China Tightens Technology Export Control Rules

The last revision of the Catalogue was in 2008. With the rapid development of science and technology and the continuous improvement of China's scientific and technological strength and industrial competitiveness, the Chinese government believes that it is imperative that the Catalogue be adjusted and updated in a timely manner in accordance with international practices. Analysts suggest that the recent tensions between the United States and China over trade and technology have accelerated the issuance of the updated Catalogue.

B.  Main Updates to the Catalogue

According to the Ministry of Commerce’s explanations, the ministry has been working on the updates to the Catalogue since 2018 by soliciting opinions from relevant departments, industry associations, academics and the public. The main updates to the Catalogue include the following:

1. Removed four technology items that had been prohibited from export: (1) microbial fertilizer technology, (2) caffeine production technology, (3) riboflavin production technology and (4) vitamin fermentation technology.
2. Deleted five technology items that had been restricted from export: (1) Newcastle disease vaccine technology, (2) natural medicine production technology, (3) functional polymer material preparation and processing technology, (4) chemical synthesis and semi-synthetic medicine production technology, and (5) information security firewall software technology.
3. Added 23 export-restricted technology items to the Catalogue: (1) artificial breeding technology of agricultural wild plants, (2) genetic engineering (genes and vectors), (3) cashmere goat breeding technology, (4) cashmere goat breed nurturing technology, (5) 3D printing technology, (6) application technology of construction machinery, (7) basic common technology of machine tool industry, (8) large-scale high-speed wind tunnel design and construction technology, (9) large-scale vibration platform design and construction technology, (10) petroleum equipment core component design and manufacturing technology, (11) large-scale petrochemical equipment basic process technology, (12) heavy machinery industry strategic new product design technology, (13) offshore island reef utilization and safety assurance equipment technology, (14) aerospace bearing technology, (15) unmanned aerial vehicle technology, (16) laser technology, (17) large-scale power equipment design technology, (18) password security technology, (19) efficient detection technology, (20) information defense technology, (21) information countermeasure technology, (22) basic software security enhancement technology, and (23) space remote sensing image acquisition technology.
4. The control points and technical parameters of 21 technology items were modified, involving five items in the prohibited category: (1) silkworm species, breeding and cocoon collection and processing technology, (2) spacecraft measurement and control technology, (3) mapping technology, (4) space data transmission technology, and (5) satellite application technology; and 16 items in the restricted category: (1) crop (including pasture) germplasm resources and corresponding breeding technology, (2) aquatic germplasm breeding technology, (3) veterinary drug production technology, (4) chemical raw material production technology, (5) biological pesticide production technology, (6) biotechnology drug production technology, (7) tissue engineering medical device product preparation and processing technology, (8) artificial crystal growth and processing technology, (9) criminal technology, (10) medical diagnostic equipment and equipment manufacturing technology (11) space instrument and equipment manufacturing technology, (12) space data transmission technology, (13) map mapping technology, (14) satellite application technology, (15) information processing technology, and (16) vacuum technology.

C.  Implications on Technology Export from Chinese Companies

The Regulations’ requirements on approval and license for export of restricted technology are not new. China has been implementing such approval and licensing requirements on export of restricted technology for more than a decade. However, the Catalogue has not been updated for more than 10 years. Chinese experts and government officials indicated that the adjustment to the Catalogue has long been expected and is in line with China’s agenda to protect intellectual property and enhance its national security.  

Based on Article 2 of the Regulations, “technology export” refers to the transfer of technology through trade, investment or economic and technological cooperation from China to abroad, including the transfer of patent rights, the transfer of patent application rights, the licensing of patents, the transfer of technology secrets, technical services and other forms of technology transfer. That is to say, all transfer of technology abroad, whether by trade or investment and other methods, must comply with the Regulations. As such, potential sales of business and assets (including technology) by a Chinese seller to an overseas’ buyer may be considered as a “technology export” subject to the Regulations.

Under the Regulations, technology export is divided into three categories: non-restriction (free export), restriction and prohibition. Export of items categorized as “free export” is subject to post-contract registration and filing with the commerce department while the import and export of restricted technology requires a license.

According to Regulations, companies preparing to export restricted technologies in the updated Catalogue must fill in the "Application for China’s Export Restricted Technologies" form and submit the application form to the provincial level commerce department for application before any substantive negotiations with foreign parties. If the technologies to be exported involve state secret technologies, the applicant must go through the confidentiality review procedures in advance.

If the application is approved by the Commerce Department, the applicant company will obtain a technology export license letter of intent from the approving department and apply for export credit, make insurance commitments, and then start and conduct substantive negotiations with the foreign parties to sign a technology export contract. After the technology export contract is signed, the Chinese company must also apply for a technology export license with the provincial commerce department. The technology export contract will not take effect until the date of the issuance of the technology export license.

D.  Our Observations and Suggestions

It is believed that the ongoing negotiations over the proposed sale of TikTok may be impacted by the issuance of the updated Catalogue. Analysts indicate that certain ByteDance technology involved in the proposed overseas sale may be covered by the newly added 23 restricted technology items in the updated Catalogue, such as “personalized information push service technology based on data analysis” newly added under Item (21) and “artificial intelligence interface technology” under Item (18). If any technology covered by the updated Catalogue will be “exported” by ByteDance in connection with the proposed sale of TikTok’s business and assets to the overseas buyer(s), relevant approval and license from the Chinese government must be obtained before the execution of the definitive agreement for the technology transfer.  This does not necessarily mean that the Chinese government is blocking the potential sale. However, the potential transfer of the restricted technology involved in the sale is now subject to prior review and approval by the Commerce Department of China and issuance of the license, which will definitely delay and might complicate the process of the sale. ByteDance released a public statement on August 30 that the company is aware of the updated Catalogue and will comply with the Regulations and the Catalogue in handling business involving technology export.

More broadly, Chinese companies that export technology overseas and overseas companies that import technology from China should review the updated Catalogue and evaluate whether it could impact any ongoing and proposed transactions involving technology export.