Summary of the E.O.
On June 3, 2021, President Biden signed E.O. 14032 that alters the framework for restrictions on the purchase or sale of publicly traded securities of Chinese companies designated for military affiliations, but ultimately re-affirms the previous restrictions under E.O. 13959. These restrictions will continue to be applied to 31 entities previously sanctioned as well as 28 newly added companies. On the same day, the Department of Defense (DOD) independently released its annual list of Chinese military companies pursuant to recently enacted legislation.
The New Executive Order and “NS-CMIC List”
E.O. 13959, issued in November 2020, prohibited U.S. persons from engaging in the purchase or sale of any publicly traded securities of designated Communist Chinese Military Companies (CCMCs). The identification of CCMCs was largely administered by the DOD, which identifies entities “owned or controlled by the People’s Liberation Army” pursuant a reporting requirement under Section 1237 of the 1999 National Defense Authorization Act (1999 NDAA). Several companies designated as CCMCs had successfully challenged their designation in the U.S. courts.
The new E.O. 14032 now provides the Treasury Department with designation authority and significantly expands the scope of companies that may be subject to restrictions. Specifically, E.O. 14032 updates E.O. 13959 to authorize the Secretary of the Treasury to designate Chinese companies that:
Designated entities will now be placed on the new NS-CMIC List administered by the Treasury Department’s Office of Foreign Assets Control (OFAC).
OFAC states that it expects to use its discretion to target persons whose operations include or support, or have included or supported:
(1) surveillance of persons by Chinese technology companies that occurs outside of the PRC; or
(2) the development, marketing, sale, or export of Chinese surveillance technology that is, was, or can be used for surveillance of religious or ethnic minorities or to otherwise facilitate repression or serious human rights abuse.
The operative provisions of the original E.O. 13959 as amended by E.O. 13974 have been revoked by E.O. 14032 and are no longer in effect. The new restrictions imposed pursuant to E.O. 14032 become effective on August 2, 2021. At that point, U.S. persons will be prohibited from engaging in “the purchase or sale of any publicly traded securities, or any publicly traded securities that are derivative of such securities or are designed to provide investment exposure to such securities” of identified CMICs. For future designated companies, prohibitions will come into effect 60 days after the date the entity is listed on the NS-CMIC List.
E.O. 13959, as amended by E.O. 14032, continues to allow for the divestment of the covered securities within a 365-day period following designation (i.e., through June 3, 2022, for those CMICs designated on June 3, 2021) and purchases or sales made solely to affect the divestment, in whole or in part, of such covered securities by U.S. persons.
The newly published NS-CMIC List, currently including 59 designated companies, is limited to entities whose names exactly match the names of designated entities. The new measures do not extend to “close matches” of unlisted entities. Additionally, guidance OFAC confirms that the “50 percent rule” does not apply. Thus, the restrictions are only applicable to explicitly designated entities.
New DOD List of Chinese Military Companies
Section 1260H of the 2021 NDAA sets forth a new requirement for DOD to publish an annual list of “Chinese military companies.” DOD published its initial list of June 3rd in its own separate action. Publication on this list has no immediate impact and is not tied to E.O. 14032.
Importantly, the Section 1260H list is broader than the prior Section 1237 list and introduces the concept of “military-civil fusion contributor,” which goes beyond parties connected to the PLA. The term, “military-civil fusion contributor,” includes any of the following:
It remains unclear how the new Section 1260H list will be used, including whether it may serve as a basis for new restrictions in the future.