In May of 2019, the US Department of Commerce’s Bureau of Industry and Security (“BIS”) added Chinese telecommunications giant Huawei Technologies Co. Ltd. (“Huawei”) and sixty-eight of its affiliated companies to BIS’s Entity List. These designations prohibit anyone, anywhere in the world from exporting, re-exporting or making an in-country transfer of “items subject to the EAR” to the listed Huawei Companies (“Items subject to the EAR” generally consist of US-origin commodities, software or technology, items produced outside the US which include qualifying US-origin content and items that are physically present in or transiting through the US). Shortly after making these designations, BIS issued a Temporary General License which authorized limited ongoing transactions with Huawei to support existing networks and Huawei equipment and handsets.
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May Trade Law Update: Presidential Actions
USTR Publishes Notice on Increase in Section 301 List 3 Tariff Rate
On May 8, 2019, USTR released its federal register notice on the tariff increase for the third tranche (List 3) Section 301 tariffs on China. The duty rate on the estimated $200 billion worth of Chinese products will increase from 10% to 25% effective 12:01am ET on Friday, May 10, 2019. The notice also announces that an exclusion process will be instituted for these products in a separate notice.
The rate increase to 25% means that entries of goods
- entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time on May 10, 2019, and
- exported to the United States on or after May 10, 2019 will now be subject to an additional tariff of 25%. Entries must be subject to both qualifiers-meaning that if a shipment has been exported prior to May 10, 2019 it will still be subject to the 10% duty rate. However, if the shipment is exported after 12:01am ET on May 10 the 25% duty rate will apply. To see our full post, click here.
BIS Issues Temporary General License on Certain Existing Huawei Products
Today, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) has published a Temporary General License for specific, limited engagement in transactions with Huawei Technologies Co., Ltd. and its sixty-eight non-U.S. affiliates which were added to the BIS Entity List effective May 16, 2019. (See our previous post here). The license is intended to allow Huawei and its affiliates to work temporarily with U.S. companies to continue to support current customers, headsets and to release software updates for existing hardware.
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Huawei Targeted by Entity List Designation and Executive Order
On Wednesday, May 15, 2019, the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) announced in a press release that it would add Huawei Technologies Co. Ltd. (“Huawei”) and additional Huawei affiliates to BIS’s Entity List. BIS’s initial press release stated that this designation would become effective upon its publication in the Federal Register (which is scheduled for May 21, 2019). However, a copy of the designation action posted in the Federal Register Public Inspection List on Thursday, May 16, 2019 stated that the designation would take effect on its May 16 Public Inspection List display date. BIS explained that it is making this designation because it determined that “[T]here is reasonable cause to believe that Huawei has been involved in activities contrary to the national security or foreign policy interests of the United States.” Among other reasons, BIS specifically cited Huawei’s Superseding Indictment in the US District Court for the Eastern District of New York for violating US sanctions against Iran.
OFAC Lifts Sanctions on EN+, Rusal and EuroSibEnergo
On Sunday, January 27, 2019, the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) announced the lifting of sanctions imposed on En+ Group plc (“En+”), UC Rusal plc (“Rusal”) and JSC EuroSibEnergo (“ESE”). As previously reported here, this announcement follows the Administration’s notification submitted to Congress on December 19, 2018.
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Venezuela Files Complaint Challenging U.S. Sanctions at the WTO
Venezuela recently initiated a World Trade Organization (“WTO”) complaint against U.S. sanctions, claiming that the United States has “imposed certain coercive trade-restrictive measures on the Bolivarian Republic of Venezuela in the context of attempts to isolate Venezuela economically.” The same day, the U.S. imposed additional sanctions on Venezuelan nationals and entities allegedly engaging in corrupt
OFAC Announces New Sanctions Related to Venezuela
Today, January 8, 2019, the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) added approximately 30 individuals and entities to its Specially Designated Nationals and Blocked Persons List (the “SDN List”) due to their engagement in corrupt currency exchange transactions which enriched themselves by at least $2.4 billion at the expense of Venezuela’s citizens. These sanctioned persons include two former Venezuelan National Treasurers – Claudia Patricia Diaz Guillen (“Diaz”) and Alejandro Jose Andrade Cedeno (“Andrade”) – who authorized a Venezuelan businessman named Raul Antonio Gorrin Belisario (“Gorrin”) to convert Venezuelan bolivars into U.S. dollars at highly favorable exchange rates at currency exchange houses under his control. Gorrin then shared the resulting excess currency conversion profits with Diaz and Andrade by engaging in deceptive practices to purchase a wide variety of properties, aircraft and other luxury assets on behalf of Diaz, Andrade, their family members and their other business associates. The Treasury Department published a diagram which explains the scheme in further detail.
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OFAC Announces Multiple Changes to Russia Related Sanctions
On December 19, 2018, the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) and the U.S. State Department took multiple sanctions actions related to Russia:
Proposed Delisting of En+ Group, UC Rusal and ESE
OFAC notified Congress of its intent to remove En+ Group plc (“En+ Group”), UC Rusal plc (“UC Rusal”) and JSC EuroSibEnergo (“ESE”) from its Specially Designated Nationals and Blocked Persons List (the “SDN List”) within thirty (30) days from December 19, 2018. OFAC first added these companies to the SDN List in April 2018 when it imposed sanctions on Oleg Deripaska due to his status as a senior Russian government official. OFAC added these three companies to the SDN List because Deripaska was the majority owner of En+ Group (which, in turn, was the majority owner of both UC Rusal and ESE). Under OFAC’s 50% ownership rule, these sanctions also extended to any subsidiaries in which En+ Group, UC Rusal or ESE held an ownership interest of 50% or greater.
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OFAC Extends Expiration Date of Certain Ukraine-Related General Licenses by Two Weeks
On December 7, 2018, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) further extended the expiration date of certain Ukraine-related general licenses related to EN+ Group plc (EN+), United Company RUSAL PLC (RUSAL), and GAZ Group (GAZ) as the entities continue discussions with OFAC to potentially effect “significant changes in control of these sanctioned entities.” The new General Licenses 13H (Authorizing Certain Transactions Necessary to Divest or Transfer Debt, Equity, or Other Holdings in Certain Blocked Persons), 14D (Authorizing Certain Activities Necessary to Maintenance or Wind Down of Operations or Existing Contracts with United Company RUSAL PLC), 15C (Authorizing Certain Activities Necessary to Maintenance or Wind Down of Operations or Existing Contracts with GAZ Group), and 16D (Authorizing Certain Activities Necessary to Maintenance or Wind Down of Operations or Existing Contracts with EN+ Group PLC or JSC EuroSibEnergo) supersede their previous versions by extending the expiration date from from January 7, 2019, to January 21, 2019.
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OFAC Extends Expiration Date for EN+, RUSAL, and GAZ Ukraine-related General Licenses
On November 9, 2018, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) extended the expiration date for certain Ukraine-related general licenses related to EN+ Group plc (EN+), United Company RUSAL PLC (RUSAL), and GAZ Group (GAZ). The expiration date of General Licenses 13G (Authorizing Certain Transactions Necessary to Divest or Transfer Debt, Equity, or Other Holdings in Certain Blocked Persons), 14C (Authorizing Certain Activities Necessary to Maintenance or Wind Down of Operations or Existing Contracts with United Company RUSAL PLC), 15B (Authorizing Certain Activities Necessary to Maintenance or Wind Down of Operations or Existing Contracts with GAZ Group), and 16C (Authorizing Certain Activities Necessary to Maintenance or Wind Down of Operations or Existing Contracts with EN+ Group PLC or JSC EuroSibEnergo) was extended from December 12, 2018 to January 7, 2019. U.S. persons participating in transactions or activities authorized by these general licenses should provide a detailed report to OFAC within 10 business days of January 7, 2019 (by January 21, 2019).
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