Articles Posted in China

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On August 17, 2020, the U.S. Department of Commerce Bureau of Industry and Security (BIS) made available for public inspection a final rule expanding restrictions on Huawei Technologies Co., Ltd. and its non-U.S. affiliates on the BIS Entity List (collectively “Huawei”).

In the final rule, BIS announced a further expansion of the direct product rule asserting U.S. jurisdiction over foreign-manufactured items with respect to Huawei, ended the Huawei Temporary General License (TGL), added 38 non-U.S. Huawei affiliates to the BIS Entity List, and clarified that Entity List license requirements apply to transactions where Huawei acts in a variety of roles as a “party to the transaction.”

In a concurrent final rule, BIS clarified that license requirements under the Entity List apply where the listed party is a “party to the transaction,” whether acting as a purchaser, intermediate or ultimate consignee, or end-user as defined in the Export Administration Regulations (EAR).

These actions, while not officially published in the Federal Register until August 20, 2020, are effective as of August 17, 2020.

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On August 6, 2020, President Trump issued a pair of executive orders targeting China’s Tencent Holdings Ltd. (Tencent) and its mobile application WeChat and ByteDance Ltd. (ByteDance) and its mobile application TikTok. The orders instructed the U.S. Commerce Department to prohibit the following within 45 days from their issuance (by September 20, 2020), to the extent permitted by law:

  1. Any transaction by any person, or with respect to any property, subject to the jurisdiction of the United States, with ByteDance, or its subsidiaries, in which any such company has any interest; and
  2. Any transaction that is related to WeChat by any person, or with respect to any property, subject to the jurisdiction of the United States, with Tencent, or any subsidiary of that entity.

Both executive orders direct the Secretary of Commerce to identify transactions that will be prohibited, leaving substantial discretion in implementation.

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The U.S. government has issued several rules aimed at excluding, and in some cases removing, Chinese-origin equipment from U.S. telecommunications networks. Most of these rules apply to U.S. government networks, but some extend to private sector telecom infrastructure and services with no nexus to the U.S. government.

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