U.S. Outbound Investment Regime Nears Reality as U.S. Department of Treasury Solicits Public Comment on Proposed Rule

June 25, 2024

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The proposed rule would significantly curtail U.S. investments in the People’s Republic of China, Hong Kong, and Macau used to advance the development and production of semiconductors and microelectronics, quantum information technologies, and artificial intelligence systems. Once finalized, this new regulatory framework will implement a notification regime for certain transactions while outright prohibiting others. Additionally, while transactions that occur prior to the effective date of the final rule are excepted, the U.S. Department of the Treasury reserves the right to request information about such transactions as needed. Comments on the proposed rule may be submitted until August 4, 2024.

This alert provides (1) background of the outbound investment rulemaking process; (2) a refresher on the contours of the proposed rule; (3) changes from the August 2023 ANPRM in the June 2024 NPRM; (4) next steps in the regulatory process; and (5) Gibson Dunn’s key takeaways for clients.

I.  Background of the Outbound Investment Rule

On June 21, 2024, the U.S. Department of the Treasury (“Treasury”) advanced the Biden Administration’s national security objective of regulating certain outbound investment by issuing a Notice of Proposed Rulemaking (“NPRM”) pursuant to Executive Order (“EO”) 14105, which was issued by President Biden on August 9, 2023. The EO and the NPRM address national security risks posed by certain outbound investment activities involving “covered national security technologies and products” in “countries of concern,” namely the People’s Republic of China (“PRC”), Hong Kong, and Macau. The NPRM follows the Advance Notice of Proposed Rulemaking (“ANPRM”) that was issued concurrently with the EO and was the subject of a previous Gibson Dunn client alert. Note that the NPRM does not itself impose any new requirements, and its proposed requirements are subject to change when Treasury issues the final rule.

An outbound investment regime would become another powerful tool in the U.S. government’s efforts to counter the PRC’s technological and military surge and reflects the Biden Administration’s strategic priority of addressing the PRC as its “pacing challenge” in the global arena, particularly regarding critical technologies, as outlined in its 2022 National Security Strategy.

In line with the ANPRM, the NPRM proposes to prohibit some outbound investment transactions outright, and to require notifications for other investments. The categories of prohibited and notifiable investments address transactions with a “covered foreign person”—that is a person of a “country of concern” who engages in a “covered activity” related to the development or production of “covered national security technologies and products.” The NPRM also provides exceptions and exemptions for certain transactions, outlines the procedures and penalties for compliance and enforcement, and invites further public comments on specific issues. The decision to issue the ANPRM and NPRM—administrative steps not required under the International Emergency Economic Powers Act (“IEEPA”) under which EO 14105 was issued—indicates a concerted effort by Treasury to develop a rule informed by stakeholder input prior to issuing a final rule. The NPRM comment period ends on August 4, 2024, and Treasury is expected to issue a final rule thereafter.

Below, we provide a refresher on the basic contours of the rule, highlight changes introduced by the NPRM, and share key takeaways.

II.  Refresher of Basic Contours of the Rule

A.  To Whom Does the Rule Apply?

The NPRM adopts the definition of “U.S. person” set out in the EO, which includes “any United States citizen, lawful permanent resident, entity organized under the laws of the United States or any jurisdiction within the United States, including any foreign branches of any such entity, and any person in the United States.”

The proposed rule would also apply to any “controlled foreign entity,” defined as “any entity incorporated in, or otherwise organized under the laws of, a country other than the United States of which a U.S. person is a parent.” The term “parent” would include any person or entity who or which (1) directly or indirectly holds more than 50 percent of the outstanding voting interest or voting power of the board of an entity, (2) is the general partner, managing member, or equivalent of an entity, or (3) is the investment adviser to any entity that is a pooled investment fund. The proposed rule would require such U.S. parents to take “all reasonable steps to prohibit and prevent any transaction by its controlled foreign entity” that would be prohibited or notifiable under the proposed rule. The proposed rule provides a list of examples of “reasonable steps” U.S. parents should take to direct their controlled entities, such as using binding agreements, governance or shareholder rights, internal policies, procedures, or guidelines, periodic training and internal reporting requirements, effective internal controls, and testing and auditing functions.

In addition, the proposed rule would apply to U.S. personnel of foreign entities by prohibiting them from “knowingly directing” transactions that would be prohibited for a U.S. person to conduct itself. This is similar to the standard anti-“facilitation” provisions found in most U.S. sanctions regulations. The proposed rule would not restrict a U.S. person from working at any entity that receives investment, nor would it restrict a U.S. person from working at an entity making such an investment, as long as the U.S. person recuses themselves from the sensitive investment. Developing policies and procedures to ensure compliance with these requirements will be essential for U.S. and non-U.S. companies engaged in transactions that may involve the covered national security technologies and products.

B.  What Types of Investments Would Be Restricted?

According to the proposed rule, a “covered transaction” is any transaction that a U.S. person knows (at the time of the transaction) involves a “covered foreign person.” Such transactions include the following:

• Acquisition of an equity interest or contingent equity interest;
• Certain debt financing that is convertible to an equity interest or that affords certain management or board rights to the lender;
• The conversion of a contingent equity interest or equivalent;
• A greenfield investment or other corporate expansion;
• Entry into a joint venture; and
• Acquisition of a limited partner or equivalent interest in a non-U.S. investment fund.

A “covered foreign person” is defined as a person of a “country of concern” that engages in a “covered activity”—and certain parents and majority-owned subsidiaries of such entities. The initial “countries of concern” under the proposed rule are the PRC, Hong Kong, and Macau.

A “covered activity” is any activity related to the development or production of specific “covered national security technologies and products” in three key industries: semiconductors and microelectronics; quantum information technologies, and artificial intelligence (“AI”) systems. As outlined in detail in the table below, certain “covered activities” will require notification to Treasury post-acquisition, while others will be prohibited outright.

In addition to the above, transactions involving “covered activities” (even if otherwise merely notifiable) will nevertheless be prohibited if the transaction involves an entity that:

• Is included on the Entity List or Military End User List maintained by the U.S. Department of Commerce’s Bureau of Industry and Security;
• Meets the definition of a “military intelligence end-user” in 15 C.F.R. § 744.22(f)(2);
• Is included on the Specially Designated Nationals and Blocked Person (“SDN”) List maintained by Treasury’s Office of Foreign Assets Control (“OFAC”), or is owned 50 percent or more by one or more individuals or entities included on the SDN List;
• Is included on the Treasury’s Non-SDN Chinese Military-Industrial Complex Companie (“NS-CMIC”) List; or
• Is designated as a foreign terrorist organization by the Secretary of State under 8 U.S.C. 1189.

C.  What Are the Requirements for Notifications?

A U.S. person subject to a notification requirement would have to submit a notification form to Treasury no later than 30 days after (1) a transaction is completed or (2) the U.S. person acquires knowledge (including information a U.S. person had or could have had through a reasonable and diligent inquiry) that the transaction constituted a “covered transaction.”  The notification form would include details about the U.S. person, the covered transaction, relevant national security technologies and products, and the covered foreign person.

D.  What Are the Exceptions and Exemptions?

Despite its sweeping coverage of many transactions involving the above-identified national security technologies and products, the proposed rule creates several notable exceptions and exclusions.

One prominent exclusion applies to citizens or permanent residents of a country of concern, such as the PRC, Hong Kong, or Macau, who are also either U.S. citizens or permanent residents of the United States. Such individuals are excluded from the definition of “covered foreign persons” and therefore do not on their own trigger the rule’s prohibitions or notification requirements.

Treasury has asked for comments on whether a similar exclusion should apply to U.S. entities that are currently covered under the definition of “person[s] of a country of concern,” such as U.S. subsidiaries of Chinese companies. This alteration to the definition would potentially allow U.S. persons to invest in such entities without being subject to the rule.

In addition to the exclusion for certain individuals, the proposed rule also lists several types of transactions that would be excepted from the rule’s scope, even if the transactions involve a covered foreign person. These include:

• Publicly traded securities: An investment by a U.S. person in a publicly traded security (including on non-U.S. exchanges) or a security issued by an investment company, such as an index fund, mutual fund, or exchange-traded fund, unless the investment affords the U.S. person rights beyond standard minority shareholder protections;
• Certain LP investments: A U.S. person’s investment made as a limited partner in a pooled investment fund, unless the investment affords the U.S. person rights beyond standard minority shareholder protections; noting, however, that Treasury proposes alternatives which would cap this exclusion to investments which do not exceed (i) $1,000,000, or (ii) 50% of the total assets under management of the fund;
• Buyouts of country of concern ownership: A U.S. person’s full buyout of all country of concern ownership of an entity, such that the entity would not constitute a covered foreign person following the transaction;
• Intracompany transactions: An intracompany transaction between a U.S. parent and a majority-controlled subsidiary to support ongoing operations or other non-covered activities;
• Pre-EO 14105 binding commitments: A transaction fulfilling a binding, uncalled capital commitment entered into prior to August 9, 2023 (though Treasury reserves the right to request information about such transactions as needed);
• Certain syndicated debt financings: Where the U.S. person, as a member of a lending syndicate, acquires a voting interest in a covered foreign person upon default and the U.S. person cannot initiate any action vis-à-vis the debtor and does not have a lead role in the syndicate; and
• Third country measures: Certain transactions involving a person of a country or territory outside of the United States may be excepted transactions where the Secretary of the Treasury determines that the country or territory is addressing national security concerns posed by outbound investment and the transaction is of a type for which associated national security concerns are likely to be adequately addressed by the actions of that country or territory.

The proposed rule also provides a mechanism for U.S. persons to seek a “national interest” exemption determination for transactions that are in the national interest of the United States. The proposed rule does not specify the criteria or process for obtaining such an exemption, but states that Treasury will issue guidance on this matter in the future.

E.  What Are the Penalties for Noncompliance?

The NPRM proposes penalties for violations of the outbound investment restrictions that relate to the nature and severity of the conduct. If a violation is not willful, meaning that the U.S. person did not act with knowledge or intent to violate the rule, the maximum civil penalty is the amount set by Section 206 of IEEPA, which is currently $368,136 per violation (an amount adjusted annually for inflation). If a violation is willful, meaning that the U.S. person acted with knowledge or intent to violate the rule, the maximum civil penalty is $1,000,000 per violation, and if the violator is a natural person, they may also face criminal prosecution and imprisonment of up to 20 years. In addition to monetary penalties and criminal sanctions, the proposed rule authorizes the Secretary of the Treasury to order a U.S. person to divest a covered transaction if the Secretary determines that such divestment is necessary to protect the national security of the United States.

As with other regulatory enforcement regimes, the proposed rule provides a process for U.S. persons to submit a voluntary self-disclosure (“VSD”) of a potential violation to Treasury, which may result in a reduction or mitigation of penalties, depending on the circumstances and the level of cooperation by the U.S. person.

III.  Changes From the ANPRM

In response to significant interest and input from regulated industries during the ANPRM’s comment period, which Gibson Dunn previously reviewed, Treasury has continued to refine the exceptions and definitions that will be promulgated in the final outbound investment rule. In particular, the following provisions have been substantially revised from the ANPRM:

1. The definition and scope of covered transactions involving “AI systems”;
2. The knowledge standard that would govern when a U.S. person has “reason to know” of a covered transaction’s compliance obligations;
3. A new exception for the acquisition by a U.S. person of a voting interest in a covered foreign person following its default on a loan made by a syndicate of banks;
4. A new exception for transactions involving persons of third countries that have similar measures aimed at outbound investments as designated by the Secretary of the Treasury;
5. A new exception for securities traded on non-U.S. exchanges; and
6. Scope of the exception for acquisitions of limited partnership interests.

Below, we address each of these new provisions in detail, as well as certain other proposals Treasury notably declined to incorporate.

A.  Covered Transactions Involving “AI Systems”

After the ANPRM was published in August 2023, the White House released EO 14110 on “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” in October 2023. The new NPRM incorporates EO 14110’s definitions of “artificial intelligence” and “AI systems” in its definition of “AI system,” to include:

A machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments—i.e., a system that uses data inputs to:

1. Perceive real and virtual environments;
2. Abstract such perceptions into models through automated or algorithmic statistical analysis; and
3. Use model inference to make a classification, prediction, recommendation, or decision.

This definition also includes “any data system, software, hardware, application, tool, or utility that operates in whole or in part using” an “AI system.”

Importantly, in response to comments recommending the inclusion of “frontier AI systems,” the new NPRM would also expand the prohibition on transactions developing “AI systems” to include not only those systems designed for military or government intelligence and surveillance end uses, but also any AI system “that is trained using a quantity of computing power greater than” a certain proposed threshold. As noted above, certain lower computing power thresholds are proposed for notifiable transactions. Treasury is seeking comments on the appropriate computational threshold for these provisions.

B.  Knowledge Standard

The NPRM proposes a knowledge standard to determine whether a U.S. person knew or reasonably should have known that it was undertaking a covered transaction involving a covered foreign person. Treasury’s proposed definition of knowledge would include any of the following:

1. Actual knowledge that a fact or circumstance exists or is substantially certain to occur;
2. An awareness of a high probability of a fact or circumstance’s existence or future occurrence; or
3. Reason to know of a fact or circumstance’s existence.

In response to commenters’ request for greater clarity on the applicable knowledge standard, section § 850.104 of the NPRM provides that, in assessing whether a U.S. person has undertaken a reasonable and diligent inquiry, Treasury will consider the following factors:

• Inquiry conducted by a U.S. person, its legal counsel, or its representatives, including questions asked of the investment target or relevant counterparty, as of the time of the transaction;
• The contractual representations or warranties the U.S. person has obtained or attempted to obtain from the counterparty;
• Efforts by the U.S. person to obtain available non-public information relevant to the determination of a transaction’s status;
• Efforts undertaken by the U.S. person to review public information, and the degree to which other information available to the U.S. person at the time of the transaction is consistent or inconsistent with such publicly available information;
• Whether the U.S. person, its legal counsel, or its representatives purposefully avoided learning or sharing relevant information;
• Warning signs such as evasive responses or non-responses from an investment target or relevant counterparty to questions or a refusal to provide information, contractual representations, or warranties; and
• The use of public and commercial databases to verify relevant information of an investment target or relevant counterparty.

C.  Loans Made by a Banking Syndicate to a Defaulting Covered Foreign Person

Signaling its commitment not to disrupt secondary or intermediary financial services such as debt rating, underwriting, or prime brokerage, Treasury has included a new exception from “covered transactions” in § 850.501 of the NPRM for loans made by a banking syndicate that includes U.S. persons to a defaulting covered foreign person, provided that the U.S. person has a passive voting interest but “cannot initiate action vis-à-vis the debtor on its own and does not have a lead role in the syndicate.”

D.  Transactions Involving Third Countries with Outbound Investment Rules

As part of Treasury’s continued commitment to engage with allies and partners regarding the national security goals of the proposed rule, Treasury has in § 850.501 of the NPRM excepted certain types of transactions “involving a person of a country or territory outside of the United States designated by the Secretary, after taking into account whether the country or territory is addressing national security concerns posed by outbound investment” in accordance with criteria to be developed. No countries have yet been designated, and Treasury is continuing to solicit feedback on the range of factors it ought to consider in evaluating the adequacy of measures taken by other countries or territories to address the relevant national security concerns.

E.  Securities Traded on Non-U.S. Exchanges

After commenters requested that Treasury align its definition of “publicly traded security” in the new regulations with the definition used by OFAC in connection with the NS-CMIC List, Treasury agreed to broaden the definition of an “excepted transaction” in § 850.501 of the NPRM to include “a security traded on a non-U.S. exchange, or a security traded ‘over-the-counter’ in addition to a security traded on a U.S. exchange.” Treasury agreed that this exception aligns with the national security goals undergirding the regulation due to the lower likelihood of the purchase of publicly traded securities resulting in the transfer of intangible benefits to “covered foreign persons” targeted by the proposed regulations.

F.  Acquisitions of Limited Partnership Interests

The ANPRM envisioned an exception from the definition of “covered transactions” for a U.S. person’s limited partnership interest in a foreign venture capital fund where the U.S. person’s contribution is solely capital and the U.S. person did not have the ability to “approve, disapprove, or otherwise influence or participate in the investment decisions of the fund.” While the NPRM retains this exception, it contemplates adding one of two alternatives limiting this exception based on the size of the investment. The first alternative would except an acquisition of a limited partner interest only if the “limited partner’s committed capital is not more than 50 percent of the total assets under management of the fund, aggregated across any investment and co-investment vehicles that comprise the fund.”  The second alternative would except such an acquisition only if “the limited partner’s committed capital is not more than $1,000,000, aggregated across any investment and co-investment vehicles that comprise the fund.”  Treasury acknowledged that the latter $1,000,000 threshold proposal would likely cover a greater number of limited partner investments (along with potentially increasing compliance costs) but stated that such a bright-line approach might make compliance easier for U.S. persons.

G.  Treasury Declined Requests for a De Minimis Threshold and Narrower Scoping for AI Systems

Although Treasury made a number of revisions and updates to the proposed rule, some comments were considered and rejected. For example, in response to the ANPRM, Treasury received comments requesting that the definition of covered foreign person include a de minimis threshold to scope out certain covered activities. Treasury considered, but ultimately declined, to propose a de minimis threshold, explaining that any such threshold tied to financial metrics might not sufficiently correlate to the national security significance of a given “covered activity.”  This approach aligns with how the U.S. government has treated national security risk in the context of inbound investment, and we would not expect Treasury to reevaluate its stance on this issue in the final rule.

In addition, while some commenters expressed concern that the definition of “AI system” may unnecessarily sweep in civilian uses of AI systems, Treasury expressed that the current broader definition may be necessary to adequately address national security concerns, indicating that it is instead focused on whether the definition of AI system is broad enough, inviting commenters to discuss whether other AI systems not currently contemplated as subject to the notification requirements or prohibitions contained in the NPRM should nevertheless be included. We expect that this topic and the scope of such requirements could be the subject of additional comments.

IV.  Next Steps in The Regulatory Process

The current open comment period ends August 4, 2024. Treasury specifically seeks comments regarding the:

• Breadth of the rule;
• Clarity of the “knowledge” standard;
• Compliance and diligence burdens imposed by the rule;
• Effect, if any, on the definition of “covered transaction” for the conversion of contingent equity interests or acquisition of limited-partnership interests;
• Definitions of “person of a country of concern” and/or “covered foreign person” as applied to U.S. entities;
• Scope of “covered activities”; and
• Scope of “excepted transactions.”

V.  Key Takeaways

Although the rule is likely to be finalized by the end of the year, the NPRM is not a final rule and will likely undergo revisions after the comment period has closed. Treasury is continuing to solicit feedback before the text of the final outbound investment rule is released. Nevertheless, it is important for clients to be aware of the following points at this stage of the rulemaking process:

• Congressional action is possible, but less likely. Separate from EO 14105 and proposed rulemaking, Congress came close to legislating its own outbound investment notification protocols in the FY 2024 National Defense Authorization Act signed into law last year. Further attempts to legislate outbound investment provisions are unlikely, at least in the 118th Congress. House Speaker Mike Johnson and House Financial Services Committee Chairman Patrick McHenry blocked last year’s amendment on the grounds that limiting investments would reduce U.S. influence in the PRC and create unnecessary bureaucracy for U.S. business. Given that the Administration is making progress with its own restrictions, congressional supporters of an outbound investment regime likely will not see a need to continue their previous efforts to negotiate with Speaker Johnson and Chairman McHenry to codify restrictions in statute.
• The rule implicates not only U.S. but also non-U.S. private equity funds. As described above, Treasury is considering alternatives in how it scopes the rule’s applicability to U.S. limited partner investment through non-U.S. funds, including with the suggestion of a $1 million cap on investment across a fund. The practical result could be to place additional regulatory compliance obligations on the general partners and investment managers of these non-U.S. funds.  U.S.- and non-U.S. fund managers alike should follow this rulemaking carefully to better understand any new obligations.
• Focus on emerging technologies may result in further updates. As also described above, Treasury updated the NPRM to reflect post-ANPRM developments in how the U.S. government is addressing the rapid development of AI. We expect Treasury may further refine the description of covered activities both during this rulemaking process and after. We may see that a primary use of outbound investment notifications will be to enable Treasury to better track developments and emerging risks in critical technology areas, and to respond by attempting to promulgate refinements and clarifications to rules on more of an ongoing basis, meaning that companies operating in covered areas will need to devote ongoing attention to technological and regulatory developments.
• The rule raises potential investor confidentiality concerns. Regulated companies might be particularly interested in Treasury’s request for comments on the confidentiality of submissions regarding notifiable transactions. Some commenters have already highlighted the potential “unintended chilling effect” that the notification requirements may pose. Although Treasury acknowledges that situations may arise where it could disclose confidential corporate information to partner countries and allies—or even to the public when such disclosure would be in the national interest—the NPRM makes clear that such actions would not supersede applicable statutory obligations that restrict the sharing of certain confidential information such as trade secrets. Nevertheless, commenters may wish to provide feedback on the confidentiality of sensitive corporate disclosures more generally for covered transactions, especially given the heightened interest in the conduct of negotiating transactions, evidenced by clarifications in the rule’s “knowledge” standard.
• The rule foreshadows outbound investment rulemaking, particularly in the UK/EU. The rule has implications for the U.S. government’s coordination and cooperation with its allies and partners in addressing the challenges posed by the PRC’s investment in critical sectors with the inclusion of a provision that may exempt certain transactions involving third countries that have similar measures to restrict or monitor outbound investment in national security technologies and products. As seen with inbound foreign direct investment rules, we expect to see other countries work to develop and refine their own outbound investment regimes. The fact sheet released by Treasury on the same date at the proposed rule notes that the UK and European Commission are concurrently considering mechanisms to address outbound investment risks in their own jurisdictions.

Gibson Dunn attorneys are monitoring the outbound investment regime developments closely and are available to counsel clients regarding potential or ongoing transactions and other compliance or public policy concerns.

The following Gibson Dunn lawyers prepared this update: Chris Mullen, Mason Gauch, Michelle Weinbaum, Stephenie Gosnell Handler, Amanda Neely, Jayee Malwankar, Adam Smith, and David Wolber.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. For additional information about how we may assist you, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or the following leaders and members of the firm’s International Trade practice group:

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