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Biden Administration Takes Action on U.S. Investments in China 

Executive order establishes a framework for Treasury to develop regulations on certain U.S. investments in China-related technologies.

Treasury will determine which investments will be covered, prohibited, or require notification. 

Not Yet Fully Regulated 

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The executive order does not directly regulate investments at this time. 

Treasury will engage in a regulatory process to determine the specifics. 

Policy Statement 

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The executive order highlights that certain countries, including China, are exploiting U.S. investments in sensitive technologies. 

Regulation is necessary to address this issue. 

ANPRM Issued 

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Treasury has issued an Advance Notice of Proposed Rulemaking (ANPRM) outlining key details of the regulations. 

Public can provide comments on the ANPRM until September 28, 2023. 

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Covered Foreign Persons 

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Treasury proposes regulating investments by U.S. persons in “covered foreign persons” engaged in activities involving covered technologies. 

This includes entities linked to China. 

Types of Investments Covered 

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Treasury proposes regulating direct or indirect investments in covered foreign persons, such as equity interests, debt financing convertible to equity, greenfield investments, and joint ventures. 

Exemptions 

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Certain transactions, like university research collaborations, IP licensing arrangements, and bank services, will be excluded from regulation.

This provides flexibility in specific areas.

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Forward-Looking Approach 

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The regulations will apply to transactions occurring after the issuance of the executive order. 

The focus is on future investments, not retroactive measures. 

Excepted Transactions 

Exceptions will be made for specific types of transactions, including those involving publicly traded securities, index funds, and venture capital funds. 

Conditions must be met for these exceptions to apply.

Covered Technologies 

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Semiconductors/microelectronics, quantum information, and artificial intelligence are the initial covered technologies for regulation involving China. 

The scope may expand in the future. 

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Ongoing Process 

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Congress may still take action on outbound investments, as bills have been introduced and passed in both houses.

The regulatory process will continue, with details evolving based on public comments and potential legislative action.

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