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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.

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On June 15, 2017, the Senate passed the Countering Iran’s Destabilizing Activities Act of 2017 (S.722) by a vote of 98-2.  Included with the bill is a significant Russia sanctions amendment, the Countering Russian Influence in Europe and Eurasia Act of 2017, which would expand U.S. primary and secondary sanctions for Russia and limit the President’s ability to ease existing sanctions.

The bill represents a bi-partisan compromise among key legislators to advance Iran and Russia sanctions measures together. The House of Representatives is now beginning to consider its own Iran and Russia sanctions measure, with the potential for final legislation this fall. Continue reading →

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Questions continue to swirl around the future of U.S.-Cuba policy as recent reports of a Trump Administration plan to strengthen Cuba sanctions surfaced over the weekend. These reports should be assessed against the backdrop of an increased Congressional effort to end the embargo on Cuba.

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On April 18, 2017, President Trump signed the “Presidential Executive Order on Buy American and Hire American.” While there is no immediate impact, the Executive Order (“EO”) sets the stage for executive agencies to perform reviews of compliance with Buy American laws and could potentially lead to changes in how these laws are implemented.  Note that although there is a “Buy American Act” the term “Buy American” is also used as a generic term to describe a variety of laws and regulations that impose domestic content requirements.

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On April 19, 2017, the Department of Commerce (DOC), through its Bureau of Industry and Security, self-initiated an investigation into the effects that steel imports may be having on U.S. national security interests. The investigation was initiated under a rarely-used statutory authority, Section 232 of the Trade Expansion Act 1962 (19 U.S.C. § 1862).

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On 16 March 2017, the European Parliament approved a draft EU regulation intended to ensure that trade in certain minerals and metals from high-risk or warn-torn areas does not fund conflict and human rights abuses. The regulation would apply to trade in tin, tantalum, tungsten and gold which are used in a variety of industries ranging from electronics, automotive, jewelry, aerospace, packaging, construction, lighting, industrial machinery and tooling.

The regulation is expected to come into effect as of 1 January 2021, at which time it would apply to up to 95% of EU imports.  Although this presents a substantial delay in implementation, the scope of impact means that this regulation bears watching and merits advance compliance consideration. Continue reading →

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On January 27, 2017, the Commerce Department’s Bureau of Industry and Security (BIS) recently made two significant changes to the Export Administration Regulations (EAR) concerning India that will facilitate the export of controlled items to that country.

The regulations reflect a June 7, 2016 joint U.S.-India statement in which the United States recognized India as a Major Defense Partner, laying the ground work for facilitating technology sharing with India on a level commensurate with that of the United States’ closest allies and partners. The two countries reached an understanding under which India would receive license-free access to a wide range of dual-use technologies in conjunction with steps that India committed to take to advance its export control objectives.

Favorable Licensing Policy

BIS has amended section 742.4 and section 742.6 pertaining to controls for purposes of National Security and Regional Stability reasons to state that export, reexport, or transfer items, including “600 series” items, for civil or military end uses in India will be assessed under a general policy of approval. The items can also be for the ultimate end use by the Government of India, for reexport to countries in Country Group A:5, or for return to the United States, so long as such items are not for use in nuclear, missile, or chemical or biological weapons activities. The rule does not amend any licensing policies with respect to Missile Technology items.

Companies seeing to export controlled items to India can now expect that their license applications will be reviewed more favorably and will routinely receive approvals for transactions as opposed to the “case-by-case” approach previously followed by BIS in reviewing license applications for India, which involved more rigorous scrutiny and possible denials of license applications. Continue reading →

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Policy makers in Europe continue to explore responses to the Panama Papers revelations and recent terrorist attacks. On 28 February, European law makers approved important amendments to the EU’s Anti-Money Laundering (AML) Directive, 2015/849 (the “Directive”) that would implement new rules to combat money-laundering, terrorism financing and tax evasion.

The amendments would include:

  • Expansion of AML obligations to trusts and certain virtual currency platforms;
  • Public access to registers of beneficial ownership information; and
  • Lower value thresholds for regulation of pre-paid instruments.

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“We will follow two simple rules: buy American and hire American.” While world leaders are pondering what these words from President Trump’s Inaugural Address mean for international trade, a different question looms for U.S. Government contractors—what is on the horizon as far as the Buy American Act and similar protectionist regulations?

  • Any new infrastructure spending bill that provides funding for state and local public works projects likely will incorporate domestic preference requirements similar to those incorporated in 2009’s American Recovery and Reinvestment Act.
  • The process for issuing new waivers when a particular item is not available in commercial quantities from U.S. producers may be further restricted, and some existing waivers could be cancelled.
  • Even if no new rules are implemented, contractors should be prepared for increased enforcement.

The Buy American Act, Balance of Payments Program, Cargo Preference Act, Berry Amendment and similar regulations all require U.S. Government contractors to exclusively use, or give a preference to, U.S. suppliers. Further, the Trade Agreements Act prohibits U.S. Government purchases of products from many foreign countries. Continue reading →

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OFAC has issued a new General License to address problems raised by the sanctioning of the Federal Security Services (FSB).  This adjustment serves to authorize permits by the FSB needed for certain commercial transactions and is a limited exception to the sanctions listing of the FSB on December 28, 2016 in connection with Russia’s alleged interference in the U.S. presidential election.

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