UNITED STATES - MEASURES ON CERTAIN SEMICONDUCTOR AND OTHER PRODUCTS, AND RELATED SERVICES AND TECHNOLOGIES REQUEST FOR CONSULTATIONS BY CHINA
Document: REQUEST FOR CONSULTATIONS BY
Date: 15 December 2022
Document codes: WT/DS615/1; G/L/1471; G/TRIMS/D/46; S/L/438; IP/D/44
Complainant: China
Respondent: U.S.
Dispute stage: Consultation
Agreements cited: Art. I:1, X:1, X:3, XI:1  GATT 1994Art. VI  Services (GATS)Art. 2  Trade-Related Investment Measures (TRIMs)Art. 28  Intellectual Property (TRIPS)

UNITED STATES - MEASURES ON CERTAIN SEMICONDUCTOR AND OTHER PRODUCTS,
AND RELATED SERVICES AND TECHNOLOGIES
REQUEST FOR CONSULTATIONS BY CHINA
The following communication, dated 12 December 2022 , from the delegation of China to the
delegation of the United States , is circulated to the Dispute Settlement Body in accordance with
Article 4.4 of the DSU.

States pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement
of Disputes ("DSU"), Article XXII of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"),
Article XXII of the General Agreement on Trade in Services ("GATS"), Article 8 of the Agreement on
Trade-Related Investment Measures ("TRIMs Agreement"), and Article 64.1 of the Agreement on
Trade-Related Aspects of Intellectual Property Rights ("TRIPS A greement") concerning certain
measures of the United S tates related to trade restrictions on certain advanced computing
semiconductor chips, supercomputer items, semiconductor manufacturing items and other items, as
well as their related services and technologies destined for or in relation to China.
2. China considers that these measures are inconsistent with the United States' obligations under
various provisions of the covered agreements. Pursuant to Article 4.4 of the DSU, the reasons for
this request, including identification of the measures at issue and an indication of the legal basis for
the complaint, are given below.
I. Background
3. The United States has maintained and implement ed an export control regime of certain items,
including certain commodities, software and technology. The export control regime is administered
by the U.S. Department of Commerce's Bureau of Industry and Security ("BIS") through the Export
Administration Regulations (15 CFR Parts 730-774, "EAR").
4. The EAR covers, among others, exports from the United States and transfer of foreign-produced
products containing U.S.-origin components or derived from U.S.-origin technology or software. The
list of EAR -controlled "items", including commodities, software and technology, is published in
Supplement No.1 to Part 774 of the EAR, namely, the Commerce Control List ("CCL"). Each controlled
item is designated with an Export Control Classification Number ("ECCN") consisting of a set of digits
and a letter. The CCL covers approximately 2,800 controlled items, far exceeding that of th e
international export control regime 1 which covers approximately 1,800 controlled items. In other
words, the United States imposes export controls on approximately 1,000 items that are not included
in the international export control regime.

1 International export control regime consists of multilateral recognized agreements or resolutions,
which include but not limited to, United Nations Security Council Resolution 1540 (2004), the Treaty on the
Non-Proliferation of Nuclear Weapons, the Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, and the Convention on
the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their
Destruction.
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5. Apart from items controlled under the ECCN, the EAR also includes an additional "basket
category", i.e., the EAR99, which covers any item that is subject to the EAR as defined in §734.3(a)
of the EAR but not listed on the CCL.
6. For items subject to the EAR, a license may be required for export, reexport or transfer (in -
country) depending on the destination country, receiving party and end use, unless an exclusion or
exemption applies. Notably, the destination countries are divided into groups listed in the Commerce
Country Chart,2 and the receiving parties are controlled in the Entity List,3 the Military End User List4
and the Unverified List.5 To ensure the compliance with the EAR, traders from not only the United
States but also other WTO Members must g o through as many as 29 steps to determine and carry
out their EAR obligations.6
7. An export control regime should serve to promote global security and facilitate responsible export
with respect to the international commitment s of non -proliferation. However , the United States
abuses its export control regime as a tool to achieve its objectives of maintaining "its leadership in
science, technology, engineering and manufacturing sectors". 7 As a blatant example, the United
States implements export control on i tems for civilian use or on activities of commercial entities,
with a view to weaken the scientific and technological development of other WTO Members and to
preserve its technology edge.8
8. To achieve these goals, the United States has amended the EAR and adopted a series of
disruptive measures targeting China's development in related sectors and in the global
semiconductor supply chain. The United States not only imposes export controls itself on China, but
also compels other WTO Members to follow suit by virtue of its extra -territorial control. By
overstretching the extent of export controls and by bulling other WTO Members, the U nited States
has caused severe disruption to international trade and risked the disintegration of the global
semiconductor supply chain.
9. The above-mentioned disruptive measures can be evident in an interim final rule published by
BIS on October 7, 2022 ("Interim Final Rule") 9. The Interim Final Rule places trade restrictions on

2 The Commerce Country Chart is provided in Supplement No.1 to Part 738 of the EAR.
3 The Entity List is provided in Supplement No. 4 to Part 744 of the EAR. The Entity List identifies foreign
parties that are prohibited from receiving some or all items subject to the EAR unless the exporter secures a
license. BIS can add to the Entity List a foreign party, such as an individual, business, research institution, or
governmental organization, for engaging in certain activities. In most instances, license exceptions are
unavailable for the export, reexport, or transfer (in-country) to a party on the Entity List of items subject to the
EAR. Rather, prior license authorization is required, usually subject to a policy of denial.
4 The Military End User List is provided in Supplement No. 7 to Part 744 of the EAR. It identifies foreign
parties that are prohibited from receiving items described in Supplement No. 2 of Part 744 of the EAR unless
the exporter secures a license.
5 The Unverified List is published in Supplement No. 6 to Part 744 of the EAR. It is a list of parties whose
bona fides BIS has been unable to verify. No license exceptions may be used for exports, reexports, or
transfers (in-country) to unverified parties. A statement must be obtained from such parties prior to shipping
items not subject to a license requirement.
6 See Part 732 of the EAR where the 29 steps are listed and explained.
7 See 50 U.S. Code, section 4811 (Statement of policy): "The following is the policy of the United
States: …… (3) The national security of the United States requires that the United States maintain its
leadership in the science, technology, engineering, and manufacturing sectors, including foundational
technology that is essential to innovation. Such leadership requires that United States persons are competitive
in global markets. The impact of the implementation of this part on such leadership and competitiveness must
be evaluated on an ongoing basis and applied in imposing controls under sections 4812 and 4813 of this title to
avoid negatively affecting such leadership."
8 The United States' abuse of export control regime can be evidenced in the public speeches of its
government officials. For example, on September 16, 2022, the National Security Advisor Jake Sullivan
explained the United States' ambition and determination to pursue strength "at home" and "around the world"
in his speech at the Special Competitive Studies Project Global Emerging Technologies Summit: "[o]n export
controls, we have to revisit the longstanding premise of maintaining 'relative' advantages over competitors in
certain key technologies. Given the foundational nature of certain technologies, such as advanced logic and
memory chips, we must maintain as large of a lead as possible…… [T]echnology export controls can be more
than just a preventative tool." See Remarks by National Security Advisor Jake Sullivan at the Special
Competitive Studies Project Global Emerging Technologies Summit, September 16, 2022, at
https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/09/16/remarks-by-national-security-
advisor-jake-sullivan-at-the-special-competitive-studies-project-global-emerging-technologies-summit/.
9 See Bureau of Industry and Security, Implementation of Additional Export Controls: Certain Advanced
Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List
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certain advanced computing semiconductor chips, supercomputer items, semiconductor
manufacturing items and their related services and technologies destined for or in relation to China.
It also imposes broad and vague controls on activities of U.S. corporations and individuals as well
as on shipments from outside the United States with respect to non-U.S.-origin items produced with
certain U.S. technology, software or equipment. The Interim Final Rule is designed to "limit the PRC's
ability to obtain advanced computing chips or further develop AI and 'su percomputer' capabilities",
to limit "the ability to produce indigenously within China these types of advanced ICs" and to "limit
the PRC's ability to obtain semiconductor manufacturing capabilities to produce ICs". 10 In China's
view, the Interim Final Rul e and other disruptive export control measures constitute politically -
motivated and disguised restrictions on trade.
II. The Measures at Issue
10. The measures at issue are motivated by political considerations for preserving the United States’
edge in technol ogy sectors , and constitute discriminatory and disguised trade restrictions. The
measures at issue include but are not limited to:
11. The Export Control Reform Act of 2018 (50 U.S. Code Sections 4801 – 4852);
12. The Export Administration Regulations (15 CFR Par ts 730 – 774), including but not limited to
the following provisions:
12.1 §732.3(a), §732.3(b)(3), § 740.2(a)(9), §742.6(a)(6) and §742.6(b)(10) of the EAR
("ECCN Rules");
12.2 §734.9(h), §734.9(i), §742.6(a)(6), §742.6(b)(10) and §744.23 of the EAR ("FDP Rules");
12.3 §734.9(e)(2), §744.11(a)(2)(ii), and Supplement No. 5 to Part 744 of the EAR ("Entity List
FDP Rules");
12.4 §744.1(a)(1) and §744.23 of the EAR ("End User/End Use Rules"); and
12.5 §744.6(c), §744.6(d) and §744.6(e)(3) of the EAR ("U.S. Persons' Activities Rules");
13. The Interim Final Rule, i.e. the Implementation of Additional Export Controls: Certain Advanced
Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use;
Entity List Modification (87 FR 62186, Federal Register/Vol. 87, No. 197, October 13, 2022);
14. FAQs for Interim Final Rule – Implementation of Additional Export Controls: Certain Advanced
Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use;
Entity List Modification (published by BIS on October 28, 2022);11
15. The failure of the United States to publish promptly the Interim Final Rule in such a manner as
to enable traders and other interested parties to become acquainted with it, and to administer the
Interim Final Rule in a uniform, impartial and reasonable manner.
16. The measures at issue also include any amendments, replacements or ext ension of the
measures listed above as well as any measure relating to, administering or implementing the
measures listed above. The following Sections A through F provide an illustrative list of the particular
aspects of the measures at issue that China c onsiders to be inconsistent with the covered
agreements:

Modification, 87 FR 62186, Federal Register/Vol. 87, No. 197/Thursday, October 13, 2022, at
https://www.govinfo.gov/content/pkg/FR-2022-10-13/pdf/2022-21658.pdf.
10 See Bureau of Industry and Security, Implementation of Additional Export Controls: Certain Advanced
Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List
Modification, Section I (Background),87 FR 62186, Federal Register/Vol. 87, No. 197/Thursday, October 13,
2022, at https://www.govinfo.gov/content/pkg/FR-2022-10-13/pdf/2022-21658.pdf.
11 See https://www.bis.doc.gov/index.php/documents/product-guidance/3181-2022-10-28-bis-faqs-
advanced-computing-and-semiconductor-manufacturing-items-rule-2/file.
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A. ECCN Rules
17. The ECCN Rules add or update the following ECCN items of the CCL: (i) ECCN 3B090, which
controls certain semiconductor manufacturing deposition equipment and specially designed parts,
components and accessories for such equipment for China -related reasons; (ii) ECCNs 3D001 and
3E001, which control the associated software and technology for items in ECCN 3B090; (iii) ECCN
3A090 for certain advanced integrated circuits ("ICs"); (iv) ECCN 4A090 for commodities containing
chips that meet or exceed the performance parameters of ECCN 3A090; (v) ECCNs 4D090 and 4E001
for associated software and technology specially designed or modified for the development or
production of computers and related equipment, electronic assemblies, and components specified in
ECCN 4A090 for certain reasons. Also, a license is required for the export from China to any
destination worldwide of ECCN 3E001 (for 3A090) technology developed by an entity headquartered
in Ch ina that is the direct product of software subject to the EAR and is for the production of
commodities identified in ECCNs 3A090, 4A090, or identified elsewhere on the CCL that meet or
exceed the performance parameters of ECCNs 3A090 or 4A090.
18. License applications will be reviewed by BIS with a presumption of denial. The ECCN Rules also
limit the availability of most license exceptions for certain exports, reexports, or transfers to or
within China.
19. Furthermore, it appears to China that the EAR controls items of an excessively broad coverage.
By the "basket category" EAR99 as provided in §732 .3(b)(3), the EAR controls "low -technology
consumers goods"12 or "non-sensitive products and potentially sensitive technologies".13 A license is
required when an EAR99 item is destined for any of the embargo country, prohibited end-user, or is
being exported in support of a prohibited end-user (including entities designated in the Entity List).
Such license requirement on EAR99 will result in discrimination to trade in non-sensitive commercial
items destined for certain WTO Members or commercial end -users, such as the Chinese entities
designated in the Entity List.
B. FDP Rules
20. The FDP Rules substantially expand the scope of items tha t are "subject to the EAR" to cover
non-U.S.-origin items in the advanced computing and semiconductor sector that are produced
outside the United States and are destined for China or listed entities. The FDP Rules published on
October 7, 2022 impose licens e requirements for any foreign -produced item subject to the EAR if
such item is either (i) a "direct product" of "technology" or "software" specified under certain ECCNs;
or (ii) produced by any plant or "major component" of a plant where the plant or "major component"
of a plant itself is a "direct product" of U.S.-origin "technology" or "software" specified under certain
ECCNs.14

12 The description "low-technology consumer goods " of EAR99 is provided by BIS. See
https://www.bis.doc.gov/index.php/regulations/commerce-control-list-ccl.
13 The description "non-sensitive products and potentially sensitive technologies" of EAR 99 is provide by
the Congressional Research Service, U.S. Export Controls and China, March 24, 2022. See
https://crsreports.congress.gov/product/pdf/IF/IF11627.
14 According to the Interim Final Rule of October 7, 2022, the FDP Rules cover different groups of
foreign-produced items:
The Advanced Computing FDP Rules apply to a foreign-produced item if :(1) it is the "direct product" of
"technology" or "software" subject to the EAR and specified in 3D001, 3D991, 3E001, 3E002, 3E003, 3E991,
4D001, 4D090, 4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D002, 5D991, 5E001, 5E991, or 5E002 of the
CCL; or it is produced by any plant or "major component" of a plant when the plant or "major component" of a
plant itself is a "direct product" of U.S.-origin "technology" or "software" specified in the ECCNs above; and (2)
the foreign-produced item is specified in ECCN 3A090, 3E001 (for 3A090), 4A090, or 4E001 (for 4A090) of the
CCL; or the foreign-produced item is an integrated circuit, computer, "electronic assembly," or "component"
specified elsewhere on the CCL and meets the performance parameters of ECCN 3A090 or 4A090.
The Supercomputer FDP Rules apply to a foreign-produced item if: (1) it is the "direct product" of
"technology" or "software" subject to the EAR and specified in ECCN 3D001, 3D991, 3E001, 3E002, 3E003,
3E991, 4D001, 4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D991, 5E001, 5E991, 5D002, or 5E002 of the
CCL; or (2) the foreign-produced item is produced by any plant or "major component" of a plant when the
plant or "major component" of a plant itself is a "direct product" of U.S.-origin "technology" or "software"
specified in the ECCN 3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D994, 4E001, 4E992, 4E993,
5D001, 5D991, 5E001, 5E991, 5D002, or 5E002 of the CCL.
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21. The FDP Rules consist of the following:
21.1 Advanced Computing FDP Rules: provided mainly in §734.9(h) of the EAR, the Advanced
Computing FDP Rules apply if the individual or entity has "knowledge" 15 that the foreign -
produced item is: (1) destined for China or will be incorporated into any "part," "component,"
"computer" or "equipment" not designated EAR99 that is destined for Ch ina; or (2) technology
developed by an entity headquartered in China for the "production" of a mask or an IC wafer or
die.
22.2 Supercomputer FDP Rules: provided mainly in §734.9(i) of the EAR, the Supercomputer
FDP Rules apply to certain items destined for China whenever the exporter has "knowledge" that
the foreign -produced item will be :(1) used in the design, "development," "production,"
operation, installation (including on-site installation), maintenance (checking), repair, overhaul
or refurbishing of a "supercomputer" (as defined in §772.1 of the EAR) located in or destined for
China; or (2) incorporated into or used in the "development" or "production" of any "part,"
"component" or "equipment" that will be used in a "supercomputer" located in or destined for
China.
22. The license applications submitted under the FDP Rules will be reviewe d by BIS with a
presumption of denial.
C. Entity List FDP Rules
23. The EAR maintains an Entity List in Supplement No. 4 to Part 744 of the EAR as a tool to control
exports to certain end users. The reasons for an entity to be listed in the Entity List can be very
broad. 16
24. The procedures for addition to, modification of or removal of an entity from the Entity List are
provided in Supplement No.5 to Part 744 of the EAR. Firstly, the addition to the Entity List needs a
majority vote of the member agencies of t he End-User Review Committee ( "ERC")17; in contrast,
the criteria for the removal from the Entity List is stricter, requiring a unanimous vote of all ERC
member agencies. Secondly, the EAR provides an internal review and remedy mechanism for the
member agencies of ERC if it is not satisfied with the outcome of the vote for addition to, modification
of or removal of the entity. However, once a decision is made by the ERC (or after the internal review
and the remedies are exhausted), the decision is final for the entity concerned and cannot be further
reviewed through regular EAR interagency review process. Therefore, the entity concerned is
afforded with fewer opportunities than the ERC member agencies to seek review and remedies for
the administrative decision that imposes restriction on trade.
25. With respect to the Entity List itself, generally, the Entity List identifies non -U.S. entities that
are prohibited from receiving some or all items subject to the EAR unless the exporter secures a
license. However, for certain Chinese entities, the EAR expands the restrictions to combine with the
foreign direct product rules by adding Footnote 4 designation to the entities in the Entity List.
Effective on October 21, 2022, the United States adds 28 Chinese entities to the Entity List with a
Footnote 4 designation. The Entity List FDP Rules provided mainly in §744.11(a)(2)(ii) apply if there

15 According to Part 772 of the EAR, knowledge of a circumstance (the term may be a variant, such as
"know," "reason to know," or "reason to believe") includes not only positive knowledge that the circumstance
exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future
occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person
and is also inferred from a person's willful avoidance of facts.
16 The criteria for revising and adding an entity into the Entity List are provided in §744.11(b) of the
EAR. According to §744.11(b), any entities for which there is reasonable cause to believe, based on specific
and articulable facts, that the entity has been involved, is involved, or poses a significant risk of being or
becoming involved in activities that are contrary to the national security or foreign policy interests of the
United States and those acting on behalf of such entities may be added to the Entity List. The criteria listed in
paragraphs (b)(1) through (5) are only "an illustrative list of activities" that cannot represent all and any
circumstances.
17 According to paragraph 1 of the Supplement No.5 to Part 744 of the EAR, the ERC composes of
representatives of the Departments of Commerce, State, Defense, Energy and, where appropriate, the
Treasury.
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is the knowledge that a foreign-produced item18 will be involved in activities of a designated entity
with Footnote 4 on the Entity List, or the aforesaid entity is a party to the transaction. 19
26. For the applications in relation to the 28 entities designated with Footnote 4, the review policy
is set forth in the entry in Supplement No. 4 to Part 744 of the EAR. Most of the 28 entities will be
reviewed by BIS with a presumption of denial.
D. End User/End Use Rules
27. The new End User /End Use Rules expand the scope of controlled items subject to the license
requirement by limiting semiconductor manufacturing and supercomputer end use in China.
According to §744.23 of the EAR, BIS imposes end-user/end-use controls based upon an individual
or entity's knowledge that certain items subject to the EAR are destined for a supercomputer or
semiconductor development or production end-use in China.
28. Pursuant to §744.23(a) of the EAR, the following activities are subject to license requirements:
(1) any item subject to the EAR being used in the "development" or "production" of ICs at a
semiconductor fabrication "facility" located in China that fabric ates certain ICs; (2) certain item
subject to the EAR being used for the "development," "production," "use," "operation," installation
(including on -site installation), maintenance (checking), repair, overhaul or refurbishing of a
"supercomputer" located in or destined for China; (3) any item subject to the EAR being used in the
"development" or "production" in China of any "parts," "components" or "equipment" specified under
certain ECCNs.20 §744.23(b) of the EAR specifies that BIS may inform persons of a new license

18 According to §734.9(e)(2)(i) of the EAR, the export control in Footnote 4 applies to a foreign-
produced item if : (1) it is the "direct product" of "technology" or "software" subject to the EAR and specified in
ECCN 3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994, 4E001, 4E992, 4E993, 5D001,
5D002, 5D991, 5E001, 5E002, or 5E991 of the CCL; or (2) the foreign-produced item is produced by any plant
or ‘major component’ of a plant when the plant or ‘major component’ of a plant, whether made in the U.S. or a
foreign country, itself is a "direct product" of U.S.-origin "technology" or "software" that is specified in ECCN
3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994, 4E001, 4E992, 4E993, 5D001, 5D991,
5E001, 5E991, 5D002, or 5E002 of the CCL.
19 According to §734.9(e)(2)(ii) of the EAR, the export control in Footnote 4 apply to a foreign-produced
item if: (1) the foreign-produced item will be incorporated into, or will be used in the “production” or
“development” of any "part", "component", or "equipment" produced, purchased, or ordered by any entity with
a Footnote 4 designation in the license requirement column of the Entity List in Supplement no. 4 to Part 744
of the EAR; or (2) any entity with a footnote 4 designation in the license requirement column of the Entity List
in supplement no. 4 to part 744 of the EAR is a party to any transaction involving the foreign-produced item,
e.g., as a "purchaser", "intermediate consignee", "ultimate consignee", or "end-user".
20 To be more specific, pursuant to the §744.23 of the EAR, one may not export, reexport, or transfer
(in-country) without a license any item subject to the EAR meeting the product scope in paragraph (1) below
when you have "knowledge" at the time of export, reexport, or transfer (in-country) that the item is destined
for the end-use described in paragraph (2) below.
(1) Product scope. Any of the following items meet the product scope of the prohibition:
(i)An integrated circuit subject to the EAR and specified in ECCN 3A001, 3A991, 4A994, 5A002, 5A004,
or 5A992 when you know the item will be used in an end use described under paragraph (2)(i) or (ii);
(ii) computer, "electronic assembly," or "component" subject to the EAR and specified in ECCN 4A003,
4A004, 4A994, 5A002, 5A004, or 5A992 when you know the item will be used in an end use described under
paragraph (2)(i) or (ii);
(iii) Any items subject to the EAR when you know the items will be used in an end use described in
paragraphs (2)(i) or (ii);
(iv) Any items subject to the EAR and classified in an ECCN in Product Groups B, C, D, or E in Category
3 of the CCL when you know the items will be used in an end use described in paragraph (2)(iv) of this section;
or
(v) Any item subject to the EAR when you know the item will be used in an end use described in
paragraph (2)(v).
(2) End-use scope. The following activities meet the end-use scope of the prohibition:
(i) The "development," "production," "use," operation, installation (including on-site installation),
maintenance (checking), repair, overhaul, or refurbishing of a "supercomputer" located in or destined to the
PRC;
(ii) The incorporation into, or the "development" or "production" of any "component" or "equipment"
that will be used in a "supercomputer" located in or destined to the PRC; or
(iii) The "development" or "production," of integrated circuits at a semiconductor fabrication "facility"
located in the PRC that fabricates integrated circuits meeting any of the following criteria:
(A) Logic integrated circuits using a non-planar transistor architecture or with a
"production" technology node of 16/14 nanometers or less;
(B) NOT AND (NAND) memory integrated circuits with 128 layers or more; or
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requirement imposed on certain end -user when BIS considers there is an unacceptable risk of use
in, or diversion to, the activities specified in §744.23(a)(2) of the EAR.
E. U.S. Persons' Activities Rules
29. The U.S. Persons' Activities Rules restrict U.S. persons from engaging in or facilitating activities
supporting the development or production of certain ICs at fabs in China.
30. According to §744.6(c) of the EAR, BIS requires a U.S. person to obtain a license to engage in
(or facilitate) shipping, transmitting, transferring or servicing: (1) items not subject to the EAR that
the individual or company knows will be used in the "development" or "production" of ICs at a
semiconductor fabrication "facility" located in China that fabricates certain ICs; (2) items not subject
to the EAR and meeting the parameters of any ECCN in Product Groups B, C, D or E in Category 3
of the CCL that the individual or company knows will be used in the "development" or "production"
of ICs at any semiconductor fabrication "facility" located in China, for which the individual or
company does not know whether such semiconductor fabrication "facility" fabricates certain ICs;
and (3) items not subject to the EAR and meeting the parameters of certain ECCNs regardless of
end use or end user.21
F. Procedural Deficiencies
31. The United States did not publish promptly the Interim Final Rule in such a manner as to enable
traders and other interested parties to become acquainted with it and therefore failed to administer
the measures in a uniform, impartial and reasonable manner. In or around September 2022, certain
semiconductor companies were reported to be informed by BIS of the future publication of the
Interim Final Rule and were required to halt their exports in advance. 22 In other words, the United
States enforces certain trade-restrictive measures before the promulgation of such measures.
32. In addition, the procedural discrepancy for adding to and removing from the Entity List as
mentioned in Part II.C above constitutes an instance for the United States' failure to administer its
export control regime in a uniform, impartial and reasonable manner. The imprecisely and
uncertainly broad scope of EAR99, which results in restrictions on non -sensitive and commercial
items and on commercia l entities that should not have been restricted under the export control
regime, also reflects the United States' failure to administer its export control regime in a uniform,
impartial and reasonable manner.
III. Legal Basis of the Complaint
33. The measures at issue described above constitute restrictions on trade and are inconsistent
with the United States' obligations under various provisions of the covered agreements, including
but not limited to:
34. Article I:1 of the GATT 1994 because with respect to all rules and formalities in connection with
exportation, the United States fails to accord immediately and unconditionally the advantage, favor,
privilege and immunity granted to products destined for other WTO Members to like products
destined for China;

(C) Dynamic random-access memory (DRAM) integrated circuits using a "production" technology node
of 18 nanometer half-pitch or less; or
(iv) The "development" or "production" of integrated circuits at any semiconductor fabrication "facility"
located in the PRC, but you do not know whether such semiconductor fabrication "facility" fabricates integrated
circuits that meet any of the criteria in paragraphs (2)(iii)(A) through (C); or
(v) The "development" or "production" in the PRC of any "parts," "components," or "equipment"
specified under ECCN 3B001, 3B002, 3B090, 3B611, 3B991, or 3B992.
21 See §744.6 (c)(2) of the EAR.
22 For instance, NVIDIA Corporation filed a report to the United States Securities and Exchange
Commission on August 26, 2022 that the United States imposed a new license requirement, effective
immediately, for any future export of the company's certain types of ICs to China. Systems that incorporate
such certain types of ICs were also covered by the license requirement, and the license requirement also
included future ICs that achieve equal or greater performance. See Nvidia Corporation, Current Report
Pursuant To Section 13 Or 15(d) Of The Securities Exchange Act Of 1934, at
https://www.sec.gov/ix?doc=/Archives/edgar/data/0001045810/000104581022000146/nvda-20220826.htm.
WT/DS615/1 • G/L/1471 • S/L/438 • G/TRIMS/D/46 • IP/D/44

35. Article XI:1 of the GATT 1994 because the measures at issue constitute restrictions made by
the United States through export licenses on the exportation or sale for export of the products
destined for China;
36. Article 2 of the TRIMs Agreement because the meas ures at issue constitute investment
measures related to trade in goods, which are inconsistent with Article XI of GATT 1994;
37. Article 28 of the TRIPS Agreement because the United States fails to confer the patent owners
the right to assign, or transfer by succession, the patent and to conclude licensing contracts;
38. Article X:1 of the GATT 1994 because the United States has instructed certain semiconductor
companies to make application in relation to the new license requirement before such requirement
is officially published. The United States fails to publish promptly the measures at issue pertaining
to trade restrictions in such a manner as to enable governments and traders to become acquainted
with them;
39. Article X:3 of the GATT 1994 because the United States fails to administer its laws, regulations,
decisions, and rulings of general application relating to trade restrictions in a uniform, impartial and
reasonable manner;
40. Article VI of the GATS because the United States fails to ensure that its trade -restrictive
measures of general application affecting trade in services are administered in a reasonable,
objective and impartial manner. Furthermore, the United States fails to maintain or institute
objective and impartial procedures which, at the request of an affected entity, provide for the prompt
review of and appropriate remedies for administrative decisions affecting trade in services.

41. As a result of the foregoing, the measures at issue appear to nullify or impair benefits accruing
to China directly or indirectly under the cited agreements.
42. China reserves the right to raise additional claims and legal matters regarding the above -
mentioned measures at issue during the course of the consultations. For avoidance of doubt, China
considers the scope of th is request for consultations to encompass specific instances of the
application of the measures described herein, as well as any ongoing conduct resulting from the
continued application of these measures.
43. China looks forward to receiving the reply of the Government of the United States to this request
and to setting a mutually convenient date for consultations.