A piece of AI accelerator hardware only counts as a real shortlist candidate once it has cleared four gates that no benchmark score can answer. The first is its export-control classification (the ECCN in the US, the Annex I entry in the EU). The second is its licence or licence-exception status for the specific transaction. The third is screening of the end user and the end use, and the fourth is eligibility under whatever framework or tender is paying for it. Under the EU regime, an exporter aware that unlisted goods are meant for one of the listed military or WMD end uses must notify the authority. In the EuroHPC AI Gigafactory tender, third-country access agreements raising security concerns need prior approval from a Public Governance Body.
These gates sit alongside the technical work of shortlisting hardware and stacks for AI compute, and they come before it. A device that fails one of them is off the list, however well it performs.
The four gates for AI accelerator hardware at a glance
| Gate | Who decides | What evidence closes it | Can performance data answer it? |
|---|---|---|---|
| Classification (ECCN or EU Annex I code) | The exporter, checking technical data against the control list | Classification statement plus the technical reasoning behind it | No. Controls turn on listed technical thresholds, not measured throughput |
| Licence or licence exception | BIS in the US, the member-state competent authority in the EU | Licence record, or a documented exception; proof of authorisation at customs in the EU | No |
| End-user and end-use screening | Exporter or reseller | Screening against the Consolidated Screening List, end-use certification, red-flag resolution | No |
| Framework or tender eligibility | Contracting authority (EuroHPC JU) | Compliance with minimum requirements, restrictive-measures checks, Declaration on Honour | No |
Which AI accelerators are export-controlled, and how do you find a chip’s ECCN?
In the US, the controls on advanced AI accelerators centre on ECCNs 3A090 and 4A090 (with their .a and .b paragraphs) and the related .z entries. NVIDIA’s January 2025 Form 8-K stated that any system incorporating a covered integrated circuit, including its DGX, HGX and MGX systems, fell under the same licensing requirement. The same filing listed A100, A800, H100, H200, H800, B100, B200, GB200, L4, L40S and RTX 6000 Ada among products meeting the characteristics of 3A090.a or 4A090.a. The filing described an interim rule due for compliance on 15 May 2025, and Commerce rescinded the AI Diffusion Rule that month. So read the list as evidence of how classification attaches to SKUs and to the systems built around them, not as current licence status.
BIS’s Know Your Customer guidance tells resellers to determine the ECCN of the product and the restrictions that apply, and to pass that to the customer. ECCNs are entries on the Commerce Control List in Supplement No. EU classification works the same way: you check the product’s technical data against Annex I, where controls turn on thresholds such as processing power. Each Annex I entry carries a five-character code such as 3A001.
Why a benchmark score cannot classify a chip
Many EU controls turn on technical thresholds such as processing power. BIS’s case-by-case pathway for China and Macau requires the licence application to report the chip’s TPP, total DRAM bandwidth, interconnect bandwidth and co-packaged memory. LynxBenchAI holds that specification metrics alone cannot predict real AI performance. The regulator’s metric and a measured score answer different questions, and neither can stand in for the other.
The 26Q3 results show how far apart they are. Each device below belongs to a product family named on the same NVIDIA list of products meeting 3A090.a or 4A090.a characteristics, and they span a wide range of measured results:
| Device (26Q3 results) | GT | Training | Inference |
|---|---|---|---|
| NVIDIA L4 | 150.1 | 116.7 | 209.1 |
| NVIDIA L40S | 395.8 | 316.0 | 528.1 |
| NVIDIA A100-SXM4-80GB | 440.3 | 415.6 | 661.0 |
| NVIDIA RTX 6000 Ada Generation | 457.4 | 373.9 | 597.4 |
| NVIDIA H100 80GB HBM3 | 939.5 | 709.3 | 1678.1 |
| NVIDIA H200 | 1045.0 | 812.0 | 1914.6 |
| NVIDIA B200 | 1306.4 | 1089.7 | 2224.5 |
GT is an ordinal aggregate, so the gap between the L4 and the B200 is an ordering, not a ratio. The filing named the L4 and the B200 alike.
Can we legally buy these chips and resell them to domestic startups?
For a domestic reseller, the customer decides the answer more than the chip does. BIS guidance from June 2026, as summarised by Holland & Knight, says a licence is required for items under 3A090.a, 3A090.b, 4A090.a, 4A090.b and related .z paragraphs going to entities headquartered in Country Group D:5 or Macau, or whose ultimate parent is, even when the entity itself sits elsewhere. Morgan Lewis gives the example of a Singapore customer owned by a Chinese parent, where an export would still be denied. BIS also treats any entity at least 50 percent owned by Entity List or Military End-User List parties as listed itself, and treats significant minority ownership as a red flag. Entity List restrictions cover in-country transfers as well as exports.
A reseller’s gate is therefore due diligence on each customer’s corporate structure and headquarters. That means screening against the Consolidated Screening List, which is updated daily, and watching for BIS red flags such as a buyer who is reluctant to describe the end use or whose business does not fit the product.
Does selling capacity as spot or reserved tiers change the classification? Classification follows the item’s technical parameters, and a pricing tier does not change what the hardware is. What a rental model changes is who can reach the chips. On the China and Macau case-by-case licence route, BIS’s conditions anticipate cloud providers renting out compute and require that no barred party gain access, including remote access. Whether a particular tier makes the deal a service rather than a hardware resale, and what follows from that, is a question for counsel.
A vendor’s “ECCN or licence denial history” is likewise a question for counsel to confirm. Screen the parties as well. The Consolidated Screening List covers the Denied Persons List, Entity List, Unverified List and Military End-User List, and no licence exceptions are available for shipments to unverified parties.
Does shipping an accelerator across borders need a licence under US re-export rules or the EU dual-use regulation?
Often it does, and the answer depends on the SKU, the route and the parties. On the US side, re-exports or transfers of advanced computing chips from third countries to China or Macau remain under a presumption of denial. Even the new case-by-case route for direct exports caps aggregate China and Macau shipments of a chip at 50 percent of what the exporter has shipped to US customers. It also requires a US independent lab to test and certify every shipment.
On the EU side, Regulation (EU) 2021/821 sets common rules, a common control list and common authorisation types. Exporting any item listed in Annex I needs an authorisation. An unlisted item can still need a licence if the authority informs you it may be meant for one of three listed military or WMD uses. Article 12 provides four authorisation types: individual, global, national general and Union general export authorisations (EUGEAs). Proof of authorisation has to be shown at customs, and a member state with grounds for suspicion can suspend the export while it consults the issuing authority. Whether a shipment between member states needs authorisation at all is a separate question from exporting out of the Union; put it to the national authority directly.
What documentation should you get before a resale or cross-border deal?
Use this checklist per SKU and per transaction:
- Classification statement from the vendor or distributor giving the ECCN or Annex I code, as BIS advises resellers to determine and pass on.
- Classification reasoning, kept on file so the decision can be defended years later.
- End-use certification from the customer, with copies of all related documents and communications.
- Screening records against the Consolidated Screening List for every party, not only the end user, since listed-party restrictions apply to purchasers and consignees too.
- Licence or authorisation record, shown as proof of authorisation at customs where required.
- Independent lab confirmation for each shipment on the US China and Macau case-by-case route.
- Transaction records identifying the items, quantities, exporter, consignee and, where known, the end use and end user, kept for at least five years from the end of the year of export under EU rules.
Vendor paperwork can be incomplete, so counsel should verify it rather than file it.
Who on the buyer’s side signs off export compliance before the purchase or framework agreement is executed?
Name one owner before execution: a trade-compliance officer backed by qualified counsel, with authority to stop the deal. For the China and Macau case-by-case route, Morgan Lewis advises building internal procedures so that no shipment is released before the lab clears it and the report reaches BIS. Getting this wrong can invalidate the licence or lead to penalties. Under a EuroHPC AI Gigafactory tender, the Declaration on Honour on exclusion grounds must be signed by an authorised representative of the entity providing it. The person who signs that declaration should not be the first to hear about the export-control position.
Recheck the status at contract time
BIS published new semiconductor rules in April 2024, September 2024, December 2024 and January 2025. The AI Diffusion Rule was issued on 15 January 2025 and rescinded that May, with a replacement rule promised. BIS announced that Commerce is approving licence-free shipments of advanced computing items to the UAE government and certain companies under a May 2025 framework. Morgan Lewis advises companies to expect BIS to adjust thresholds and certification requirements further. A classification memo from the last deal is a starting point for the review. It does not settle the new one.
Does EuroHPC or a framework agreement limit which integrators and configurations you can shortlist?
Yes. The EuroHPC AI Gigafactory call and its framework contract restrict the shortlist through who may supply, where data and users may sit, and what may later happen to the hardware. In that call, the coordinator must be a legal entity incorporated in the EU and effectively controlled by EU member-state entities or nationals. The data lifecycle of the AIGF’s core activities, metadata and telemetry included, must stay within EU territory. Tenderers and their subcontractors are checked against EU restrictive measures. Tenders that fail the minimum requirements are rejected, and EuroHPC tender rules state that those requirements hold for the full contract and cannot carry reservations.
The model framework contract then constrains the hardware itself. Where processing units come from the US, the contractor must implement measures guaranteeing compliance with US restrictions on their use. GPUs may be used only to build the AI Gigafactory and may not go to entities from ineligible countries. Further safeguards apply if the units are resold or transferred at end of life. So the exit plan for an accelerator is part of its eligibility from the start.
Access calls work differently. There you apply for compute time on systems the hosting entities provide. The Regular Access call lists MeluXina, Discoverer, Deucalion, Arrhenius, LUMI, Leonardo, MareNostrum5 and JUPITER. The Technical Guidelines list their accelerators, among them NVIDIA A100 on Vega GPU, AMD Instinct MI250X on LUMI-G, NVIDIA Hopper on MareNostrum5 ACC, GH200 on JUPITER Booster, and L40S or H100 nodes on Arrhenius. Applications must include scaling data up to each site’s minimum job size, and the Access Resource Committee ranks proposals on scientific and technical excellence.
A system’s place on that list says nothing about whether it suits your workload. The Technical Guidelines themselves advise applying to the Benchmark and Development calls to collect benchmarks on the target system first. Where a listed accelerator is in the published LynxBenchAI results, read its device page. In the 26Q3 results the A100-SXM4-80GB scores 661.0 for inference and the L40S 528.1. The MI250X and the GH200 do not appear in that release.
What is the procedure to add a system that isn’t already on the framework list?
Treat adding a system as a formal route to agree with the contracting authority, never as an ad hoc purchase. In a tender, any offer that misses the minimum requirements is rejected. For people rather than hardware, the AI Gigafactory contract does give a route: users outside the eligible group submit a written request to the Public Governance Body, which aims to reply within 20 working days. Check the current catalogue first. If the system you want is missing, open that conversation before you commit budget or timeline to it. The Regular Access call runs multiple cut-offs through to 2033, so confirm what is offered at each one rather than relying on an old list.
How do you check the shortlist still matches what buyers are actually asking about?
A shortlist reads as representative when written inclusion and exclusion criteria are applied to documented demand signals (inbound questions, survey answers, gaps readers flagged in the last comparison), followed by a deliberate check for whole categories that are missing. If several requests name a device or category you left out, add it. If a category is absent from both the shortlist and the feedback, investigate it before you finalise.
The category check needs a map that goes beyond GPUs. Reuther and colleagues at MIT Lincoln Laboratory (2020) catalogued accelerators built as vector engines, dataflow engines, neuromorphic designs, flash-based analog memory and photonic processors. Closer to buyers today, Intel’s NPU is integrated into Core Ultra processors. Qualcomm’s Cloud AI 100 is a PCIe card for inference that is not intended for training and carries up to 32 GB of DDR.
The published coverage gives you a concrete gap to test against. The 26Q3 results contain GPU and CPU executors. The Intel Core Ultra 7 165U appears through its integrated graphics, at a GT of 7.6, not through its NPU. No NPU-only device or inference card appears in the 26Q3 results. Where your device or workload was not run, LynxBenchAI measures real AI performance on hardware you have access to with stock PyTorch.
Weigh requests against the category map rather than letting either one decide alone.
FAQ
What is the 50% rule for export controls?
Two different rules go by that name. Since BIS’s ownership rule, any entity at least 50 percent owned by Entity List or Military End-User List parties is treated as listed itself. Separately, the China and Macau case-by-case route caps a chip’s shipments there at 50 percent of what the exporter has shipped to US customers for use in the United States.
What are dual-use export controls?
Dual-use controls govern items with both civil and military uses. The EU controls their export, transit, brokering and technical assistance to prevent WMD proliferation. Exporting any item on the EU’s Annex I list needs an authorisation.
Are there any export restrictions on H200 chips?
NVIDIA listed the H200 among products meeting the characteristics of ECCN 3A090.a or 4A090.a. BIS guidance from June 2026 requires a licence for those ECCNs when the end user, or its ultimate parent, is headquartered in Country Group D:5 or Macau.
Sources
- EU Export Controls: Licences and Catch-All Risk, customssupport.com
- BIS Publishes Guidance Regarding License Requirements for Advanced Computing Items (Holland & Knight, June 2026), hklaw.com
- U.S. Department of Commerce Establishes Export Control Framework Limiting the Diffusion of Advanced Artificial Intelligence and Expands and Clarifies Advanced Computing Controls, cov.com
- Know Your Customer Resources (BIS Export Management & Compliance Division), bis.gov
- TENDER SPECIFICATIONS - European Commission, ec.europa.eu
- NVIDIA Form 8-K, 13 Jan 2025 (AI Diffusion IFR licensing disclosure), sec.gov
- Department of Commerce Announces Rescission of Biden-Era Artificial Intelligence Diffusion Rule, Strengthens Chip-Related Export Controls, bis.gov
- BIS Revises Export Review Policy for Advanced AI Chips Destined for China and Macau, morganlewis.com
- News and Updates, bis.gov
- Guidance on end-user and end-use controls and U.S. person controls, bis.gov
- Exporting dual-use items - Trade and Economic Security, policy.trade.ec.europa.eu
- Updates on Semiconductor Controls Carlos Monroy, Director, bis.gov
- Contract number: [complete] 1 FRAMEWORK SERVICE CONTRACT AI GIGAFACTORY [NAME], ec.europa.eu
- TENDER SPECIFICATIONS - EuroHPC JU, eurohpc-ju.europa.eu
- EuroHPC JU Call for Proposals for Regular Access Mode - The European High Performance Computing Joint Undertaking (EuroHPC JU), eurohpc-ju.europa.eu
- Page 1 of 32 EuroHPC JU, eurohpc-ju.europa.eu
- Survey of Machine Learning Accelerators (Reuther et al., MIT Lincoln Laboratory), arxiv.org
- Quick overview of Intel's Neural Processing Unit (NPU) — Intel NPU Acceleration Library documentation, intel.github.io
- Qualcomm Cloud AI 100 (AIC100) — The Linux Kernel documentation, docs.kernel.org
