On July 13, 2021, the U.S. Departments of Commerce, State, Treasury, Commerce and Homeland Security and the Office of the U.S. Trade Representative issued an updated Advisory on supply-chain risks for U.S. businesses whose business activities may be implicated by human rights concerns related to forced labor in and outside of Xinjiang, China.

The updated

Yesterday, the Bureau of Industry and Security (BIS) of the U.S. Department of Commerce added 14 companies based in China and 20 companies located elsewhere to the U.S. Entity List.  According to BIS, the Chinese companies are involved in China’s “campaign of repression, mass detention and high-technology surveillance” against Uyghur and other minorities in Xinjiang. 

Yesterday, President Biden signed an Executive Order (“E.O.”) that formally revokes and replaces three earlier E.O.s that aimed to restrict transactions with TikTok, WeChat, and other communications and Fintech applications and provides a new framework to address security concerns related to the information and communications technology and services (“ICTS”) supply chain.  The new E.O. was

Yesterday morning, June 8, 2021, the Biden-Harris administration released a report including factual findings and recommendations concerning four critical supply chains.  The full 250-page report is available here and a White House fact sheet summarizing key findings and recommendations is available here.

The report stems from President Biden’s Executive Order 14017 (“EO 14017”), which

Today, President Biden issued an Executive Order expanding U.S. restrictions on dealings in the publicly traded securities of Chinese companies.  Today’s move amends Executive Order 13959 to prohibit U.S. persons from buying or selling the publicly traded securities of listed companies operating in (1) the surveillance technology sector or (2) the defense and related material sector of the Chinese economy.  E.O. 13959 was previously limited to companies affiliated with the Chinese military.

The amended order reflects a growing emphasis on human rights and “democratic values” in U.S. sanctions policy related to China.  The White House fact sheet announcing today’s amendment indicated that the Order is intended to prevent the flow of U.S. capital to companies that develop or use surveillance technology to facilitate repression or serious human rights abuse in and outside of China, including technology used to surveil religious or ethnic minorities.  Other recent moves, including those in response to Chinese government policies in the Xinjiang region and Hong Kong, have similar human rights policy motivations.  The administration may cite to security and adherence to democratic values in imposing future sanctions.

Below, we summarize the key features of the new restrictions and guidance issued by the Office of Foreign Assets Control (“OFAC”).

Companies targeted

The amended E.O. initially applies to the 59 Chinese companies listed in the annex to the E.O.  The companies are also included on OFAC’s new “Non-SDN Chinese Military-Industrial Complex Companies List” (“NS-CMIC List”), which replaces the previous “Communist Chinese Military Company” (“CCMC”) list.  The NS-CMIC List includes a number of new Chinese companies that did not appear in the prior CCMC list and excludes a handful of companies that were on the prior list. (A table summarizing the list changes is below the break.)  Notably, the NS-CMIC List captures companies operating in the defense sector, subsidiaries and affiliates of companies on the CCMC list, and two companies operating in the surveillance technology sector.

The Biden administration indicated that it expects to add additional parties to the NS-CIMC List in the future.

Relevant securities

As in the original E.O. 13959, the prohibition on purchasing and selling publicly traded securities also applies to derivatives and securities designed to provide investment exposure to such securities, including ADRs, GDRs, ETFs, index funds, and mutual funds.  Restrictions apply regardless of the CMIC securities’ share of the underlying index fund, ETF, or derivative.  The amended E.O. defines “securities” as those specified in Section 3(a)(10) of the Securities Exchange Act of 1934.

Wind-down period

The amended E.O.’s prohibitions come into effect on August 2, 2021 for the 59 companies currently on the NS-CMIC List, and U.S. persons are permitted to divest holdings in those securities until June 3, 2022.  The amended E.O. also provides for a 365-day divestment period for CMICs that are designated in the future.

Guidance for U.S. financial service companies and investors

OFAC guidance issued today explains how the agency will apply the new E.O. to broker-dealers, market intermediates, and other market participants.  In particular:

  • U.S. financial service companies that provide clearing, execution, settlement, and related services can continue to deal in CMIC securities so long as they do not facilitate prohibited transactions by U.S. persons.
  • Securities exchanges operated by U.S. persons, along with market makers, market intermediaries and other participants, are not prohibited from effecting U.S. persons’ divesture of publicly traded securities in the listed CMICs during the wind-down period.
  • U.S. persons employed by non-U.S. entities are not prohibited from facilitating purchases or sales related to a CMIC security on behalf of their non-U.S. employer or providing investment management or similar services to a non-U.S. person.
  • U.S. financial service companies can rely on “information available to them in the ordinary course of business” in conducting due diligence on whether an underlying purchase or sale is prohibited under the amended E.O

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Our team is actively monitoring developments in this area, please contact us with questions on how the new rules may apply to your business.


Continue Reading New Executive Order Targets Investments in Chinese Surveillance and Military Companies

Today, the Bureau of Industry and Security (BIS) announced that it will create a new “Military End-User List” (MEU List) to help exporters comply with the recently expanded military end-use and end-user restrictions (MEU Rule) that apply to exports of certain items to China, Russia, and Venezuela.  The current MEU List includes 102

Today, the United States added 60 companies in China and 17 companies located elsewhere to the Commerce Department’s Entity List.  Among the Chinese firms targeted are chipmaker Semiconductor Manufacturing International Corporation (SMIC) and ten semiconductor companies related to SMIC, shipbuilder China State Shipbuilding Corporation (CSSC), and drone manufacturer DJI.  The move is the latest step

Late yesterday evening, President Trump declared a national emergency concerning the United States reliance on imports of certain “critical minerals.” The Executive Order directs a number of federal agencies, to take certain actions in the coming weeks and months to address what the order describes as “undue reliance on critical minerals” imported from “foreign adversaries.”

Last week OFAC extended its general license authorizing U.S. persons to wind down and divest from certain transactions with subsidiaries of the Xinjiang Production and Construction Corps (XPCC) until November 30, 2020.  OFAC extended the general license to give U.S. persons more time to exit dealings involving XPCC’s many subsidiaries, which play a significant role

Post Update:

Over the weekend, the WeChat and TikTok bans were temporarily suspended.  On Saturday, the Commerce Department delayed implementation of the TikTok ban until September 28, 2020 after it was announced that Oracle would acquire TikTok’s U.S. operations.  On Sunday, a federal court separately issued a preliminary injunction against the implementation of the WeChat