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President Biden issues executive order prohibiting securities investments in Chinese military companies
On June 3, President Biden issued Executive Order (E.O.) 14032, “Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies.” The E.O. takes additional steps pursuant to the national emergency declared pursuant to E.O. 13959 (covered by Infobytes here), including the threat posed by the military-industrial complex of the People’s Republic of China (PRC) and “its involvement in military, intelligence, and security research and development programs, and weapons and related equipment production under the PRC’s Military-Civil Fusion strategy.” The E.O. generally prohibits U.S. persons from “the purchase or sale of any publicly traded securities, or any securities that are derivative of such securities, or are designed to provide investment exposure to such securities, of” any listed Chinese military company. The E.O. also establishes the deadlines for divestment of investments in companies currently listed as Chinese military companies as well as companies that later may be added to the list of Chinese military.
Among other things, the prohibitions apply “except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and not withstanding any contract entered into or any license or permit granted before the date of the order.” The E.O. also prohibits any transactions by U.S. persons or within the U.S. that evade or avoid, have the purpose of evading or avoiding, cause a violation of, or attempt to violate the provisions set forth in the order, as well as any conspiracy to violate any of these prohibitions. Additionally, the Treasury Secretary—after consulting with heads of other executive departments as deemed appropriate—is authorized to take actions, including promulgating rules and regulations, to carry out the purposes of the E.O.
OFAC also published eight new FAQs and seven updated FAQs regarding the new E.O. In addition, several names and entities have been added to OFAC’s Non-SDN Chinese Military-Industrial Complex Companies List.
OFAC amends security investment-related general license
On May 18, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued General License (GL) 1B, “Authorizing Transactions Involving Securities of Certain Communist Chinese Military Companies.” GL 1B authorizes through June 11 (9:30 a.m. eastern daylight time) certain transactions and activities that involve “publicly traded securities, or any securities that are derivative of, or are designed to provide investment exposure to such securities, of an entity whose name closely matches, but does not exactly match, the name of a Communist Chinese military company as defined by section 4(a) of E.O. 13959.” However, GL 1B does not authorize “[a]ny transactions or activities involving publicly traded securities, or any securities that are derivative of, or are designed to provide investment exposure to such securities of entities identified in the Office of Foreign Assets Control’s Non-SDN Communist Chinese Military Companies List (NS-CCMC List) pursuant to section 4(a)(iii) of E.O. 13959, as amended, as a subsidiary of a person determined to be a Communist Chinese military company, including entities added to the NS-CCMC List on January 8, 2021.” GL 1B immediately replaces and supersedes GL 1A, dated January 26.
OFAC says prohibitions no longer apply to previously sanctioned Chinese military company
On May 6, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) published FAQ 893 clarifying that prohibitions under Executive Order (E.O.) 13959, “Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies,” do not apply to a previously listed company. Specifically, OFAC explained that following a May 5 court order preliminarily enjoining the implementation of E.O. 13959 against the company, the E.O.’s prohibitions will not apply pending further order of the court.
FINRA fines firm for failing to follow its own AML policies
On April 16, the Financial Industry Regulatory Authority (FINRA) entered into a Letter of Acceptance, Waiver, and Consent (AWC), which resulted in a $250,000 fine against a New York-based trading firm for allegedly failing to establish an anti-money laundering (AML) compliance program and a tailored Customer Identification Program (CIP) over a four-year period, which permitted potentially suspicious trading out of accounts based in China and other foreign countries. As a result, the firm allegedly failed to detect red flags concerning potentially suspicious activity and failed to investigate or report the activity in a timely manner. According to FINRA, the firm’s failure to set up a “reasonable” AML program and a tailored CIP between September 2016 and September 2020 resulted in the failure to “detect, investigate, and respond” to red flags in four related accounts, including suspicious activity related to: (i) possible trading of low-priced securities and other activity connected to the foreign accounts; (ii) transactions that lacked business sense or apparent investment strategy; (iii) a customer account that had “unexplained or sudden extensive wire activity, especially in accounts that had little or no previous activity”; and (iv) a customer account, which showed an unexplained high level of account activity with very low levels of securities transactions. FINRA stated that although the “firm’s written procedures required the use and review of exception reports to assist with the identification of red flags for suspicious trading and suspicious money movements, they did not identify any exception reports that the firm would use and did not describe how supervisors should use them.” The firm neither admitted nor denied the findings set forth in the AWC letter.
OFAC sanctions Chinese government officials for human rights violations
On March 22, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions pursuant to Executive Order 13818 against two current Chinese government officials for alleged corruption violations of the Global Magnitsky Human Rights Accountability Act. According to OFAC, the sanctioned persons are connected to serious human rights abuse against ethnic minorities, including Uyghurs, in the Xinjiang region. The sanctions follow previous OFAC designations taken against several other Chinese government entities and current or former government officials for similar corruption violations (covered by InfoBytes here and here). As a result of the sanctions, all property and interests in property belonging to the sanctioned persons, and “any entities that are owned, directly or indirectly, 50 percent or more” by them, subject to U.S. jurisdiction are blocked and must be reported to OFAC. OFAC notes that its regulations generally prohibit U.S. persons from participating in transactions with these persons, which includes “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any blocked person or the receipt of any contribution or provision of funds, goods or services from any such person.”
OFAC announces Hong Kong-related designations
On March 17, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) added several Chinese citizens and Hong Kong nationals to the Specially Designated Nationals List. The individuals were designated under Executive Order (E.O.) 13936, which, among other things, authorizes the imposition of sanctions on persons who are determined to be responsible for or complicit in actions or policies that threaten the peace, security, stability, or autonomy of Hong Kong. Under E.O. 13936, “[a]ll property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, . . .are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in” with any foreign person identified to have engaged in the aforementioned activities.
OFAC issues FAQs on sanctioned Chinese military companies
On March 14, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) published FAQs related to two Chinese military companies sanctioned pursuant to Executive Order (E.O.) 13959, “Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies.” FAQ 880 states that, following a court order preliminarily enjoining the implementation of E.O. 13959 against a previously sanctioned company, the prohibitions are no longer applicable pending further order of the court. FAQ 881 clarifies when prohibitions in E.O. 13959 will take effect with respect to a company that was initially erroneously named, then delisted, and then correctly named.
OFAC amends communist Chinese military companies general license and related FAQs
On January 27, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued General License (GL) 1A, “Authorizing Transactions Involving Securities of Certain Communist Chinese Military Companies,” which supersedes and replaces GL 1 (covered by InfoBytes here). GL 1A permits transactions and activities otherwise prohibited by Executive Order (E.O.) 13959 involving “publicly traded securities, or any securities that are derivative of, or are designed to provide investment exposure to such securities, of any entity whose name closely matches, but does not exactly match, the name of a Communist Chinese Military Companies List as defined by section 4(a) of E.O. 13959, as amended.” OFAC also published related frequently asked questions 878 and 879, the latter of which clarifies that GL 1A does not authorize transactions with subsidiaries of companies on the Communist Chinese Military Companies List.
OFAC issues new general license and related FAQs involving Chinese military companies
On January 14, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued General License (GL) 2, “Authorizing Securities Exchanges Operated by U.S. Persons to Engage in Transactions Involving Securities of Communist Chinese Military Companies.” This license permits transactions and activities otherwise prohibited by Executive Order (E.O.) 13959 (which was recently amended) involving “publicly traded securities, or any securities that are derivative of, or are designed to provide investment exposure to such securities, of any entity that is listed on the [OFAC]’s Non-SDN Communist Chinese Military Companies List (NS-CCMC List).” OFAC also published several new frequently asked questions, 871, 872, 873, 874, related to E.O. 13959.
OFAC announces several actions related to securities transactions involving Chinese military companies
On January 8, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued General License (GL) 1—“Authorizing Transactions Involving Securities of Certain Communist Chinese Military Companies.” This license permits transactions and activities otherwise prohibited by Executive Order (E.O.) 13959 involving “publicly traded securities, or any securities that are derivative of, or are designed to provide investment exposure to such securities, of an entity whose name closely matches the name of a Communist Chinese military company identified in the Annex to E.O. 13959” but does not appear on OFAC’s Non-SDN Communist Chinese Military Companies List. Authorization is granted through 9:30 am eastern standard time, January 28. The Non-SDN Communist Chinese Military Companies List was also updated the same day.
OFAC also recently published several new frequently asked questions related to E.O. 13959. Specifically, FAQ 862 states that U.S. persons are not required “to divest their holdings in publicly traded securities (and securities that are derivative of, or are designed to provide investment exposure to, such securities) of the Communist Chinese military companies identified in the Annex to E.O. 13959 by January 11, 2021.” FAQ 863 explains that U.S. persons are permitted to engage in activity related to the following services: “custody, offer for sale, serve as a transfer agent, and trade in covered securities.” Meanwhile, FAQ 864 clarifies that E.O. 13959’s prohibitions apply to “publicly traded securities (or any publicly traded securities that are derivative of, or are designed to provide investment exposure to, such securities)” of any entities with names that exactly or closely match the name of an entity identified in the aforementioned annex. Additionally, FAQ 865 clarifies that “[m]arket intermediaries and other participants may engage in ancillary or intermediary activities that are necessary to effect divestiture” from publicly traded securities of Communist Chinese military companies during relevant wind-down periods or that are otherwise not prohibited under E.O, 13959.