NEW BIS LICENSE TYPE C72 – (RFF) Restricted Fabrication Facility
December 5, 2024
On Monday, December 2, 2024, the Department of Commerce, Bureau of Industry and Security (BIS) put on public inspection at the Office of the Federal Register an interim final rule (https://www.govinfo.gov/content/pkg/FR-2024-12-05/pdf/2024-28270.pdf) with an effective date of Monday, December 2, 2024 for most provisions. The IFR is expected to publish in the Federal Register on Thursday, December 5, 2024. Among other actions, this interim final rule established a new License Exception Restricted Fabrication Facility (RFF) in § 740.26 of the Export Administrations Regulations (EAR), 15 C.F.R. parts 730 - 774. This license exception as specified under the paragraph (a) (Eligibility requirements) authorizes the export, reexport, and transfer (in-country) of items not specified in ECCNs 3B001, 3B002, 3B993, 3B994, 3D992, 3D993, 3D994, 3E992, 3E993, or 3E994 to specific entities on the Entity List when § 740.26 is referenced in the Entity List “License requirement” entry.
The new License Exception RFF will allow certain items, including specified semiconductor manufacturing equipment, to be exported, reexported, exported from abroad, or transferred (in-country) to certain fabrication facilities that are subject to end user-based license requirements but that are not currently producing “advanced node ICs”.
License Exception RFF overcomes license requirements in the license requirements column of a specific entity when § 740.26 is referenced in that Entity List entry (Supplement No. 4 to Part 744 of the Export Administrations Regulations (EAR), 15 C.F.R. parts 730 – 774). This license exception does not overcome destination-based license requirements, end-use based license requirements in other sections of part 744, or license requirements that apply to other entities on the Entity List if other listed entities are a party to the transaction.
License Exception RFF may not be used for the operation, installation, maintenance, repair, overhaul, or refurbishing of commodities specified in ECCNs 3B001.a.4, c, d, f.1, f.5, k to n, p.2, p.4, r, or 3B002.c, or 3B993, or 3B994. Also, any item exported, exported from abroad, reexported, or transferred under License Exception RFF may not be used to produce “advanced-node ICs.” A notification that must be sent to BIS 45 days prior to exporting, reexporting, exporting from abroad, or transferring (in-country) that includes the end-user’s name and address, description of item(s), purchase price, and anticipated shipping date of export, reexport, or transfer (in-country).
In addition, a notification must be sent to BIS within one business day of learning that the end use has changed to “advance-node integrated circuit” “production.” There is also a reporting requirement for installation of SME that must be sent to BIS within 30 days of installation. An annual end-use confirmation report that must be sent to BIS by the exporter, reexporter, or transferor that confirms that the installed equipment is not being used in the productions of “advanced-node ICs.”
New License Code C72 (RFF)
An update has been made to AES to create new License Codes C72 “Restricted Fabrication Facility” (RFF), which authorizes certain export, reexport, and transfer (in-country) of items not specified in ECCNs 3B001, 3B002, 3B993, 3B994, 3D992, 3D993, 3D994, 3E992, 3E993, or 3E994 to specific entities on the Entity list. License Exception RFF overcomes license requirements in the license requirements column of a specific entity when § 740.26 is referenced in that Entity List entry (Supplement No. 4 to Part 744 of the Export Administrations Regulations (EAR), 15 C.F.R. parts 730 – 774). Transactions under RFF must meet all of the applicable criteria identified under paragraph (a) and must comply with the restrictions set forth in paragraph (b) of this section.
The full terms of License Exception RFF are described in § 740.26.
AES filers must adhere to the following new reporting when using C72 (RFF) to prevent the return of fatal errors from AES:
- Report License Code: C72 Restricted Fabrication Facility (RFF)
- Allowable ECCNs: All except 3B001, 3B002, 3B993, 3B994, 3D992, 3D993, 3D994, 3E992, 3E993, or 3E994.
- Allowable countries: All[1]
- Allowable Export Information Codes: All except UG
- Allowable Modes of Transportation: All except ‘70’ (Fixed Transport)
A complete list of all of the AES License Codes and reporting instructions for these types can be found at https://www.cbp.gov/document/guidance/aestir-appendix-f-license-and-license-exemption-type-codes
For questions regarding these upcoming AES changes, please contact the Bureau of Industry and Security at one of the phone numbers below.
Outreach and Educational Services Division (located in Washington, DC) (202) 482-4811
Office of Technology Evaluation (located in Washington, DC): (202) 482-4933
Western Regional Office (located in Irvine, CA) (949) 660–0144
Northern California branch (located in San Jose, CA) (408) 998-8806
[1] License Exception RFF is only available to authorize exports, reexports, or transfers (in-country) to the destination where a listed entity on the Entity List is identified as being able to received items under License exception RFF.
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