U.S. Department of Treasury Implements Final Rule on Investment in Sensitive Technologies in China

The U.S. Outbound Investment Final Rule: What It Means for American Business

Executive Summary

Effective Date: January 2, 2025
Key Impact: Restricts U.S. investments in Chinese tech sectors
Affected Industries: Semiconductors, quantum computing, AI
Penalties: Up to $368,136 or 2x transaction value
Required Action: New compliance programs by January 2025

On October 28, 2024, the U.S. Department of the Treasury released the long-awaited final rule (the “Final Rule”) under Executive Order 14105 (the “Outbound Order”). This regulation aims to curb U.S. investments that could support the development of sensitive technologies in China, Hong Kong, and Macau. The Final Rule, which takes effect on January 2, 2025, establishes a security framework that restricts or monitors U.S. outbound investment in sectors crucial to national security, including semiconductors, quantum computing, and artificial intelligence (AI).

This post provides a comprehensive overview of the Final Rule, its requirements, its impact on U.S. businesses and investors, and the steps that companies must take to ensure compliance.

Quick Decision Guide for Transactions

Is your transaction with an entity in China, Hong Kong, or Macau?
- If NO → Rule doesn’t apply.
- If YES → Continue to #2.
Does the transaction involve any of these sectors?
- Semiconductors/microelectronics
- Quantum technologies
- AI systems
- If NO → Rule doesn’t apply.
- If YES → Continue to #3.
Is it one of these transaction types?
- Equity investments
- Debt financing
- Real estate/operations
- Joint ventures
- Investment fund participation
- If NO → Rule doesn’t apply.
- If YES → Continue to #4.
Check specific technology details against the prohibited list:
- If matches prohibited list → STOP – Transaction is forbidden.
- If not on prohibited list → May require notification only.

Compliance Timeline

Q4 2024

Review Chinese partnerships and investment portfolio.
Begin compliance program updates.

December 2024

Complete staff training and finalize new due diligence procedures.

January 2, 2025

Final Rule takes effect. Mandatory notifications begin.

Q1 2025

First round of notifications due. Conduct compliance audit.

Background on the Outbound Order

The Outbound Order, issued in 2023, declared a national emergency over the risks posed by Chinese advancements in technologies with military and intelligence applications. It instructed the Treasury Secretary to create a security program targeting sectors that could enhance China’s strategic capabilities, including semiconductors, quantum technologies, and AI. By regulating U.S. investments in these areas, the Outbound Order aims to prevent American capital and expertise from indirectly contributing to China’s military advancements.

Technical Definitions and Thresholds

1. Advanced Semiconductors

Logic Chips: ≤ 28nm process technology
DRAM: ≤ 18nm half-pitch
NAND: ≥ 128 layers
Key Equipment: Extreme ultraviolet lithography tools, advanced deposition systems

2. Quantum Technologies

Quantum Computers: > 100 qubit systems
Quantum Sensors: Exceeding classical limits
Key Components: Dilution refrigerators, quantum error correction systems

3. AI Systems

Computing Threshold: > 100 PFLOPS for training
Specialized Hardware: AI accelerators > 250 TOPS
Target Applications: Autonomous weapons, large-scale surveillance

Key Provisions of the Final Rule

The Final Rule builds on Treasury’s August 2023 and July 2024 proposals and divides transactions into prohibited and notifiable categories.

1. Requirements for U.S. Persons

The Final Rule applies to all “U.S. persons,” including citizens, lawful residents, U.S.-organized entities, and anyone in the U.S. These entities must comply if they have knowledge—whether actual, probable, or reasonable—of relevant transaction facts.

2. Covered Foreign Persons

A “covered foreign person” includes entities in China, Hong Kong, or Macau engaged in activities within the scope of the Final Rule. This encompasses entities with significant financial or operational ties to these regions or with Chinese ownership or control.

3. Covered Transactions

Covered transactions include:

- Equity Investments: Acquiring equity in a covered foreign person.
- Debt Financing: Providing loans to a covered foreign person.
- Real Estate/Operations: Acquiring or developing property in China, Hong Kong, or Macau.
- Joint Ventures: Forming ventures with a covered foreign person.
- Investment Fund Participation: Investing in funds that may invest in covered foreign persons in high-risk sectors.

Real-World Application Examples

Example 1: Venture Capital Investment

Scenario: SVC firm considering $10M in a Chinese AI startup.
Company Profile: Developing facial recognition for smart cities.
Analysis: Falls under notifiable transaction due to:
- Potential mass surveillance application.
- Computing power exceeds thresholds.
Required Action: File notification within 30 days.

Example 2: Manufacturing Joint Venture

Scenario: U.S. chipmaker planning JV with Shenzhen-based factory.
Proposed Activity: 14nm semiconductor production.
Analysis: Permitted with notification; no design transfer involved.
Required Action: File notification, implement tech control plan.

Prohibited vs. Notifiable Transactions

The Final Rule categorizes transactions as prohibited or notifiable, depending on the risk level of the activities involved.

1. Prohibited Transactions

Advanced semiconductors, quantum computers for military uses, AI systems for military/surveillance purposes.

2. Notifiable Transactions

Integrated circuits, AI for cybersecurity or digital forensics, and others posing lower national security risks.

Key Exceptions and Exemptions

1. Excepted Transactions

Excepted transactions include:

- Non-Retroactivity: Transactions completed before January 2, 2025, are exempt.
- Certain Investments: Publicly traded securities, certain SEC-registered funds.
- Binding Commitments: Commitments made before January 2, 2025, are exempt.

2. National Interest Exemption

U.S. persons can request an exemption by demonstrating that a transaction serves U.S. national interests.

Compliance and Penalties

Violating the Final Rule can lead to:

Civil Penalties: Up to $368,136 or twice the transaction’s value.
Divestment Authority: Treasury can nullify prohibited transactions.

Treasury allows voluntary self-disclosure for reduced penalties and enforces compliance against those who “cause” violations.

Tightened Due Diligence on Chinese Companies and Individuals

The Final Rule requires heightened due diligence for U.S. businesses and investors working with Chinese entities:

Conduct Background Checks: Verify Chinese entities are not classified as covered foreign persons, especially regarding ownership and business ties.
Confirm Business Activities: Ensure foreign partners aren’t involved in prohibited sectors or high-risk activities.
Review Contracts: Confirm no provisions enable restricted activities.

Implications for U.S. Companies Outsourcing Product Manufacturing to China

For U.S. companies outsourcing product development or manufacturing in China, this rule demands additional vigilance:

Scrutinizing R&D Projects: U.S. firms outsourcing semiconductor design must ensure compliance.
Assessing Technology Transfers: Confirm that shared technology won’t be repurposed for military uses.

It is critical that your company screen its Chinese subcontractors and partners, and ensure that any deliberate or even accidental technology transfers align with the Final Rule.

Strategic Considerations and Next Steps

With the Final Rule set to take effect on January 2, 2025, U.S. businesses should have already taken or should take the following steps:

Update Your Compliance Programs: Revise protocols to reflect the new restrictions.
Train Your Teams on Compliance: Educate employees on identifying prohibited/notifiable transactions.
Monitor Treasury Updates: Treasury will provide updates on countries of concern and any rule changes.

Conclusion

This blog post does not constitute legal advice. Legal advice requires an in-depth understanding of your specific circumstances and tailored guidance to address the nuances of your situation. This post provides general information on the Final Rule but does not consider individual complexities or industry-specific challenges you may face. While our general disclaimer applies to all our blog posts, I feel compelled to reiterate it here, because the Final Rule is new and its interpretation and enforcement practices are still evolving. This means it is likely something I have said above will prove incorrect or will change soon.

Given the complexity and potential impact of these regulations, I strongly encourage you consult with experienced and specialized legal counsel to navigate compliance effectively. The Final Rule involves substantial penalties for non-compliance, and Treasury’s enforcement stance remains uncertain as the program takes shape.

Be diligent and proactive in your compliance efforts, keeping abreast of any additional guidance or updates Treasury may release. Do your best and be careful out there.