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.
Exports to 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.
A Bureau of Industry and Security official last week confirmed the agency sent letters to specific companies restricting their ability to export certain artificial intelligence-related chips to China, and said more restrictions may be coming. In the agency’s first public comments on the matter, Thea Kendler, BIS’s assistant secretary for export administration, said the agency hopes the letters help inform industry about the types of exports the agency is scrutinizing.
While the Biden administration hasn't yet decided whether to establish an outbound investment screening regime, officials believe more investment screening could help fill certain gaps in semiconductor-related export controls, said Peter Harrell, a National Security Council official. Harrell said an outbound regime also could provide the U.S. with more information about global semiconductor investments, which could be useful as the U.S. seeks to stop China from acquiring advanced chip equipment.
A new Commerce Department rule aimed at making it easier for certain U.S. technologies to be shared at standards-setting bodies will “undermine” U.S. efforts to protect those sensitive technologies from being acquired by China, Rep. Michael McCaul, R-Texas, said. Although the rule, issued last week (see 2209080038), sought to allow the participation of U.S. companies in international standards bodies that have members on the Entity List, McCaul said it also undermines U.S. export restrictions. “Companies that are entity-listed are threats to national security, and we need real safeguards to ensure sensitive technology is not transferred to these bad actors,” said McCaul, the top Republican on the House Foreign Affairs Committee.