On April 28, 2020, the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) published three amendments to the Export Administration Regulations (“EAR”) that are expected to have a significant impact on businesses – both within the U.S. and beyond – with regard to the export, re-export, or transfer of goods, software, and technology subject to U.S. jurisdiction to Chinese, Russian, and Venezuelan entities, including both commercial and military end-users.

The first rule expands existing export restrictions on military end-users in China, Russia, and Venezuela. The second rule eliminates License Exception Civil End Users (“CIV”), which previously authorized the export of certain items restricted for national security reasons to countries in Country Group D:1, including China, Russia, and Venezuela. These two rules are being issued as final rules (i.e., without an opportunity for public comment), and will become effective on June 29, 2020. The third rule is a proposal to modify license exception Additional Permissive Reexports (“APR”), which currently authorizes the re-export of certain U.S.-origin items from third countries to China and other Country Group D:1 destinations that cannot be exported directly from the United States without a license. Under the proposed revisions, a license from BIS would be required for such re-exports. Comments on this proposal must be received by BIS no later than June 29, 2020.

The three rules may have been the product of a White House Cabinet meeting that apparently took place on March 25, 2020.  That meeting reportedly considered U.S. policies with respect to transfers of U.S. technology to China, particularly those involving Huawei. Prior to the meeting, BIS prepared two draft rules that would (1) reduce the de minimis U.S. controlled content threshold applicable to Huawei and its affiliated companies from 25% to 10%, which would dramatically increase the number of foreign-made products that would be considered subject to U.S. jurisdiction and therefore require a license, and (2) amend the EAR’s “foreign direct product rule” to limit Huawei’s ability to obtain chips that are the product of U.S.-origin semiconductor manufacturing equipment (for example, chips produced by Taiwan Semiconductor Manufacturing Company).

According to reports, the Cabinet meeting resulted in an agreement to tighten these limitations through an amendment to the foreign direct product rule. While that rule has not yet been released by BIS (and may yet be forthcoming), the three rules published on April 28, 2020, constitute an even broader effort to tighten technology controls on China.

Expansion of Export, Re-export, and In-Country Transfer Controls for Military End-Use or Military End Users

The first rule will significantly expand export restrictions on military end-users by broadening the list of items requiring a license when exported, re-exported, or transferred to a “military end-user” or for a “military end-use” in China, Russia, and Venezuela pursuant to § 744.21 of the EAR.  For example, under the new rule, mass-market encryption items classified under Export Control Classification Number (“ECCN”) 5A992.c would trigger the license requirement.  Popular consumer devices – including mobile phones, laptops, and “smart” devices – may potentially be restricted under the new rule if intended to any “military end-user” or a “military end-use” in any of the three destinations.

In connection with this new rule, it is important to note that the existing definition of “military end-users” is already very broad. In addition to the army, navy, air force, marines, and coast guard, it also includes “national guard/police, government intelligence and reconnaissance organization[s],” as well as “any person or entity whose actions or functions are intended to support ‘military end-uses.’” Additionally, the rule further expands the definition of “military end-use” to include any item that supports or contributes to the operation, installation, maintenance, repair, overhaul, refurbishing, “development,” or “production,” of certain military items.

Businesses involved with the export, re-export, or in-country transfer of items or technology subject to U.S. jurisdiction to China, Russia, and Venezuela will, therefore, need to conduct increased diligence and carefully assess whether the end-users or end-uses of those items or technology fall within these broad definitions, in particular government-adjacent end-users, such as state-owned enterprises or government contractors. BIS has indicated that it intends to issue guidance regarding the level of due diligence it expects from industry to comply with the expanded licensing requirements.

Additionally, this rule broadens the list of items requiring a license when exported to a military end-user or for a military end-use to cover items and technology subject to relatively low levels of control that relate to materials processing, electronics, telecommunications, information security, sensors and lasers, and propulsion. The new ECCNs covered under the scope of new regulation include, by way of example, mass-market encryption items and software (e.g., smartphones), certain microchips and integrated circuits, certain electronic testing and processing equipment, telecommunications test equipment, and certain materials processing equipment, such as mining and drilling equipment and industrial pumps.

Further, while exports that previously required a license under § 744.21 were reviewed on a case-by-case basis by BIS, the new rule states that license requests will be reviewed under a presumption of denial.  This means that such applications will be rejected in principle unless the presumption can be overcome. Overcoming the presumption is fact-specific and rare, but will likely depend upon the policy goals of BIS at the time the license application is made (for example, BIS could conclude that an export that would meet a humanitarian need could outweigh the presumption of denial).

Finally, the rule separately expands Electronic Export Information (“EEI”) filing requirements in the Automated Export System (“AES”) for all exports to China, Russia, or Venezuela. Previously, exporters were not required to file an EEI for many shipments valued under $2500 (unless an export license is required), nor was it necessary to enter the ECCN in the EEI when the item is classified EAR99 (i.e., the item is not identified on the Commerce Control List (“CCL”)), nor if the sole reason for control is for anti-terrorism (“AT”) reasons. The new rule will now require filing an EEI for all items destined to China, Russia, or Venezuela regardless of the value of the shipment unless the shipment is eligible for License Exception GOV. This is significant because the failure to file EEI, even if a license from BIS is not required, may constitute a separate violation of the EAR and of the Foreign Trade Regulations administered by the U.S. Census Bureau.

Elimination of License Exception Civil End Users (CIV)

Pursuant to the second new rule, License Exception CIV is eliminated in whole. In the explanatory portion of the final rule, BIS stated, “the primary goal of this effort is to advance U.S. national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership.” While the final rule did not make mention of China, China most assuredly is the primary target of this effort, as the country has long been criticized by Trump Administration officials for exploiting perceived gaps in U.S. export controls via retransfers of U.S. technology. Previously, the License Exception authorized the export, re-export, or transfer (in-country) of certain items subject to control only for low-level national security (“NS”) reasons, and identified as eligible for the license exception most commercial end-users in destinations identified in Country Group D:1 (including China, Russia, and Venezuela, among other countries), without the need for prior review by BIS. This rule modification removes the previously applicable license exception for such low-level items.

Modification of License Exception Additional Permissive Reexports (APR)

Finally, citing the need “[t]o get better visibility into transactions of national security or foreign policy interest to the United States,” BIS proposes to modify License Exception APR for certain controlled items.  Previously, paragraph (a) of License Exception APR authorized the re-export of certain US.-origin items from a country in Country Group A:1 (i.e., countries, like the United States, participating in the Wassenaar Arrangement for multilateral export controls) or Hong Kong to certain more controlled destinations, provided that the re-export is consistent with an export authorization from the country of re-export.

In particular, License Exception APR currently authorizes re-exports to Country Group D:1 (which, as noted above, includes China, Russia, and Venezuela) so long as the items are only subject to national security controls.  BIS is proposing to remove countries in Country Group D:1 as a category of eligible destinations, as “even Wassenaar participating states in Country Group A:1 may have export authorization policies that do not align with the national security or foreign policy interests of the U.S. government.” If License Exception APR is modified as proposed, re-exports of certain national security-controlled items must be reviewed by the U.S. government before proceeding. Given the increasing consensus within the U.S. government that additional U.S. export restrictions will be needed to counter China’s “civil-military fusion,” it is reasonable to conclude that the new rule also is intended to target China in particular.

Unlike the other two rules released contemporaneously by BIS, this third rule is only a proposal. BIS is currently accepting comments on the rule through June 29, 2020, and so it is possible that revisions may be made to the final version of the rule. Companies that would be affected by the proposed rule and other interested parties should consider drafting comments on the rule to make their voices heard prior to the deadline.

Conclusion

The three rules published by BIS on April 28, 2020, reflect the Trump Administration’s latest effort to pursue stricter controls on U.S. goods and technology, even as the full economic effect of the COVID-19 pandemic has yet to be realized. While the April 28, 2020 rules impact exports, re-exports, and in-country transfers to a variety of destinations, based on reports of the March 25, 2020, Cabinet meeting, and other high-profile actions targeting Huawei, China appears to be the principal motivation behind the new rules.

Although the two final rules will not become effective for 60 days, all companies conducting cross-border transactions involving goods, software, or technology subject to U.S. jurisdiction should carefully conduct due diligence on the end-users of their items and ensure that their compliance procedures are fully implemented to avoid even inadvertent violations of these tightened trade restrictions.