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Supreme Court Declines Comcast’s Challenge to the ITC’s Jurisdiction, Thus Confirming the Broad Reach of Section 337

comcast

Supreme Court Declines Comcast’s Challenge to the ITC’s Jurisdiction, Thus Confirming the Broad Reach of Section 337

Entering October Term 2019, the U.S. Supreme Court had never reviewed a Section 337 investigation. However, some court-watchers thought that Comcast Corporation v. International Trade Commission might have the right ingredients to break that 90-year streak: a former U.S. Solicitor General representing the petitioners; allegations that Chevron deference had led to regulatory overreach; and a handful of sophisticated amici curiae supporting cert. But the Court denied the petition without even a relist, leaving intact the U.S. International Trade Commission’s assertion of broad authority over patent infringement that occurs wholly within the United States after importation.

Comcast’s cert petition arose out of ITC Investigation No. 337-TA-1001. The complainant, Rovi, argued that certain set-top boxes (“STBs”) used in Comcast’s cable-television system infringed two patents involving “an interactive television program guide system for remote access to television programs.” The Commission found that when Comcast customers use the STBs in a particular way, in conjunction with Comcast’s system, those customers infringe the asserted patents. The Commission further found that Comcast induced that infringement by instructing customers how to use the system. Thus, the Commission found that the STBs constitute infringing articles under Section 337 and issued a limited exclusion order and cease and desist order.

Before the Federal Circuit and in its cert petition, Comcast argued that the Commission had overstepped its jurisdiction. Comcast explained that all of the infringing conduct—both the customers’ direct infringement using the STBs, and also Comcast’s inducement by providing instructions to its customers—occurred within the United States. In Comcast’s view, then, the STBs were not “articles that . . . infringe” a patent at the time of importation and thus fall outside the scope of Section 337.

Siding with the Commission, the unanimous Federal Circuit panel rejected this argument. The court noted that Section 337 expressly defines unfair trade practices to include “sale within the United States after importation” of infringing articles. The court concluded that so long as the articles are imported and they infringe a patent, they fall within the scope of Section 337, regardless of whether the articles were infringing at the time they entered the United States.

The denial of cert in Comcast solidifies the Commission’s broad assertion of authority over all infringement by imported products, regardless of the nature of that infringement and regardless of when it occurs. Even before this development, the Commission had become a preferred forum for many patent holders given its powerful remedies, fast pace, and patent-savvy personnel. This trend is likely to accelerate now that the courts have passed on the opportunity to curtail the Commission’s broad view of its jurisdiction.

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Beau Jackson is a Kansas City-based partner with the law firm Husch Blackwell LLP. He leads the firm’s Section 337 practice.

Michael Martinich-Sauter is an attorney in Husch Blackwell LLP’s St. Louis office.

USITC

USITC Announces New Chairman and Vice Chairman

The U.S. International Trade Commission (USITC), a quasi-judicial federal agency that administers U.S. trade remedy laws, has announced new leadership. President Trump designated Jason E. Kearns as Chairman and Randolph J. Stayin as Vice Chairman of the ITC, each for two-year terms effective June 17, 2020. Both Chairman Kearns and Vice Chairman Stayin served as ITC commissioners before these designations.

Chairman Kearns (a Democrat) joined the Commission in March 2018, for a term expiring in December 2024. Before his appointment to the ITC, Chairman Kearns served as Chief International Trade Counsel for the Democratic staff of the U.S. House of Representatives Committee on Ways and Means. Prior to that, he was Assistant General Counsel at the Office of the U.S. Trade Representative.

Vice Chairman Stayin (a Republican) joined the ITC in August 2019, for a term expiring in June 2026. Before joining the ITC, Vice Chairman Stayin had a long career in private legal practice, focusing on trade remedies and trade policy.

Some may be surprised that President Trump designated a Democrat as ITC chairman, but this is controlled by statute. Under 19 U.S.C. § 1330, the President must designate as ITC chairman a commissioner who (1) belongs to a different political party than that of the outgoing chairman, and (2) has at least one year of continuous service as an ITC commissioner by the date of the designation. Moreover, the statute requires that the vice chairman’s political party differ from the chairman’s. Chairman Kearns replaces outgoing chairman David S. Johanson (a Republican), who served as chairman through June 16, 2020, and will remain as a commissioner.

In addition to administering antidumping and countervailing duty investigations and Section 337 actions, the ITC provides the President and Congress with independent analysis and support on matters relating to tariffs and international trade.

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Beau Jackson is a Kansas City-based partner with the law firm Husch Blackwell LLP. He leads the firm’s Section 337 practice.

semiconductor

CONTROLS ON SEMICONDUCTOR TRADE ARE A HARBINGER FOR “TECHNO-NATIONALISM”

Major nations are in a race to achieve supremacy in the “technologies of the future” that include data analytics, robotics, AI and machine learning, surveillance technology and 5G networks. What all these new technologies have in common is the semiconductor microchips that drive them. Gaining the technology upper hand requires the secure production or supply of advanced semiconductors, which makes the controls on trade in semiconductors a harbinger for how “techno-nationalist” trade policies are reshaping global supply chains.

China’s failure to launch?

The global semiconductor industry was historically dominated by a small group of primarily American semiconductor companies. In the past two decades, a handful of Asian semiconductor companies including Toshiba (Japan), Samsung (South Korea) and TSMC (Taiwan), have managed to grow market share. Latecomers in Asia benefited from a combination of ambitious industrial policies and government support, a narrow focus on specialization and innovation, and access to key foreign partnerships and foreign direct investment.

The Chinese government seeks to replicate these models on a much larger scale under its Made in China 2025 industrial policy. Geopolitics may prevent China from achieving its goals. Key Chinese tech firms, including Huawei, HikVision, and SenseTime, now find themselves on a U.S. restricted entities list, which means “controlled” American technology may not be sold to them.

Global Semi Shares

China’s push to reduce semiconductor tech dependence

The Chinese market is almost entirely dependent on foreign firms for microchips. Domestic production accounts for just nine percent of China’s semiconductor consumption – leaving 91 percent of China’s demand to be satisfied by imports, 56.2 percent from the United States.

Yet semiconductor technology is vital to China’s manufacturing base and to China’s top exports that include smartphones, personal computers, and smart televisions. China’s continued dependence on U.S. and foreign semiconductor technology has been a catalyst for Beijing to double down on policies to promote homegrown companies.

China’s National Integrated Circuit Plan calls for $150 billion in R&D funding from central, provincial and municipal governments, twice as much as the rest of the world combined. U.S. companies spent $32.7 billion on R&D in 2018, followed by European companies ($13.9 billion), Taiwanese companies ($9.9 billion), Japanese companies ($8.8 billion) and Korean companies ($7.3 billion).

Some 30 new semiconductor facilities are either under construction or in the planning stages in China – more than any other country in the world. But even the most sophisticated fabricator in China must rely on licensing chip designs from foreign firms and on high-volume commercial production lines outside of China. And foreign firms still dominate niches in China’s semiconductor market such as microchip packaging and testing, semiconductor equipment, memory and AI chips, as well as contract microchip making.

National champions require international supply chains

China is not alone in its interdependence on global value chains. Leading American, European, Japanese and South Korea semiconductor companies have all developed and optimized geographically dispersed production networks. Research and development, design, manufacturing, assembly, testing and packaging have become hyper-specialized with activity taking place across multiple countries as microchips cross borders dozens of times before being finally embedded into a finished product.

Chinese tech companies have been able to grow and innovate because of unfettered access to collaborative relationships with foreign research and academic institutions, as well as access to foreign companies through acquisitions and (often state-funded) mergers – until recently.

Semi R&D Spending

American trade countermeasures

The U.S. government has taken steps to block Chinese acquisitions and investments in American technology companies and has also made critical changes to the U.S. export controls program. The U.S. Department of Commerce manages a list of “emerging” and “foundational” commercial technologies or products which can be used for military purposes. It recently expanded the technologies included on the Controlled Commodity List (CCL). Technologies on the CCL require issuance of an export license prior to sale and transfer to a foreign market.

An export control is not, by itself, a prohibition to sell or buy a traded good. In the vast majority of cases, when the facts surrounding a controlled item are reviewed (including who the buyer is and how the controlled item will be used), U.S. government agencies issue export licenses. But export controls and related measures add a layer of uncertainty to global value chains, potentially turning long-time suppliers into unreliable suppliers.

Part and parcel of the Chinese Communist Party’s approach to leapfrogging in the semiconductor industry is to appropriate special technology funding toward “military-civil fusion,” designed to bring tech startups and private companies together with the People’s Liberation Army. The deepening of those direct links virtually ensures that innovations and technologies pertaining to industries of the future will be considered by the U.S. government as dual use technologies subject to scrutiny, control and prohibitions when it comes to exporting them from the United States, especially to China.

A special designation

U.S. companies or individuals may also be denied or restricted from doing business with restricted entities/parties or with “specially designated nationals”. In May 2019, the U.S. government designated Huawei, China’s telecommunications giant, a restricted entity. In this scenario, the application for an export license to a Huawei entity would be presumed denied, effectively banning the sale of American technology to Huawei or any of its 68 non-U.S. affiliates in other countries.

The designation has widespread ripple effects. Huawei purchased some $70 billion components and parts from more than 13,000 suppliers globally in 2018 – approximately $11 billion worth of microchips from American technology companies alone. American companies may not sell to Huawei and Huawei must replace all U.S. technology from its smart phones, which previously included U.S. radio frequency chips, DRAM and NAND chips, design software and Google’s Android operating system.

Prohibitions may be applied to individual end-users, to financial institutions that may seek to process transactions for a restricted buyer or supplier, and to academic and research institutions that may be prevented from using technologies from restricted entities in their research.

Driving a wedge and choosing sides

Washington’s countermeasures aim to impede the Chinese Communist Party’s ability to promote U.S. technology and intellectual property transfer to Chinese entities – either by stopping sales of technology, stifling investment flows into China’s semiconductor industry, or blocking the acquisition of strategic assets from U.S. and foreign companies by Chinese state-backed entities.

This evolving trade policy landscape will inevitably lead to the reconfiguration of global value chains as companies comply with export restrictions. Foreign companies that seek to maintain their relationship with a restricted entity must reduce the value of U.S. content to below an acceptable “de minimis” level, increase the value of non-U.S. made products in their sourcing and production, or avoid doing business with U.S. companies altogether. This has induced companies to move value-added operations out of the United States, to ring-fence operations in China, or to consolidate into more vertically integrated value chains.

In an attempt to close the de minimis loophole, the U.S. government has modified the “foreign direct product” rule. In the example of Huawei, this change prevents foreign manufacturers from supplying Huawei, the Chinese tele-communications manufacturer, with microchips and other products, if the production of these items uses any U.S. technology, including manufacturing equipment, designs or software. U.S. firms dominate these technology niches.

This change was clearly aimed at Taiwan Semiconductor Manufacturing Company (TSMC), which manufacturers microchips for HiSilicon, Huawei’s subsidiary. Cutting off the supply of microchips to HiSilicon presents an existential crisis for Huawei, as no Chinese companies are capable of producing leading-edge microchips on par with TSMC and other foreign manufacturers.

Compliance has become more complicated as the ranks of restricted entities swell. Nearly 170 Chinese individuals and entities (across a wide swathe of industries) are on the U.S. Specially Designated National list. U.S. companies must navigate restrictions that are enforced by more than a dozen different U.S. government agencies.

American firms are also concerned about diminished opportunities to do business in key global value chains, effectively ceding market share to Chinese and other foreign firms not under similar restrictions. Limited or foregone sales in China may reduce funds for R&D. Restrictions also choke off collaborative innovation across specialized clusters and between human capital networks. Huawei and other Chinese tech companies are looking to withdraw from U.S.-influenced supply chains, forming alliances with non-American technology companies, putting TSMC, Samsung and others in the position of having to choose sides.

Just the beginning

When Washington announced Huawei would be placed on the U.S. Restricted Entity List, Huawei’s management tapped 10,000 engineers, requiring them to work continuously in shifts to re-write code and re-design specifications so that Huawei might minimize the damage of U.S. export controls.

The United States is not alone in its trade countermeasures. Europe is also turning to techno-nationalism. Brussels recently issued a report that emphasized the importance of working with America to create an economic model that would compete directly with Beijing, particularly with the intent of blocking the Chinese Communist Party’s attempts to influence global standards in 5G and other next-gen technologies. Japan has blocked Huawei 5G technology.

By enacting policies intended to protect against theft or transfer of domestic semiconductor technology from opportunistic or hostile state and non-state actors, governments have opened more fronts in the deepening tech war with China, which portends to reshape existing global value chains for semiconductor production. And semiconductors are just the beginning.

This article is drawn from a detailed research report: Semiconductors at the heart of the US-China tech war

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Alex Capri

Alex Capri is a Research Fellow with the Hinrich Foundation, Senior Fellow at the National University of Singapore, and Lecturer in the Lee Kuan Yew School of Public Policy. He was previously the Partner and Regional Leader of KPMG’s International Trade & Customs practice in Asia Pacific, based in Hong Kong.

This article originally appeared on TradeVistas.org. Republished with permission.
trading partners

US Trade Representative Launches Investigations of DSTs of Numerous Trading Partners

On June 2, 2020, the Office of the United States Trade Representative (USTR) announced that it is beginning investigations under Section 301 of the Trade Act of 1974 (Trade Act) into digital services taxes (DSTs) that have been adopted or are under consideration by ten of the United States’ closest trading partners – Austria, Brazil, the Czech Republic, the European Union, India, Indonesia, Italy, Spain, Turkey, and the United Kingdom (DSTs Investigations).

According to USTR Robert Lighthizer, “President Trump is concerned that many of our trading partners are adopting tax schemes designed to unfairly target our companies,” and that “[the United States] are prepared to take all appropriate action to defend our businesses and workers against any such discrimination.”

The initial focus of USTR’s investigations is to determine whether the existing or proposed DSTs discriminate against U.S. companies, apply retroactively, and/or constitute unreasonable tax policy by diverging from norms reflected in the U.S. tax system and the international tax system. The USTR identified examples of such divergent approaches, including extraterritoriality; taxing revenue not income; and intentionally penalizing particular technology companies for their commercial success.

As a next step, the USTR is seeking public comments on any issue covered by the investigations, in particular, the following:

-Concerns with one or more of the DSTs adopted or under consideration by the jurisdictions covered in the investigation.

-Whether one or more of the covered DSTs is unreasonable or discriminatory.

-The extent to which one or more of the covered DSTs burdens or restricts U.S. commerce.

-Whether one or more of the covered DSTs is inconsistent with obligations under the WTO Agreement or any other international agreement.

-The determinations required under section 304 of the Trade Act, including what action, if any, should be taken.

Written comments should be submitted through the Federal eRulemaking Portal and are due by July 15, 2020. Because of the COVID-19 restrictions, the USTR has not scheduled a public hearing at this time but may indicate in a subsequent notice if a hearing is to be held in the DSTs investigations.

Eversheds Sutherland Observation: The timing of the investigations is noteworthy, as many jurisdictions, including the EU, have been highlighting the need for DSTs to address COVID-19 tax shortfalls. It also comes as the OECD continues efforts to find a consensus solution to taxation of the digital economy. The OECD remains committed to a proposal in 2020, although there is some recognition that this timing may slip due to issues around the pandemic. Nonetheless, the reaction of the U.S. is consistent with the response to the French DST, and is noteworthy in that the administration continues to respond to unilateral digital tax efforts through trade, rather than tax, channels. The U.S. has continued to participate in the OECD’s inclusive framework efforts.

The Previous Section 301 Investigations into the French DST

In July 2019, the USTR had already initiated an investigation under Section 301 of the Trade Act with respect to France’s DST Act (LOI n° 2019-759 du 24 Juliet 2019), which French President Emmanuel Macron had signed into law on July 24, 2019.  After requesting public comments and conducting a public hearing in August 2019 (for a hearing transcript, see here), the USTR in a report published in December 2019 determined that France’s DST is unreasonable or discriminatory and burdens or restricts U.S. commerce. Specifically, the USTR’s investigation concluded that the French DST discriminates against U.S. (digital) companies, is unusually burdensome for affected U.S. companies, and is inconsistent with prevailing principles of international tax policy on account of its retroactivity, its application to revenue rather than income, its extraterritorial application, and its purpose of penalizing particular U.S. technology companies.

At the time, USTR Lighthizer said that the “decision today sends a clear signal that the United States will take action against digital tax regimes that discriminate or otherwise impose undue burdens on U.S. companies” and that the USTR is “exploring whether to open Section 301 investigations into the digital services taxes of Austria, Italy, and Turkey.”

Consequently, the USTR proposed action in the form of additional duties of up to 100 percent on certain products of France and considered imposing fees or restrictions on French services as a further option. The list of French products subject to the potential duties included 63 tariff subheadings with an approximate trade value of $2.4 billion. Another public hearing was conducted on the proposed action in January 2020 (for hearing transcripts, see here and here).

However, as reported in late January 2020, U.S. President Donald Trump and French President Macron agreed to a truce on the dispute over the French DST, under which both countries are extending negotiations, while the U.S. is postponing retaliatory action and France is suspending DST collections until the end of 2020. Furthermore, it was reported that under the deal France will (i) withdraw the DST as soon as the OECD’s Inclusive Framework reaches a multilateral agreement on how to reform the international tax rules in light of the digitalization of the economy, and (ii) repay companies the difference between the DST and whatever tax comes from a planned mechanism being drawn up by the OECD.

Eversheds Sutherland Observation: The reported U.S.-French deal did not address many concerns raised by affected companies at the Section 301 hearing regarding compliance with and the administrability of the DST. Initially, it left many affected companies struggling with obtaining information retroactively and preparing DST returns. At the same time, it has created significant pressure to agree on a multilateral solution as part of the OECD Inclusive Framework. In fact, France may be incentivized not to support a multilateral solution resulting in tax revenues that are less than what France can collect under its DST. Moreover, as subsequently observed, the deal did not appear to discourage other jurisdictions to enact their own digital taxes, subject only to an agreement to adjust to reflect any future multilateral solution agreed by the OECD.

The New Section 301 Investigations

An advance Federal Register Notice (Notice) issued by the Office of the USTR on the same day as the announcement provides additional details on the DSTs Investigations, including summaries of the DSTs that have been adopted or are being considered by the ten trading partners and the schedule for submission of written public comments.

DSTs under Investigation

As stated in the Notice, over the past two years, various jurisdictions—not limited to the ones under investigation—have taken under consideration or adopted taxes on revenues that companies generate from providing certain digital services to, or aimed at, users in those jurisdictions. Moreover, the Notice asserts that available evidence suggests these DST are targeting U.S.-based tech companies.

The DSTs Investigations target the following DST regimes:

Austria: In October 2019, Austria enacted effective January 1, 2020, a DST that applies a 5 percent tax to revenues from online advertising services with two revenue thresholds (at least €750 million in annual global revenues for all services and €25 million in in-country revenues for covered services).

Brazil: In May 2020, a draft bill was submitted in Brazil’s parliament entitled “contribution for intervention in the economic domain on gross revenue of digital services provided by large technology companies (CIDE-Digital),” which, if adopted, would apply an up to 5 percent tax on revenue from advertising and services in connection with digital platforms located in Brazil.

Czech Republic: The Parliament of the Czech Republic has accepted for consideration a bill that would impose a 7 percent tax on selected digital services provided in the country by companies with global sales exceeding €750 million and a turnover in the Czech Republic in excess of CZK 100 million.

European Union (EU): In its proposal for a COVID-19 recovery plan, the European Commission (EC) said that to raise the necessary funds, it will propose a number of new resources, which “could also include a new digital tax, building on the work done by the Organization for Economic Co-operation and Development (OECD).” The EC proposed a DST (COM(2018) 148 final) that would impose a 3 percent tax on gross revenues from digital online advertisement, digital platform activities, and sales of user data generated via digital platforms from companies with global sales exceeding €750 million and EU taxable revenues exceeding €50 million.

India: In March 2020, India expanded its equalization levy that has been in place since 2016 and will now impose a 2 percent levy on consideration receivable by a non-resident “e-commerce operator” (with annual revenues in excess of approximately ₹20 million) for “e-commerce supply or services” provided or facilitated by it on or after April 1, 2020.

Indonesia: In March 2020, the Indonesian government enacted a government regulation that adopts (but not yet implements) a new tax on Trade Through Electronic Systems (Perdagangan Melalui Sistem Elektronik or “PMSE”), imposing an electronic transaction tax on PMSE activities carried out by foreign tax subjects that meet certain criteria.

Italy: Italy enacted a DST effective January 1, 2020, which imposes a 3 percent tax on revenues from targeted advertising and digital interface services by companies generating at least €750 million in overall worldwide revenues and at least €5.5 million in revenues from qualifying digital services provided to users located in Italy.

Spain: In February 2020, the Spanish government published a draft bill concerning the implementation of a unilateral DST, which would impose a 3 percent tax on revenues from online advertising services targeted at users, online intermediary services, and data transmission services of companies generating at least €750 million in global net turnover and at least €3 million in revenues from taxable provisions of digital services in Spain.

Turkey: Having imposed a 15 percent withholding tax on online advertising since the beginning of 2019, Turkey has now enacted a DST effective March 1, 2020, which currently imposes a 7.5 percent tax (though the Turkish president is authorized to reduce the DST rate to 1 percent or double it) on gross revenues from certain services, including advertisement services provided through digital platforms, sales of auditory, visual or digital contents on digital platforms, and services related to the provision and operation of digital platforms enabling users to interact with each other, provided by companies with worldwide revenue exceeding €750 million and with Turkey-sourced revenue exceeding ₺20 million, in each case from covered digital services.

United Kingdom (UK): The UK government announced the introduction of a DST from April 1, 2020, which would impose a 2 percent tax on the revenues of search engines, social media services and online marketplaces that derive value from UK users of companies when the group’s worldwide revenues from these digital activities are more than £500 million and more than £25 million of these revenues are derived from UK users.

Section 301 Investigations in General

As described in the Notice, the Trade Act of 1974 authorizes the USTR to investigate whether an act, policy, or practice of a foreign country is actionable under Section 301 of the Trade Act. Actionable matters under Section 301 include acts, polices, and practices of a foreign country that are unreasonable or discriminatory and burden or restrict U.S. commerce. An act, policy, or practice is unreasonable if the act, policy, or practice, while not necessarily in violation of, or inconsistent with, the international legal rights of the United States, is otherwise unfair and inequitable.

As a first step in a Section 301 investigation, the USTR consults with appropriate advisory committees, including the Section 301 Committee, and requests consultations with the governments of the affected jurisdiction(s). The Notice confirms with respect to the DSTs Investigations that the USTR has already consulted with the relevant advisory committees in the U.S., as well as reached out to the governments of the ten affected jurisdictions.

After the USTR determines whether an act, policy, or practice under investigation is actionable under Section 301, the USTR must determine what action to take. Notably, Section 301 authorizes the President to take unilateral retaliatory action in order to force the offending country to end the practices that have been found to be unreasonable or discriminatory against the United States. In past Section 301 investigations, such retaliation has typically involved the imposition of significant additional U.S. tariffs on selected products from the targeted country.

Eversheds Sutherland Observation: Initial reactions to the USTR announcement from the targeted jurisdictions suggest that they are unfazed by the threat of a U.S. trade investigation, as they openly reaffirm their commitment to enact and/or enforce these DSTs as planned. This was true of the French response to the Section 301 investigation into its DST. Perhaps the U.S. is anticipating that, as in the case of France, the Section 301 investigations will lead to agreements to refrain from enforcement of unilateral taxes until the OECD Inclusive Framework is able to reach a consensus solution. However, if countries do in fact continue with unilateral DSTs, the situation may well trigger another potential trade war, at a time when the global economy is struggling to respond to the COVID-19 pandemic. It deserves emphasis that Section 301 is the legal basis for the significant tariffs that the U.S. has imposed on Chinese imports, which has in turn triggered tariff retaliation by China against U.S. imports.

Potentially complicating the U.S. position are digital advertising tax proposals appearing at the U.S. subnational level. The Maryland legislature recently passed a digital advertising tax bill that the state governor vetoed on May 7, and a “copycat bill” was introduced in New York. There are serious questions regarding the constitutionality of the proposals that have been introduced, but their existence may undermine the USTR position that foreign DSTs are unreasonable or discriminatory. Maryland’s proposed digital advertising tax has drawn scrutiny as violating federal law, including the Permanent Internet Tax Freedom Act and the dormant Commerce Clause. For Eversheds Sutherland’s critique of the tax, please see our recent article, If Md.’s Digital Ad Tax Is Passed, Court Challenges Will Follow.”

tariff exclusions

What Your Business Needs to Know and Do About Tariff Exclusions

As COVID-19 continues to wreak havoc on the world economy, it’s prudent to find ways to keep your shipping business afloat by finding economic relief if and whenever possible. First off, being aware of the changing complexities of the China-U.S. trade war is essential. According to the Census Bureau’s Foreign Trade Statistics, China is one of our country’s largest trading partners, which means companies large and small are likely affected by the trade situation. Last year, the U.S. imported $452 billion from China, which made up about 14% of overall U.S. imports by value.

Section 301 of the Trade Act of 1974 allows the U.S. to impose trade sanctions as recourse for unfair foreign trade practices. In 2017, China was under investigation for issues regarding innovation practices, intellectual property rights, and technology transfer. Since then, retaliation measures have been put in place for the past couple of years and remain in effect for an indefinite amount of time. While the USTR recently announced reductions on some tariff measures and a suspension of others, about two-thirds of U.S. imports from China are still taxed an additional 7.5% to 25%, covering about $350 billion worth of product. Keep in mind, the average duty rate for U.S. imports is only 2%; thus, China’s products are incurring additional costs on top of that.

The current tariffs are extremely broad and cover many industries including food/beverage, industrial supplies, transport equipment, consumption goods, and fuels and lubricants. As of this month, the U.S. Customs and Border Protection (CBP) reports collecting $52 billion in Section 301 duties since the trade remedies took effect.

This is a hot issue for importers and we’re currently seeing more industry associations and companies pushing for relief from these measures. While the period to request exclusions from the Section 301 tariffs is now closed, it is a great time to confirm that you are doing all you can to potentially recover duties previously paid, and potentially apply on a go-forward basis the exclusions that the USTR has been granting against certain products.

How to seek relief now and in the future

Cost savings and refunds are top of mind for all, so to help provide some relief, the USTR has released many tariff exclusions shippers can apply for. The important thing to keep in mind here is that ample work is involved. It’s not just a one-time process, because you’ll likely need to continuously apply for new exemptions where applicable. Some of the exclusions being granted are product-specific whereas some are granted at the HTS classification. You’ll also want to be ready in case CBP asks for proof of eligibility. Staying organized is paramount to identify the opportunities and defend against CBP scrutiny.

Each exclusion round also has a validity period, and many of those expiration dates are coming up fast! We’re seeing the USTR opening several new short-window comment periods to consider extending previously granted tariff exclusions. This could be your chance to drop commentary to protect and extend your granted exclusions or to oppose competitors, if applicable and necessary so that your company is not left at a disadvantage.

What are the eligibility requirements?

Eligibility is simple – companies affected by the China 301 tariffs.

Exclusions can be granted based on sourcing, impact on U.S. jobs and product type and need. Producers of goods used to combat COVID-19 can also be eligible for exclusions.

Also, tariff exclusions are retroactive to the date the tariffs were first applied, and exclusions generally expire after one year from the date of publication of the granted exclusion.

Important Reminder for Process

The customs entry and liquidation process is complicated, spanning a lengthy period. It can take up to 480 days and is broken down into these windows of time:

1. Day 1: Customs entry is filed

2. Day 1 – 300: Post Summary Correction (PSC) – can be filed to request refund prior to the entry liquidating

3. Day 300: PSC no longer eligible as entry is deemed liquidated (importer may request suspension or extension of liquidation prior to this point).

4. Day 301 – 480: Entry is liquidated, and protest must be filed to request a refund

5. Day 480+: Entry may be past protest period and is no longer eligible for a refund request via PSC or protest.

Since the process is lengthy, make sure you consider these tips when conducting your duty recovery analysis:

-Know your product (10-digit HTS codes and know the barcodes toward the products)

-Apply their qualifications

-Narrow down lists of products impacted by tariffs

-Identify which ones have exclusions granted – work with that list

-Run a report and gather import activity

-Start looking at validity dates

-Make sure brokers are applying it to the new shipments of the products

-File petitions if you want to continue to take advantage of it

Insights for the future

The trade war is not ending soon and it’s hard to unravel, but we know it’s an important issue that we can expect to see in the spotlight for the foreseeable future. Customers are advised to stay close to this and to pay attention to the advisories from C.H. Robinson and USTR.

To check for exclusion status against your products click the resources here:

1. $34 Billion Trade Action (List 1),

2.  $16 Billion Trade Action (List 2),

3. $200 Billion Trade Action (List 3)

4. $300 Billion Trade Action (List 4)

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section 232

Commerce Commences Section 232 Investigation on Imports of Vanadium

The Commerce Department announced on June 2, 2020, that it is starting another Section 232 investigation that could result in the imposition of tariffs or potentially other restrictions on imports of vanadium. The agency stated that it will review and determine “whether the present quantities or circumstances of vanadium imports into the United States threaten to impair the national security.”

Vanadium is a chemical element with the symbol “V” and is assigned atomic number 23.  A general description of it is a hard, silvery-grey, malleable transition metal. It is an artificially isolated element, which is rarely found in its natural state, but one of its key properties once isolated artificially is to prevent oxidation. Various applications that rely on vanadium include use in the production of ferrovanadium, which is a steel additive. The chemical properties of vanadium also increase the strength of the steel and it is therefore used in products such as high-carbon steel alloys and high-speed tool steels for use “aircraft, jet en­gines, ballistic missiles, energy storage, bridges, buildings, and pipelines. Vanadium is a key component in aerospace applications due to its strength-to-weight ratio, the best of any engineered material,” Commerce said and “U.S. demand is supplied entirely through imports.”

This new 232 investigation is the result of the filing of a request by two domestic U.S. vanadium producers, AMG Vanadium and U.S. Vanadium, in November 2019. The allegation claims that the “domestic industry is adversely impacted by unfairly traded low-priced im­ports, limited export markets due to value-added tax regimes in other vanadium producing countries, and the distortionary effect of Chinese and Russian industrial policies,” according to Commerce’s press release.

The notice of initiation, of the 232 investigation was published in the Federal Register on June 3rd. Comments must be filed by July 20, 2020, and any rebuttal comments are due by August 17, 2020.  Those interested in submitting comments should ensure that it addresses the following:

-the quantity of imports,

-domestic production and capacity needed to meet national defense requirements, and

-the impact of foreign competition on the vanadium industry, among other things.

Husch Blackwell continues to monitor the Section 232 investigations and will provide further updates as more information becomes available.

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Nithya Nagarajan is a Washington-based partner with the law firm Husch Blackwell LLP. She practices in the International Trade & Supply Chain group of the firm’s Technology, Manufacturing & Transportation industry team.

Turner Kim is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

streaming

TRADE BARRIERS EVOLVE WITH MOVIE STREAMING TRENDS

We’re All Streaming Now

During our collective stay-at-home period, movie streaming has grown to the point where industry analysts are wondering whether many people will return to movie theaters. Netflix reported 15.8 million new subscribers for the first quarter of the year, more than double their forecast, according to the Wall Street Journal. Some studios are eschewing the traditional theatrical release and going straight to digital. As some indicator of how the trend is taking off, the Motion Picture Academy has said that — just for this year — movies released via streaming would be eligible for the upcoming Oscars.

Streaming movies online has been growing in popularity in recent years, but the coronavirus has accelerated the trend. Unfortunately, where consumer and commercial trends go, trade policy barriers may follow.

The Hollywood Juggernaut

Movies both reflect and shape our national cultures. Hollywood has traditionally dominated among international viewership (a phenomenon that has been shifting over recent years), sometimes to the consternation of “keepers of culture” in other countries. As far back as the 1920s, European countries offered subsidies to domestic film producers and imposed so-called screen quotas to establish a minimum number of screening days for domestic films. The OECD keeps track of restrictions on services trade in OECD member countries, including audiovisual services, the category under which movies fall. According to the OECD, eleven countries still today reserve a quota for local motion pictures shown in theaters or on television.

Other measures to shore up local culture against the tidal wave of cultural influence that is Hollywood include import quotas, tax breaks to domestic film industries, foreign investment restrictions, requirements for local sourcing of cast and crews, and blackout periods during which no new imported films may be released, often during prime movie-going periods or timed to political events.

Film Distribution in Hollywood

Ready, Action…Trade

Such measures discriminate against the film industries of other countries and constitute barriers to trade. Policymakers have sought to address screen quotas in trade agreements such as the WTO’s General Agreement on Tariffs and Trade (GATT) and the original North American Free Trade Agreement (where Mexico agreed to reduce its screen quotas). Provisions to remove barriers to audiovisual services have also been included in many recent bilateral free trade agreements.

In the case of Korea, whose vibrant film industry reached a pinnacle of global recognition with the Academy’s choice of Parasite as Best Picture in 2020, formal restrictions targeting foreign films date back to Korea’s Motion Picture Law of the 1960s. The Korean government abolished its import quota in the late 1980s, and only after the Motion Picture Export Association of America (MPEA) in 1985 filed a complaint (later withdrawn) with the U.S. Trade Representative under section 301, the same tool being used today to try to address China’s technology transfer requirements. In 2006, just prior to the Korea-U.S. (KORUS) free trade agreement negotiations, Korea agreed to reduce by half its screen quota from a minimum of 146 days to the current 73 days per year.

Digital Era Trade Restrictions

While cultural protections for film have traditionally focused on theatrical screenings, screen quotas don’t work in the digital era, where on-demand audiovisual services such as Netflix and Amazon Prime are increasingly capturing viewership. As a result, new forms of trade barriers are popping up.

For example, China has imposed tighter regulatory controls in recent years, limiting foreign content purchased for streaming in the Chinese market, which has over 850 million digital consumers. U.S. streamers must license their content for China under a 30 percent streaming quota. Chinese content, however, can reach global audiences through video streaming platforms with no such numerical limits. In today’s tense political environment – and with China marking the 100th anniversary of the establishment of the Communist Party in 2021 – we could anticipate increased censorship, which would exacerbate the problem of foreign content scarcity while simultaneously elevating the risk of piracy and other illegal distribution of unauthorized content.

In line with a longstanding European Union (EU) focus on protecting the European film industry, the EU passed a law in late 2018 that requires Netflix, Amazon and other online streaming services to dedicate at least 30 percent of their output to films made in Europe, which they must subsidize by either directly commissioning content or contributing to national film funds. Regulation now applies similar rules to similar services, whether online or offline.

U.S. and European trade discussions are now focused on a limited set of issue areas, but in an earlier push for a Transatlantic Trade & Investment Partnership (TTIP) in 2013, the camera zoomed in on issues of culture in trade negotiations. At the time, the European Commission was given a negotiation mandate that expressly excluded opening the European audiovisual sector to competition from U.S. firms.

China has 850 million digital consumers

Competition Makes Most Things Better – Even Movies

Culture clashes aside, there is a strong case that greater competition has been the force behind successful film industries outside of Hollywood. Researchers Jimmyn Parc and Patrick Messelin posit that the success of contemporary Korean cinema is due to “less interventionist public policies over the last two decades,” together with “benchmarking, learning, and innovating among non-subsidized private companies.” They point to data from the decade preceding the industry’s opening in the late 1980s, when the Korean film industry released around 90 films per year with an average revenue of KRW ₩0.9 billion per film (roughly USD $0.7 million at the current exchange rate). From 1989-2005, around 75 films were released per year with an average revenue of KRW ₩2.7 billion per film (roughly USD $2.2 million at the current exchange rate), a signal of the improvement in film quality.

Brian Yecies of the University of Wollongong Australia agrees that Korea’s efforts to liberalize in the 1980s and address censorship enhanced competition. As Hollywood expanded into Asia-Pacific markets, Korean cinema became stronger. The increased distribution and exhibition of U.S. films, Yecies argues, gave birth to a new generation of moviegoers who also increased their consumption of Korean content. Park Moo Jong credits three elements with reviving the Korean film industry: talented young filmmakers, the virtual abolition of government censorship, and remarkable technological developments. In short, he says, “Good films attract fans.”

EU streaming requirements

The Streamed Show Must Go On

In a 2019 submission to the U.S. Trade Representative, the Motion Picture Association pointed out that the industry’s international sales “now depend increasingly on member companies’ ability to capitalize on major distribution windows in the digital market.”

The need to remove barriers to stream internationally and enable competition holds true for online streaming as it has for many years for screening in theaters. As streaming gains momentum, trade agreements will continue to tackle the array of barriers the U.S. film industry faces abroad, from intellectual property challenges to subsidies to foreign investment restrictions. Likewise, negotiators will work to advance market access for creative content as it flows through both traditional and new distribution platforms. After Parasite’s surprise Best Picture Oscar win, who knows if 2021 may bring our first direct-to-digital winner? Put your feet up and get the popcorn ready.

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Leslie Griffin is Principal of Boston-based Allinea LLC. She was previously Senior Vice President for International Public Policy for UPS and is a past president of the Association of Women in International Trade in Washington, D.C.

This article originally appeared on TradeVistas.org. Republished with permission.
section 301

USTR Initiates Section 301 Digital Services Tax Investigations Covering India, the European Union and Several Other Countries

The Office of the U.S. Trade Representative (“USTR”) announced on June 2, 2020 that it is initiating Section 301 investigations on Digital Services Taxes (“DSTs”) adopted or under consideration by Austria, Brazil, Czech Republic, the European Union (“EU”), India, Indonesia, Italy, Spain, Turkey, and the United Kingdom (“U.K.”). The Section 301 DST investigations could lead the U.S. to impose new punitive tariffs and could significantly raise global trade tensions.

USTR is soliciting public comments from parties and these must be submitted no later than July 15, 2020. Written comments should be submitted through the Federal eRulemaking Portal at http://www.regulations.gov under docket number USTR-2020-0022. According to the Federal Register notice, the USTR invites comments with respect to:

-Concerns with one or more of the DSTs adopted or under consideration by the jurisdictions covered in these investigations.

-Whether one or more of the covered DSTs is unreasonable or discriminatory.

-The extent to which one or more of the covered DSTs burdens or restricts U.S. commerce.

-Whether one or more of the covered DSTs is inconsistent with obligations under the WTO Agreement or any other international agreement.

-The determination required under section 304 of the Trade Act, including what action, if any, should be taken.

Over the last couple of years, various governments have enacted or considered taxes on revenues generated by companies from providing digital services within those jurisdictions. While the proponents of DSTs argue that the tax corrects corporate taxation to cover previously untaxed or undertaxed revenues, the position of the Trump administration, including the USTR, is that DSTs unfairly discriminate against “large, U.S.-based tech companies” such as Amazon and Google. USTR’s announcement provides a brief but detailed overview of the current status of each of the named jurisdictions’ enacted or proposed DSTs.

USTR’s initiation of Section 301 investigations follow a period of intermittent tensions between the U.S. and some of its trading partners over proposed DSTs. In December 2019, the U.S. and France nearly began a trade war over the DST adopted by France, which USTR described as “unreasonable, discriminatory, and burdensome on U.S. commerce.” However, these tariffs were never implemented on imports of products from France. In January of this year, the Trump administration had also threatened the U.K. with tariffs on imports of British cars if the U.K. pressed forward with its DST.

A possible result of these new investigations will be the institution of additional tariffs on imports of products from each of the named countries but that remains to be seen and will depend in large part on the support or opposition to the institution of trade remedies in the comments filed on the record of these investigations.

Husch Blackwell continues to monitor the Section 301 investigations on Digital Services Taxes and will provide further updates as more information becomes available. We encourage clients and companies to review the USTR’s announcement and Federal Register notice.

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Nithya Nagarajan is a Washington-based partner with the law firm Husch Blackwell LLP. She practices in the International Trade & Supply Chain group of the firm’s Technology, Manufacturing & Transportation industry team.

Grant Leach is an Omaha-based partner with the law firm Husch Blackwell LLP focusing on international trade, export controls, trade sanctions and anti-corruption compliance.

Cortney O’Toole Morgan is a Washington D.C.-based partner with the law firm Husch Blackwell LLP. She leads the firm’s International Trade & Supply Chain group.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

mandatory declaration

CFIUS Proposes Changes to Mandatory Declaration Requirements

On May 21, 2020, the U.S. Department of the Treasury published a proposed rule that would amend the scope of mandatory filings before the Committee on Foreign Investment in the United States (“CFIUS”), an interagency body that reviews foreign investments into the United States to assess national security risks. The proposed rule follows the Treasury Department’s publication of the regulations implementing the Foreign Investment Review Modernization Act, a statute passed in 2018, which aimed to streamline and modernize the CFIUS review process.

We previously summarized the CFIUS regulations here and here. The proposed rule amends the scope of the mandatory declaration requirement for transactions involving U.S. businesses involved in critical technologies and makes clarifying revisions to the definition of “substantial interest” in the context of acquisitions involving foreign governmental involvement.

Modification of Critical Technology Rules for Triggering Mandatory Declarations

Most notably, the proposed rule would make three key changes to criteria triggering a mandatory declaration requirement in transactions involving a “TID U.S. business” involved in “critical technologies.” (For an analysis of what constitutes a TID U.S. business, please see our earlier alert here.) The current rule requires a mandatory declaration to be filed, among other circumstances, in a covered investment or covered control transaction of a U.S. business involved in critical technologies that are used or designed for one or more industries identified by NAICS codes in Appendix B to 31 C.F.R. Part 800. The proposed rule would, first, refine the scope of the critical technologies triggering the mandatory declaration by covering only those technologies that would require “U.S. regulatory authorization” for the export, re-export, transfer (in-country), or retransfer to the foreign acquirer involved in the transaction.

Second, as described further below, while focused in the first instance on the nationality of the foreign acquirer, if the foreign acquirer is itself subject to an ownership interest of 25% or more from a person in a third country, the export licensing requirements applicable to that third country person will also be relevant.  Third, the amendments would eliminate the current requirement that the TID U.S. business be listed as one of the industries identified in Appendix B.

Regarding the first element, the proposed rule would define the term “U.S. regulatory authorization” to include authorization required by the Department of State under the International Traffic in Arms Regulations (“ITAR”); the Department of Commerce under the Export Administration Regulations (“EAR”); the Department of Energy relating to assistance to foreign atomic energy activities; or the Nuclear Regulatory Commission related to the export or import of nuclear equipment and material. In most cases, the availability of a license exception under the applicable export control regime would not be given effect; that is, if the export requires a license to the applicable parties under the relevant export control regime, the availability of a license exception for export would not similarly provide an exception to the mandatory declaration rule.

There are, however, four carve-outs—the first concerns the general authorization under Department of Energy export controls, and the other three concern three license exceptions under Part 740 of the EAR (specifically, the Strategic Trade Authorization (STA); Technology and Software – Unrestricted (TSU); and paragraph (b) of the Encryption (ENC) license exceptions). Thus, for example, transactions with foreign acquirers from countries with favorable treatment under the EAR’s Strategic Trade Authorization (STA) license exception at 15 C.F.R. § 740.20(c)(1) may be exempt from mandatory declaration requirement under the proposed rule. Second, the proposed rule could potentially expand the scope of transactions that trigger a mandatory declaration based on the export license requirements applicable to owners of the acquiring foreign entity.

In this regard, the proposed rule would also make the mandatory declaration requirement applicable to transactions where there is a foreign person who holds or is part of a group of foreign persons that together hold, a “voting interest for purposes of critical technology mandatory declarations” in a foreign acquirer. The proposed rule defines the term “voting interest for purposes of critical technology mandatory declarations” as a 25% voting interest or, in the case of entities organized as partnerships, a 25% interest in the general partner, managing member, or equivalent of the entity.  Thus for, example, if foreign acquirer X of a TID U.S. business is from country to which a critical technology can be exported without a license, but X is 25% or more owned by Y in a third country to which an export license would be required, the mandatory declaration regulation would be triggered.

Finally, although not necessarily its intent, the proposed rule may actually broaden the application of the mandatory declaration requirement by removing the current Appendix B, such that the declaration requirement would no longer be limited to only those 27 industries listed in Appendix B. As a result, any acquisition of a U.S. TID business with the requisite involvement with a critical technology may trigger the mandatory declaration requirement, without regard to the industry in which the TID business operates.

Modification of Definition of “Substantial Interest”

The proposed rule would also amend the definition of “substantial interest” for purposes of transactions involving foreign governments. The current regulations require a mandatory declaration to be filed in transactions where a foreign person obtains a “substantial interest” in a TID U.S. business, and a foreign government (other than excepted foreign governments, currently only the U.K., Australia, and Canada) has a “substantial interest” in the foreign acquirer. The current definition of “substantial interest” applies, with respect to a foreign government’s interest in a foreign acquirer organized as a partnership or similar entity, when the foreign government holds at least 49% of the general partner, managing member, or equivalent of the entity.

The proposed rule would narrow that provision by applying it only when the general partner or equivalent entity primarily directs, controls, or coordinates the activities of the foreign acquirer. The current rule also contains a provision that any “voting interest” held by a parent entity in a subsidiary entity will be deemed to be 100%. Because there was some confusion as to whether this provision applied to non-voting partnership interests, the proposed rule would remove the term “voting” to clarify that this provision applies to such entities organized as both corporations (and equivalent entities) and partnerships (and equivalent entities).

Comments Due by June 22, 2020

Comments on the proposed rule may be submitted through June 22, 2020.  Parties with interests which may be impacted by the rule should strongly consider submitting comments prior to this deadline to ensure that all relevant industry insight is considered by CFIUS prior to the final rule becoming effective.

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exclusions

U.S. Trade Representative Grants Additional Exclusions to Chinese-Origin Products Subject to Section 301 Tariffs

As we have previously reported, the U.S. Trade Representative (USTR) has announced expanded product exclusions during the fight against the spread of COVID-19 and the initial phase of the trade agreement signed with China in January 2020.

The latest notice of exclusions occurred on May 8, 2020, (85 FR No. 90, 27489 through 27505) and pertains to certain products of Chinese-origin that were subject to additional duties of 10 percent ad valorem, effective on September 24, 2018. In May 2019, the USTR increased the additional duty to 25 percent ad valorem. (84 FR 20459). On June 24, 2019, the USTR published notice establishing a process by which interested parties could request exclusion of particular products classified within an eight-digit HTSUS subheading covered by the September 24, 2018, action. Parties seeking exclusions were required to identify the product subject to the request in terms of the physical characteristics that distinguish it from other products within the eight-digit HTSUS. Additionally, parties had to provide the 10-digit HTSUS subheading most applicable to the particular product requested for exclusion.

In the Annex to the May 8 notice, the exclusions are reflected in two 10-digit HTSUS subheadings and 144 specially prepared product descriptions. The exclusions will apply from September 24, 2018, to August 7, 2020. The USTR may consider extending the exclusion period beyond August 7 and interested persons should remain diligent regarding any notices from USTR requesting comments on whether to grant or deny an extension beyond August 7. In addition, interested parties should remain diligent to Customs and Border Protection notices regarding procedures by which importers may seek refunds of additional duties that were imposed on products that are now subject to product exclusion.

The two specific HTSUS subheadings covered by the May 8 notice are 6902.20.5020 (certain refractory blocks, tiles and similar refractory ceramic constructional goods) and HTSUS 4819.50.4060 (certain packing containers, including record sleeves).

Because of the large number of product exclusions, we have identified below, for example purposes only, a few of the 144 specially prepared product descriptions covering excluded products. As noted by USTR, the exclusions are available for any product that meets the description in the Annex, regardless of whether the importer benefitting from the exclusion filed an exclusion request. As also noted by USTR, the scope of the exclusion is governed by the scope of the product description in the Annex and not by the product descriptions found in any particular request for exclusion.

Product exclusions include certain catalysts (HTSUS 3815.19.00.00); certain vibration control goods (HTSUS 4016.99.55.00); certain backpacks (HTSUS 4202.92.31.20); certain laminated flooring (HTSUS 4412.10.90.00); certain sinks and sink pedestals of natural granite for bathroom and kitchen use (HTSUS 6802.93.00.90); certain rear view mirrors for specific types of vehicles (HTSUS 7009.10.00.00); microscope slides (HTSUS 7017.90.10.00); certain laboratory glassware (HTSUS 7017.90.50.00); certain machine tool castings (8466.93.1560); certain reversing valves (HTSUS 8481.80.90.05); and certain other valves covered by HTSUS 8481.80.90.15.

In addition to the foregoing, the May 8 notice also contains certain amendments reflecting technical corrections to certain relevant notes of the HTSUS.

Also of importance, U.S. Customs and Border Protection has stated that “[t]o request a refund of Section 301 duties paid on previous imports of products granted duty exclusions by the USTR, importers may file a Post Summary Correction (PSC) if within the PSC filing timeframe. If the entry is beyond the PSC filing timeframe, but within 180 days of the liquidation action, importers may protest the liquidation.” See CSMS #41878462

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By Brian S. Goldstein, Geoffrey M. Goodale, J. Manly Parks, Patrick C. Gallagher, Ph.D., and Nathan B. Reeder at Duane Morris LLP.