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On October 7, the Department of Commerce, Bureau of Industry and Security (BIS), announced new controls on exports to China related to semiconductors. BIS also added 38 Chinese entities to the Unverified List (UVL) and established new criteria for adding entities to the Entity List. Specific details of these rules, particularly the expansive action regarding semiconductors, are laid out below.
Continue Reading Commerce Issues Two Rules Impacting China Exports, Parties

On September 15, President Biden announced the issuance of Executive Order (EO) 14083 to sharpen the focus of inbound investment screening by more formally tying the role of the Committee on Foreign Investment in the United States (CFIUS or the Committee) to the president’s national security prerogatives. For the first time since the Committee was established in 1975, the EO provides formal presidential direction delineating five specific factors for the Committee to consider when reviewing foreign acquisitions of U.S. companies.
Continue Reading A First! President Hones Government’s Foreign Investment Review

On September 9, the Commerce Department’s Bureau of Industry and Security (BIS) published an interim final rule to clarify how American industry can participate in international standards-setting activities when interacting with entities on the Entity List.
Continue Reading With New Rule, BIS Seeks to Ensure Fuller American Participation in Standards-Setting Discussions

Today, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) published a final rule adding seven Chinese entities to the Entity List. The U.S. government determined these seven entities, primarily supporting the Chinese aerospace and space industries, had acted “contrary to national security and foreign policy interests of the United States.” BIS stated that the entities were acquiring or attempting to acquire U.S.-origin items to support China’s military modernization campaign. These seven entities bring the total number of listed Chinese entities to approximately 600.
Continue Reading Commerce Targets Chinese Military-Civil Fusion Program as Seven Chinese Entities Added to the Entity List

On July 8, the United States Court of Appeals for the District of Columbia upheld a lower court’s ruling dismissing a complaint from Federal Express Corporation (FedEx) and holding it liable for violating the Export Control Reform Act of 2018 (ECRA) even though the common carrier had been completely unaware of its violation. On appeal, FedEx unsuccessfully argued the Department of Commerce’s strict liability interpretation of 15 C.F.R.  § 764.2(b) is ultra vires – a clear overstep of statutory authority.
Continue Reading FedEx Held Liable for Act Done Unwittingly and Unknowingly

In an article for Business Weekly Taiwan, I discussed the impact on Taiwan companies amid rising tensions between the United States and China. The U.S. Department of Commerce recently added China-based tech company Hunan Goke Microelectronics to the Entity List, one of the U.S. government lists that impose various levels of trade, travel, asset, and financial restrictions on overseas companies to help protect U.S. national security. Adding China-based companies to the Entity List or another restrictive trade list, often negatively impacts Taiwan companies who rely on trade with China.

As I recommend to Taiwan companies, it’s important to know your customer – it’s important to research fully to know the supply chain and end users of your products. I note that companies in China and anywhere, including the U.S., put a lot of their businesses on the website so you can see the types of activities that they’re engaged in. Company websites are a good starting point for researching companies and exercising due diligence.Continue Reading Impact on Taiwanese Companies Amid Trade Situation between United States and China

I recently co-authored an article for WorldECR with Scott Jones, a nonresident fellow at The Stimson Center, examining the history and current trajectory of the Entity List, part of the Export Administration Regulations (EAR) administered by the U.S. Bureau of Industry and Security (BIS) to help protect U.S. national security. In the article, we outline the history of the Entity List and discuss the need for a just and transparent removal mechanism.

We state that “since the 2008 change in scope to include national security and foreign policy concerns, the number of parties added to the Entity List has increased dramatically” from its original purpose of preventing the proliferation of weapons of mass destruction.  With the recent technology conflicts between the United States and China, we argue the Entity List has become the most convenient tool in the toolbox to further U.S. national security and foreign policy goals.Continue Reading History and Trajectory of the Entity List Related to National Security Concerns

I recently authored an article for Law360 offering an inside look at two U.S. Department of Commerce committees responsible for interpreting how national security and foreign policy should be applied to transactions involving the export, re-export and transfer of U.S. technology. I served on both committees – the Export Administration Operating Committee (OC) and the Advisory Committee on Export Policy (ACEP); I was chair of the OC and executive secretary of the ACEP until joining Bass, Berry & Sims. The article lends important insight to the closed-door processes each body uses and provides clarity on how national security decisions are reached.

While the chair of the OC has decision-making authority (with certain exceptions where decisions are made by interagency vote), the ACEP is the body that reviews cases where a government agency does not agree with the OC chair’s decision. “The decisions of these bodies are where the rubber meets the road in export control implementation,” I explained in the article. “Export control is a key feature in determining whether the U.S. will continue to maintain its technological supremacy, or China or another country will catch up or surpass the U.S.”

In addition to a neutral chair of the OC, who also serves as executive secretary of the ACEP by law, and the politically appointed ACEP chair, representatives from the Department of Commerce, Defense, Energy and State sit on the OC and ACEP. At the OC level, the chair makes a decision based on recommendations from the four agencies (again, with certain exceptions). At the ACEP, decisions are based on a majority vote and where the vote is a tie, the decision reverts to the OC Chair’s decision. The goal of the balanced interagency structure at the OC level is to prevent a single agency from dominating the process. The ACEP’s process aims to resolve situations where the regulatory standards and policy are not clear and have led to disagreements among agencies at the OC, including giving policy guidance for OC members to apply in similar situations going forward.Continue Reading Key Department of Commerce Entities Related to National Security Decision-Making Processes

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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