The Bureau of Industry and Security added 31 Chinese entities to its Unverified List last week, including Yangtze Memory Technologies Co., a semiconductor firm that U.S. lawmakers for months have urged BIS to add to the more restrictive Entity List. The final rule, which took effect Oct. 7, also removed nine other entities from the UVL and included new guidance on what types of criteria and activities may lead to the transfer of UVL entries to the Entity List.
Exports to China
The Bureau of Industry and Security should add China’s Yangtze Memory Technologies Co. to the Entity List, China Tech Threat, an organization that advocates for stronger export controls on China, said in an Oct. 4 letter to BIS. The letter points to a potential partnership between Apple and YMTC (see 2209220022), which would “put U.S. and other foreign manufacturers out of business” and will allow China’s Ministry of Industry and Information Technology to move closer to “achieving its objective of forcing companies to turn to China as their prime source for advanced technologies.”
The Bureau of Industry and Security announced a sweeping set of new export controls it said will restrict China’s ability to acquire advanced computing chips and manufacture advanced semiconductors. The controls, outlined in a final rule that will take effect in phases, will impose new restrictions on certain advanced computing semiconductor chips and semiconductor manufacturing items, impose controls on transactions for supercomputer end-uses and certain integrated circuit end-uses, and issue new restrictions on transactions involving certain entities on the Entity List.
The U.S. should harmonize the sanctions lists kept by the Commerce and Treasury departments to ensure trade and financial restrictions are imposed across the same set of companies, said Keith Krach, a former senior State Department official. Krach said all companies subject to export restrictions on the Entity List also should face strict financial sanctions on Treasury’s Specially Designated Nationals List to cut off any U.S. support for sanctioned companies, particularly those in China.
The White House should hold off on issuing a “unilateral” executive order on outbound investment screening (see 2209290043 and 2209140041) and should instead work with Congress to address sensitive investment flows to China, said Rep. Patrick McHenry of North Carolina, the top Republican on the House Financial Services Committee. In an Oct. 3 letter to National Security Adviser Jake Sullivan, McHenry said he is “concerned that the Administration may choose to resort to unilateral measures,” including the International Emergency Economic Powers Act, rather than “work with Congress to address the threat posed by China.”
The U.S. could issue new export controls on China, including restrictions on technologies used in high-performance computing and advanced semiconductors, as soon as this week, The New York Times reported Oct. 3. The report calls the new measures “some of the most significant steps taken by the Biden administration to cut off China’s access to advanced semiconductor technology,” adding they may include a “broad expansion” of the foreign direct product rule to cover additional Chinese firms.
If Republicans retake control of the House after the midterm elections in November, the chamber’s Foreign Affairs Committee will initiate a review of the Bureau of Industry and Security and its export control procedures, said Rep. Michael McCaul, R-Texas. McCaul said the review would examine BIS’ progress in restricting emerging and foundational technologies under the Export Control Reform Act and study whether U.S. export control authority should be moved to a different agency.
Although the current congressional proposal for a new outbound investment screening mechanism faces some hurdles, it could be incorporated into the upcoming National Defense Authorization Act. Sen. Pat Toomey, R-Pa., said he has concerns with some of the provisions but hopes to work with bill’s sponsors to include some type of outbound screening measure in the fiscal year 2024 defense spending bill, which could be passed this year.
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Although President Joe Biden’s recent executive order on foreign direct investment isn’t expected to significantly change review outcomes, it sends a clear signal to industry about the U.S.’s FDI priorities and could help companies better understand whether they should submit a voluntary filing, law firms said this month. One firm said the Committee on Foreign Investment in the U.S. may use the order as further reason to reach out to businesses about non-notified transactions.