Bryan Burack
On October 28, 2024, the U.S. Treasury Department issued regulations to implement President Biden’s 2023 executive order designed to restrict certain investments in “countries of concern”—particularly China—and require the disclosure of others.REF The new outbound investment rules expand on an effort started by President Trump’s Executive Order 13959 of November 2020, which began restricting capital flows to China’s military-industrial complex.REF The new rules will help to counter China’s military modernization and reduce China’s ability to subvert U.S. technology restrictions, but they are compromised with significant flaws and omissions. Congressional action to strengthen outbound investment restrictions for China remains urgently necessary.REF
Investment Prohibitions and Notifications
Biden’s executive order and Treasury’s implementing regulations address three technology sectors: semiconductors and microelectronics, quantum information technologies, and artificial intelligence (AI). For each sector, certain investment transactions with countries of concern are prohibited, while others require notification to the Treasury Department.
For example, the regulations implement an outright ban on some investments related to the manufacture, design, and packaging of certain advanced semiconductors and supercomputers, numerous applications of quantum computing, and AI that is trained to certain standards or “designed to be exclusively used for, or intended to be used for” military, intelligence, or surveillance purposes. In other cases, the regulations merely require “notification” for transactions involving AI systems with dual-use functions and investments in less advanced semiconductor technologies.
Flaws and Shortcomings
Treasury’s new outbound investment rules have the following flaws and shortcomings:
Most U.S. Investment in China Remains Untouched. The new regulations do not apply at all to securities, which account for the vast majority of U.S. capital flows to China. The new rules pertain to direct investment but not the much larger stock of U.S. portfolio investment in China, which stands in the hundreds of billions of dollars and has crested to over a trillion dollars in recent years.REF The regulations also provide carveouts for certain investments made by limited partners. » Read More
https://www.heritage.org/china/report/congress-should-strengthen-treasurys-investment-restrictions-china