The Department of Commerce has issued subpoenas on multiple Chinese companies that provide information and communications technology and services (ICTS) in the United States, signalling that Biden may continue the push to decouple US ICTS infrastructure from equipment and services providers over concerns that they might pose a national security risk. The targeting of Chinese companies is significant, with additional actions targeting Chinese companies potentially around the corner.
President Biden recently signed the long-awaited Executive Order on America's Supply Chains, which initiates a 100-day process of reviewing and assessing the strengths and weaknesses of supply chains across key industries and separate one-year reviews of certain other sectors. The administration's goal is to reduce the reliance on foreign-made inputs needed by critical US industries and determine whether any changes to US legislation, regulation or policy are needed to reverse shortages of crucial supplies.
As one of the last official actions of the Trump administration, the US Department of Commerce issued the Securing the Information and Communications Technology and Services Supply Chain interim final rule. If implemented by the Biden administration, the rule would significantly affect companies that have an international nexus in numerous sectors, including telecoms service providers, internet and digital service providers and data hosting or computing equipment manufacturers.
President Trump recently signed into law the Holding Foreign Companies Accountable Act, which aims to increase oversight of Chinese companies listed on US stock exchanges and force the delisting of those that refuse to comply with US audit inspection requirements. This bipartisan legislation was motivated by longstanding US frustrations over China precluding inspections of locally conducted audits of Chinese companies.
In his last days in office, President Trump has taken a swipe against companies identified by the Department of Defence as Communist Chinese military companies by prohibiting US persons from investing in such companies. According to the applicable executive order, the national security concerns stem from China exploiting US investors to finance the development and modernisation of its military through its military-civil fusion policy.
The Committee on Foreign Investment in the United States (CFIUS) is now following new rules on mandatory filings for certain foreign investments in critical technology companies. On behalf of CFIUS, the US Department of the Treasury's Office of Investment Security initially issued proposed regulations in May 2020. After considering public comments, the treasury made minor revisions to the proposed regulations and published a final rule in September 2020, which took effect on 15 October 2020.
The Bureau of Industry and Security (BIS) has published the advance notice of proposed rulemaking (ANPRM) on foundational technologies, which seeks public comment on criteria for identifying and defining 'foundational technologies' essential to US national security. Although the ANPRM is vague, the potential for stronger control of items currently controlled as Export Administration Regulation 99 or for anti-terrorism, crime control, short supply or UN reasons should prompt comments.
Driven by national security concerns, over the past three years the government has taken a much more aggressive position on an array of technology issues involving China. These policy and regulatory changes range from significant new export controls and new supply chain screening of Chinese technology to efforts to jumpstart US research and development and 'reshore' manufacturing in strategic technology areas.
The Federal Acquisition Regulation Council recently published a long-awaited interim rule implementing Section 889(a)(1)(B) of the National Defence Authorisation Act 2019. Essentially, the new rule prohibits government agencies from entering into, extending or renewing a contract with contractors if they use any equipment, system or service that uses certain Chinese telecoms equipment or services as a substantial or essential component of any system or as critical technology as part of any system.
President Trump recently signed an executive order (EO) banning 'transactions' – which have yet to be identified by the US Department of Commerce – relating to TikTok and its parent, ByteDance Ltd. The EO states that the spread of the Chinese mobile app continues to threaten the national security, foreign policy and economy of the United States. In addition to concerns relating to sensitive personal data, the EO points to concerns pertaining to influence operations.
The US Department of Defence recently published a list of 20 Chinese companies that have been identified as 'Communist Chinese military companies', complying with a two-decade-old mandate that Congress issued during the Clinton administration. The takeaway for companies, universities and individuals is that they should proceed with caution and carefully conduct due diligence when dealing with China.
A new executive order has formalised Team Telecom, a previously ad hoc committee which for many years has reviewed applications for Federal Communications Commission (FCC) authorisations involving non-US parties, typically for US-international telecoms service or submarine cable landings. The committee has the primary responsibility of reviewing applications for FCC authorisations which involve foreign ownership to identify national security or law enforcement risks.
Through an array of legislative and administrative measures, the government has made significant strides in recent years to limit, and perhaps end altogether, the proliferation of Chinese-origin telecoms technology in US infrastructure. While some of the legislation is company agnostic, Chinese telecoms giant Huawei, which remains on the Department of Commerce, Bureau of Industry and Security's Entity List, is a primary target.
The Commerce Department recently took significant steps to revise the Export Administration Regulations to address military-civil fusion. Specifically, the Bureau of Industry and Security issued two final rules regarding licence exception civil end users and military end-use and end-user controls, as well as a proposed rule which would eliminate a provision of the licence exception additional permissive re-exports that currently authorises certain re-exports to China and other countries.
After a more than one-year wait, the Department of Commerce Bureau of Industry and Security (BIS) has imposed controls on its first 'emerging technology' – software specially designed to automate the analysis of geospatial imagery. This software now requires a BIS authorisation to be exported or re-exported to any country other than Canada. Companies that develop or use AI to solve geospatial problems or in geospatial applications must review the new rules closely.
In the Foreign Investment Risk Review Modernisation Act and the Export Control Reform Act, Congress essentially gave the Department of Commerce the authority to decide how narrowly or widely to set the jurisdiction for the Committee on Foreign Investment in the United States over non-passive minority investments involving emerging and foundational technologies. Yet, at times, the department has seemed almost paralysed by this question.
Providers of telecoms, internet and digital services, as well as IT vendors and equipment manufacturers, will soon find doing deals with foreign entities a little more risky and complicated. A new review process soon to be underway at the Department of Commerce is designed to ferret out transactions that pose a threat to US national security, but provides parties whose deals are being evaluated little time to comment.
The Treasury Department, on behalf of the full Committee on Foreign Investment in the United States (CFIUS), recently released the long-awaited comprehensive draft regulations to implement the Foreign Investment Risk Review Modernisation Act. The regulations will significantly expand CFIUS's jurisdiction to cover a wider range of transactions, likely resulting in a dramatic spike in CFIUS reviews in 2020 and beyond.
The Committee on Foreign Investment in the United States (CFIUS) is finalising its draft regulations to implement the Foreign Investment Risk Review Modernisation Act 2018 (FIRRMA). FIRRMA overhauled the operations and jurisdiction of CFIUS, but one aspect of the new law that has received little attention is the expansion of CFIUS's jurisdiction to cover a broader range of real estate transactions.
Among other recent blows to Huawei, the Department of Defence, the General Services Administration and the National Aeronautics and Space Administration have issued an interim rule amending the Federal Acquisition Regulation to implement a key provision of the John S McCain National Defence Authorisation Act for Fiscal Year 2019. In light of this, US companies should carefully review their transactions with Chinese tech companies to ensure that they do not fall foul of any prohibitions.
The Committee on Foreign Investment in the United States (CFIUS) is drafting the implementing regulations for the Foreign Investment Risk Review Modernisation Act. Foreign investors are closely following how CFIUS will exercise its new 'country specification' authority – specifically, whether it will create a negative or positive list of specific countries whose transactions are, respectively, either required to undergo or exempt from CFIUS review.
Between the addition of Huawei Technologies Co Ltd – the world's largest telecoms equipment maker – to the Entity List and a new executive order declaring a national emergency relating to information and communications technology and services, May 2019 has proved to be a period of non-stop excitement for the export control world. This article discusses what these changes mean for US companies.