 

‘‘spacecraft payloads’’, ‘‘spacecraft’’ onboard systems or equipment, terrestrial 

equipment, and air-launch platforms, 

and ‘‘sub-orbital craft’’, as follows (see 

List of Items Controlled). 

License Requirements 

Reason for Control: NS, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to 

9A004.g, .u, .v, .w 

and .x.

NS Column 1. 

AT applies to 

9A004.g, .u, .v, .w, 

.x and .y.

AT Column 1. 

License Requirement Note: 9A004.b 

through .f, and .h are controlled under 

ECCN 9A515. 

List Based License Exceptions (See Part 740 

for a Description of All License Exceptions) 

LVS: N/A 

GBS: N/A 

List of Items Controlled 

Related Controls: (1) See also 9A104, 9A515, 

and 9B515. (2) See ECCNs 9E001 

(‘‘development’’) and 9E002 

(‘‘production’’) for technology for items 

controlled by this entry. (3) See USML 

Categories IV for the space launch vehicles 

and XV for other spacecraft that are 

‘‘subject to the ITAR’’ (see 22 CFR parts 

120 through 130). 

Related Definition: N/A 

Items: 

a. Space launch vehicles; 

b. ‘‘Spacecraft’’; 

c. ‘‘Spacecraft buses’’; 

d. ‘‘Spacecraft payloads’’ incorporating 

items specified by 3A001.b.1.a.4 or z (if also 

described in 3A001.b.1.a.4), 3A002.g, 

5A001.a.1, 5A001.b.3, 5A002.c, z.3 or z.8, 

5A002.e, z.5, 6A002.a.1, 6A002.a.2, 6A002.b, 

6A002.d, 6A003.b, 6A004.c, 6A004.e, 

6A008.d, 6A008.e, 6A008.k, 6A008.l or 

9A010.c; 

e. On-board systems or equipment, 

specially designed for ‘‘spacecraft’’ and 

having any of the following functions: 

e.1. ‘Command and telemetry data 

handling’; 

Note: For the purpose of 9A004.e.1, 

‘command and telemetry data handling’ 

includes bus data management, storage, and 

processing. 

e.2. ‘Payload data handling’; or 

Note: For the purpose of 9A004.e.2, 

‘payload data handling’ includes payload 

data management, storage, and processing. 

e.3. ‘Attitude and orbit control’; 

Note: For the purpose of 9A004.e.3, 

‘attitude and orbit control’ includes sensing 

and actuation to determine and control the 

position and orientation of a ‘‘spacecraft’’. 


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N.B.: Equipment specially designed for 

military use is ‘‘subject to the ITAR’’. See 22 

CFR parts 120 through 130. 

f. Terrestrial equipment specially designed 

for ‘‘spacecraft’’, as follows: 

f.1. Telemetry and telecommand 

equipment ‘‘specially designed’’ for any of 

the following data processing functions: 

f.1.a. Telemetry data processing of frame 

synchronization and error corrections, for 

monitoring of operational status (also known 

as health and safe status) of the ‘‘spacecraft 

bus’’; or 

f.1.b. Command data processing for 

formatting command data being sent to the 

‘‘spacecraft’’ to control the ‘‘spacecraft bus’’; 

f.2. Simulators ‘‘specially designed’’ for 

‘verification of operational procedures’ of 

‘‘spacecraft’’. 

Technical Note: For the purposes of 

9A004.f.2, ‘verification of operational 

procedures’ is any of the following: 

1. Command sequence confirmation; 

2. Operational training; 

3. Operational rehearsals; or 

4. Operational analysis. 

g. ‘‘Aircraft’’ ‘‘specially designed’’ or 

modified to be air-launch platforms for space 

launch vehicles or ‘‘sub-orbital craft’’. 

h. ‘‘Sub-orbital craft’’. 

i. through t. [RESERVED] 

u. The James Webb Space Telescope 

(JWST) being developed, launched, and 

operated under the supervision of the U.S. 

National Aeronautics and Space 

Administration (NASA). 

v. ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories’’ 

and ‘‘attachments’’ that are ‘‘specially 

designed’’ for the James Webb Space 

Telescope and that are not: 

v.1. Enumerated or controlled in the 

USML; 

v.2. Microelectronic circuits; 

v.3. Described in ECCN 7A004 or 7A104; 

or 

v.4. Described in an ECCN containing 

‘‘space-qualified’’ as a control criterion (See 

ECCN 9A515.x.4). 

w. The International Space Station being 

developed, launched, and operated under the 

supervision of the U.S. National Aeronautics 

and Space Administration. 

x. ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories’’ 

and ‘‘attachments’’ that are ‘‘specially 

designed’’ for the International Space Station. 

y. Items that would otherwise be within 

the scope of ECCN 9A004.v or .x but that 

have been identified in an interagencycleared commodity classification (CCATS) 

pursuant to § 748.3(e) as warranting control 

in 9A004.y. 

* * * * * 

9A515 ‘‘Spacecraft’’ and related 

commodities, as follows (see List of 

Items Controlled). 

License Requirements 

Reason for Control: NS, RS, MT, AT 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

NS applies to entire 

entry, except .e 

and .y.

NS Column 1. 

Control(s) 

Country chart 

(see Supp. No. 1 to 

part 738) 

RS applies to entire 

entry, except .e 

and .y.

RS Column 1. 

RS applies to 

9A515.e.

RS Column 2. 

RS applies to 

9A515.y, except to 

Russia for use in, 

with, or for the 

International Space 

Station (ISS), including launch to 

the ISS.

China, Russia or Venezuela (see 

§ 742.6(a)(7)). 

MT applies to microcircuits in 9A515.d 

and 9A515.e.2 

when ‘‘usable in’’ 

‘‘missiles’’ for protecting ‘‘missiles’’ 

against nuclear effects (e.g., Electromagnetic Pulse 

(EMP), X-rays, 

combined blast and 

thermal effects). 

MT also applies to 

9A515.h when the 

total impulse capacity is equal to or 

greater than 8.41 × 

105 newton seconds.

MT Column 1. 

AT applies to entire 

entry.

AT Column 1. 

License Requirement Note: The Commerce 

Country Chart is not used for determining 

license requirements for commodities 

classified in ECCN 9A515.a.1, .a.2, .a.3, 

.a.4, and .g. See § 742.6(a)(9), which 

specifies that such commodities are subject 

to a worldwide license requirement. 

List Based License Exceptions (See Part 740 

for a Description of All License Exceptions) 

LVS: $1500 

GBS: N/A 

Special Conditions for STA 

STA: (1) Paragraph (c)(1) of License 

Exception STA (§ 740.20(c)(1) of the EAR) 

may not be used for ‘‘spacecraft’’ in ECCNs 

9A515.a.1, .a.2, .a.3, or .a.4, ‘‘sub-orbital 

craft,’’ or items in 9A515.g, unless 

determined by BIS to be eligible for License 

Exception STA in accordance with 

§ 740.20(g) (License Exception STA eligibility 

requests for certain 9x515 and ‘‘600 series’’ 

items). (2) License Exception STA may not be 

used if the ‘‘spacecraft’’ controlled in ECCN 

9A515.a.1, .a.2, .a.3, or .a.4 contains a 

separable or removable propulsion system 

enumerated in USML Category IV(d)(2) or 

USML Category XV(e)(12) and designated 

MT. (3) Paragraph (c)(2) of License Exception 

STA (§ 740.20(c)(2) of the EAR) may not be 

used for any item in 9A515. 

List of Items Controlled 

Related Controls: Spacecraft, launch vehicles 

and related articles that are enumerated in 

the USML, and technical data (including 

‘‘software’’) directly related thereto, and all 

services (including training) directly 

related to the integration of any satellite or 

spacecraft to a launch vehicle, including 

both planning and onsite support, or 

furnishing any assistance (including 

training) in the launch failure analysis or 

investigation for items in ECCN 9A515.a, 

are ‘‘subject to the ITAR.’’ All other 

‘‘spacecraft,’’ as enumerated below and 

defined in § 772.1, are subject to the 

controls of this ECCN. See also ECCNs 

3A001, 3A002, 3A991, 3A992, 6A002, 

6A004, 6A008, and 6A998 for specific 

‘‘space-qualified’’ items, 7A004 and 7A104 

for star trackers, and 9A004 for the 

International Space Station (ISS), the James 

Webb Space Telescope (JWST), and 

‘‘specially designed’’ ‘‘parts’’ and 

‘‘components’’ therefor. See USML 

Category XI(c) for controls on certain 

‘‘Monolithic Microwave Integrated Circuit’’ 

(‘‘MMIC’’) amplifiers. See ECCN 9A610.g 

for pressure suits used for high altitude 

aircraft. 

Related Definitions: ‘Microcircuit’ means a 

device in which a number of passive or 

active elements are considered as 

indivisibly associated on or within a 

continuous structure to perform the 

function of a circuit. 

Items: 

‘‘Spacecraft’’ and other items described in 

ECCN 9A515 remain subject to the EAR even 

if exported, reexported, or transferred (incountry) with defense articles ‘‘subject to the 

ITAR’’ integrated into and included therein 

as integral parts of the item. In all other 

cases, such defense articles are subject to the 

ITAR. For example, a 9A515.a ‘‘spacecraft’’ 

remains ‘‘subject to the EAR’’ even when it 

is exported, reexported, or transferred (incountry) with a ‘‘hosted payload’’ described 

in USML Category XV(e)(17) incorporated 

therein. In all other cases, a ‘‘hosted payload’’ 

performing a function described in USML 

Category XV(a) always remains a USML item. 

The removal of the defense article subject to 

the ITAR from the spacecraft is a retransfer 

under the ITAR and would require an ITAR 

authorization, regardless of the CCL 

authorization the spacecraft is exported 

under. Additionally, transfer of technical 

data regarding the defense article subject to 

the ITAR integrated into the spacecraft would 

require an ITAR authorization. 

a. ‘‘Spacecraft,’’ including satellites, and 

space vehicles and ‘‘sub-orbital craft,’’ 

whether designated developmental, 

experimental, research or scientific, not 

enumerated in USML Category XV or 

described in ECCN 9A004.u or .w, that: 

a.1. Have electro-optical remote sensing 

capabilities and having a clear aperture 

greater than 0.35 meters, but less than or 

equal to 0.50 meters; 

a.2. Have remote sensing capabilities 

beyond NIR (i.e., SWIR, MWIR, or LWIR); 

a.3. Have radar remote sensing capabilities 

(e.g., AESA, SAR, or ISAR) having a center 

frequency equal to or greater than 1.0 GHz, 

but less than 10.0 GHz and having a 

bandwidth equal to or greater than 100 MHz, 

but less than 300 MHz; 

a.4. Provide space-based logistics, 

assembly, or servicing of another 

‘‘spacecraft’’; or 


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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Rules and Regulations 73517 

a.5. Are not described in ECCN 9A515.a.1, 

.a.2, .a.3 or .a.4. 

Note: ECCN 9A515.a includes commercial 

communications satellites, remote sensing 

satellites, planetary rovers, planetary and 

interplanetary probes, in-space habitats, and 

‘‘sub-orbital craft,’’ not identified in ECCN 

9A004 or USML Category XV(a). 

b. Ground control systems and training 

simulators ‘‘specially designed’’ for 

telemetry, tracking, and control of the 

‘‘spacecraft’’ controlled in paragraphs 

9A004.u or 9A515.a. 

c. [Reserved] 

d. Microelectronic circuits (e.g., integrated 

circuits, microcircuits, or MOSFETs) and 

discrete electronic components rated, 

certified, or otherwise specified or described 

as meeting or exceeding all the following 

characteristics and that are ‘‘specially 

designed’’ for defense articles, ‘‘600 series’’ 

items, or items controlled by ECCNs 9A004.v 

or 9A515: 

d.1. A total dose of 5 × 105 Rads (Si) (5 × 

103 Gy (Si)); 

d.2. A dose rate upset threshold of 5 × 108

Rads (Si)/sec (5 × 106 Gy (Si)/sec); 

d.3. A neutron dose of 1 × 1014 n/cm2 (1 

MeV equivalent); 

d.4. An uncorrected single event upset 

sensitivity of 1 × 10¥10 errors/bit/day or less, 

for the CRE`ME–MC geosynchronous orbit, 

Solar Minimum Environment for heavy ion 

flux; and 

d.5. An uncorrected single event upset 

sensitivity of 1 × 10¥10 errors/part or less for 

a fluence of 1 × 107 protons/cm2 for proton 

energy greater than 50 MeV. 

e. Microelectronic circuits (e.g., integrated 

circuits, microcircuits, or MOSFETs) and 

discrete electronic components that are rated, 

certified, or otherwise specified or described 

as meeting or exceeding the characteristics in 

either paragraph e.1 or e.2, AND ‘‘specially 

designed’’ for defense articles controlled by 

USML Category XV or items controlled by 

ECCNs 9A004.u or 9A515: 

e.1. A total dose ≥1 × 105 Rads (Si) (1 × 103

Gy(Si)) and <5 × 105 Rads (Si) (5 × 103

Gy(Si)); and a single event effect (SEE) (i.e., 

single event latchup (SEL), single event 

burnout (SEB), or single event gate rupture 

(SEGR)) immunity to a linear energy transfer 

(LET) ≥80 MeV-cm2/mg; or 

e.2. A total dose ≥5 × 105 Rads (Si) (5 × 103

Gy (Si)) and not described in 9A515.d. 

Note 1 to 9A515.d and .e: Application 

specific integrated circuits (ASICs), 

integrated circuits developed and produced 

for a specific application or function, 

specifically designed or modified for defense 

articles and not in normal commercial use 

are controlled by Category XI(c) of the USML 

regardless of characteristics. 

Note 2 to 9A515.d and .e: See 3A001.a 

and .z for controls on radiation-hardened 

microelectronic circuits ‘‘subject to the EAR’’ 

that are not controlled by 9A515.d or 

9A515.e. 

f. Pressure suits (i.e., space suits) capable 

of operating at altitudes 55,000 feet above sea 

level. 

g. Remote sensing components ‘‘specially 

designed’’ for ‘‘spacecraft’’ described in 

ECCNs 9A515.a.1 through 9A515.a.4 as 

follows: 

g.1. Space-qualified optics (i.e., lens, 

mirror, membrane having active properties 

(e.g., adaptive, deformable)) with the largest 

lateral clear aperture dimension equal to or 

less than 0.35 meters; or with the largest clear 

aperture dimension greater than 0.35 meters 

but less than or equal to 0.50 meters; 

g.2. Optical bench assemblies ‘‘specially 

designed’’ for ECCN 9A515.a.1, 9A515.a.2, 

9A515.a.3, or 9A515.a.4 ‘‘spacecraft;’’ or 

g.3. Primary, secondary, or hosted payloads 

that perform a function of ECCN 9A515.a.1, 

9A515.a.2, 9A515.a.3, or 9A515.a.4 

‘‘spacecraft.’’ 

h. Spacecraft thrusters using bi-propellants 

or mono-propellants that provide thrust 

equal to or less than 150 lbf (i.e., 667.23 N) 

vacuum thrust. 

i. through w. [RESERVED] 

x. ‘‘Parts,’’ ‘‘components,’’ ‘‘accessories’’ 

and ‘‘attachments’’ that are ‘‘specially 

designed’’ for defense articles controlled by 

USML Category XV or items controlled by 

9A515, and that are NOT: 

x.1. Enumerated or controlled in the USML 

or elsewhere within ECCNs 9A515 or 9A004; 

x.2. Microelectronic circuits and discrete 

electronic components; 

x.3. Described in ECCNs 7A004 or 7A104; 

x.4. Described in an ECCN containing 

‘‘space-qualified’’ as a control criterion (i.e., 

3A001.b.1, 3A001.e.4 or .z, 3A002.g.1, 

3A991.o, 3A992.b.3, 6A002.a.1, 6A002.b.2, 

6A002.d.1, 6A004.c and .d, 6A008.j.1, 

6A998.b, or 7A003.d.2); 

x.5. Microwave solid state amplifiers and 

microwave assemblies (refer to ECCN 

3A001.b.4 and .z for controls on these items); 

x.6. Travelling wave tube amplifiers (refer 

to ECCN 3A001.b.8 and .z for controls on 

these items); or 

x.7. Elsewhere specified in ECCN 9A515.y. 

Note to 9A515.x: ‘‘Parts,’’ ‘‘components,’’ 

‘‘accessories,’’ and ‘‘attachments’’ specified 

in USML subcategory XV(e) or enumerated in 

other USML categories are subject to the 

controls of that paragraph or category. 

y. Items that would otherwise be within 

the scope of ECCN 9A515.x but that have 

been identified in an interagency-cleared 

commodity classification (CCATS) pursuant 

to § 748.3(e) as warranting control in 

9A515.y. 

y.1. Discrete electronic components not 

specified in 9A515.e; 

y.2. Space grade or for spacecraft 

applications thermistors; 

y.3. Space grade or for spacecraft 

applications RF microwave bandpass ceramic 

filters (Dielectric Resonator Bandpass 

Filters); 

y.4. Space grade or for spacecraft 

applications hall effect sensors; 

y.5. Space grade or for spacecraft 

applications subminiature (SMA and SMP) 

plugs and connectors, TNC plugs and cable 

and connector assemblies with SMA plugs 

and connectors; and 

y.6. Space grade or for spacecraft 

applications flight cable assemblies. 

* * * * * 

■ 39. Effective November 17, 2023, 

supplement no. 6 to part 774 is 

amended by revising paragraphs (3)(i) 

introductory text, (3)(ii) introductory 

text, and paragraphs (3)(iv) and (v) to 

read as follows: 

Supplement No. 6 to Part 774— 

Sensitive List 

* * * * * 

(3) Category 3 

(i) 3A001.b.2 (including those described 

under 3A001.b.2 that are controlled by 

3A001.z)—‘‘Monolithic Microwave 

Integrated Circuit’’ (‘‘MMIC’’) amplifiers that 

are any of the following: 

* * * * * 

(ii) 3A001.b.3 (including those described 

under 3A001.b.3 that are controlled by 

3A001.z)—Discrete microwave transistors 

that are any of the following: 

* * * * * 

(iv) 3D001—‘‘Software’’ ‘‘specially 

designed’’ for the ‘‘development’’ or 

‘‘production’’ of equipment controlled under 

3A001.b.2, 3A001.b.3, equipment described 

under 3A001.b.2 or 3A001.b.3 that are 

controlled under 3A001.z, 3A002.g.1, and 

equipment described under 3A002.g.2 that 

are controlled under 3A002.z. 

(v) 3E001—‘‘Technology’’ according to the 

General Technology Note for the 

‘‘development’’ or ‘‘production’’ of 

equipment controlled under 3A001.b.2, 

3A001.b.3, equipment described under 

3A001.b.2 or 3A001.b.3 that are controlled 

under 3A001.z, 3A002.g.1, and equipment 

described under 3A002.g.2 that are 

controlled under 3A002.z. 

* * * * * 

Thea D. Rozman Kendler, 

Assistant Secretary for Export 

Administration. 

[FR Doc. 2023–23055 Filed 10–18–23; 8:45 am] 

BILLING CODE 3510–33–P 


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