Key Takeaways

  • New export controls are in place that impose significant new restrictions for U.S. and foreign businesses operating in the semiconductor and advanced computing industry in China.
  • The new controls include expanded U.S. person restrictions, new end-use and end-user rules, and new and expanded Foreign Direct Product Rules.
  • The rule is complex and far-reaching, and it is important for both U.S. and foreign companies doing business in the semiconductor and advanced computing industry to understand it and how it may affect their businesses and operations.

The U.S. Department of Commerce’s Bureau of Industry and Security (BIS) published an interim final rule on Oct. 13, 2022, that significantly tightened export controls with respect to the People’s Republic of China (China) for U.S. and foreign businesses operating in the semiconductor and advanced computing industry. The rule, which was released on Oct. 7 and in part became effective that day, implements complex restrictions in the Export Administration Regulations (EAR) that are squarely directed at restricting the sourcing, production and development of Chinese semiconductors and associated equipment. These controls will inhibit China’s ability to obtain technology, software and other items to further its ability to enhance its military and surveillance capabilities.

The interim final rule contains four distinct groups of new controls:

  • Specific end-use and end-user rules regarding semiconductor manufacturing and supercomputers in China.
  • Expanded controls on U.S. person activities involving items not subject to the EAR related to semiconductor manufacturing in China.
  • The addition of new export control classification numbers (ECCN) to the EAR’s Commerce Control List (CCL) focused on Chinese semiconductor capabilities.
  • Addition of two new Foreign Direct Product Rules (FDPR) that are comprehensive in scope and subject more foreign-produced items to the EAR and strict licensing requirements, as well as the expansion of the Entity List FDPR and related amendments to the Entity List.

We summarize the new controls below, highlighting aspects of the new rules that remain unclear. Appendix A of this Alert lists the various implementation dates for different aspects of the new rule, and Appendix B lists the entities on the BIS Entity List with a new “footnote 4” (FN4) designation. Appendix C includes relevant definitions applicable to the new rule.

BIS has made and is making efforts to clarify the interim final rule, including conducting a public briefing on the new rule on Oct. 13, posting a public information page and issuing the first round of FAQs on Oct. 28, but gray areas still exist. During the briefing, BIS emphasized that it is an interim final rule and that interested parties are encouraged to submit comments by Dec. 21.

Also, on Oct. 13, BIS published a final rule, adding 31 additional persons in China to the Unverified List (while removing nine other persons in China) and clarifying the circumstances that may lead to an entity’s addition to the Entity List.

I. Executive Summary

  • Effective Oct. 7, new expanded export controls relating to semiconductor manufacturing end-use in China went into effect, followed by new controls related to “supercomputer” end-use that were effective Oct. 21. In general, these broad end-use rules impose export controls on any item subject to the EAR, whether exported, reexported or transferred (in country) by a U.S. or foreign person, that will be used for integrated circuits (ICs) at select semiconductor manufacturing facilities in China or for a supercomputer end-use in China.
  • Effective Oct. 12, new controls were imposed on U.S. person activities involving items not subject to the EAR. Among other things, as discussed in Part III of this Alert, the new controls prohibit U.S. persons, wherever located, from supporting any fabrication facility in China that designs, develops or produces certain ICs.
  • Effective Oct. 7 and Oct. 21, the new export control classification numbers became effective. The new ECCNs cover various ICs, semiconductor manufacturing equipment, computers and related items, and they are set forth in Category 3 (electronics) and Category 4 (computers) of the CCL.
  • Effective Oct. 21, new and expanded foreign direct product rules will subject to EAR export license requirements more foreign-produced goods going to designated Chinese entities, destinations or end-uses.
  • A temporary general license (TGL) permits limited manufacturing activities in China for companies not located in Country Groups D:1 or D:5 (see Supplement 1 to Part 740 of the EAR) to receive controlled items covered by the new ECCNs and other related software and technology until April 7, 2023. The TGL cannot be used to export controlled items to end-users or ultimate consignees in China when there is knowledge of any prohibited end-use or user such as those entities identified on the Entity List or Military End-User List in the EAR.

II. Expansion of End-Use and End-User Controls; Semiconductor Manufacturing End-Use Rule and Supercomputer End-Use Rule

On Oct. 7, the day that the new rule was released for public inspection, the semiconductor manufacturing end-use rule went into effect via addition of a new Section 744.23 to the EAR; an amendment effective Oct. 21 expanded Section 744.23 to cover supercomputer end-uses (the supercomputer end-use rule). For purposes of the new rule, a supercomputer is defined in 15 C.F.R. Part 772 as “[a] computing ‘system’ having a collective maximum theoretical compute capacity of 100 or more double-precision (64-bit) petaflops or 200 or more single-precision (32-bit) petaflops within a 41,600 ft3 or smaller envelope.” Additional elaboration is provided in two notes to the definition.

Generally, the new supercomputer and semiconductor manufacturing end-use restrictions in Section 744.23(a)(1)-(2) impose a license requirement when any item subject to the EAR is exported, reexported or transferred (in country), whether by a U.S. or foreign person, with knowledge that it will be used for a supercomputer-related end-use in China or for fabrication of chips at select semiconductor fabrication facilities in China. A BIS FAQ indicates that a semiconductor fabrication facility falls within this rule if it engages in production at the restricted technology level. Subsequent steps at facilities involving testing, assembly and/or packaging that do not alter technology are not covered. These controls are knowledge-based, requiring due diligence to determine whether items subject to the EAR may be used in a prohibited manner.

The product scope of the new end-use rules varies depending on the end-use. The following summary outlines the specific semiconductor manufacturing end-use rule and supercomputer end-use rule restrictions and the product scope of each:

  • A BIS license will be required for the export, reexport or transfer (in country) of any item subject to the EAR, including EAR99 items, that will be used for the development or production of any ICs at a semiconductor fabrication facility in China that fabricates any of the following ICs (collectively, covered ICs):
    • Logic ICs using non-planar architecture or within a “production” technology node of 16/14 nanometers or less;
    • NOT AND (NAND) memory ICs with 128 or more layers; or
    • Dynamic random-access memory (DRAM) ICs using a production technology node of 18 nanometer half-pitch or less.
  • A BIS license will be required for the export, reexport or transfer (in country) of any item subject to the EAR listed in Product Groups B (test, inspection and production equipment); C (materials); D (software); or E (technology) of the CCL’s Category 3 (electronics) if it will be used in the production of any IC at a semiconductor fabrication facility in China but it is not known whether the fabrication facility produces the types of covered ICs listed above.
  • A BIS license will be required for the export, reexport or transfer (in country) of any item subject to the EAR that will be used in China for the development or production of parts, components or equipment specified in
    • ECCN 3B001: Equipment for the manufacturing of semiconductor devices or materials;
    • ECCN 3B002: Test equipment “specially designed” for testing finished or unfinished semiconductor devices;
    • ECCN 3B090: Semiconductor manufacturing equipment not controlled by 3B001;
    • ECCN 3B611: Semiconductor manufacturing equipment not controlled by 3B001;
    • ECCN 3B991: Equipment not controlled by 3B001 or 3B090 for the manufacture of electronic “parts,” “components,” and materials and specially designed parts, components, and “accessories” therefor); or
    • ECCN 3B992: Equipment not controlled by 3B002 for the inspection or testing of electronic components and materials and specially designed parts, components and accessories therefor).
  • A BIS license will be required for the export, reexport or transfer (in country) of any item subject to the EAR and specified in ECCN 3A001, 3A991, 4A994, 5A002, 5A004 or 5A992 when it will be used either for
    • development, production, use, operation, installation (including on-site installation), maintenance (checking), repair, overhaul or refurbishing of a supercomputer located in or destined for China; or
    • incorporation into or the development or production of any component or equipment that will be used in a supercomputer located in or destined for China.

For ease of reference, the ECCNs specified in this portion of the rule cover:

  • ECCN 3A001: Electronics, including a wide range of ICs.
  • ECCN 3A991: Electronic devices and components not controlled by 3A001.
  • ECCN 4A994: Computers, “electronic assemblies” and related equipment not controlled by 4A001 or 4A003, and specially designed parts and components therefor.
  • ECCN 5A002: “Information security” “systems,” equipment and components.
  • ECCN 5A004: Systems, equipment and components for defeating, weakening or bypassing information security.
  • ECCN 5A992: Equipment not controlled by 5A002.
  • A BIS license will be required for the export, reexport or transfer (in country) of any computer, electronic assembly or component subject to the EAR and specified in ECCN 4A003, 4A004, 4A994, 5A002, 5A004 or 5A992 when it will be used either for
    • development, production, use, operation, installation (including on-site installation), maintenance (checking), repair, overhaul or refurbishing of a supercomputer located in or destined for China; or
    • incorporation into or the development or production of any component or equipment that will be used in a supercomputer located in or destined for China.

For ease of reference, the ECCNs specified in this portion of the rule cover:

  • ECCN 4A003: “Digital computers,” electronic assemblies, related equipment and specially designed components therefor.
  • ECCN 4A004: Computers and specially designed related equipment, electronic assemblies and components.
  • ECCN 4A994: Computers, electronic assemblies and related equipment not controlled by 4A001 or 4A003, and specially designed parts and components therefor.
  • ECCN 5A002: Information security systems, equipment and components.
  • ECCN 5A004: Systems, equipment and components for defeating, weakening or bypassing information security.
  • ECCN 5A992: Equipment not controlled by 5A002.

There are no license exceptions available for transactions covered by these end-use rules. Also, there is a “presumption of denial” for such license applications, except that license applications for certain items for end-users in China headquartered in the United States or in a Country Group A:5 or A:6 country will be considered on a case-by-case basis, taking into account such factors as technology level, customers and compliance plans.

III. New Controls on U.S. Person Activities Involving Items Not Subject to the EAR

To further target semiconductor fabrication facilities in China, effective Oct. 12, a BIS license is required for a “U.S. person” to “support” certain activities related to Chinese semiconductor fabrication that could support weapons of mass destruction end-uses. The term “support” encompasses numerous activities, including but not limited to shipping, transmitting or transferring (in country); facilitating such shipment, transmission or transfer (in country); or servicing of items not subject to the EAR. “U.S. persons” include entities organized in the United States and their foreign branches; U.S. citizens, U.S. permanent residents and protected individuals as defined by 8 U.S.C. Section 1324b(a)(3), wherever located; and any person located in the United States. Thus, U.S. persons employed by foreign companies living in the United States or abroad are covered by these restrictions, as are foreign nationals in the United States.

Under these new U.S. person restrictions, which are found in 15 C.F.R. Section 744.6, a BIS license is required for a U.S. person to engage in any of the following support activities involving items not subject to the EAR:

  • Shipping, transmitting or transferring; facilitating such shipping, transmitting or transferring; or servicing any item not subject to the EAR to or within China if the U.S. person knows the item will be used in the development or production of any IC at a semiconductor fabrication facility in China that develops or produces covered ICs, which are specified in 15 C.F.R. Section 744.6(c)(2)(i).
  • Shipping, transmitting or transferring; facilitating such shipping, transmitting or transferring; or servicing any item not subject to the EAR to or within China that meets the parameter of any ECCN in Product Groups B (test, inspection and production equipment); C (materials); D (software); or E (technology) of Category 3 (electronics) of the EAR’s CCL that the U.S. person knows will be used in the production of any IC at a semiconductor fabrication facility in China but does not know whether the fabrication facility produces covered ICs.
  • Shipping, transmitting or transferring; facilitating such shipping, transmitting or transferring; or servicing any item not subject to the EAR to or within China that meets the parameters of new ECCN 3B090, 3D001 (for 3B090) or 3E001 (for 3B090) of the EAR’s CCL to or within China, regardless of the end-use or end-user.

No license exceptions are available to overcome the first two categories of prohibitions, but certain exceptions apply for U.S. government activity involving the third category. License applications will be reviewed under a presumption of denial. If, however, the end-user in China is headquartered in the U.S. or Country Group A:5 or A:6, then license applications will be considered on a case-by-case basis.

IV. New Export Control Classification Numbers for China and Regional Stability Controls

A. ECCNs

BIS also added new ECCNs under Category 3 (electronics) and Category 4 (computers) of the CCL that will be controlled for regional stability (RS) for China; anti-terrorism (AT) controls also apply to these new ECCNs. The new ECCNs are 3A090, 3B090, 3A991.p, 4A090, 4D090 and 4A994.l. Existing ECCNs 3E001, 3D001 and 4E001 were amended to control technology and software for the newly created ECCNs. Also, ECCNs 3D001, 3E001, 4E001, 5A992.c and 5D992.c now include an RS control for China. ECCN 3B090 and changes to ECCNs 3D001 and 3E001 were effective as of Oct. 7, and the remaining new and modified ECCNs, including additional changes to 3D001 and 3E001, became effective as of Oct. 21:

  • ECCN 3A090 controls ICs that include graphical processing units, tensor processing units, neural processors, in-memory processors, vision processors, text processors, co-processors/accelerators, adaptive processors, field-programmable logic devices and application-specific integrated circuits. The accompanying revisions occurred with respect to ECCNs 3D001 and 3E001.
  • ECCN 3B090 controls semiconductor equipment not specified in ECCN 3B001; reasons for control are RS and AT. The ECCN covers specially designed parts, components and accessories for depositing cobalt through the electroplating process, chemical vapor deposition equipment and equipment capable of fabricating metal contact. Associated software and technology controls for these items can be found in ECCNs 3D001 and 3E001.
  • ECCNs 4A090 and 4D090 control computers and related equipment, electronic assemblies, and components containing ICs that exceed limits in ECCN 3A090.a and software designed or modified for the development of these computers. The accompanying revisions occurring with respect to technology are set forth in ECCN 4E001. Software that is specially designed or modified for development or production of computers and related equipment, electronic assemblies, and components thereof specified in ECCN 4A090 is now controlled under ECCN 4D090.

BIS also revised ECCNs 3A991 and 4A994 to include new controls as follows:

  • ECCN 3A991.p controls ICs that either have a processing performance of 8 TOPS or more, or an aggregate bidirectional transfer rate over all inputs and outputs of 150 Gbytes or more to or from ICs other than volatile memories. TOPS is defined as Tera Operations Per Second or 1012 Operations per Second (and see further elaboration in Technical Notes).
  • ECCN 4A994.l controls computers, electronic assemblies and components n.e.s. containing ICs that exceed 3A991.p limits.

While BIS added additional controlled items to ECCNs 3A991 and 4A994, these ECCNs remain controlled for AT reasons only.

B.  Regional Stability Controls

The new rule adds Section (a)(6) to the regional stability controls in Section 742.6 of the EAR to add another control for advanced computing and semiconductor manufacturing items to China. Specifically, items subject to the EAR and specified in ECCNs 3A090, 3B090, 4A090 and 5A992 (that meet or exceed the performance parameters of ECCN 3A090 or 4A090) and associated software and technology specified in ECCNs 3D001 (for 3A090 or 3B090), 3E001 (for 3A090 or 3B090), 3B090, 3D001 (for 3A090 or 3B090), 4D090, 4E001 (for 4A090 and 4D090) and 5D992 (that meet or exceed the performance parameters of ECCN 3A090 or 4A090) are controlled for RS reasons when going to China, and a BIS license is required.

In addition, a license is required to export from China to any destination technology controlled under ECCN 3E001 (for 3A090) that is

  • developed by an entity headquartered in China;
  • the direct product of software subject to the EAR; and
  • for production of commodities identified in ECCNs 3A090 and 4A090 or identified elsewhere on the CCL that meet or exceed the performance parameters of ECCN 3A090 or 4A090.

While RS requirements do not apply to deemed exports or reexports, a license still may be required for deemed exports and deemed reexports of that technology due to other EAR controls. As to technology and source code related to ECCNs 3A991.p and 4A994.l, deemed exports and deemed reexports that previously did not require a license and now require a license because of the controls implemented by this rule will only require licenses if the technology or software release exceeds the scope of the technology or software that the foreign national already had access to prior to the implementation of controls in this rule.

V. FDPR

Building on the Entity List Foreign Direct Product Rule that was implemented to address Huawei Telecommunications and related entities, BIS has again amended the EAR to subject more foreign-produced goods to its control. The new rule expands the Entity List FDPR to cover additional entities in China (those with an FN4 designation on the Entity List), and it creates two new FDPR rules, the Advanced Computing FDPR and the Supercomputer FDPR. All FDPR amendments and the related Entity List amendments became effective on Oct. 21.

A. Expanded Entity List Foreign Direct Product Rule, 15 C.F.R. Section 734.9(e)

BIS expanded the Entity List FDPR to address the new FN4 designated entities on the BIS Entity List. Specifically, BIS designated 28 entities that were already on the Entity List with the new FN4) designation, and they are now subject to the expanded Entity List FDPR under 15 C.F.R. Section 734.9(e)(2). See Appendix B of this Alert for the FN4 entities.

This FN4 Entity List FDPR is very similar to the Footnote 1 (FN1) Entity List FDPR in 15 C.F.R. Section 734(e)(1), which applies to entities on the Entity List with an FN1 designation. However, the product scope of the FN4 Entity List FDPR includes direct products of two additional ECCNs – 5D002 and 5E002 – with the result that foreign-produced items will be subject to the EAR under the FN4 Entity List FDPR when

  • the foreign-produced item is a direct product of technology or software subject to the EAR and specified in ECCN 3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D002, 5D991, 5E001, 5E002 or 5E991 of the CCL; or
  • the foreign-produced item is produced by any plant or major component of a plant when the plant or major component of a plant, whether made in the U.S. or a foreign country, itself is a direct product of U.S.-origin technology or software that is specified in ECCN 3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D991, 5E001, 5E991, 5D002 or 5E002 of the CCL;

AND

  • there is knowledge that the foreign-produced item will be incorporated into or used for production or development of any part, component or equipment produced, purchased or ordered by any entity with an FN4 designation; or
  • there is knowledge that an FN4 entity is involved in the transaction as a “purchaser,” “intermediate consignee,” “ultimate consignee” or “end-user” as defined in Part 722 of the EAR.

B. Advanced Computing Foreign Direct Product Rule

The new Advanced Computing FDPR added as subject to the EAR any foreign-produced item derived from specified U.S.-origin controlled software or technology (i.e., software or technology covered by the same list of ECCNs found in the FN4 Entity List FDPR or 4D090) that is

  • an item that meets the parameters of ECCN 3A090, 3E001 (for 3A090), 4A090 or 4E001 (for 4A090); or
  • an IC, computer, electronic assembly or component that is specified anywhere on the CCL and has the same performance parameters as those items classified under ECCN 3A090 or 4A090.

This rule also captures foreign-produced items produced by plants or major components of plants that are themselves derived from specified U.S.-controlled technology or software that meet the criteria specified above.

Assuming the foreign-produced item is subject to the EAR under the Advanced Computing FDPR, it will be subject to licensing requirements if the item

  • is destined for China;
  • will be incorporated in any part, component, computer or equipment not designated EAR99 destined for China; or
  • is technology developed by an entity headquartered in China for the production of a mask or integrated wafer or die.

BIS has offered a model certificate that can be signed from foreign suppliers to assist in determining whether an item is subject to the EAR under the new Advanced Computing FDPR. As noted by BIS, the certification, while useful as one part of a company’s due diligence efforts, does not completely absolve companies from determining whether the Advanced Computing FDPR applies.

C. Supercomputer Foreign Direct Product Rule

The Supercomputer FDPR mirrors the product scope for the FN4 Entity List FDPR. However, it has an end-use scope that is different; the end-use scope is limited to supercomputer end-uses as defined in Part 772 of the EAR.

Assuming the non-U.S. item meets the product scope, the country and end-use scope, then a BIS license will be required if the item will be

  • used in the design, development, production, operation, installation, maintenance (checking), repair, overhaul or refurbishing of a supercomputer located in or destined for China; or
  • incorporated in or used in the development or production of any part, component or equipment that will be used in a supercomputer located in or destined for China.

Under all of the new FDPRs, if the software or technology is not subject to the EAR or outside the scope of the specified ECCNs, then these rules will have little impact. Thus, it is important to determine whether the U.S.-origin software and technology meet the parameters of the ECCNs in Categories 3, 4 and 5 of the EAR’s CCL specified in the applicable FDPR when determining if one of the new FDPRs will now subject foreign-produced items to the EAR and potential license requirements.

VI. Temporary General License (TGL) and Savings Clause

The new rule also includes a TGL to help mitigate the potential disruption of global supply chains; it is set forth in new paragraph (d) of Supplement No. 1 to Part 736 of the EAR. As of Oct. 21 and through April 7, 2023, companies that are not headquartered in Country Groups D:1, D:5 or E will be permitted to export, reexport and transfer in country and export from abroad to or within China items covered by ECCN 3A090 or 4A090 and associated software and technology in ECCN 3D001, 3E001, 4D090 or 4E001, or any item that is a computer, IC, electronic assembly or component and associated software and technology specified elsewhere on the CCL (Supplement No. 1 to Part 774), which meets or exceeds the performance parameters of ECCN 3A090 or 4A090. The TGL is limited to items for use in certain specified activities – namely integration, assembly, inspection, testing, quality assurance and distribution. The TGL cannot be used to export, reexport, transfer in country or export from abroad to Chinese end-users or ultimate consignees, and certain other limitations also apply. Further, for recordkeeping and compliance purposes, exporters must keep records showing the name and complete address of the entity in China receiving the item as well as the location of the company’s headquarters.

Further, the new rule’s savings clause applies only if the item was on the dock for loading, on a lighter, aboard a carrier or already en route to a port of export on Oct. 7 and was exported, reexported or transferred in country before midnight on Nov. 7.

VII. Conclusion

The new interim final rule is complex and far-reaching, and it is important for both U.S. and foreign companies that do business in the semiconductor or advanced computing industry to understand the rule and how it may affect their business and operations. As discussed above, the new rule not only expands license requirements for certain U.S.-origin items to go to China, but it also expands the scope of foreign-produced items that are subject to the EAR and imposes controls on U.S. person activities that do not even involve any item subject to the EAR. Interested parties are encouraged to submit comments to BIS on the new rule by Dec. 21.

The new final rule that modified the Unverified List and updated Section 744.11 of the EAR, which imposes license requirements on entities acting or at significant risk of acting contrary to the national security or foreign policy interests of the United States was effective Oct. 13. The revised Section 744.11 can also serve as a useful tool for exporters wishing to determine whether their business partners may be added to the Entity List.