Section 744.23 - "Supercomputer," "advanced-node integrated circuits," and semiconductor manufacturing equipment end use controls(a)General prohibition. In addition to the license requirements for items specified on the CCL, you may not export, reexport, or transfer (in-country) without a license any item subject to the EAR described in paragraphs (a)(1) through (4) of this section when you have "knowledge" at the time of export, reexport, or transfer (in-country) that the item is destined for a destination, end use, or type of end user described in paragraphs (a)(1) through (4) of this section, unless excluded by paragraph (a)(5) of this section. (1)"Supercomputers" - (i)Item scope.(A) An integrated circuit (IC) subject to the EAR and specified in ECCN 3A001, 3A991, 4A994, 5A002, 5A004, or 5A992; or(B) A computer, "electronic assembly," or "component" subject to the EAR and specified in ECCN 4A003, 4A004, 4A994, 5A002, 5A004, or 5A992. (ii)Destination and end-use scope.(A) The "development," "production," 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 § 734.9(h)(1)(i)(B) ( 1) and (h)(2)(ii) of the EAR;(C) The "technology" is for reexport or transfer (in-country) from or within a destination specified in Country Group D:1, D:4, D:5, excluding any destination also specified in Country Groups A:5 or A:6, to any destination worldwide; and(D) The "technology" is for the "production" of commodities or software specified in ECCN 3A001.z, 3A090, 4A003.z, 4A004.z, 4A005.z, 4A090, 5A002.z, 5A004.z, or 5A992.z. Note 1 to paragraph (a)(3)(ii):
This paragraph (a)(3)(ii) includes items subject to the EAR pursuant to the foreign direct product rule in § 734.9(h)(1)(i)(B) ( 1) and (h)(2)(ii) of the EAR.
(4)Semiconductor manufacturing equipment (SME). Any item subject to the EAR and specified on the CCL when destined to either Macau or a destination specified in Country Group D:5 for the "development" or "production" of 'front-end integrated circuit "production" equipment' and "components," "assemblies," and "accessories" therefor specified in ECCN 3B001 (except 3B001.g, .h, and .j), 3B002, 3B611, 3B991 (except 3B991.b.2), or 3B992. Note 1 to paragraph (a)(4):
Front-end integrated circuit "production" equipment includes equipment used in the production stages from a blank wafer or substrate to a completed wafer or substrate (i.e., the integrated circuits are processed but they are still on the wafer or substrate). If there is a question at the time of export, reexport, or transfer (in-country) about whether equipment is used in front-end integrated circuit "production," you may submit an advisory opinion request to BIS pursuant to § 748.3(c) of the EAR for clarification.
(5)Back-end exclusion. For purposes of paragraph (a)(2) of this section, the term "production" does not apply to back-end steps such as assembly, test, or packaging that do not alter the integrated circuit technology level. If there is a question at the time of export, reexport, or transfer (in-country) about whether a manufacturing stage is back-end or whether a back-end activity alters the technology level, you may submit an Advisory Opinion request to BIS pursuant to § 748.3(c) of the EAR for clarification.(b)Additional prohibition on persons informed by BIS. BIS may inform persons, either individually by specific notice or through amendment to the EAR published in the Federal Register , that a license is required for a specific export, reexport, or transfer (in-country) of any item subject to the EAR to a certain end-user, because there is an unacceptable risk of use in, or diversion to, the end uses specified in paragraphs (a)(1) through (4) of this section. Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by a written notice within two working days signed by the Deputy Assistant Secretary for Export Administration or the Deputy Assistant Secretary's designee. However, the absence of any such notification does not excuse persons from compliance with the license requirements of paragraph (a) of this section.(c)License exceptions. No license exceptions may overcome the prohibition described in paragraph (a) of this section.(d)License review standards. Applications will be reviewed with a presumption of denial for Macau and destinations specified in Country Group D:5. However, there is a presumption of approval license review policy when there is a foreign-made item available that is not subject to the EAR and performs the same function as the item subject to the EAR, and for end users headquartered in the United States or a destination in Country Group A:5 or A:6, that are not majority-owned by an entity headquartered in either Macau or a destination specified in Country Group D:5. For all other applications, there is a case-by-case license review policy. License review will take into account factors including technology level, customers, and compliance plans. Contract sanctity will be a factor in the review of all applications.87 FR 62201, Oct. 13, 2022, as amended at 88 FR 2826, Jan. 18, 2023 87 FR 62200, 62201, 10/13/2022; as amended at 88 FR 2826, 1/18/2023; 88 FR 73449, 73495, 11/17/2023