|  ITEMS FROM TODAY’S FEDERAL REGISTER |
1. Justice/ATF: “Collection of Information on Imported Firearms, Ammunition, and Defense Articles: ATF Form 6A” 85 FR 79037: Notice * AGENCY:Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice. * ACTION:60-Day notice. * SUMMARY:The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. * DATES:Comments are encouraged and will be accepted for 60 days until February 8, 2021. * FOR FURTHER INFORMATION CONTACT:If you have additional comments, regarding the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact: Desiree Dickinson, EPS/IMPORTS/FESD, either by mail at 244 Needy Road, Martinsburg, WV 25405, by email at desiree.dickinson@atf.gov, or by telephone at 304-616-4550. * * * * * * * * * * * * * * * * * * * * |
2. Treasury/OFAC: “Notice of OFAC Sanctions Action” 85 FR 79076: Notice * AGENCY:Office of Foreign Assets Control, Treasury. * ACTION:Notice. * SUMMARY:The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC’s Specially Designated Nationals and Blocked Persons List based on OFAC’s determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of this person are blocked, and U.S. persons are generally prohibited from engaging in transactions with them. * DATES:See Supplementary Information section for effective date(s). * 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. * * * * * * * * * * * * * * * * * * * * |
OTHER GOVERNMENT SOURCES |
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4. Commerce/BIS: (No new postings) * * * * * * * * * * * * * * * * * * * * |
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The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is publishing two new Iran-related Frequently Asked Questions (FAQs) 855 and 856. Additionally, OFAC is also publishing updates to Iran-related FAQs 830, 831, 832, and 847. * * * * * * * * * * * * * * * * * * * * |
| OFAC’s updates Specially Designated Nationals List regarding the Hong Kong-related Designations. Click here to see individuals have been added to OFAC’s SDN List. * * * * * * * * * * * * * * * * * * * * |
| THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96, and in particular Article 11(b) thereof, Whereas: | (1) | Annex III to Regulation (EC) No 1210/2003 lists public bodies, corporations and agencies and natural and legal persons, bodies and entities of the previous government of Iraq covered by the freezing of funds and economic resources that were located outside Iraq on 22 May 2003 under that Regulation. | | (2) | Annex IV to Regulation (EC) No 1210/2003 lists natural and legal persons, bodies or entities associated with the regime of former President Saddam Hussein covered by the freezing of funds and economic resources and by a prohibition to make funds or economic resources available. | | (3) | On 1 December 2020, the Sanctions Committee of the United Nations Security Council decided to remove one individual and eleven entities from the list of individuals and entities to whom the freezing of funds and economic resources should apply. | | (4) | Annexes III and IV to Regulation (EC) No 1210/2003 should therefore be amended accordingly, | HAS ADOPTED THIS REGULATION: Article 1 Annexes III and IV to Regulation (EC) No 1210/2003 are amended as set out in the Annex to this Regulation. Article 2 This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. * * * * * * * * * * * * * * * * * * * * |
Background You may be experiencing delays in approval from MOD to enable use of 3 specific open general export licences. This is caused because applicants have not supplied the correct MOD Project Team contact details. What you need to know The 3 types of open general export licence that require UK exporters to obtain an approval letter from the MOD. These are: - UK Government Defence Contracts, Military Goods
- Collaborative Project Typhoon and Military Goods
- Collaborative Project A400M
Before these OGELs can be used, exporters must obtain an authorisation letter from the MOD team in the Export Control Joint Unit (ECJU MOD). ECJU MOD will check that the exporter holds a defence contract with the relevant MOD Project Team (PT) before issuing a letter approving the use of the OGEL. You cannot use the OGEL without this letter. The ECJU MOD team will not know the contact in the relevant MOD PT, due to the number of projects. Exporters, however, should hold current contact information. We need this to confirm that an exporter has a current contract with MOD. Action to take The process below to request an authorisation letter is straight forward and applies to both first time and renewal requests. Please note that for a first time request we advise you to apply for an authorisation letter immediately after the contract is awarded. For renewal requests you should apply at least one month in advance of your existing authorisation letter expiry date. 2) The request must contain the following information: - the title of the OGEL you would like to use
- the OGEL reference number
- your full contact details including a telephone number
- full contact details of the PT which has awarded the contract. A current named contact, telephone number and e-mail address must be included
- the MOD contract name/reference number and the expiry date of the contract
Without this information ECJU MOD will be unable to process the request which will be returned to the requester to provide the missing information. This will lead to a delay in the exporter being able to use the OGEL. If you are making the request on behalf of others in your organisation and do not know the current contact details of the PT, it is highly likely that your finance, commercial or contract functions will have the information. When the required information is provided, a named contact in ECJU MOD will acknowledge receipt and process the request. We aim to process most requests within 10 working days. Please allow for this time to elapse before you chase your application. Back to top * * * * * * * * * * * * * * * * * * * * |
NEWS |
The US State Department has announced that People’s Republic of China (PRC) and Chinese Communist Party (CCP) officials, or individuals active in United Front Work Department activities, will be ineligible for entry into the US if they are believed to “have engaged in the use or threat of physical violence, theft and release of private information, espionage, sabotage, or malicious interference in domestic political affairs, academic freedom, personal privacy, or business activity”. The restrictions will be imposed under section 212(a)(3)(c) of the Immigration and Nationality Act. The press release says that Chinese officials carry out these activities to “coerce sub-national leaders, overseas Chinese communities, academia, and other civil society groups” to further the Chinese government’s “narratives and policy preferences”. Back to top * * * * * * * * * * * * * * * * * * * * |
(Source: Reuters, 5 Dec 2020) [Excerpts] A Chinese professor accused by U.S. prosecutors of helping steal American technology to benefit China’s Huawei Technologies Co Ltd on Friday pleaded guilty to lying to the FBI, but is expected to be allowed to return home after prosecutors decided not to pursue a more serious charge. The professor, Bo Mao, had been charged with conspiring to defraud Silicon Valley’s CNEX Labs and faced up to 20 years behind bars. He was a visiting professor at the University of Texas when he was arrested in August 2019. Mao, 37, pleaded guilty to the lesser charge of making a false statement in a video appearance before U.S. District Judge Pamela Chen in Brooklyn. … Mao’s arrest came amid a U.S. Justice Department crackdown on Chinese influence in universities over alleged spying and intellectual property theft by the Chinese government. … |
COMMENTARY |
Firearms Transaction Record“ BIS issues correcting amendments to Wassenaar Arrangement 2018 Plenary Decisions implementation; and other revisions related to national security controls. On December 4, 2020, the Bureau of Industry and Security (BIS) published in the Federal Register amendments [Docket No. 201118-0305] to the Export Administration Regulations (EAR) by making corrections to address errors that were inadvertently introduced with the September 11, 2020, Federal Register publication of “Wassenaar Arrangement 2018 Plenary Decisions Implementation; and Other Revisions Related to National Security Controls (Final Rule)”. * * * * * * * * * * * * * * * * * * * * |
13. ST&R Trade Report: “Companies Look to Reinstate Exclusion Process as Biden Says Tariffs Will Stay” Existing exclusions from the additional Section 301 tariffs on imports from China will expire at the end of 2020, and president-elect Joe Biden recently gave his clearest indication yet that those tariffs will remain in place for the time being. As a result, U.S. importers and others are launching an effort to persuade the incoming administration to reinstate the tariff exclusion process. The 25 percent tariff on List 1, 2, and 3 goods from China, and the 7.5 percent tariff on List 4A goods from China, are currently in place against products with a combined import value of more than $350 billion annually. Over the last two years a small percentage of products have been excluded from these tariffs, but most of those exclusions have since expired and the remainder will do so Dec. 31. In addition, the outgoing Trump administration has not entertained the idea of extending the exclusions in the belief that doing so would decrease U.S. leverage in future trade negotiations. As a result, the full Section 301 tariffs are expected to be imposed on previously excluded goods beginning Jan. 1, 2021. Moreover, president-elect Biden recently said in an interview with The New York Times that he will not “make any immediate moves” to lower or eliminate the China tariffs. He indicated that the tariffs have not “actually produce[d] progress on China’s abusive practices” but said he will first conduct a thorough review of the U.S.-China phase one trade agreement and work to develop a more multilateral strategy with traditional U.S. allies. Affected companies are therefore considering ways to ameliorate the impact of the forthcoming tariff increases, including by reinstating the tariff exclusion process. Ned Steiner, senior director, international trade and government relations, for ST&R, said businesses are optimistic that the next U.S. trade representative will be open to this possibility. “It makes both policy and political sense for the new administration,” Steiner said. “In short, it would provide near-term relief to U.S. companies without requiring a wholesale revision of current U.S.-China trade policy, something president-elect Biden has expressly said he will not do.” In addition, there appears to be strong bipartisan support among members of Congress for reinstating the exclusion process. “Congress pressed for the creation of this process in the first place,” Steiner said, “and a number of members have introduced legislation or otherwise expressed their support for renewing it.” However, he cautioned that a vocal coalition of companies will be needed to actively advocate for a renewal, including not only those seeking to reinstate previous exclusions but also those interested in obtaining new exclusions, including those that may previously have been denied.
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14. Steptoe: “Second Circuit’s Decision in Mangouras: Implications for Privilege Assertions in Cross-Border Investigations” [Part II of III] (Source: Steptoe, 4 Dec 2020) [See part I in yesterday’s Daily Bugle. Part III will be in tomorrow’s Bugle.)] The Second Circuit’s Decision in Mangouras The Second Circuit’s recent decision in Mangouras v. Squire Patton Boggs appears to be the first circuit court decision to embrace the touch base test and therefore offers new insight into privilege analysis in cross-border matters going forward. The case relates to an oil tanker named the Prestige (a darkly coincidental twist for fans of the 2006 film), which sank off the coast of Spain in 2002, releasing nearly 77,000 metric tons of oil into the sea. Spain sued the American Bureau of Shipping (ABS) in the Southern District of New York, alleging that ABS was reckless in evaluating the tanker’s seaworthiness. In the New York action, Spain was represented by Brian Starer of Squire Patton Boggs. Squire hired C.R. Cushing & Co. Inc., a naval architecture firm, to prepare a report on the cause of the sinking, and Charles Cushing served as an expert witness. The district court dismissed the action in 2012, and the Second Circuit affirmed the dismissal. The same year, tanker captain Apostolos Mangouras was charged with various crimes in Spain related to the oil spill following a 10-year investigation in Spain. The Cushing firm again acted as an expert witness. Three witnesses who provided declarations in the New York action provided live testimony at Mangouras’ nine-month trial. Mangouras was ultimately acquitted of all but one charge (“serious disobedience to authority”). The Spanish Supreme Court reversed the decision in January 2016, finding Mangouras guilty of gross negligence. The plot then thickens. In 2017, Mangouras filed two applications under 28 U.S.C. § 1782-seeking materials from the Squire defendants and the Cushing firm-in furtherance of his efforts to expose and punish those witnesses whom they believed lied in the Spanish case. Mangouras sought the discovery from the Squire defendants for use in a potential “Querella Criminal”-a privately instituted criminal proceeding in Spain-asserting that three witnesses gave false testimony and that their testimony in Spain directly conflicted with their statements in US proceedings. Mangouras sought discovery from both the Squire defendants and Cushing firm for use in a European Court of Human Rights case about whether the Spanish criminal proceedings breached his right to a fair trial under the European Convention on Human Rights. Section 1782 requires that “(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign [or international] tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.” The statute is limited, however, to discovery that does not violate “any legally applicable privilege.” If an applicant satisfies the statutory requirements, the district court then weighs four discretionary favors set forth in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004): “(1) whether ‘the person from whom discovery is sought is a participant in the foreign proceeding,’ in which case ‘the need for § 1782(a) aid generally is not as apparent’; (2) ‘the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to US federal-court judicial assistance’; (3) ‘whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States’; and (4) whether the request is ‘unduly intrusive or burdensome.'” The district court granted the requested discovery, finding that Mangouras’ request satisfied the statutory requirements of § 1782 and the discretionary factors weighed in Mangouras’ favor based on his anticipated litigation through both a Querella Criminal and the European Court of Human Rights. Critically, the district court declined to directly rule on the respondents’ argument that Spanish privilege barred discovery, and limited the invocation of Spanish privilege to objections to use of the documents. The district court reasoned that the parties made conflicting representations about Spanish law-a topic beyond the court’s bailiwick-and that the court should decline to engage in a “speculative foray into legal territories unfamiliar to federal judges” by resolving disputes about the application of Spanish privilege law. Respondents began turning over documents to Mangouras, completing the production in May 2018, but they appealed, seeking an order for the return of their documents on the grounds that the district court had wrongfully denied their invocations of privilege. On appeal, respondents argued that the district court erred in granting Mangouras’ § 1782 applications because “the materials are absolutely privileged under Spanish law and because Mangouras failed to establish that the discovery was for use in a foreign proceeding under the statute.” The Second Circuit reversed the lower court’s decision, finding that it had erred by applying US privilege law without conducting a choice-of-law analysis regarding whether US or Spanish law should control. The Second Circuit found the district court did not address the statute’s requirement that discovery not be “in violation of a legally applicable privilege” or consider whether Spanish privilege law was “legally applicable.” In doing so, the Second Circuit held that “[i]n circumstances where the parties dispute which nation’s privilege law furnishes the ‘legally applicable privilege,’ and those competing national laws provide different results, courts should first conduct a choice-of-law analysis to determine which body of privilege law applies.” . . . . [To be continued in Part III in tomorrow’s Bugle.] Back to top * * * * * * * * * * * * * * * * * * * * |
15. Thompson Hine: “Additional Chinese Military Companies Listed Under Section 1237 and Subject to Investment Ban” On December 3, 2020, the Department of Defense (DOD) released the names of four additional “Communist Chinese military companies” operating directly or indirectly in the United States in accordance with the statutory requirement of Section 1237 of the National Defense Authorization Act (NDAA) for Fiscal Year 1999, as amended. The companies are: - China Construction Technology Co. Ltd. (CCTC)
- China International Engineering Consulting Corp. (CIECC)
- China National Offshore Oil Corp. (CNOOC)
- Semiconductor Manufacturing International Corp. (SMIC)
This list follows two other listings since June 2020 of Chinese companies with “military-civil” functions and development strategies, which according to the State Department support the modernization goals of the People’s Liberation Army (PLA) “by ensuring its access to advanced technologies and expertise acquired and developed by even those PRC companies, universities, and research programs that appear to be civilian entities.” See also Tranche 1 and Tranches 2-3. These four companies will be affected by President Donald Trump’s November 12, 2020, Executive Order (E.O. 13959 that prohibits U.S. investment in “Communist Chinese Military Companies.” The investment ban directed under E.O. 13959 takes effect on January 11, 2021. See International Trade Update of November 24, 2020 for more details on this Executive Order. Section 1237 of the NDAA also authorizes the president to impose sanctions under the International Emergency Economic Powers Act (IEEPA) in the case of any commercial activity in the United States by a person/entity who is on the list published by DOD. While formal sanctions other than the investment ban under E.O. 13959 have not yet been imposed on these listed companies, placement on the list should serve as a “red flag” for U.S. persons conducting business with these companies for potential future sanctions and export restrictions.
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EX/IM TRAINING EVENTS & CONFERENCES |
* What: ITAR Compliance for US Persons Working Outside the United States: What You Need to Know * When: 17 Dec; 1:00 p.m. (EST) * Where: Webinar * Sponsor: Export Compliance Training Institute (ECTI) * ECTI Speaker: Susan Kovarovics and Megan Barnhill * * * * * * * * * * * * * * * * * * * * |
| EDITOR’S NOTES |
17. Bartlett’s Unfamiliar Quotations
(Source: Editor) * Norman Douglas (George Norman Douglas; 8 Dec 1868 – 7 Feb 1952; was a British writer, now best known for his 1917 novel South Wind. His travel books such as his 1915 Old Calabria were also appreciated for the quality of their writing.) – “Distrust of authority should be the first civic duty.” – “You can construct the character of a man and his age not only from what he does and says, but from what he fails to say and do.” * Johann Zimmermann (Johann Georg Ritter von Zimmermann; 8 Dec 1728 – 7 Oct 1795; was a Swiss philosophical writer, naturalist, and physician.) – “A moral lesson is better expressed in short sayings than in long discourse.” * * * * * * * * * * * * * * * * * * * * |
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