Brazil – Executive Secretariat of CAMEX is incorporated into the Itamaraty

Decree No. 8823 of July 28, 2016, established that, from 5 August 2016, the Executive Secretary of the Foreign Trade Chamber – CAMEX, which previously operated in the Ministry of Industry, Trade and Services, will be part of the Ministry of Foreign Affairs. Thus, the documents addressed to CAMEX must be filed with the General Protocol of the Foreign Ministry (commonly known as Itamaraty, after the palace it occupies), located on the Esplanade of Ministries, Block “H”, Annex II, ground floor, CEP 70170-900 Brasilia / DF. The web portal www.camex.gov.br will still be accessible.

EU – Information published on measures adopted by EU Member States for the control of exports, transfer, brokering and transit of dual-use items

On 20 August 2016, the Official Journal published an information note with respect to Information on measures adopted by Member States in conformity with Articles 5, 6, 8, 9, 10, 17 and 22 of Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (2016/C 304/03). The Information Note contains tables that provide an overview followed by details on the following measures taken by Member States in implementation of Council Regulation (EC) No. 428/2009:Read more…

US – ITC requests input for its biennial report on the ATPA

On August 23, 2016, the United States International Trade Commission (ITC) published in the Federal Register a notice of opportunity to submit information relating to matters to be addressed in the Commission’s 17th report on the impact of the Andean Trade Preference Act (ATPA) [Inv. No. 332-352]. Section 206 of the ATPA (19 U.S.C. 3204) requires the ITC to report biennially to the Congress and President by September 30 of each reporting year on the economic impact of the Act on U.S. industries and U.S. consumers, as well as on the effectiveness of the Act in promoting drug related crop eradication and crop substitution efforts by beneficiary countries. The Commission prepares these reports under investigation No. 332–352, Andean Trade Preference Act: Impact on U.S. Industries and Consumers and on Drug Crop Eradication and Crop Substitution.Read more…

US – CBP revises Burmese jade regulations

On August 23, 2016, U.S. Customs and Border Protection (CBP) published in the Federal Register a final rule [Docket No. USCBP-2016-0054; CBP Dec. 16-12] that amends CBP regulations to update the provisions relating to the prohibition on importation of jadeite or rubies mined or extracted from Burma, and articles of jewelry containing jadeite or rubies mined or extracted from Burma, following the expiration of the Burmese Freedom and Democracy Act of 2003 (BFDA), as amended by the Tom Lantos Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2008. The CBP regulations are amended to reflect the import prohibitions set forth in Executive Order 13651 of August 6, 2013.Read more…

BIS proposes to align TMP exports with IMMEX regime time periods

On August 23, 2016, the Bureau of Industry and Security (BIS) published in the Federal Register a proposed rule [Docket No. 160519443-6443-01] that would align the time limit of License Exception Temporary Imports, Exports, Reexports, and Transfers (in-country) (TMP), which authorizes, among other things, certain temporary exports to Mexico, with the time limit of Mexico’s Decree for the Promotion of Manufacturing, Maquiladora and Export Services (IMMEX) program. Read more…

US – BIS amends Entity List

On August 23, 2016, the Bureau of Industry and Security (BIS) published in the Federal Register a final rule [Docket No. 160719631-6631-01] that amends the Export Administration Regulations (EAR) by adding ten persons under fourteen entries to the Entity List. The ten persons who are added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These ten persons will be listed on the Entity List under the destinations of Iraq, the Philippines, Syria, and Turkey.

US – Government procurement: IRS publishes rules on tax on certain foreign procurement

On August 18, 2016, the Internal Revenue Service (IRS) published in the Federal Register final regulations [TD 9782] under section 5000C of the Internal Revenue Code (IRC) relating to the 2 percent tax on payments made by the U.S. government to foreign persons pursuant to certain contracts. The regulations affect U.S. government acquiring agencies and foreign persons providing certain goods or services to the U.S. government pursuant to a contract. The Federal Register document also contains final regulations under section 6114, with respect to foreign persons claiming an exemption from the 2 percent tax under an income tax treaty.

Section 5000C of the IRC was added by Public Law 111–347 (the Act), 124 Stat. 3623. Section 5000C(a) imposes on any foreign person that receives a specified Federal procurement payment a tax equal to 2 percent of the amount such payment. Section 5000C(b) defines the term specified Federal procurement payment as any payment made pursuant to a contract with the Government of the United States (U.S. government) for goods or services if the goods are manufactured or produced or the services are provided in any country that is not a party to an international procurement agreement with the United States. Section 301(a)(3) of the Act provides that section 5000C applies to payments received pursuant to contracts entered into on and after January 2, 2011. Additionally, section 301(b)(1)(c) of the Act states that this section must be applied in a manner consistent with U.S. obligations under international agreements. Section 5000C(d)(1) provides that the amount deducted and withheld under chapter 3 shall be increased by the amount of tax imposed under section 5000C.

The “international procurement agreements” that are referred to above are the WTO Agreement on Government Procurement and the various free trade agreements that include procurement provisions. “U.S. obligations under international agreements” include income tax treaties in effect that prevent the imposition of the tax. There are certain other exemptions from the tax set forth in the regulations. However, payments to foreign persons providing certain goods or services from an eligible least developed country to the U.S. government (listed in the Federal Acquisition Regulation) are not exempt, since they are not the result of an international procurement agreement or international obligation.

The regulations are effective on August 18, 2016.

US – BIS extends validity of Temporary General License

On August 19, 2016, the Bureau of Industry and Security (BIS) published in the Federal Register a final rule [Docket No. 160106014–6728–04] that extends the Temporary General License published on March 24, 2016 (81 Fed. Reg. 15633). The March 24 final rule created a temporary general license that restored, for a specified time period, the licensing requirements and policies under the Export Administration Regulations (EAR) for exports, reexports, and transfers (in-country) as of March 7, 2016, to two entities (ZTE Corporation and ZTE Kangxun) that were added to the Entity List on March 8, 2016. At this time, the U.S. Government has decided to extend the temporary general license until November 28, 2016. In order to implement this decision, this final rule revises the temporary general license to remove the expiration date of August 30, 2016, and to substitute the date of November 28, 2016.

US – BIS/State revise EAR and ITAR to harmonize destination control statements

On August 17, 2016, the Bureau of Industry and Security (BIS) published in the Federal Register a final rule [Docket No. 150107020-6464-02] that implements changes that were proposed on May 22, 2015, in a proposed rule entitled Revisions to the Export Administration Regulations (EAR): Harmonization of the Destination Control Statements. This final rule revises the destination control statement in § 758.6 of the Export Administration Regulations (EAR) to harmonize the statement required for the export of items subject to the EAR with the destination control statement in § 123.9(b)(1) of the International Traffic in Arms Regulations (ITAR).

Prior to the effective date of the BIS final rule, the EAR required exporters to include a destination control statement (DCS), specified in § 758.6 (Destination control statement and other information furnished to consignees) of the EAR, on certain export control documents that accompanied a shipment for most exports. The purpose of the DCS was to alert parties outside the United States that receive the item that the item was subject to the EAR, the item was exported in accordance with the EAR, and that diversion contrary to U.S. law was prohibited.

The BIS final rule is also part of Commerce’s retrospective regulatory review plan under Executive Order (E.O.) 13563.

The BIS final rule is published in conjunction with the publication in the August 17, Federal Register of a Department of State (Directorate of Defense Trade Controls) final rule revising § 123.9(b)(1) and other sections of the ITAR. Both final rules are part of the President’s Export Control Reform Initiative. In addition to revising the DCS in ITAR §123.9 to harmonize the language with the EAR, the State final rule also makes conforming changes to ITAR §§124.9 and 124.14, and makes several minor edits for clarity. ITAR §§124.7, 124.12, 125.2, and 125.7, among others are also revised.

Prior to the effective date of the State final rule, the ITAR, under § 123.9(b)(1), included the same type of DCS requirement as BIS, but with slightly different text than that which was required by the EAR. The purpose of the DCS requirements was the same under both sets of export control regulations. As a general principle of the Export Control Reform (ECR) effort, wherever the ITAR and EAR have provisions that are intended to achieve the same purpose, the U.S. Government will harmonize the corresponding provisions. The State rule removes the requirement that the DCS be placed on shipping documents and requires the DCS on the commercial invoice.

The State final rule also adds clarifying language to various provisions of the ITAR pertaining to the use of exemptions to the license requirements and the export of items subject to the EAR, when the EAR items are shipped with items subject to the ITAR. These revisions include guidance on the use of license exemptions for the export of such items, as well as clarification that items subject to the EAR are not defense articles, even when exported under a license or other approval, such as an exemption, issued by the Department of State. The rule also adds a paragraph (c) to ITAR §126.9, which permits any person to make a written request for an interpretation of the requirements in the form of an advisory opinion.

Both rules are effective November 15, 2016.