20-1022 Thursday “Daily Bugle”

20-1022 Thursday “Daily Bugle”

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Thursday, 22 October 2020

  1. Treasury/OFAC: “Notice of OFAC Sanctions Actions”
  1. Items Scheduled for Future Federal Register Edition
  2. Commerce/BIS: (No new postings)
  3. State/DDTC: (No new postings)
  1. Greek City Times: “Germany Refuses Greek Request to End Weapon Exports to Turkey Despite Threats of War”
  2. Reuters: “China Threatens Retaliation Over New U.S. Arms Sales to Taiwan”
  3. VOA News: “US Poised to Sanction Iran After UN Arms Embargo Expires”
  1. GT Alert: “USTR Initiates Two Section 301 Investigations Into Vietnam”
  2. Kelley Drye: “BIS – Exporters May Request 6 Month Extension for Export Licenses Nearing Expiration”
  3. Kirkland & Ellis: “CFIUS Goes Back to the Future by Tying Mandatory Filings Pertaining to Critical Technologies to U.S. Export Controls Assessments” [Part I of II]
  4. Thompson Hine: “U.S. and Brazilian Governments Update Agreement on Trade and Economic Cooperation”
  1. FD Associates Presents: 10 – 12 Nov; “ITAR for the Empowered Official & Compliance Personnel”
  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 
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85 FR 67420 – 67421: 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 and entities 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 and entities on the SDN List. All property and interests in property subject to U.S. jurisdiction of these individuals and entities are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
* FOR FURTHER INFORMATION CONTACT: OFAC: Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480; or Assistant Director for Regulatory Affairs, tel.: 202-622-4855.

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(Source: Federal Register) 
* Treasury/OFAC; NOTICES; Blocking or Unblocking of Persons and Properties; [Pub. Date: 23 Oct 2020] (PDF)

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OGS_a23. Commerce/BIS: (No new postings)

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(Source: Greek City Times, 22 Oct 2020) [Excerpts]

  Germany has responded to a Greek request that it suspends the export of military equipment to Turkey because of Ankara’s aggressive policies in the region, with the country’s Foreign Ministry saying that the federal government follows “a restrictive and responsible weapons exports policy.”
  The German Foreign Ministry reportedly said that licenses for arms sales to Turkey are granted “after careful consideration and through the prism of foreign and security policy parameters.”  The ministry added that the number of licenses for exports of arms to Turkey is “very low.”
  According to a 2019 German government report, weapons bound for Turkey are exclusively “maritime goods.”  Specifically, Germany through ThyssenKrupp Marine Systems (TKMS) is assisting Turkey in building six class 214 submarines.
  Germany’s weapon sales to Turkey, particularly the class 214 submarines, comes at a time when their Turkish allies are threatening to invade Greek islands and continue to violate the maritime sovereign rights of Greece.
  In the first third of 2019, Germany sold their Turkish allies a total of €184.1 million worth of armaments, while in 2018 Germany made up almost one-third of all weapon exports to Turkey with €242.8 million.
  Greece had asked fellow European Union countries to halt military exports to Turkey, the country’s foreign minister said Tuesday, amid a deepening dispute between the two neighbors over maritime boundaries in the eastern Mediterranean. 

  Germany remains one of the very few countries in the EU that continues to ignore sanctions against Turkey for its violations of the sovereign rights of Greece and Cyprus, both EU member states. 

(Source: Reuters, 22 Oct) [Excerpts]
  China threatened on Thursday to retaliate against the latest U.S. arms sale to Chinese-claimed Taiwan, as the island welcomed the weapons package but said it was not looking to get into an arms race with Beijing.
  The Trump administration has ramped up support for Taiwan through arms sales and visits by senior U.S officials, adding to tensions between Beijing and Washington, already heightened by disagreements over the South China Sea, Hong Kong, human rights and trade.
  Beijing has applied increasing pressure on democratically-ruled Taiwan to accept China’s sovereignty, including by flying fighter jets across the sensitive mid-line of the Taiwan Strait, which normally serves as an unofficial buffer.
Responding the U.S. approval of a potential $1.8 billion arms sale to Taiwan, China’s Foreign Ministry spokesman Zhao Lijian said during a daily news briefing that such sales should stop.
  The sales “seriously interfere with China’s internal affairs, seriously damage China’s sovereignty and security interests, send a seriously wrong signal to Taiwan independence forces, and severely damage China-U.S. relations and peace and stability in the Taiwan Strait,” he said.
  The latest U.S. arms package includes sensors, missiles and artillery, and further congressional notifications are expected for drones made by General Atomics and land-based Harpoon anti-ship missiles, made by Boeing Co, to serve as coastal defence cruise missiles.
  Taiwan’s armed forces are dwarfed by China’s, which are expanding their capability with impressive new weapons like aircraft carriers and stealth fighters.

(Source: Voice of America News, 19 Oct 2020) [Excerpts]

  The United States has rejected the expiration of an international arms embargo on Iran, saying it will use its domestic laws to punish any weapons supplier dealing with the Islamic Republic.   
  “No nation that desires a peaceful Middle East should contemplate arms sales with Iran,” U.S. Secretary of State Mike Pompeo said Sunday on Twitter. “We are prepared to use domestic authorities to sanction individuals or entities contributing to these arms sales.”  
  Other world powers, including America’s European allies, disagree with the U.S. interpretation, saying that by withdrawing from the JCPOA in 2018, Washington forfeited its right to use the snapback provision of the deal.
No shopping spree  
  Despite the expiration of the decade-long embargo, some experts doubt that Iran will go on a weapons shopping spree as its economy struggles under crippling U.S. sanctions.  
“Iran’s difficult economic situation remains the greatest obstacle to its procurement of large-scale, costly weapons,” Nicole Grajewski, a fellow with the Belfer Center’s International Security Program, wrote in an article published on the center’s Russia Matters website.    
  “It is simply unfeasible for a country facing a crippling economic downturn to afford expensive weapons such as the S-400 or a squadron of fighter jets,” she added.
  Iran Defense Minister Amir Hatami on Sunday, however, boasted about his country’s homemade weapons.  
  “The ground for selling and buying weapons is prepared for the Islamic Republic of Iran, but of course the sales will be more,” Iranian state-owned Tehran Times quoted Hatami as saying.   
U.S. sanctions  
  Since its withdrawal from the Iran nuclear deal in 2018, Washington has increasingly imposed sanctions on those trading with Iran. Currently, nearly all key sectors of Iran’s oil-based economy are under U.S. sanctions.  
  The most recent round of sanctions, introduced earlier this month, targeted 18 “major” Iran-based banks. That followed last month’s sweeping executive order from President Donald Trump to “restrict Iran’s nuclear, ballistic missile and conventional weapons pursuits.”  
  Russia and China are viewed as the most likely arms suppliers to Iran as both countries have publicly stated their willingness to sell weapons to Tehran.   
But experts are split on whether U.S. sanctions have the power to deter Moscow and Beijing from signing defense contracts with Iran.


* Principal Author: Laura Siegel Rabinowitz, 1-212-801-9201, Greenberg Traurig, LLP
  On Oct. 2, the United States Trade Representative (USTR) announced it has launched two investigations pursuant to Section 301 of the Trade Act of 1974 regarding Vietnam’s acts, policies, and practices with respect to the importation of illegal timber and currency manipulation. Section 301 is the same provision USTR used to enact additional tariffs on products of China.
  According to USTR, Vietnamese customs officials failed to record the origin of timber imported from Cambodia, Cameroon, and the Democratic Republic of the Congo. This timber may have been illegally harvested or traded and in violation of Vietnam’s domestic laws and international trade rules. Vietnam is one of the world’s largest exporters of wood products; in 2019, Vietnam exported $3.7 billion in wooden furniture products.
  Additionally, USTR is investigating whether the government of Vietnam, through the State Bank of Vietnam and by actively intervening in the foreign exchange market, has undervalued its currency– the dong. USTR will consult with the Department of the Treasury in its investigation of Vietnam’s potential currency manipulation.
  Should USTR determine that the Vietnamese practices violated Section 301, these investigations may lead to restrictions, such as additional tariffs, on Vietnamese imports. Importers who may be affected by the potential tariffs have until Nov. 12, 2020, to submit comments on the investigations.
  Comments may be submitted on whether Vietnam’s currency is undervalued, Vietnam’s actions that may have contributed to the valuation of the dong, the extent to which products imported from Vietnam may have been made from illegal timber, whether Vietnam acted unreasonably, whether U.S. commerce has been burdened by Vietnam’s practices, and what, if any, action should be taken.
  Should USTR choose to impose additional duties on Vietnamese merchandise, it will publish a list of potential products for the additional tariffs, and there will be an additional opportunity for public comment. The final list of products in the lumber investigation will likely include wood products such as furniture.
Businesses with questions on the effect of these investigations or requiring assistance with comments to be submitted to USTR by Nov. 12, 2020, should work with experienced counsel.


* Principal Author: Robert Slack, Kelley Drye & Warren LLP 

  On October 16, 2020, the Bureau of Industry and Security (BIS) announced that exporters may request a six-month extension for export licenses set to expire on or before December 31, 2020.
  BIS indicates that most requests for extensions will be reviewed and approved on an expedited basis within two to three business days, depending on the volume of requests received.  Extension requests can be submitted via email to LicenseExtensionRequest@bis.doc.gov.
  Acting Under Secretary for Industry and Security, Cordell Hull, said “The streamlined process will help ensure that exporters with licenses due to expire on or before the end of 2020, who may not have been able to ship orders due to resource constraints during the pandemic, have the opportunity to benefit fully from the authorizations granted on their licenses.

(Source: Kirkland Alert, 21 Oct 2020) (Part II will be published tomorrow)

* Principal Author: Ivan A. Schlager, P.C., Esq., 1-202-389-3150, Kirkland & Ellis LLP


  Pursuant to a final rule recently promulgated by the Office of Investment Security, U.S. Department of the Treasury (“Treasury”) that further implements the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), effective October 15, 2020, the determination as to whether a filing with the Committee on Foreign Investment in the United States (“CFIUS”)[FN/1] will be required in connection with investments in U.S. “critical technology businesses” is entirely dependent on whether a U.S. export authorization would be required to export the business’ “critical technology” to certain foreign persons involved in the transaction, regardless of whether an actual export of the technology has or is intended to occur. The Treasury rulemaking also clarified the circumstances under which a foreign investor in which a foreign government has a “substantial interest” will trigger a mandatory CFIUS filing in connection with investments in or acquisitions of certain types of U.S. businesses.
  Now that Treasury has issued its final rule, the Bureau of Industry and Security, U.S. Department of Commerce (“BIS”) is likely to face intensified scrutiny regarding the pace of its efforts to identify and control “emerging” and “foundational” technologies as required under the Export Control Reform Act of 2018 (“ECRA”), as such technologies are considered “critical technologies” for CFIUS purposes. Indeed, despite the fact that BIS possesses technical expertise across a range of industries, a number of members of Congress recently have advocated for CFIUS also to assume responsibility for the identification of such technologies.
  Taken together, this recent CFIUS action and the ongoing BIS processes reflect the codification of the U.S. government’s keen historical interest, as expressed through CFIUS, in protecting sensitive technologies and assuring supply chain integrity. Since its inception, CFIUS has focused on sensitive technologies, such as microelectronics and composite materials, but reform efforts prior to FIRRMA primarily were geared toward infrastructure (e.g., port) security. FIRRMA recognized that new technologies are being rapidly developed and deployed and that the lines demarcating potential commercial and military applications for newer technologies are blurring. Accordingly, FIRRMA essentially compelled CFIUS to go back to the future by evolving further to focus on cutting-edge technologies in various fields, such as additive manufacturing (i.e., 3D printing), artificial intelligence, autonomous vehicles and associated technologies, robotics, and semiconductors, in an effort to ensure that the U.S. maintains its technological leadership regarding the development of critical technologies. 
  The potential for a greater number of mandatory CFIUS filings, coupled with CFIUS’ more recent aggressive posture regarding making inquiries about, and opening reviews of, transactions that were not notified to CFIUS, suggests that parties considering critical technology-related investments, even if not subject to a mandatory filing requirement, might be highly incentivized to file a formal notice in an effort to secure the regulatory safe harbor that is not necessarily guaranteed when parties file under the short-form declaration process.   

U.S. Export Controls Assessments Now Drive Mandatory CFIUS Filings Pertaining to Investments in U.S. “Critical Technology” Businesses 

  The Treasury rulemaking represents the culmination of a process initiated in October 2018 with the publication of regulations establishing a “pilot program” to implement the expansion of CFIUS’ jurisdiction to include certain non-passive, noncontrolling investments in U.S. critical technology businesses as directed by FIRRMA. The pilot program also implemented FIRRMA’s authorization to make mandatory the filing of a short-form declaration or a notice regarding covered non-passive, noncontrolling and controlling investments in U.S. critical technology businesses. The pilot program focused on U.S. businesses that produce, design, test, manufacture, fabricate or develop a critical technology item, but only to the extent that the business operated in or tailored technology for customer use in one or more of 27 specifically enumerated industries, which were identified by reference to their North American Industry Classification System (“NAICS”) codes. U.S. companies, however, generally self-assign their NAICS codes, of which there are hundreds (and many of which are closely related). This injected a certain degree of subjectivity into the process of assessing whether a particular investment might trigger a mandatory CFIUS filing.
  As of October 15, 2020, the Treasury rulemaking eliminates the NAICS code prong of the critical technology filing assessment and replaces it with a test focused solely on the U.S. export controls classification of the technology at issue and whether a U.S. export authorization would be required to export the technology to certain foreign persons involved in the transaction – even if an export from the U.S. never actually occurs. While more objective in nature, a U.S. export controls assessment potentially could be a highly technical and complicated exercise, and could be burdensome for early-stage companies that may lack the funding and the resources to undertake such an assessment. Furthermore, the loss of the NAICS code criterion inevitably will result in a broader universe of U.S. businesses that are deemed to be “critical technology” businesses, which in many cases will trigger mandatory CFIUS filing requirements.
  As a consequence of the Treasury rulemaking, an assessment as to whether there would be a mandatory CFIUS filing requirement in connection with a transaction that results in foreign person control over a U.S. critical technology business or a noncontrolling “covered investment”[FN/2] by a foreign person in a U.S. critical technology business would be expected to take the following three steps:


Step One: Determine the U.S. Export Controls Status and Classification of the Technology Produced, Designed, Tested, Manufactured, Fabricated or Developed by the U.S. Business

For purposes of the CFIUS regulations, “critical technologies” generally include:
  1. Military technologies subject to the International Traffic in Arms Regulations (“ITAR”), as classified by reference to the U.S. Munitions List;
  2. Civilian/military dual-use technologies subject to the Export Administration Regulations (“EAR”) that are described within Export Control Classification Numbers enumerated on the Commerce Control List (a) pursuant to multilateral export control regimes relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation or missile technology, or (b) for reasons relating to regional stability or surreptitious listening;
  3. Nuclear technologies covered by rules relating to foreign atomic energy activities and export and import of nuclear equipment and materials;
  4. Select agents and toxins; and
  5. Emerging and foundational technologies controlled pursuant to FIRRMA’s companion legislation, the ECRA.
  Thus, any items that the target U.S. business produces, designs, tests, manufactures, fabricates or develops must be considered, regardless of whether such items are made commercially available and regardless of whether such items have ever been or are intended to be exported from the U.S.
  Note that the assessment of what constitutes a “critical technology” item is made as of the earliest date among the following: (i) the completion date of the transaction; (ii) the execution of a binding written agreement, or other binding document, establishing the material terms of the transaction; (iii) the making of a public offer to shareholders to buy shares of a U.S. business; or (iv) solicitation by a shareholder of proxies in connection with an election of the board of directors of a U.S. business or an owner or holder of a contingent equity interest has requested the conversion of the contingent equity interest. Tying the date of the critical technology assessment to a transaction event effectively guards against the risk that a change in the U.S. export controls status of an item during the pendency of a transaction could impact the CFIUS risk profile, particularly given that the failure to make a mandatory filing potentially could trigger penalties amounting to the value of the transaction. 


Step Two: Determine Whether a U.S. Export Authorization Would Be Required in Connection with a Hypothetical Export-Related Transaction

  Once the U.S. export controls jurisdiction and classification of the technology at issue is determined, the Treasury rulemaking requires an assessment of whether a “U.S. regulatory authorization”[FN/3]would be required to export, reexport or transfer the technology to a person that:
  1. could directly control the U.S. business;
  2. is directly acquiring an interest that is a “covered investment,” as described above, in such U.S. business;
  3. has a direct investment in such U.S. business, the rights of such person with respect to such U.S. business are changing, and such change in rights could result in a covered control transaction or a “covered investment”;
  4. is a party to any transaction, transfer, agreement or arrangement with respect to such U.S. business the structure of which is designed or intended to evade or circumvent the application of the CFIUS regulations; or
  5. individually holds, or is part of a group of foreign persons that, in the aggregate, holds, a covered voting interest for purposes of critical technology mandatory filings in a person described in (1) through (4) above.[FN/4] 
  The rule provides that determinations as to whether an export authorization is required are to be without regard to the availability of license exemptions under the ITAR or license exceptions under the EAR, except as described below, and are based on the principal place of business of the entities under consideration or the nationality or nationalities of any individuals under consideration under the relevant U.S. regulatory regime.  
   The rule further requires an assumption that the foreign person at issue is an “end user” of the relevant critical technology, thus requiring an assessment of whether an export licensing requirement applies based on “end user”-based controls applicable to that particular foreign person, regardless of the person’s principal place of business or nationality. (For example, a person designated on the BIS Entity List would be subject to such end-user-based controls.) Under the ITAR, licenses or other forms of approval are required for virtually all destinations, but under the EAR, a more careful assessment of the technology at issue, in combination with applicable destination-based, end user-based and end use-based, controls, is required. 


Step Three: Assess Available License Exceptions

  While EAR license exceptions mostly do not factor into the analysis, the Treasury rulemaking provides that there will not be a requirement to make a CFIUS filing with respect to critical technology subject to the EAR where the following license exceptions would authorize export of the technology to the foreign person at issue: (i) License Exception Technology and Software Unrestricted (TSU) (Section 740.13 of the EAR); (ii) License Exception Encryption Commodities, Software, and Technology (ENC) (Section 740.17(b) of the EAR); and (iii) License Exception Strategic Trade Authorization (STA) (Section 740.20(c)(1) of the EAR). Note that for purposes of License Exception ENC, certain items may be self-classified in accordance with Section 740.17(b)(1) of the EAR, whereas certain other items require submission to BIS of a request for a formal commodity classification determination in accordance with Sections 740.17(b)(2) and (b)(3) of the EAR (though in certain limited instances License Exception ENC eligibility is assured as of the date of the submission to BIS). In the latter case, there also may be certain end user restrictions that could impact the availability of the license exception, such as limitations pertaining to certain foreign government end users. As noted above, any evaluation of the availability of this license exception must address all critical technology encryption items produced, designed, tested, manufactured, fabricated or developed by the target U.S. business, which, in the case of encryption items, potentially could include object code software, source code and technology.
  Treasury has made clear, however, that the availability of License Exception ENC for these purposes is not contingent on the submission of annual or semi-annual reports to BIS, as may be required. Similarly, Treasury disregards the recordkeeping requirements associated with License Exception TSU and the requirement to furnish certain commodity classification determinations to third parties in accordance with License Exception STA.


(Source: FD Associates)
* What:  Live Stream Webinar
* Agenda: See agenda Here
* When:  Tue-Thu, 10-12 Nov 2020
* Where:  Your computer 
* Sponsor:  FD Associates

* Presenters: Jenny Hahn, President, FD Associates 

* Register HERE, call 1-703-847-5801, or email info@fdassociates.net

* * * * * * * * * * * * * * * * * * * *


EN_a113. Bartlett’s Unfamiliar Quotations

* Franz Liszt (Franz Liszt; 22 Oct 1811 – 31 Jul 1886; was a Hungarian composer, virtuoso pianist, conductor, music teacher, arranger, and organist of the Romantic era. He is widely regarded as one of the greatest pianists of all time.)
  – “Beware of missing chances; otherwise it may be altogether too late some day.”
* James Northcote (22 Oct 1746 – 13 Jul 1831; was a British painter and author.)
 – “Half the things that people fail to succeed in are through fear of making the attempt.”
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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. 

9 Oct 2020: 
85 FR 64014:  Revisions to the Unverified List (UVL)

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.


 Temporary Amendment for Republic of Cyprus. The latest edition of the BITAR is 28 Sep 2020. 

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