On October 5, 2023, the National Archives Information Security Oversight Office (ISOO) released a joint notice to provide guidance on facility clearances for joint ventures (JVs) in the National Industrial Security Program (NISP). This guidance addresses the interaction of NISP requirements and an October 16, 2020 Small Business Administration (SBA) rule on JVs and also aims to clarify confusion arising from a Government Accountability Office (GAO) decision interpreting the SBA 2020 rule. The ISOO joint notice concludes that the SBA rule on JVs does not materially alter the requirements under the NISP concerning which entities are required to obtain facility security clearances (FCL) and a NISP Cognizant Security Agency (CSA) (such as the Defense Counterintelligence and Security Agency) will continue to make these determinations.
On November 6, 2023, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) announced a $206,213 settlement with Swift Prepaid Solutions, Inc. d/b/a daVinci Payments (daVinci) for apparent violations of sanctions regarding Crimea, Iran, Syria and Cuba. The financial services and payments firm was penalized by OFAC for enabling prepaid reward cards to be redeemed by persons who purchased the cards from sanctioned jurisdictions.
The November 6 settlement reflects a growing trend in OFAC enforcement actions to emphasize the importance of geolocation and blocking for financial and web services companies.
On November 6, 2023, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) held a public briefing to address industry questions concerning the latest export controls on advanced computing and semiconductor manufacturing. The new controls, which BIS announced on October 17, 2023, update existing export restrictions related to advanced computing and semiconductor manufacturing equipment. The public briefing did not provide substantive updates to the October 17 announcements but offered context and indicated where BIS intends to issue additional guidance.
In their recent client alert, “OFAC Issues New Sanctions Targeting Hamas’s Financing Networks,” colleagues Nancy A. Fischer, Aaron R. Hutman, Matthew R. Rabinowitz, Samantha Franks, Arielle R. Heffez and Erin Kwiatkowski discuss two rounds of sanctions imposed by the U.S. government on Hamas, other terrorist groups and Iranian networks in the wake of the October 7 attacks on Israel.
In “OMB Finalizes ‘Build America, Buy America’ Domestic Content Guidance,” colleagues Stephan E. Becker, Marques O. Peterson, Nancy A. Fischer, Moushami P. Joshi, Samantha Franks and Amaris Trozzo examine the finalized “Build America, Buy America” guidance, which clarifies content requirements for non-federal government #infrastructure projects that benefit from federal funding.
Ukraine’s reconstruction efforts present myriad opportunities for foreign businesses particularly in the energy, construction and tech sectors. At the same time, it is imperative for foreign businesses to approach these opportunities with a well-informed strategy. Understanding and navigating the complex regulatory and legal risks is key to maximizing opportunities and maximizing contributions to the reconstruction process.
On August 9, 2023, President Biden issued an Executive Order on Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern. The new Executive Order (EO) is the culmination of more than a year of deliberation by the Biden Administration regarding outbound investment provisions and kicks off a 45-day comment process to develop a new regulatory mechanism for reviewing outbound investments in foreign countries of concern. This regulatory process and the criteria under consideration are described in the Department of the Treasury’s Advance Notice of Proposed Rulemaking (ANPRM), the key aspects of which are summarized below.
The new EU Foreign Subsidies Regulation (FSR) has now finally taken effect. Under the FSR the European Commission (EC) will have new powers to intervene against distortions to competition in the EU internal market caused by companies active in the EU that benefit from foreign financial contributions (FFC) and conduct investigations into potentially distorting FFCs. The FSR also introduces a new notification regime for certain M&A transactions and public tenders to mitigate against the risk of distortive subsidies granted by third countries.
After more than a year of deliberations, the U.S. government appears close to implementing an outbound investment review mechanism that would regulate certain U.S.-origin investments in countries of concern, notably China. These efforts are part of a wider effort by the U.S. government to restrict access to certain sectors of the Chinese market in the name of national security. In “All Eyes on China: Upcoming Restrictions on Outbound Investment,” colleagues Nancy Fischer, Matthew Rabinowitz, Zachary Rozen, Samantha Franks, Ata Akiner, Laura Killalea, Amaris Trozzo and Jack Ko examine these potential restrictions and the pending legislation by which they would likely be informed.
The EU’s new Joint Communication on a European Economic Security Strategy proposes a methodology for an EU economic security risk assessment and identifies measures to mitigate these risks. The Strategy is noteworthy because it offers a comprehensive view of the EU’s overarching strategy for multiple existing or proposed new EU legislative and policy tools including export controls, FDI screening and domestic investment in critical technology through the EU’s own proposed Chips Act, and how these tools would work together to reduce EU economic security risks. It also signals the EU’s intention to align more closely with the U.S. regarding China, including with respect to reducing supply chain dependencies and new tools like outbound investment controls.
(This is the second post of a three-part series on U.S., UK and EU alignment on economic security strategy.)