On August 10, 2021, the U.S. Senate passed the USD 1 trillion infrastructure bill, known formally as the Infrastructure Investment and Jobs Act (Infrastructure Bill). The Infrastructure Bill includes provisions for approximately USD 550 billion in new federal spending over 10 years on various transportation, broadband, utilities and other infrastructure projects.

Various revenue raising provisions are earmarked to offset the additional spending. Among those revenue raising provisions, the Infrastructure Bill contemplates that USD 28 billion in income tax attributable to the disposition of digital assets will be collected over 10 years. The Infrastructure Bill anticipates generating this revenue by facilitating compliance with digital asset users’ tax payment obligations by imposing reporting requirements on ‘‘brokers’’ of ‘‘digital asset’’ transfers. Digital assets for purposes of these amendments is meant to include cryptocurrencies.

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* Article was first published in the Tax Management Memorandum

The post Cryptocurrency Industry, Bi-Partisan Group of Senators Criticize Provision of Senate-Passed Infrastructure Bill appeared first on Global Compliance News.

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In brief

Shelter-in-place or stay-at-home orders have been prevalent throughout the United States since March 2020 as state and local governments have sought to protect their citizens from the spread of the COVID-19 virus while at the same time reopen their economies in accordance with phased reopening plans. Keeping abreast of the evolving nature of these orders and plans as the spread of the virus continues to evolve is critical to the functioning of all businesses throughout the country.


Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates, as well as the applicable state-wide reopening plans, in each of the 50 United States plus Washington, D.C. The “What’s Open” table on each page highlights the reopening status of four major sectors (office, manufacturing, retail and bars/restaurants).

In addition, the Tracker includes links to the relevant quarantine requirements or recommendations for incoming travelers in each state plus Washington, D.C.

Key developments reflected in this week’s update to the Tracker include the following:

  • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Delaware, Illinois, Iowa and New Mexico. 
  • The following jurisdictions imposed new face covering requirements: Illinois, Nevada, Oregon, Washington and West Virginia.

You can also view our brochure which highlights key areas of expertise where we can support your business’s tracking and reopening plans. Please call or email your regular Baker McKenzie contact if you require additional analysis regarding these matters.

Last updated 27 August 2021

Download US Shelter-In-Place / Reopening Tracker

The post United States: 50 State Shelter-In-Place / Reopening Tracker appeared first on Global Compliance News.

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In brief

The US Securities and Exchange Commission (SEC) recently published a request for information and comment on how broker-dealers and investment advisers use digital engagement practices (DEPs) — behavioral prompts, differential marketing, “gamification,” and other design elements and features that firms use to engage with retail investors through digital platforms and mobile applications.  

The SEC seeks input about the current use of DEPs, tools and methods such as predictive data analytics and artificial intelligence/machine learning models that firms may use to operate and customize DEPs based on investor behavior or characteristics, and how DEPs interact with existing regulatory requirements for broker-dealers and investment advisers. The SEC is also focused on how investment advisers use technology to develop and provide advice both through digital programs and more traditional advisory services.

Comments are due on 1 October 2021.


Click here to download the Full Alert.

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In brief

Welcome to Baker McKenzie’s new Labor and Employment video chat series for US employers. Our lawyers will provide quick, practical tips on today’s most pressing issues for US employers navigating the new normal. The videos complement our blog, The Employer Report, which provides written legal updates and practical insights about the latest labor and employment issues affecting US multinationals, at both the domestic and global level.

Please click below to watch the video chats and be sure to let us know if there are additional topics you’d like us to address.


Speakers: Robin Samuel and Helena Engfeldt

Speakers: Michael BrewerSusan Eandi and Robin Samuel

Speakers: Paul EvansMichael LeggieriKaitlin Thompson

Speakers: JT CharronJeff MartinoKatelyn Sprague and Billie Wenter

Speakers: Susan EandiElizabeth EbersoleMelissa Allchin and Erik Christenson

Speakers: Susan EandiRobin Samuel and Brian Hengesbaugh

Speakers: William DuganKrissy Katzenstein and Aleesha Fowler

Speakers: Susan Eandi, Emily Harbison and Robin Samuel

Speakers:  Robin SamuelJeffrey Sturgeon and Stephanie Priel

Speaker: Susan Eandi

Speakers: Melissa AllchinRobin Samuel, and Harry Valetk

Speakers:  Susan Eandi, Emily Harbison and Krissy Katzenstein

Speakers: William DuganRobin Samuel and Goli Rahimi

Speakers: Michael Brewer and Teresa Michaud

Speakers: Paul EvansBlair Robinson and Autumn Sharp

Speakers: Elizabeth EbersoleCaroline Pham and Robin Samuel

Speakers: Susan Eandi, Emily Harbison and Robin Samuel

Speakers: Anna Brown, Susan Eandi and Emily Harbison

Speakers: Caroline BurnettBlair RobinsonAutumn Sharp and Jeff Sturgeon

Speakers: Caroline BurnettBlair RobinsonAutumn Sharp and Jeff Sturgeon

Speakers: Caroline Burnett, Lara Grines and Jeff Sturgeon

If you’re looking for guidance related to the pandemic, please check out the below Reopening Playbook video chat series. It covers practical topics like masks in the workplace, expense reimbursement requirements, employee testing and screening and much more.

Reopening Playbook Video Chat Series

Speakers: Elizabeth EbersolePaul Evans and Robin Samuel

Speakers: Susan EandiPaul Evans and Emily Harbison

Speakers: Emily Harbison, Michael Brewer and Robin Samuel

Speakers: Susan Eandi, Emily Harbison and Robin Samuel

Speakers: Emily Harbison, Paul Evans and William Dugan

Speakers: Michael Brewer and Billie Wenter

Speakers: Michael BrewerSusan Eandi and Emily Harbison

Speakers: Bradford NewmanJoseph DengBillie Wenter and Robin Samuel

Speakers: Susan EandiChristopher GuldbergBetsy Morgan and Grant Uhler

Speakers: Paul EvansRobin Samuel and Billie Wenter

Speakers: Michael Brewer, Emily Harbison and Michael Leggieri

Speakers: Michael BrewerPaul EvansJeffrey Sturgeon and Billie Wenter

Speakers: Anne Batter, Emily Harbison and Benjamin Ho

Speakers: Michael BrewerJoe Deng and Susan Eandi

Speakers: Michael LeggieriTeresa Michaud and Billie Wenter

Speakers: Paul Evans, Emily Harbison and Jeffrey Sturgeon

Speakers: William Dugan, Emily Harbison and Brian Hengesbaugh

Speakers: Susan EandiBenjamin HoChristopher Guldberg and Arthur Rooney

Speakers: Melissa AllchinWilliam Dugan and Betsy Morgan

Speakers: Joseph DengRobin Samuel and Amy de La Lama

Speakers: Michael BrewerMark Goodman and Teresa Michaud

Speakers: Susan EandiPaul Evans and Emily Harbison

Speakers: Christopher Guldberg and Benjamin Ho

Speakers: Michael Brewer and Teresa Michaud

The post United States: The Employer Rapport – Quick chats for the US workplace (Video Chat) appeared first on Global Compliance News.

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In brief

Since the reelection of the president of Belarus, Alexander Lukashenko, a year ago, Belarus has become subject to phased tightening of international sanctions restrictions.

In 2021, every wave of sanctions was caused by various “acts of aggression” connected with the current president of Belarus, including the forced landing of a Ryanair passenger plane in Minsk and the detention of a political activist who was onboard on 23 May 2021 (the so-called Ryanair incident).

Belarus-related sanctions restrictions were recently introduced by the United States, the European Union, the United Kingdom, Canada, Switzerland and Ukraine. The objective of newly introduced sanctions is to mount international pressure against the current oppressive regime in Belarus by preventing international companies from doing business in selected economic sectors of this country.

In this article, we discuss in more detail the sanctions restrictions recently introduced by the US, the EU, the UK, Canada, Switzerland and Ukraine with respect to Belarus.


Click here to read full alert.

The post International: Overview of sanctions currently applicable to Belarus appeared first on Global Compliance News.

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In brief

The United States Department of Labor, Occupational Safety and Health Administration (OSHA) has decided to sing the same song as its sister agency. Last Friday, 13 August, OSHA updated its guidance for American workplaces, auto-tuning its recommendations for fully vaccinated employees to match recent guidance issued by the Centers for Disease Control and Prevention (CDC).


In depth

Specifically, on the topic of workplace vaccination, OSHA now “suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

In so doing, OSHA joins the growing ensemble of government agencies recommending vaccine mandates, while public and private employers rush to require their workers to get vaccinated or undergo regular testing. (For details on this momentum, read more here or watch our video chat here.)

Additional Recommendations

OSHA updated its guidance to help employers and workers not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at risk even if fully vaccinated (e.g., immunocompromised individuals).

The guidance encourages employers to engage with workers and their representatives to determine how to implement multi-layered intervention strategies to protect unvaccinated and otherwise at-risk workers and mitigate the spread of COVID-19, including:

  • Encouraging and facilitating employees to get vaccinated by providing paid time off, working with local agencies to offer vaccination clinics in the workplace, and adopting policies that mandate employee vaccination.
  • Instructing infected workers, unvaccinated workers who have had close contact with a positive COVID-91 case, and all workers with COVID-19 symptoms to stay home from work.
  • Implementing physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers.
  • Providing workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE. In addition to unvaccinated and otherwise at-risk workers, CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission.
  • Suggesting or requiring that unvaccinated customers, visitors, or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission.
  • Recording and reporting COVID-19 infections and deaths, in compliance with mandatory OSHA rules.
  • Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 related hazards.

Takeaways

While OSHA’s guidance is advisory, and not mandatory, employers would be wary of that siren song. Keeping the beat with recommended health and safety guidance, even when not compelled, puts employers in the best position to protect their people and defend against claims.

For help developing your return to office plans, please contact your Baker McKenzie employment lawyer.

The post United States: OSHA joins the chorus – Updated agency guidance encourages employers to mandate the jab appeared first on Global Compliance News.

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On January 19, 2021, the US Commerce Department (“Commerce”) published an interim final rule (“Interim Rule”) to implement Executive Order 13873, “Securing the Information and Communications Technology and Services (“ICTS”) Supply Chain.” The Interim Rule was issued following the public comment period’s closure on January 10, 2021 on the proposed rules issued on November 27, 2019 (“Proposed Rules”). For more information on the Proposed Rules and the Interim Rule, please see our blog posts here and here.

When it requested comments on the Interim Rule, Commerce committed to publishing additional procedures for a licensing process by May 19, 2021. Shortly thereafter, on March 29, 2021, Commerce published an advance notice of proposed rulemaking (“ANPRM”) seeking public comment on potential licensing or other pre-clearance processes for transactions under the Interim Rule. Our blog post on the licensing ANPRM is available here.

The following analysis highlights the main concerns and suggestions from industry groups in response to the Interim Rule and licensing ANPRM.

Industry Groups’ Response to Interim Rule

Commerce received comments on the Interim Rule from more than 100 industry groups, companies, and individuals during the public comment period, which ended on March 22, 2021. This included telecommunications providers, hardware and software companies, Internet and digital service providers, trade associations, and non-profit organizations.

Industry groups generally agree that strengthening the ICTS supply chain is important to US national security and appreciate Commerce’s efforts to address some of industry’s concerns in the Proposed Rules. However, many groups remain concerned about the broad discretion granted to the US Secretary of Commerce (“Secretary”) and the Interim Rule’s sweeping scope. The following concerns reflect the most common critiques among industry groups’ public comments.

  1. Broad scope of covered ICTS transactions. Several commenters submit that the Interim Rule is overbroad and not sufficiently tailored, even with Commerce’s newly added six categories of covered technologies. The National Association of Manufacturers suggests detailed frequently asked questions with particular examples to provide additional insight into covered transactions, while others recommend focusing on ICTS imports, not exports, as a means to narrow the scope. Additionally, some commenters note that even with its broad scope, the Interim Rule fails to prevent or remedy some of the most concerning ICTS supply chain threats (e.g., SolarWinds). Some commenters believe the Interim Rule’s broad scope also raises due process concerns, because businesses lack adequate notice of what transactions may be subject to potential government regulation.
  2. Unclear definitions and terms. Commenters are concerned with definitions of “foreign adversary,” “person owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary,” and “any person subject to the jurisdiction of the United States.” Although the Interim Rule establishes a list of “foreign adversaries” (e.g., China, Cuba, Iran, North Korea, Russia, and Venezuela’s Maduro Regime), some commenters are concerned with the Secretary’s discretion to add or remove countries from this list. Additionally, the definition of “person owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary” raised concerns. An industry association suggests this definition should be clarified to “only cover companies owned and controlled by foreign adversary nations, and not individual citizens of a foreign adversary who may be employed by a company.” Lastly, several groups are concerned with the phrase “any person subject to the jurisdiction of the United States.” The Coalition of Services Industries asks whether Commerce intends this to mean “United States person” or whether it more broadly covers non-US subsidiaries of US persons.
  3. Duplicate agency review. Commenters believe that subjecting ICTS transactions to multiple agency reviews is redundant and burdensome, and may do little to enhance US national security. The Interim Rule exempts ICTS transactions that the Committee on Foreign Investment in the United States (“CFIUS”) is actively reviewing or has reviewed. However, several industry groups are unsatisfied with this rather narrow exclusion and remaining potential for overlapping agency review. The Business Roundtable recommends that Commerce exempt all CFIUS reviews, as well as export controls and Team Telecom reviews. CTIA urges Commerce to exclude all transactions reviewed under existing regulatory regimes to prevent agency overlap.
  4. Retroactive application. Several commenters are concerned that retroactive application will deter US innovation and encourage off-shore investment. As written, the Interim Rule subjects ICTS transactions initiated, pending, or completed on or after January 19, 2021 to review “even if the service was provided pursuant to a contract initially entered into prior to January 19, 2021.” The Information Technology Industry Council urges Commerce to limit the Interim Rule to future transactions only.

Industry Groups’ Response to Licensing ANPRM

In response to the ANPRM, industry groups, companies, and individuals also submitted public comments related to the licensing process for entities seeking pre-approval before engaging in or continuing to engage in ICTS transactions. The following list reflects the most common recommendations for Commerce’s consideration.

  1. Voluntary process. Many industry groups urge Commerce to adopt a voluntary process, which they believe will reduce the burden on industry. Commenters also believe a voluntary process will better ensure Commerce can utilize the pre-clearance and licensing processes as useful tools without creating additional regulatory burdens for themselves. The BSA Software Alliance suggests a voluntary process modeled on advisory opinions issued by Commerce’s Bureau of Industry and Security (“BIS”).
  2. Borrow processes from CFIUS and BIS. Other commenters suggest adapting processes from CFIUS and BIS, such as “red flags” similar to Know Your Customer guidance. One commenter proposes adding validation and monitoring methods at the beginning of the pre-clearance or licensing process and the Information Technology Industry Council urges Commerce to create a safe harbor provisions, similar to those in CFIUS regulations. In suggesting the adaptation of CFIUS and BIS processes, industry groups warn against overlapping agency review in the licensing process. One commenter warns that existing process undertaken by BIS and CFIUS to review transactions already cover much of what the Interim Rule attempts to address.
  3. Application to similar or related transactions. Industry groups urge Commerce to apply licenses to similar or related transactions and ongoing activity connected to an original license. The US Chamber of Commerce suggests allowing multiple or batch ICTS transaction licensing for matters that are factually similar, or are part of longer-term engagements or contracts. The Competitive Carriers Association urges a blanket legal authority to similarly situated businesses, in order to reduce the number of license applications and reduce the regulatory compliance burden. The Aerospace Industries Association states that “it would seem illogical/time-consuming to review every transaction with a named entity.”
  4. Shorter timelines. The Interim Rule provides a 120-day fixed timeline for license application reviews, which many industry groups opposed. Some groups propose a 60-day review, while others advocate for a 30-day review. Additionally, CTIA suggests an automatic adoption mechanism if Commerce fails to issue its decision within the specified review timeline. Generally, industry groups stated that 120 days was inefficient and harmful to US competiveness, and that shorter timelines allowed Commerce sufficient time to determine the national security risk of certain transactions.

Compliance Challenges and Next Steps

The Interim Rule continues to pose many of the same compliance challenges for US businesses as we addressed in our analysis of industry comments to the Proposed Rule. Companies will need to create new supply chain-related compliance programs or otherwise modify existing programs to account for ICTS requirements under the Interim Rule, once Commerce shows signs of how it intends to implement and enforce the Interim Rule. Companies should carefully review transactions that may have a nexus to “foreign adversaries” (e.g., China, Cuba, Iran, North Korea, Russia, and Venezuela’s Maduro Regime), and should be aware that Commerce retains discretion to amend this list. In providing additional detail on the procedures Commerce will follow when reviewing ICTS transactions, Commerce has signaled important criteria for companies to monitor in their ICTS supply chain compliance programs. This includes relevant public information, confidential business or proprietary information, classified national security information, information from parties to a transaction, and information from local, State, federal, and foreign governments.

Commerce is evaluating these comments and will issue a final rule. The Biden Administration signaled its intention to implement the Interim Rule when it issued subpoenas to multiple Chinese companies that provide ICTS services in the United States. We will continue to monitor related ICTS developments.

The authors acknowledge the assistance of Alexandra Pasch in the preparation of this blog post.

The post United States: Industry Groups Continue to Criticize Commerce Department’s Proposed Supply Chain Regulations and Licensing Procedure appeared first on Global Compliance News.

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On August 11, 2021, the US Treasury Department’s Office of Foreign Assets Control (“OFAC”) and the Commerce Department’s Bureau of Industry and Security (“BIS”) issued a joint Fact Sheet: Supporting the Cuban People’s Right to Seek, Receive, and Impart Information through Safe and Secure Access to the Internet (the “Fact Sheet”) and a related press release. The Fact Sheet highlights the most relevant exemptions and authorizations pertinent to supporting the Cuban people through the provision of certain internet and related telecommunications services. The Fact Sheet does not have the force of law and does not supersede any relevant statutes or regulations.  Rather, it was issued to emphasize President Biden’s commitment to ensuring the Cuban people have access to internet and telecommunication services and to encourage the free flow of information in and with Cuba. For additional information on the Biden-Harris administration’s position on Cuba, please see the White House Fact Sheet here.

As noted in the Fact Sheet, although almost all transactions subject to US jurisdiction involving Cuba are prohibited under the Cuba embargo, BIS and OFAC have issued several license exceptions, general licenses (“GLs”), exemptions, and frequently asked questions (“FAQs”) related to the provision of internet-based services in Cuba. Telecommunications and internet-based services and items the export of which to Cuba may be authorized or exempt from prohibitions include:

  • Software and services for Cuban internet users;
  • Provision of telecommunications services and establishment of telecommunications facilities;
  • In-country presence of internet and telecommunications providers;
  • Internet-based distance learning and educational training;
  • Export and import of information and informational materials;
  • Items in Support of the Cuban People e.g. certain items for the creation and upgrade of telecommunications infrastructure to improve the free flow of information to, from, and among the Cuban people, including infrastructure that enables access to the internet and use of internet services; and
  • Consumer Communications Devices.

These license exceptions, GLs, and exemptions vary in scope and should be carefully analyzed before exporting or re-exporting any items or providing any services to Cuba or the Cuban people.

The post United States: OFAC and BIS Issue Joint Fact Sheet in Support of the Provision of Internet and Telecommunication Services to the Cuban People appeared first on Global Compliance News.

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In brief

Can private employers mandate vaccination as a condition of returning to the workplace? The recent spike in the COVID-19 Delta variant has caused the re-closure of worksites or changes to workplace safety protocols, leading to legal developments that provide more clarity to this issue.


In this Quick Chat video, our Labor and Employment lawyers breakdown whether and how private employers can mandate vaccination.

https://video.bakermckenzie.com/embed?id=c2397b33-a7ff-4b72-a07e-1ae5e4969cd4

Clients are finding our Vaccine Analysis Matrix (VAM) helpful. On a state-by-state or country-by-country basis, depending on your organization’s needs, the matrix covers topics like permissibility of mandatory vaccinations, getting proof of vaccination and potential liabilities. This practical tool supports companies in developing their reopening plans and is available for a fixed fee.

Read more about whether US employers can (and should) mandate vaccinations for their workforce in our client alert, United States: Mandating COVID-19 Vaccination? Before You Act, Consider These Key Issues For US and Multinational Employers.

For help navigating the legal landscape of COVID-19 vaccines and drafting and implementing Return to Workplace policies that are compliant in each jurisdiction where your company has headcount, please contact your Baker McKenzie employment lawyer.

The post United States: Momentum to Mandate – What Employers Need to Know Now (Video Chat) appeared first on Global Compliance News.

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In brief

On 5 August, Legal500 and Baker McKenzie held an employment law roundtable discussing best practices for LATAM employers navigating the new normal. Tatiana Garcés (Colombia), Javiera Medina (Mexico) and Leticia Ribeiro (Trench Rossi Watanabe in Brazil) were joined by general counsels Gabriela Rodríguez (Stryker) and Catalina Robledo (Nissan).

Together, the panel shared insights around remote work, hybrid work and managing mental health issues in the workplace.
 


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