CBP has revised its informed compliance publication regarding Reasonable Care to include a section regarding forced labor. Additionally, seafood and apparel industries appear to be recent targets of CBP Requests for Information CF28’s regarding forced labor in their supply chain. Although admittedly, the CF28s may also be as a consequence of the passage of the Countering America’s Adversaries through Sanctions Act (CAASA). P.L. 115-44. CAASA created a presumption that “significant goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part by the labor of North Korean nationals or citizens” are forced labor goods and prohibited from entry into the United States.

The seven fact sheets available on CBP’s website are:

Companies should evaluate their supply chains to insure that they are not at risk. For more information please contact Jeff Snyder or Frances Hadfield.

On November 29th, the Department of Justice unveiled a revised Foreign Corrupt Practices Act (FCPA) Enforcement policy that provides significant incentives for corporations to voluntarily self-disclose potential FCPA violations.

The new policy makes permanent many aspects of a pilot program started under the Obama Administration with one significant enhancement: a presumption of a corporate declination of criminal charges if a company voluntarily self-discloses misconduct and cooperates early and fully.

For more information, please see Crowell’s Client Alert.

For more information, contact: Kelly Currie, Stephen Byers, Paul Rosen, Alan W.H. Gourley, Cari Stinebower, Jared Engelking

On November 16, Lithuania became the third EU Member State to pass a law against human rights abuses in Russia in the name of Sergei Magnitsky, a lawyer who died in Russian jail in 2009 after exposing fraud by Russian officials. Such a law was initially enacted in the United States in 2012 as the Sergei Magnitsky Rule of Law Accountability Act, imposing travel and banking restrictions on Russian officials implicated in human rights abuses. Since then, the U.K., Estonia, and Canada have passed similar laws.

The Lithuanian Magnitsky Act, which members of the Lithuanian parliament approved unanimously, will enter into force in January and will include a list of approximately thirty Russian individuals generally also subject to the U.S. and Canadian acts. By comparison, implementation of the U.K. and Estonian equivalents, enacted in February and May of this year, respectively, appears to have been more gradual. However, there has also long been a source of support within the European Parliament for EU-wide measures. In fact, on November 30, parliament’s recommendation on the subject from April 2, 2014, was published. It recommended visa restrictions and asset freezing for 32 Russian officials who were part of the Sergei Magnitsky case.

Affected Russian interests are lobbying in the EU and U.S. to repeal or prevent Magnitsky Acts, arguing that such measures violate the principle of presumption of innocence that should be accorded to targeted Russian individuals. On the other hand, Magnitsky’s former employer, U.S. businessman turned human rights activist Bill Browder, leads the push for the British and Estonian governments to apply their measures in full and for other EU Member States to follow suit in implementing their own Magnitsky Acts.

Against the background of the continued imposition of sanctions on Russia for violating the territorial integrity of Ukraine and the scrutiny being brought to bear on allegations of Russian interference in the U.K. Brexit referendum and the recent elections in France and Germany, Browder’s campaign appears to be gaining momentum. As further evidence of fraud and abuses by certain Russian officials may still be revealed, other EU Member States and perhaps the EU itself may yet implement Magnitsky Acts.

For more information, contact: Jeff Snyder, Charles De Jager

On November 9, OFAC published two new Frequently Asked Questions (FAQs) with regard to Venezuela-related sanctions pursuant to Executive Order 13808 (E.O.), issued on August 24. The E.O. prohibits U.S. persons from dealing in new debt, bonds and securities with the Government of Venezuela and Petróleos de Venezuela (PDVSA).

FAQ 547 addresses whether U.S. persons can participate in meetings about restructuring outstanding debt by the Venezuelan Government or PDVSA. OFAC explains that provided that no SDNs are involved in any restructuring efforts, General License 3 of the E.O. authorizes U.S. persons to engage in transactions related to certain bonds specified in the Annex to General License 3. Notably, General License 3 does not authorize transactions involving new debt of the Government of Venezuela—for a maturity of more than 30 days—or to PDVSA—for a maturity of more than 90 days. Therefore, while OFAC appears to allow U.S. persons to participate in restructuring negotiations covered by General License 3, it appears that any restructuring agreement resulting from such negotiations would yet require specific government authorization. OFAC defines “new debt” broadly, including, for example, extensions of credit.

FAQ 548 relates to whether “PDVSA” includes all PDVSA subsidiaries for purposes of the E.O. The FAQ clarifies that the E.O. extends to all subsidiaries of PDVSA unless authorized by OFAC. In particular, General License 2 authorizes transactions with CITGO Holding, Inc., and any of its subsidiaries. CITGO Holding, Inc. is a subsidiary of PDVSA and has operations in the United States.

For more details on the E.O. issued on August 24, see Crowell’s Client Alert.

For more information, contact: Cari Stinebower, Jeff Snyder, Dj Wolff, Eduardo Mathison

Office of Foreign Assets Control (OFAC)

  • On November 17, American Express Company (AMEX) agreed to pay $204,277 to settle its potential civil liability for 1,818 alleged violations of the Cuban Assets Control Regulations (CACR). The violations occurred between 2009 and 2014, at which time a wholly-owned subsidiary of AMEX, Alpha Card Group, owned 50 percent of BCC Corporate SA (BCCC), a Belgium-based credit card issuer and corporate service company. Alpha Card and BCCC failed to implement controls to prevent its credit cards from being used in Cuba. AMEX and BCCC voluntarily self-disclosed the violations. OFAC determined this was a non-egregious case.
    • Aggravating factors included:
      • Personnel within both Alpha Card and BCCC had reason to know of the conduct that led to the apparent violations.
      • Despite Alpha Card’s business model prior to its acquisition of BCCC in March 2009, in which it dealt exclusively with AMEX-related products (and therefore had insight into all the parties involved in any transactions throughout the network), none of the companies involved appear to have appreciated the possibility or risk that BCCC-issued credit cards could be used in Cuba, and the company should have taken steps to assess the level of sanctions risk, and related controls, for BCCC-issued credit cards.
      • The apparent violations resulted in harm to U.S. sanctions program objectives at the time they occurred.
      • AMEX is a large and commercially sophisticated financial institution.
      • During OFAC’s investigation, AMEX and BCCC provided certain information on multiple occasions that was verifiably inaccurate or incomplete, including material omissions.
    • Mitigating factors included:
      • BCCC has not received a penalty notice or Finding of Violation from OFAC in the five years preceding the earliest date of the transactions giving rise to the apparent violations.
      • Upon discovering the apparent violations, AMEX took swift and appropriate remedial action.
      • AMEX and BCCC voluntarily self-disclosed the apparent violations to OFAC.
      • BCCC signed a statute of limitations tolling agreement and tolling agreement extensions.
  • On November 28, OFAC issued a Finding of Violation to Dominica Maritime Registry, Inc. (DMRI) of Fairhaven, Massachusetts, for a violation of the Iranian Transactions and Sanctions Regulations (ITSR). On July 4, 2015, the company executed a binding Memorandum of Understanding, which OFAC determined to be a contingent contract, with the National Iranian Tanker Company (NITC), an entity of the Government of Iran. The company did not voluntarily disclose the violation. OFAC ruled it a non-egregious case.
    • Aggravating Factors:
      •  DMRI failed to exercise a minimal degree of caution or care by executing a contingent contract with an entity it knew was listed on the SDN List at the time of the violation.
      • DMRI executives had actual knowledge of, and actively participated in, the conduct the led to the violation, and were aware of NITC’s status when DMRI executed the contingent contract.
      • DMRI undermined the policy objectives of the ITSR by dealing in the blocked property of a Government of Iran entity identified on the SDN List.
    • Mitigating factors included:
      • DMRI had not received a penalty notice or Finding of Violation from OFAC in the five years preceding the date of the transaction giving rise to the violation.
      • DMRI is a small company.
      • DMRI took remedial actions, including engaging trade counsel to assist it in understanding its obligations under U.S. sanctions laws, updating its OFAC compliance procedures, and undertaking a process to establish an OFAC compliance training program for all employees.
    • OFAC determined a Finding of Violation was the appropriate enforcement response because DRMI is a small company, the scope of the contract at issue was limited, and there was no performance on the contract.

Bureau of Industry and Security (BIS)

  • On November 20, BIS announced a Settlement Agreement with Pilot Air Freight, LLC (a.k.a. Pilot Air Freight Corp.) of Lima, Pennsylvania, to settle potential civil liability for one alleged violation of the Export Administration Regulations (EAR). In February 2015, Pilot allegedly aided or abetted an attempted unlicensed exported to IKAN Engineering Services in Pakistan, an entity on BIS’ Entity List. The item was an ultrasonic mill cutting machine controlled for Anti-Terrorism reasons, and valued at more than $250,000.
    • Pilot was assessed a civil penalty of $175,000.
    • The company agreed to complete two external audits of its export controls compliance program.

For more information, contact: Jeff Snyder, Edward Goetz

On November 5 – 14, President Trump made his first official visit to Asia, with stops in Japan, South Korea, China, Vietnam, and the Philippines. As part of his tour, President Trump attended international summits including the Asia-Pacific Economic Cooperation (APEC) forum, the Association of Southeast Asian Nations (ASEAN) meeting, and the East Asia Summit (EAS). The two-week trip was one of the longest presidential visits to Asia in recent history. Although deemed “tremendously successful” by the President, media assessments of the trip were more critical, noting that the President came away with no real change in trading partners’ policies or practices.

The president began his trip by meeting with the leaders of Japan and South Korea. Trump reassured Japan’s Prime Minister Shinzo Abe and South Korea’s President Moon Jae-In of the U.S. commitment to their respective countries with regards North Korea, while strengthening trilateral diplomacy between the U.S., Japan, and South Korea in order to apply international pressure on North Korean over its nuclear weapons program. In Japan, the White House touted an MOU between the U.S. Trade and Development Agency (USTDA) and Japan’s Ministry of Economy, Trade, and Industry, who will collaborate on public procurement best practices to promote “quality infrastructure” development in emerging economies throughout Southeast Asia. While the agreement ostensibly deepens the U.S.-Japan economic ties, it is also squarely aimed at countering the influence of China’s “One Belt, One Road” initiative and is part of the broader Indo-Pacific strategy that is emerging as the Trump administration’s foreign policy framework for the region.

President Trump then visited China where he was accompanied by a business delegation of 29 corporate executives to unveil investment deals potentially worth $250 billion. Industry expressed concern that the administration was more focused on this figure than on substantive policies that pose challenges for U.S. companies. After the President’s visit, China unilaterally announced that it would take steps in accordance with their own timeline to reform its financial sector, including raising foreign ownership limits in joint-ventured involved in the futures, securities and funds markets. Industry remains cautious with the announcement, and is looking forward to seeing the details in the draft rules.

President Trump continued his tour by addressing the APEC CEO Summit in Da Nang, Vietnam on November 10. Almost half of the APEC member economies are still in talks to push forward the Trans Pacific Partnership (TPP) and were in discussions on the sidelines of the APEC meetings, from which the U.S. was notably absent. Trump’s speech in Da Nang focused on the administration’s Indo-Pacific strategy, noting that the United States will make “bilateral trade deals with any Indo-Pacific nation that abides by the principles of fair and reciprocal trade.” President Xi had the final word at the APEC CEO Summit, a slot traditionally held by the U.S. President. President Xi laid out China’s vision for the region, reiterating many of the themes he focused on at the recent 19th National Party Congress, which included innovation, higher quality of growth, and the “One Belt, One Road” initiative to support regional infrastructure development. In Vietnam, President Trump also unveiled $12 billion in commercial deals, including the purchase of U.S. aircraft and MOUs on LNG and transportation.

On the final leg of his trip, President Trump met with Philippine President Rodrigo Duterte and nine leaders of the Association of Southeast Asian Nations (ASEAN). Security concerns regarding the North Korean threat were central to their discussions.

For more information, contact: Robert Holleyman, Tracy Huang, Cherie Walterman

On November 8, 2017, Senator John Cornyn (R-Tex), the second-ranking Republican in the Senate, Senator Dianne Feinstein (D-Cal) and Richard Burr (R-NC) jointly introduced legislation (S. 2098) to amend the Defense Production Act provision, 50 U.S.C. § 4565, that provides for review of “covered transactions” by the inter-agency Committee on Foreign Investment in the United States (CFIUS). The bill, entitled the “Foreign Investment Risk Review Modernization Act” (FIRRMA), does not go as far as many had expected in expanding the jurisdiction of CFIUS, but it does address some of the issues currently impeding and delaying CFIUS review of foreign investment.

Below are some key changes included in FIRRMA:

  1. Mandatory & Voluntary Declarations: The CFIUS review process has long been largely a voluntary system. While the definition of “covered transaction” broadly captures any acquisition that would result in foreign control of an existing U.S. business, a party likely would not submit for review transactions that have little nexus to national security. Increasingly, where CFIUS learns of a transaction and seeks more information, it can reach out to the parties and “encourage” a notice, or at least responses to specific questions, backed by the implicit threat that it can rely on its statutory authority to initiate its own investigation.
    The proposed legislation would alter this calculus and provide new tools for CFIUS to monitor foreign investment transactions that may present national security concerns. Specifically, it introduces the use of abbreviated (up to 5-page) “declarations” that would provide “basic information” about the transaction. CFIUS could review and conclude a case based simply upon that declaration or invite the party to submit a formal notice. Parties wanting certainty currently need to prepare and submit a complete notice even for cases marginally implicating national security concerns.

    Retreating somewhat from the current voluntary approach, certain transactions will require a “mandatory declaration” meaning that CFIUS would get at least some notice (45 days prior to closing) of any covered transaction:

    • Of at least a 25 percent interest in a U.S. business by a foreign person that is itself at least 25 percent owned by a foreign government.
    • Meeting criteria to be established by CFIUS in regulations considering various factors such as the technologies, economic sector involved and other national security concerns.

    Failure to comply with the mandatory declaration provisions may subject the parties to penalties. A party subject to the mandatory declaration provision can elect to provide a voluntary written notice instead, but must do submit that notice at least 90 days prior to closing the transaction.

    In addition, the proposed legislation charges CFIUS with a duty to monitor non-notified or non-declared transactions – a practice that CFIUS already employs.

  2. Extended Timeline & Resources: For the past few years, as notices have increased, CFIUS has struggled to keep up, with more notices extending beyond the 30-day initial review and a number, particularly involving China, having been withdrawn and refiled to restart the clock. FIRRMA acknowledges the time pressures under the current statute and proposes some limited steps to address:
    • the time for completion of the initial review is lengthened to 45 days; and
    • the subsequent 45-day investigation period may be extended for an additional 30 days in “extraordinary circumstances.”

    FIRRMA also provides for additional staffing and special hiring authority. And, for the first time, FIRRMA would introduce a Filing Fee of 1% of the value of the covered transaction (capped at $300,000) on written notices submitted – but apparently not for the voluntary or mandatory declarations. Those funds would remain available to CFIUS and its member agencies for accomplishing its mission.

  3. Treatment of Certain Countries: Given the national security issues addressed in the CFIUS process not all countries are treated equally. FIRRMA would expressly acknowledge this de factodiscrimination in two respects. First, it adopts the concept of “countries of special concern,” and although diplomatically excusing CFIUS from maintaining a list of such countries, this concept is well understood to include China. One way this concept is employed is by broadening the list of “critical technologies” that must be evaluated to include those emerging technologies that would increase the U.S.’s technological advantage over “countries of special concern.” FIRRMA would also encourage the President initiate multilateral efforts to address the aggressive industrial policies of such countries. A commonly expressed concern, acknowledged in Senator Cornyn’s press release, is the perception that China is degrading the United States’ military edge by acquiring and investing in U.S. companies.On the other side of the equation, FIRRMA authorizes CFIUS to exempt from the definition of “covered transaction” certain transactions from countries to be identified. How CFIUS would effectively implement this authority remains to be seen but this provision provides hope that at least some transactions from some close allies (FIRRMA suggests allies with effective safeguarding and foreign investment review procedures be considered) might be relieved from the increasingly onerous CFIUS review process.
  4. Judicial Review: The existing statute provides that the actions and findings of the President shall not be subject to judicial review. Nonetheless, in 2014, in the Ralls Corporation case, the United States Court of Appeals for the District of Columbia read that language to apply only to the final actions the President takes to suspend or prohibit a covered transaction, and held that the statutory language did not bar a company from bringing a judicial challenge under its constitutionally protected due process rights. Based on Ralls’ state law property interest in the acquired companies and their assets, the court found that it was entitled to notice of and access to unclassified evidence on which the President relied, and an opportunity to rebut that evidence (prior to the President reaching a non-justiciable and non-judicially reviewable determination). In reaction to the Ralls case, FIRRMA would codify a judicial review process, restating that actions and findings of the President or the President’s designee are not subject to judicial review, but expressly allowing for judicial review of Committee actions and findings under limited circumstances; i.e., where the parties submitted a joint voluntary notice or a declaration initiating the review, or where the Committee determines that such a notice or declaration was not required.

FIRRMA has received bipartisan support in Congress and has support of at least some Administration officials. But there are other bills and concepts out there and a Congressionally-mandated Government Accountability Office report in the works. Many of the other proposals seek to expand CFIUS review (or add a parallel review process) focused on economic security. How these competing interests will play out remains to be seen as we begin the New Year.

The fifth round of NAFTA renegotiation, held for the first time without participation by the NAFTA trade ministers, took place in Mexico City from November 17-21. The negotiators made progress at the technical level on some NAFTA chapters, including on digital trade, sanitary and phytosanitary measures (SPS), customs, and regulatory cooperation.

Little progress was made on the most politically sensitive issues. At the close of the round, U.S. Trade Representative (USTR), Robert Lighthizer issued a statement outlining his concerns that the U.S. has “seen no evidence that Canada or Mexico are willing to seriously engage on provisions that will lead to a rebalanced agreement.”

Canada and Mexico did not submit substantive responses to several contentious U.S. proposals, in particular on rules of origin for automobiles. Neither party made a counteroffer to the U.S. proposal to increase the regional content requirement to 85 percent and establish a national content requirement of 50 percent for U.S.-origin content. Canada and Mexico are holding back on making a response—at least for the moment—in hopes that USTR will give in to pressure by U.S. industry and Congress to withdraw or soften its proposal. The two parties did ask for clarification of the U.S. analysis used to formulate the regional value and local content proposal.

Meanwhile, the Trump administration continues to signal that if deadlock on these issues continues through early next year, the President may announce an intention to withdraw the U.S. from the agreement, triggering a 180-day waiting period mandated by Article 2205 of NAFTA. The threat of such a move could create negotiating leverage, particularly with Mexico, though triggering withdrawal would be strongly opposed by agricultural groups, most U.S. industries, as well as likely a majority of Congress. U.S. agriculture groups have been vocal in recent weeks about their opposition to the Trump administration threatening withdrawal from the agreement, noting that it will cause enormous economic disruption in agriculture-dependent states that are important suppliers to Canada and Mexico.

A set of updated negotiating objectives released by USTR on November 17 reflect many of the U.S. proposals thus far, but also leave enough room for the U.S. to negotiate key outcomes. They include the following:

  • Sunset clause: An updated objective is to “provide a mechanism for ensuring that the Parties assess the benefits of the agreement on a periodic basis.” This is aligned with the U.S. proposal to automatically terminate NAFTA after five years unless renewed. Notably, Mexico proposed during the fifth round that NAFTA parties conduct a review of the agreement every five years—without the threat of automatic termination—which would also be aligned with the updated U.S. objective.
  • Investor-State Dispute Settlement: The updated U.S. objective is to seek “meaningful procedures for resolving investment disputes, while ensuring the protection of U.S. sovereignty and the maintenance of strong U.S. domestic industries.” While the objective reflects USTR Lighthizer’s skepticism regarding the benefits of ISDS, it does not necessarily commit the Administration to its proposal to establish an “opt-in” ISDS system.
  • Digital Trade: A new U.S. objective is to “establish rules that limit non-IPR civil liability of online platforms for third party content, subject to NAFTA countries’ rights to adopt non-discriminatory measures for legitimate public policy objectives.” The U.S. at the latest round proposed including legal protections against civil liability for 3rd party online platforms, aimed at protecting major U.S. Internet companies such as Google or Facebook.
  • Intellectual Property: The updated U.S. objective adds language to include “as an appropriate, exceptions and limitations” to protections for copyright and related rights as a part of the agreement. The new objective could suggest that the U.S. will continue to favor inclusion of copyright “safe harbor” limitations for Internet providers and intermediaries consistent with a series of recent U.S. trade agreements, and new provisions recognizing “balance” in the area of copyright similar to provisions on “exceptions and limitations” as first negotiated in the TPP.

The next formal negotiating round is set for January 23-28 in Montreal, Canada, though NAFTA negotiators will also meet in December to work on technical issues. The significant break between rounds will permit the Trump administration and Congress to focus on tax reform through the end of the year, the success or failure of which could have an impact on the political pressure to conclude a favorable NAFTA renegotiation in early 2018.

NAFTA negotiators have given themselves until March 31, 2018, to seek agreement on updating the regional trade agreement.

For more information, contact: Robert Holleyman, Melissa Morris, Evan Yu

Yesterday, President Trump concluded the Asia-Pacific Economic Cooperation (APEC) Leaders Meeting in Da Nang, Viet Nam – his penultimate stop on the longest Asia tour for a U.S. President in decades.  With the United States no longer a part of the Trans-Pacific Partnership or a member of the 16-nation Regional Comprehensive Economic Partnership (RCEP) – and with other multilateral groupings reducing or limiting interaction with the private sector – APEC has emerged as the leading Asia-Pacific trade liberalizing platform for businesses to engage with 21 governments that collectively comprise 3 billion consumers and close to 60 percent of global GDP.

Indeed, APEC has established a series of public-private mechanisms to address critical business challenges including:

  • Reducing barriers to digital tradeAPEC economies developed a framework for facilitating cross-border e-commerce and increased participation in the APEC Cross-Border Privacy Rules (CBPR) system increasing consumer trust and privacy protections and facilitating digital trade.
  • Removing regulatory barriers to biopharmaceutical exports: APEC is driving regulatory convergence to international standards and guidelines, including through training delivered by a network of APEC Regulatory Science Centers of Excellence (CoE) launched this year.
  • Eliminating non-tariff barriers: APEC’s public-private initiative on food safety is streamlining non-tariff barriers in the food and agriculture sector such as unnecessary and non-science based export certificates.
  • Leveling the playing field for medical technology and biopharmaceutical exporters:  APEC’s ethical business practices initiative is developing the world’s first guidance to eliminate unethical practices for third party intermediaries, such as distributors, and has expanded high-standard ethical principles across the Asia Pacific to more than 19,000 enterprises.
  • Expanding trade in chemicals and chemical products: APEC is engaging governments and industry to align customs procedures with regards to environmental certifications and develop alternative solutions to product bans and taxes.

The APEC Ministerial statement may be found here.

The APEC Leaders statement may be found here.

Planning is already underway for the 2018 APEC host year with the Informal Senior Officials Meeting to take place December 5 – 6.  Companies that engage have the ability to work alongside governments to help shape the policy and regulatory environment for Asia-Pacific.  The alternative is to sit on the sidelines as other governments bend the curve of commercial engagement in their favor.

C&M International, led by former Deputy USTR Ambassador Robert Holleyman, is recognized as a leader in facilitating private sector engagement in APEC and helping companies develop strategic partnerships and initiatives to address challenges and support business goals.

The 11 remaining countries in the Trans Pacific Partnership (the TPP11) are hoping to announce progress on a path forward to proceed without the United States on November 11 on the sidelines of the Asia-Pacific Economic Cooperation (APEC) Leaders Meeting in Da Nang, Vietnam.

TPP11 trade ministers met November 8-9 to attempt to reach consensus, with Japan taking an active coordinating role. Trade officials from the TPP11 met in Urayasu, Japan, the week of October 31 to discuss specific rules and commitments to “suspend” from the agreement given the lack of U.S. participation and have reportedly exchanged proposals to suspend rules in many areas, including on intellectual property, investor-state dispute settlement, labor and the environment, as well as in several market access areas. It is likely that many of the commitments insisted on by the United States during the negotiations are among those under discussion for suspension. Any rule suspensions could be accompanied by mechanisms to reactivate the rules if and when the United States eventually rejoins the agreement.

Though the United States is not a party to the agreement, multinational companies with investments in the remaining TPP11 countries could still see benefits from TPP’s commitments on digital trade, regulatory cooperation, state-owned enterprises, and intellectual property should the agreement be implemented, though much will depend on which provisions make it into the ultimate agreement. An announcement by the TPP11 later this week on the margins of the APEC Leaders Meeting may therefore have commercially meaningful impacts for companies.

For more information, contact: Robert Holleyman, Evan Yu