Additions and Revisions to the List of Validated End-Users in the People's Republic of China: CSMC Technologies Corporation and Advanced Micro Devices China, Inc.

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to add one end-user, CSMC Technologies Corporation (CSMC), 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 three CSMC facilities in the PRC are now authorized under Authorization Validated End-User. In this rule, BIS also amends the EAR to revise the validated end-user authorization for Advanced Micro Devices China, Inc. (AMD) in the PRC by amending the list of buildings associated with one of the company's approved facilities and by updating the description of items eligible for export, reexport, or transfer (in-country) to AMD's approved facilities.

DATES:

This rule is effective January 18, 2011. 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-AF07, by any of the following methods:

E-mail: publiccomments@bis.doc.gov. Include “RIN 0694-AF07” 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-AF07.

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-AF07). All comments on the latter should be submitted by one of the three methods outlined above.

FOR FURTHER INFORMATION CONTACT:

Karen Nies-Vogel, Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, U.S. Department of Commerce, Phone: (202) 482-5991, Fax: (202) 482-3911, E-mail: ERC@bis.doc.gov.

SUPPLEMENTARY INFORMATION:

Background

Authorization Validated End-User (VEU): The List of Approved End-Users, Eligible Items and Destinations in the 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” (VEUs) 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. VEUs 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 end-uses for such items. The VEUs 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 and by persons transferring in-country, and it does not have an expiration date. As of the date of this rule, pursuant to section 748.15(b) of the EAR, VEUs are only located in the PRC and India.

Addition of CSMC Technologies Corporation to the List of Validated End-Users in the PRC and CSMC Technologies Corporation's “Eligible Items (by ECCN)” and “Eligible Destinations”

This final rule amends Supplement No. 7 to Part 748 of the EAR to designate CSMC Technologies Corporation (CSMC) as a validated end-user, to identify the eligible destinations of CSMC (referred to as “Facilities”), and to identify the items that may be exported, reexported, or transferred (in-country) to CSMC's specified eligible facilities under Authorization VEU. The name and address of this newly approved VEU and the names and addresses of its eligible facilities are as follows:

Validated End-User

CSMC Technologies Corporation

Eligible Destinations for CSMC Technologies Corporation

CSMC Technologies Fab 1 Co., Ltd., 14 Liangxi Road, Wuxi, Jiangsu 214061, China.

CSMC Technologies Fab 2 Co., Ltd., Block 86, 87, Wuxi National Hi-New Tech Industrial Development Zone, Wuxi, Jiangsu 214061, China.

Wuxi CR Semiconductor Wafers and Chips Co., Ltd., 14 Liangxi Road, Wuxi, Jiangsu 214061, China.

Eligible Items That May Be Exported, Reexported, or Transferred (In-Country) to the Three “Eligible Destinations” Under CSMC Technologies Corporation's Validated End-User Authorization

Items classified under Export Control Classification Numbers 1C350.c.3, 1C350.c.11, 2B230.a, 2B230.b, 2B350.f, 2B350.g, 2B350.h, 3B001.c.1.a, 3B001.c.2.a, 3B001.e, 3C002.a, 3C004.

Revisions to the Authorization for Validated End-User Advanced Micro Devices China, Inc.

This final rule also amends Supplement No. 7 to Part 748 of the EAR by revising the list of Advanced Micro Devices China, Inc.'s (AMD) eligible facilities. Specifically, this rule adds three new buildings to the facility authorization for Advanced Micro Devices (Shanghai) Co., Ltd. (AMD Shanghai), which is one of AMD's three approved facilities. Accordingly, the address for AMD Shanghai has been amended by adding three new building numbers and the revised address will appear in Supplement No. 7 to Part 748 of the EAR. In addition, BIS is updating the description of items eligible for export, reexport, or transfer (in-country) to AMD's approved facilities in order to provide clarification to persons shipping under Authorization VEU. This update makes AMD's VEU listing in the Code of Federal Regulations as specific as possible. The revisions to the authorization for validated end-user AMD are as follows:

Name and Former Address of Facility

Advanced Micro Devices (Shanghai) Co., Ltd., Riverfront Harbor, Building 48, Zhangjiang Hi-Tech Park, 1387 Zhangdong Rd., Pudong, Shanghai, 201203.

Name and Current Address of Facility

Advanced Micro Devices (Shanghai) Co., Ltd., Buildings 46, 47, 48 & 49, Riverfront Harbor, Zhangjiang Hi-Tech Park, 1387 Zhangdong Rd., Pudong, Shanghai, 201203.

Eligible Items That May Be Exported, Reexported, or Transferred (In-Country) to the Three “Eligible Destinations” Under Advanced Micro Devices China, Inc., Validated End-User Authorization

Items classified under Export Control Classification Numbers (ECCNs) 3D002, 3D003, 3E001 (limited to “technology” for items classified under 3C002 and 3C004 and “technology” for use during the International Technology Roadmap for Semiconductors (ITRS) process for items classified under ECCNs 3B001 and 3B002), 3E002 (limited to “technology” for use during the ITRS process for items classified under ECCNs 3B001 and 3B002), 3E003.e (limited to the “development” and “production” of integrated circuits for commercial applications), 4D001, 4D002, 4D003 and 4E001 (limited to the “development” of products under ECCN 4A003).

The approval of CSMC as a validated end-user and revision of AMD's VEU Authorization are expected to further facilitate exports to civilian end-users in the PRC, and to result in 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. Under the VEU program, exporters and reexporters can supply VEUs in the PRC on a more timely basis, thereby enhancing the competitiveness of 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 (the 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 Office of Management and Budget (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 VEU, which carries an 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 of 1995 (44 U.S.C. 3501 et seq.) (PRA) and OMB 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 nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the PRA, unless that collection of information displays a currently valid 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 VEU 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 section 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 the VEU program and export licenses (as discussed further below), the publication of this information does not establish new policy; in publishing this final rule, BIS is simply adding a VEU 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 section 748.15(a)(2). As with individual export licenses, an interagency committee, drawing on public and non-public sources, including licensing data, and measured against the VEU authorization criteria, vets VEU applications. 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 and thus is 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 under the APA 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 EAR (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:

a. By adding one entry, “CSMC Technologies Corporation”, for “China (People's Republic of)” in alphabetical order; and

b. By revising the entry for “Advanced Micro Devices (Shanghai) Co., Ltd.” for “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, AND ELIGIBLE DESTINATIONS