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.
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.
Recent comments from Bureau of Industry (BIS) officials at the BIS Update indicate the U.S. Government is progressing towards more detailed proposed rules with respect to both “emerging” and “foundational” technologies that will become subject to future export controls. This required rulemaking is part of an interagency effort mandated by the Export Control Reform Act (ECRA) of 2018.
As trade relations with China continue to evolve, Huawei Technologies Co., Ltd. (“Huawei”) and its foreign affiliates remain subject to broad U.S. export license requirements. However, President Trump’s statements at the G20 Summit on the relaxation of restrictions on Huawei were followed by recent senior administration officials’ announcements, including Commerce Secretary Wilbur Ross, that export licenses may be possible where the proposed transaction does not implicate U.S. national security.
The U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) maintains the Entity List, which is comprised of individuals and entities subject to U.S. export licensing requirements for exports, re-exports and in-country transfers of items subject to the Commerce Department’s export control jurisdiction. On May 16, 2019, BIS added Huawei and 68 affiliates to the Entity List, creating a license requirement for all items subject to the Export Administration Regulations (“EAR”). This designation means that licenses are required for all exports and re-exports to Huawei of U.S.-origin goods, including “EAR99” items that are not identified on the Commerce Department’s dual-use Commerce Control List (“CCL”). “Items subject to the EAR” can also include non-U.S. made items in certain circumstances, such as where they contain more than a de minimis amount of controlled U.S.-origin content, or are a “direct product” of certain controlled U.S.-origin technology. The official licensing policy for exports to Huawei is a “presumption of denial.”
BIS subsequently issued a Temporary General License authorizing a narrow subset of transactions through August 19, 2019. Temporarily authorized transactions include those relating to:
- Continued operation of existing networks and equipment: Transactions necessary to maintain and support existing and currently fully operational networks and equipment, including software updates and patches, subject to legally binding contracts and agreements executed between Huawei on or before May 16, 2019.
- Support to existing handsets: Transactions necessary to provide service and support, including software updates or patches, to existing models of Huawei handsets that were available to the public on or before May 16, 2019.
- Cybersecurity research and vulnerability disclosure: The disclosure to Huawei of information regarding security vulnerabilities in items owned, possessed, or controlled by Huawei when related to the process of providing ongoing security research critical to maintaining the integrity and reliability of existing and currently fully operational networks and equipment, as well as handsets.
- Engagement as necessary for development of 5G standards by a duly recognized standards body: Transactions necessary for the development of 5G standards as part of a duly recognized international standards body. U.S. and non-U.S. companies dealing in items subject to the EAR should be aware that Huawei is still on the Entity List and remains subject to broad export licensing requirements. The Temporary General License authorizes certain limited exports to Huawei until August 19, 2019, and could signal the types of activities that would be viewed favorably in a license request. For activities outside the scope of the Temporary General License, exporters may consider submitting license applications for exports to Huawei or its supply chain where they believe the U.S. government would not have national security concerns.
Since its designation, interested U.S. and non-U.S. parties have questioned whether Huawei’s Entity List designation will remain permanent. President Trump made statements that the U.S. would lift some of the restrictions on Huawei following a meeting with Chinese President Xi Jinping to reengage the stalled China-U.S. trade talks. On July 9, 2019, Commerce Secretary Wilbur Ross indicated that Huawei will remain on the Entity List with the same export licensing requirements. In other words, exports to Huawei of any items subject to the EAR (including EAR99 items) will continue to require a license subject to an official policy of a “presumption of denial.” However, Secretary Ross left open the possibility that BIS may grant licenses where the proposed exports do not threaten national security. He further stated: “Within those confines we will try to make sure that we don’t just transfer revenue from the U.S. to foreign firms.” BIS has not released any official guidance announcing any specific criteria that would need to be met in order to obtain a license.
U.S. and non-U.S. companies dealing in items subject to the EAR should be aware that Huawei is still on the Entity List and remains subject to broad export licensing requirements. The Temporary General License authorizes certain limited exports to Huawei until August 19, 2019, and could signal the types of activities that would be viewed favorably in a license request. For activities outside the scope of the Temporary General License, exporters may consider submitting license applications for exports to Huawei or its supply chain where they believe the U.S. government would not have national security concerns.
On June 5, 2019, the Department of Commerce Bureau of Industry and Security (BIS) amended an important license exception which generally permitted the temporary sojourn of civil aircraft and vessels to Cuba. Specifically, BIS eliminated the license exception for use by non-commercial aircraft and passenger and recreational vessels sailing to Cuba. BIS also amended its licensing policy for such aircraft and vessels establishing a general policy of denial. On the same day, the Department of the Treasury eliminated its authorization for group people-to-people educational travel to Cuba.
On May 16, 2019, the Bureau of Industry and Security (BIS) of the U.S. Department of Commerce added Huawei Technologies Co., Ltd. (Huawei) and sixty-eight of its non-U.S. affiliates to the Entity List, thereby prohibiting the export or transfer of U.S. commercial and dual-use goods, software and technology to those companies without a license. Non-U.S. goods or software with more than “de minimis” U.S. content are also subject to the restrictions.
On April 8, 2019, the United States Trade Representative (USTR) proposed imposing tariffs on $11.2 billion worth of products from the European Union (EU). USTR took this action in connection with an over decade long battle between the EU and the U.S. before the World Trade Organization (WTO) over mutual claims of illegal government subsidies to Airbus and its American rival, Boeing. In May 2018, the WTO Appellate Body upheld a panel finding that the EU failed to eliminate certain subsidies previously found to be WTO inconsistent, authorizing the U.S. to seek retaliatory tariffs on EU goods. USTR has estimated that the EU subsidies to Airbus have resulted in harm of $11 billion in trade annually to the U.S. This figure is subject to review by a WTO arbitrator who will determine the level of countermeasures to be authorized in the case. This report is expected to be issued this summer.
On November 2, 2018, the Department of Treasury’s Office of Foreign Assets Control (“OFAC”) issued a final rule effective Monday, November 5, 2018 that amends the Iranian Transactions and Sanctions Regulations and reinstates sanctions on Iran that had been suspended during implementation of the Joint Comprehensive Plan of Action (“JCPOA”). On May 8 of this year, the Trump Administration had announced that the United States would withdraw from the JCPOA, but provided for 90-day and 180-day wind-down periods for specified activities involving Iran.
The 90-day wind down period ended effective August 6, 2018, and the U.S. government took steps to re-implement sanctions via Executive Order 13846. This included the application of secondary sanctions to the purchase or acquisition of U.S. dollar banknotes by the Government of Iran, certain trade in gold or precious metals, certain trade in graphite, raw or semi-finished metals such as aluminum, steel, coal and software for integrating industrial processes, transactions relating to Iranian rials, transactions relating to issuance of Iranian sovereign debt, and sanctions relating to Iran’s automotive sector. (See our previous post here).
The latest announcement addresses the end of the 180-day wind down period and implements certain additional aspects of Executive Order 13846.
- The amendments include deleting the “EO 13599 List” of individuals and entities who were removed from the SDN List pursuant to the JCPOA, but still were considered “Government of Iran” parties or Iranian financial institutions subject to blocking by U.S. persons pursuant to EO 13599. The Federal Register notice states that OFAC will relist “as appropriate” certain individuals and entities who were on the EO 13599 List. It is therefore unclear at this time whether all persons who were on the EO 13599 List will be re-added to the SDN List.
- The Iranian Transactions and Sanctions Regulations will authorize sanctions against a person upon a determination that:
- On or after August 7, 2018, the person has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, the purchase or acquisition of U.S. bank notes or precious metals by the Government of Iran; or
- On or after November 5, 2018, the person has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, the National Iranian Oil Company (NIOC), Naftiran Intertrade Company (NICO), or the Central Bank of Iran.
- OFAC amended a pre-existing general license allowing U.S. persons to sell real property in Iran provided it was acquired before the individual became a US person or was inherited from persons in Iran. The general license has been expanded to include personal property subject to the same conditions.
During a telecom briefing on Friday, Secretary of State Michael Pompeo mentioned that the administration decided to grant “temporary allotments” to eight jurisdictions to continue purchasing Iranian oil. Some reports indicate that South Korea, Japan, India, and Turkey are among the countries receiving such waiver. Although Mr. Pompeo did not say how long the waivers will be in place, he mentioned that the purpose of the waivers is to give countries a few “weeks longer to wind down.”
We expect that the actual re-designations of persons and entities to the SDN List will be published on Monday along with guidance and FAQs. We will follow up next week with further details.
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.
On June 16, 2017, President Trump issued a National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, which begins a process to alter some aspects of U.S. policy towards Cuba, but retains much of the Obama Administration’s reforms to travel, business and trade with Cuba.
The signaled changes focus on limiting business with companies related to Cuba’s military, intelligence and security apparatus and tightening aspects of the administration of existing travel allowances. Existing business and travel arrangements affected by the changes may be grandfathered.
There are no immediate changes to U.S. sanctions or export control policy. The memorandum sets the framework for the Office of Foreign Assets Control (OFAC), Bureau of Industry and Security (BIS) and other agencies to consider regulatory changes in the coming months.