Additions to the List of Validated End-Users in the People's Republic of China: Hynix Semiconductor China Ltd., Hynix Semiconductor (Wuxi) Ltd. and Lam Research Corporation

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

In this final rule, the Bureau of Industry and Security amends the Export Administration Regulations (EAR) to add three end-users, Hynix Semiconductor (China) Ltd., Hynix Semiconductor (Wuxi) Ltd. and Lam Research Corporation to the list of validated end-users in the People's Republic of China (PRC). With this rule, exports, reexports and transfers (in-country) of certain items to one facility of Hynix Semiconductor (China) Ltd., one facility of Hynix Semiconductor (Wuxi) Ltd. and nine facilities of Lam Research Corporation in the PRC are now authorized under Authorization Validated End-User (VEU).

DATES:

This rule is effective October 12, 2010. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.

ADDRESSES:

You may submit comments, identified by RIN 0694-AE95, by any of the following methods:

E-mail: publiccomments@bis.doc.gov Include “RIN 0694-AE95” in the subject line of the message.

Fax: (202) 482-3355. Please alert the Regulatory Policy Division, by calling (202) 482-2440, if you are faxing comments.

Mail or Hand Delivery/Courier: Sheila Quarterman, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th Street & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, Attn: RIN 0694-AE 95.

Send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to Jasmeet_K._Seehra@omb.eop.gov or by fax to (202) 395-7285. Comments on this collection of information should be submitted separately from comments on the final rule (i.e., RIN 0694-AE95)—- all comments on the latter should be submitted by one of the three methods outlined above.

FOR FURTHER INFORMATION CONTACT:

Karen Nies-Vogel, Chairman, End-User Review Committee, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street & Pennsylvania Avenue, NW., Washington, DC 20230; by telephone (202) 482-3811, or by e-mail to kniesv@bis.doc.gov.

SUPPLEMENTARY INFORMATION:

Background

Authorization Validated End-User (VEU): The List of Approved End-Users, Eligible Items and Destinations in the People's Republic of China (PRC)

Consistent with U.S. Government policy to facilitate trade for civilian end-users in the PRC, BIS amended the EAR in a final rule on June 19, 2007 (72 FR 33646) by creating a new authorization for “validated end-users” located in eligible destinations to which eligible items may be exported, reexported or transferred under a general authorization instead of a license, in conformance with section 748.15 of the EAR. Validated end-users may obtain eligible items that are on the Commerce Control List, set forth in Supplement No. 1 to part 774 of the EAR, without having to wait for their suppliers to obtain export licenses from BIS. Eligible items may include commodities, software and technology, except those controlled for missile technology or crime control reasons.

Authorization VEU is a mechanism to facilitate increased high-technology exports to companies in eligible destinations that have a verifiable record of civilian uses for such items. The validated end-users listed in Supplement No. 7 to Part 748 of the EAR were reviewed and approved by the U.S. Government in accordance with the provisions of Section 748.15 and Supplement Nos. 8 and 9 to Part 748 of the EAR. In addition to U.S. exporters, Authorization VEU may be used by foreign reexporters as well as by persons transferring in-country, and does not have an expiration date. Currently, validated end-users are located in the PRC and India.

Addition of Hynix Semiconductor China Ltd., Hynix Semiconductor (Wuxi) Ltd. and Lam Research Corporation to the List of Validated End-Users in the PRC and the Corporations' Respective “Eligible Items (By ECCN)” and “Eligible Destinations”

This final rule amends Supplement No. 7 to Part 748 of the EAR to designate Hynix Semiconductor China Ltd. (HSCL), Hynix Semiconductor (Wuxi) Ltd. (HSMC) and Lam Research Corporation (Lam), as validated end-users, to identify the eligible facilities of HNSL, HSMC and Lam and to identify the items that may be exported, reexported or transferred (in-country) to HSCL's, HSMC's and Lam's specified eligible facilities under Authorization VEU. The names and addresses of these newly approved validated end-users and their eligible facilities are as follows:

Validated End-Users

Hynix Semiconductor China Ltd.

Hynix Semiconductor (Wuxi) Ltd.

Lam Research Corporation.

Eligible Destination for Hynix Semiconductor China Ltd.

Hynix Semiconductor China Ltd., Lot K7/K7-1, Export Processing Zone, Wuxi, Jiangsu, PR China.

Eligible Destination for Hynix Semiconductor (Wuxi) Ltd.

Hynix Semiconductor (Wuxi) Ltd., Lot K7/K7-1, Export Processing Zone, Wuxi, Jiangsu, PR China.

Eligible Items That May Be Exported, Reexported or Transferred (In-Country) to the Two Eligible Destinations (Facilities) Under HSCL's and HSMC's Validated End-User Authorizations

Equipment for the manufacturing of semiconductor devices or materials classified under Export Control Classification Numbers (ECCNs) 3B001.a, 3B001.b, 3B001.c, 3B001.d, 3B001.e, and 3B001.f.

Eligible Destinations for Lam Research Corporation

Lam Research (Shanghai) Service Co., 1st Floor, Area C, Hua Hong Science & Technology Park, 177 Bi Bo Road, Zhangjiang Hi-Tech Park, Pudong, Shanghai, China 201203.

Lam Research Shanghai Co., Ltd., No. 1 Jilong Rd., Room 424-2, Waigaoqiao Free Trade Zone, Shanghai, China 200131.

Lam Research International Sarl (Shanghai TSS), c/o HMG Logistic (Shanghai) Co., Ltd., No.55, West Shang Feng Road, Tangzhen, Pudong New Area, Shanghai, China 201203.

Lam Research Shanghai Co., Ltd. (Shanghai WGQ Bonded Warehouse), No. 55, Fei la Road, Waigaoqiao Free Trade Zone, Pudong New Area, Shanghai, China 200131.

Lam Research Co., Ltd. (Beijing Branch), Room 322 Dadi Mansion, No. 18 Hongda Beilu, Beijing Economic & Technological Development Area, Beijing, China 100176.

Lam Research Co., Ltd. (Wuxi Representative Office), 5E, Bldg. C, International Science & Technology Park, #2 Taishan Road, WND, Wuxi, Jiangsu, China 214028.

Lam Research International Sarl (Wuxi EPZ Bonded Warehouse), c/o HMG WHL Logistic (Wuxi) Co., Ltd., F1, Area 4, No. 1, Plot J3, No. 5 Gaolang East Road, Export Processing Zone, Wuxi, China 214028,

Lam Research Co., Ltd. (Wuhan Representative Office), Room 1810, Guanggu International Building B, 456 Luoyu Road, East-Lake Hi-Tech Development Zone, Wuhan City, Hubei Province, China 430074.

Lam Research International Sarl (Wuhan TSS), c/o HMG Wuhan Logistic Co., Ltd., 1st—2nd Floor, No. 5 Building, Hua Shi Yuan Er Road, Optical Valley Industry Park, East-Lake Hi-Tech Development Zone, Wuhan City, Hubei Province, China 430223.

Eligible Items That May Be Exported, Reexported or Transferred (In-Country) to the Nine Eligible Destinations (Facilities) Under Lam's Validated End-User Authorization

Items classified under Export Control Classification Numbers (ECCNs) 2B230, 2B350.c, 2B350.d, 2B350.g, 2B350.h, 2B350.i, 3B001.c, 3B001.e (items controlled under 3B001.c and 3B001.e are limited to parts and components) 3D001, 3D002 (limited to “software” specially designed for the “use” of stored program controlled items classified under ECCN 3B001), and 3E001 (limited to “technology” according to the General Technology Note for the “development” of equipment controlled by ECCN 3B001).

Approving these end-users as validated end-users is expected to further facilitate exports to civilian end-users in the PRC, and is expected to result in a significant savings of time and resources for suppliers and the eligible facilities. Authorization VEU eliminates the burden on exporters and reexporters of preparing individual license applications, as exports, reexports and transfers (in-country) of eligible items to these facilities may now be made under general authorization instead of under individual licenses. With this change, exporters and reexporters can supply validated end-users in the PRC much more quickly, thus enhancing the competitiveness of the exporters, reexporters, and end-users in the PRC.

To ensure appropriate facilitation of exports and reexports, on-site reviews of validated end-users may be warranted pursuant to paragraph 748.15(f)(2) and section 7(iv) of Supplement No. 8 to Part 748 of the EAR. If such reviews are warranted, BIS will inform the PRC Ministry of Commerce.

Since August 21, 2001, the Export Administration Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 12, 2010 (75 FR 50681 (August 16, 2010), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

Rulemaking Requirements

1. This final rule has been determined to be not significant for the purposes of Executive Order 12866.

2. This rule involves collections previously approved by the OMB under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748; and for recordkeeping, reporting and review requirements in connection with Authorization Validated End-User, which carries and estimated burden of 30 minutes per submission. This rule is expected to result in a decrease in license applications submitted to BIS. Total burden hours associated with the Paperwork Reduction Act and Office of Management and Budget control number 0694-0088 are not expected to increase significantly as a result of this rule.

Notwithstanding any other provisions of law, no person is required to respond to nor 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.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that the rule be subject to notice and the opportunity for public comment because such notice and comment here are unnecessary. In determining whether to grant validated end-user designations, a committee of U.S. Government agencies evaluates information about candidate companies and commitments made by candidate companies, the nature and terms of which are set forth in 15 CFR part 748, Supplement No. 8. The criteria for evaluation by the committee are set forth in 15 CFR § 748.15(a)(2).

The information, commitments and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (71 FR 38313, July 2, 2006 and 72 FR 33646, June 19, 2007). Given the similarities between the authorizations provided under Validated End-User (VEU) and export licenses (as discussed further below), the publication of this information does not establish any new policy; in publishing this final rule, BIS is simply adding validated end-users within the established regulatory framework of the VEU program. Further, this rule does not abridge the rights of the public or eliminate the public's option to export under any of the forms of authorization set forth in the EAR.

Publication of this rule in other than final form is unnecessary because the authorization granted in the rule is similar to that granted to exporters for individual licenses, which do not undergo public review. Individual license application applicants and VEU authorization applicants both provide the U.S. Government with confidential business information. This information is extensively reviewed according to the criteria for VEU authorizations, as set out in 15 CFR 748.15(a)(2). Like individual export licenses, VEU applications are vetted by an interagency committee drawing on public and non-public sources, including licensing data, and measured against the VEU authorization criteria. The authorizations granted under the VEU program, and through individual export licenses, involve interagency deliberation according to set criteria. Given the thorough nature of the review, and in light of the parallels between this process and the non-public review of license applications, public comment on this authorization prior to publication is unnecessary. Moreover, as noted above, the criteria and process for authorizing VEUs were developed with public comments; allowing additional public comment on this individual VEU authorization, which was determined according to those criteria, is therefore unnecessary.

Section 553(d) of the APA generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register. However, section 553(d)(1) of the APA provides that a substantive rule which grants or recognizes an exemption or relieves a restriction, may take effect earlier. Today's final rule grants an exemption from licensing procedures, so we make this final rule effective immediately.

No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable and no regulatory flexibility analysis has been prepared.

List of Subjects in 15 CFR Part 748

• Administrative practice and procedure
• Exports
• Reporting and recordkeeping requirements

Accordingly, part 748 of the Export Administration Regulations (15 CFR Parts 730-774) is amended as follows:

PART 748—[AMENDED]

1. The authority citation for 15 CFR Part 748 continues to read as follows:

Authority: 50 U.S.C. app. 2401 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 12, 2010, 75 FR 50681 (August 16, 2010).

2. Supplement No. 7 to Part 748 is amended by adding three entries, “Hynix Semiconductor China Ltd.”, “Hynix Semiconductor (Wuxi) Ltd.”, and “Lam Research Corporation”, in “China (People's Republic of)” in alphabetical order 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 AND ELIGIBLE DESTINATIONS