BIS Sets Conditions Over Eased License Review Policy for H200 Chips, Equivalents to China

The BIS final rule, released Jan. 13 and effective Jan. 15, will update the agency’s review policy for exports of Nvidia H200 chips and their equivalents that are destined to China and Macau. Those chips will be reviewed under a case-by-case policy instead of a presumption of denial as long as the semiconductors set to be exported are commercially available in the U.S. and the exporter can attest that there is “sufficient supply” in the U.S.; the chip has “sufficient security procedures”; that production of the chip won’t “divert global foundry capacity for similar or more advanced products for end users in the United States”; and that the chip will undergo third-party testing.

The rule will be published in the Federal Register just over a month after President Donald Trump announced plans to allow the sale of Nvidia’s H200 AI chips to “approved customers” in China (see 2512080059). BIS said the new review policy will also apply to chips that are "less advanced" than the H200 and is “consistent with U.S. national security and foreign policy objectives, which recognize the need to maintain the United States’ technological superiority.”

The conditions outlined in the rule "will provide additional transparency on the commodities being exported and are intended to ensure that the advanced computing capabilities of the destination country do not exceed the capabilities or supply capacity of the United States, or negatively impact the global foundry capacity that would otherwise be used to produce similar node or more advanced integrated circuits, in a way that would be detrimental to U.S. national security interests," BIS said in the rule.

The rule specifically applies to advanced chips with a total processing performance “less than 21,000” and a “‘total DRAM bandwidth’ less than 6,500 GB/s,” such as the Nvidia H200 or AMD MI325X. BIS said it will still employ a presumption of denial license review policy for exports outside Macau or destinations in Country Group D:5 to entities that are headquartered or have a parent company headquartered in Macau or in Country Group D:5.

To benefit from the new case-by-case review policy, BIS said the license applicant “must certify and provide necessary supporting data” showing:

• The chip set to be exported operates below the performance criteria outlined in the final rule.
• The number of "units of the items have been shipped in the United States at the time of license application.”
• There is “sufficient supply” of the product in the U.S., and the export won’t lead to “any delay in fulfilling any existing or new orders of any of its ‘advanced-node integrated circuits’ from customers in the United States for end use in the United States (taking into account normal lead times).”
• The global foundry capacity that would otherwise be used to make similar node or more advanced chips for end users in the U.S. “will not be diverted to produce the commodities authorized by this license for exports to China.”
• The aggregate shipments of the product to China and Macau will be “no more than 50% of the total product shipped to customers for end use in the United States of that product.”
• The export isn’t prohibited by end-user or end-use controls and controls for nonmilitary end-uses or end-users.
• The ultimate consignee will “employ rigorous” know your customer procedures to “screen and prevent unauthorized remote access to unauthorized parties.”
• Before export, the chip will be reviewed by a “qualified third-party testing lab to confirm the technical capabilities and functions of the AI commodities described in the exporter’s license application.”

BIS said the third-party testing can be performed through a “representative sampling of a batch of semiconductors chosen by the lab, rather than the lab reviewing every individual semiconductor that the exporter intends to export.” It also said it defines third-party testing labs as “independent organizations that evaluate products to ensure they meet quality, safety, and regulatory standards, and their impartiality sets them apart from in-house testing facilities.” It said those labs must “provide unbiased assessments to produce test results that are credible and reliable.”

Those testing labs must be headquartered in the U.S. and the testing must take place in the U.S., and it can’t be controlled by a company or entity headquartered in, or whose ultimate parent company or other entity is headquartered in, a Country Group D:5 nation or Macau. The lab must also not have any financial interest or ownership in any party to the transaction, and it “must have the expertise to confirm that representations made on the technical capabilities and functions of the AI commodities described in the exporter’s license application -- including but not limited to the ‘total processing performance,’ ‘total DRAM bandwidth,’ ‘interconnect bandwidth,’ and ‘copackaged DRAM capacity’- are accurate.”

As part of the know your customer attestation, the license application must “clearly enumerate” the know your customer and “physical security measures adopted by the ultimate consignee/customer,” BIS said, and it must “stipulate that the receiving facility will also manage and limit Infrastructure as a Service (including AI model training and inference) for its customers to prevent unauthorized access to these advanced computing commodities.”

The agency also said the license applicant must provide the agency with a list of “remote end users located in Belarus, China, Cuba, Iran, Macau, North Korea, Russia, and Venezuela, or whose ultimate parent company is headquartered in, Belarus, China, Cuba, Iran, Macau, North Korea, Russia, and Venezuela. Based on the records and information provided as part of the application process, BIS and reviewing agencies will determine, on a case-by-case basis, whether to approve or deny the license of these specific commodities.”