15 CFR § 744.6 - Restrictions on specific activities of “U.S. persons.”

§ 744.6 Restrictions on specific activities of “U.S. persons.”

(a) Scope. The general prohibitions in this section apply only to the extent that the underlying activities are not subject to a license requirement or general prohibition administered by another federal department or agency, see, for example, Assistance to Foreign Atomic Energy Activities regulations (10 CFR part 810), administered by the Department of Energy; International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130), administered by the Department of State; and certain sanctions regulations (to include, but not limited to, 31 CFR parts 500 through 599), administered by the Department of the Treasury. Accordingly, “U.S. persons” are required to seek a license from BIS only for the activities described in this section that are not subject to a license requirement or general prohibition administered by the Department of Energy, Department of State, Department of the Treasury, or other federal department or agency. The issuance of a license by BIS, or any other federal department or agency, does not authorize “U.S. persons” to engage in any activity that is otherwise prohibited by law, including criminal statutes.

(b) General prohibitions. No “U.S. person” may, without a license from BIS, 'support':

(1) The design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of nuclear explosive devices in or by any country not listed in supplement no. 3 to this part;

(2) The design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of “missiles” in or by a country listed in Country Groups D:4 or E:2;

(3) The design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of chemical or biological weapons in or by any country or destination worldwide;

(4) The design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, refurbishing, shipment, or transfer (in-country) of a whole plant to make chemical weapons precursors identified in ECCN 1C350, in or by countries other than those listed in Country Group A:3 (Australia Group); or

(5) A 'military-intelligence end use' or a 'military-intelligence end user,' as defined in § 744.22(f), in Belarus, Burma, Cambodia, the People's Republic of China, Russia, or Venezuela; or a country listed in Country Groups E:1 or E:2 (see supplement no. 1 to part 740 of the EAR).

(6) 'Support' means:

(i) Shipping or transmitting from one foreign country to another foreign country any item not subject to the EAR you know will be used in or by any of the end uses or end users described in paragraphs (b)(1) through (5) of this section, including the sending or taking of such item to or from foreign countries in any manner;

(ii) Transferring (in-country) any item not subject to the EAR you know will be used in or by any of the end uses or end users described in paragraphs (b)(1) through (5) of this section;

(iii) Facilitating such shipment, transmission, or transfer (in-country); or

(iv) Performing any contract, service, or employment you know may assist or benefit any of the end uses or end users described in paragraphs (b)(1) through (5) of this section, including, but not limited to: Ordering, buying, removing, concealing, storing, using, selling, loaning, disposing, servicing, financing, transporting, freight forwarding, or conducting negotiations in furtherance of.

(c) Additional prohibitions on “U.S. persons” informed by BIS.

(1) BIS may inform “U.S. persons,” either individually by specific notice, through amendment to the EAR published in the Federal Register, or through a separate notice published in the Federal Register, that a license is required because an activity could involve the types of 'support' (as defined in paragraph (b)(6) of this section) to the end uses or end users described in paragraphs (b)(1) through (5) 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. However, the absence of any such notification does not excuse the “U.S. person” from compliance with the license requirements of paragraph (b) of this section.

(2) Consistent with paragraph (c)(1) of this section, BIS is hereby informing “U.S. persons” that a license is required for the following activities, which could involve 'support' for the weapons of mass destruction-related end uses set forth in paragraph (b) of this section. Specifically, if you know your export, reexport, or transfer (in-country) meets any of the specified activities described in paragraphs (c)(2)(i) through (iii) of this section, then a license is required for shipping, transmitting, or transferring (in-country); facilitating the shipment, transmission, or transfer (in-country); or servicing (including installation) activities associated with any item, end use, or end user described in any of the following paragraphs:

(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”;

(iii) Semiconductor manufacturing equipment. To or within either Macau or a destination specified in Country Group D:5, any item not subject to the EAR and meeting the parameters of ECCNs 3B001.a.4, c, d, f.1.b, k to p; 3B002.b and c; 3D001 (for 3B001.a.4, c, d, f.1.b, k to p, 3B002.b and c); 3D002 (for 3B001 a.4, c, d, f.1.b, k to p, 3B002.b and c); or 3E001 (for 3B001.a.4, c, d, f.1.b, k to p, 3B002.b and c) regardless of end use or end user.

(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 § 748.3(c) of the EAR for guidance on specific fabrication facilities. To submit an Advisory Opinion request, email RPD2@bis.doc.gov.

(d) Exceptions and exclusions. No license exceptions apply to the prohibitions described in paragraphs (b)(1) through (4) or paragraph (c)(2) of this section.

(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 (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 § 734.7 (entitled “Published”) and § 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.

(2) Exclusion to paragraphs (b)(5) and (c)(2)(iii) of this section. Notwithstanding the prohibitions in paragraphs (b)(5) and (c)(2)(iii), “U.S. persons” who are employees of a department or agency of the U.S. Government may 'support' a 'military-intelligence end use' or a 'military-intelligence end user,' as described in paragraphs (b)(5) and (c)(2)(iii), if the 'support' is provided in the performance of official duties in furtherance of a U.S. Government program that is authorized by law and subject to control by the President by other means. This paragraph (d)(2) does not authorize a department or agency of the U.S. Government to provide 'support' that is otherwise prohibited by other administrative provisions or by statute. 'Contractor support personnel' of a department or agency of the U.S. Government are eligible for this authorization when in the performance of their duties pursuant to the applicable contract or other official duties. 'Contractor support personnel' for the purposes of this paragraph (d)(2) has the same meaning given to that term in § 740.11(b)(2)(ii) of the EAR. This authorization is not available when a department or agency of the U.S. Government acts as an agent on behalf of a non-U.S. Government person.

(3) Exclusion to paragraphs (c)(2)(i) and (ii) of this section. The term “production” in paragraphs (c)(2)(i) and (ii) 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 manufacturing stage is back-end or 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.

(4) Exclusion to paragraphs (c)(2)(i) through (iii) of this section.

(i) Paragraphs (c)(2)(i) through (iii) do not apply to a natural “U.S. person,” as defined in paragraphs (a)(1) and (3) of the definition in § 772.1 of the EAR, employed or working on behalf of a company headquartered in the United States or a destination specified in Country Group A:5 or A:6 and not majority-owned by an entity that is headquartered in either Macau or a destination specified in Country Group D:5.

(ii) Any activities a natural “U.S. person,” as defined in paragraphs (a)(1) and (3) of that term's definition in § 772.1 of the EAR, undertakes when employed or acting on behalf of a company not headquartered in the United States or a destination specified in Country Group A:5 or A:6 must comply with the requirements in this paragraph (d)(4) as applicable. For example, if a natural “U.S. person” is a freelancer who works or acts on behalf of a company headquartered in the United States or a destination specified in Country Group A:5 or A:6, those activities would not be prohibited under paragraphs (c)(2)(i) through (iii) of this section. However, if that same natural “U.S. person” was also working or acting on behalf of a company headquartered somewhere other than the United States or a destination specified in Country Group A:5 or A:6, the activities performed on behalf of such a company would not be excluded under paragraphs (c)(2)(i) through (iii) and a license would be required.

(5) Exclusion to paragraph (c)(2)(iii) of this section. Paragraph (c)(2)(iii) does not apply to servicing (including installation) activities unless at a “facility” where “production” of “advanced-node integrated circuits” occurs, which would require a license under paragraph (c)(2)(i) of this section.

(e) License review standards.

(1) Applications for a “U.S. person” to 'support' (as defined in paragraph (b)(6) of this section) any of the end uses or end users described in paragraphs (b)(1) through (4) of this section will be denied if such support would make a material contribution to the end uses and end users described in paragraphs (b)(1) through (4) of this section.

(2) Applications for a “U.S. person” to 'support' (as defined in paragraph (b)(6) of this section) a 'military-intelligence end use' or a 'military-intelligence end user' as described in paragraph (b)(5) of this section will be reviewed with a presumption of denial.

(3) Applications for licenses submitted pursuant to the notice of a license requirement set forth in paragraph (c)(2) of this section will be reviewed with a presumption of denial for Macau and destinations in Country Group D:5, except activities involving a foreign-made item that is not subject to the EAR and performs the same function as an item subject to the EAR, which will be reviewed with a presumption of approval. All other applications will be reviewed with a license review policy of case-by-case and consider factors, such as technology level, customers, and compliance plans.

[86 FR 4871, Jan. 15, 2021, as amended at 86 FR 18436, Apr. 9, 2021; 86 FR 70018, Dec. 9, 2021; 87 FR 13059, Mar. 8, 2022; 87 FR 62199, Oct. 13, 2022; 88 FR 2825, Jan. 18, 2023; 88 FR 73448, 73494, Oct. 25, 2023]