
[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Rules and Regulations]
[Pages 73458-73517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23055]



[[Page 73457]]

Vol. 88

Wednesday,

No. 205

October 25, 2023

Part III





Department of Commerce





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Bureau of Industry and Security





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15 CFR Parts 732, 734, 736, et al.





Implementation of Additional Export Controls: Certain Advanced 
Computing Items; Supercomputer and Semiconductor End Use; Updates and 
Corrections; Interim Final Rule

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

[[Page 73458]]


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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.

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SUMMARY: On October 7, 2022, the Bureau of Industry and Security (BIS) 
released the interim final rule (IFR), ``Implementation of Additional 
Export Controls: Certain Advanced Computing and Semiconductor 
Manufacturing Items; Supercomputer and Semiconductor End Use; 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: [email protected]. 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

[[Page 73459]]

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 Sec.  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 
Sec.  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 compliance-related 
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 non-compliance, 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.

[[Page 73460]]

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

[[Page 73461]]

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

[[Page 73462]]

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 leading-edge semiconductors and SME, and help preserve the large 
technological differential vis-[agrave]-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 WMD-related 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

[[Page 73463]]

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 Sec.  744.6, two new end 
use controls under Sec.  744.23, and the two new foreign direct product 
rules and expanded Entity List FDP rule under Sec.  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

[[Page 73464]]

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 Sec.  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 Sec.  
734.9(h)(1)(i)(B)(1) and (h)(2)(ii) of the EAR'' Under Sec.  
742.6(a)(6)

    Topic 30: Several commenters raised concerns with the October 7 IFR 
under Sec.  742.6(a)(6), along with other provisions in the October 7 
IFR, e.g., Sec.  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

[[Page 73465]]

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 Sec.  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 Sec. Sec.  
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 Sec.  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 
(in-country), or in the alternative that Sec.  740.2(a)(9) be expanded 
to authorize License Exception Temporary imports, exports, reexports, 
and transfers (in-country) (TMP). This commenter noted that the 
exclusion of ``transfer (in-country)'' from the scope of Sec.  740.10 
suggests that License Exception RPL would not cover in-country 
movements that constitute a transfer (in-country) as defined in Sec.  
734.16. Alternatively, this commenter requested that BIS expand the 
scope of license exceptions available for Sec.  740.2(a)(9) to include 
License Exception TMP, specifically Sec.  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 in-country 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 Sec.  740.2(a)(9)(ii) by adding License Exception TMP under 
Sec.  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

[[Page 73466]]

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 Sec.  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 (Sec.  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 third-
party 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 Sec.  734.9(e)(2)(ii)(B).
    BIS response: The answer to these types of scenarios would be fact-
specific. 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 Sec.  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

[[Page 73467]]

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 Sec.  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--Sec.  734.9(h)

    Topic 42: A commenter requested BIS clarify the relationship 
between Sec.  734.9(h) and Sec.  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 Sec.  742.15 
Encryption items (EI) controls because this is important for 
determining which additional EAR restrictions may be applicable. For 
example, Sec.  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 Sec.  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 Sec.  734.9(h) Advanced 
computing FDP rule is not needed because it is already covered by pre-
existing Sec.  734.9(b) National Security FDP rule.
    BIS response: BIS does not agree. There is some cross over between 
these two FDP rules, but the Advanced Computing FDP rule extends to 
certain items that the National Security FDP rule does not, so the 
Advanced Computing FDP rule is necessary to address the national 
security and foreign policy concerns included in the October 7 IFR.

Narrow the Scope of Sec.  744.23 Fabrication Controls

    Topic 44: A commenter noted that Sec.  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 Sec.  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 Sec.  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 Sec.  744.23, but selling a ``supercomputer'' with knowledge 
that a violation of Sec.  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 Sec.  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 Sec.  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 
Sec.  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

[[Page 73468]]

identified and approved for addition by the ERC to the Entity List. BIS 
emphasizes that Sec.  744.23 and the expanded Sec.  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 Sec.  744.6 also applies to 
Sec.  744.23.

Permit License Exception Eligibility

    Topic 49: A commenter requested BIS revise Sec.  744.23(c) to 
permit the use of license exceptions specified in Sec.  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 Sec.  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 Sec.  744.23

    Topic 50: A commenter requested BIS confirm that standalone data 
storage equipment would not be considered a ``component'' subject to 
Sec.  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 self-contained 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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 so-called 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 Sec.  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 
Sec.  744.6(c)(2)(i) and (ii).
    BIS response: For purposes of the ``U.S. person'' prohibition under 
Sec.  744.6(c)(2)(i) and (ii), BIS will attempt to maintain consistent 
approaches in interpreting Sec. Sec.  744.6(c)(2) and 744.23. BIS's 
response to Topic 61 on Sec.  744.23, which lays out how BIS would 
interpret Sec.  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 Sec.  
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 Sec.  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 Sec.  
744.11(a)(2)(ii) (Footnote 4 entities) is also applicable, which 
specifies a license is required for reexport, export from abroad, or 
transfer

[[Page 73469]]

(in-country) of any foreign-produced item subject to the EAR pursuant 
to Sec.  734.9(e)(2) of the EAR when an entity designated with footnote 
4 on the Entity List in supp. no. 4 to this part is a party to the 
transaction, or that will be used in the ``development'' or 
``production'' of any ``part,'' ``component,'' or ``equipment'' 
produced, purchased, or ordered by any such entity. Section 
744.11(a)(2)(ii) also includes a cross reference to Sec.  744.23 for 
additional license requirements that may apply to these entities, so 
the Sec.  744.23 license requirements also need to be taken into 
account.
    Topic 55: A commenter noted that Sec.  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 foreign-made and Footnote 4 entity 
components that are not destined for a footnote 4 entity.
    BIS response: The license requirement under Sec.  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 foreign-made 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 Sec.  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 
Sec.  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 Sec.  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 ft\3\ 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,

[[Page 73470]]

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 (in-country). BIS also highlights that 
because the RS license requirement under Sec.  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 Sec.  
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 Sec.  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 
Sec.  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 Sec.  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 non-proscribed 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 
Sec.  744.6(c)(2)(iv), now redesignated as Sec.  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 
Sec.  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, 
Sec.  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 Sec.  
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 Sec.  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, Sec.  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

[[Page 73471]]

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 business-critical 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 non-EAR 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 Sec.  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 Sec.  734.7 Published and Sec.  
734.8 ``Technology'' or ``software'' that arises during, or results 
from, fundamental research, as well as specifying this in Sec.  
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 Sec.  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 Sec.  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 CCL-based 
controls, end-use controls, and end-user controls. For the end-use 
controls, BIS used both a standard end-use 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 
Sec. Sec.  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 Sec.  
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 Sec.  
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.

[[Page 73472]]

Meaning and Scope of `Support' Under U.S. Person Control in Sec.  
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 Sec.  
744.6 under paragraph (b)(6). BIS also notes that the term `support' is 
not a new term added in the October 7 IFR. However, based on the 
comments received in response to the October 7 IFR, BIS agrees that 
additional clarifications should be made on what types of activities 
involving `support' are excluded, such as certain logistics activities. 
This AC/S IFR states here that for logistics companies, the prohibited 
act is the actual delivery, by shipment, transmittal, or transfer (in-
country), of the item and the act of authorizing the same.
    Topic 71: A commenter noted that Sec.  744.6 prohibits U.S. persons 
from providing ``support'' for WMD-related end uses and Sec.  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 
Sec.  744.6(c)(2). The prohibition under Sec.  744.6(c)(2) is limited 
to the exhaustive listing of `support' activities defined under Sec.  
744.6(b)(6). The phrase ``which could involve'' is an acknowledgement 
that in certain cases these activities described under Sec.  
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 WMD-related 
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 Sec.  744.6 or Sec.  
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 Sec.  744.6(c)(2) incorporates all of the definitions of 
``support'' under Sec.  744.6(b)(6) in the activities that are 
prohibited under Sec.  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 Sec.  744.6(d)(1)(i), added 
in this rule. In addition, the reference to ``support'' in Sec.  
744.6(c)(2) incorporates all of the definitions of ``support'' under 
Sec.  744.6(b)(6) in the activities that are prohibited under Sec.  
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 Sec.  
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 Sec.  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 Sec. Sec.  740.10 and 764.2(e), and in General Prohibition 10 
under Sec.  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 Sec.  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

[[Page 73473]]

purposes of Sec.  744.6. BIS interprets the meaning of servicing in the 
context of Sec.  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 Sec.  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 Sec.  
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 Sec.  734.7 Published and Sec.  734.8 
``Technology'' or ``software'' that arises during, or results from, 
fundamental research, which this AC/S IFR specifies in Sec.  
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.

[[Page 73474]]

    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 advanced- ICs 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 `non-datacenter 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 non-datacenter 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.

[[Page 73475]]

    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 Sec.  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 Sec.  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 Sec.  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 (in-country). 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 (in-country) 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 Sec.  
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 (in-country) may be made under License Exception NAC to or 
for a `military end use' as defined in Sec.  744.21(f) or `military end 
user' as defined in defined in Sec.  744.21(g). This `military end use' 
or `military end use' restriction applies to a broader country scope 
than those prohibited under Sec. Sec.  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

[[Page 73476]]

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 Sec.  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

[[Page 73477]]

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 Sec.  740.2(a)(9)(ii) and the terms and 
conditions of certain list-based 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

[[Page 73478]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  740.8.''
    In addition to amending Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 73479]]

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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  770.2 and 772.1

    In Sec.  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 Sec.  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

[[Page 73480]]

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 Sec.  758.1(b)(10), which 
includes the nine ECCNs that this rule adds .z paragraphs to, unless 
authorized under License Exception GOV under Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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

[[Page 73481]]

requested in the past on several occasions that BIS broaden the 
requirement under Sec.  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 Sec.  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 Sec.  742.6(a)(6), the AC/S IFR removes Sec.  
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 Sec.  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 Sec.  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 
Sec.  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 Sec.  744.23(d) of the EAR, except applications will be reviewed on 
a case-by-case basis if no license would be required under part 744 of 
the EAR 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 Sec.  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 Sec.  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 Sec.  744.6(c)(2) of the 
EAR) to clarify the scope of activities that are caught under Sec.  
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

[[Page 73482]]

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 Sec.  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 Sec.  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 Sec.  744.6. This AC/S IFR also adds new paragraph 
(d)(1)(ii) that clarifies that the scope of Sec.  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 
Sec.  734.7 Published and Sec.  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 Sec.  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 Sec.  744.6), to 
provide guidance on how to apply for a license application for ``U.S. 
person'' activities that require a license application under Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  748.8, so this rule corrects that 
oversight.
6. Expansion of Sec.  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 Sec.  744.23 ``Supercomputer'' and semiconductor manufacturing 
end use, this rule expands the scope of the end-use 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 end-use 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 PRC-headquartered 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 Sec.  734.9(h)(1)(i)(B)(1) and 
(h)(2)(ii) of the EAR; and the technology is for the reexport or 
transfer (in-country) from or within Macau or a

[[Page 73483]]

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 Sec.  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 Sec.  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 foreign-produced 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 Sec.  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 Sec.  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.

[[Page 73484]]

    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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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) (End-use 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

[[Page 73485]]

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 Sec.  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 Sec.  734.9 instead of being limited for 
use with the advanced computing FDP rule under Sec.  734.9(h).
    In Sec.  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 Sec.  
734.9.
    In Sec.  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 Sec.  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 Sec.  736.2(b)(3) and add in its place a reference to Sec.  734.9. 
Also in Sec.  734.3, this AC/S IFR as a conforming change to Sec.  
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 Sec.  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 Sec.  742.6(a)(6)(iii) of the EAR. This change is made 
for consistency with the other ECCNs that reference Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 73486]]

guidance can be found on the BIS website. This rule also makes this 
same type of conforming change to Sec.  734.2(a)(1).
    In Sec.  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 Sec.  
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 two-part 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 Sec.  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 large-scale 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 
Sec.  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 Sec.  744.23(a)(1). BIS welcomes comments on the 
definition of ``supercomputer,'' as well on what additional criteria 
could be added to Sec.  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

[[Page 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 Sec.  
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 Sec.  
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 Sec.  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

0
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.


0
2. Effective November 17, 2023, Sec.  732.2 is amended by revising 
paragraph (b) introductory text to read as follows:


Sec.  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

[[Page 73488]]

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/export-administration-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 
Sec.  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 Sec.  734.7(c) of the EAR.
* * * * *

0
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'' ``advanced-node 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 Sec.  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 Sec.  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 Sec.  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

0
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.


0
5. Effective November 17, 2023, Sec.  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:


Sec.  734.2  Subject to the EAR.

    (a) * * *
    (1) * * * Publicly available technology and software not subject to 
the EAR are described in Sec. Sec.  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.
* * * * *

0
6. Effective November 17, 2023, Sec.  734.3 is amended by revising 
paragraphs (a)(4) and (5) to read as follows:


Sec.  734.3  Items subject to the EAR.

    (a) * * *
    (4) Certain foreign-produced ``direct products'' of specified 
``technology'' and ``software,'' as described in Sec.  734.9 of the 
EAR; and

    Note to paragraph (a)(4): Certain foreign-manufactured items 
developed or produced from U.S.-origin encryption items exported 
pursuant to License Exception ENC are subject to the EAR. See Sec.  
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 Sec.  734.9 of the EAR.
* * * * *

0
7. Effective November 17, 2023, Sec.  734.4 is amended by revising 
paragraph (b)(2) to read as follows:


Sec.  734.4  De minimis U.S. content.

* * * * *
    (b) * * *
    (2) The U.S.-origin encryption items are classified under ECCNs 
5A992, 5D992, or 5E992.b.
* * * * *

0
8. Effective November 17, 2023, Sec.  734.9 is amended by:
0
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);
0
b. Adding a note to paragraph (h)(2);
0
c. Removing paragraph (h)(3); and
0
d. Revising paragraph (i)(1)(ii).
    The revisions and addition read as follows:


Sec.  734.9  Foreign-Direct Product (FDP) Rules.

    Foreign-produced items located outside the United States are 
subject to

[[Page 73489]]

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 Sec.  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 Sec.  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 
Sec.  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 ``end-user.''

    (i) * * *
    (1) * * *
    (ii) Product of a complete plant or `major component' of a plant 
that is a ``direct product.'' A foreign-produced

[[Page 73490]]

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.
* * * * *

0
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  734.9(g)(2) for a Footnote 3 entity 
(see supplement no. 4 to part 744);
    (vii) Destination and end-use scope of Sec.  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 Sec.  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 Sec.  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

0
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).


0
11. Effective November 17, 2023, to January 1, 2026, supplement no. 1 
to part 736 is amended by:
0
a. Revising paragraph (d) introductory text;
0
b. Adding paragraph (d)(2); and
0
c. Revising paragraphs (d)(3) and (4).

[[Page 73491]]

    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 Sec.  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 Sec.  
744.11 or Sec.  744.21 of the EAR when an entity listed in 
supplements no. 4 or 7 to part 744 is a party to the transaction as 
described in Sec.  748.5(c) through (f) of the EAR, or when there is 
knowledge of any other prohibited end use or end user (other than 
the Sec.  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

0
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.


0
13. Effective November 17, 2023, Sec.  740.2 is amended by revising 
paragraphs (a)(9)(ii) introductory text and (a)(9)(ii)(B) to read as 
follows:


Sec.  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 Sec.  740.9(a)(6); NAC, under the 
provisions of Sec.  740.8; RPL, under the provisions of Sec.  740.10, 
including Sec.  740.10(a)(3)(v), which prohibits exports and reexports 
of replacement parts to a destination specified in Country Group E:1 
(see supplement no. 1 to this part)); GOV, restricted to eligibility 
under the provisions of Sec.  740.11(b); or TSU under the provisions of 
Sec.  740.13(a) and (c). Items restricted to eligibility only for the 
foregoing license exceptions are:
* * * * *
    (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).
* * * * *

0
14. Effective November 17, 2023, Sec.  740.7 is amended by revising 
paragraph (b)(1) to read as follows:


Sec.  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.
* * * * *

0
15. Effective November 17, 2023, Sec.  740.8 is added to read as 
follows:


Sec.  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

[[Page 73492]]

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 (in-country) 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 Sec.  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 Sec.  
744.21(f), or `military end user,' as defined in Sec.  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 Sec.  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 twenty-fifth 
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.

0
16. Effective November 17, 2023, Sec.  740.16 is amended by revising 
paragraphs (a)(2) and (b)(2)(ii) to read as follows:


Sec.  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;
* * * * *

0
17. Effective November 17, 2023, Sec.  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:


Sec.  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 self-classification 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 self-classified 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 self-
classification report in accordance with Sec.  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 (in-country) of the items submitted for

[[Page 73493]]

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 self-classification, as well as to non-``mass 
market'' encryption commodities and software that remain classified in 
ECCN 5A002, 5B002, or 5D002 following self-classification, 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;
* * * * *

0
18. Effective November 17, 2023, Sec.  740.19 is amended by revising 
paragraphs (b) introductory text and (b)(16) and adding paragraph 
(b)(17) to read as follows:


Sec.  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

0
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).


0
20. Effective November 17, 2023, Sec.  742.6 is amended by revising 
paragraphs (a)(6) and (b)(10) to read as follows:


Sec.  742.6  Regional stability.

    (a) * * *
    (6) RS requirement that applies to advanced computing and 
semiconductor manufacturing items--(i) Exports, reexports, transfers 
(in-country) to or within 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 Sec.  
734.9(h)(1)(i)(B)(1) and (h)(2)(ii) of the EAR.
    (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. 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

[[Page 73494]]

paragraphs (a)(6)(i) and (ii) of this section will be reviewed 
consistent with license review policies in Sec.  744.23(d) of the EAR, 
except applications will be reviewed on a case-by-case basis if no 
license would be required under part 744 of the EAR.
    (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.
* * * * *

0
21. Effective November 17, 2023, Sec.  742.15 is amended by revising 
the third, fourth, and fifth sentences of paragraph (a)(1) to read as 
follows:


Sec.  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 Sec.  
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 (in-country) 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

0
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).


0
23. Effective November 17, 2023, Sec.  744.6 is amended by revising 
paragraphs (c)(2)(i) and (ii) and adding paragraphs (c)(3) and (d)(1) 
to read as follows:


Sec.  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 ``advanced-node 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 ``advanced-node 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 
(in-country), 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 Sec.  748.3(c) of the EAR for guidance on specific 
fabrication facilities. To submit an Advisory Opinion request, email 
[email protected].
    (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 in-country 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

[[Page 73495]]

(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 Sec.  734.7 (entitled ``Published'') Tand 
Sec.  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.
* * * * *

0
24. Effective November 17, 2023, Sec.  744.23 is amended by revising 
paragraphs (a)(1)(ii) and (a)(2) and adding paragraph (a)(3) to read as 
follows:


Sec.  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 
``advanced-node 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 PRC-headquartered 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 Sec.  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 Sec.  734.9(h)(1)(i)(B)(1) and (h)(2)(ii) of the 
EAR.

* * * * *

PART 746--EMBARGOES AND OTHER SPECIAL CONTROLS

0
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).


0
26. Effective November 17, 2023, Sec.  746.8 is amended by revising 
paragraph (a) introductory text to read as follows:


Sec.  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 Sec.  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.
* * * * *

0
27. Effective November 17, 2023, Sec.  746.10 is amended by revising 
paragraph (a) introductory text to read as follows:


Sec.  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 Sec.  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

[[Page 73496]]

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

0
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).


0
29. Effective November 17, 2023, Sec.  748.8 is amended by adding 
paragraphs (d), (s), (t), and (z) to read as follows:


Sec.  748.8  Unique application and submission requirements.

* * * * *
    (d) U.S. person support activities that require a license under 
Sec.  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.

0
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 Sec.  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 Sec.  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.
* * * * *

0
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

----------------------------------------------------------------------------------------------------------------
                                                  Eligible items (by
         Country            Validated end-user           ECCN)         Eligible destination    Federal Register
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
China (People's Republic   Advanced Micro        3D002, 3D003, 3E001   Advanced Micro        75 FR 25763, 5/10/
 of).                       Devices China, Inc.   (limited to           Devices (Shanghai)    10.
                                                  ``technology'' for    Co., Ltd.,           76 FR 2802, 1/18/
                                                  items classified      Buildings 33 (Unit    11.
                                                  under 3C002 and       1), 46, 47, 48 &     78 FR 3319, 1/16/
                                                  3C004 and             49, River Front       13.
                                                  ``technology'' for    Harbor, Zhangjiang   81 FR 40785, 6/23/
                                                  use during the        Hi-Tech Park, No.     16.
                                                  International         1387 Zhang Dong      88 FR [INSERT PAGE
                                                  Technology Roadmap    Road, Pudong          NUMBER], 10/25/23.
                                                  for Semiconductors    District, Shanghai,
                                                  (ITRS) process for    China 201203.
                                                  items classified     AMD Technology
                                                  under ECCNs 3B001     Development
                                                  and 3B002), 3E002     (Beijing) Co.,
                                                  (limited to           Ltd., North and
                                                  ``technology'' for    South Buildings,
                                                  use during the ITRS   RaycomInfotech,
                                                  process for items     Park Tower C, No. 2
                                                  classified under      Science Institute
                                                  ECCNs 3B001 and       South Rd., Zhong
                                                  3B002), 3E003.e       Guan Cun, Haidian
                                                  (limited to the       District, Beijing,
                                                  ``development'' and   China 100190.
                                                  ``production'' of
                                                  integrated circuits
                                                  for commercial
                                                  applications),
                                                  4D001 and 4E001
                                                  (limited to the
                                                  ``development'' of
                                                  products under ECCN
                                                  4A003.b through .g).
                                                                       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      1C350.c.4,            Shanghai Huahong      78 FR 32981, 6/3/
                            Grace Semiconductor   1C350.d.14, 2B230,    Grace Semiconductor   13. 88 FR [INSERT
                            Manufacturing         2B350.d.2,            Manufacturing         PAGE NUMBER], 10/
                            Corporation.          2B350.g.3,            Corporation--HFab     25/23.
                                                  2B350.i.4,            2, 668 Guoshoujing
                                                  3B001.a.1, 3B001.b,   Road, Zhangjiang Hi-
                                                  3B001.e, 3B001.f,     Tech Park, Shanghai
                                                  3B001.h, 3C002,       201203 China.
                                                  3C004, 5B002, and    Shanghai Huahong
                                                  5E002 (controlled     Grace Semiconductor
                                                  by ECCNs 5A002.a      Manufacturing
                                                  through .e, 5A004.a   Corporation--HFab
                                                  through .b, or        1, 1188 Chuanqiao
                                                  5A992.c that have     Road, Pudong,
                                                  been successfully     Shanghai 201206
                                                  reviewed under the    China.
                                                  encryption review
                                                  process specified
                                                  in Sections
                                                  740.17(b)(2) or
                                                  740.17(b)(3) of the
                                                  EAR).

[[Page 73497]]

 
                                                                       Shanghai Huahong      ...................
                                                                        Grace Semiconductor
                                                                        Manufacturing
                                                                        Corporation--GFab1,
                                                                        1399 Zuchongzhi
                                                                        Road, Zhangjiang Hi-
                                                                        Tech Park, Shanghai
                                                                        201203 China.
                                                                 * * * * * *
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 758--EXPORT CLEARANCE REQUIREMENTS

0
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.



0
33. Effective November 17, 2023, Sec.  758.1 is amended by adding 
paragraph (g)(5) to read as follows:


Sec.  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.
* * * * *

0
34. Effective November 17, 2023, Sec.  758.6 is amended by revising 
paragraph (a)(2) to read as follows:


Sec.  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

0
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.


0
36. Effective November 17, 2023, Sec.  772.1 is amended by revising the 
last sentence in note 1 to the definition for ``specially designed'' to 
read as follows:


Sec.  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

0
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.


0
38. Effective November 17, 2023, supplement no. 1 to part 774 is 
amended by:
0
a. Revising ECCNs 3A001, 3A090, 3A991, 3D001, 3E001;
0
b. Revising Note 3 to Category 4--Computers;
0
c. Revising ECCNs 4A003, 4A004, 4A005, 4A090, 4A994, 4D001, and 4E001;
0
d. Revising Technical Note paragraph 2 in the TECHNICAL NOTE ON 
``ADJUSTED PEAK PERFORMANCE'' (``APP'') at the end Category 4--
Computers;
0
e. Revising the Note 3. to Category 5--Telecommunications and 
``Information Security'' Part 1--Telecommunications introductory text;
0
f. Revising ECCN 5E001;
0
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
0
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

 
                                            Country chart (see supp. No.
                Control(s)                         1 to part 738)
 
NS applies to ``Monolithic Microwave        NS Column 1.
 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 applies to entire entry, except 3A001.z  NS Column 2.

[[Page 73498]]

 
RS applies ``Monolithic Microwave           RS Column 1.
 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 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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
MT applies to 3A001.a.1.a and .z when       MT Column 1.
 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 [deg]C
 to above +125 [deg]C.
NP applies to pulse discharge capacitors    NP Column 1.
 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.
AT applies to entire entry................  AT Column 1.
 

Reporting Requirements: See Sec.  743.1 of the EAR for reporting 
requirements for exports under 3A001.b.2 or b.3 under License 
Exceptions, and Validated End-User authorizations.
License Requirements Note: See Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

LVS: N/A 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 x 10\3\ Gy(Si) = 5 x 10\5\ Rads (Si); 5 x 10\6\ Gy 
(Si)/s = 5 x 10\8\ 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 x 10\3\ Gy (Si), or higher;
    a.1.b. A dose rate upset of 5 x 10\6\ Gy (Si)/s, or higher; or
    a.1.c. A fluence (integrated flux) of neutrons (1 MeV 
equivalent) of 5 x 10\13\ n/cm\2\ 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 [deg]C);
    a.2.b. Rated for operation at an ambient temperature below 218 K 
(-55 [deg]C); or
    a.2.c. Rated for operation over the entire ambient temperature 
range from 218 K (-55 [deg]C) to 398 K (+125 [deg]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.

[[Page 73499]]

    Technical Notes: For the purposes of 3A001.a.5.a:
    1. A resolution of n bit corresponds to a quantization of 2\n\ 
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 (non-interpolating) 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 [mu]s.
    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 2\n\ 
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 non- interleaving ``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 radio-communications 
services, but not for radio-determination.
    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

[[Page 73500]]

    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 radio-communications 
services, but not for radio-determination.
    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/cm\2\ or a pulsed (non-continuous) current 
density at rated operating conditions exceeding 10 A/cm\2\;
    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 continuous-wave 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;

[[Page 73501]]

    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 cm\3\;
    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 cm\3\/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 x 10 cm\3\/W = 200 cm\3\.
    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 [mu]s 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 [mu]s 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 [mu]s 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 * 
GHz\2\/fGHz\2\] 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 bi-directional 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.

[[Page 73502]]

    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 [micro]s; 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 [micro]s and bandwidth in MHz) of more than 100;
    c.1.c.2. A dispersive delay of more than 10 [micro]s; 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 [deg]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 [deg]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/mm\2\;
    e.4. Solar cells, cell-interconnect-coverglass (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[deg]C) under simulated `AM0' illumination 
with an irradiance of 1,367 Watts per square meter (W/m\2\);
    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/[micro]s and off-state voltage greater than 1,100 V; or
    g.2. A maximum turn-on current rate of rise (di/dt) greater than 
2,000 A/[micro]s 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 [deg]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

[[Page 73503]]

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 electro-optic 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' (`V[pi]') less than 2.7 V when 
measured at a frequency of 1 GHz or below; or
    i.1.b. A `V[pi]' 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 `V[pi]' less than 3.3 V when measured at a frequency of 
1 GHz or below; or
    i.2.b. A `V[pi]' 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' (`V[pi]') 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

 
                                            Country chart (see Supp. No.
                Control(s)                         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 Sec.
                                             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 x `MacTOPS' x 
`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 (10\12\) operations per second for multiply-
accumulate computation (D = A x B + C).
    b. The 2 in the `TPP' formula is based on industry convention of 
counting one multiply-accumulate computation, D = A x B + C, as 2 
operations for purpose of datasheets. Therefore, 2 x 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 x 300 `MacTOPS') at 8 
bits or 300 tera FLOPS (or 2 x 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

[[Page 73504]]



 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
AT applies to entire entry................  AT Column 1.
 

License Requirements Note: See Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

LVS: N/A
GBS: N/A

List of Items Controlled

Related Controls: (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 read-only memories 
(EEPROMs) with a storage capacity;
    b.1.a. Exceeding 16 Mbits per package for flash memory types; or
    b.1.b. Exceeding either of the following limits for all other 
EEPROM types:
    b.1.b.1. Exceeding 1 Mbit per package; or
    b.1.b.2. Exceeding 256 kbit per package and a maximum access 
time of less than 80 ns;
    b.2. Static random access memories (SRAMs) with a storage 
capacity:
    b.2.a. Exceeding 1 Mbit per package; or
    b.2.b. Exceeding 256 kbit per package and a maximum access time 
of less than 25 ns;
    c. Analog-to-digital converters having any of the following:
    c.1. A resolution of 8 bit or more, but less than 12 bit, with 
an output rate greater than 200 million words per second;
    c.2. A resolution of 12 bit with an output rate greater than 105 
million words per second;
    c.3. A resolution of more than 12 bit but equal to or less than 
14 bit with an output rate greater than 10 million words per second; 
or
    c.4. A resolution of more than 14 bit with an output rate 
greater than 2.5 million words per second;
    d. Field programmable logic devices having a maximum number of 
single-ended digital input/outputs between 200 and 700;
    e. Fast Fourier Transform (FFT) processors having a rated 
execution time for a 1,024 point complex FFT of less than 1 ms;
    f. Custom integrated circuits for which either the function is 
unknown, or the control status of the equipment in which the 
integrated circuits will be used is unknown to the manufacturer, 
having any of the following:
    f.1. More than 144 terminals; or
    f.2. A typical ``basic propagation delay time'' of less than 0.4 
ns;
    g. Traveling-wave ``vacuum electronic devices,'' pulsed or 
continuous wave, as follows:
    g.1. Coupled cavity devices, or derivatives thereof;
    g.2. Helix devices based on helix, folded waveguide, or 
serpentine waveguide circuits, or derivatives thereof, with any of 
the following:
    g.2.a. An ``instantaneous bandwidth'' of half an octave or more; 
and
    g.2.b. The product of the rated average output power (expressed 
in kW) and the maximum operating frequency (expressed in GHz) of 
more than 0.2;
    g.2.c. An ``instantaneous bandwidth'' of less than half an 
octave; and
    g.2.d. The product of the rated average output power (expressed 
in kW) and the maximum operating frequency (expressed in GHz) of 
more than 0.4;
    h. Flexible waveguides designed for use at frequencies exceeding 
40 GHz;
    i. Surface acoustic wave and surface skimming (shallow bulk) 
acoustic wave devices (i.e., ``signal processing'' devices employing 
elastic waves in materials), having either of the following:
    i.1. A carrier frequency exceeding 1 GHz; or
    i.2. A carrier frequency of 1 GHz or less; and
    i.2.a. A frequency side-lobe rejection exceeding 55 Db;
    i.2.b. A product of the maximum delay time and bandwidth (time 
in microseconds and bandwidth in MHz) of more than 100; or
    i.2.c. A dispersive delay of more than 10 microseconds;
    j. Cells as follows:
    j.1. Primary cells having an energy density of 550 Wh/kg or less 
at 293 K (20 [deg]C);
    j.2. Secondary cells having an energy density of 350 Wh/kg or 
less at 293 K (20 [deg]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/mm\2\;
    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/M\3\ 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 10\12\ Operations per 
Second.
    3. For purposes of 3A991.p, TOPS is 2 x `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[supcaret]12) operations per second for multiply-
accumulate computation (D = A x B + C).

[[Page 73505]]

    b. The 2 in the formula is based on industry convention of 
counting one multiply-accumulate computation, D = A x B + C, as 2 
operations for purpose of datasheets. Therefore, 2 x `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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to ``software'' for commodities  NS Column 1.
 controlled by 3A001.b to 3A001.h, 3A002,
 and 3B (except 3B001.a.4, c, d, f.1.b, k
 to p, 3B002.b and c).
NS applies to ``software'' for commodities  To or within destinations
 controlled by 3B001.a.4, c, d, f.1.b, k     specified in Country Group
 to p, 3B002.b and c.                        D:5 of supplement no. 1 to
                                             part 740 of the EAR or
                                             Macau. See Sec.
                                             742.4(a)(4) of the EAR.
RS applies to ``software'' for commodities  To or within destinations
 controlled by 3A001.z and 3A090.            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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
 

Reporting Requirements

See Sec.  743.1 of the EAR for reporting requirements for exports 
under License Exceptions, Special Comprehensive Licenses, and 
Validated End-User authorizations.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

TSR: Yes, except for ``software'' ``specially designed'' for the 
``development'' or ``production'' of Traveling Wave Tube Amplifiers 
described in 3A001.b.8 having operating frequencies exceeding 18 
GHz; 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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to ``technology'' for            NS Column 1.
 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 applies to ``technology'' for 3B001      To or within Macau or a
 a.4, c, d, f.1.b, k to p, 3B002.b and c.    destination specified in
                                             Country Group D:5 of
                                             supplement no. 1 to part
                                             740 of the EAR. See Sec.
                                             742.4(a)(4) of the EAR.
MT applies to ``technology'' for            MT Column 1.
 commodities controlled by 3A001 (except
 for 3A001.z) or 3A101 for MT Reasons.
NP applies to ``technology'' for            NP Column 1.
 commodities controlled by 3A001 (except
 3A001.z), 3A201, or 3A225 to 3A234 for NP
 reasons.
RS applies to ``technology'' for            Worldwide (See Sec.
 commodities controlled in 3A090, when       742.6(a)(6)(ii).
 exported from Macau or a destination
 specified in Country Group D:5.
RS applies to ``technology'' for            To or within destinations
 commodities controlled by 3A001.z, 3A090.   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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
RS applies to ``technology'' for            To or within destinations
 commodities controlled by 3B001.a.4, c,     specified in Country Group
 d, f.1.b, k to p, 3B002.b and c.            D:5 of supplement no. 1 to
                                             part 740 of the EAR or
                                             Macau. See Sec.
                                             742.6(a)(6)(i) of the EAR.
AT applies to entire entry................  AT Column 1.
 

License Requirements Note: See Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

Reporting Requirements

See Sec.  743.1 of the EAR for reporting requirements for exports 
under License Exceptions, Special Comprehensive Licenses, and 
Validated End-User authorizations.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

TSR: Yes, except N/A for MT, and ``technology'' for the 
``development'' or ``production'' of: (a) vacuum electronic device 
amplifiers described in 3A001.b.8, having operating frequencies 
exceeding 19 GHz; (b) solar cells, coverglass-interconnect-cells or 
covered-interconnect-cells (CIC) ``assemblies'', solar arrays and/or 
solar panels described in 3A001.e.4; (c) ``Monolithic Microwave 
Integrated Circuit'' (``MMIC'') amplifiers in 3A001.b.2; (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

[[Page 73506]]

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 [mu]m; and
    (b) Incorporating multi-layer structures with three or fewer 
metal layers.
    Note 3: 3E001 does not apply to `Process Design Kits' (`PDKs') 
unless they include libraries implementing functions or technologies 
for items specified by 3A001.
    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

 
                                            Country chart (see Supp. No.
                Control(s)                         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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
CC applies to ``digital computers'' for     CC Column 1.
 computerized finger-print equipment.
AT applies to entire entry (refer to 4A994  AT Column 1.
 for controls on ``digital computers''
 with a APP >0.0128 but <=70 WT).
 

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 Sec.  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 Sec.  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 Sec.  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:

[squf] 1. The related equipment is exported, reexported, or 
transferred (in-country) as part of a computer system,
[squf] 2. The computer system is either designated as NLR or 
eligible for License Exception APP, and
[squf] 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.

[[Page 73507]]

    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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry (except          NS Column 2.
 4A004.z).
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 Sec.
                                             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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry (except          NS Column 1.
 4A005.z).
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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
 

Reporting Requirements

See Sec.  743.1 of the EAR for reporting requirements for exports 
under License Exceptions, 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 
Sec.  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 Sec.  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

 
                                            Country chart (see Supp. No.
                Control(s)                         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 Sec.
                                             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

[[Page 73508]]



 
                                            Country chart (see Supp. No.
                Control(s)                         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 [deg]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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry, except          NS Column 1.
 4A003.z, 4A004.z, and 4A005.z.
RS applies to ``software'' for commodities  To or within destinations
 controlled by 4A003.z, 4A004.z, and         specified in Country Groups
 4A005.z.                                    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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
CC applies to ``software'' for              CC Column 1.
 computerized finger-print equipment
 controlled by 4A003 for CC reasons.
AT applies to entire entry................  AT Column 1.
 

Reporting Requirements

See Sec.  743.1 of the EAR for reporting requirements for exports 
under License Exceptions, 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 Sec.  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 Sec.  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).

[[Page 73509]]

License Requirements

Reason for Control: NS, MT, RS, CC, AT

 
                                              Country chart  (see Supp.
                Control(s)                       No. 1 to part 738)
 
NS applies to entire entry, except for      NS Column 1.
 technology for 4A003.z, 4A004.z, 4A005.z,
 4A090 or ``software'' specified by 4D001
 (for 4A003.z, 4A004.z or 4A005.z), 4D090.
MT applies to ``technology'' for items      MT Column 1.
 controlled by 4A001.a and 4A101 for MT
 reasons.
RS applies to ``technology'' for            To or within destinations
 commodities controlled by 4A003.z,          specified in Country Groups
 4A004.z, 4A005.z, 4A090 or ``software''     D:1, D:4, and D:5 of
 specified by 4D001 (for 4A003.z, 4A004.z,   supplement no. 1 to part
 and 4A005.z), 4D090.                        740 of the EAR, excluding
                                             any destination also
                                             specified in Country Groups
                                             A:5 or A:6. See Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
CC applies to ``software'' for              CC Column 1.
 computerized finger-print equipment
 controlled by 4A003 (except 4A003.z) for
 CC reasons.
AT applies to entire entry................  AT Column 1.
 

Reporting Requirements

See Sec.  743.1 of the EAR for reporting requirements for exports 
under License Exceptions, 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 Sec.  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 Sec.  
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

 
                                              Country chart  (see Supp.
                Control(s)                       No. 1 to part 738)
 
NS applies to entire entry................  NS Column 1.
SL applies to ``technology'' for the        A license is required for
 ``development'' or ``production'' of        all destinations, as
 equipment, functions or features            specified in Sec.   742.13
 controlled by 5A001.f.1, or for the         of the EAR. Accordingly, a
 ``development'' or ``production'' of        column specific to this
 ``software'' controlled by ECCN 5D001.a     control does not appear on
 (for 5A001.f.1).                            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.
 


[[Page 73510]]

Reporting Requirements

See Sec.  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 Sec.  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, multi-mode, multi-coding 
algorithm or multi-protocol 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 non-telecommunications 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 radio-communications services, but not 
for radio-determination.
    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

[[Page 73511]]

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 Sec.  
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 Sec.  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

 
                                              Country chart  (see Supp.
                Control(s)                       No. 1 to part 738)
 
NS applies to entire entry (except          NS Column 1.
 5A002.z).
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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
EI applies to entire entry................  Refer to Sec.   742.15 of
                                             the EAR.
 

    License Requirements Note: See Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

List Based License Exceptions (See Part 740 for 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 Sec.  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 Sec.  
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:

[[Page 73512]]

    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 non-published) 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 'non-arbitrary 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

[[Page 73513]]

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

 
                                            Country chart (see Supp. No.
                Control(s)                         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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
 

License Requirements Note: See Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

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 Sec.  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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry (except          NS Column 1.
 5A004.z).
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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
EI applies to entire entry................  Refer to Sec.   742.15 of
                                             the EAR.
 

License Requirements Note: See Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

LVS: 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 Sec.  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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry................  NS Column 1.
AT applies to entire entry................  AT Column 1.
 

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

LVS: N/A
GBS: N/A
ENC: Yes for certain EI controlled equipment, see Sec.  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

[[Page 73514]]



 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry (except          NS Column 1.
 5D002.z).
RS applies to ``software'' controlled by    To or within destinations
 5D002.z.                                    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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
EI applies to ``software'' in 5D002.a.1,    Refer to Sec.   742.15 of
 a.3, .b, c.1 and c.3, for commodities or    the EAR. Note: Encryption
 ``software'' controlled for EI reasons in   software is controlled
 ECCN 5A002, 5A004 or 5D002.                 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 Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

TSR: N/A
ENC: Yes for certain EI controlled software, except for 5D002.z. See 
Sec.  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 Sec.  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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
RS applies to ``software'' controlled by    To or within destinations
 5D992.z.                                    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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
 

License Requirements Note: See Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

TSR: 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 Sec.  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

[[Page 73515]]



 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry (except          NS Column 1.
 ``technology'' for commodities controlled
 by 5A002.z or 5A004.z or ``software''
 specified by 5D002 (for 5A002.z or
 5A004.z commodities).
RS applies to ``technology'' for            To or within destinations
 commodities controlled by 5A002.z or        specified in Country Groups
 5A004.z or ``software'' specified by        D:1, D:4, and D:5 of
 5D002 (for 5A002.z or 5A004.z               supplement no. 1 to part
 commodities).                               740 of the EAR, excluding
                                             any destination also
                                             specified in Country Groups
                                             A:5 or A:6. See Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
EI applies to ``technology'' in 5E002.a     Refer to Sec.   742.15 of
 for commodities or ``software''             the EAR.
 controlled for EI reasons in ECCNs 5A002,
 5A004 or 5D002, and to ``technology'' in
 5E002.b.
 

License Requirements Notes:
(1) See Sec.  744.17 of the EAR for additional license requirements 
for microprocessors having a processing speed of 5 GFLOPS or more 
and an arithmetic logic unit with an access width of 32 bit or more, 
including those incorporating ``information security'' 
functionality, and associated ``software'' and ``technology'' for 
the ``production'' or ``development'' of such microprocessors.
(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 Sec.  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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
RS applies to ``technology'' for            To or within destinations
 commodities controlled by 5A992.z or        specified in Country Groups
 ``software'' controlled by 5D992.z.         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 Sec.
                                             742.6(a)(6)(iii) of the
                                             EAR.
AT applies to entire entry................  AT Column 1.
 

License Requirements Note: See Sec.  744.17 of the EAR for 
additional license requirements for microprocessors having a 
processing speed of 5 GFLOPS or more and an arithmetic logic unit 
with an access width of 32 bit or more, including those 
incorporating ``information security'' functionality, and associated 
``software'' and ``technology'' for the ``production'' or 
``development'' of such microprocessors.

List Based License Exceptions (See Part 740 for a Description of All 
License Exceptions)

TSR: 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'' on-board 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

 
                                            Country chart (see Supp. No.
                Control(s)                         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   AT Column 1.
 .y.
 

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''.

[[Page 73516]]

    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 interagency-
cleared commodity classification (CCATS) pursuant to Sec.  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

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry, except .e and   NS Column 1.
 .y.
RS applies to entire entry, except .e and   RS Column 1.
 .y.
RS applies to 9A515.e.....................  RS Column 2.
RS applies to 9A515.y, except to Russia     China, Russia or Venezuela
 for use in, with, or for the                (see Sec.   742.6(a)(7)).
 International Space Station (ISS),
 including launch to the ISS.
MT applies to microcircuits in 9A515.d and  MT Column 1.
 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 x 10\5\
 newton seconds.
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 Sec.  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 (Sec.  
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 Sec.  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 (Sec.  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 Sec.  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 (in-
country) 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 (in-country) 
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

[[Page 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 x 10\5\ Rads (Si) (5 x 10\3\ Gy (Si));
    d.2. A dose rate upset threshold of 5 x 10\8\ Rads (Si)/sec (5 x 
10\6\ Gy (Si)/sec);
    d.3. A neutron dose of 1 x 10\14\ n/cm\2\ (1 MeV equivalent);
    d.4. An uncorrected single event upset sensitivity of 1 x 
10-10 errors/bit/day or less, for the CR[Egrave]ME-MC 
geosynchronous orbit, Solar Minimum Environment for heavy ion flux; 
and
    d.5. An uncorrected single event upset sensitivity of 1 x 
10-10 errors/part or less for a fluence of 1 x 10\7\ 
protons/cm\2\ 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 x 10\5\ Rads (Si) (1 x 10\3\ Gy(Si)) and 
<5 x 10\5\ Rads (Si) (5 x 10\3\ 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-cm\2\/mg; or
    e.2. A total dose >=5 x 10\5\ Rads (Si) (5 x 10\3\ 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 Sec.  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.
* * * * *

0
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


