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I、Overview of the New Rules

On December 2, 2024, the U.S. Department of Commerce's Bureau of Industry and Security (BIS) issued new export control rules to further restrict the development of artificial intelligence (AI) and advanced semiconductors in China. The new rules consist of two documents, both of which will come into effort on December 2, 2024. The compliance date for changes relating to the Entity List licensing requirements and other Entity List requirements specified in footnote 5 falls on December 31, 2024.

The first is a 152-page IFR (Interim Final Rule), entitled Foreign-Produced Direct Product Rule Additions, and Refinements to Controls for Advanced Computing and Semiconductor Manufacturing Items. The interim final rules adjust the scope of the U.S. Export Control Regulations (EAR), including: adding new controls on certain semiconductor manufacturing equipment and related items; establishing a new Foreign Direct Product Rule (FDP) to limit the ability of specific destination or focus entities to manufacture advanced-node ICs; adding new control requirements for critical high bandwidth memory used in advanced computing; and clarifying the scope of the control over software keys used in certain software tools.

The second is a 58-page Final Rule, entitled Additions and Modifications to the Entity List; Removals from the Validated End-User (VEU) Program. The final rule adds and modifies entities to the scope of the EAR, all of which relate to items related to development and production of advanced-node ICs and semiconductor manufacturing, and/or support the PRC government's MCF strategy. In addition, the final rule designates nine new entities and seven modified items as subject to the FDP restrictions for foreign-produced items, and removes three entities from the VEU program.

II、Foreign-Produced Direct Product Rule Additions, and Refinements to Controls for Advanced Computing and Semiconductor Manufacturing Items

In this Interim Final Rule (IFR), the U.S. Bureau of Industry and Security (BIS) introduces changes to the control of Advanced Computing Items, Supercomputers, and Semiconductor Manufacturing Equipment (SME) in the Export Administration Regulations (EAR). The five types of changes implemented by this IFR are described below:

A. Two new Foreign Direct Product Rules (FDP) are added to section 734.9 of the EAR and apply respectively to certain types of Advanced SME and to the entities included on the Entity List that are involved in manufacturing "advanced-node ICs";

B. Other amendments and conformance changes relating to semiconductor production, including amendments to the minimum percentage requirements associated with the new FDP rule, establishment of new licensing exception Restricted Manufacturing Facilities (RFF), addition of eight new red flags, clarification to section 744.23, and amendments and conformance changes to other parts of the EAR;

C. Added controls for HBM (High Bandwidth Memory), including the addition of the new ECCN 3A090.C and licensing exception HBM;

D. Clarification on software keys to specify when authorization is required;

E. Amendments to the CCL's in Supplement to Section 774.1, including amendments to the eight existing ECCNs and the addition of eight new ECCNs.

These changes are explained below.

(I) The Addition of Two New FDP Rules Related to "Advanced Node IC"

This IFR implements a new FDP rule for certain Semiconductor Manufacturing Equipment (SME) that are critical to or support the manufacturing of "Advanced Node IC" and a new FDP rule (FN5 FDP) for the Entities List marked as footnote 5 (FN5) was introduced in this IFR.

BIS has extended the EAR regulations, including amending Section 734.9 (e), by adding controls on SMEs and their related components and subassemblies and adding new categories of FDP rules to reduce the support of U.S. technology for China's promotion of "Advanced Node IC" production in China, including amending Section 734.9 (e), adding new product coverage and end-user coverage. Despite existing controls in place, BIS discovered that certain relevant Chinese entities continue to purchase SME items that incorporate components produced using technology, software or tools from the United States. Based on these findings, this IFR has implemented the "Foreign Direct Product of Semiconductor Manufacturing Equipment Rules" (SME FDP) and the "Footnote 5 Foreign Direct Product of Entity Rules" (FN5 FDP), which will impose additional controls on certain SME items used in the production of "advanced node ICs".

1. Rules on Foreign Direct Product of Semiconductor Manufacturing Equipment (SME FDP)

The SME FDP rule applies to certain goods produced in a foreign country that, if governed by the EAR, are in the scope of control measures such as Macao, China and the countries in Group D: 5 in Supplement 1 to Part 740 of the EAR.

2.Footnote 5 Foreign Direct Product of Entities Rule (FN5 FDP)

The FN5 FDP rule applies to entities in the Entities List that are labeled as footnote 5. These entities are labeled as such because they are involved in activities to support the modernization of the Chinese military, including the manufacturing of "Advanced Node IC" for potential military use.

Certain foreign-manufactured goods relating to the production of semiconductors according to FN5 FDP rules, such as goods described in 3B001 (excluding some entries), 3B002 (excluding some entries), 3B903, 3B991, 3B992, 3B993 or 3B994, are covered by the EAR if governed by the EAR.

3. Licensing Requirements and Review Policies Related to the Two Additional Rules

This IFR updates the licensing requirements for National Security ("NS") and Regional Stability ("RS") controls. With respect to footnote 5 entities, a license is required if the foreign-manufactured goods meet the description in the relevant article and are used to support military use. The IFR further clarifies the concept of "domestic transfer" and provides a licensing review policy for transactions that meet the relevant article.

With respect to footnote 5 entities, BIS has added a new case-by-case review policy, detailed in Section 744.11(a)(2)(v)(B). If a foreign product does not meet this section but has the same function as a product subject to the EAR, it is still subject to this case-by-case review.

(II) Other Amendments and Consistency Alteration Related to Semiconductor Production

Note: This section is not intended to be exhaustive, but only to list the major revisions. For the complete rules, please refer to the official document published by the U.S. Department of Commerce.

1. Adding of De Minimis Provisions and Relevant Adjustments Corresponding to FN5 and SME FDP Rules

This IFR adds new De Minimis rules to Section 734.4 (a) (8) and Section 734.4 (a) (9) of the EAR. These new rules ensure that foreign-manufactured semiconductor manufacturing equipment ("SME") that contain U.S.-origin ICs (or other components) are subject to the same regulatory requirements and controls as the SME FDP Rules and the FN5 FDP Rules.

Section 734.4(a)(8) provides that no De Minimis threshold may apply when a product is included in a U.S.-origin integrated circuit ("IC") or includes U.S.-origin ICs designated in Categories 3, 4, or 5 of the Commerce Control List ("CCL") and the product is exported to Macao, China or the countries in Group D:5 in Supplement 1 to Part 740 of the EAR. The product is otherwise excluded from the requirements of national security clearances (Section 742.4(a)(4)) or regional stability clearances (Section 742.6(a)(6)).

Section 734.4(a)(9): The minimum percentage threshold shall also not apply when a good falling within CCL Category 3B (except for some items thereof) is included in a U.S. originating IC or contains a U.S. originating IC designated in CCL Categories 3, 4 or 5 and the good is exported to an entity that is noted as footnote 5 in the Licensing Requirements column on the Entity Manifest.

2. New license exception: "Restricted Fabrication Facility" (RFF)

A new license exception RFF is added to the IFR, which is solely applicable to manufacture of non advanced-node ICs and addresses U.S. national security issues by establishing guardrails and a surveillance framework.

The use of the RFF is subject to the following conditions: (1) items for the manufacturing of advanced-node ICs are excluded; (2) pre-shipment notification, end-use monitoring and annual reports are required; and (3) the operation, installation, maintenance, repair, overhaul or refurbishment of items that do not meet the RFF eligibility is restricted.

3. New Eight "Red Flags" to Assist with Compliance

In the present IFR, eight red flag guidelines (paragraph (b)(20) to (b)(27)) have been added to Supplement 3 to Part 732 of the EAR to provide further guidance on the compliance procedures of exporters, reexporters and transferors. The eight new red flags are as follows:

Red Flag 1: When a non-advanced manufacturing facility orders equipment for use in the manufacture of "advanced node ICs" (e.g., equipment compliant with the ECCN, Section 742.4(a)(4) of the EAR), the mismatch in the use of the technology indicates that the facility is either producing, or plans to produce advanced node ICs. This constitutes a red flag that the exporter, re-exporter, or transferor must resolve before proceeding with the transaction.

Red Flag 2: When an exporter, re-exporter, or transferor receives an order where the ultimate owner or end user of the item in question is unclear (e.g., equipment is required to be shipped to a non-manufacturing reseller when the equipment is typically customized for the end user or installed by the supplier), the reseller would not be the end user of such equipment, indicating that the ultimate beneficiary is unknown. This constitutes a red flag and the exporter is required to conduct due diligence on advanced computing, supercomputer or semiconductor manufacturing equipment (SME) to resolve this red flag.

Red Flag 3: When an order involves items that require a license from the U.S. Department of Commerce or other jurisdiction and the exporter, re-exporter, or transferor has uncertainty as to whether the item has been properly authorized for export, re-export, or domestic transfer, this uncertainty constitutes a red flag. For example, when it is known that the end user may not be licensed or that the combination of ECCN in conjunction with the end user destination triggers a "reject assumption" review policy, the exporter must resolve this red flag before proceeding with the relevant transaction in order to avoid a risk of breach of paragraph 764.2(e) of the EAR.

Red Flag 4: If an exporter, re- exporter, or transferor receives a request to provide services, installation, upgrades, or maintenance for an item that has been modified by a third party to use for a higher end purpose that would normally require a destination license, this constitutes a red flag and the exporter needs to resolve the problem before moving ahead with the transaction.

Red Flag 5: When a new customer has an executive or technical leadership (e.g. team leaders for development or manufacturing activities) that overlaps with an entity on the entity list, if the supplier has previously provided the same or similar goods or services for that entity prior to its inclusion on the entity list, this constitutes a red flag and requires additional due diligence by the exporter to resolve this issue.

Red Flag 6: When a new customer requests an item or service designed for an existing or former customer who is already on the entity list, the new customer may have taken over the business of the listed entity to pursue the same prohibited end use. This constitutes a red flag and the exporter needs to resolve it before proceeding with the transaction.

Red Flag 7: When analyzing the scope of application of FDP (foreign direct product) rules on the entity list, a foreign-produced item that is described as being under the relevant ECCN (e.g., paragraph 734.9 (e) (3) (i) or paragraph 734.9 (k) (1) of EAR) and that contains at least one integrated circuit ("IC") may be indications that the item may be subject to the relevant FDP rules and the trade needs to proceed with this red flag being resolved.

Red Flag 8: When the end user is a Facility that is physically connected to an Advanced Node IC production facility, this physical connection could allow for IC production to occur among multiple buildings so that all connected facilities would be deemed to be engaged in Advanced Node IC production. This constitutes a red flag and the exporter should submit advice to BIS in order to resolve the issue, otherwise these facilities would be treated as single Facilities and subject to the licensing requirements of  Section 744.23 of EAR.

4. Revise the definition of "advanced node IC" to cover DRAM (Dynamic Random Access Memory)

In this IFR, the definition of "Advanced-Node IC" in paragraph 772.1 of EAR has been amended and the technical standards of DRAM ICs have been updated; the standard of "18nm and a half spacing or less" has been replaced by either of the following two standards: (1) the area of the memory cell is less than 0.0019 square microns; or (2) the storage density is more than 0.288 gigabit per square millimeter.

(III) Add the control over high bandwidth memory (HBM)

In this IFR, a new item 3A090.c has been added to ECCN 3A090, providing for the control over HBM with memory bandwidth density more than 2 GB/s per square millimeter; meanwhile, a technical description has been added to 3A090.c specifying that "memory bandwidth density" shall be defined as the memory bandwidth of a package or stack measured with unit of GB/s divided by the area of the package or stack measured with unit of square millimeter. In addition, if the stack is contained in a package, the memory bandwidth and the package area of the package should be used for classification.

At the same time, this IFR makes eight conformance adjustments in other parts of the EAR to accommodate the addition of the 3A090.c entry, including adjustments to the HBM license exceptions for 3A090.c, ECCN 3D001, 3E001, reporting requirements, and other relevant licensing rules.

(IV) Clarifications for controlled software keys

This IFR amends the existing section 734.19 (Transfer of access information) by redesignating the existing section as a new paragraph (a) and adding a new paragraph (b) and Note 2 to paragraph (b) to describe how software license keys are controlled for export. The IFR synchronizes with the addition of a new paragraph 734.19 (b) to clarify the scope of software keys (or software license keys) that allow a user to access specific software or hardware, for example, to "unlock" the use of such software or hardware, or to renew the license for existing software and hardware in order to continue to use licensed software or hardware.

Prior to this amendment, the original text of section 734.19 only described the transfer of "access information" and did not address software license keys that allowed access but were not "access information" as defined in Part 772. By adding a new paragraph (b), this IFR clarifies the EAR processing of software keys.

(V) Amendments to the Business Control List (CCL)

With respect to the control over the export of semiconductor manufacturing equipment, software, and technologies, this IFR makes several amendments to the CCL, including: ECCN 3B001 adds and updates the control over specific epitaxial materials, etching equipment, low dielectric constant thin-film equipment, and advanced lithography equipment, and adjusts certain parameters to adapt to production needs of advanced node ICs; ECCN 3B993 and 3B994 are newly added to distinguish the equipment that supports the production of advanced node ICs but is also legally used in the production of non-advanced node, for which higher regional stability (RS) control is specified; ECCN 3D992, 3D993, 3E992, and 3E993 are newly added to control the "development" or "production" software and technologies of relevant equipment respectively; ECCN 3B002, 3B991, and 3B992 are added to make corresponding adjustments; and ECCN 3D994 and 3E994 are added to further regulate the "software" and "technologies" that support 3B994 items.

III、Additions and Modifications to the Entity List; Removals from the Validated End-User

In this final rule (FR), BIS amends the EAR by adding 140 entities to the Entity List. These new entities, which are located in China, Japan, South Korea, and Singapore, have been determined by the U.S. government to be engaging in activities contrary to the national security and foreign policy interests of the United States. In addition, the Regulation amends 14 China-related items in the Entity List. All of the new and modified entities are involved in the development and production of "advanced node ICs" and/or semiconductor manufacturing items or support the Chinese government's Military-Civilian Integration (MCF) Strategy.

The Regulation designates nine new entities and modifies seven items as being subject to the restrictions of the FDI Rules applicable to specified entities. The Regulation also further amends the EAR by removing three entities from the Verified End User (VEU) program.

The VEU (Verified End User) program is a white-listing mechanism established by BIS to simplify the process for exporting controlled technologies and items to selected enterprises. Through the program, eligible enterprises can obtain pre-approval from the U.S. government to accept designated controlled items without the need for a separate export license. The purpose of the VEU program is to facilitate legitimate international trade and technology transfer while ensuring national security and reducing the licensing burden on industry.

IV、A brief description of the enterprise's response strategy

The recent revisions and updates of the EAR and the Entity List by the U.S. Department of Commerce significantly strengthen the control over advanced computing technology, semiconductor manufacturing equipment, and related technologies. These changes reflect the strong concern of the U.S. on the security of technology exports by adding rules for technology control controls, adjusting the red flag identification criteria, strengthening the Direct Foreign Product (FDP) rules, and expanding the Verified End User (VEU) program.

On December 3, 2024, the Ministry of Commerce of China ("MOFCOM") issued an announcement to strengthen control over exports of relevant dual-use items to the U.S., explicitly prohibiting exports to the U.S. for military users or purposes and conducting stricter scrutiny on key materials such as gallium, germanium, antimony, etc. This announcement is issued in response to recent moves by the U.S. to strengthen export control, and protects China's national security and interest, reflecting China's firm position and countermeasures.

To address these challenges, enterprises may consider taking measures including but not limited to:

Strengthening supply chain risk management and independent R&D of technologies (such as assessment and substitution of supply chain, independent R&D investment, and core technology reserves);

Improving the export control compliance system and internal training (such as export compliance review, and internal compliance training);

Strengthening the diversification of the international market layout (such as decentralized market dependence and international technology cooperation).

Due to space constraints, we will not elaborate on the above suggestions in detail at this time.