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Paul E. Amberg

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On November 26, 2019, the US Department of Commerce (“Commerce”) issued a highly anticipated proposed rule with proposed regulations (“Proposed Regulations”) to implement Executive Order 13873, “Securing the Information and Communications Technology and Services Supply Chain” (“Executive Order 13873“).

Executive Order 13873 gives the Secretary of Commerce (“Secretary”) sweeping, unprecedented authority to prevent or modify transactions involving information and communications technology and services (“ICTS”) originating in countries designated as “foreign adversaries” which pose an undue risk to critical infrastructure or the digital economy in the United States, or an unacceptable risk to US national security or the safety of United States persons.  All industries are potentially affected by the Proposed Regulations, whether directly or indirectly, which allow for case-by-case reviews of transactions at the Secretary’s discretion.  Any transaction that is ongoing as of, or was initiated on or after, May 15, 2019, can be reviewed and there is no mechanism by which a company may seek to clear transactions in advance.

A summary of the background and the Proposed Regulations is provided below:

On October 23, 2019, the US Treasury Department Office of Foreign Assets Control (“OFAC”) announced that it had deleted two Turkish ministries and three Turkish individuals from the list of Specially Designated Nationals and Blocked Persons (“SDN List”). These five parties had been designated to the SDN List on October 14, 2019 pursuant to Executive Order 13894 (“EO 13894”) for contributing to Turkey’s military offensive in northern Syria. Please see our blog post regarding EO 13894 here.

OFAC’s removal of these parties from the SDN List followed a statement from President Trump that he had instructed the Secretary of the Treasury to lift all sanctions imposed on Turkey on October 14th in response to the Government of Turkey’s agreement to adhere to a permanent ceasefire. President Trump indicated that sanctions targeting Turkey would be lifted, “unless something happens that we’re not happy with.” There are no remaining SDNs designated pursuant to EO 13894. The executive order itself remains in effect, however, thus providing the Secretary of Treasury with ongoing authority to designate individuals or entities under EO 13894.

On September 20, 2019, in response to recent attacks on certain Saudi Arabian oil facilities, the US Treasury Department’s Office of Foreign Assets Control (“OFAC”) took action pursuant to Executive Order 13224 against three Iranian entities: (i) the National Development Fund of Iran (“NDF”) (ii) Etemad Tejarat Pars Co., and (iii) the Central Bank of Iran (“CBI”).  Executive Order 13224 authorizes the designation of parties if, among other things, they attempt to commit, or pose a significant risk of committing, acts of terrorism.

Effective August 19, 2019, the US Commerce Department’s Bureau of Industry and Security (“BIS”) (i) added forty-six (46) additional non-US affiliates of Chinese-headquartered Huawei Technologies Co. Ltd. (“Huawei”) to the Entity List, and (ii) extended and modified the Temporary General License (“TGL”) authorizing certain transactions involving the export, reexport, and transfer of items subject to the Export Administration Regulations (“EAR”) to Huawei and its designated non-US affiliates.  The extended and modified TGL (“New TGL”) covers the Huawei entities added to the Entity List on May 16, 2019, as well as the ones added on August 19, 2019.  The New TGL will be effective through November 18, 2019.  As further discussed below, the New TGL (i) mitigates the impact of the Entity List designation by waiving the Entity List restrictions for certain transactions, and (ii) imposes strenuous certification requirements for the use of the New TGL.  Please see our blog post on the initial designation of Huawei and its non-US affiliates here and the original TGL here.