In the Foreign Investment Risk Review Modernisation Act and the Export Control Reform Act, Congress essentially gave the Department of Commerce the authority to decide how narrowly or widely to set the jurisdiction for the Committee on Foreign Investment in the United States over non-passive minority investments involving emerging and foundational technologies. Yet, at times, the department has seemed almost paralysed by this question.
Section 301 of the Trade Act authorises the president to take retaliatory action if it is determined that a trade act, policy or practice of a foreign government is unreasonable or discriminatory and burdens or restricts US commerce. December 2019 saw significant end-of-year developments on the Section 301 tariff front. US importers should take stock of these as they plan for 2020.
House Democrats and the Trump administration recently reached an agreement on the final text of the US-Mexico-Canada Agreement (USMCA). Once Canada and the United States have completed their ratification process, all three countries will move quickly to publish the critical uniform regulations. Company leaders must carefully follow these regulations, as they spell out new rules regarding USMCA compliance and preferential tariff treatment.
The US Trade Representative recently announced that it has determined that France's digital services tax is unreasonable or discriminatory and burdens or restricts US commerce, and that it is proposing additional ad valorem duties of up to 100% on products from France under Section 301 of the Trade Act 1974. Parties seeking changes to the proposed list of tariff subheadings or lower duties should take advantage of the comment period.
Providers of telecoms, internet and digital services, as well as IT vendors and equipment manufacturers, will soon find doing deals with foreign entities a little more risky and complicated. A new review process soon to be underway at the Department of Commerce is designed to ferret out transactions that pose a threat to US national security, but provides parties whose deals are being evaluated little time to comment.
The US Court of International Trade recently denied the Trump administration's motion to dismiss a lawsuit brought by an importer challenging the government's use of a Cold War-era trade law to double national security tariffs on steel imports from Turkey. Transpacific Steel LLC had filed the lawsuit before the trade court in January 2019, arguing that the increase in tariffs was unlawful under the statute and violated the due process and equal protection requirements under the Constitution.
The US International Trade Commission (ITC) recently began accepting petitions as part of the 2019 Miscellaneous Tariff Bill process. Under this process, a member of the public may request that Congress temporarily eliminate or reduce duty on an imported article for three years. Petitions are due no later than 10 December 2019 at 5:15pm Eastern Standard Time via the ITC online portal.
The Bureau of Industry and Security (BIS) announced another major policy change towards Cuba by further restricting the Cuban government's access to items subject to BIS's Export Administration Regulations. This new rule will have a significant impact on exporters and re-exporters currently using certain licence exceptions to export to Cuba that export non-US origin products with US-origin content to Cuba and lease commercial aircraft to Cuban state-owned airlines.
The Treasury Department, on behalf of the full Committee on Foreign Investment in the United States (CFIUS), recently released the long-awaited comprehensive draft regulations to implement the Foreign Investment Risk Review Modernisation Act. The regulations will significantly expand CFIUS's jurisdiction to cover a wider range of transactions, likely resulting in a dramatic spike in CFIUS reviews in 2020 and beyond.
The US State Department recently solicited feedback on its draft US Government Guidance for the Export of Hardware, Software and Technology with Surveillance Capabilities and/or Parts/Know-How. The draft guidance aims to provide insight to exporters on the considerations to weigh prior to exporting items with intended and unintended surveillance capabilities and could foreshadow new export controls and a US State Department review.
The Committee on Foreign Investment in the United States (CFIUS) is finalising its draft regulations to implement the Foreign Investment Risk Review Modernisation Act 2018 (FIRRMA). FIRRMA overhauled the operations and jurisdiction of CFIUS, but one aspect of the new law that has received little attention is the expansion of CFIUS's jurisdiction to cover a broader range of real estate transactions.
List 4A goes into effect, all Section 301 tariffs are to increase by 5%, the US Trade Representative deadlines loom and the president has ordered US companies to "search for alternatives" to China sourcing. This is your end-of-summer Section 301 China tariffs round-up.
Throughout the past few months, the United States and China have levied new tariffs, increased existing tariffs and imposed ever-higher retaliatory tariffs. Now, nearly all of the two countries' enormous bilateral trade is subject to double-digit tariffs. In this era of uncertainty, company executives understand that due diligence must be based on a fulsome understanding of the threat that lies ahead. As such, corporate leaders must take proper pre-emptive action and enlist expert legal advice.
Among other recent blows to Huawei, the Department of Defence, the General Services Administration and the National Aeronautics and Space Administration have issued an interim rule amending the Federal Acquisition Regulation to implement a key provision of the John S McCain National Defence Authorisation Act for Fiscal Year 2019. In light of this, US companies should carefully review their transactions with Chinese tech companies to ensure that they do not fall foul of any prohibitions.
President Trump recently signed an executive order, freezing all assets in which the Venezuelan government has an interest that are in US hands and prohibiting US persons from conducting transactions with the Venezuelan government, unless specifically exempted or authorised. Although this is not an embargo on all trade with Venezuela, the executive order goes substantially further than the previous sanctions.
President Trump recently tweeted that, beginning on 1 September 2019, importers can expect a 10% tariff on $300 billion of Chinese goods. While the Office of the US Trade Representative (USTR) has yet to issue specific coverage for this new 10% tariff, importers should expect to see the goods subject to it on the proposed Section 301 List 4. The USTR has also indicated that a List 4 exclusion request process could come on the heels of the current List 3 exclusion request timetable.
The US State Department recently announced the issuance of another round of sanctions on the Russian government in relation to the Chemical and Biological Weapons Control and Warfare Elimination Act 1991, which will come into effect on 19 August 2019. While this second round of sanctions is unlikely to affect most US companies, it may affect US banks, but only with respect to transactions involving non-ruble bonds and funds from the Russian sovereign issued after 26 August 2019.
US secondary sanctions are sanctions that the United States can apply to wholly non-US actors in wholly non-US transactions of which the US administration disapproves. A sanctioned individual or entity can be put on the Specially Designated Nationals list, but there is no well-defined numerical threshold for imposing sanctions. This article identifies some of the problems with the application of secondary sanctions and offers some potential solutions.
At a recent G20 Summit press conference, President Trump said that he would not lift the existing Section 301 tariffs on China, but would also not add tariffs on any additional Chinese imports "for at least the time being" as part of an agreement to resume negotiations with China. This article summarises the current status of the Section 301 List 4 goods and the List 3 product exclusion process which commenced on 30 June 2019.
A company recently entered into a $400,000, 18-month consent agreement with the Department of State, Directorate of Defence Trade Controls (DDTC) to settle six alleged violations of the International Traffic in Arms Regulations (ITAR). The key issue was the company's ITAR empowered official, who was neither empowered nor an expert. Through this consent agreement, the DDTC is sending a message to the industry: an empowered official must have (among other things) sufficient authority to stop a transaction.