The Commerce Department’s proposed guardrails for recipients of Chips Act funding could lead to compliance risks for semiconductor companies, especially as the agency bolsters its enforcement arm, law firms said. They also said companies should carefully review how the proposals intersect with chip export restrictions.
A Washington, D.C., court last week rejected a Russian citizen’s bid to dismiss government accusations that he misled investors about his company’s “key” space technology and several U.S. “adverse national security determinations” against the company. The ruling came after the Securities and Exchange Commission said Mikhail Kokorich, former CEO of space industry startup Momentus, made several “misrepresentations, false statements, and material omissions” in merger discussions with another firm, failing to disclose that the Commerce Department had rejected at least one of his company's export license applications and planned to deny another (SEC v. Mikhail Kokorich, D.D.C. # 21-1869).
The Census Bureau is still deciding whether to introduce a country of origin reporting requirement in the Automated Export System despite receiving mostly opposing comments on the proposal, with trade groups saying the change could lead to costly compliance challenges (see 2203160026 and 2301230008). Gerry Horner, chief of the agency’s trade regulations branch, said the division should be meeting with upper management “very soon” to decide on the best path forward.
The Bureau of Industry and Security will soon request feedback from industry, academia and others on key differences in U.S. and EU interpretations of export control provisions, said Charles Wall, BIS’ senior policy adviser for the U.S.-EU Trade and Technology Council. Wall, speaking during a BIS technical advisory committee meeting this week, said the notice will ask for “very specific information” on discrepancies between the two territories' export control regimes and ways those rules can be harmonized.
The Commerce Department this week released proposed “guardrails” for recipients of Chips Act funding, which could restrict how the funding is used in certain countries and align the guardrails with export restrictions. The proposed rule would block funding recipients from pursuing certain chip investments in China and other “foreign countries of concern,” restrict them from participating in certain research or technology licensing efforts with those countries, prevent the funding from being provided to companies on the Entity List and more, Commerce said.
The Bureau of Industry and Security is relaxing its licensing policy for certain satellite exports, a change that could have a “major” impact on satellite industry sales, Commerce Deputy Secretary Don Graves said. As part of the change, BIS will review export applications for satellites and satellite components intended to go to Missile Technology Control Regime countries on a case-by-case review policy instead of a presumption of denial, Graves said.
The U.S. and India last week launched the India-U.S. Strategic Trade Dialogue to discuss “export controls, explore ways of enhancing high technology commerce, and facilitate technology transfer between countries,” the Commerce Department said. The effort will be led on the U.S. side by the Bureau of Industry and Security, Secretary Gina Raimondo said. “This is exciting because it’s an official government-to-government arrangement where we’re going to deepen our engagement with India, specifically around the area of aligning our export controls and sharing our information with one another.”
The Biden administration's FY 2024 budget request includes funding to support a new outbound investment review “program” and more money for U.S. agencies to carry out export control and sanctions authorities.
The Bureau of Industry and Security approved $23 billion worth of prospective exports involving Chinese companies on the Entity List from January through March 2022, representing about 79% of all license applications it received for those companies during that time period. The data, recently released by House Foreign Relations Committee Chair Michael McCaul, R-Texas, shows an “unacceptable” amount of approvals, the lawmaker said.
The Bureau of Industry and Security will increase the number of penalties it issues against corporations for export violations this year, an effort it hopes will lead to improved industry compliance, the top export BIS enforcement official said last week. DOJ also will concentrate more resources on targeting export violators, a top agency official said, and plans to significantly expand its Export Control Section.