On February 13, 2022, the Office of Investment Security of the U.S. Department of Treasury, which administers the Committee on Foreign Investment in the United States (CFIUS), published a final determination finding that (1) the United Kingdom of Great Britain and Northern Irelands and (2) New Zealand have the met the criteria for remaining an “excepted foreign state” under the CFIUS regulations because they “have established and are effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security. Determination Regarding Excepted Foreign States, 88 Fed. Reg 9190 (Feb. 13, 2023); Determination Regarding Excepted Real Estate Foreign States, 88 Fed. Reg. 9190 (Feb. 13, 2023).
DOJ and Commerce Department Launch Disruptive Technology Strike Force
On February 16, 2023, the United States Department of Justice (“DOJ”) announced that the DOJ and the Commerce Department were launching the “Disruptive Technology Strike Force,” to be led jointly by the DOJ’s National Security Division and the Commerce Department’s Bureau of Industry and Security (“BIS”), that “will focus on investigating and prosecuting criminal violations of export laws.” (DOJ Press Release, Justice and Commerce Departments Announce Creation of Disruptive Technology Strike Force, February 16, 2023.)
Trade Alert: New Antidumping (AD) and Countervailing Duty (CVD) Petitions on Certain Tin Mill Products from Canada, China, Germany, Netherlands, South Korea, Taiwan, Turkey and the United Kingdom
On January 18, 2023, Cleveland-Cliffs Inc. and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, filed a petition to impose (a) antidumping (AD) duties on imports of Certain Tin Mill Products from Canada, China, Germany, Netherlands, South Korea, Taiwan, Turkey and the United Kingdom; and, (b) countervailing (CVD) duties on the imports from China. Such imports are claimed to be at unfairly low prices (i.e., below cost, comparison market price, normal value), AD, and/or, government subsidized, CVD; and to injure a U.S. industry. Remedial AD/CVD import duties are requested.
DDTC Issues Updated Guidance for US Persons Abroad
On January 5, 2023, the Directorate of Defense Trade Controls (DDTC), which administers the International Traffic in Arms Regulations (ITAR), announced updated guidance and FAQs for US persons abroad (USPAB) authorization requests. DDTC also released a submission letter template and sample § 121.13 certification letter to accompany such requests.
BIS Amends EAR to Apply Recent Advanced Computer and Semiconductor Export Controls to Macau
On January 18, 2023, the U.S. Commerce Department’s Bureau of Industry and Security (BIS) published in the Federal Register an Interim Final Rule, 88 Fed. Reg. 2821, amending the Export Administration Regulations (EAR) (15 CFR Parts 730-774) by adding Macau to the recent controls implemented on certain advanced computing and semiconductor manufacturing items destined for China. This interim final rule is effective as of January 17, 2023. Parties wishing to submit comments to BIS on this interim final rule must do so no later than January 31, 2023.
Upcoming/New CFIUS Filing: Advent International Corporation; British Columbia Investment Management Corporation and Maxar Technologies Inc.
Status: New/ Upcoming
Acquirer: Advent International Corporation (U.S.); British Columbia Investment Management Corporation (British Columbia)
Acquired: Maxar Technologies Inc. (U.S.)
Value: approximately $6.4 billion
Industry Tags: Space; Satellites
CFIUS Clearance: GIC Private Limited and STORE Capital Corporation
Status: Clearance
Acquirer: GIC Private Limited (Singapore); Blue Owl Capital (U.S.)
Acquired: STORE Capital Corporation (U.S.)
Value: $14 billion
Industry Tags: Real Estate
CFIUS Clearance: Tiga Acquisition Corp. and Grindr Group LLC
Status: End of Investigation; Likely Clearance
Acquirer: Tiga Acquisition Corp. (Singapore)
Acquired: Grindr Group LLC (U.S.)
Value: $384 million
Industry: Information Services; Software
BIS ISSUES FIRST FAQS FOR CHINESE SUPERCOMPUTERING AND SEMICONDUCTOR MANUFACTURING EXPORT CONTROLS
On Friday, October 28, 2022, the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) issued its first Frequently Asked Questions (FAQs) regarding the Interim Final Rule, 87 Fed. Reg. 61286, entitled “Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification.” These FAQs cover the following topics: the applicability of the new restrictions on exports and reexports to Hong Kong and Macau; the definition of fabrication “facility;” deemed export/reexports; U.S. person definition and restrictions; licenses; and encryption.
Background
On Thursday, October 13, 2022, the BIS published in the Federal Register an Interim Final Rule, 87 Fed Reg. 62186, amending the Export Administration Regulations (EAR) (15 CFR parts 730-774) to impose new export controls on Chinese advanced computing integrated circuits (ICs), computer commodities containing such ICs, and certain semiconductor manufacturing items. For more information on these controls, see our blog post here.
These controls, all of which are currently effective, include:
- New Foreign Direct Product Rules, as outlined in EAR § 734.9, including Entity List Modifications
- New license requirements for export to China of certain advanced computing semiconductor chips and semiconductor manufacturing items, as outlined in EAR § 742.6
- U.S. Persons “Support” Modifications that Implicate General Prohibitions in EAR § 744.6
- New Supercomputing and Semiconductor Manufacturing End Use and End User Controls, as outlined in EAR § 744.23
Failure to Follow the Rules Dooms Requests for ITC Sanctions
The U.S. International Trade Commission is a popular venue for patent litigation under Section 337 of the Tariff Act of 1930. The ITC’s unique rules, however, can catch inexperienced counsel off guard.
Our colleagues, Adam Hess and Alex Wolcott, review a recent decision emphasizing the need to know and understand the ITC’s rules regarding sanctions.
Read the full blog post here.
