Measures: Ley Orgánica del Instituto Nicaragüense de Estudios Territoriales (INETER), Law No. 311, published in La Gaceta No. 103, July 28, 1999, Art. 4
Description: Cross-Border Services
The developing, drafting, editing, and publishing of official regional, property, urban, and rural maps, as well as thematic maps and hydrographical, nautical, and aeronautical charts of Nicaragua in different scales is reserved to the Instituto Nicaragtiense de Estudios Territoriales.
Sector: Potable Water, Sanitary Sewer Systems, and Sewage Collection and Disposal.
Affected Obligation: Market Access (Article 11.4)
Measures: Ley de Creación de la Empresa Nicaragüense de Acueductos y Alcantarillados Sanitarios (ENACAL), Law No. 276, published in La Gaceta No. 12, January 20, 1998, Art. 3
Ley de Suspensión de Concesiones de Uso de Aguas, Law No. 440, Arts. 2 and 3
Description: Cross-Border Services
The establishment, construction, and development of public works for the supply and distribution of drinking water, and collecting and disposing of wastewater, may only be performed by the Empresa Nicaragiiense de Acueductos y Alcantarillados Sanitarios (ENACAL).
ENACAL is the State entity responsible for providing potable water and collecting and disposing of wastewater, and has the following functions:
(a) to capture, treat, conduct, store, distribute, and sell potable water; and to gather, treat and finally dispose of wastewater;
(b) to purchase natural water, purchase and sell potable water, as well as to commercialize the services of collection, treatment and final disposal of wastewater;
(c) take all necessary measures so that the release of treated wastewater minimizes the environmental impact;
(d) develop the Company's Expansion Plan for the short, medium and long terms;
(e) investigate, explore, develop, and exploit the water resources; and
(f) any other activity required for its development.
Sector: Airports
Affected Obligation: Market Access (Article 11.4)
Measures: Ley de la Empresa Administradora de Aeropuertos Internacionales, Decree No. 1292, published in La Gaceta No. 186, August 16, 1983, Art. 3
Description: Cross-Border Services
The Empresa Administradora de Aeropuertos Internacionales (EAAI) is responsible for establishing, operating, administering, carrying out works, and providing services in international airports.
Sector: Energy Services
Obligations Concerned: Market Access (Article 11.4)
Measures: Ley de la Industria Eléctrica, Law No. 272, published in La Gaceta No. 74, April 23, 1998, Arts. 27 and 58
Description: Cross-Border Services
Electricity transmission services may only be provided by the Centro Nacional de Despacho de Carga.
Sector: Administration of Lotteries
Obligations Concerned: Market Access (Article 11.4)
Measures: Reglamento Interno de la Lotería Nacional, published in La Gaceta No. 229, December 3, 1996, Arts. 4 and 5
Description: Cross-Border Services
Only the Loteria Nacional, a State-owned enterprise, may administer lotteries, drawings, raffles, promotions, and games of chance for money or prizes. Notwithstanding the preceding sentence, commercial promotions are allowed through the prior authorization of the Loteria Nacional, which shall be freely granted.
Sector: Public Communications Services
Obligations Concerned: Market Access (Article 11.4)
Measures: Ley General de Telecomunicaciones y Servicios Postales, Law No. 200, published in La Gaceta No. 154, August 18, 1995, Art. 118
Description: Cross-Border Services
The issuance, finance, and marketing of postal stamps, as well as the usage of franking machines and other analogous systems, is reserved to the Correos de Nicaragua.
Annex I. Schedule of the United States
Sector: Atomic Energy
Obligations Concerned: National Treatment (Article 10.3)
Level of Government: Central
Measures: Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq.
Description: Investment
A license issued by the United States Nuclear Regulatory Commission is required for any person in the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, use, import, or export any nuclear "utilization or production facilities" for commercial or industrial purposes. Such a license may not be issued to any entity known or believed to be owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government (42 U.S.C. § 2133(d)). A license issued by the United States Nuclear Regulatory Commission is also required for nuclear "utilization and production facilities," for use in medical therapy, or for research and development activities. The issuance of such a license to any entity known or believed to be owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government is also prohibited (42 U.S.C. § 2134(d)).
Sector: Business Services
Obligations Concerned: National Treatment (Article 11.2) Local Presence (Article 11.5)
Level of Government: Central
Measures: Export Trading Company Act of 1982, 15 U.S.C. §§ 4011-4021 15 C.F.R. Part 325
Description: Cross-Border Services
Title II of the Export Trading Company Act of 1982 authorizes the Secretary of Commerce to issue "certificates of review" with respect to export conduct. The Act provides for the issuance of a certificate of review where the Secretary determines, and the Attorney General concurs, that the export conduct specified in an application will not have the anticompetitive effects proscribed by the Act. A certificate of review limits the liability under federal and state antitrust laws in engaging in the export conduct certified.
Only a "person" as defined by the Act can apply for a certificate of review. "Person" means "an individual who is a resident of the United States; a partnership that is created under and exists pursuant to the laws of any State or of the United States; a State or local government entity; a corporation, whether organized as a profit or nonprofit corporation, that is created under and exists pursuant to the laws of any State or of the United States; or any association or combination, by contract or other arrangement, between such persons."
A foreign national or enterprise may receive the protection provided by a certificate of review by becoming a "member" of a qualified applicant. The regulations define "member" to mean "an entity (U.S. or foreign) that is seeking protection under the certificate with the applicant. A member may be a partner in a partnership or a joint venture; a shareholder of a corporation; or a participant in an association, cooperative, or other form of profit or nonprofit organization or relationship, by contract or other arrangement."
Sector: Business Services
Obligations Concerned: National Treatment (Article 11.2) Local Presence (Article 11.5)
Level of Government: Central
Measures: Export Administration Act of 1979, as amended, 50 U.S.C. app. §§ 2401-2420
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706
Export Administration Regulations, 15 C.F.R. Parts 730 - 774
Description: Cross-Border Services
With some limited exceptions, exports and reexports of commodities, software, and technology subject to the Export Administration Regulations require a license from the Bureau of Industry and Security, U.S. Department of Commerce (BIS). Certain activities of U.S. persons, wherever located, also require a license from BIS. An application for a license must be made by a person in the United States.
In addition, release of controlled technology to a foreign national in the United States is deemed to be an export to the home country of the foreign national and requires the same written authorization from BIS as an export from the territory of the United States.
Sector: Mining
Obligations Concerned: National Treatment (Article 10.3) Most-Favored-Nation Treatment (Article 10.4)
Level of Government: Central
Measures: Mineral Lands Leasing Act of 1920, 30 U.S.C. Chapter 3A 10 U.S.C. § 7435
Description: Investment
Under the Mineral Lands Leasing Act of 1920, aliens and foreign corporations may not acquire rights-of-way for oil or gas pipelines, or pipelines carrying products refined from oil and gas, across on- shore federal lands or acquire leases or interests in certain minerals on on-shore federal lands, such as coal or oil. Non-US. citizens may own a 100 percent interest in a domestic corporation that acquires a right-of-way for oil or gas pipelines across on-shore federal lands, or that acquires a lease to develop mineral resources on on-shore federal lands, unless the foreign investor's home country denies similar or like privileges for the mineral or access in question to U.S. citizens or corporations, as compared with the privileges it accords to its own citizens or corporations or to the citizens or corporations of other countries (30 U.S.C. §§ 181, 185(a)).
Nationalization is not considered to be denial of similar or like privileges.
Foreign citizens, or corporations controlled by them, are restricted from obtaining access to federal leases on Naval Petroleum Reserves if the laws, customs, or regulations of their country deny the privilege of leasing public lands to citizens or corporations of the United States (10 U.S.C. § 7435).
Sector: All Sectors
Obligations Concerned: National Treatment (Article 10.3) Most-Favored-Nation Treatment (Article 10.4)
Level of Government: Central
Measures: 22 U.S.C. §§ 2194 and 2198(c)
Description: Investment
The Overseas Private Investment Corporation insurance and loan guarantees are not available to certain aliens, foreign enterprises, or foreign-controlled domestic enterprises.
Sector: Air Transportation
Obligations Concerned: National Treatment (Article 10.3) Most-Favored-Nation Treatment (Article 10.4) Senior Management and Boards of Directors (Article 10.10)
Level of Government: Central
Measures: 49 U.S.C. Subtitle VI, Aviation Programs
14 C.F.R. Part 297 (foreign freight forwarders); 14 C.F.R. Part 380, Subpart E (registration of foreign (passenger) charter operators)
Description: Investment
Only air carriers that are "citizens of the United States" may operate aircraft in domestic air service (cabotage) and may provide international scheduled and non-scheduled air service as U.S. air carriers.
U.S. citizens also have blanket authority to engage in indirect air transportation activities (air freight forwarding and passenger charter activities other than as actual operators of the aircraft). In order to conduct such activities, non-U.S. citizens must obtain authority from the Department of Transportation. Applications for such authority may be rejected for reasons relating to the failure of effective reciprocity, or if the Department of Transportation finds that it is in the public interest to do so.
Under 49 U.S.C. § 40102(a)(15), a "citizen of the United States" means:
(a) an individual who is a U.S. citizen;
(b) a partnership in which each member is a U.S. citizen; or
(c) a U.S. corporation of which the president and at least two- thirds of the board of directors and other managing officers are U.S. citizens, and at least 75 percent of the voting interest in the corporation is owned or controlled by U.S. citizens.
In addition, this statutory requirement has historically been interpreted by the Department of Transportation (and the Civil Aeronautics Board before it) to require that an air carrier in fact be under the actual control of U.S. citizens. The Department of Transportation makes this determination on a case-by-case basis, and has provided guidance as to certain lines of demarcation. For example, total foreign equity investment of up to 49 percent (with a maximum of 25 percent being voting stock), by itself, is not construed as indicative of foreign control. See Department of Transportation Order 91-1-41, January 23, 1991.
Sector: Air Transportation
Obligations Concerned: National Treatment (Articles 10.3 and 11.2) Most-Favored-Nation Treatment (Articles 10.4 and 11.3) Local Presence (Article 11.5) Senior Management and Boards of Directors (Article 10.10)
Level of Government: Central
Measures: 49 US.C., Subtitle VII, Aviation Programs
49 U.S.C. § 41703
14 C.F R. Part 375
As qualified by paragraph 2 of the Description element
Description: Cross-Border Services
1. Authorization from the Department of Transportation is required for the provision of specialty air services in the territory of the United States.*
Investment
2. "Foreign civil aircraft" require authority from the Department of Transportation to conduct specialty air services in the territory of the United States. "Foreign civil aircraft" are aircraft of foreign registry or aircraft of U.S. registry that are owned, controlled, or operated by persons who are not citizens or permanent residents of the United States (14 C.F.R. § 375.1). Under 49 U.S.C. § 40102(a)(15), a "citizen of the United States" means:
(a) an individual who is a U.S. citizen;
(b) a partnership in which each member is a U.S. citizen; or
(c) a U.S. corporation of which the president and at least two- thirds of the board of directors and other managing officers are U.S. citizens, and at least seventy-five percent of the voting interest in the corporation is owned or controlled by US. citizens.
In addition, this statutory requirement has historically been interpreted by the Department of Transportation (and the Civil Aeronautics Board before it) to require that an air carrier in fact be under the actual control of U.S. citizens. The Department of Transportation makes this determination on a case-by-case basis, and has provided guidance as to certain lines of demarcation. For example, total foreign equity investment of up to 49 percent (with a maximum of 25 percent being voting stock), by itself, is not construed as indicative of foreign control. See Department of Transportation Order 91-1-41, January 23, 1991.
*A person of Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua will be able to obtain such an authorization given their governments' acceptance of the U.S. definition of specialty air services in Chapter Eleven (Cross- Border Trade in Services).
Sector: Transportation Services - Customs Brokers
Obligations Concerned: National Treatment (Articles 10.3 and 11.2) Local Presence (Article 11.5)
Level of Government: Central
Measures: 19 U.S.C. § 1641(b)
Description: Cross-Border Services and Investment
A customs broker’s license is required to conduct customs business on behalf of another person. Only U.S. citizens may obtain such a license. A corporation, association, or partnership established under the law of any state may receive a customs broker’s license if at least one officer of the corporation or association, or one member of the partnership, holds a valid customs broker’s license.
Sector: All Sectors
Obligations Concerned: National Treatment (Article 10.3) Most-Favored-Nation Treatment (Article 10.4)
Level of Government: Central
Measures: Securities Act of 1933, 15 U.S.C. §§ 77c(b), 77f, 77g, 77h, 77j, and 77s(a)
17 C.F.R. §§ 230.251 and 230.405
Securities Exchange Act of 1934, 15 U.S.C. §§ 78l, 78m, 780(d), and 78w(a)
17 CER. § 240.12b-2
Description: Investment
Foreign firms, except for certain Canadian issuers, may not use the small business registration forms under the Securities Act of 1933 to register public offerings of securities or the small business registration forms under the Securities Exchange Act of 1934 to register a class of securities or file annual reports.
Sector: Communications – Radiocommunications
Obligations Concerned: National Treatment (Article 10.3)
Level of Government: Central
Measures: 47 U.S.C. § 310
Foreign Participation Order 12 FCC Rcd 23891 (1997)
Description: Investment
The United States reserves the right to restrict ownership of radio licenses in accordance with the above statutory and regulatory provisions. Radiocommunications consists of all communications by radio, including broadcasting.
Sector: Professional Services - Patent Attorneys, Patent Agents, and Other Practice before the Patent and Trademark Office
Obligations Concerned: National Treatment (Article 11.2) Most-Favored-Nation Treatment (Article 11.3) Local Presence (Article 11.5)
Level of Government: Central
Measures: 35 U.S.C. Chapter 3 (practice before the U.S. Patent and Trademark Office)
37 C.F.R. Part 10 (representation of others before the U.S. Patent and Trademark Office)
Description: Cross-Border Services
As a condition to be registered to practice for others before the US. Patent and Trademark Office (USPTO):
(a) a patent attorney must be a U.S. citizen or an alien lawfully residing in the United States (37 C.F.R. § 10.6(a));
(b) a patent agent must be a US. citizen, an alien lawfully residing in the United States, or a non-resident who is registered to practice in a country that permits patent agents registered to practice before the USPTO to practice in that country; the latter is permitted to practice for the limited purpose of presenting and prosecuting patent applications of applicants located in the country in which he or she resides (37 C.F.R. §10.6(c)); and
(c) a practitioner in trademark and non-patent cases must be an attorney licensed in the United States, a "grandfathered" agent, an attorney licensed to practice in a country that accords equivalent treatment to attorneys licensed in the United States, or an agent registered to practice in such a country; the latter two are permitted to practice for the limited purpose of representing parties located in the country in which he or she resides (37 C.F.R. § 10.14(a)-(c)).