Lennart Heim#1586
Due to regulatory confusion, it had become an open secret that large-scale shipments of cutting-edge US AI chips were resuming to Chinese-headquartered firms outside China without a US export license.
This, in effect, was a total cancellation of US AI chip controls.
The new BIS guidance clarifies that a license is still required for these shipments.
But while the guidance solved one problem, it failed to fix, and even exacerbated another.
Namely, by failing to say that BIS is also enforcing license requirements on foundries like TSMC to perform due diligence on their customers, the guidance has opened the door to a redux of Huawei illicitly using front companies to manufacture millions of chips at US and allied foundries.
BIS needs to issue a clarification immediately that these due diligence requirements are being enforced.
NEW: BIS just issued guidance stating that licenses are required for advanced AI chip exports to China-headquartered firms located outside of China (e.g. a Tencent subsidy in Malaysia). The reason they had to issue this statement is BIS’ non-enforcement of certain export controls have (potentially inadvertently) have allowed Chinese companies to both buy Nvidia Blackwell chips and make AI chips at TSMC, all legally and without a license. This is a HUGE problem.
Since May 2025, BIS has publicly stated that it is not enforcing certain license requirements related to AI chip shipments, and as a result, apparently Chinese companies’ overseas subsidiaries (e.g., Tencent Malaysia) have been able to legally buy Nvidia Blackwell chips without an export license - even though this had been restricted since 2023. Chinese companies have been buying these chips, very likely at scale. And because BIS has not updated export control regulations to clearly state what it IS enforcing, all of this was legal.
It actually gets worse. BIS’ non-enforcement announcement in May 2025 extends to existing US restrictions that prevent TSMC from making AI chips for Chinese companies. US export control regulations require TSMC to do enhanced due diligence on any orders that could be an AI chip, to make sure it isn’t illegally being made for a Chinese company (directly or indirectly). But these regulations require a license requirement to be in effect to work. And those license requirements largely were not being enforced.
This clarification does make clear that Blackwell shipments to China-headquartered companies outside of China are now illegal again—which is good, although obviously we have to see how many shipments have already gone to assess how much damage was done. BIS’ statement acknowledges these shipments have been happening when it says companies who bought chips under this loophole don’t have to stop using them.
HOWEVER, this statement does NOT say that BIS will enforce the parts of US regulations requiring TSMC to do enhanced due diligence on AI chip orders. This is a massive loophole that still needs to be closed. If Chinese companies can make chips at TSMC (including by using third-country cutouts to receive the chips), there is no point to restricting China’s access to AI chips or advanced chip-making tools.
Ultimately, BIS desperately needs to issue a regulation that clarifies what US export control policy for AI chips is. The reason this happened is because BIS said it is not enforcing existing regulations, but didn’t make clear what specific provisions its non-enforcement applied to, and didn’t update regulations to align with what it IS enforcing - which created massive loopholes, some of which still persist.
