20-0519 Tuesday ” Daily Bugle “

20-0519 Tuesday “Daily Bugle”

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Tuesday, 19 May 2020

  1. Commerce/BIS Amends General Prohibition Three and the Entity List
  2. Commerce/BIS Requests Comments on Section 232 National Security Investigation of Certain Imports
  1. Items Scheduled for Future Federal Register Edition
  2. Commerce/BIS: (No new postings)
  3. State/DDTC Publishes New FAQ on the Status of Puerto Rico and Other U.S. Territories
  1. Deutsche Welle: “Iran Complains Over U.S. Threat to Venezuela Oil Shipment”
  2. Reuters: “Taiwan Tells U.S. It Is Complying With North Korea Sanctions”
  1. Crowell Moring: “New U.S. Sanctions Advisory for the Maritime Industry”
  2. EU Sanctions: “Ukraine Updates Its Russia Sanctions List”
  3. Mayer Brown: “U.S. Moves to Close ‘Loophole’ in Latest Bid to Hamper Huawei’s Access to Supply of Chipsets”
  4. N. Turner: “Sanctions Top-5 for the Week Ending 15 May 2020”
  1. FCC Academy Presents June Webinars: “U.S. Export Controls: ITAR, EAR, and FMS”
  1. Bartlett’s Unfamiliar Quotations 
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Federal Register, 19 May 2020) [Excerpts]
* 85 FR 29849: Interim final rule; request for comments.
* AGENCY: Bureau of Industry and Security, Commerce.
* ACTION: Interim final rule; request for comments.
* SUMMARY: This rule amends General Prohibition Three, also known as the foreign-produced direct product rule, by exercising existing authority under the Export Control Reform Act of 2018 (ECRA), to impose a new control over certain foreign-produced items, when there is knowledge that such items are destined to a designated entity on the Entity List. A foreign-produced item is subject to the new control if the entity for which the item is destined has a footnote 1 designation in the Entity List. This rule also applies this new control to Huawei Technologies Co., Ltd. (Huawei) and its non-U.S. affiliates listed as entities. The Bureau of Industry and Security (BIS) is requesting comments on the impact of this rule.
* DATES: Effective date: This rule is effective May 15, 2020.
Comment date: Submit comments on or before July 14, 2020.
* ADDRESSES: You may submit comments, identified by docket number BIS 2020-0011 or RIN 0694-AH99, through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. … 

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EXIM_a22. Commerce/BIS Requests Comments on Section 232 National Security Investigation of Certain Imports

(Source: Federal Register, 19 May 2020) [Excerpts]
* 85 FR 29926: Notice of request for public comments.
* AGENCY: Bureau of Industry and Security, Office of Technology Evaluation, U.S. Department of Commerce.
* ACTION: Notice of request for public comments.
* SUMMARY: On May 11, 2020, based on inquiries and requests from interested parties in the United States, including multiple Members of Congress, a Grain-Oriented Electrical Steel (GOES) manufacturer, and producers of Power and Distribution Transformers, the Secretary of Commerce (the “Secretary”) initiated an investigation to determine the effect of imports of Laminations for Stacked Cores for Incorporation into Transformers, Stacked Cores for Incorporation into Transformers, Wound Cores for Incorporation into Transformers, Electrical Transformers, and Transformer Regulators on the national security. This investigation has been initiated under section 232 of the Trade Expansion Act of 1962, as amended.
   Interested parties are invited to submit written comments, data, analyses, or other information pertinent to the investigation to the Department of Commerce’s (the “Department”) Bureau of Industry and Security by June 9, 2020. Rebuttal comments will be due by June 19, 2020. While the Department is interested in any information related to this investigation that the public can provide, this notice identifies particular issues of significance.
* DATES: The due date for filing comments is June 9, 2020. The due date for rebuttal comments is June 19, 2020. Rebuttal comments may only address issues raised in comments filed on or before June 9, 2020.
* ADDRESSES: Submissions: All written comments on the notice must be addressed to Section 232 Electrical Steel Investigation and filed through the Federal eRulemaking Portal: http://www.regulations.gov. …  

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International Trade Administration
: NOTICES; Postponement of Trade Missions from April through August 2020 [Pub. Date: 20 May 2020] (PDF)
* State Department: NOTICES; Bureau of Political-Military Affairs:
Rescission of Policy of Denial Concerning BAE Systems Saudi Arabia Limited, a Subsidiary of BAE Systems, plc under the International Traffic in Arms Regulations [Pub. Date: 20 May 2020] (PDF)
* State Department: NOTICES; Statutory Debarment under the Arms Export Control Act and the International Traffic in Arms Regulations [Pub. Date: 20 May 2020] (PDF)

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OGS_a24. Commerce/BIS: (No new postings)

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, 19 May 2020)
Licensing FAQs
Q: Is an export license required in order to send defense articles [from one of the U.S. states] to Puerto Rico?
A: No. As ITAR § 120.13 makes clear, Puerto Rico is part of the United States, as are other locations including American Samoa, Guam, and the U.S. Virgin Islands. No export occurs when a defense article is shipped to Puerto Rico. Therefore, no export license or other approval from DDTC is required.

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NWS_a16. Deutsche Welle: “Iran Complains Over U.S. Threat to Venezuela Oil Shipment”

NWS_a27. Reuters: “Taiwan Tells U.S. It Is Complying With North Korea Sanctions”
, 19 May 2020) [Excerpts]
  Taiwan is complying with international sanctions against North Korea, a senior Taiwanese security official told the United States’ deputy representative for North Korea on Tuesday, having previously been called out for breaking them.
Taiwan, claimed by China as its own, is not a member of the United Nations, but says that as a responsible global player it is committed to ensuring sanctions are enforced to rein in North Korea’s nuclear and missile programmes. …


COM_a18. Crowell Moring: “New U.S. Sanctions Advisory for the Maritime Industry”
(Source: Crowell Moring, 15 May 2020)
* Principal Author: David (DJ) Wolff, Esq., 1-202-624-2548, Crowell & Moring LLP
  On May 14, 2020, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, and the U.S. Coast Guard issued a long-awaited ”
Sanctions Advisory for the Maritime Industry, Energy and Metals Sectors, and Related Communities” (the “Advisory”). The Advisory substantially expands on previous shipping advisories that OFAC and other U.S. agencies have issued that were specific to the Iran, Syria, and North Korea programs (see our  
previous summary) by not only offering global guidance, but also by issuing more than a dozen pages of detailed industry-specific recommendations across 10 sectors that touch the maritime industry. In many cases, these recommendations go substantially beyond the compliance expectations that OFAC or its peers had previously articulated. 
The Advisory consolidates the list of “deceptive shipping practices” that were identified in previous advisories and adds several new practices:
  • Disabling or Manipulating the Automatic Identification System (AIS) on Vessels;
  • Physically Altering Vessel Identification; 
  • Falsifying Cargo and Vessel Documents; 
  • Ship-to-Ship (STS) Transfers;
  • (New) Voyage Irregularities; 
  • (New) False Flags and Flag Hopping; and 
  • (New) Complex Ownership or Management.
  To identify these deceptive practices and mitigate these risks, the Advisory recommends that all industry actors should “implement appropriate due diligence and compliance programs based on their risk assessments,” but then proceeds to offer a list of suggested compliance steps that “may assist in more effectively identifying potential sanctions evasion.” These are:
  1. Institutionalize Sanctions Compliance Programs;
  2. Establish AIS Best Practices and Contractual Requirements; 
  3. Monitor Ships Throughout the Entire Transaction Lifecycle; 
  4. Know Your Customer and Counterparty; 
  5. Exercise Supply Chain Due Diligence; 
  6. Contractual Language; and 
  7. Industry Information Sharing.
  The suggested practices are consistent with previous guidance that OFAC issued with respect to North Korea (in February 2018 and updated in March 2019) and Iran and Syria (November 2018 and March 2019). The Advisory goes substantially further than the prior guidance, however, by including an Annex in which it provides specific compliance recommendations for each of the following industries touching on the maritime sector: 
  • Maritime Insurance Companies;
  • Flag Registry Managers;
  • Port State Control Authorities; 
  • Shipping Industry Associations;
  • Regional and Global Commodity Trading, Supplier, and Brokering Companies;
  • Financial Institutions; 
  • Ship Owners, Operators, and Charterers; 
  • Classification Societies; 
  • Vessel Captains; and 
  • Crewing Companies.
  We will not repeat the 14 single-spaced pages of recommendations, but the following are a few of the key features or implications of these recommendations:

  – Establishes the New Compliance Baseline: …

  – Extends AIS Monitoring Recommendations to “Continuous” Monitoring: …  – Requires Access to AIS Monitoring Tools: Implicit in the above recommendation is a requirement for companies to have the ability to research AIS history. The Advisory makes this recommendation explicit for maritime insurers providing cover for ship owners, suppliers, buyers, charterers, and managers, as well as for flag registries, recommending that they have the ability to “research the AIS history for all the vessels under the ownership or control of such parties,” a recommendation that likely requires the use of subscription tracking tools to access vessels’ historic AIS data.

  – Requires Substantially More Detailed Ownership Checks: …

  – Creates an Implied “Know Your Customer’s Controls (KYCC) Obligation: …

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COM_a310. Mayer Brown: “U.S. Moves to Close ‘Loophole’ in Latest Bid to Hamper Huawei’s Access to Supply of Chipsets”

Mayer Brown,
18 May 2020)
* Principal Author: Tamer A. Soliman, Esq., 1-202-263-3292, Mayer Brown
  On May 15, 2020, the US Department of Commerce, Bureau of Industry and Security (“BIS”) announced an 
interim final rule that will further restrict the use by non-US persons of certain US technology, software and equipment in the design, development and production abroad of semiconductors for Huawei Technologies Co., Ltd. and 114 of its affiliates around the world.
F/N 1 The rule is the latest in a series of recent actions by the United States intended to address US national security concerns relating to China’s drive for 5G dominance and to enhance national security controls on related transactions. The rule has already drawn reaction from the Chinese government and will have far-reaching implications for US and non-US foundries, chipset design firms and others in Huawei’s global supply chain. 
  The interim rule took effect May 15, 2020, and includes a conditional grace period for covered items the production of which was initiated as of that day, as well as for certain in-transit shipments. On or before July 14, 2020, BIS is requesting comments on the impact of this rule. This Legal Update provides background on BIS’s actions targeting Huawei and an overview of the rule change and its potential ramifications.
Entity List Designation of Huawei
  As discussed in our previous 
Legal Update, on May 16, 2019, BIS added Huawei Technologies Co., Ltd. and dozens of its non-US affiliates (collectively, “Huawei”) to the Entity List. That action imposed a license requirement on exporting, reexporting or transferring (in-country) items subject to the Export Administration Regulations (“EAR”) to Huawei. BIS issued a Temporary General License (“TGL”) authorizing certain limited categories of transactions for a 90-day period and has issued successive extensions of that general license.
F/N 2 Outside of these narrow exceptions, the Entity List designation effectively cut Huawei off from both US and non-US items, whether goods, technology or software, (collectively, “items”) when they are subject to the EAR. For example, items made outside of the US may also be subject to the EAR if they incorporate greater than de minimis controlled US-origin content (generally, greater than 25 percent) or, in certain limited cases, are produced as the direct product of certain controlled US-origin technology subject to national security controls. As discussed in our recent Legal Updates,
F/N 3 the Entity List designation of Huawei is part of the US government’s assessment of critical national security risks associated with China’s efforts to secure cutting-edge technologies as part of its “military-civil fusion” initiative, which aims to merge China’s defense and commercial economies as part of its strategy to advance Chinese interests.
Huawei’s Adapting Supply Chain
  As the above suggests, foreign-made items with less than de minimis US content and items that do not fall within the “foreign direct product” category of US technology fall outside the reach of the rule. In the year since Huawei’s designation, Huawei has demonstrated an ability to adapt and leverage its substantial market position by working to reduce its reliance on US content across its supply chain and has itself continued to secure lucrative contracts as a global supplier of 5G telecommunications infrastructure. At the same time, US officials have internally debated a number of proposals to impose further restrictions on the company, including possible changes to the de minimiscontent and foreign direct product rules. 
  Following several months of consideration, the interim final rule adopts a change to BIS’s long-standing foreign direct product rule to address, as BIS states in its May 15, 2020, announcement, Huawei’s efforts to undermine the Entity List through a “loophole.”
The Foreign Direct Product Rule
  Prior to the latest change, the foreign direct product rule has long provided that when certain non-US-made items are the direct products of US software or technology subject to national security controls under the EAR (or are direct products of plants or equipment that are based on such US software or technology), such foreign-made items may themselves be subject to the EAR. Specifically, the rule has been based on three criteria: (i) the reason for control applicable to the US technology or software, (ii) the reason for control applicable to the foreign-produced item or classification and (iii) the country of destination of the foreign-produced item. 
  Before the amendment, unless these criteria were met, a non-US-made item with de minimis US content was not subject to the EAR and would not face any restrictions for export, reexport or transfer (in-country) to Huawei despite its designation on the Entity List. For example, if the transaction satisfied the national security controls in the first two criteria, but the destination did not satisfy the third criterion, the rule did not render the item subject to the EAR. Moreover, the rule did not distinguish between transactions involving restricted Entity List entities and parties who are not the subject of BIS end-user restrictions. With the amendment, BIS maintains the current rule under the three criteria above but expands the rule by adding a separate test for certain Entity List entities as an alternative basis for application of the foreign direct product rule.
The Amendment 
  The amendment expands the foreign direct product rule for Huawei (including its 114 affiliates) by establishing a separate basis for control (while leaving intact the existing control) under the foreign direct product rule. 
  • First, the country of destination for the export, re-export or transfer (in-country) of the foreign-produced item is not a factor under the new control, unlike under the existing control.
  • Second, the rule only applies to Entity List entities whose designation specifically includes new Footnote 1, a marker for application of this new control. All of the Huawei entities on the Entity List have this marker.
  • Third, for such entities, a foreign-produced item will be subject to the EAR by virtue of the new control only where (i) the item satisfies the new control criteria, discussed below, and (ii) there is “knowledge” that the item is destined for the designated entity. Where the second prong is not satisfied, the new control does not trigger application of the EAR, even if the item would otherwise qualify as a foreign-produced direct product under the new rule. Note, however, that “knowledge” does not require actual knowledge but “reason to know” and that BIS has long-adopted a broad view of the term in practice based on a consideration of all of the facts and circumstances surrounding a transaction or set of transactions.
  • Finally, as to the new control for such entities, the rule adopts more expansive control criteria to cover two categories of foreign-produced items. The items in the first category are foreign-made items (such as integrated circuit designs) produced or developed by Huawei and its affiliates on the Entity List that are the direct product of certain software or technology subject to the EAR and controlled for national security reasons (e.g., electronic design automation software).

    The items in the second category are foreign-made items that are the direct product of a plant or major component of that plant outside of the US (including semiconductor manufacturing equipment) where that plant/major component is itself a direct product of certain software or technology controlled under Categories 3, 4 and 5 of the Commerce Control List under the EAR and where the foreign-produced item is a direct product of software or technology produced or developed by the Huawei entity.F/N 5 BIS provides as an example a chipset, “when produced from the design specifications of Huawei or an affiliate on the Entity List (e.g., HiSilicon), that are the direct product of certain [controlled] semiconductor manufacturing equipment located outside the United States.”

  In an effort to mitigate the immediate harm to companies that are involved in Huawei’s semiconductor supply chain, BIS will exempt certain items subject to the new controls and implement a wind-down period for companies that have initiated shipment or production for items based on Huawei design specifications as of the effective date (May 15, 2020) of the amendment. In particular, shipments of non-US-made items subject to the new controls that were on dock for loading, on lighter, laden aboard an exporting or transferring carrier, or en route aboard a carrier to a port of export or to the consignee/end-user on the effective date pursuant to actual orders for exports, reexports and transfers (in-country) to a foreign destination or to the consignee/end-user are authorized to proceed to such destination. Moreover, foreign-produced items will not be subject to these new licensing requirements provided they were in production prior to the effective date and are reexported, exported from abroad or transferred (in-country) before September 14, 2020, i.e., 120 days after the effective date.
Chinese Response
  Although it has not taken any official action in response to BIS’s announcement, the Chinese government responded to media inquiries that China will take necessary actions to protect the legitimate interests of Chinese companies. According to media reports, China’s responsive actions may include one or more of the following: (i) designate certain US technology companies on the “unreliable entities list” (see our May 31, 2019, 
Legal Update for more information), (ii) investigate or impose restrictions on US companies pursuant to Cyber Security Review Measures and the Antitrust Law and (iii) cease airplane purchases from the United States.
F/N 6 
  Aimed at curtailing Huawei’s ability to obtain semiconductor chips derived from US software or technology, the amendment will also affect many other US and non-US companies. Non-US suppliers of semiconductor chips to Huawei, and the US companies that provide these suppliers with US-origin software or technology for their manufacturing processes, will need to immediately begin reevaluating their direct and indirect relationships with Huawei or its affiliates listed on the Entity List. Part of this re-evaluation will require determining which products have newly become subject to the EAR, identifying what transactions will qualify for the wind-down period and ensuring that the proper procedures are in place to avoid the potential for non-exempt products under the savings clause making their way to Huawei. Moreover, non-US and US companies will need to reevaluate and update their compliance measures (e.g., contractual provisions) to factor in the new amendment. US technology companies will also need to monitor developments regarding China’s “unreliable entities list.”
  Finally, in the context of the broader US government campaign to comprehensively address national security risks relating to China’s role in 5G development more broadly, companies not directly involved in the export, reexport or transfer of controlled US-origin technology or software should also closely monitor additional steps likely to be taken by the US government for national security purposes in the area of 5G-related technologies.

LinkedIn, 1
9 May 2020)
* Author: Nicholas Turner, Esq., 852-5998-7559, Steptoe & Johnson HK
Here are five things that happened this week in the world of economic sanctions that I think you should know about.
(1) The US Office of Foreign Assets Control, the US State Department, and the US Coast Guard
released a long-awaited advisory to the maritime, energy, metals, and related industries
 on illicit shipping and sanctions evasions practices. The 35-page document includes examples of deceptive shipping practices, recommendations for detecting sanctions evasion, and targeted guidance for ship owners, maritime insurance companies, flag registry managers, commodity traders, financial institutions and other parties. (
The advisory is available here.)
As foreshadowed last week, the US Senate
 passed its version of the Uyghur Human Rights Policy Act of 2020
 which would authorize sanctions against Chinese officials determined to be responsible for human rights abuses in the Xinjiang Uyghur Autonomous Region (XUAR). Versions of the Act have been in the works since January 2019. It is now awaiting approval by the House of Representatives.
   (3) Sweden’s Nynas, previously majority owned by Venezuela’s state-owned Petróleos de Venezuela, S.A. (PdVSA),
announced it is no longer subject to OFAC blocking sanctions
 following a reorganization that reduced PdVSA’s ownership stake. OFAC followed suit
with an announcement affirming Nynas’ status and amending some general licenses and FAQs that mentioned the company. (Grattis!)
   (4) A judge for the US District Court for the Southern District of Florida
dismissed a claim against Amazon and Susshi International Inc. under Title III of the Helms-Burton Act. The plaintiff alleged the companies trafficked in charcoal produced on land owned by his grandfather which was confiscated by the Cuban government. The Court found the plaintiff did not have an actionable interest under Title III because he inherited it after the Act’s effective date of 12 March 1996.
   (5) The European Commission
published a guidance document
 on complying with EU sanctions in providing humanitarian aid to Syria, including in response to COVID-19. “EU sanctions are not meant to stand in the way nor impede the supply of humanitarian aid,”
the document states.
  There have been murmurings for quite a while at conferences and other forums about
the US government’s new maritime advisory. Now that it’s here, the contents strike me as fairly uncontroversial and are consistent with previous guidance from the agencies. The principles apply not only to US sanctions, but also UN and other sanctions where vessels might be used to evade international prohibitions. The document is not a regulation, and it does not mandate any new steps. However, it does provide a handy set of best practices categorized by industry that should help focus companies’ compliance efforts. “As industry actors implement appropriate due diligence and compliance programs based on their risk assessments, we recommend that they continually adopt business practices to address red flags and other anomalies that may indicate illicit or sanctionable behavior,” the advisory states.
  In conjunction with the advisory’s release, the team at Windward have put together an excellent set of case studies to illustrate various sanctions risks associated with unusual vessel activity.


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* Johann Fichte (Johann Gottlieb Fichte; 19 May 1762 – 29 Jan 1814; was a German philosopher who became a founding figure of the philosophical movement known as German idealism, which developed from the theoretical and ethical writings of Immanuel Kant. Recently, philosophers and scholars have begun to appreciate Fichte as an important philosopher in his own right due to his original insights into the nature of self-consciousness or self-awareness.)
  – “A man can do what he ought to do; and when he says he cannot, it is because he will not.”
* Ataturk (Mustafa Kemal Ataturk; until 1934: Mustafa Kemal Pasha; 19 May 1881 – 10  Nov 1938; was a Turkish field marshal, revolutionary statesman, author, and the founder of the Republic of Turkey, serving as its first President from 1923 until his death in 1938.)
  – “No country is free unless it is democratic.”
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The official versions of the following regulations are published annually in the U.S. Code of Federal Regulations (C.F.R.), but are updated as amended in the Federal Register.  The latest amendments are listed below.
Latest Update 
: 19 CFR, Ch. 1, Pts. 0-199.
5 Apr 2019: 84 FR 13499: Civil Monetary Penalty Adjustments for Inflation.


19 May 2020:
85 FR 29849

Amendments to General Prohibition Three (Foreign-Produced Direct Product Rule) and the Entity List.



DOC FOREIGN TRADE REGULATIONS (FTR): 15 CFR Part 30.   Last Amendment: 24 Apr 2018: 83 FR 17749: Foreign Trade Regulations (FTR): Clarification on the Collection and Confidentiality of Kimberley Process Certificates.


18 May 2016: Change 2: Implement an insider threat program; reporting requirements for Cleared Defense Contractors; alignment with Federal standards for classified information systems; incorporated and cancelled Supp. 1 to the NISPOM (Summary here.)  

23 Feb 2015: 80 FR 9359, comprehensive updating of regulations, updates the activities and technologies subject to specific authorization and DOE reporting requirements. 

15 Nov 2017, 82 FR 52823: miscellaneous corrections include correcting references, an address and a misspelling.


DOJ ATF ARMS IMPORT REGULATIONS: 27 CFR Part 447-Importation of Arms, Ammunition, and Implements of War.

14 Mar 2019: 84 FR 9239: Bump-Stock-Type Devices.

6 May 2020: 85 FR 26847, Notice (not an amendment) temporarily reducing the registration fee schedule in ITAR 122.3 until April 30, 2021. 


DOT FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR): 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders

10 Apr 2020:
85 FR 20158:

North Korea Sanctions Regulations. 


1 Jan 2019: 19 USC 1202 Annex.
  – HTS codes for AES are available here.
  – HTS codes that are not valid for AES are available here.

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