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On March 5, 2020, the U.S. Department of the Treasury issued a proposed rule establishing filing fees for parties submitting a voluntary notice to the Committee on Foreign Investment in the United States (CFIUS) for “covered transactions” under Part 800 (which includes covered investments) and “covered real estate” under Part 802. The proposed rule implements the filing fee provision contained in section 1723 of the Foreign Investment Risk Review Modernization Act (FIRRMA).

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On February 3, 2020, the Department of Commerce published a final rule that amends the regulations for countervailing duty investigations to allow the imposition of duties on countries that undervalue their currencies. Publication of the final rule follows a May 28, 2019, notice of the proposed rule. The regulation will go into effect on April 6.

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On January 10, 2020, the United States imposed additional sanctions on Iran in the wake of recent tensions between the countries and the continuing broader “maximum pressure” campaign on Iran. Specifically, President Trump signed Executive Order 13902 (E.O. 13902) authorizing the imposition of secondary sanctions on certain transactions involving Iran’s construction, mining, manufacturing, and textiles industries. This follows Executive Order 13871 from May 2019, which authorized secondary sanctions on Iran’s iron, steel, aluminum and copper sectors. Concurrently with the issuance of E.O. 13902, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) added to the Specially Designated Nationals and Blocked Persons List (SDN List) several major Iran-related metal and mining companies, Chinese and Seychelles entities plus a related vessel involved in the Iranian metals trade, and Iranian regime officials.

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On December 26, 2019, the Department of State published in the Federal Register an interim final rule amending the International Traffic in Arms Regulations (ITAR) to define “activities that are not exports, reexports, retransfers, or temporary imports,” and specifically to clarify that the electronic transmission and storage of properly secured unclassified technical data via foreign communications infrastructure does not constitute an export. The rule also defines “access information” and revises the definition of “release” to address the provision of access information to an unauthorized foreign person.

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On January 13, 2020, the U.S. Department of the Treasury issued two final rules for the Committee on Foreign Investment in the United States (CFIUS) implementing the Foreign Investment Risk Review Modernization Act (FIRRMA), which was enacted on August 13, 2018. The final rules largely adopt the proposed rules published on September 17, 2019, with several key clarifications and modifications. As discussed previously, FIRRMA has resulted in two separate rulemakings that expand CFIUS’ jurisdiction to include (i) certain non-controlling investments in U.S. businesses engaged in critical technology, critical infrastructure, and sensitive personal data, and (ii) certain real estate transactions. The final rules will be published in the Federal Register on January 17, 2020 and will go into effect February 13, 2020 (Effective Date), with one exception described below. We anticipate that the Treasury Department will publish a separate rule concerning filing fees soon.

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On December 31, 2019, the U.S. District Court for the Northern District of Texas overturned a $2 million fine imposed by the Department of the Treasury’s Office of Foreign Assets Control (OFAC) against ExxonMobil Corp., and its U.S. subsidiaries ExxonMobil Development Company and ExxonMobil Oil Corp. (collectively, “Exxon”). This marked a rare court decision overturning an OFAC sanctions penalty. The Court’s decision focused not on the subject of the sanctions but addressed whether OFAC had provided proper notice of its sanctions requirements.

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Companies anxiously awaiting the release of “emerging technology” export control rules now have an initial interim rule indicating how the Department of Commerce Bureau of Industry and Security (BIS) is likely to proceed. Specifically, the interim rule related to software for training AI appears to be a narrowly tailored rule covering a specific type of AI software related to specific national security concerns involving geospatial imagery. While there are some questions on the scope of what is covered by “geospatial imagery,” comments on the rule due on March 6 will allow industry to provide input and hopefully obtain formal clarification once the final rule is issued. Additionally, the interim rule highlights that the new “emerging technology” rules will not be a “one and done” but rather a rolling series of rules on specific technologies warranting control.

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fDiOn a recent episode of The fDi Podcast, titled “Hunting for String in the Labyrinth. How Can Investors Safely Navigate Current Sanctions Regime?”, Pillsbury Public Policy partner Matt Oresman joined host Jacopo Dettoni to discuss the current U.S. sanctions landscape and identify some of the important factors businesses must consider to navigate them safely.

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On November 27, 2019, the US Commerce Department published a proposed rule implementing regulations following President Trump’s May 15, 2019 Executive Order 13783 (E.O.) on Securing the Information and Communications Technology and Services (ICTS) Supply Chain. The proposed rule adopts an open-ended, case-by-case review framework by which the Commerce Department will be able to evaluate “transactions” and determine if they are prohibited or must be mitigated due to national security concerns. Reviews would be undertaken by the Commerce Department on its own initiative or via referrals from other U.S. Government agencies or private parties.

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The U.S. Treasury Department has issued sanctions designations against Turkey’s Ministry of National Defense, Ministry of Energy and Natural Resources, and the Ministers of Defense, Energy and Interior pursuant to a new Executive Order issued on October 14, 2019 by President Trump in response to Turkey’s military operation in northern Syria. The Executive Order authorizes secondary sanctions and can expose non-U.S. companies and financial institutions interacting with designated Turkish parties to risk of penalties.

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