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Developments

General Counsel Kelly Welsh Travels to Beijing and Wuhan, China

GC Welsh travels to China

General Counsel Kelly Welsh traveled to Beijing and Wuhan, China, the week of January 12 to discuss how the United States and China can work together to promote commercial rule of law.

President Obama and Secretary Pritzker have repeatedly emphasized the importance of a commitment to a strong rule of law for promoting economic growth. General Counsel Welsh bolstered the U.S.-China dialogue by spending time with academics, legal professionals, the media, Chinese government officials, and U.S. business leaders.

In a speech at the Beijing American Center, General Counsel Welsh spoke to a large audience about the importance of a transparent, accountable, and predictable commercial legal system.

General Counsel Welsh said:

During my experience as a senior executive and general counsel for U.S. companies, I saw the link between a strong commercial rule of law and economic growth first hand. When deciding which countries to invest in, or to market our services in, the strength of a country’s rule of law was always a critical factor in our company’s decision-making.

General Counsel Welsh led the U.S. delegation for the 19th U.S.-China Legal Exchange, a longstanding public dialogue with China’s Ministry of Commerce under the Joint Commission on Commerce and Trade (JCCT) Commercial Law Working Group.  Experts from the U.S. Environmental Protection Agency, the National Institute of Standards and Technology (an agency of the Department of Commerce), the Federal Trade Commission, and the private sector, presented to large public audiences at Tsinghua University and Wuhan University on topics of key concern to both the United States and China:  U.S. laws and policies on air pollution, and commercial cybersecurity and data privacy.

The General Counsel also met with Chinese government officials to discuss the U.S. approach to cybersecurity, including the NIST Cybersecurity Framework, and to urge China to enforce its laws criminalizing bribery of foreign public officials, to ensure that all companies compete on a level playing field throughout the world.

The General Counsel’s trip highlights the importance for Secretary Pritzker and the Department of Commerce of promoting strong commercial rule of law wherever U.S. companies do business. By promoting a strong rule of law, the United States and China can work together to create a global business climate that fosters growth and innovation.

CLDP Launches Power Purchase Agreements Handbook

The recently published “Understanding Power Purchase Agreements” handbook was highlighted as a major achievement of President Obama’s Power Africa initiative during the Power Africa Private Sector Partners Meeting on January 28 in Washington, DC. 

Power Africa is an initiative to increase the number of people with access to power in sub-Saharan Africa.  At the Private Sector Partners Meeting, USAID Administrator Rajiv Shah and Power Africa Coordinator Andy Herscowitz noted the important role the handbook will play in promoting power projects.

The handbook — produced through a partnership between the Office of General Counsel’s Commercial Law Development Program and the African Legal Support Facility — features over a dozen leading power project contract experts from the US Government, African Governments, banks, development finance institutions, developers and law firms. The best practices guide is intended to provide a common understanding of the most important terms in Power Purchase Agreements, which are at the core of most privately-financed power projects. The book is available for download on the Commercial Law Development Program’s website.

Remarks of General Counsel Kelly R. Welsh at Beijing American Center

Remarks of General Counsel Kelly R. Welsh at Beijing American Center on January 13, 2015.

Click for full remarks in English and Chinese.

Office of General Counsel Awards Ceremony 2014

OGC Awards 2014

The Office of General Counsel held its Annual Awards Ceremony with Deputy Secretary Bruce Andrews and General Counsel Kelly Welsh on December 2, 2014. The ceremony recognized two Attorneys of the Year and a Support Staff of the Year.

General Counsel Welsh applauded the broad range of accomplishments of OGC staff in 2014, and he highlighted the office’s contributions to advancing the mission of the Department of Commerce.

Deputy Secretary Andrews delivered remarks at the ceremony, thanking members of OGC for their tireless work on behalf of the Department. Deputy Secretary Andrews also presented awards to OGC employees with 30, 35, and 40 years of public service.

Deputy General Counsel for Strategic Initiatives Dawn Yamane Hewett presented the Distinguished Employee Awards to 32 OGC employees from across the country for their outstanding contributions to OGC efforts and initiatives. She also recognized the creation of NOAA’s Attorney Honors Program and honored the program’s founders.

Finally, General Counsel Welsh and Deputy General Counsel Justin Antonipillai presented the Attorney of the Year Awards and the Support Staff of the Year Award.

Lauren Didiuk and Benjamin Friedman received the Attorney of the Year Award.

Lauren Didiuk is the Chief of the Contract Law Division of the Office of the Assistant General Counsel for Finance and Litigation. Ms. Didiuk was chosen as Attorney of the Year for being an outstanding leader who has demonstrated an uncanny ability to resolve difficult matters. She worked tirelessly through the recent government shutdown and provided legal support to the Department’s first Federal Funded Research and Development Center, the National Cybersecurity Center of Excellence.

Ben Friedman is the Deputy General Counsel at NOAA.  Mr. Friedman was chosen as Attorney of the Year for his exceptional service in assisting the Department as a whole with a number of oversight investigations.  He has provided instrumental legal guidance on key issues for the Department and frequently rises abovet his routine duties to advise myriad members of OGC.

Christine Martin was recognized as the Support Staff of the Year. Christine Martin works in the Weather, Satellite and Research Section and the Fisheries and Protected Resources Sections of NOAA’s Office of General Counsel. Ms. Martin was instrumental in the successful completion of the 15th floor SSMC3 renovation project. She also provided outstanding support in a wide spectrum of other activities, including: personnel management, supply management, travel management, and records management. 

U.S. - China Transnational Bribery Dialogue

Deputy General Counsel for Strategic Initiatives, Dawn Yamane Hewett, speaking

On October 27th, 2014, Department of Commerce Deputy General Counsel for Strategic Initiatives Dawn Yamane Hewett and the Office of the General Counsel hosted the Fifth U.S. – China Transnational Bribery Dialogue under the auspices of the Ninth Joint Liaison Group Anti-Corruption Working Group (JLG ACWG), a bilateral law enforcement dialogue led by the U.S. Justice and State Departments. The U.S.-China Transnational Bribery Dialogue, first held in 2010, is a bilateral initiative aimed at fostering discussion and sharing best practices on transnational bribery laws and compliance, with a view to decreasing trade barriers such as bribery in international business transactions. The Chinese delegation was led by the Ministry of Supervision, and included representatives from the Supreme People’s Procuratorate, the Ministry of Foreign Affairs, the Ministry of Public Security, the Ministry of Justice, as well as the People’s Bank of China.   Private sector representatives from business associations, U.S. companies, and law firms also participated in the dialogue and asked questions about the Chinese anticorruption campaign and China’s enforcement of its foreign bribery law.  The U.S. and Chinese government representatives agreed on the importance of fighting transnational bribery and working together to improve the international business environment for all of our companies.

Africa Leaders’ Summit “Driving Investment in Power Africa"

As a follow-up to the series of Power Purchase Agreement (PPA) consultations conducted in the United States and East and West Africa this summer, the Commerce Department hosted Driving Investment in Power Africa program on the sidelines of the U.S. Africa Leaders’ Summit. The Commerce Department event was coordinated by the Office of General Counsel Front Office, Commercial Law Development Program of the Department’s General Counsel’s Office in partnership with the Initiative for Global Development (IGD) and the US Agency for International Development. The program brought together investors in the African power market and U.S. and African government officials to discuss the role of U.S. government agencies in facilitating investment in power in Africa. The first draft of CLDP’s Guide to Understanding Power Purchase Agreements was also presented at the workshop.  The dynamic mix of participants in the Driving Investment program engaged in a productive dialogue before a standing-room only crowd. Julie Wenah of the Office of the General Counsel welcomed the participants and General Counsel Kelly Welsh provided opening remarks. State Department Deputy Assistant Secretary Robert Ichord gave an overview of President Obama’s Power Africa initiative and USAID Power Africa Policy Coordinator Roseann Casey highlighted the broad array of US government support within Power Africa. International Trade Administration Deputy Assistant Secretary Matthew Murray stressed the role of power in driving increased investment in Africa, as well as the Department of Commerce’s commitment to facilitating trade and investment by U.S. companies in Africa. Honored guests included Niger Minister of Commerce for Promotion of the Private Sector, Alma Oumarou and Rwanda Former Minister of Infrastructure, Professor Silas Lwakabamba. Also, three business delegation leaders from Secretary Pritzker’s May 2014 West Africa Trade Mission attended: Yolanda Parker of The Parker Group LLC, Kevon Makell and David Ellis of SEWW Energy.The highlight of the program was a roundtable discussion featuring a panel of CEOs of private-sector developers and lenders with additional contribution from the African government delegates in attendance.

Leading Our Team: The Office of General Counsel Senior Management Retreat

Deputy General Counsel Justin Antonipillai discussing Secretary's initiative

This year the Office of General Counsel hosted its yearly Senior Management Retreat at the United States Patent and Trademark Office. The retreat started with an open and engaging conversation with White House Counsel, Neil Eggleston who discussed his experiences in the federal government and its utility in supporting the Obama Administration as White House Counsel.

In support of Secretary Pritzker’s “America is Open for Business” Agenda, the Office of the General Counsel hosted two panel sessions supporting Strategic Goals Two and Three, Innovation and Environment. One panel focused on the overall lifecycle of innovation and was led by Vikrum Aiyer, Deputy Chief of Staff for the United States Patent and Trademark Office and Gregory Godbout, Deputy Associate Administrator and Executive Director of 18F at the General Services Administration. On environment, the additional panel focused on the impact of climate change and the Administration’s response with guest speakers Brandi Colander, Counselor to the Assistant Secretary for Land and Minerals Management at the Department of the Interior and Tom Karl, Director of the National Climatic Data Center for the National Oceanic and Atmospheric Administration. Deputy General Counsel Justin Antonipillai discussed the Secretary’s vision on management, mentoring, and training at the Commerce Department

Power Africa: Power Purchase Agreements Consultation Workshop

Led by Nnamdi Ezera and Mohamed Badissy, The Commercial Law Development Program (CLDP) held a Regional Stakeholders Workshop on Refining the Annotation of Africa Power Purchase Agreements (PPAs) in Abuja, Nigeria. The program featured 70 participants, including government officials and representatives from power utilities, transmitters, distributors and regulators in West Africa. The program is a follow-up to a CLDP program in March 2014 to review and annotate the most heavily negotiated and disputed provisions of power project contracts. This second program aimed to gain much-needed government stakeholder perspectives and ownership of the annotated PPA. It was attended by the Nigerian Minister of Power and CEOs from the Nigerian Bulk Electricity Trading Plc, the Nigerian Electricity Regulatory Commission, and the Africa Finance Corporation. Julie Wenah provided reflections from Secretary Pritzker’s West Africa Trade Mission and Trade and Investment Speech the previous month in Accra, Ghana and Lagos, Nigeria as well as the Administration's commitment to double access to power in Sub-Saharan Africa. Attorney-experts from the Overseas Private Investment Corporation and international and Nigerian firms gave presentations on offtake obligations, power payments, force majeure, sovereign guarantees, and dispute resolution. The issues raised and the perspectives gleaned from the workshop will be the basis for potential power-market reform, and will be included in the final PPA Annotation tool.

Deputy General Counsel Antonipillai in the Gulf: The Role of the Judiciary and Insolvency

On May 12, 2014, Deputy General Counsel, Justin Antonipillai and CLDP led a workshop on insolvency for over 30 UAE commercial court judges representing four of seven emirates, hosted by the Institute for Training and Judicial Studies (ITJS). The purpose of the workshop was to outline the role of the judiciary in the fair and expedited adjudication of bankruptcy cases, and share best practices to ensure equitable outcomes. CLDP expert Don De Amicis, the former General Counsel of the Overseas Private Investment Corporation (OPIC), provided input throughout the proceedings.

 Afterwards, Deputy General Counsel Antonipillai met with the UAE Minister of Justice, His Excellence Dr. Hadef Al Dhaheri along with the US Ambassador to the UAE, Michael Corbin. During the meeting, they discussed the upcoming CLDP commercial law-training program for UAE judges in the US as a necessary step in improving business and trade in the region in particular for US companies.

 

On May 14, 2014, Deputy General Counsel, Justin Antonipillai, led a commercial law liberalization workshop with Bahraini Parliamentarians, Shura Council members, and private sector leaders. The workshop, co-hosted by the Bahrain Chamber of Commerce & Industry and Ministry of Industry and Commerce, was the third in a series that provided in-depth training on insolvency law discussing restructuring strategies and Bahrain’s long-term commercial growth opportunities.

Deputy General Counsel Antonipillai’s meeting with the Minister of Industry and Commerce, His Excellency Dr. Hasan Fakhro, as well as representatives from the private sector and civil society organizations, bolstered relations following the Secretary’s recent visit to the region.

General Counsel Kelly Welsh Visits USPTO during Community Day

Celebrating diversity in the workplace is important to the United States Patent and Trademark Office (USPTO). General Counsel Kelly Welsh joined USPTO General Counsel Sarah Harris in celebrating the USPTO’s 17th Annual Community Day. Annually, the USPTO hosts Community Day to rededicate the importance of diversity and the impact it has in creating innovative approaches in client engagement, team building, and better work product. The event brings the community of the USPTO together to show not only how they differ in individual backgrounds and lives, but how they can come together to form the greatest intellectual property community in the world. General Counsel Welsh also met with the USPTO’s senior leadership, legal chiefs, staff attorneys and support staff. After meeting with USPTO staff, an official program commenced with reflections by Deputy Under Secretary of Commerce for Intellectual Property Michelle Lee and Mayor of the City of Alexandria William Euille. Following the program, the community set up booths discussing their organizations and a food fair for the public.

U.S. Commerce Department General Counsel Cameron F. Kerry Delivers Final Policy Address at the German Marshall Fund of the United States

General Counsel Cameron F. Kerry at the German Marshall Fund of the United States

On August 28, 2013, General Counsel Cameron F. Kerry delivered a policy address at the German Marshall Fund on the international impact of privacy and security issues.  Please click the link for the remarks, entitled "The Impact of Privacy and National Security on International Commerce in the Digital Age."  The speech reflected on the work of the Commerce Department to sustain and promote the digital economy.  General Counsel Kerry described work on privacy legislation and international engagement and expressed concern that any step back from the US-EU Safe Harbor Framework would "set the trading relationship between the U.S. and EU backward...."

NIST, DOJ Form Commission to Develop Guidelines for Forensic Labs

The U.S. Department of Commerce’s National Institute of Standards and Technology and the U.S. Department of Justice announced on February 15, 2013 the establishment of a National Commission to Develop Guidelines for Forensic  Labs. http://www.commerce.gov/blog/2013/02/21/nist-doj-form-commission-develop-guidelines-forensic-labs

The Commercial Law Development Program Assists the Egyptian Customs with Integrity Program Roll Out

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On January 9-16, the Commercial Law Development Program and the Office of the Assistant General Counsel for Administration held ethics training for Egyptian Customs Authority (ECA) officials in Alexandria, Port Said, and Cairo. The training supports the ECA’s implementation of a comprehensive integrity program, to include the adoption of Ethics rules and guidelines, as well as a plan to engage key stakeholders.  For further information on the program, see the CLDP website: www.cldp.doc.gov

2012 Annual Office of General Counsel Awards Ceremony

On Thursday, December 6, 2012 General Counsel Kerry presided over the Office of General Counsel Annual Awards Ceremony.  He was joined by Acting Secretary Blank who delivered remarks, thanking the office for their tireless work over the past year.  The Acting Secretary acknowledged the great assistance that the office’s attorneys and support staff have provided to her and the entire Department of Commerce.

General Counsel Kerry detailed the broad range of accomplishments achieved by the OGC office over the past year.  He highlighted the successful litigation of the GPX case and efforts to move legislation through Congress as a result.  He also applauded contributions to various other litigation, legislation, reforms and regulation matters handled over the past year by each office within OGC.

GC Kerry and Deputy General Counsel Geovette Washington presented the Attorney of the Year Awards and the Support Staff of the Year Award.  The 2012 recipients are:

Attorney of the Year – Daniel Calhoun – Office of the Chief Counsel for Import Administration

Daniel was instrumental in insuring that Import Administration can, as a matter of domestic law, implement the WTO disputes on zeroing in a coherent process and has been a central player in disputes regarding antidumping and countervailing duty laws.

Support Staff of the Year – Stephanie Dyer – Office of the Assistant General Counsel for Administration, Ethics Law and Programs Division

Stephanie performed outstanding work in implementing a new financial disclosure report electronic filing system and the new reporting requirements of the STOCK Act, which were enacted earlier in 2012. 

Nine Office of General Counsel Attorneys Admitted to the U.S. Supreme Court

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On Monday, November 9, 2012 General Counsel Cameron Kerry moved to admit nine attorneys from the Office of the General Counsel to practice before the U.S. Supreme Court.  Pictured with General Counsel Kerry are the following (from left to right):  George Kivork, Joseph Bartels, Michelle McClelland, John Broderick, Geovette Washington, Shraddha Upadhyaya, Kathryn Kempton, Michelle Branigan, and Megan Walline.

OGC CFC Kickoff Kickball Game

The Kerry CFC "Cam"-paigners and the Washington Whirlwind after their 3-3 tie kickball game in support of the Combined Federal Campaign

The Department of Commerce Office of the General Counsel kicked off their 2012 Combined Federal Campaign drive by hosting an office-wide CFC Kickoff Kickball game.  Celebrity guest, Acting Commerce Secretary Rebecca M. Blank, rolled out the first pitch to start a friendly but spirited competition pitting the Kerry CFC "Cam"-paigners, led by General Counsel Cameron Kerry, against the Washington Whirlwinds, captained by Deputy General Counsel Geovette Washington.  The teams battled to a 3-3 tied.  The real winner was the Combined Federal Campaign as the event raised awareness of the campaign and raised over $350 for the CFC undesignated fund.

General Counsel Kerry Delivers Remarks at Iraq Finance Conference

On June 27, 2012, General Counsel Cameron F. Kerry delivered remarks at the Iraq Finance Conference.  Below is a copy of his remarks.

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GC Kerry discusses the US approach to privacy at an American Chamber of Commerce event in Italy

Panel at American Chamber of Commerce event in Italy

On June 21, 2012, General Counsel Kerry attended a privacy event in Italy -- Data Protection and Privacy Regulation: What Impact on Businesses and Consumers?

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General Counsel Kerry Travels to the EU to Discuss US-EU Commercial Data Privacy Efforts

On June 20, General Counsel Cameron F. Kerry arrived in Rome, Italy for the second leg of his trip to Europe to engage with senior government and private sector officials on consumer data privacy.  As President Obama said in the Administration’s policy blueprint, Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy (Privacy Blueprint), “[n]ever has privacy been more important than today, in the age of the Internet, the World Wide Web and smart phones.”  The Commerce Department is committed to protecting consumer privacy while encouraging innovation, entrepreneurship, and supporting jobs and growth.

Commerce Department’s NTIA Announces First Privacy Multistakeholder Process Topic

Friday, the Department of Commerce’s National Telecommunications and Information Administration announced the first topic for the multistakeholder process called for by the Obama Administration's Consumer Privacy Blueprint.  On July 12th, 2012, NTIA will convene stakeholders to begin developing codes of conduct to provide transparency in how companies providing applications and interactive services for mobile devices handle personal data.  More information about the first multistakeholder process is available at http://www.ntia.doc.gov/headlines/2012/first-privacy-multistakeholder-meeting-july-12-2012, and a blog post from NTIA Administrator Lawrence E. Strickling is available at http://www.ntia.doc.gov/blog/2012/putting-consumer-privacy-bill-rights-practice.

Office of Chief Counsel for Industry and Security Helps BIS Secure $1.75 Million Enforcement Settlement

On May 24, 2012, the Office of Chief Counsel for Industry and Security (OCC/IS) assisted the Bureau of Industry and Security (BIS) in reaching a settlement agreement under which Ericsson de Panama, S.A. agreed to pay $1.75 million to address 262 violations of the Export Administration Regulations (EAR).  BIS charged Ericsson de Panama with implementing a scheme to evade the EAR over a multi-year period, with regard to telecommunications equipment owned by the Cuban Government.  The equipment was shipped to Panama, where it was repackaged to conceal its Cuban markings, sent with falsified paperwork to the United States for repair or replacement, and then exported back to Cuba via transshipment through Panama.  The equipment involved is controlled under the EAR for national security, anti-terrorism, encryption, and sanctions reasons.  The settlement also requires an external audit of all 2012 transactions involving items subject to the EAR that are exported or re-exported to Cuban customers by Ericsson de Panama or any of its corporate affiliates. 

This settlement represents the latest in BIS’s enforcement efforts to ensure the integrity of the export control system.  BIS plays an integral part in advancing the nation’s security, foreign policy, and economic interests, and investigations and settlements like this one uphold this vital mission.  OCC/IS represents and supports BIS in all administrative enforcement matters. 

Commercial Law Development Program Assists Egypt in Revitalizing Its Civil Service and Increasing Transparency

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The Commercial Law Development Program (CLDP), a component of the Office of the General Counsel, met with the Egyptian Government as part of continuing efforts to help Egypt foster transparency, integrity, and ethical conduct within its ministries. This critical work is part of the larger Administration-wide effort to achieve the objectives set out by the Obama Administration and the G8 under the Deauville Partnership with Arab Countries in Transition.

On May 15, 2012, Assistant General Counsel for Administration Barbara Fredericks, Deputy Chief of the Labor and Employment Law Division John Guenther, and CLDP Chief Counsel Stephen Gardner delivered an anti-corruption presentation focused on addressing government, business, and development issues.  The program was attended by representatives of the Egyptian government, non-governmental organizations (NGOs), the media, and the general public.  Ms. Fredericks and Mr. Guenther discussed various ways in which Egypt can revitalize its civil service and open the lines of communication between the government and its citizens.  This presentation built on previous CLDP work with the Egyptian Government to create pilot projects with the Egyptian Trademark Office and the Egyptian Customs Authority to review ethics standards and general codes of conduct and to share expertise in best management practices. 

CLDP will continue working closely with the Egyptian Government on these issues as Department of Commerce attorneys provide guidance on draft regulations, deliver training to civil servants throughout the country, and serve as counselors to senior Egyptian officials that are working to create more functional, dependable, and transparent government services.  The work will benefit both Egyptian and U.S. businesses by fostering a level playing field as well as promoting transparency and fair regulations.

GC Kerry Testified Before Senate Commerce Committee

GC Kerry

On May 9, 2012, General Counsel Cameron F. Kerry testified before the Senate Commerce Committee at a hearing on The Need for Privacy Protections: Perspectives from the Administration and the Federal Trade Commission. Speaking on behalf of the Administration, Mr. Kerry called for baseline consumer privacy legislation giving the force of law to the Consumer Privacy Bill of Rights as articulated by the Administration’s privacy blueprint, Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy.

A video of the hearing and Mr. Kerry’s full written testimony can be found on the Senate Commerce Committee’s website.

Guidance Published on Implementation of Administration Policy on Scientific Integrity

On March 30, 2012 General Counsel Kerry updated prior memoranda implementing the Administration Policy on Scientific Integrity.  The update provides additional guidance consistent with the policy recommendations of Dr. John Holdren, Director of the White House Office of Science and Technology Policy (OSTP), who issued an Administration policy on scientific integrity, implementing a Presidential memorandum of March 9, 2009.  In particular, the memorandum promotes the accurate and clear presentation of scientific and technological information to the public and further supports the professional development of Department personnel.  This memorandum establishes policy directives for the Department of Commerce to ensure the highest integrity of science and scientific products developed and utilized by the Department and its bureaus.  The updated memorandum and the December 6th and June 15th memoranda are attached below.

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General Counsel Kerry delivers remarks at Suffolk University’s 2012 Global Sustainability Conference “Why Global Bribery Is Not A Market Entry Strategy: Corruption In The Global Marketplace.”

Today, General Counsel Kerry delivered remarks on Department of Commerce efforts to level the playing field for American businesses by working with international partners to implement anticorruption and anti-bribery measures.  The remarks were delivered at Suffolk University at the Center for Global Business Ethics and Law 2012 Global Sustainability Conference in Boston, Massachusetts.  General Counsel Kerry's speech highlighted that “fighting corruption is a priority for the United States Government.  We have been working with other countries to encourage them to join us in the fight – and our work is bearing fruit.  This Administration is dedicated to striking the right balance between fostering commerce and promoting good conduct by the business community. I don’t see this as a trade-off. I think we can have both, and that we should have both.” 

The Department of Commerce remains committed to fostering economic growth and job creation both at home and abroad, and efforts to encourage anticorruption measures throughout the world provide a more open, transparent, and lucrative business environment both for US businesses and international partners.

CLDP's 20th Anniversary Event

GC Kerry moderating a discussion at the CLDP 20th Anniversary Event

The Commercial Law Development Program (CLDP) was created in February, 1992 and on February 23, 2012, the Office of the General Counsel hosted an event to thank the institutions and the individuals who created CLDP and/or helped it grow, and to reflect on lessons learned. General Counsel Kerry presented awards to several USG officials and private sector experts who have made important contributions to CLDP programs and to the strengthening of the rule of law worldwide.

In a discussion moderated by General Counsel Cameron F. Kerry, Judge Bernice B. Donald from the US Court of Appeals for the 6th Circuit, and Judge Delissa Ridgway from the US Court of International Trade, reflected on their experiences doing work for CLDP in many countries over the years. Both judges concluded that the judicial capacity building programs conducted by CLDP have resulted in two significant changes: foreign judges now realize that they can play a significant role in the economic development of their countries; they have now the expertise and the confidence to help bring about the judicial environment, adapted to their country’s specific context, that are conducive to foreign investment and trade.

The program also featured remarks by Commerce Secretary Bryson on the importance of a modern and fair commercial law environment for US firms that export or invest overseas, by Ambassador William Taylor, Special Coordinator for Middle East Transitions at the US Department of State, on CLDP’s ability to respond promptly to State’s priorities for technical assistance in commercial law, and by Linda Wells, founder of CLDP, on the genesis and growth of the program.

General Counsel Kerry Amplifies President Obama’s Consumer Privacy Protection Message in Europe

by Cameron F. Kerry

As co-chair of the National Science and Technology Council Subcommittee on Privacy and Internet Policy, I am proud to have worked on the Obama administration’s comprehensive blueprint to improve consumer privacy protections, the "Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy" (PDF).  As the president stated in the report, “we must reject the conclusion that privacy is an outmoded value.  It has been at the heart of our democracy from its inception, and we need it now more than ever.”

This is the message I took to European lawmakers, officials, and businesses about the administration’s privacy policy framework. Central to the framework is the tenet that consumers who have confidence their privacy is respected are more likely to express themselves online, engage in commercial activity, and form social connections on the Internet. Consumer trust is essential for a strong digital economy, which in turn provides a platform for greater innovation and job creation.

In today’s Internet age, our world is no longer easily defined by national borders.  Information flows around the world as companies seek to meet the demands of international customers and individuals share their lives and experiences globally. Finding ways to protect personal information while facilitating cross-border data flows is a central aim of the administration’s privacy blueprint.

Over the course of my meetings in Europe, I talked about the president’s Consumer Privacy Bill of Rights and our commitment to promote the free flow of information by fostering the interoperability of international privacy frameworks. I discussed the importance of building on tools such as the EU-US Safe Harbor Framework that have helped to protect consumer information while facilitating international trade.

I look forward to continuing our work at the Department of Commerce to implement the administration’s privacy blueprint. Last week, the National Telecommunications and Information Administration released a request for comments as it prepares to begin convening stakeholders to develop codes of conduct based on the Consumer Bill of Rights, and on March 19 the EU's Justice Directorate General will come to Washington, D.C. to discuss the Safe Harbor Framework and other tools for the global flow of information.

Administration Releases Blueprint for Consumer Privacy in the Global Digital Economy

On February 23, 2012, Commerce Secretary John Bryson (remarks here) and Director of the White House National Economic Council Gene B. Sperling (White House press release here) announced the release of Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy.  This comprehensive blueprint will guide efforts to protect privacy and assure continued innovation in the Internet economy by providing flexible implementation mechanisms to ensure privacy protections keep up with rapidly-changing technologies.  In it, President Obama declares that privacy “has been at the heart of our democracy from its inception, and we need it now more than ever.” 

The Administration advocates for legislation implementing broad baseline privacy protections founded on the Consumer Privacy Bill of Rights set forth in its paper.  Even before legislation is passed, however, the President calls on his Administration to advance the Bill of Rights principles and the Department of Commerce to convene multistakeholder efforts to produce codes of conduct that will protect consumers immediately.  The framework laid out by the Administration will promote the growing digital economy by providing consumers and businesses a clear set of rules of the road to build trust, and promoting international interoperability of privacy regimes.

The  Administration’s paper is the culmination of over two years of work led by the Commerce Department.  On December 16, 2010, the Department issued a report detailing initial policy recommendations aimed at promoting consumer privacy online while ensuring the Internet remains a platform that spurs innovation, job creation, and economy growth.  Following the release of the report, the Department received written comments and met with numerous stakeholders to explore privacy issues.  Under the leadership of the National Science and Technology Council Subcommittee on Privacy and Internet Policy co-chaired by General Counsel Cameron Kerry, the Administration built on the Department of Commerce’s report to develop the Administration’s privacy blueprint.

For additional information, please see the White House blog post or Secretary Bryon's blog post about protecting consumers' online privacy while encouraging economic growth.

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Cameron Kerry Discusses Internet Issues with an EU Digital Forum

In an interviEUw with viEUws.eu, a digital forum for EU debate, General Counsel Cameron Kerry discusses issues including data security, data privacy, Safe Harbor, net neutrality, the global free flow of information, and international interoperability. Click on the photo below to go to vieuws.eu and watch the video.

go to viEUws.eu to watch the video

2011 Office of General Counsel Awards

General Counsel Kerry

On Monday, December 12. 2011 General Counsel Kerry presided over the Office of General Counsel Annual Awards Ceremony.  He was joined by Secretary Bryson who delivered remarks, thanking the office for their tireless work over the past year.  The Secretary acknowledged the great assistant that the office’s attorneys and support staff have provided to him since his start at Commerce and he looks forward to working closely with the staff.  He introduced GC Kerry, who detailed the broad range of accomplishments achieved by OGC office over the past year.  He highlighted the successful completion of Patent Reform and the successful litigation of the Supreme Court Case Golan v. Holder (10-545 [1]).  He also applauded OGC’s contributions to various other litigation matters as well as works in enforcing fisheries regulations and export controls.

GC Kerry and Deputy General Counsel Geovette Washington presented the Attorney of the Year Awards and the Support Staff of the Year Award.  The 2011 recipients are:

Attorney of the Year - Robert McManus – U.S. Patent and Trademark Office

Robert significantly advanced the goals both of the USPTO and the Department to establish a strong patent system.  Thanks to his efforts at the Supreme Court, the Court adopted the Department's position which has been haled as resulting in stronger and more reliable patent rights.  Robert was also instrumental in a wholesale re-writing of the rules governing how appeals are conducted at the USPTO Patent Trial and Appeal Board which will lead to more efficient review of patent applications.  Robert routinely provides expert advice under tight deadlines on complicated matters.

Support Staff of the Year - Debra Ketchopulos – National Oceanic & Atmospheric Administration

Debra provided crucial support to the Gloucester's Enforcement Section office maintaining continuity of operations in that region in the absence of any enforcement attorneys for most of the year.  During this time, she continued to coordinate enforcement matters with the Office for Law Enforcement, fielding as many inquiries herself as possible, while judiciously referring others to headquarters for resolution.  Debra also responded to a large number of requests for case information from the Special Master who was appointed by the Secretary of Commerce to review fisheries enforcement, thereby greatly enhancing the Special Master's ability to timely complete his review.  After 34 years of support to the NOAA Office of the General Counsel, she continues to be cited by colleagues at all levels for her exceptional performance and willingness to take on new tasks and increased responsibilities.

Cameron Kerry delivers keynote address to Second Annual European Data Protection and Privacy Conference

Cameron Kerry delivered one of the keynote addresses to the Second Annual European Data Protection and Privacy Conference on December 6 in Brussels, Belgium. His address, entitled Transatlantic Solutions for Data Privacy, explained the Obama administration's framework for how to protect consumer data privacy while promoting innovation in the global digital economy. This framework refines the ideas first expressed in the green paper released last year.
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NOAA Joins with Federal, State, and Local Government Agencies to Announce Record Oil Spill Settlement and a Plan to Restore Damaged Natural Resources

Cosco Busan

The National Oceanic and Atmospheric Administration (NOAA) announced on September 19 a civil settlement with the owners and operators of a ship that struck the San Francisco-Oakland Bay Bridge in 2007 and spilled 53,000 gallons of oil into San Francisco Bay.  The event killed thousands of birds, impacted a significant portion of the Bay’s 2008 herring spawn, spoiled miles of shoreline habitat, and closed the Bay and area beaches to recreation and fishing.

Under the comprehensive settlement – the largest ever under the federal Oil Pollution Act – the owners and operators of the M/V Cosco Busan agreed to pay $44.4 million for natural resource damages and penalties and to reimburse federal, state, and local governments for the costs of responding to the spill.  The lion’s share of the settlement will be spent on projects that will restore the injured Bay Area resources and aid the public in enjoying them.

Along with the settlement, NOAA and its fellow federal and state natural resource trustee agencies announced the release of their draft plan to restore the resources injured by the spill.  The plan contains a suite of on-the-ground projects that will benefit birds, fish, shoreline habitats, and public recreational sites.  Since day one of the spill and throughout the injury assessment, settlement negotiations, and restoration planning process, the Department of Commerce has been and will remain actively involved through NOAA’s Office of General Counsel for Natural Resources, Restoration Center, Assessment and Restoration Division, and Office of National Marine Sanctuaries.  

More information on the settlement and the restoration plan is available here.

The Leahy-Smith America Invents Act (AIA)

On September 8, the Senate passed the Leahy-Smith America Invents Act (AIA), H.R. 1249, by a vote of 89-9.  The bill now will be sent to the President for his signature.

This legislation has been a major priority of the Department of Commerce and the Office of General Counsel since the beginning of this Administration.  The AIA marks the first comprehensive reform to U.S. patent law in 60 years and transforms the patent system to accommodate the needs of 21st Century inventors and businesses. 

At a time of great need for the U.S. economy, the AIA will foster American innovation, provide greater certainty to businesses and inventors, and promote job growth.  Fundamental changes to the patent system made by the legislation include:

  • Establishing a “first-inventor-to-file,” which will simplify the U.S. patent application system and harmonize it with others around the world;
  • Providing the opportunity for third parties to submit information regarding pending patent applications and creating a post-grant opposition proceeding to identify patents that should not have been granted.  Both these changes will improve patent quality, which will promote investment and job growth;
  • Improving the system to administratively challenge patents, which will speed adjudication of meritorious challenges and provide faster resolution and certainty for patent holders facing unsubstantiated challenges; and
  • Reducing fees for small and micro-entities by as much as 75%, which will foster innovation.

The AIA requires a series of rulemakings and studies, which will need to be completed expeditiously.  The Office of General Counsel will be working with the U.S. Patent and Trademark Office to complete the work as quickly as possible and to bring the benefits of the legislation to consumers and businesses alike.  Implementation Effort

General Counsel Kerry travels to China for the US-China Joint Liaison Group Anti-Corruption Working Group

General Counsel Kerry in China

During the week of July 25th, General Counsel Kerry travelled to Beijing to continue discussions with China on the shared goal of addressing bribery of foreign government officials by U.S. and Chinese companies.  Following extensive dialogue led by General Counsel Kerry, China amended its criminal code earlier this year to criminalize the bribery of foreign government officials.  The United States has criminalized such conduct since 1977 through the Foreign Corrupt Practices Act (FCPA). 

Now General Counsel Kerry and an interagency team, including representatives of the Departments of Justice and State and the Securities and Exchange Commission, are sharing with Chinese officials how the United States has implemented and enforced the FCPA and are seeking to encourage China to publicize, fully implement, and rigorously enforce their new law.   The discussions, held under the auspices of the U.S.-China Joint Liaison Group Anti-Corruption Working Group, also included a roundtable in which U.S. and Chinese companies exchanged ideas about how they prevent and detect corrupt payments to foreign officials through compliance programs within their enterprises. 

When opening the roundtable, General Counsel Kerry stressed the need for government and industry to work together in combating transnational bribery, stating: "A legal regime criminalizing transnational bribery can only be effective when the government and industry work together by incentivizing compliance, instituting strong and effective international compliance and ethics programs, and maintaining and applying deterrent penalties."  Opening Remarks

While in Beijing, General Counsel Kerry also met with Ministry of Commerce officials, representatives of the U.S. private sector, and other U.S. and Chinese officials to discuss commercial law issues and intellectual property rights protection and enforcement. 

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Business Roundtable on the Foreign Corrupt Practices Act (FCPA)

By Cameron Kerry, General Counsel for the U.S. Department of Commerce.

On July 22, I had the opportunity to co-host, with my colleagues Assistant Attorney General for the Criminal Division Lanny Breuer and Securities and Exchange Commission Enforcement Director Robert Khuzami, a business roundtable on the Foreign Corrupt Practices Act.  The roundtable was an opportunity for interested companies to relate their individual experiences with and views on the FCPA, in keeping with recommendations the United States received from the Organization for Economic Cooperation and Development (OECD) Working Group on Bribery in its Phase 3 Report on U.S. implementation and enforcement of the Antibribery Convention, at:  OECD Phase 3 Report .

Over twenty company representatives from a wide range of business sectors, sizes, and geographic locations participated.  Participants were recommended by business associations with an interest in this area. We engaged in an open and constructive dialogue and many participants noted that U.S. business and the government must work together to fight international bribery and corruption in order to uphold the rule of law and support human rights. We heard an array of concerns, complaints, and compliments about the statute, its enforcement and related guidance, and I was encouraged by the large turnout, the frank conversation, and the clear dedication of all participants to address the corrosive impact of corruption on international commerce.

I’d like to thank each and every one of the business representatives for taking the time to attend the roundtable and their excellent participation. I invite all interested parties to visit the Commerce and DOJ websites for more information on the statute, such as the Lay-Person’s Guide to the FCPA, and our international efforts to level the playing field:

DOJ-FCPA

DOJ-Lay-Person's Guide to the FCPA

Commerce-FCPA

General Counsel Kerry Implements the Administration Policy on Scientific Integrity

General Counsel Kerry

On June 15, 2011, General Counsel Kerry implemented the Administration policy on scientific integrity by issuing a memorandum. The memorandum adopts the policy recommendations of Dr. John Holdren, Director of the White House Office of Science and Technology Policy (OSTP), who issued an Administration policy on scientific integrity, implementing a Presidential Memorandum of March 9, 2009. The OSTP memo requires executive Departments and agencies to develop scientific integrity policies that implement four broad principles:

  1. strengthen the foundations of scientific integrity;
  2. enhance openness and transparency in the communication of government science;
  3. guide the operation of federal advisory committees tasked with giving scientific advice, in line with a set of five specified criteria;
  4. promote the professional development of government scientists and engineers.

This memorandum adopts these directives as the policy of the Department of Commerce so as to ensure the highest integrity of science and scientific products developed and utilized by the Department and its bureaus.  The full memorandum can be found here Scientific Integrity Memorandum or attached below.

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General Counsel Kerry on Promoting Ethical Businesses Internationally

General Counsel Kerry at the OECD Event in Washington DC by Elodie Turchi of the OECD

On March 22, 2011, DOC General Counsel Kerry spoke at a symposium titled “Toward Coherence in International Economic Law:  Perspectives at the 50th Anniversary of the OECD” regarding the Administration’s work in promoting ethical conduct by international businesses.  The symposium took place in Washington, DC, and was sponsored by the Organization for Economic Cooperation and Development, the American Society of International Law, and the George Washington International Law Review, in cooperation with the International Law Students Association. 

In his remarks, General Counsel Kerry highlighted the work of the Department of Commerce and other U.S. agencies to fight corruption in international business transactions, noting President Obama’s linking of corruption, human rights, and well being, and Secretary Locke’s views about corruption as a barrier to U.S. economic growth.  He discussed the Justice Department’s emphasis on enforcement of the Foreign Corrupt Practices Act, the Commerce Department’s engagement with the private sector, his upcoming trip to Doha for a regional conference on integrity in the private sector put on by the Commerce Department’s Commercial Law Development Program, and Commerce’s work (with the Departments of State and Justice) in pressing foreign governments to enact and enforce strong anti-bribery laws.  He was joined on the panel by Assistant Secretary of State Jose Fernandez and NGO and private sector representatives. 

General Counsel Kerry said:  “This Administration is dedicated to striking the right balance between fostering commerce and promoting good conduct by the business community.  I don’t see this as a trade-off.  I think we can have both, and that we should have both. We will keep striving to have both.”   

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Protecting Consumers & Promoting Innovation Online: A Call for Baseline Privacy Legislation

by Cameron Kerry, General Counsel for the U.S. Department of Commerce.

The time has come for Congress to pass strong Internet consumer privacy legislation that provides clear rules of the road for businesses and consumers while preserving the innovation and free flow of information that are hallmarks of the Internet economy.

That’s the Obama Administration’s conclusion based on the work we have been doing on commercial data privacy.  Three months ago, the Commerce Department published its Green Paper, which contained preliminary policy recommendations to enhance consumer protection and strengthen online trust, while ensuring the Web remains a platform for innovation, jobs, and economic growth.

The America Invents Act Will Address Patent Backlog, Improve Patent Quality

The Senate Judiciary Committee published the following statement about the America Invents Act.

WASHINGTON (Monday, March 7, 2011) – The Obama administration today released a white board presentation by Austan Goolsbee, the Chairman of the White House Council of Economic Advisors, touting the need for patent reform to help American inventors and innovators.  The America Invents Act, sponsored by Senator Patrick Leahy (D-Vt.), will make the first comprehensive reforms to the nation’s patent system in nearly 60 years.

“Chairman Goolsbee’s white board presentation highlights the very things the America Invents Act will address, including patent quality, reducing patent backlogs, and spurring innovation to create jobs,” said Leahy.

“We’ve talked about a whole lot of ways we’re going to win the future,” Goolsbee said in the presentation.  “We’ve got the greatest inventors in the world and it’s time we give them the help they need to bring the country where it needs to be.”

The Senate is poised to take another step toward a final vote on the America Invents Act, with a vote on a cloture motion to bring debate to an end scheduled for Monday evening. 

The America Invents Act is the result of nearly six years of debate in the Senate and House of Representatives.  It is supported by the Obama administration.  The bipartisan legislation was reintroduced earlier this Congress by Leahy, Senator Orrin Hatch (R-Utah) and Senator Chuck Grassley (R-Iowa).  For more information on the America Invents Act, click here.

To watch Chairman Goolsbee’s white board presentation, click here.

General Counsel Kerry addresses the 2011 State of the Net Conference

On January 18, 2011, DOC General Counsel Kerry delivered keynote remarks at the seventh annual State of the Net Conference hosted by the Congressional Internet Caucus Advisory Committee.  The conference is one of the largest information technology policy conference in the U.S. and provides a venue for academics, consumer groups, industry and government to hear from policy experts from across the spectrum of information technology issues and to interact in a bi-partisan environment.

In his remarks, General Counsel Kerry highlighted key policy recommendations from the Commerce Department’s recently released  policy green paper “Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework.” These policy recommendations aim to promote consumer privacy online while ensuring the Internet remains a platform that spurs innovation, job creation, and economic growth.  Recommendations included: establishing Fair Information Practice Principles comparable to a “privacy bill of rights” for online consumers; developing enforceable privacy codes of conduct in specific sectors with multi-stakeholder input; and engaging the international community to encourage global Interoperability. The Department is seeking additional public comment on the privacy paper to further the policy discussion and ensure the framework benefits all stakeholders in the Internet economy. Comments are due January 28th.

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2010 Distinguished Service Award

General Counsel Kerry and Deputy General Counsel Washington presented the Office of General Counsel Distinguished Service Award to 27 members of the office.  The recipients were recognized for an array of accomplishments.  Those recipients are:

The 2010 Joint Commission on Commerce and Trade

On December 14 and 15, Commerce Secretary Locke and U.S. Trade Representative Kirk, together with Chinese Vice Premier Wang Qishan, co-chaired the 21st annual U.S.-China Joint Commission on Commerce and Trade (JCCT) in Washington, DC.  General Counsel Kerry participated in this year’s JCCT, which covered a range of issues and yielded positive results, particularly China’s commitments to enhance its enforcement of intellectual property rights, adopt non-discriminatory government procurement policies, and collaborate with the U.S. in areas of emerging technology such as Smart Grid.  China’s commitments will lead to increased opportunities for U.S. exporters and a more level playing field for U.S. companies operating in China.   

General Counsel Kerry led the U.S. delegation’s work on commercial law cooperation.  In this area, the two sides agreed to continue to promote mutual understanding of commercial legal developments impacting U.S.-China trade.  The primary vehicle for this cooperation is the U.S.-China Legal Exchange, which GC Kerry co-leads.  The United States and China agreed to convene the 2011 Legal Exchange in the United States in cities and on topics to be determined by mutual agreement.  This builds upon the work of GC Kerry, Chinese Deputy International Trade Representative Chong Quan, and Legislative Affairs Office of the State Council Vice-Minister An Jian, who successfully led the 2010 U.S.-China Legal Exchange to Hangzhou (October 18), Wuhan (October 20), and Chengdu (October 22), which focused on U.S. export promotion activities and trade remedies laws and practices. 

Read more about Commerce’s participation here.

2010 Office of General Counsel Awards

General Counsel Kerry

On Tuesday, December 14, 2010 General Counsel Kerry presided over the Office of General Counsel Annual Awards Ceremony.  He was joined by Secretary Locke who delivered remarks, thanking the office for their tireless work over the past year.  The Secretary acknowledged the critical role that the office’s attorneys and support staff played in helping him implement a number of important Department and Administration priorities.  He introduced GC Kerry, who detailed the broad range of accomplishments achieved by OGC offices over the past year.  He highlighted the role OGC played in the successful completion of Phase 1 of the American Reinvestment and Recovery Act and the successful litigation of the Supreme Court Case Bilski v. Kappos (08-964).  He also applauded OGC’s contributions to the successful execution of the Decennial Census, ongoing Oil Spill litigation, and Export Control Reform.

Secretary Locke and GC Kerry presented the two Attorney of the Year Awards and the Support Staff of the Year Award.  The 2010 recipients are:

Attorney of the Year - Rayna G. Eller – ELLD/Census & Economic Statistics Administration

Rayna has provided exceptional legal services during the past year, and made very significant contributions which have advanced several critical missions of the Department.  Nowhere were her abilities more evident than in her effective advice to, and representation of, the Census Bureau during the 2010 Decennial Census.  More than any other staff attorney in the Department, Rayna’s actions provided the Census Bureau with the ability to hire and retain the workforce necessary to complete its Constitutionally-mandated duty to render an accurate count of the Nation’s population.

Attorney of the Year - Peter R. Klason – Bureau of Industry and Security

Peter has provided outstanding support to the Bureau of Industry and Security over the past year, displaying tremendous versatility and depth of knowledge on a range of issues.  His work has proven integral throughout each step of the President’s Export Control Reform Initiative.  He also played a major role ensuring the President’s recent trip to India was a success by ensuring that BIS was able to deliver on new bilateral agreements with the Government of India

Support Staff of the Year - Michael Christensen – US Patent and Trademark Office

Michael served as the IT Liaison/IT Specialist assigned to the Office of the General Counsel at the Patent and Trademark Office.  He has been the “go-to” person to get things done and is a model teammate who set a positive example.  Michael exhibited great dedication to his technical support work while serving as the IT expert for services, system development, and coordination with OGC, USPTO, and DOC customers, frequently working long hours to provide IT customer service and systems design support.  He consistently volunteered to help attorneys, paralegals, and support personnel with a myriad of IT tasks to ensure legal mission requirements were met.  Michael has been a leader on the EDMS project and a leader in the OGC Technology Working Group.

The Administrative Conference of the United States - 2010 Plenary Session

Alternate TextOn December 9-10, 2010, the Administrative Conference of the United States (ACUS) met for the first time since 1995.  General Counsel Cameron Kerry represented the Department of Commerce and was joined by NOAA General Counsel Lois Schiffer.  The representatives heard remarks from ACUS Chairman Paul Verkuil and were officially sworn in as members of the Administrative Conference of the United States by Supreme Court Justice, Antonin Scalia.  On Thursday a recommendation for new agency procedures addressing Federal preemption of state law was offered.  After some discussion and revision the recommendation was accepted.  On Friday, members were divided into five breakout groups to brainstorm about the direction the ACUS might take in the coming months and years.  The next Plenary Session will take place on June 16-17, 2011, in Washington, D.C.

Expanding the Global Fight Against Corruption

By Cameron F. Kerry

Today, December 9, is International Anti-Corruption Day.  It’s an occasion to reflect on the global fight against corruption.

Bribery and corruption are trade barriers that impede our ability to rebuild the economy and meet President Obama’s goal of doubling U.S. exports. In the past year alone, American companies are believed to have lost out on deals worth about $25 billion because they refused to pay bribes.  

Companies should be able to compete for international business on the quality and price of their products and services, not bribes.   

“In too many places, the culture of the bribe is a brake on development and prosperity, President Obama has said. “It discourages entrepreneurship, destroys public trust, undermines the rule of law and stifles economic growth.” 

The United States has been a leader in combating transnational bribery since it enacted the Foreign Corrupt Practices Act (FCPA) in 1977.  It has been leading by example: U.S. enforcement agencies have filed 105 enforcement actions involving bribery of foreign officials since the beginning of 2009, and have collected over $2 billion in criminal and civil penalties.  In a review of U.S. efforts, the 38-country Working Group on Bribery of the Organization for Economic Cooperation and Development (OECD) recently applauded U.S. enforcement.

The United States has also been working to level the playing field internationally.  The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions now has 38 parties who undergo detailed peer review; the United Nations Convention Against Corruption has been joined by 148 nations and is stepping up compliance review; when the G-20 leaders met in Seoul last month, they endorsed President Obama’s proposal to broaden the G-20 anti-corruption agenda and adopted a comprehensive Anti-Corruption Action Plan.  

What we still need is the political will to implement and enforce these international anti-corruption mechanisms on the part of all countries with companies in international business.  Countries such as the United Kingdom and Germany are taking steps to improve laws and step up enforcement. Under France’s G-20 Presidency, we count on that country to set a strong example as well.

Economic powers like China and Russia are critical to the fight.  China, a G-20 member, does not currently have a law criminalizing bribery of foreign officials in international business transactions, but ongoing U.S.-China government-to-government exchanges appear to be making progress. China’s National People’s Congress has published for comment proposed amendments to its criminal law that would prohibit foreign bribery in international business and may take up the bill early next year. G-20 member Russia also has a foreign bribery law in the works.

Fighting corruption also requires cooperation between government and civil society. The Working Group on Bribery recently released Good Practice Guidance to help companies develop compliance programs for preventing and detecting foreign bribery. The G-20 will invite industry and civil society to increase voluntary compliance efforts and innovative public-private partnerships to prevent corruption as part of its Anti-Corruption Action Plan.

Because of the FCPA, businesses subject to U.S. jurisdiction have incorporated foreign bribery compliance programs into their corporate cultures. In fact, companies subject to the FCPA have said they rely upon it as a useful tool to shield themselves against bribe solicitations, refusing to pay them because they are illegal not only under local law, but also back home.

Strong preventive programs enable companies to lead by example and educate their employees about the importance of fighting corruption.  Companies known for their integrity and quality business practices are also more likely to be highly valued by capital markets.  Compliance enhances true competitiveness.  Governments seeking sustainable growth – as opposed to kleptocratic ones – prefer doing business with reputable companies that deliver high-quality products and services without undermining good governance.

We’d like more businesses from other countries to do the same.  The way to level the playing field is not to lower U.S. standards.  Rather, it is to set the bar high against corruption for all companies no matter where they are from by continuing to expand the network of trading partners participating in the fight against transnational bribery.

No nation or government, no business or NGO can end corruption in international business transactions alone. 

Cameron Kerry is General Counsel of the U.S. Department of Commerce.

US - China Commercial Relationship Policy Conference

Last week the US Department of Commerce jointly sponsored a Policy Conference to discuss the US-China Commercial Relationship with the Jackson School of International Studies at the University of Washington, the Henry Jackson Foundation, and the host of the event, Georgetown University.  The event featured a number of panels composed of experts from all fields discussing the state and future of US-China policy.  The event was bracketed by welcoming remarks from Commerce Secretary Gary Locke and concluding remarks by General Counsel Cameron Kerry.  Kerry also participated on the conference’s final panel in a discussion of the Impact of Developments in China’s Commercial Legal System

During his remarks, General Counsel Kerry spoke about the work of his office and the Department of Commerce in developing commercial rule of law in China.  He said, "With the Rule of law, business can predict and plan their investments, research and development, purchases, and sales with greater certainty.  Without it, they are left to guess about the costs and benefits of any deal."  He discussed the importance of both the US-China Joint Commission on Commerce and Trade (JCCT) and the Strategic and Economic Dialogue (S&ED) in fostering a strong bilateral commercial relationship.  He described the US-China Legal Exchange, a program designed to foster mutual understanding of the legal regimes governing trade and investment that began in 1983. He also spoke of his role as co-lead of the Transparency Dialogue, which has led to greater transparency in Chinese Government decision-making processes, including the promulgation of rules and regulations and dialogue on transnational bribery.  He sees the role of lawyers in both countries as crucial to promoting the rule of law. 

After his panel, General Counsel Kerry concluded the conference by addressing the need for a more sustainable, balanced trade with China.  He noted that the two nations are inextricably linked to each other’s wellbeing and that China must strive to be as free, fair, and open as the United States.  The conference has helped to set the stage for the JCCT, which the US will host in Washington, DC on December 14-15, 2010.

 

Read General Counsel Kerry's remarks here.

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General Counsel Kerry addresses the OECD 30th Annual Privacy Guidelines Conference in Jerusalem

Alternate TextYesterday, General Counsel Kerry participated in the keynote panel of the 30th Annual OECD Privacy Guidelines Conference.  The conference's opening remarks were delivered by Director General Guy Rotkopf of the Israeli Ministry of Justice and OECD Deputy Secretary-General Richard Boucher.  The keynote panel entitled “Privacy in the Context of the Internet -- Recording Everything and Forgetting Nothing?” featured GC Kerry, joined by Jennifer Stoddart, the Privacy Commissioner of Canada; Andrew Wyckoff, Director of Science, the Technology and Industry, OECD; and Marie Shroff, the Privacy Commissioner of New Zealand (as pictured from right to left). 

The group discussed a broad range of privacy principles and issues facing government officials and policy makers in both the private and public sectors.  In his remarks, Kerry expressed a desire to create a global environment that fosters meaningful tools to protect privacy.  He also focused on developing a policy that will create the trust that is necessary for consumers, industry and government to continue the innovation that has caused tremendous economic growth.  The first day of the conference then concluded with closing remarks from Israeli Prime Minister Benjamin Netanyahu.

More information on the OECD Privacy Conference here.

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General Counsel Kerry to co-chair new White House Subcommittee on Privacy

General Counsel Cameron F. Kerry will co-chair the White House Council’s new Subcommittee on Privacy and Internet Policy with Assistant Attorney General Christopher Schroeder.

As part of the Obama Administration’s commitment to promoting the vast economic opportunity of the Internet and protecting individual privacy, the National Science and Technology Council has launched a new Subcommittee on Privacy and Internet Policy. Populated by representatives from more than a dozen Departments, agencies and Federal offices, and co-chaired by the two of us, the subcommittee will develop principles and strategic directions with the goal of fostering consensus in legislative, regulatory, and international Internet policy realms.

Read More here.

Opening Day of the 2010 US-China Legal Exchange in Hangzhou, China

Alternate TextOn Monday, October 18, 2010, General Counsel Cameron Kerry and Vice Minister Chong Quan opened the 2010 US-China Legal Exchange in Hangzhou, China. The General Counsel and Vice Minister emphasized the importance of a frank and open exchange of ideas; the opening day certainly met that standard.

Courtney Gregoire, Director, National Export Initiative, International Trade Administration, offered a presentation on the Commerce-led National Export Initiative. John McInereny, Chief Counsel, Import Administration and Albert Hsu, Chief Economist, Import Administration, offered several presentations on the procedures and application of US Anti-Dumping and Countervailing Duty (CVD) law. The Chinese delegation offered comments and posed poignant questions.

In addition to an extremely productive Legal Exchange, General Counsel Kerry was warmly welcomed at Zhejiang University where he addressed and interacted with a group of law students and professors.

Tomorrow, the US delegation moves on to Wuhan for the second stop on the Legal Exchange before concluding in Chengdu on Friday, October 22, 2010.

The US-China Legal Exchange is a cooperative program between the Department of Commerce and China's Ministry of Commerce focused on enhancing commercial rule of law and promoting a stronger bilateral commercial relationship conducive to increasing exports

Secretary Locke to Appoint Special Master to Review NOAA Law Enforcement Cases, Restricts Use of the Asset Forfeiture Fund

On September 23, 2010, U.S. Commerce Secretary Locke announced sweeping reforms to increase accountability and transparency and strengthen the public’s trust in NOAA’s Office of Law Enforcement and the General Counsel for Enforcement and Litigation. Locke, invoking his authority under the Magnuson-Stevens Act, announced he will appoint the Honorable Charles B. Swartwood, III (Ret.) to serve as Special Master to review enforcement cases the Commerce Department’s Inspector General identified in its most recent report as problematic, some dating as far back as 2001. Locke will also ask the Special Master to review the complaints that the IG received that were not discussed in the September Report to see if review of those complaints is also warranted.  Judge Swartwood will make recommendations to Locke on whether to take action to modify or remit the penalties.

Judge Swartwood formerly served as Chief Magistrate Judge of the U.S. District Court, District of Massachusetts and currently serves as the Chairman of the Massachusetts State Ethics Commission.

OGC Offsite Retreat

US Patent & Trademark OfficeGeneral Counsel Kerry led an offsite training for all of the attorneys at the Department of Commerce on September 22, 2010.  This training at the United States Patent and Trademark Office in Alexandria marks the third time the entire Office of General Counsel (OGC) has met as a group during his tenure.  The meeting focused on two critical management priorities: collaboration and active client engagement.  Much of the legal work in the office of the General Counsel cuts across the entire Department.  The offsite was an excellent opportunity for attorneys to work collaboratively – breaking down the institutional barriers.  Client engagement early in the development of a new project allows attorneys to provide timely, high quality legal advice that helps the bureau or Department achieve its goal.

Deputy General Counsel Geovette Washington, along with Deputy General Counsel for Strategic Initiatives Quentin Palfrey presented OGC’s goals and priorities.  This presentation highlighted ways in which OGC strives to:

  • Make a lasting impact on rules for commerce that help restart and revitalize the economy and lay a foundation for sustainable US leadership in a global economy.
  • Build a culture of excellence, service, and creative collaboration in the Office of General Counsel and across the Department.
  • Support and protect the Administration and the Secretary of Commerce.

Promoting Security and Protecting Privacy in the Digital Age

General Counsel Cameron F. Kerry TestifiesOn Wednesday, September 22, 2010, General Counsel Cameron Kerry testified before the Senate Committee on the Judiciary. The Committee is holding a hearing on "The Electronic Communications Privacy Act: Promoting Security and Protecting Privacy in the Digital Age." General Counsel Kerry appeared on a panel with Associate Deputy Attorney General James A. Baker from the Department of Justice. 

General Counsel Kerry’s testimony reflects the work of the Department of Commerce Internet Policy Task Force on data privacy, cybersecurity, and other issues affecting the digital economy in the 21st Century.

General Counsel Kerry’s testimony reflects the work of the Department of Commerce Internet Policy Task Force on data privacy, cybersecurity, and other issues affecting the digital economy in the 21st Century.  The testimony discussed changes in the digital landscape since the Electronic Communications Privacy Act was enacted in 1986, especially in cloud computing, mobile phones, and location services.

Here is link to his prepared testimony (PDF).