The Tool Desk
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Why the site’s location is only one part of the analysis
“Building a data center in Asia” describes a physical project, not a complete US-policy analysis. The answer can depend on who invests in or controls the project, what the project entity does, which equipment and technical inputs it uses, who will access its compute, and what that compute will be used for. A site outside China may still need scrutiny because Treasury’s investment program looks at covered US-person transactions and entities connected with China, Hong Kong or Macau, while BIS export controls can turn on an item’s classification, the recipient’s headquarters or ultimate parent, and the intended end use.
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Keep two workstreams distinct. Treasury’s program addresses certain outbound investments in specified technology activities. The Export Administration Regulations (EAR), administered by the Bureau of Industry and Security (BIS), address exports, reexports and other dealings involving items within their scope. A greenfield project, acquisition, joint venture, financing round, equipment shipment and customer workload are different facts; one conclusion does not answer every question about the others.
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| Workstream | Core screening question | Facts to collect |
|---|---|---|
| Treasury outbound investment | Is a proposed transaction by a US person covered because of the target entity’s connection to a country of concern and its activity in a specified technology category? | Investor and other relevant US-person roles; transaction type; ownership chain; entity activities; technology category. |
| BIS export controls | Does an item or related activity fall within the EAR and require authorization for this destination, recipient, end user, end use or transfer? | Item origin and classification; consignee and ultimate parent; end user and workload; access, reexport and in-country transfer routes. |
| Local-country review | What additional rules and site constraints apply where the facility will be built and operated? | Country and site; investment, data, cybersecurity, energy, water, tax, land, permitting and sanctions requirements. |
This is a screening framework, not a determination that a particular investor, company, chip, customer or project is covered. The country and site are not specified, and the applicable local rules cannot be resolved without them.
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Start with a project map, not a country label
Before comparing locations or accepting customers, define the deal and the operating model. Make a single fact pack that connects the proposed transaction to the entity that will own or operate the facility and to the systems and services customers will actually use.
Record the investment and corporate structure
- Identify whether the proposal is a new build, expansion, acquisition, joint venture or another investment, and describe each financing or ownership transaction separately.
- List each project entity, its direct owners and ultimate parents. Record where each entity is organized and where its ultimate parent is headquartered; do not stop at the immediate counterparty’s name.
- Map US-person investors, funders, directors and other relevant participants, including their roles in evaluating, approving or carrying out the transaction. Determine which people and entities are involved rather than assuming that a non-US project vehicle settles the question.
- Describe the activity of the entity receiving the investment. A building may host several activities; identify whether the relevant entity develops, produces, uses or provides services involving covered technology.
Map the operating chain
- List chips, servers, networking and interconnect equipment, software, technology and related services. Record the supplier, origin, intended destination and available classification information for each item.
- Identify vendors, customers, resellers, hosting intermediaries and other counterparties, together with relevant ownership and headquarters information.
- Document who can access the compute, where that access occurs, whether access can be reassigned, and whether equipment, software or technical data may be exported, reexported or transferred within a country.
- Describe planned workloads in operational terms: for example, whether customers will train AI models, whether training is performed for or on behalf of another party, and what the provider knows about the intended end users and uses.
The map should distinguish a confirmed fact from a customer representation, an assumption and an unresolved question. That distinction is useful when a customer, ownership chain or use changes after site selection.
Screen the investment under Treasury’s outbound-investment program
Treasury’s program is targeted, not a general prohibition on US capital in Asia. The Outbound Order was issued on August 9, 2023 and designated the People’s Republic of China, Hong Kong and Macau as countries of concern for this program. Treasury issued its final rule on October 28, 2024; it was published November 15, 2024 and took effect January 2, 2025. Treasury’s program identifies three covered technology categories: semiconductors and microelectronics, quantum information technologies, and artificial intelligence.
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- Describe the transaction precisely. Identify the parties, instrument, amount or commitment if known, timing, purpose and project entity. Separate different investments or stages rather than describing the entire plan as one “Asia project.”
- Trace the US-person connection. Identify the people and entities participating in or supporting the transaction and the capacity in which they act. Have the responsible compliance and legal teams determine whether the relevant conduct falls within the program’s scope.
- Trace the target’s ownership and activities. Follow the ownership chain through the ultimate parent and document the target entity’s connection to China, Hong Kong or Macau and its activities in any of the three technology categories.
- Apply the rule to the specific facts. Compare the transaction and entity facts with Part 850’s definitions, prohibitions, notification provisions, exceptions and other relevant terms. Do not infer the result from the project’s location alone.
- Resolve the filing or prohibition question before commitment. Treasury directs required filings through its Outbound Notification System and describes a national-interest exemption process. Whether either is relevant depends on the transaction and applicable rule; do not assume an exemption applies.
Treasury’s regulations page listed a notice dated August 3, 2026 concerning continuation of the national emergency. That is evidence the program remained an active consideration when the rules were checked on October 9, 2026; it does not establish that any proposed future expansion took effect. Confirm the current regulations and agency notices at the time of the transaction.
Classify equipment and technical inputs under the EAR
Export-control screening starts with the item, not the building. A facility can use a mixture of chips, servers, software, technology and services with different origins and classifications. Do not treat all data-center equipment as one category or assume that a shipment to an Asian country is outside US controls.
- Build an item inventory. Include hardware, software, technology and relevant technical inputs. Link each item to its supplier, country of origin, intended consignee and use in the project.
- Establish jurisdiction and classification. Determine whether an item is subject to the EAR and identify its Export Control Classification Number (ECCN) or other applicable classification. If classification is unknown, mark it as unresolved and obtain a documented determination; do not guess from a product name or marketing description.
- Screen all relevant parties. Check the consignee, end user, ownership and ultimate parent, as well as vendors and intermediaries. Check the current Entity List and other relevant restricted-party lists at onboarding and before transactions, and preserve the screening record and escalation decision.
- Map the item’s route and access. Record the initial export, possible reexports, transfers within a country, remote access and any changes in consignee or end use. Ask whether foreign-direct-product or other EAR-scope questions need analysis for the particular item and route.
- Test licensing and other conditions against current rules. Check the operative EAR text, country groups, license exceptions and applicable end-use and end-user restrictions at the time of the transaction. A general country screen cannot replace an item- and party-specific review.
BIS’s January 2025 announcement described additional foundry and packaging-company due-diligence and reporting measures, as well as Entity List additions. Those announcements make current-list and current-text checks important; the announcement alone does not decide the licensing result for a particular chip, supplier or customer. The relevant question is the status and facts at the time of the proposed transaction.
Screen customers, AI workloads and ultimate parents
A data center’s customer profile can change the export-control analysis even when the facility is located outside the customer’s headquarters country. BIS guidance issued May 31, 2026 says specified advanced-computing items can require a license when the recipient is headquartered in a D:5 country or Macau, or has an ultimate parent headquartered there, even if the recipient is located elsewhere. The guidance concerns specified items and a defined requirement; it should not be generalized to every server, customer or transaction.
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That means a customer’s local operating subsidiary is not always the end of the inquiry. Capture the headquarters of the recipient and its ultimate parent, and determine whether the particular item and transaction fall within the guidance. BIS also addressed circumstances involving advanced-computing items supplied to an infrastructure-as-a-service (IaaS) provider, including a data center, for AI training for or on behalf of a party headquartered in D:5 or Macau. The May 13, 2025 policy statement describes potential authorization requirements when the provider knows of that training and specified military-intelligence or weapons-of-mass-destruction (WMD) end-use or end-user conditions apply.
Ask customers for facts the provider needs to assess
- Who is contracting, who will receive or control the compute, and who is the ultimate parent?
- Where are the customer and its ultimate parent headquartered? Is a local entity acting for a different party?
- Will the service be used to train an AI model? If so, for whom or on whose behalf?
- Who will access the systems, and can another party direct, use or benefit from the workload?
- What facts are known about military-intelligence or WMD-related end users or end uses?
- Will the customer, workload, access route or intended use change after onboarding?
Set an escalation process for unanswered questions and material changes. Preserve the customer’s statements and the basis for decisions. These are practical controls for collecting and reviewing relevant facts; they do not replace the rule’s legal knowledge standards or determine whether a license is required.
BIS’s May 31, 2026 guidance also says bona fide data-center operators otherwise engaged in activities consistent with the EAR need not cease ongoing use, storage, disposal or servicing of advanced-computing items solely because of that guidance, until further notice from BIS. This is a narrow statement about specified ongoing activities and that guidance—not a general exemption from licensing requirements, other EAR obligations or future changes.
Keep the January 2025 AI Diffusion Rule separate from later developments
Outdated summaries can lead to two opposite mistakes: treating a rule that BIS said it would not enforce as an active worldwide framework, or assuming that all advanced-computing controls disappeared. The key dates describe separate policy developments, not a single uninterrupted rule.
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| Date | What the agency said | How to use it in screening |
|---|---|---|
| January 13, 2025 | BIS announced the AI Diffusion Rule, describing a worldwide authorization framework for certain advanced-computing chips and closed-model weights, license exceptions and changes to the Data Center Validated End User program. | Do not assume the original announcement alone describes the operative rules today. |
| May 12, 2025 | BIS announced it had initiated rescission and instructed enforcement officials not to enforce that rule. The announcement said a Federal Register notice and replacement rule were planned. | Check whether subsequent formal rulemaking occurred; an announced plan is not itself proof of the final current text. |
| May 13, 2025 | BIS issued a distinct policy statement on possible authorization requirements for certain advanced-computing items provided to IaaS or data-center providers for AI training for or on behalf of certain D:5- or Macau-headquartered parties, when specified end-use or end-user facts apply. | Assess the specific recipient, training arrangement, knowledge and end-use or end-user conditions. |
| May 31, 2026 | BIS clarified a relevant existing requirement for specified advanced-computing items involving D:5- or Macau-headquartered entities, including entities whose ultimate parent is headquartered there, even when the entity is located elsewhere. | Apply the clarification to its defined item and party facts, while checking the current EAR and any later guidance. |
The rule status is volatile. Before a commitment, shipment, customer onboarding or material change in use, check the current EAR text, country groups, license exceptions, Entity List and later Federal Register notices or agency guidance. The May 2025 announcement of planned rescission and replacement is not evidence, by itself, that a replacement became effective; equally, the May 2026 clarification does not make every advanced-computing activity licensable.
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A useful screening process makes unresolved facts visible before they become contract, construction or operating commitments. Assign an owner and a decision point to each workstream, and stop the affected transaction or activity from proceeding until material questions are resolved.
- At site shortlist: create the ownership, investor and local-country fact pack. Identify which candidate jurisdictions require local counsel and technical diligence.
- Before investment approval or signing: complete the Treasury Part 850 analysis for each relevant transaction. Record whether the result is prohibited, notifiable, outside scope on established facts, or unresolved pending a specific fact or legal determination.
- Before equipment purchase or transfer: complete item jurisdiction and classification, party screening, route mapping and licensing analysis. Do not ship or make controlled items available while a required authorization question remains open.
- Before customer acceptance: collect customer, ultimate-parent, workload, access and end-use information. Escalate indications of covered AI training or military-intelligence/WMD-related conditions for legal and export-control review.
- During operation: re-screen at onboarding and before transactions, monitor ownership and workload changes, and preserve records of checks, customer representations and approvals.
- At each policy update: assign someone to check current rules and agency announcements, identify affected transactions or services, and document whether a change requires a hold, new authorization analysis or customer review.
Use clear internal statuses rather than an unsupported single “safe country” score:
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- Cleared for the defined facts: the relevant analysis is complete for the identified entity, item, parties, use and transaction. This is not blanket clearance for changed facts or future rules.
- Hold for a missing fact: for example, unresolved ultimate-parent headquarters, item classification, end user or workload purpose. Name the fact owner and do not let an assumption silently become a conclusion.
- Escalate for legal determination: the known facts raise a possible prohibition, notification, authorization or scope question that the project team cannot resolve through routine screening.
For repeat customer onboarding or many equipment transactions, a documented compliance process can help maintain consistent records and escalations. The important control is not a particular software product; it is that the project can show which facts were checked, which rules were applied, what remained uncertain and who approved the next step.
Do not leave the Asian site assessment to the US workstream
A US-policy screen does not select a viable or compliant site. Local investment screening, data protection or localization, cybersecurity, licensing, tax, land use, permitting, energy and water requirements, and sanctions rules vary by jurisdiction and site. The facts provided here do not establish which Asian country is categorically safer, nor do they resolve any local-law question.
Run the local workstream alongside the Treasury and BIS reviews. Once candidate countries and sites are known, engage advisers who can assess the relevant local rules and infrastructure conditions. Keep separate conclusions for US rules and local rules so that a favorable result in one jurisdiction is not mistaken for an all-clear on the other.
What to verify before making an irreversible commitment
- The current version of 31 CFR Part 850 and Treasury notices, including which transaction and entity facts determine prohibition, notification or any available process.
- The current EAR text and relevant country groups, license exceptions and restrictions, plus the latest Entity List and other applicable restricted-party lists.
- The jurisdiction and classification of each relevant chip, server, software component and item of technology, with unresolved classifications clearly flagged.
- The recipient’s and ultimate parent’s headquarters, all material customer and vendor ownership facts, and the intended end users and workload.
- Whether customer use involves AI training for or on behalf of another party, and whether known facts raise the military-intelligence or WMD conditions addressed in BIS guidance.
- Whether a later Federal Register notice or agency action changed the status of the January 2025 AI Diffusion Rule or the May 2026 advanced-computing guidance.
- Country- and site-specific rules for investment, data, cybersecurity, sanctions, infrastructure and permitting.
Treasury listed an August 3, 2026 notice on continuation of the national emergency on its regulations page, and BIS’s cited policy developments run through May 31, 2026. Because the rules can change and the project facts drive the outcome, obtain a transaction-specific assessment from qualified export-control and investment-regulation counsel before signing, transferring equipment or accepting workloads that could be covered.
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