Introduction
The US government controls exports of sensitive equipment, software and technology for reasons of national security and foreign policy. Generally, the goals of US export controls are to (1) protect the national security of the United States by limiting access to the most sensitive US technology and weapons, (2) promote regional stability, (3) prevent the proliferation of weapons and technologies, and (4) protect human rights around the world.
US export controls frequently apply extraterritorially, extending US export controls compliance obligations to non-US persons. For example, an item of US origin can remain controlled under US laws even after its initial export, and require a licence or authorisation for re-export – or even transfer within a single country – from one non-US person to another non-US person. Even certain items produced outside the United States may be subject to US export controls if they are the direct product of certain technology, softwar
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Friday, June 25, 2021
Yesterday, the U.S. Customs and Border Protection (“CBP”) issued a Withhold Release Order (“WRO”) against Hoshine Silicon Industry Co. Ltd. , a company located in China’s Xinjiang Uyghur Autonomous Region (“XUAR”). The WRO has instructed personnel at all U.S. ports of entry to immediately begin to detain shipments containing silica-based products made by Hoshine and its subsidiaries. The WRO applies not only to silica-based products made by Hoshine and its subsidiaries but also to materials and goods derived from or produced using those silica-based products. CBP’s investigations into allegations of forced labor have produced six WROs this fiscal year.
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On January 23, 2020, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of State issued two final rules, available here and here. The final rules outlined the removal of specifically-identified firearms, ammunition, accessories, and associated technical data from the United States Munitions List (“USML”) and the creation of new Export Control Classification Numbers (“ECCNs”) to classify those same items under the Commerce Control List (“CCL”). While most of the transfer of jurisdiction from State to Commerce proceeded on the original effective date of March 9, 2020, the jurisdictional transfer of International Traffic in Arms Regulations (“ITAR”) “technical data” files for 3D-printed firearms to BIS was enjoined the same day by the U.S. District Court for the Western District of Washington in a suit brought by 20 states and the District of Columbia.
Impacts of Encryption Regulation and Strategic Competition Act on CFIUS
The last two years have seen the passage and expedited implementation of the Foreign Investment Risk Review Modernization Act (FIRRMA) – arguably the largest change in U.S. regulation of foreign investment since the 1975 creation of the Committee on Foreign Investment in the U.S. (CFIUS).
Significant changes to U.S. Foreign Direct Investment (FDI) related laws and regulations continue. Recent changes by the U.S. Department of Commerce, Bureau of Industry & Security (BIS) should remove open source and mass market encryption as “emerging” technologies subject to CFIUS review under FIRRMA. Conversely, the Strategic Competition Act of 2021 (“SCA”), passed by the Senate and headed to the House, will expand CFIUS coverage to U.S. universities, colleges, and research institutes.