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On August 6, 2018, the Treasury Department’s Office of Foreign Assets Control (OFAC) released a new Executive Order to implement the previously announced re-imposition of U.S. sanctions for Iran. There were no major surprises, with the Executive Order paralleling the guidance released on May 8, 2018 when the President announced his decision to cease the United States’ participation in the Joint Comprehensive Plan of Action (JCPOA) and to begin re-imposing the U.S. nuclear-related sanctions that had been lifted, following a wind-down period.

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House and Senate negotiators have agreed on proposed reforms to the Committee on Foreign Investment in the United States (CFIUS) foreign investment review process, which has been added as Title XVII of the FY2019 National Defense Authorization Act (NDAA). The final bill makes a number of changes intended to improve the efficiency of national security reviews and investigations, although a significant increase in staff and funding will be required in order to handle the increased caseload. Importantly, outbound technology transfers in the context of joint ventures and other collaborative arrangements will not be added to the “covered transaction” definition, but will instead be addressed by U.S. export controls.

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  • June 15, 2018 – U.S. proposes an additional 25 percent ad valorem duty on products from China (818 tariff categories) with an annual trade value of approximately $34 billion. The $34 billion action became effective on July 6, 2018. (See our previous blog here)
  • June 15, 2018 – U.S. also proposes an additional 25 percent ad valorem duty on products from China (284 tariff categories) with annual trade value of approximately $16 billion. The $16 billion action is undergoing public comment.
  • June 15, 2018 – China retaliates imposing an additional 25 percent tariff on U.S. goods with a value of $50 billion. Part of this action ($34 billion) became effective on July 6, 2018. The additional $16 billion will be effective on a date to be determined.
  • July 11, 2018 – U.S. proposes an additional 10 percent ad valorem duty on products of China with an annual trade value of $200 billion.

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On July 11, 2018, the Office of the United States Trade Representative (“USTR”) proposed an additional 10 percent ad valorem duty on products of China with an annual trade value of $200 billion.  President Trump directed this action in connection with the Section 301 investigation into China’s acts, policies and practices related to intellectual property (discussed here and here).

According to USTR, President Trump directed this action in response to China’s decision to impose retaliatory tariffs on U.S. goods following the initial round of 25% tariff increases on Chinese goods covering $50 billion in trade value, $16 billion of which is currently proposed (discussed here).  According to the USTR, “China has shown that it will not respond to action at a $50 billion level” and “supplemental action at a $200 billion level is in accord with the President’s direction.”

The proposed tariffs cover 6,031 tariff subheadings and a wide variety of products, including food, chemical, mineral, electrical products; fertilizers; photographic goods; plastic, rubber, leather, cork, and wood articles; paper and paperboard; textile articles; headgear; stone, ceramic and glass articles; base metals; various types of machinery and appliances; electrical equipment; vehicles; ships; clocks; and furniture.

USTR will finalize the list following a public notice and comment process, including a hearing.  USTR has requested comments on:

  • Whether tariff subheadings included in the list should be retained or removed, or whether subheadings not currently on the list should be added;
    • In comments advocating for the removal of products from the list, commentators address whether imposing increased duties on a particular product would: 1) be practicable or effective to obtain the elimination of China’s acts, policies, and practices identified by USTR to be in violation of Section 301 (discussed in our blog post here); and 2) cause disproportionate economic harm to U.S. interests, including small- or medium-sized businesses and consumers.
  • The level of the increase, if any, in the rate of duty;
  • The appropriate aggregate level of trade to be covered by additional duties.

The relevant dates for the proceedings are as follows:

  • July 27: Requests to appear and a summary of expected testimony
  • August 17: Written comments
  • August 20-23: Public Hearing
  • August 30: Post-hearing rebuttal comments

 

 

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Recently, the U.S. Senate overwhelmingly passed the 2019 National Defense Authorization Act, H.R. 5515 (NDAA). The Senate version contains several differences from the NDAA as passed by the House, and these discrepancies must now be resolved through a joint conference committee. Notably, the Senate attached to the NDAA its proposed Foreign Investment Risk Review Modernization Act (FIRRMA), which would update and alter the CFIUS review process. The House had not attached its CFIUS reform bill, H.R. 5841, but recently passed this bill as a standalone piece of legislation. Both bills would expand CFIUS jurisdiction to include certain types of non-controlling investments, affecting foreign investors in U.S. businesses. However, impacts would vary depending on whether the investor is from a country of special concern or an allied nation.

While there are also commonalities, important differences between the Senate and House proposed CFIUS reform legislation are described below.

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Following President Trump’s direction in connection with the Section 301 investigation into China’s acts, policies and practices related to intellectual property (discussed here), on June 15, 2018, the Office of U.S. Trade Representative (USTR) announced a 25% tariff increase on Chinese products valued at approximately $34 billion in 2018 trade values, with more tariff increases to come. Below, we describe USTR’s action and China’s response.

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On 23 May 2018, the Sanctions and Anti-Money Laundering Act became law in the United Kingdom. Its aim is to provide a legal framework to allow the UK to impose sanctions and implement its own sanctions regime once the UK leaves the EU on 29 March 2019. However, the Bill goes well beyond any current EU sanctions regime and provides scope for the Government to shape an autonomous UK sanctions policy.

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On May 23, 2018, as directed by President Trump, the Secretary of Commerce initiated a Section 232 investigation into whether imports of automobiles, including SUVs, vans, light trucks and automotive parts, threaten to impair national security. President Trump reportedly is contemplating tariffs as high as 25% on automobile imports, similar to the tariff imposed a result of its recent 232 action on steel imports.

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Long awaited rules for “Customer Due Diligence Requirements for Financial Institutions” (the CDD Rules) went into effect on May 11, 2018. FinCEN has taken steps to clarify and refine implementation of the CDD Rules, issuing (1) FAQs on April 3, 2018 and (2) a ruling on May 16, 2018 providing covered financial institutions with a limited 90-day exceptive relief from the obligations for financial products and services that are subject to automatic renewals, provided such products were established before May 11, 2018.

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There are several legislative proposals pending in Congress targeting trade and investment involving China. If enacted, the proposals would prevent Chinese entities from acquiring certain U.S. technologies, prohibit U.S. government procurement from ZTE and Huawei, and limit U.S. issuers from receiving investments from Chinese parties.

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Today, President Trump announced his intention to withdraw the United States from the Joint Comprehensive Plan of Action (JCPOA) and to impose the “highest level of economic sanctions” on Iran. The Office of Foreign Assets Control quickly thereafter published FAQs that discuss how the sanctions will be implemented.

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