Amendment to Existing Validated End-User Authorizations for Applied Materials (China), Inc., Boeing Tianjin Composites Co. Ltd., CSMC Technologies Corporation, Lam Research Corporation, and Semiconductor Manufacturing International Corporation in the People's Republic of China, and for GE India Industrial Pvt. Ltd. in India

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

In this rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to revise the existing Authorization Validated End-User (VEU) listings for five VEUs in the People's Republic of China (PRC) and one VEU in India. For Applied Materials (China), Inc. (AMAT), this rule amends the eligible items AMAT may receive under Authorization VEU. For Boeing Tianjin Composites Co., Ltd. (BTC), this rule amends the eligible items the company may receive under Authorization VEU and revises the address of the eligible destination (i.e., facility) to which items may be exported, reexported, or transferred (in-country) under Authorization VEU. For CSMC Technologies Corporation (CSMC), this rule revises the address of one eligible destination. For Lam Research Corporation (Lam), this rule revises the list of facilities to which eligible items may be exported, reexported, or transferred (in-country) under Authorization VEU. For Semiconductor Manufacturing International Corporation (SMIC), this rule revises the list of eligible items that may be exported, reexported, or transferred (in-country) to SMIC under Authorization VEU. Finally, this rule revises the listed name for GE India to GE India Industrial Pvt Ltd. (GE India), amends the list of eligible items that may be exported, reexported, or transferred (in-country) to GE India under Authorization VEU, and removes one of the company's eligible destinations.

DATES:

This rule is effective February 24, 2012.

FOR FURTHER INFORMATION CONTACT:

Karen Nies-Vogel, Chair, 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) 482-5991, by fax: (202) 482-3991 or email: ERC@bis.doc.gov.

SUPPLEMENTARY INFORMATION:

Background

Authorization Validated End-User

BIS amended the EAR in a final rule on June 19, 2007 (72 FR 33646), creating a new authorization for “validated end-users” (VEUs) located in eligible destinations to which eligible items may be exported, reexported, or transferred (in-country) 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.

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. The revisions to Supplement No. 7 to Part 748 set forth in this rule are being made either at the request of the VEUs or pursuant to the U.S. Government's periodic review of VEU authorizations, and were approved by the End-User Review Committee (ERC) following the process set forth in Section 748.15 and Supplement No. 9 to Part 748 of the EAR.

Amendment to Existing Validated End-User Authorizations in the PRC

Revision to the List of “Eligible Items” for Applied Materials (China), Inc.

Applied Materials (China), Inc. (AMAT) was designated as a VEU on October 19, 2007 (72 FR 59164). Subsequently, AMAT's VEU authorization listing has been amended to add additional facilities, modify the items it is eligible to receive, and change the company's name (74 FR 19382 (Apr. 29, 2009) and 75 FR 27185 (May 14, 2010)). In this rule, BIS amends Supplement No. 7 to Part 748 of the EAR to add an additional Export Control Classification Number (ECCN) paragraph, ECCN 3B001.a, as an eligible item for all eligible AMAT destinations.

Correction of Facility Address and Revision to the List of “Eligible Items” for Boeing Tianjin Composites Co. Ltd.

BIS designated BHA Aero Composite Parts Co. as a VEU on October 19, 2007 (72 FR 59164). On April 29, 2009, BIS amended the authorization by changing the name of the VEU to Boeing Tianjin Composites Co., Ltd. (BTC) (74 FR 19382). In this rule, BIS amends Supplement No. 7 to Part 748 of the EAR to correct the spelling of the name of the road on which BTC's “Eligible Destination” (i.e., facility) is located: “Heibei Road” will be revised to read “Hebei Road.” BIS also revises the list of “Eligible Items (By ECCN)” that may be exported, reexported, and transferred (in-country) to BTC by removing ECCN 2B001.a from the parenthetical limiting statement for ECCN 1E001. Pursuant to the latter revision, the export, reexport or transfer (in-country) of 1E001 “technology,” according to the General Technology Note, for the “development” or “production” of items controlled by ECCN 2B001.a is no longer authorized to BTC under Authorization VEU. This amendment is not the result of activities of concern by BTC.

Revisions to the List of “Eligible Destinations” for CSMC Technologies Corporation

BIS designated CSMC Technologies Corporation (CSMC) as a VEU on January 18, 2011 (76 FR 2802). Thereafter, on June 28, 2011, BIS amended the list of CSMC's eligible items (76 FR 37364). This rule amends Supplement No. 7 to Part 748 by updating the address of CSMC Technologies Fab 2 Co., Ltd., a CSMC “Eligible Destination.”

Revisions to the List of “Eligible Destinations” for Lam Research Corporation

BIS designated Lam Research Corporation (Lam) as a VEU on October 12, 2010 (75 FR 62462). This rule amends Supplement No. 7 to Part 748 by adding three and updating six addresses of the company's list of facilities eligible to receive items under Authorization VEU. The revised list of “Eligible Destinations” for Lam in Supplement No. 7 to Part 748 is as follows:

Eligible Destinations

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 (Lam Shanghai Warehouse), c/o HMG Supply Chain (Shanghai) Co., Ltd., No. 3869, Longdong Avenue, Pudong New District, Shanghai, China 201203

Lam Research International Sarl (Lam Shanghai Warehouse; WGQ Bonded Warehouse), c/o HMG Supply Chain (Shanghai) Co., Ltd., No. 55, Fei la Road Waigaoqiao Free Trade Zone, Pudong New Area, Shanghai, China 200131

Lam Research Service Co., Ltd. (Beijing Branch), Room 1010, Zhaolin Building, No. 15 Rong Hua Zhong Road, BDA, Beijing, China 100176

Lam Research International Sarl (Lam Beijing Warehouse), Beijing Lam Electronics Tech Center, No. 8 Building, No. 1, Disheng North Street, BDA, Beijing, China 100176

Lam Research Service Co., Ltd., Wuxi Representative Office, Singapore International Park, 6 #302, No. 89 Xing Chuang, 4 Road New District, 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 Service Co., Ltd., Wuhan Representative Office, No. 1 Guanshan Road, Donghu Development Zone, Room E4-302, Optical Valley Software Park, Wuhan, Hubei, China 430074

Lam Research Semiconductor (Suzhou) Co., Ltd. (Suzhou), A Division of Lam Research International Sarl, A-2 Building, Export Processing Zone, Suzhou New District, Jiangsu Province, China 215151

Lam Research International Sarl (Lam Beijing Warehouse), Building 3, No. 9 Ke Chuang Er Street, Beijing Economic Technology Development Zone, Beijing, China 100176

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

Revision to the List of “Eligible Items” for Semiconductor Manufacturing International Corporation

BIS designated Semiconductor Manufacturing International Corporation (SMIC) as a VEU on October 19, 2007 (72 FR 59164). Two subsequent rules amended SMIC's eligible destinations (i.e., facilities) (75 FR 67029 (Nov. 1, 2010); 76 FR 69609 (Nov. 9, 2011)). In this rule, BIS amends Supplement No. 7 to Part 748 of the EAR by revising SMIC's eligible items to correspond with changes to an entry on the Commerce Control List (Supplement No. 1 to Part 774 of the EAR). Specifically, ECCN 2B350.i.4 is being replaced with ECCN 2B350.i.3 to conform to the harmonization of fluoropolymer classifications in the EAR. BIS is also updating the citations in the “Federal Register Citation” column in Supplement No. 7 to Part 748 for SMIC to include the citation for the November 9, 2011, revision to SMIC's list of “Eligible Destinations” (76 FR 69609). This information was inadvertently omitted from the November 9 Notice.

Amendment to Existing Validated End-User Authorization in India

Revision to the List of “Eligible Items” and Removal of One “Eligible Destination” for GE India

BIS designated GE India as a VEU on June 2, 2009 (74 FR 31620). Subsequently, on December 23, 2009, BIS amended the company's list of eligible destinations (74 FR 68147). In this rule, BIS amends Supplement No. 7 to Part 748 of the EAR by changing the company's name listing from “GE India” to “GE India Industrial Pvt Ltd.” and removing an unnecessary address (AIFACS) from the “Eligible Items (By ECCN)” column. In addition, this rule amends the list of items eligible for export, reexport and transfer (in-country) to GE India Industrial Pvt Ltd. (GE India) by removing ECCN 2E983 from the list of eligible items for the GE India Technology Centre Private Limited (GEITC) eligible destination and by adding ECCNs 2E003.f and 9E003.a.2 for all GE India eligible destinations. With this amendment, all GE India eligible destinations may receive the same eligible items.

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, 2011, 76 FR 50661 (August 16, 2011), 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. Executive Orders 13563 and 12866 direct agencies to assess all costs 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, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for 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 43.8 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 this 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 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 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 simply amends six VEU authorizations by correcting names, correcting addresses, revising “Eligible Destinations,” and/or revising “Eligible Items (By ECCN).” This has been done within the established regulatory framework of the Authorization 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 consistent with the authorizations granted to exporters for individual licenses (and amendments or revisions thereof), which do not undergo public review. Just as license applicants do, VEU authorization applicants 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). Additionally, just as the interagency reviews license applications, the authorizations granted under the VEU program involve interagency deliberation and result from review of public and non-public sources, including licensing data, and the measurement of such information against the VEU authorization criteria. Given the thorough nature of the review, and in light of the parallels between the VEU application review process and the review of license applications, public comment on this authorization and subsequent amendments prior to publication is unnecessary. Moreover, because, as noted above, the criteria and process for authorizing and administering VEUs were developed with public comments; allowing additional public comment on this amendment to an individual VEU authorization, which was determined according to those criteria, is unnecessary.

Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (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, 2011, 76 FR 50661 (August 16, 2011).

2. Supplement No. 7 to Part 748 is amended by revising the entries for “Applied Materials (China), Inc.”, “Boeing Tianjin Composites Co. Ltd.”, “CSMC Technologies Corporation”, “Lam Research Corporation”, and “Semiconductor Manufacturing International Corporation” in “China (People's Republic of)”, and the entry for “GE India” in “India” to read as follows: