not exhaustive or final, but can be revised by DOC as necessary.
The scope of prohibited transactions are those between U.S. persons and a “person owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary,” which includes:
Any person, wherever located, who acts as an agent, representative, employee, or any other capacity at the order, request, direction, or control of a foreign adversary;
A person whose activities are directly or indirectly supervised, directed, controlled, financed or subsidized in whole or in majority part by a foreign adversary;
Any person, wherever located, who is a citizen or resident of a nation-state controlled by a foreign adversary;
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On January 19, 2021, we saw the publication of both an interim final rule from the Department of Commerce (Commerce) to address the security of the U.S. supply chain for information technology (the Rule)
1 and a new cyber-security executive order (the Order),
2 both issued under the authority of the International Emergency Economic Powers Act (IEEPA). These issuances represent the final regulatory efforts by the outgoing Trump administration to exercise enhanced national security oversight over U.S. information technology (IT) companies interactions with foreign actors.
Both the Rule and the Order grant the U.S. government new oversight powers over private commercial agreements related to IT between U.S. businesses and foreign entities. The Rule, in particular, creates a regulatory regime that permits Commerce to review many U.S. companies commercial agreements with foreign parties from certain nations most notably,
The scope of prohibited ICTS Transactions include transactions between U.S. persons and a “
person owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary.” The definition of this category of persons includes the following:
Any person, wherever located, who acts as an agent, representative, employee, or any other capacity at the order, request, direction, or control of a foreign adversary;
A person whose activities are directly or indirectly supervised, directed, controlled, financed or subsidized in whole or in majority part by a foreign adversary;
Any person wherever located who is a citizen or resident of a nation-state controlled by a foreign adversary;
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On January 14, 2021, the U.S. Department of Commerce (Department) released an interim final rule to implement President Trump’s 2019 Executive Order (EO) on “Securing the Information and Communications Technology and Services Supply Chain” (EO 13873). This rule establishes the processes and procedures that the Secretary of Commerce (Secretary) will use to identify, assess, and address certain transactions between U.S. persons and foreign persons that involve information and communications technology or services (ICTS) designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a “foreign adversary”; and pose an undue or unacceptable risk. The new rule departs from the Department’s proposed rules in several ways.
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