US Export Controls: Classifying Advanced Chips

This guide explains how to classify advanced semiconductors and chip-making equipment under U.S. export controls, specifically the Export Administration Regulations (EAR) and the recent October 2022 and October 2023 rules. You’ll learn the key terms, the step-by-step classification process, and how to determine whether a license is needed. This is a technical, compliance-heavy area, so accuracy matters—misclassification can lead to severe penalties.

What You’ll Need

• The item’s technical specifications (e.g., transistor count, performance metrics like TOPS, interconnect bandwidth, die size).
• The item’s Export Control Classification Number (ECCN) if known, or the data to determine it.
• Access to the current EAR (Title 15 CFR Parts 730–774) and the Commerce Control List (CCL) in Supplement No. 1 to Part 774.
• Knowledge of the end-user, end-use, and destination country (to check for license exceptions and embargoes).
• Familiarity with the terms “entity list,” “military end-use,” and “national security” controls.

Step-by-Step

1. Identify the item’s category and product group. Most advanced chips fall under ECCN 3A090 (integrated circuits) or 4A090 (computing items). Equipment used to make them falls under 3B001, 3B002, or 3B090. The CCL is organized by category (e.g., 3 = Electronics, 4 = Computers) and product group (A = Systems/Equipment, B = Test/Inspection/Production Equipment, C = Materials, D = Software, E = Technology).
2. Determine the chip’s performance parameters. For advanced chips (ECCN 3A090), the key thresholds are:
   • Total processing performance (TPP) of 4800 or more (a measure of arithmetic operations per second).
   • Or a performance-to-area ratio of 5.92 or more.
   • For AI chips, the “performance density” metric (TOPS per mm²) and “total performance” (TOPS) matter. The October 2023 rule introduced a new parameter: chips with a total performance of 4800 or more, or a performance density of 5.92 or more, are controlled.
3. Check if the chip is for a specific end-use. Some chips are controlled only if they meet certain performance levels and are destined for military or “national security” end-uses. For example, chips that don’t meet the 3A090 thresholds might still be controlled under 3A090.a if they are for a military end-user or end-use.
4. For semiconductor equipment, identify the function. Equipment that is designed for the production of advanced chips (e.g., lithography systems, etch tools, deposition tools) falls under 3B001 or 3B002. Newer equipment that can produce chips with 3A090 parameters may fall under 3B090. Check the technical notes in the CCL for specifics on wafer size, node size, and capabilities.
5. Determine if a license is required. If the item is controlled under an ECCN, you must check the “Reasons for Control” (e.g., National Security, Anti-Terrorism, Regional Stability) and the Commerce Country Chart (Supplement No. 1 to Part 738). If your destination country is in a column that requires a license for that reason, you need a license. For advanced chips, the October 2022 rule imposed controls on chips made with a certain performance level, and the October 2023 rule expanded these to more chips and added a “performance density” threshold.
6. Check for license exceptions. The EAR provides exceptions like LVS (Limited Value Shipments), GBS (Shipments to Country Group B), and NAC (Computing Devices). However, for advanced chips, many exceptions are restricted. For example, the NAC exception is not available for chips meeting 3A090.a parameters. Always verify current restrictions.
7. Consider the destination and end-user. Even if a license isn’t required based on the ECCN alone, you must screen against the Entity List, Denied Persons List, and other lists. Also, if the end-use is for a military end-user in a country subject to a military end-use restriction (e.g., China, Russia), a license may be required.
8. Document your classification. Keep a record of your analysis, including the technical data, the ECCN determination, and the license exception basis. This is your compliance evidence in case of an audit.

Common Mistakes

• Ignoring the performance density metric. Many people only look at TOPS, but the new rules also use TOPS per mm². A chip with high TOPS but low density might still be controlled.
• Assuming all chips are 3A090. Some chips are classified under 4A090 (for computers) or 5A002 (for telecommunications). Check the full CCL.
• Using outdated rules. The October 2023 rule revised the thresholds. Always use the current EAR, which is updated regularly.
• Overlooking the “hot chiplets” rule. The October 2023 rule introduced controls on chiplets—small modular chips that can be combined. If you’re exporting a chiplet that meets the performance thresholds, it may be controlled even if the final product doesn’t.
• Misinterpreting “performance density.” This is the total processing performance (in TOPS) divided by the die area (in mm²). A common error is using the package area instead of the die area.

Tips

• Use BIS’s online tools, like the CCL search and the Automated Export System (AES) for filing, but always double-check with the actual regulation text.
• When in doubt, submit a commodity classification request to BIS. It’s not mandatory, but it gives you a binding determination.
• Keep track of the “de minimis” rule: if your product contains a controlled U.S.-origin component, the foreign-made product may still be subject to EAR.
• For software and technology related to advanced chips, check ECCNs 3D001, 3E001, 4D090, and 4E001. The same performance thresholds apply.
• Consider the “military end-use” rule for China, Russia, and a few other countries. Even if the chip doesn’t meet the 3A090 thresholds, it might be controlled if it’s for a military end-use.

Troubleshooting

• You can’t determine the chip’s performance density. Contact the manufacturer for the die size and TOPS. If they won’t provide it, you may need to assume the worst (i.e., that it is controlled) or get a written specification.
• Your item is not listed in the CCL. If it’s not in the CCL, it’s EAR99. But be careful: EAR99 items can still require a license for embargoed destinations or certain end-uses. Also, if your item is specifically designed for a 3A090 chip, it might be controlled under 3B090 or 3A090 itself.
• The rules changed after you started. Always check the Federal Register for the latest rules. If you’re mid-shipment, you may need to stop and re-evaluate.
• Your customer says the chip is for civilian use, but you have doubts. You are required to do due diligence. If you have “red flags,” you must inquire further. If you can’t resolve them, you may need to decline the transaction.
• You’re unsure about the license exception eligibility. The EAR has specific conditions for each exception. For example, LVS is not available for 3A090 items. Check the specific exception’s paragraph in Part 740.

Frequently Asked Questions

Q: What is the difference between ECCN 3A090 and 4A090?
A: 3A090 covers integrated circuits (chips) themselves. 4A090 covers computers and “electronic assemblies” that contain such chips. If you’re exporting a chip, use 3A090. If you’re exporting a server or a computer board that includes the chip, use 4A090.

Q: Does the October 2023 rule apply to chips already in transit?
A: Generally, no. The rule took effect on November 17, 2023, and applies to shipments that are exported or reexported after that date. However, there is a 60-day grace period for some items, but it’s best to check the rule’s effective date provisions.

Q: Are there any exceptions for chips used in consumer products like smartphones?
A: Yes, the October 2022 rule included a “consumer” exception for chips with a total performance below 4800 and performance density below 5.92. But the October 2023 rule tightened this. Some chips in smartphones may still be controlled if they meet the thresholds, but there are exceptions for items that are not designed for advanced computing, such as those for gaming or image processing. You must analyze each chip individually.

Q: How do I calculate TPP (total processing performance)?
A: TPP is defined in the EAR as the sum of the processing performance of each processing unit, measured in TOPS (trillions of operations per second). The formula is complex and depends on the number of operations per second and the bit length. For most chips, the manufacturer provides TOPS. The EAR defines TPP as “the total arithmetic processing performance” and provides a formula in the technical notes.

Q: What is a “chiplet” and how is it controlled?
A: A chiplet is a small modular die that can be combined with others to form a larger chip. The October 2023 rule added new ECCNs for chiplets (3A090.b). They are controlled if they have a total performance of 4800 or more, or a performance density of 5.92 or more, and are designed for integration into a larger chip. If you export chiplets, you must classify them separately.

Q: Can I self-classify my chip, or do I need to ask BIS?
A: You can self-classify, but it’s risky. Many companies choose to request a commodity classification from BIS to get a binding determination. This is not required, but it protects you from liability if your classification is wrong.

Related

• Cheat Engine Guide: How to Use It
• 2XKO Sidekick Fuse: How It Works & When to Use
• Why AI Agents Must Show Their Work to Earn Trust