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20-0922 Tuesday “Daily Bugle”

20-0922 Tuesday “Daily Bugle”

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Tuesday, 22 September 2020

  1. Commerce/BIS: “Addition of Entities to the Entity List; Corrections to Certain Existing Entries on the Entity List”
  2. Treasury/OFAC: “Notice of OFAC Sanctions Actions”
  3. USTR: “Notice of Product Exclusion Extensions – China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation”
  1. Items Scheduled for Future Federal Register Edition
  2. Commerce/BIS: (No new postings)
  3. State/DDTC: (No new postings)
  4. White House: “Executive Order on Blocking Property of Certain Persons with Respect to the Conventional Arms Activities of Iran”
  5. EU Commission: “EU and Canada Celebrate Third Anniversary of Comprehensive Trade Agreement”
  6. EU Council: “Libya: EU Imposes Additional Sanctions for Human Rights Abuses and Arms Embargo Violations”
  1. Deutsche Welle: “EU Imposes Sanctions on Violators of Libya Weapons Embargo”
  2. EU Sanctions: “China’s MOFCOM Publishes Unreliable Entity List Regulations”
  3. EURACTIV: “EU Nears Conclusion on Cyber Surveillance Export Controls”
  1. McCarter: “CFIUS – Final Rule Weds Declaration Requirements for Critical Technology Transactions with Export Controls”
  2. Pillsbury: “U.S. Commerce Department Announces Prohibited Transactions Related to WeChat and TikTok but Implementation Is Delayed”
  3. Thompson Hine: “WTO Panel Rules that U.S. Section 301 Tariffs Against China Are Illegal”
  4. Williams Mullen: “Developments In Export Controls On ‘Emerging’ and ‘Foundational’ Technologies”
  1. ECTI Presents: 24 Sep; “Riding the Wave of Current and New Tariffs – Update on US Trade Remedies Webinar”
  2. FCC Academy Presents 3 Webinars: The ABC of FMS | Designing an ICP | Implementing an ICP
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EXIM ITEMS FROM TODAY’S FEDERAL REGISTER

(Source: Federal Register, 22 Sep 2020) [Excerpts]
 
85 FR 59419: Rule
* AGENCY: Bureau of Industry and Security, Commerce.
* ACTION: Final rule.
* SUMMARY: In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) by adding forty-seven entities, under fifty-one entries to the Entity List. These forty-seven entities have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These entities are located under the destinations of Canada, China, Hong Kong, Iran, Malaysia, Oman, Pakistan, Thailand, Turkey, United Arab Emirates, and the United Kingdom. This rule also corrects four existing entries on the Entity List under the destination of China.
* DATES: This rule is effective September 22, 2020.
* FOR FURTHER INFORMATION CONTACT: Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce (202) 482-5991 or ERC@bis.doc.gov.

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(Source: Federal Register and Federal Register, 22 Sep 2020) [Excerpts]
 
85 FR 59601-59602: Notice
* AGENCY: Office of Foreign Assets Control, Treasury.
* ACTION: Notice.
* SUMMARY:
(i) The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC’s Specially Designated Nationals and Blocked Persons List based on OFAC’s determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
(ii) The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC’s Specially Designated Nationals and Blocked Persons List based on OFAC’s determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
* FOR FURTHER INFORMATION CONTACT: OFAC: Associate Director for Global Targeting 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation 202-622-2490; Assistant Director for Licensing 202-622-2480; Assistant Director for Regulatory Affairs 202-622-4855; or the Department of the Treasury’s Office of the General Counsel: Office of the Chief Counsel (Foreign Assets Control) 202-622-2410.

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(Source: Federal Register and Federal Register, 22 Sep 2020) [Excerpts]

 
85 FR 58587 and 59595: Notice
* AGENCY: Office of the United States Trade Representative.
* ACTION: Notice of product exclusion extensions.
* SUMMARY:
   (i) Effective July 6, 2018, the U.S. Trade Representative imposed additional duties on goods of China with an annual trade value of approximately $34 billion as part of the action in the Section 301 investigation of China’s acts, policies, and practices related to technology transfer, intellectual property, and innovation. The U.S. Trade Representative initiated an exclusion process in July 2018 and has granted 10 sets of exclusions under the $34 billion action. The seventh set of exclusions was published in September 2019 and will expire in September 2020. On June 3, 2020, the U.S. Trade Representative established a process for the public to comment on whether to extend particular exclusions for up to 12 months. This notice announces the U.S. Trade Representative’s determination to extend certain exclusions through December 31, 2020.
   (ii) Effective August 23, 2018, the U.S. Trade Representative imposed additional duties on goods of China with an annual trade value of approximately $16 billion as part of the action in the Section 301 investigation of China’s acts, policies, and practices related to technology transfer, intellectual property, and innovation. The U.S. Trade Representative initiated an exclusion process in September 2018 and has granted three sets of exclusions under the $16 billion action. The second set of exclusions was published in September 2019 and will expire on September 20, 2020. On June 25, 2020, the U.S. Trade Representative established a process for the public to comment on whether to extend particular exclusions granted in September 2019 for up to 12 months. This notice announces the U.S. Trade Representative’s determination to extend certain exclusions through December 31, 2020.
* DATES: The product exclusion extensions announced in this notice apply as of September 20, 2020, and extend through December 31, 2020. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
* FOR FURTHER INFORMATION CONTACT: For general questions about this notice, contact Associate General Counsel Philip Butler or Assistant General Counsel Benjamin Allen, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For specific questions on customs classification or implementation of the product exclusions identified in the Annexes to this notice, contact traderemedy@cbp.dhs.gov.

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OGS OTHER GOVERNMENT SOURCES

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(Source: The White House, 21 Sep 2020) [Excerpts.]
  By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Countering America’s Adversaries Through Sanctions Act (Public Law 115-44), the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), section 212(f) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f)), and section 301 of title 3, United States Code,   I, DONALD J. TRUMP, President of the United States of America, find that:
It remains the policy of the United States to counter Iran’s malign influence in the Middle East, including transfers from Iran of destabilizing conventional weapons and acquisition of arms and related materiel by Iran.  Transfers to and from Iran of arms or related materiel or military equipment represent a continuing threat to regional and international security – as evidenced by Iran’s continued military support that fuels ongoing conflict in Syria, Lebanon, Iraq, and Yemen.  Iran benefits from engaging in the conventional arms trade by strengthening its relationships with other outlier regimes, lessening its international isolation, and deriving revenue that it uses to support terror groups and fund malign activities.  In light of these findings and in order to take additional steps with respect to the national emergency declared in Executive Order 12957 of March 15, 1995 (Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources), I hereby order: … (See Source URL to read full order.)

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  Today is the third anniversary of the provisional entry into force of the EU-Canada Comprehensive Economic and Trade Agreement (CETA). The balance of these three years is very positive: bilateral trade between the EU27 and Canada has increased by 27% for goods and 47% for services as compared to the situation before CETA entered into force. This is much better than similar trends between the EU and the rest of the world over the same period of time.
  Executive Vice President and acting Trade Commissioner Valdis Dombrovskis said: “Over the last three years, CETA has proved its value many times over – not alone in increasing trade and economic opportunities for companies and workers in the EU and Canada, but also by providing a framework for stronger cooperation on sustainability and climate action. This demonstrates the enduring power of trade to deliver added value in a range of areas. My job as Executive Vice President of the Commission is to make sure we have an economy that works for people; it is clear that CETA contributes to that objective – and many more.”   
CETA is a progressive agreement, which creates opportunities for sustainable growth and reflects our shared values. Key areas of work in the framework created by the agreement are now how to use CETA to contribute to effective implementation of the Paris Agreement, how to make trade policy more responsive to gender issues, and how to best support our smaller businesses using the trade opportunities with Canada.   

CETA is a cornerstone of our bilateral relation with Canada, which we use as a platform to address together challenges in international trade system and the post-COVID global economy.

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OGS_a69. EU Council: “Libya: EU Imposes Additional Sanctions for Human Rights Abuses and Arms Embargo Violations”
 
  The Council today decided to impose targeted restrictive measures on two persons responsible for human rights abuses in Libya and three entities involved in violating the UN arms embargo in place for Libya. They will be added to the EU’s list of persons and entities subject to restrictive measures related to the Libyan conflict. The sanctions imposed comprise a travel ban and an asset freeze for natural persons, and an asset freeze for entities. In addition, EU persons and entities are forbidden from making funds available to those listed. With these new designations, the EU now has travel bans on 17 listed persons and has frozen the assets of 21 persons and 19 entities.
  The EU imposes restrictive measures on persons and entities whose actions threaten the peace and security of Libya or obstruct the successful completion of its political transition. The EU has repeatedly called on all parties to respect human rights and international law and is committed to holding anyone violating them accountable. The EU is also determined to see the UN arms embargo in Libya fully respected. These new listings show the EU’s strategic use of its sanctions regime and ability to react to developments on the ground in support of the political process and to deter past and present perpetrators from further violations.
  The EU’s sanctions complement and reinforce the sanctions adopted by the UN, which include an arms embargo and individual measures, including for human rights abuses. The UN has imposed a travel ban on 28 persons and an asset freeze on 23 persons.
  The relevant legal acts, including the names of the persons and entities concerned, have been published in the Official Journal.

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COM NEWS

(Source: Deutsche Welle, 21 Sep 2020) [Excerpts]
 
  The European Union has imposed sanctions on three firms for breaking a UN arms embargo on Libya. Two individuals were also sanctioned for involvement with supplying military equipment material to the country. 
   EU foreign ministers on Monday agreed to sanctions against entities that violated the UN embargo on arms flowing into Libya. 
  The measures target three companies – from Jordan, Kazakhstan, and Turkey – as well as two individuals for providing planes, ships and other logistics to funnel combat equipment into Libya.
   The 2011 toppling of dictator Moammar Gadhafi plunged Libya into chaos, making it a battleground for rival forces. The UN weapons embargo was imposed that year, although this has often been broken.
  Libya has two competing administrations: The Government of National Accord (GNA) in Tripoli, and a government in the eastern city of Tobruk. The Tobruk-based administration is aligned with the leader of the so-called Libyan National Army, Khalifa Haftar.
   Haftar has been laying siege to Tripoli since April 2019, seeking to take it from the control of the UN-recognized GNA, which is backed by both Turkey and Qatar. He has the support of Egypt, Russia, and the United Arab Emirates.
Almost all countries involved in the conflict promised to stop supplying the warring factions with fighters and weapons at a summit in Berlin in January. However, neither side fully kept to this.
  The EU is particularly keen to see the dispute resolved, because the fighting in Libya has made conditions easier for people smugglers take migrants to Europe to operate in the Mediterranean Sea.

(Source: EU Sanctions, 21 Sep 2020) [Excerpts]
 
   The Chinese Ministry of Commerce (MOFCOM) has published the “Regulations on the List of Unreliable Entities“, pursuant to China’s Foreign Trade Law and National Security Law. The Chinese government first announced the implementation of the Unreliable Entities List in 2019 (see post). Press conference here.
   The regulations provide that foreign individuals and entities may be listed if they: (1) engage in activities which endanger China’s national sovereignty, security, or development interests, or (2) suspend normal transactions with, or apply discriminatory measures to Chinese companies.
   Designated individuals/entities may become subject to restrictions on imports, exports, investment, and visas. Fines and any “other necessary measures” may also be imposed.
   A working mechanism will be established to organise and implement the Unreliable Entities List. The decision to designate an individual/entity will be based on an assessment of: (1) the degree of danger to China’s national sovereignty, security, or development interests, (2) the degree of damage to the rights and interests of Chinese companies, (3) compliance with international trade rules, and (4) any other relevant factors. Entities/people will be able to challenge their designations.

(Source: EURACTIV, 21 Sep 2020) [Excerpts]
 
  EU negotiators are closing in on a deal over new rules that would end the sale of cyber-surveillance technologies to autocratic regimes worldwide.
  In what is being billed as potentially the final round of talks on Tuesday (21 September), representatives from the German  EU Presidency and the European Parliament are set to hash out a deal on the regulation on dual-use goods, which aims to clamp down on exports that can be used in the surveillance of citizens in countries with despotic regimes.
  Speaking to EURACTIV ahead of the talks, lead MEP on the file, the Pirates’ Markéta Gregorová sounded a confident tone about an agreement being reached, after two years of negotiations.
  “We’re feeling positive about reaching an agreement after the Germans came closer to our position,” she said, adding that there had been a concerted effort to move closer to Parliament’s position in a new proposal penned by the Germans, which included more robust measures on transparency and evaluation obligations.
 
Change in German position
  The move marks a change of tack in the German position, following previous opposition to various elements in the text, that would have allowed the sale of cyber-surveillance technologies to autocratic regimes to continue.
  An EU source had suggested to EURACTIV that Germany’s position may have been heavily influenced by commercial interests, owing to the fact that the country accounts for an estimated 50 to 60% of the EU’s exports of so-called dual-use items.
  However, Gregorová believes that the German government may have realized that their opposition to the plans was untenable, and that several recent developments may have swayed their position. … 
   
Amnesty Report
   Meanwhile, a report published by Amnesty International on Monday urged the EU to adopt more stringent measures in its export regime, noting that current rules “fail to address rapidly changing surveillance dynamics and fail to mitigate emerging risks that are posed by new forms of digital surveillance technologies.”
   The report noted how European exports in this industry have found their way to totalitarian regimes worldwide, including in China, where such technologies have been used by national security authorities for egregious human rights abuses. … 
   All firms, Amnesty say, exported surveillance software such as facial recognition and network cameras to China, for alleged use in mass surveillance programs. … 
 
Facial recognition in scope?
   The concerns surrounding the export of facial recognition technology could have an impact on the inter-institutional discussions on Tuesday, as such technologies are currently not included in the scope of the definition of certain products that would be placed under restrictions.
   “From our position, we’d like to see export controls on the sale of facial recognition technologies to autocratic regimes,” Gregorová told EURACTIV.
“The report from Amnesty International on Monday highlighted how these technologies can be employed to erode human rights worldwide, and we need to take a strong stance against such uses.”
   “It will be our intention on Tuesday to get facial recognition technologies included in the scope of banned products,” she added.

COM COMMENTARY

 
 
The U.S. Department of the Treasury published a Final Rule (the Rule) on September 15, 2020, revising provisions in the regulations of the Committee on Foreign Investment in the United States (CFIUS) that implement section 721 of the Defense Production Act of 1950, as amended by the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). The Rule becomes effective October 15, 2020, and once in place, will do away with the critical technology mandatory declaration based on North American Industry Classification System (NAICS) codes that were part of a rule published January 17, 2020, and are applicable to U.S. businesses in one of 27 industries identified by a NAICS code. In that rule, the Treasury anticipated it would revise the mandatory declaration requirement regarding critical technology at 31 CFR §800.401(c) from NAICS codes to one based on export control licensing requirements. The NAICS code protocol, nevertheless, will continue to apply to transactions for which specified actions occurred on or after February 13, 2020, but prior to October 15, 2020.
 
Mandatory Declarations Are Triggered by Export Controls
The Rule modifies the mandatory declaration provision for certain foreign investment transactions involving a U.S. business that produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies. Specifically, the Rule mandates declarations in connection with covered transactions where U.S. regulatory authorizations would be required to export, reexport, transfer (in country), or retransfer a U.S. business’s critical technology to certain transaction parties or others in the ownership chain.
The term “U.S. regulatory authorization” is defined as licenses or authorizations required by the Department of State (pursuant to the International Traffic in Arms Regulations), the Department of Commerce (pursuant to the Export Administration Regulations as modified by the Export Control Reform Act), the Department of Energy (pursuant to regulations governing assistance to foreign atomic energy activities at 10 CFR § 810 other than the general authorization described in 10 CFR § 810.6(a)) as well as the Nuclear Regulatory Commission (pursuant to regulations governing the export or import of nuclear equipment and material at 10 CFR § 110). In sum and substance, if one of the aforementioned export control regimes requires licensing or authorization prior to the export of said critical technology to the home country of the foreign investor(s), a mandatory declaration is required for that particular transaction.
 
Mandatory Assessment Timelines and Triggers
The parties are required to conduct a critical technology assessment upon the earliest of the execution of a binding agreement by the parties or any change to investors’ rights that results in a covered transaction or covered investment. Both direct and indirect ownership interests must be evaluated to determine whether a U.S. regulatory authorization would be required for the hypothetical export activity of the U.S. business’s critical technology to the direct acquirer, or to a person with 25 percent or more voting interest, direct or indirect, in such direct acquirer. In certain circumstances, this 25 percent threshold would apply up the ownership chain to the direct acquirer’s general partner (or equivalent). The Rule clarifies that foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons, and their individual holdings are aggregated.
 
Critical Technology Early-Stage Companies Take Note
Export controls are a cornerstone of the national security reviews of foreign inward investment. Those involved in critical, foundational, and emerging technologies should understand that the importance of export controls will continue to grow due simply to the inseparability of strictly civil from potentially military and strategic technologies. Attracting foreign investment in U.S. early-stage companies that develop cutting-edge dual-use technologies may also assist the foreign investor’s home country in augmenting that country’s military and strategic capabilities. Some of those countries may be strategic competitors of the United States. FIRRMA was enacted to address “the nature of the investments that pose the greatest potential risk to national security, which warrants an appropriate modernization of the processes and authorities of [CFIUS] and of the United States export control system.”
 
How to Prepare
  • Seek out and engage export control and CFIUS counsel. This is not your current deal counsel. Profound and thorough export control due diligence is required, as is genuine experience with the CFIUS process.
  • Buyers must be aware of any potential successor liability from the unmitigated export control violations of sellers.
  • In addition to the standard CFIUS representations and warranties, buyers should also consider asking for export control representations and warranties.
  • In addition to CFIUS requirements, buyers and sellers may be subject to mandatory notice requirements under the ITAR that will determine whether work may continue on existing licenses or agreements post-acquisition.
  • Buyers will need to determine whether they conduct business in countries subject to U.S. or multilateral sanctions, or whether they conduct business with entities that are denied/debarred/listed by one of several U.S. government agencies.
  • Sellers must be sure to conduct thorough export control classification of their products, technologies, or services prior to the CFIUS filing.  
  • Sellers must ensure that an export control compliance assessment has been performed and that no export control violations are identified. If violations are identified, sellers must determine whether a voluntary self-disclosure is appropriate. 
  • Sellers should be extraordinarily careful not to release export controlled technical data to foreign investors during due diligence, negotiations or any time until all appropriate authorizations are in place from the cognizant government agency
Fines
Recently, CFIUS received over $24 million in funding to hire an additional 39 full-time employees before the end of the next fiscal year. This signals that CFIUS anticipates growth in its caseload. Those transactions that are subject to mandatory declaration but are not declared are subject to monetary penalties of $250,000 or the value of the transaction, whichever is greater. Not only does CFIUS have the authority to seek out undeclared transactions, but its increased budget and staffing signal that this may be a priority. It is crucial, therefore, that both the seller and the buyer receive proper guidance concerning the export control classification of the technology that is the subject of the transaction. Specifically, the parties must be able to accurately determine licensing requirements or exceptions thereto. 

 
* Principal Author: Nancy A. Fischer, Esq., 1-202-663-8965, Pillsbury Winthrop Shaw Pittman LLP
 
  On September 18, 2020, the U.S. Commerce Department published two rules defining the scope of prohibited transactions related to the mobile applications, WeChat and TikTok. The scope of prohibited transactions clarified the two parallel executive orders (EOs) issued by the Trump administration on August 6, 2020, which required the Commerce Department to impose restrictions on both platforms.
  The scope of prohibited transactions are the same for both WeChat and TikTok. Prohibited transactions do not include individual use of these mobile platforms to exchange personal or business information. However, the rule would effectively shut down WeChat and TikTok within the United States via mobile application storefronts (e.g., Apple Store and Google Play), and additional restrictions would further impair the apps’ functionality and user experience.
  The rules stipulated that the prohibited transactions involving WeChat and TikTok would go into effect as early as September 20, 2020, with certain TikTok-related prohibitions being delayed until November 12, 2020. However, recent developments delayed implementation of the restrictions and call into question whether the prohibitions will ultimately be implemented. For TikTok, the Commerce Department announced that it would delay implementing restrictions until September 27, 2020, in light of the recent agreement with Oracle and Walmart tied to a parallel review by the Committee on Foreign Investment in the United States (CFIUS). For WeChat, a preliminary injunction granted by a federal court in California separately delays implementation of this rule.
  The Commerce Department identified the following prohibited transactions related to WeChat and TikTok.

  • Mobile App Stores: Any provisions of services to distribute or maintain the WeChat or TikTok mobile application, constituent code, or application updates through an online mobile application store, or any online marketplace where mobile users within the land or marine borders of the U.S. and its territories may download or update applications for the use of their mobile devices;
  • Internet Hosting Services: Any provision of internet hosting services enabling the functioning or optimization of WeChat or TikTok mobile applications, within the land and maritime borders of the U.S. and its territories;
  • Content Delivery Services: Any provision of content delivery network services enabling the functioning or optimization of the WeChat or TikTok mobile applications within the land and maritime borders of the U.S. and its territories;
  • Internet transit service/Peering: Any provision of directly contracted or arranged internet transit or peering services enabling the functioning or optimization of the WeChat or TikTok mobile applications within the land and maritime borders of the U.S. and its territories;
  • Utilization of constituent code, functions or services: Any utilization of the WeChat or TikTok mobile applications’ constituent code, functions, or services in the functioning of software or services developed and/or accessible within the land and maritime borders of the U.S. and its territories; or
  • Future Transactions: Any other transaction by any person, or with respect to any property, subject to the jurisdiction of the U.S., with Tencent, ByteDance Ltd., or its subsidiaries, including WeChat and TikTok, in which any company has any interest, as may be identified at a future date under the authority delegated under EOs 13943 and 13942.

Both rules contain the following exceptions:
  1. Payment of wages, salaries and benefit packages to employees or contractors;
  2. The exchange between or among WeChat or TikTok mobile application users of personal or business information using these mobile application;
  3. Activities related to the distribution, installation or external U.S. use of WeChat or TikTok and all ancillary activities which are ordinarily incident to, and necessary for such activities by any person subject to U.S. jurisdiction;
  4. Storing WeChat or TikTok user data in the U.S.; or
  5. Any other transaction with Tencent or ByteDance Ltd. or their subsidiaries unless identified as prohibited.
  Prior to the September 20 implementation of the two rules, two recent developments related to WeChat and TikTok have delayed their implementation. First, Judge Laurel Beeler of the U.S. District Court for the Northern District of California granted a preliminary injunction in a claim brought by the WeChat Users Alliance halting the implementation of the prohibition on WeChat-related transactions. The court determined that the national security risks and foreign policy considerations did not outweigh the risk of harm to Chinese-Americans and Chinese-speaking community that make up the WeChat Users Alliance through the effective ban of WeChat for all U.S. users. Second, at the direction of President Trump, Secretary of Commerce Wilbur Ross has delayed the prohibition of transactions related to the TikTok until September 27, 2020, which is likely connected to Oracle’s proposed agreement with ByteDance to be the “trusted technology provider” of TikTok. These developments may continue to impact the implementation of the proposed rules in the near future. 

(Source: Smartrade, 20 Sep 2020)
 

   On September 15, 2020, a dispute settlement panel of the World Trade Organization (WTO) ruled that President Donald Trump’s tariffs against China violate the General Agreement on Tariffs and Trade (GATT) because they are prima facie inconsistent with Articles I:1 (Most-favored Nation Treatment) and certain of the GATT’s schedules and concessions, and the United States has not met its burden of demonstrating that the tariff measures it took under Section 301 of the Trade Act of 1974) are justified under GATT provisions for exceptions and necessary “to protect public morals.”

   China filed the WTO complaint in 2018 when the Trump administration, under U.S. Trade Representative Robert Lighthizer, determined that the acts and policies of China related to technology transfer, intellectual property and innovation were unreasonable and discriminatory and implemented 25 percent tariffs on more than $200 billion worth of Chinese goods imported into the United States on an annual basis. China argued that under the most-favored nation clause, the United States could not impose tariffs unilaterally against another WTO member country. The three-person WTO dispute panel agreed and stated: “China has demonstrated that the additional duties apply only to products from China and thus fail to accord to products originating in China an advantage granted to the like product originating in all other WTO Members.”
   While this ruling is the first report from a WTO dispute settlement panel to address the Trump administration’s wide use of tariffs as a retaliatory trade action, it will have little immediate impact. The panel’s ruling is certain to be appealed by the United States to the WTO’s appellate body. Since the Trump administration has refused to agree to the appointment of new appellate judges at the WTO to fill vacancies, the appellate body no longer has a quorum and is unable to issue any final and actionable decisions. Upon learning of the decision, President Trump stated to the press that “we’ll have to do something about the WTO because they’ve let China get away with murder….  But I’m not a big fan of the WTO – that, I can tell you right now.” Ambassador Lighthizer added in a press statement: “This panel report confirms what the Trump Administration has been saying for four years: The WTO is completely inadequate to stop China’s harmful technology practices…. The United States must be allowed to defend itself against unfair trade practices.”

TE EX/IM TRAINING EVENTS & CONFERENCES

(Source: Ashleigh Foor)

 
* What: Riding the Wave of Current and New Tariffs – Update on US Trade Remedies
* When: 24 Sep; 1:00 p.m. (EDT)
* Where: Webinar
* Sponsor: Export Compliance Training Institute (ECTI)
* ECTI Speaker: Melissa Proctor
* Register:here/ or Ashleigh Foor, 1-540-433-3977, ashleigh@learnexportcompliance.com.
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The ABC of Foreign Military Sales (FMS)
Tuesday, 29 September 2020

More Info

Designing and Implementing
  an ICP
Tuesday, 6 October More Info
Wednesday, 7 October More Info
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EN EDITOR’S NOTES

EN_a119. Bartlett’s Unfamiliar Quotations

(Source: Editor)

 
* Michael Faraday (22 Sep 1791 – 25 Aug 1867, was an English scientist who contributed to the study of electromagnetism and electrochemistry.)
  – “The lecturer should give the audience full reason to believe that all his powers have been exerted for their pleasure and instruction.”
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The official versions of the following regulations are published annually in the U.S. Code of Federal Regulations (C.F.R.), but are updated as amended in the Federal Register.  The latest amendments are listed below.
 
Agency 
Regulations 
Latest Update 
DHS CUSTOMS REGULATIONS: 19 CFR, Ch. 1, Pts. 0-199.

 

5 Apr 2019: 84 FR 13499:

Civil Monetary Penalty Adjustments for Inflation. 
DOC EXPORT ADMINISTRATION REGULATIONS (EAR): 15 CFR Subtit. B, Ch. VII, Pts. 730-774. 
22 Sep 2020: 85 FR 59419Additions of Entities to the Entity List and Corrections of entries on the Entity List.

DOC FOREIGN TRADE REGULATIONS (FTR): 15 CFR Part 30.   24 Apr 2018: 83 FR 17749: Foreign Trade Regulations (FTR): Clarification on the Collection and Confidentiality of Kimberley Process Certificates.  
DOD NATIONAL INDUSTRIAL SECURITY PROGRAM OPERATING MANUAL (NISPOM)

: DoD 5220.22-M. Implemented by Dep’t of Defense. 

18 May 2016: Change 2: Implement an insider threat program; reporting requirements for Cleared Defense Contractors; alignment with Federal standards for classified information systems; incorporated and cancelled Supp. 1 to the NISPOM (Summary here.)  
DOE ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES: 10 CFR Part 810.    23 Feb 2015: 80 FR 9359: comprehensive updating of regulations, updates the activities and technologies subject to specific authorization and DOE reporting requirements. 
DOE EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL; 10 CFR Part 110.  

15 Nov 2017, 82 FR 52823: miscellaneous corrections include correcting references, an address and a misspelling.

 
DOJ ATF ARMS IMPORT REGULATIONS: 27 CFR Part 447-Importation of Arms, Ammunition, and Implements of War. 
14 Mar 2019: 84 FR 9239: Bump-Stock-Type Devices.

DOS INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR): 22 C.F.R. Ch. I, Subch. M, Pts. 120-130. 

29 Jul 2020: 85 FR 45513 Extension to Certain Temporary Suspensions, Modifications, and Exceptions due to Corona Virus.  The latest edition of the BITAR is 29 July 2020.  

 
DOT FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR): 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders
Inflation Adjustment of Civil Monetary Penalties Related to Reporting and Recordkeeping.
 
 
USITC HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES (HTS, HTSA or HTSUSA), Revision 8.

1 Jan 2019: 19 USC 1202 Annex.
  – HTS codes for AES are available here.
  – HTS codes that are not valid for AES are available here.

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