BIS Issues New Export Controls on Certain Advanced Computing, Semiconductor Manufacturing Items, Semiconductor and Supercomputer End-Use, and Entity List Modifications - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
The Department of Commerce’s Bureau of Industry and Security (“BIS”) has released an interim final rule amending the Export Administration Regulations (“EAR”) in order to further restrict China’s ability to obtain advanced computing chips, develop and maintain supercomputers, and manufacture advanced semiconductors.
New Controls Related to Advanced Computing and Semiconductor Manufacturing
BIS’s rule on advanced computing and semiconductor manufacturing addresses U.S. national security and foreign policy concerns in two key areas. First, the rule imposes restrictive export controls on certain advanced computing semiconductor chips, transactions for supercomputer end-uses, and transactions involving certain entities on the Entity List. Second, the rule imposes new controls on certain semiconductor manufacturing items and on transactions for certain integrated circuit (IC) end uses.
The interim final rule:
1) Adds certain advanced and high-performance computing chips and computer commodities that contain such chips to the Commerce Control List (CCL). Specifically:
• Two new Export Control Classification Numbers (ECCNs) 3A090 for specified high-performance ICs and 4A090 (computers, “electronic assemblies,” and “components,” not elsewhere specified (n.e.s.), containing ICs in ECCN 3A090);
• Both new ECCNs are controlled for RS reasons for exports or reexports to China, through the addition of a new RS control in § 742.6(a)(6) of the EAR;
• The two ECCNs are also controlled for antiterrorism (AT) reasons when destined to a country that has an AT:1 license requirement (Iran § 742.8, Syria § 742.9, or N. Korea § 742.19);
• Associated “software” and “technology” controls on the CCL for the items controlled in ECCNs 3A090 and 4A090 are found in ECCNs 3D001, 3E001, 4D090, and 4E001, respectively. This rule controls the “software” and “technology” for RS reasons when destined to China, in addition to the other reasons described in those ECCN entries;
• New RS license requirement has been added to the License Requirement tables within ECCNs 3D001, 3E001, and 4E001 for these items; and
• BIS is also adding RS license requirements to the License Requirement tables within ECCNs 5A992 and 5D992 to address circumstances when these ECCNs meet or exceed the performance parameters of ECCN 3A090 or 4A090.
2) Creates a new end-use control in the form of new license requirements for items destined for a supercomputer or semiconductor development or production end use in the PRC;
3) Establishes new Foreign Direct Product (“FDP”) rules covering certain foreign-produced advanced computing items and foreign produced items for supercomputer end uses;
4) Expands the scope of foreign-produced items subject to license requirements to twenty-eight existing entities on the Entity List that are located in China;
5) Adds certain semiconductor manufacturing equipment and related items to the CCL. Specifically:
• Advanced semiconductor manufacturing equipment are now covered under a new ECCN 3B090, controlled for RS and AT reasons.
• Adds references to new ECCN 3B090 under the related “software” and “technology” controls under ECCNs 3D001 and 3E001;
• Creates a new end-use control for any item subject to the EAR when the exporter, reexporter, or transferor knows the item is for “development” or “production” of ICs (packaged or unpackaged) at a semiconductor fabrication “facility” located in the PRC that fabricates ICs (packaged or unpackaged) that meet certain specified criteria under § 744.23. Finally, this rule informs the public that certain specific “U.S. Persons” activity to support the development or production of integrated circuits (packaged or unpackaged), now requires a license.;
The relevant thresholds are as follows:
i. Logic chips with non-planar transistor architectures (I.e., FinFET or GAAFET) of 16nm or 14nm, or below;
ii. DRAM memory chips of 18nm half-pitch or less; and
iii. NAND flash memory chips with 128 layers or more.
6) Restricts the ability of U.S. persons to support the development, or production, of ICs at certain PRC-located semiconductor fabrication “facilities” without a license;
7) Establishes a Temporary General License (TGL) to minimize the short-term impact on the semiconductor supply chain by allowing specific, limited manufacturing activities related to items destined for use outside the PRC.
The semiconductor manufacturing item restrictions are effective October 7, 2022. The restrictions on U.S. persons’ ability to support the development, production, or use of ICs at certain PRC-located semiconductor fabrication facilities is effective five days later, on October 12, 2022. And, the advanced computing and supercomputer controls, as well as the other changes in the rule, are effective 14 days later, on October 21, 2022.
Public comments on all of these changes are due to BIS no later than 60 days from the date of Federal Register publication. The text of the rule is available on the Federal Register’s website.
Revisions to BIS’s Unverified List:
In response to difficulties in conducting end-user verifications in China, BIS is also updating its regulations related to BIS’s Entity List to clarify that a sustained lack of cooperation by the PRC government preventing BIS from determining compliance with the EAR may lead to the addition of an entity to the Entity List. An illustrative example provided along with the new rules demonstrates how sustained lack of cooperation by a foreign government preventing BIS from verifying an end-user on the Unverified List (“UVL”) can result in those entities being moved to the Entity List if an end-use check is not timely scheduled and completed.
The interim final rule also adds 31 new entities to UVL and removes 9 entities that have met relevant requirements. The text of the rule, which includes the list of parties added and removed, is available here. The rule takes effect on October 7, 2022.
In conjunction with these interim final rules, BIS has issued a policy memorandum addressing foreign government prevention of end-use checks. The memorandum calls for adding parties to the UVL 60 days after checks are requested but host government inaction prevents their completion, and an additional 60-day process for adding UVL parties to the Entity List when there is a sustained lack of cooperation by a host government to facilitate completion of the checks. BIS’s memorandum is available for review on their website.
Please contact William F. Marshall (firstname.lastname@example.org) or one of our other attorneys if you have any questions or require any additional information with regard to export controls.
Federal Register Notices:
• Initiation of Antidumping and Countervailing Duty Administrative Reviews
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Amorphous Silica Fabric From the People's Republic of China: Continuation of Antidumping and Countervailing Duty Orders
• Certain Softwood Lumber Products From Canada: Notice of Amended Final Results of Countervailing Duty Administrative Review; 2020
• Wooden Bedroom Furniture From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; Rescission, in Part; and Preliminary Determination of No Shipments; 2021
• Rules: International Trademark Classification Changes
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Biaxial Integral Geogrid Products From the People's Republic of China: Continuation of Antidumping Duty Order and Countervailing Duty Order
• Certain Steel Nails From the United Arab Emirates: Final Results of Antidumping Duty Administrative Review; 2020-2021
• Certain Artist Canvas From the People's Republic of China: Continuation of Antidumping Duty Order
• Carbon and Alloy Steel Cut-to-Length Plate from the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2020-2021
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Laptops, Desktops, Servers, Mobile Phones, Tablets, and Components Thereof; Notice of Commission Determination Not To Review an Initial Determination Terminating the Investigation Based on Settlement; Termination of the Investigation
• Notice of a Commission Determination To Review in Part a Final Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337 and Two Related Orders
• Steel Nails From India, Oman, Sri Lanka and Turkey
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Magnesia Carbon Bricks From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2020-2021•
Federal Court Orders Hyundai, Kia and Parts Manufacturer to Stop Employing Minors Illegally, End 'Oppressive' Child Labor Law Violations - U.S. Department of Labor
Alexander City employer allowed minors under 16 to work in automotive plant
BIRMINGHAM, AL – The U.S. Department of Labor has obtained a federal court order to stop an Alexander City manufacturer of Hyundai and Kia auto parts from employing 13-, 14- and 15-year-old workers illegally, and to prevent the company from shipping or delivering any goods produced in violation of federal child labor laws.
In a Sept. 29, 2022, consent judgment, the U.S. District Court for the Middle District of Alabama permanently enjoined SL Alabama LLC from violating the Fair Labor Standards Act’s child labor provisions and from shipping any goods produced within 30 days of a child labor violation. This action follows an investigation by the department’s Wage and Hour Division, in cooperation with the Alabama Department of Labor’s Child Labor Enforcement office and Alabama’s Office of the Attorney General.
“Our investigation found SL Alabama engaged in oppressive child labor by employing young workers under the minimum age of 14, and by employing minors under 16 in a manufacturing occupation,” said Wage and Hour Division District Director Kenneth Stripling in Birmingham, Alabama. “Employers are responsible for knowing who is working in their facilities, ensuring that those individuals are of legal working age, and that their employment complies with all federal, state and local labor laws.”
The consent judgment also requires SL Alabama to provide training materials to employees and subcontractors or other entities that provide workers to the Alexander City site to ensure child labor standards compliance. The company must also hire a third-party company to provide quarterly child labor training to all management personnel and subcontractors for a three-year period. Finally, SL Alabama must impose sanctions – including termination or suspension – on any management or subcontractors found responsible for child labor violations. In addition to the judgment in this matter, the Wage and Hour Division assessed, and SL Alabama paid, a $30,076 civil money penalty to address the child labor violations.
“The U.S. Department of Labor acted swiftly to protect workers as young 13, 14 and 15 years old from harm and prevent SL Alabama from employing these minors in hazardous occupations,” said Regional Solicitor of Labor Tremelle I. Howard in Atlanta. “We will continue to take action and use all tools at our disposal to ensure young workers’ safety and well-being is not jeopardized by employers who fail to comply with the law.”
The FLSA prohibits the employment of minors in hazardous occupations and makes it illegal for employers to ship products originating from any worksite in which child labor violations have been detected, pursuant to Sections 15(a)(1) and 12(a) of the Act. Under the FLSA, the department can seek a court order to prevent the interstate shipment of goods that were produced in violation of the minimum wage, overtime or child labor provisions of the FLSA. The order can apply to the employer who produced the goods and to anyone in possession of the goods.
Established in 2003, SL Alabama LLC employs approximately 650 workers in the Alexander City area. The employer manufactures headlights, rear combination lights and side mirrors for Hyundai and Kia. The company also operates SL Tennessee in Clinton, Tennessee, and Michigan-Engineering Center in Auburn Hills, Michigan.
Learn more about federal child labor laws.
FMC Proposing New Demurrage & Detention Billing Requirements -
Federal Maritime Commission
The Federal Maritime Commission is proposing a new rule that seeks to bring more clarity, structure, and punctuality to the demurrage and detention billing practices of vessel operating common carriers (VOCCs), non-vessel-operating common carriers (NVOCCs), and marine terminal operators (MTOs).
This Notice of Proposed Rulemaking (NPRM) is responsive to a requirement of the Ocean Shipping Reform Act of 2022 (OSRA) and continues work the Commission initiated in 2018 when it ordered an investigation (Fact Finding 28) led by Commissioner Rebecca F. Dye into conditions and practices of VOCCS and MTOs related to demurrage, detention, and per diem charges. That fact finding led to the Commission issuing a final rule in May 2020 addressing how the reasonableness of demurrage and detention practices of VOCCs and MTOs will be interpreted.
If this proposed rule is adopted, VOCCs, NVOCCs, and MTOs will all be required to issue bills for demurrage or detention only to parties that they have a contractual relationship with, to be clear regarding the nature of the charges, and issue invoices within 30 days after the charges stop accruing, and provide 30 days to dispute the charges with clear information about how charges should be disputed.
Specifically, the Commission is proposing four actions in this NPRM:
• Adopting the list of minimum information that common carriers must include in demurrage or detention invoices as mandated in OSRA and codified at 46 U.S.C. 41104(d)(2).
• Adding to the list referenced immediately above additional information that must be included in or with a demurrage or detention invoice.
• Further defining prohibited practices by clarifying which parties may be billed for demurrage or detention charges.
• Establishing billing practices that billing parties must follow when invoicing for demurrage or detention charges.
The Commission is proposing that a properly issued invoice is only issued to the person that has contracted with the billing party for the carriage of goods or space to store cargo and the billed party is responsible for the payment of any incurred demurrage or detention charge. The Commission is specifically interested in receiving comments on whether it would be appropriate to include the consignee named on the bill of lading as another party who may receive a demurrage or detention invoice.
Interested parties will have 60 days to submit comments to the Commission once the NPRM is published in the Federal Register. The Commission is now using the Regulations.gov portal to receive filed comments. A link within the Federal Register notice will take commenters to a page established for this NPRM. You may submit comments identified by docket number FMC-2022-0066 at https://www.regulations.gov.
This NPRM follows an Advance Notice of Proposed Rulemaking (ANPRM) (Docket No. 22-04) on demurrage and detention billing practices issued in February. That ANPRM was issued in response to an interim recommendation made by Commissioner Dye resulting from her work leading Fact Finding 29, “International Ocean Transportation Supply Chain Engagement,” examining COVID-19 related effects on the ocean-linked supply chain. The Commission received over 80 comments from VOCCs, NVOs, MTOs, shippers, and other parties involved in the transportation of ocean containers in response to the request for public comments issued in the ANPRM. Information provided in those filings were considered in drafting this NPRM.
This NPRM is the latest initiative taken by the FMC to implement OSRA, signed into law by President Joseph R. Biden on June 16, 2022. Commission progress in meeting the requirements established by the law can be found on the dedicated “OSRA Implementation” landing page established on the Commission’s website.
FAA Invests $31M in Key Airport Cargo Projects to Strengthen Supply Chains - Federal Aviation Administration
WASHINGTON – The Department of Transportation’s Federal Aviation Administration (FAA) has awarded more than $31 million in grants to expand cargo infrastructure at nine airports across the United States. The projects at these airports will help expedite the movement of goods throughout the country.
“Every day, we rely on goods transported through our nation’s airports,” said U.S. Transportation Secretary Pete Buttigieg. “Today’s announcement will make improvements at airports across our country so they can handle cargo more efficiently and help strengthen America’s supply chains.”
“These grants will provide lasting benefits today and well into the future for our economy,” said Deputy FAA Administrator A. Bradley Mims.
The funding includes:
• Chicago Rockford International Airport in Rockford, Illinois – $6,799,210: Construct a 4,267-foot Taxiway and connectors to increase access to the south cargo apron.
• Huntsville International Airport-Carl T. Jones Field in Huntsville, Alabama – $5,614,732: Rehabilitate 5,600 square yards of the existing air cargo apron and expand the airport's existing access road an additional 1,450 feet to enhance access.
• Greenville-Spartanburg International Airport in Greer, South Carolina – $4,524,530: Rehabilitate existing taxiway and cargo apron pavement throughout the airport.
• Bishop International Airport in Flint, Michigan – $2,307,210: Rehabilitate 37,400 square yards of existing cargo apron pavement and perform crack repair and joint sealing to 26,800 square yards of deicing apron surface.
• Ted Stevens Anchorage International Airport – $8,169,544: Reconstruct the taxilane and rehabilitate the apron at the airport, where the second-most amount of cargo weight traverses through.
• Seattle-Tacoma International Airport in Seattle, Washington – 1,926,518: Reconstruct 4,200 square yards existing cargo apron pavement.
• Eugene F. Kranz Toledo Express Airport in Toledo, Ohio – $1,071,768: Rehabilitate 27,670 square yards of cargo apron pavement and to design improvements to 16,450 square feet of the taxiway safety area erosion control system.
• Stockton Metropolitan Airport in Stockton, California – $417,036: Fund the design phase to rehabilitate 800 feet of the existing cargo taxilane pavement.
• Rhode Island T.F. Green International Airport in Warwick, Rhode Island – $197,310: Design a new 60,000 square-yard cargo apron to accommodate increased use.
The money for these projects comes from the Airport Improvement Program during FY2022. The program pays for a variety of projects including: construction of new and improved airport facilities, repairs to runways and taxiways, maintenance of airfield elements like lighting or signage, and the purchase of equipment needed to operate and maintain airports.
E-Scooter, E-Bike and Hoverboard Injuries and Deaths Are on the Rise; Celebrate National Fire Prevention Week with the Safe Use of Micromobility Products - Consumer Product Safety Commission
WASHINGTON, D.C. – E-scooters, e-bikes, and hoverboards have grown in popularity among Americans in recent years, as a way to get to and from work or school, or for fun. A new report released today by the U.S. Consumer Product Safety Commission (CPSC) finds that emergency room (ER)-treated injuries and deaths with these products are also increasing. In light of the spike in injuries, CPSC reminds consumers to use caution and safety with these devices.
From 2017 to 2021, injuries spiked 127 percent to 77,200 for micromobility devices, and the number of deaths rose from 5 to 48.* E-scooters had the highest percentage increase in injuries and accounted for 68 deaths in the same time period. Consumer-owned e-scooters accounted for most ER visits (56 percent), but incidents involving rental e-scooter were not far behind (44 percent).
Where demographic data are known, CPSC’s report found that Black consumers represented 31 percent of the ER visits with micromobility products, a significantly higher proportion than their 13 percent of the population nationwide.
The top hazards in e-scooter and e-bike fatalities were incidents with motor vehicles and user-control issues, followed by fires.
Fires with the lithium-ion batteries that power e-scooters, as well as e-bikes and hoverboards, have been garnering attention from fire departments nationwide. Fire Prevention Week is October 9-15. CPSC recommends these tips to prevent fires with these devices:
• Always be present when charging devices using lithium-ion batteries. Never charge them while sleeping.
• Only use the charger that came with your device.
• Only use an approved replacement battery pack.
• Follow the manufacturer’s instructions for proper charging, and unplug the device when done.
• Never use an e-mobility device with a battery pack that has been modified/reworked by unqualified personnel or with re-purposed or used cells
NEVER throw lithium batteries into the trash or general recycling. Instead, take them to your local battery recycler or hazardous waste collection center.
CPSC is working in collaboration with PHMSA, FAA, and EPA to alert consumers to the dangers of lithium-ion batteries and their safe use, including in micromobility devices. See their websites for more information on safe use of these batteries. www.phmsa.dot.gov/lithiumbatteries, www.epa.gov/recycle/used-lithium-ion-batteries, www.faa.gov/hazmat.
Health Insurance Covers At-Home COVID-19 Tests - Federal Trade Commission
While you can no longer get free COVID-19 test kits from the federal government, if you have health insurance, you’re covered for eight free over-the-counter, at-home COVID-19 tests each month. So if you have health insurance through your employer, or if you have a plan through the Affordable Care Act’s marketplace, each person on your plan can get eight tests per month. If you’re on Medicare, you’re also covered for 8 free over-the-counter COVID-19 tests each month.
There are two ways to get your tests for free: (1) use a pharmacy or store that your health plan designates “in network” where you’ll be charged $0 or (2) get reimbursed by submitting a claim to your insurance plan. Check with your health insurance provider to find an in-network pharmacy or to know what receipts or other documentation you’ll need.
For more information, including other free COVID-19 testing options, visit COVID.gov/tests.
Since we know scammers are targeting Medicare recipients with fake offers for free tests, it’s a short leap to say they might also approach people with private health insurance, trying steal your personal information to commit fraud and bill bogus charges to your insurance.
To keep your information safe:
• If you buy test kits online, know who you’re dealing with. Search online for the product or company name, plus “complaint” or “scam” to see what other people are saying.
• Never give your health insurance or other personal information over the phone to anyone who calls out of the blue.
• Check your Explanation of Benefits statements to be sure the claim includes only services you really got.
• Read about medical identity theft to learn how to protect yourself, and how to know if someone is misusing your medical information.
If you suspect a scam, let the FTC know at ReportFraud.ftc.gov.