20-1005 Monday “Daily Bugle”

20-1005 Monday “Daily Bugle”

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Monday, 5 October 2020

  1. Treasury/OFAC: “Blocking or Unblocking of Persons and Properties”
  2. Commerce/BIS Amends EAR to Implement New Wassenaar Controls on Emerging Technologies
  3. USTR: “-Product Exclusions-China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation”
  1. Items Scheduled for Future Federal Register Edition
  2. Commerce/BIS:(No new postings)
  3. State: “Discussion on Implementing the UN Guiding Principles for Transactions Linked to Foreign Govt End-Users of Products or Services with Surveillance Capabilities, 9 Oct”
  4. EU Council: “Regulation (EU) 2020/1387 concerning Restrictive Measures against Belarus”
  1. EU Sanctions: “EU Imposes Sanctions on 40 Belarus Officials”
  1. Baker McKenzie: “US – USTR Posts List 1 ($34 Bn.) and List 2 ($16 Bn.) Product Exclusion Extensions”
  2. Morrison & Foerster: “China Technology Export Update: Amendment of the Export Technology Catalog”
  1. Monday List of Ex/Im Job Openings: 60 Available – 6 New Job Openings This Week
  1. State/DDTC: “Public is Invited to Virtual DTAG Plenary Meeting on October 22, 2020” 
  2. State: “Discussion on Implementing the UN Guiding Principles for Transactions Linked to Foreign Govt End-Users of Products or Services with Surveillance Capabilities, 9 Oct” 
  3. FCC Academy Presents: “Designing an ICP” (6 Oct) & “Implementing an ICP” (7 Oct
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Find the Latest Amendments Here. 
  3. Weekly Highlights of the Daily Bugle Top Stories 
  4. Submit Your Job Opening and View All Job Openings 
  5. Submit Your Event and View All Approaching Events 

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load to your laptop to keep you updated on the latest amendments, and contain over 800 footnotes of section history, key cases, practice tips & tricks, and extensive Tables of Contents. The ITAR amendments to the ITAR that took effect on 9 March and 25 March are included in the current edition of the BITAR.  Subscribers receive updated editions every time the regulations are amended (usually within 24 hours) so you will always have the current versions of the regulations. Subscribe to the BITAR here to guarantee you have an up-to-date ITAR!    


(Source: Federal Register) [Excerpts]
85 FR 62811: Notice
* AGENCY: Office of Foreign Assets Control, Treasury.
* ACTION: Notice.
* SUMMARY: The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) is publishing the names of one or more individuals that have been placed on OFAC’s Specially Designated Nationals and Blocked Persons List (SDN List). OFAC has determined that one or more applicable legal criteria were satisfied to place the individuals on the SDN List. All property and interests in property subject to U.S. jurisdiction of these individuals are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.

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(Source: Federal Register) [Excerpts]
85 FR 62583: Final Rule
* AGENCY: Bureau of Industry and Security, Commerce.
* ACTION: Final rule.
* SUMMARY:The Bureau of Industry and Security (BIS) maintains, as part of its Export Administration Regulations (EAR), the Commerce Control List (CCL), which identifies certain items subject to Department of Commerce jurisdiction.
This final rule revises the CCL, as well as corresponding parts of the EAR, to implement certain changes made to the Wassenaar Arrangement List of Dual-Use Goods and Technologies (WA List) maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Wassenaar Arrangement, or WA) at the December 2019 WA Plenary meeting. The Wassenaar Arrangement advocates implementation of effective export controls on strategic items with the objective of improving regional and international security and stability.

This final rule implements multilateral controls on six recently developed or developing technologies, which were identified by the WA December 2019 WA Plenary Meeting in a manner contemplated by the Export Control Reform Act of 2018 (ECRA) to identify emerging technologies that are essential to U.S. national security.

This rule harmonizes the CCL with the WA December 2019 Plenary Meeting agreements that pertain to these six technologies. The inclusion of the six technologies in this final rule is consistent with the requirements of ECRA and the decision of the WA to add such technologies to its control lists, thereby making exports of such technologies subject to multilateral control. As these six technologies are recently developed or developing technologies that are essential to the national security of the United States, early implementation of the applicable WA December 2019 Plenary agreements is warranted. The remaining WA 2019 Plenary agreements will be implemented in a separate rule. 

* DATES: This rule is effective October 5, 2020.


For general questions, contact Sharron Cook, Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce at 202-482-2440 or by email: Sharron.Cook@bis.doc.gov. …

* Background

The Wassenaar Arrangement (Wassenaar or WA)  on Export Controls for Conventional Arms and Dual-Use Goods and Technologies is a group of 42 like-minded states committed to promoting responsibility and transparency in the global arms trade and preventing destabilizing accumulations of arms. As a Participating State, the United States has committed to controlling for export all items on the WA control lists. These lists were first established in 1996 and have been revised annually thereafter. Proposals for changes to the WA control lists that achieve consensus are approved by Participating States at annual plenary meetings. Participating States are charged with implementing the agreed-upon list changes as soon as possible after approval. The United States’ implementation of WA list changes ensures that U.S. companies have a level playing field with their competitors in other WA Participating States.
This final rule implements multilateral controls on six recently developed or developing technologies, which were identified by the WA December 2019 WA Plenary Meeting in a manner contemplated by the ECRA to identify emerging technologies that are essential to U.S. national security. This rule harmonizes the CCL with the agreements reached by the WA during the WA December 2019 Plenary Meeting. The inclusion of the six technologies in this final rule is consistent with the requirements of ECRA and the decision of the WA to add the technologies to its control lists, thereby making exports of such technologies subject to multilateral control (following implementation by the United States and other WA participating countries).
To implement the WA control list changes, this rule adds to the EAR’s CCL the following six recently developed or developing technologies that are essential to the national security of the United States: Hybrid additive manufacturing (AM)/computer numerically controlled (CNC) tools; computational lithography software designed for the fabrication of extreme ultraviolet (EUV) masks; technology for finishing wafers for 5nm production; digital forensics tools that circumvent authentication or authorization controls on a computer (or communications device) and extract raw data; software for monitoring and analysis of communications and metadata acquired from a telecommunications service provider via a handover interface; and sub-orbital craft.
This rule also makes a correction to one ECCN and revises three related ECCNs and one License Exception.

Certain Revisions to the Commerce Control List Related to WA 2019 Plenary Agreements:

Revises five (5) ECCNs: 2B001, 3D003, 5E001, 5A004, 9A004
Revises three (4) related ECCNs: 5D002, 5E002, 9A012, 9A515
Corrects one (1) ECCN: 5D001
License Exception eligibility revisions: ENC
Adds (1) ECCN: 3E004
. . . .
List of Subjects 15 CFR Part 740

  • Administrative practice and procedure
  • Exports
  • Reporting and recordkeeping requirements

15 CFR Part 772

  • Exports

15 CFR Part 774

  • Exports
  • Reporting and recordkeeping requirements

Accordingly, parts 740, 772, and 774 of the Export Administration Regulations (15 CFR parts 730 through 774) are amended as follows:

. . . . (See Source for remaining text.)

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(Source: Federal Register) [Excerpts]
85 FR 62786: Notice
* AGENCY: Office of the United States Trade Representative.
* ACTION: Notice.
* SUMMARY: Effective August 23, 2018, the U.S. Trade Representative imposed additional duties on goods of China with an annual trade value of approximately $16 billion as part of the action in the Section 301 investigation of China’s acts, policies, and practices related to technology transfer, intellectual property, and innovation. The U.S. Trade Representative initiated an exclusion process in September 2018 and granted three sets of exclusions under the $16 billion action. He published the third set of exclusions in September 2019 and added additional exclusions in February and July 2020. These exclusions will expire on October 2, 2020. On June 25, 2020, the U.S. Trade Representative established a process for the public to comment on whether to extend particular exclusions for up to 12 months. This notice announces the U.S. Trade Representative’s determination to extend certain exclusions through December 31, 2020.
* DATES: The product exclusion extensions announced in this notice apply as of October 2, 2020 and extend through December 31, 2020. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.

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* Commerce/BIS; RULES; Controls on Exports and Reexports of Water Cannon Systems; [Pub. Date: 6 Oct 2020]
* Commerce/BIS; RULES; Information Sharing for Purposes of Judicial Review; [Pub. Date: 6 Oct 2020]
* Commerce/BIS; RULES; Licensing Policy for Items Controlled for Crime Control Reasons; [Pub. Date: 6 Oct 2020]

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OGS_a25. Commerce/BIS: (No new postings).

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Q: Where can I find the “see-through rule” in the ITAR and how does it work?
A: The phrase “see-through rule” is a colloquial phrase popularly used to refer to the impact of certain ITAR controls. Specifically, it refers to the fact that pursuant to ITAR §120.6, any item described on the USML is a defense article. ITAR § 123.1(a) further provides that any person who intends to export or temporarily import a defense article must obtain the approval of DDTC prior to the export or temporary import, and ITAR § 123.9(a) requires the written approval of DDTC before reselling, transferring, reexporting, retransferring, transshipping, or disposing of a defense article to any end-user, end-use, or destination other than as stated on the export license, except in accordance with the provisions of an applicable exemption. These controls do not disappear simply because the defense article is integrated into another item.  
If an ITAR-controlled defense article is integrated into a larger system or end-item, the defense article does not lose its identity. Except as articulated specifically in the USML (see e.g., USML Category XV, Note 2 to paragraph (e)) the ITAR “sees through” the larger system or end-item and continues to regulate that defense article.

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(Source: Official Journal of the European Union, 5 Oct 2020) [Excerpts]
The following information is brought to the attention of the persons designated in the Annex to Council Decision 2012/642/CFSP, as implemented by Council Implementing Decision (CFSP) 2020/1388, and in Annex I to Council Regulation (EC) No 765/2006, as implemented by Council Implementing Regulation (EU) 2020/1387 concerning restrictive measures against Belarus.
The Council of the European Union has decided that the persons that appear in the abovementioned Annexes should be included on the list or persons subject to restrictive measures provided for in Decision 2012/642/CFSP and Regulation (EC) No 765/2006. The grounds for designations of those persons appear in the relevant entries in those Annexes.
The attention of the persons concerned is drawn to the possibility of making an application to the competent authorities of the relevant Member State(s) as indicated in the websites in Annex II to Council Regulation (EC) No 765/2006, in order to obtain an authorisation to use frozen funds for basic needs or specific payments (cf. Article 3 of the Regulation).

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(Source: EU Sanctions, 3 Oct 2020)
The EU has imposed sanctions (asset freeze and travel ban) against 40 officials “identified as responsible for repression and intimidation against peaceful demonstrators, opposition members and journalists in the wake of the 2020 presidential election in Belarus, as well as for misconduct of the electoral process”. See press release.
The EU’s sanctions list does not include President Alexander Lukashenko, his son Victor, or Igor Sergeenko, Lukashenko’s chief of staff, all of whom were designated by the UK this week (see post). The other 5 officials listed by the UK are now also on the EU’s sanctions list.
The measures were agreed at a meeting of the Special Council yesterday (1 October 2020), at which conclusions were adopted reiterating the EU’s support for the right of Belarusian people to elect their President through “new free and fair elections, without external influence”.
The legal acts are: Council Implementing Regulation (EU) 2020/1387, implementing Article 8a(1) of Regulation (EC) 765/2006, and Council Implementing Decision (CFSP) 2020/1388, implementing Decision 2012/642/CFSP. EU sanctions on Belarus were first imposed in 2006 on the basis of serious violations of human rights, undermining democracy, or supporting or benefitting from the Lukashenka regime. Measures targeting President Lukashenko and 169 others were lifted in 2016 following the release of political prisoners, and improved EU-Belarus relations (see post and post).


(Source: Baker McKenzie, 1 Oct 2020)
* Principal Author: Stuart P. Seidel, Esq., 1-202-452-7088, Baker McKenzie
The Office of the United States Trade Representative (USTR) has posted a notice to be published in the Federal Register that announces the USTR’s determination to extend certain exclusions from October 2, 2020, through December 31, 2020 for products from China on List 1 ($34Bn.).
  • Annex A to the notice establishes a new HTSUS heading/subheading 9903.88.60 and new US note 20 (mmm) to cover the nine product extensions and makes conforming amendments,
  • Annex B contains a list of the original product exclusions that are being extended, showing the former US note 20(x) number and 9903.88.19 HTSUS heading/subheading and the new US note 20 (mmm) and 9903.88.60 HTSUS heading/subheading.
USTR has also posted a notice to be published in the Federal Register that announces the USTR’s determination to extend certain exclusions from October 2, 2020, through December 31, 2020 for products from China on List 2 ($16 Bn.).
  • Annex A to the notice establishes a new HTSUS heading/subheading 9903.88.61 and new US note 20 (nnn) to cover the 28 product extensions and makes conforming amendments,
  • Annex B contains a list of the original product exclusions that are being extended, showing the former US note 20(y) number and 9903.88.20 HTSUS heading/subheading and the new US note 20 (nnn) and 9903.88.61 HTSUS heading/subheading.
The exclusions for both lists are available for any product that meets the description in the Annexes, regardless of whether the importer filed an exclusion request. Further, the scope of each exclusion is governed by the scope of the ten-digit HTSUS headings and product descriptions in the Annexes to this notice, and not by the product descriptions set out in any particular request for exclusion. USTR states that CBP will issue instructions.

(Source: Morrison & Foerster, 30 Sep 2020) [Excerpts]
* Principal Author: Can Cui, Esq., 1-415-268-7275, Morrison & Foerster
On August 28, 2020, China’s Ministry of Commerce (MOFCOM) and Ministry of Science and Technology (MOST) jointly published a notice on the adjustment of China’s Catalog of Technologies the Export of Which is Prohibited or Restricted (the “Catalog”). This is the first time the Catalog has been revised in 12 years, and the first time dual-use technologies have been included in technology export control.
The amendment of the Catalog as related to certain high-tech industries has attracted much media attention, particularly to the restriction on the export of drone technologies, certain information-processing technologies for artificial intelligence interactive interface and individualized information push services based on data analysis, and technologies related to password security and information defense and countermeasures. This article, however, will focus on the revisions related to the Life Sciences industry, after a brief introduction to China’s technology export regulations.
Technology export from China is governed by China’s Technology Import and Export Regulations (TIER). The scope of technology export regulated by TIER is very broad, and includes all acts of technology transfer from within China to outside China, whether by way of trade, investment, or economic and technological cooperation. Specifically, TIER regulates outbound assignments of patents and patent applications, patent licenses, transfers of technological secrets, provision of technological services, and other forms of outbound cross-border technology transfers. TIER categorizes technology exports into three categories: technologies that may be “freely” exported (the “Free Technologies”), technologies the export of which is restricted (the “Restricted Technologies”), and technologies the export of which is prohibited (the “Prohibited Technologies”). The Catalog, jointly promulgated by MOFCOM and MOST, includes the lists of the Restricted Technologies and the Prohibited Technologies. Under TIER, export of the Prohibited Technologies is prohibited, export of the Restricted Technologies is subject to MOFCOM’s prior approval, and the regulatory requirement for the export of the Free Technologies is the after-the-fact registration of the relevant technology export contract, which shall become effective according to its own terms and not conditioned on the registration.
MOFCOM’s approval of export of the Restricted Technologies is generally a two-step process before provincial-level branches of MOFCOM (“Local Commerce”). After it receives an application for approval of the export of a Restricted Technology, Local Commerce will conduct a review of the Restricted Technology together with other applicable governmental agencies, e.g., the local branch of China Intellectual Property Administration, the local branch of MOST, the Ministry of Agriculture and Rural Affairs, or the National Forestry and Grassland Administration, depending on the nature of the Restricted Technology. Such review may take up to 30 business days before an approval or disapproval decision can be made. The approval is not the final approval of the technology export, but will be a Provisional License for Technology Export (the “Provisional License”). The technology export applicant may not engage in any substantive negotiation of the technology export or sign any technology export contract until after the issuance of the Provisional License. After the technology export contract is signed, the applicant must apply for the final Technology Export License by submitting to Local Commerce the Provisional License, a copy of the technology export contract, a list of the Restricted Technologies to be exported under the contract, and documents evidencing the legal status of the contracting parties. Local Commerce will conduct an authenticity review of the technology export contract, and will make a decision on whether to approve the technology export within 15 business days after receiving the required documents. The approval decision will be in the form of a Technology Export License. It is worth noting that, regardless of any effective date set forth in a technology export contract, with respect to any Restricted Technology, the contract is effective only upon the issuance of the Technology Export License. ….


MS_a111. Monday List of Ex/Im Job Openings: 63 Jobs Available –  6 New Job Openings This Week 

New Jobs:
* Boeing; New Orleans, LA; Production Coordinator (Associate)  
* Chemonics; Washington, DC; Procurement Associate
* Garrison & Sisson; Washington, DC; International Trade Associate
* HD Supply; Smyrna, GA; Senior Import/Export Analyst
* Nestlé; Cleveland, OH; Import/Export Specialist
* Siemens; Alpharetta, GA; Legal Counsel; Job ID: 222088

Click here for the full list.  

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The Defense Trade Advisory Group (DTAG) will meet in open session from 1:00 p.m. to 5:00 p.m. EDT on Thursday, October 22, 2020.  The membership of DTAG consists of private sector defense trade representatives appointed by the Assistant Secretary of State for Political-Military Affairs, who advise the Department on policies, regulations, and technical issues affecting defense trade.
The following agenda topics will be discussed and final reports presented:  
   (1) Provide feedback to DDTC as DDTC works to consolidate exemptions into a single part of the ITAR.
   (2) Help develop a comprehensive compliance risk matrix to help prevent ITAR violations and diversions by various business functions involved in ITAR activities.
   (3) suggest a draft (a) form or attachment that indicates when Part 130 information will be reported (e.g, annually, but in a separate filing, at the same time as the company’s registration), and (b) Part 130 (annual) report form.
The meeting will be held in WebEx. There will be one WebEx invitation for each attendee, and only the attendee should use the invitation. In addition, each attendee should access the virtual meeting from a private location. Please let us know if you need any of the following accommodations: live captions, digital/text versions of webinar materials, or other (please specify).  
Members of the public may attend this virtual session and will be permitted to submit written questions before the date of the meeting.  Members of the public may also submit a brief statement (less than three pages) to the committee in writing for inclusion in the public minutes of the meeting. Members of the public who wish to attend this session must provide name and contact information, including an email address and a phone number, and any request for reasonable accommodation to the DTAG Alternate Designated Federal Officer (ADFO), Neal Kringel, via email at DTAG@state.gov by COB Monday, October 5, 2020. 

FOR FURTHER INFORMATION CONTACT: Ms. Barbara Eisenbeiss, PM/DDTC, SA-1, 12th Floor, Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, U.S. Department of State, Washington, DC 20522-0112; telephone (202) 663-2835 or email DTAG@state.gov

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(Source: State Department, 30 Sep 2020)
Please join us for a discussion on the U.S. Department of State Guidance on Implementing the UN Guiding Principles for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities.  This will be an opportunity to discuss the document in more detail and ask questions related to its release. This discussion is off-the-record and Chatham House Rule. 
* Date/Time: Friday October 9, 1:00-2:00 pm EST.   
* Register here

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EN_a115. Bartlett’s Unfamiliar Quotations

(Source: Editor)


John Erskine (5 Oct 1879 – 2 Jun 1951; was an American educator and author, pianist, and composer. He was an English professor at Amherst College from 1903 to 1909, followed by Columbia University from 1909 to 1937. He was the first president of the Juilliard School of Music.)
  – “There’s a difference between beauty and charm. A beautiful woman is one I notice. A charming woman is one who notices me.”
Monday is pun day.
* How are false teeth like stars? They come out at night.
* What building in your town has the most stories?  The public library.
* What is a computer’s favorite snack?  Computer chips.
* What did one volcano say to the other?  I lava you!
* How do we know that the ocean is friendly?  It waves.
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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 


5 Apr 2019: 84 FR 13499:

Civil Monetary Penalty Adjustments for Inflation. 
5 Oct 2020: 85 FR 62583:  Amendment of CCL and EAR re Emerging Technologies

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

DoD 5220.22-M. Implemented by Dep’t of Defense. 

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.)  
DOE ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES: 10 CFR Part 810.    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.


28 Sep 2020: 85 FR 60874: Temporary Amendment for Republic of Cyprus. The latest edition of the BITAR is 29 Sep 2020.  

DOT FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR): 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders
Inflation Adjustment of Civil Monetary Penalties Related to Reporting and Recordkeeping.

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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