China Updates its Export Curbs on Graphite Items

On October 20, 2023, the Ministry of Commerce of the PRC (MOFCOM) and the General Administration of Customs (GACC) jointly issued the Notice on the Optimization and Adjustment of Temporary Export Control Measures on Graphite Item (MOFCOM GACC Order No.39 of 2023) ("2023 Graphite Order", see here) to optimize and adjust its Decisions on Imposition of Temporary Export Controls on Graphite-Related Items enacted in 2006 ("2006 Temporary Graphite Export Controls").

As a long-standing practice in response to China's non-proliferation obligations and the need to safeguard its national security and interests (e.g., China's reserve of critical minerals), China has been imposing temporary controls on some graphite items and now formal export controls on high-purity, high-strength, and high-density artificial graphite item and natural flake graphite products.  As specified by the spokesperson of MOFCOM on October 20, 2023 (see here), the Chinese Government has recently conducted a comprehensive assessment of its temporary export control measures on graphite items and promulgated the 2023 Graphite Order to balance the non-proliferation/national security concerns and the stability of the global supply chain for industrial sectors.  In July, MOFCOM has also implemented export licensing requirements for two critical minerals (i.e. gallium and germanium) that are used in a number of strategic industries including electric vehicles, microchips and solar panels.  The export control on three grades of graphite is expected to have an impact on the supply to foreign manufacturers of electric vehicle batteries.

Specifically, starting from December 1, 2023, the 2023 Graphite Order will impose formal export controls on the three highly sensitive graphite items that were previously subject to temporary export control measures, pursuant to 2006 Temporary Graphite Export Controls and the temporary export control section under Nuclear Dual-Use Items and Related Technologies Export Control List (collectively, the "Previous Temporary Export Controls on Graphite").  Meanwhile, China will remove its temporary export controls on the remaining five graphite items, such as refined carbon products, carbon electrodes for furnaces, which appear to be less sensitive and mainly used for iron and steel, metallurgy, chemical and other basic industrial sectors of the national economy. The 2006 Temporary Graphite Export Controls will be repealed on the same date of the 2023 Graphite Order.

Below is a summary of the control parameters of graphite items subject to previous temporary export control and new 2023 formal export controls. Chinese exporters and foreign buyers are advised to review and assess whether the relevant graphite items to be sourced and exported from China meet the technical control parameters and HS codes and thus require a dual-use export license from MOFCOM.

Hogan Lovells has been closely monitoring this government regulatory development and export control enforcement actions. Please reach out to any of the listed Hogan Lovells contacts should you have specific scenarios and questions to analyze.

Authored by Roy Zou, Ben Kostrzewa, Stephanie Sun.