The Intersection of Export Control and CFIUS
Article Summary
CFIUS is the Committee on Foreign Investment in the United States, which reviews foreign investments for national security risks.
Export control regulations help CFIUS identify critical technologies, assess licensing requirements, and mitigate national security risks in foreign investment transactions.
Critical technologies are items, software, or technologies subject to export control laws, including ITAR and EAR, that are vital to U.S. national security.
Export classification determines whether a technology is controlled under ITAR or EAR, informing CFIUS about licensing needs and potential risks.
Non-compliance can lead to penalties, transaction reversals, and restrictions on foreign investments.
The Committee on Foreign Investment in the United States (CFIUS) plays a crucial role in reviewing foreign investments for national security concerns. One key aspect of this review process is export classification, which involves determining the export control status of products, technology, and software to identify critical technologies. The pivotal role of export classification in the CFIUS review process highlights its significance in ensuring national security and maintaining the integrity of the U.S. defense industrial base.
Key Aspects
- Identifying Controlled Technologies: Export classification helps CFIUS identify technologies that are subject to control under the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR), among other U.S. export control laws and regulations. Comparing the technical characteristics of products and services against the categorical guidance of the U.S control lists (the United States Munitions List and the Commerce Control List) reveals their export control status and informs the CFIUS process as to whether their transfer to foreign entities poses a national security risk. This is particularly important for technologies that have military applications or are essential to the U.S. defense industrial base.
- Assessing Licensing Requirements: Export classification also informs the CFIUS process regarding licensing requirements for the export of controlled items, technology, and software. This includes identifying whether a license is required for the transfer of these items to foreign entities, including investors, and whether any license exceptions are available. By understanding the licensing requirements, CFIUS can ensure that foreign investment transactions comply with export control regulations and do not compromise national security.
- Evaluating Compliance History: Export classification helps the CFIUS team evaluate the compliance history of U.S. companies involved in foreign investment transactions. This includes reviewing their past export control compliance, licensing history, and any previous violations. By assessing the compliance history, CFIUS can identify potential risks and ensure that companies involved in foreign investment transactions adhere to export control regulations.
- Mitigating National Security Risks: Export classification plays a crucial role in mitigating national security risks associated with foreign investment transactions. By identifying controlled technologies and assessing licensing requirements, CFIUS can implement measures to protect sensitive technologies and prevent their unauthorized transfer to foreign entities. This includes imposing conditions on foreign investment transactions, such as requiring the implementation of Export Compliance Programs or restricting access to certain technologies. See our article on establishing export control Policies & Procedures.
Final Takeaways
Export classification is a vital component of the CFIUS review process, as it helps identify controlled technologies, assess licensing requirements, evaluate compliance history, and mitigate national security risks. By ensuring that foreign investment transactions comply with export control regulations, CFIUS can protect sensitive technologies and maintain the integrity of the U.S. defense industrial base. As the global landscape continues to evolve, the importance of export classification in the CFIUS review process will remain essential for safeguarding national security and promoting responsible foreign investment.
Need help classifying your products in advance of a CFIUS filing? Contact our experts at CTP today!
Key Points
What is CFIUS, and what role does it play in foreign investments?
The Committee on Foreign Investment in the United States (CFIUS) is an inter-agency government body responsible for reviewing foreign investments in U.S. businesses to assess and mitigate national security risks. CFIUS evaluates transactions involving critical technologies, critical infrastructure, and sensitive personal data to ensure they do not compromise U.S. security interests.
How does export control intersect with CFIUS?
Export control regulations, such as ITAR (International Traffic in Arms Regulations) and EAR (Export Administration Regulations), are integral to the CFIUS review process. They help CFIUS:
- Identify Critical Technologies: Export classification determines whether a product, technology, or software is controlled under ITAR or EAR.
- Assess Licensing Requirements: CFIUS evaluates whether licenses are required for transferring controlled technologies to foreign entities.
- Evaluate Compliance History: CFIUS reviews the export compliance history of U.S. companies involved in foreign investment transactions to identify potential risks.
- Mitigate National Security Risks: By understanding export control requirements, CFIUS can impose conditions on transactions to protect sensitive technologies.
What are critical technologies, and why are they important in CFIUS reviews?
Critical technologies are items, software, or technologies subject to export control laws that are essential to U.S. national security. These include:
- Defense-related technologies regulated under ITAR.
- Dual-use items with both civilian and military applications regulated under EAR.
- Emerging and foundational technologies identified by the Bureau of Industry and Security (BIS).
CFIUS focuses on critical technologies to prevent unauthorized access by foreign entities, which could compromise U.S. defense capabilities or technological leadership.
How does export classification impact the CFIUS review process?
Export classification is a key step in determining whether a technology is controlled under ITAR or EAR. It involves:
- Comparing the technical characteristics of products against the U.S. Munitions List (USML) and the Commerce Control List (CCL).
- Identifying licensing requirements for transferring controlled technologies to foreign entities.
- Informing CFIUS about potential risks associated with foreign investments in U.S. businesses that develop or use critical technologies.
Export classification ensures that CFIUS can make informed decisions about the national security implications of foreign investment transactions.
What are the consequences of non-compliance with CFIUS regulations?
Non-compliance with CFIUS regulations can result in severe penalties, including:
- Fines: Up to $250,000 or the value of the transaction, whichever is greater.
- Transaction Reversals: CFIUS can prohibit, suspend, or unwind foreign investment transactions.
- Mitigation Plans: CFIUS may impose conditions on transactions, such as restricting access to certain technologies or requiring the implementation of export compliance programs.
These consequences highlight the importance of conducting thorough due diligence and adhering to export control regulations during foreign investment transactions.
Why is the intersection of export control and CFIUS critical for national security?
The integration of export control regulations into the CFIUS review process ensures that foreign investments do not compromise U.S. national security. By identifying and protecting critical technologies, CFIUS helps maintain the integrity of the U.S. defense industrial base and promotes responsible foreign investment.
