Published on:

By and

On October 5, the trade ministers of the 12 nations participating in the negotiations announced that they had successfully concluded the Trans-Pacific Partnership (TPP) free trade agreement. Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam are the member countries. There is a long way to go before the TPP is ratified and implemented (and the prospects for ratification in certain countries are not certain), but the agreement represents a major accomplishment for negotiations that began in 2009.

Continue reading →

Published on:

By , , , and

On Monday, September 21, 2015, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS) took coordinated action to further ease U.S. restrictions on trade with Cuba and Cuban nationals.

Continue reading →

Published on:

By , , , , , and

Under the terms of the Iran Nuclear Agreement Review Act, Congress had until September 18 to reject President Obama’s promised sanctions relief for Iran agreed to under the Joint Comprehensive Plan of Action (JCPOA). Although the House of Representatives voted to reject the deal, Senate Democrats blocked debate on a similar resolution, thus preventing a vote in the Senate. Consequently, Congress took no action, which means that the JCPOA will continue to be implemented on a step-by-step basis (see our blog post here for full details).  Looking ahead, there are several key issues for businesses contemplating entering the Iran market to consider.

Continue reading →

Published on:

By , , , and

On July 22, 2015, the Department of Commerce’s Bureau of Industry and Security (BIS) released amendments to the Export Administration Regulations (EAR) implementing the Secretary of State’s May 29, 2015 decision to rescind the designation of Cuba as a State Sponsor of Terrorism. The removal of Cuba from Country Group E:1 and “AT” controls under the EAR requires a number of highly-technical changes to U.S. regulations. The key practical impacts are:

  •  The de minimis level for Cuba will be 25 percent instead of 10 percent (with some exceptions);
  •  License exception AVS will be expanded somewhat for aircraft on temporary sojourn in Cuba;
  • License exception RPL will be available to replace, on a one-for-one basis, parts, components, accessories or attachments for aircraft and other items controlled for national security reasons that were previously lawfully exported or reexported to Cuba; and
  • License exception BAG generally will allow travelers to Cuba to carry encryption commodities and software.

It is important to emphasize that the change to Cuba’s status as a state sponsor of terrorism does not remove the U.S. embargo on Cuba. Cuba remains in Country Group E:2, and any export, re-export, or transfer of goods, software or technology that are subject to the EAR to Cuba must still be licensed or be eligible for export under a license exception. Also, there have been no further changes to the U.S. sanctions policy administered by the Office of Foreign Assets Control (OFAC).

Increase in De Minimis Amount of U.S. Content Allowed for Cuba

Under the de minimis exception of the EAR, foreign-made products incorporating “controlled” U.S. content – that is, items that would require a license if exported separately to the country of ultimate destination – below certain threshold amounts are not subject to the EAR.

Previously, foreign made products that incorporated more than 10% U.S.-origin content were subject to the EAR when exported to Cuba from third countries. The amendments increase the threshold de minimis level to 25%, consistent with the threshold applied to most other countries.

As a result of this change, non-U.S. companies may find it easier in some cases to export products to Cuba incorporating U.S.-origin content. Nonetheless, companies should be mindful of continuing U.S. sanctions rules when assessing de minimis eligibility. In particular, because all U.S. content is controlled for export to Cuba (even items classified under EAR99), products that satisfy the de minimis test for export to other countries may not qualify for export to Cuba under the de minimis exception. Also, several categories of items are not eligible for the de minimis exception, including items incorporating content classified as a “600 series” item.

Changes to License Exceptions

License Exception Aircraft, Vessels and Spacecraft (AVS)

License exception AVS (“Aircraft, Vessels and Spacecraft”) (EAR § 740.15) previously allowed non-Cuban airlines to operate flights into Cuba. The amended regulations remove some restrictions on the use of AVS for Cuba, but the modifications currently seem likely to have a limited impact until such time as export licensing requirements for sales of aircraft and aircraft parts to Cuba are relaxed.

License Exception Servicing and Replacement of Parts and Equipment (RPL)

Certain exports and re-exports to Cuba may now be eligible for License Exception “Servicing and Replacement of Parts and Equipment” (EAR § 740.10). This would allow one-for-one replacement of parts, components, accessories, and attachments to be exported or re-exported to Cuba for aircraft; as well as for commodities controlled for national security (NS) reasons. Note that this license exception may only be used for items previously lawfully exported or reexported to Cuba.

License Exception Baggage (BAG)

License Exception “Baggage” (BAG) (EAR § 740.14) was previously available for Cuba. The amendments have the effect of now authorizing travellers to carry in their baggage encryption items (e.g., laptops containing encryption software) for their own use.

Before using any of the above license exception, it is important to review all of the specific requirements under EAR Part 740 and § 746.2 (providing information of the permitted use of license exceptions for Cuba) as well as the FAQ’s that accompanied the release of the amendments.

Published on:

By

On June 31, Congress, led by House Financial Services Committee Chairman Jeb Hensarling (R-TX), allowed the authorization of the U.S. Export-Import bank to expire without any vote. As previously reported, the future of the Ex-Im Bank has been at risk since Tea Party Republicans, especially members of the House Republican Study Committee, targeted the bank as a wasteful government program.

Following the expiration of its charter, the bank will remain open, but only for limited functions. It will not be able to issue any new loans, but will continue to service its current $110 billion portfolio of loans until they expire. The expiration for some of these loans is 18 years away. Bank operations (as opposed to its loan activities) are funded through the normal federal appropriation process, allowing it to service these loans for as long as it receives the necessary budget appropriations. The bank’s current operations, like the rest of the federal government, are funded through September 31, 2015. It is expected that the bank’s operating budget will be funded for fiscal year 2016 under the normal appropriations process, but given the politically charged environment around the bank, nothing is certain. Continue reading →

Published on:

By , , , , and

On July 14, 2015, representatives of the P5+1 countries reached an agreement with Iran on a “Joint Comprehensive Plan of Action” (JCPOA) regarding Iran’s Nuclear Program. Subject to review by several of the parties’ legislatures and after verification by the International Atomic Energy Agency (IAEA) of steps to be taken by Iran, the United States and the EU committed to provide sanctions relief, although the U.S. commitments are not as extensive.

The agreement is complex and some hurdles remain, particularly a vote by the U.S. Congress and a review by IAEA of Iran’s past activities and its implementation of the commitments. If there is full implementation as described below, sanctions reforms would substantially open the Iranian market to EU and other non-U.S. companies. Substantial restrictions would remain at least initially for U.S. companies and non-U.S. companies that they own or control, although U.S. policy would permit some trade and market participation in limited sectors.

This blog post provides a broad overview of the July 14 agreement. We will provide more detailed commentary in the coming days.

Continue reading →

Published on:

By and

On June 24, after weeks of legislative wrangling and extensive lobbying by influential interest groups, the U.S. Senate passed the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, better known as the Trade Promotion Authority (“TPA”) legislation. The House approved identical legislation last week, so the President now can sign TPA into law.

Although enactment of TPA is technically not a prerequisite for Congress to consider pending free trade agreements (“FTAs”), the “fast track” procedures contained within the TPA legislation offer the President critical leverage to finalize negotiations for several key FTAs and provide assurances to trading partners that Congress will not reopen the negotiations after the agreement has been finalized. In particular, the TPA bill mandates the use of several procedures to accelerate Congressional consideration of legislation to implement a trade agreement. These expedited procedures include:

Continue reading →

Published on:

By

Companies wishing to take advantage of the efficiencies of cloud computing face a dilemma—how to do so without running afoul of export controls? In a recent client alert, authors Christopher Wall and Sanjay Mullick examine how newly proposed regulations from the Directorate of Defense Trade Control (DDTC) and the Bureau of Industry and Security (BIS) could potentially solve this problem, allowing companies to store information on servers in foreign countries if that information is sufficiently encrypted. (And that’s an important “if.”)

Client Alert: Proposed Change to Export Controls Would Allow Use of the Cloud for Encrypted Data

Published on:

By and

On 19 June, the European Council extended EU sanctions against Russia pursuant to Council Decision (CFSP 2015/959).  This follows a series of increasingly coordinated actions by the US and EU, such as the joint statement produced at the G7 meeting two weeks ago, to show a united front against continued Russian activity related to Ukraine.  With this extension, EU sanctions will remain in place until January 31, 2016 unless there is a complete implementation of the Minsk Agreements before then.

However, looking forward, US and EU policymakers recently leaked to the media that they are pre-planning a series of coordinated sanctions against Russia should the situation deteriorate. These new measures could include new travel bans on Russian government officials and business leaders, but could escalate significantly to more broad-based sanctions against the Russian energy and financial sectors. In particular, these sanctions could target the sale of petroleum products from Russia and Russia-related financial transactions. Some western leaders are also supportive of utilizing these new sanctions should the status quo remain unchanged for much longer. Continue reading →

Published on:

By and

This afternoon the House of Representatives approved a rule that extends time for a second vote on Trade Adjustment Assistance legislation which the House failed to pass on Friday.  By a vote of 236-189, the House voted to allow for reconsideration of the trade legislation before July 30th.  The next six weeks promise to be full of interesting legislative twists and turns as supporters of the trade agenda seek a path forward.