The Bureau of Industry and Security today will release a range of updates to its 2022 China chip rule, including new restrictions on several dozen additional chip tools and related items, updated export control parameters for chips used in artificial intelligence applications, a novel notification requirement for certain “gray-zone” chips that fall just below that updated threshold, a new license requirement for chip exports to companies headquartered in nations subject to a U.S. arms embargo and more. BIS also added 13 Chinese companies to the Entity List, effective Oct. 17, for developing advanced chips in ways BIS said are contrary to U.S. national security.
Exports to China
Logistics companies, especially those based in China, should closely examine their U.S. export control risks, particularly after the Commerce Department added a range of Chinese logistics firms to the Entity List earlier this month for their involvement in microelectronics exports to Russia (see 2310060044), major Asian law firm King & Wood Mallesons said in a client alert last week.
The Bureau of Industry and Security this week will officially extend authorizations for South Korean semiconductor companies Samsung and SK Hynix to allow them to continue supplying certain controlled chip equipment to their Chinese factories. The move -- which formalizes authorizations that have applied to both companies since the agency issued its China chip rule Oct. 7, 2022 -- underscores the importance of the Korean chip industry to global semiconductor supply, BIS officials said.
Although the EU, the U.S. and other nations want companies to pursue a de-risking strategy toward China, the Chinese government has a “number of tools” to make Western firms’ de-risking strategies “a lot less attractive to the company,” said Janka Oertel, director of the Asia program and senior policy fellow at the European Council on Foreign Relations. She said Western governments should keep in mind that some companies may not voluntarily choose to de-risk, especially if they're given a convincing business offer from Beijing.
The Biden administration needs to soon update its China-related chip export controls and apply “full blocking sanctions” to Huawei and China’s Semiconductor Manufacturing International Corp., top House Republicans recently said in a letter to National Security Adviser Jake Sullivan. Those measures and others will address what the lawmakers said has been a ”failure” by the administration and the Bureau of Industry and Security to properly enforce the Oct. 7 chip restrictions, which placed new license requirements on a host of chip-related exports and activities involving China.
Huawei’s 7 nanometer chip smartphone breakthrough earlier this year (see 2309120005, 2309150020 and 2309190052) signals that although China hasn’t yet reached the “global state of the art for semiconductor manufacturing,” the “gap between the peak technological level of China and that of the rest of the world has shrunk” despite U.S. export controls, said Gregory Allen of the Center for Strategic and International Studies.
If the Treasury Department doesn't clarify the due-diligence steps that will be required of dealmakers under the agency’s upcoming outbound investment prohibitions, the Biden administration risks chilling a broad range of U.S ventures in China and incentivizing foreign companies to seek funds elsewhere, law firms and industry associations said in comments to the agency.
U.S. allies in Europe and Asia would support new efforts to coordinate on export controls for advanced technologies, including semiconductors, panelists said during an event this week hosted by the Center for Strategic and International Studies. But they also said those same countries don’t believe the world needs a new dual-use multilateral export control regime to replace the Wassenaar Arrangement, even though Russia remains a member and can block proposals.
Dealmakers are hoping for more certainty when the Treasury Department finalizes regulations for its August executive order on outbound investment restrictions, which may force companies to make difficult investment decisions without assurances that their deals won’t be later unwound.
Rising U.S.-China tensions are causing all-time highs in uncertainty and pessimism for U.S. companies doing business in China, and are driving U.S. companies to reduce investment in China in record numbers, according to an annual member survey released by the U.S.-China Business Council on Sept. 26. More than a third of companies said they have either stopped investing in China or have scaled back.