20-1221 Monday “Daily Bugle”

20-1221 Monday “Daily Bugle”

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Monday, 21 December 2020

(No items of interest posted) 

  1. Items Scheduled for Future Federal Register Edition
  2. Commerce/BIS: “Statement from Secretary Ross on The Department’s 77 Additions to the Entity List for Human Rights Abuses, Militarization of the South China Sea, and U.S. Trade Secret Theft”
  3. State/DDTC: (No new postings)
  4. EU Grants General Export Authorisation for Export of Dual-use Items from EU to UK
  5. UK ECJU: “Exporting Controlled Goods from 1 Jan 2021”
  6. UK ECJU: “OGEL for Overseas Access to Software and Technology for Military Good (Individual Use Only)”
  1. EUS: “German Citizens on Trial for Violating EU Russia Arms Embargo”
  2. Washington Post: “U.S. Bans Technology Exports to Chinese Semiconductor and Drone Companies”
  1. Jenner: “Sanctions Compliance — Are You Ready for Brexit?”
  2. Pillsbury: “China Publishes Import License List and Export Control List for Commercial Encryption”
  3. Sidley: “European Union Implements Changes to Export Control Rules”
  1. Monday List of Ex/Im Job Openings: 68 Jobs Available – 7 New Job Openings This Week
  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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OGS_a22. Commerce/BIS: (No new postings)

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(Source: Commerce/BIS, 18 Dec 2020)
Today, the Commerce Department added 77 entities to the Entity List for actions deemed contrary to the national security or foreign policy interest of the United States.  These include entities in China that enable human rights abuses, entities that supported the militarization and unlawful maritime claims in the South China Sea, entities that acquired U.S.-origin items in support of the People’s Liberation Army’s programs, and entities and persons that engaged in the theft of U.S. trade secrets.
Secretary Ross provided the following statement:
“China’s corrupt and bullying behavior both inside and outside its borders harms U.S. national security interests, undermines the sovereignty of our allies and partners, and violates the human rights and dignity of ethnic and religious minority groups.   Commerce will act to ensure that America’s technology-developed and produced according to open and free-market principles-is not used for malign or abusive purposes.  
China actively promotes the reprehensible practices of forced labor, DNA collection and ubiquitous surveillance to repress its citizens in Xinjiang and elsewhere.  Over the last two years this administration has added nearly 50 entities to the Entity List for their support for the Chinese Communist Party’s despicable offensive against vulnerable ethnic minorities.  With these new additions, we are applying those principles to the rest of China, including in Tibet, and to the authoritarian regimes to which these practices are being exported.
The additions also include entities that have contributed to China’s militarization of disputed outposts in the South China Sea, unlawful maritime claims in the South China Sea, and intimidation and coercion of other coastal states lawfully accessing and developing offshore marine resources.
Commerce added additional persons participating in China’s campaign of malign technology acquisition efforts, including for theft of U.S. trade secrets, and the support of research and development, and production of advanced weapons systems, in support of the People’s Liberation Army’s destabilizing military modernization efforts.”

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Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure (1),
  (1) On 29 March 2017, the United Kingdom submitted the notification of its intention to withdraw from the Union pursuant to Article 50 of the Treaty on European Union (TEU). In accordance with that Article, the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2) (the ‘Withdrawal Agreement’) was concluded on behalf of the Union by Council Decision (EU) 2020/135 (3).
  (2) According to the terms of the Withdrawal Agreement, the United Kingdom is no longer a Member State of the European Union since 31 January 2020, and Union primary and secondary law will cease to apply to and in the United Kingdom when the transition period set out in the Withdrawal Agreement ends on 31 December 2020.
  (3) Council Regulation (EC) No 428/2009 (4) sets up a common system for the control of exports of dual-use items in order to promote Union and international security and to provide a level playing field for Union exporters.
  (4) Regulation (EC) No 428/2009 provides for Union General Export Authorisations which facilitate controls on low-risk exports of dual-use items to certain third countries. Currently, Australia, Canada, Japan, New Zealand, Norway, Switzerland, including Liechtenstein, and the United States of America are covered by Union General Export Authorisation No EU001.
  (5) The United Kingdom is a party to relevant international treaties and a member of international non-proliferation regimes, and maintains full compliance with related obligations and commitments.
  (6) The United Kingdom applies proportionate and adequate controls to effectively address considerations about intended end use and the risk of diversion consistent with the provisions and objectives of Regulation (EC) No 428/2009.
  (7) Adding the United Kingdom to the list of countries included in Union General Export Authorisation No EU001, would not negatively affect the security of the Union or international security.
  (8) Considering that the United Kingdom is an important destination for dual-use items produced in the Union, it is appropriate to add the United Kingdom to the list of destinations covered by the Union General Export Authorisation No EU001 in order to ensure the uniform and consistent application of controls throughout the Union, to provide a level playing field for Union exporters and to avoid unnecessary administrative burden, while protecting Union and international security.
  (9) In accordance with the principle of proportionality, it is necessary and appropriate for the achievement of the basic objectives of avoiding disproportionate trade disruptions and excessive administrative burden for Union exports of dual-use items to the United Kingdom, to lay down rules on the inclusion of the United Kingdom in the Union General Export Authorisation No EU001. This Regulation does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with Article 5(4) of the TEU.
  (10) In view of the urgency entailed by the circumstances of the United Kingdom’s withdrawal from the Union, it is considered to be appropriate to provide for an exception to the eight-week period referred to in Article 4 of Protocol No 1 on the role of national Parliaments in the European Union, annexed to the TEU, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community.
  (11) This Regulation should enter into force as a matter of urgency on the day following that of its publication in the Official Journal of the European Union and should apply from 1 January 2021 in order to ensure that the United Kingdom be included in Union General Export Authorisation No EU001 without delay,
Article 1
Annex IIa to Regulation (EC) No 428/2009 is amended as follows:
  (1) in the title, the wording ‘Exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland, including Liechtenstein, and United States of America’ is replaced by the following:
‘Exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland, including Liechtenstein, United Kingdom and United States of America’;
  (2) in Part 2, the following indent is inserted after the sixth indent:
United Kingdom (without prejudice to the application of this Regulation to and in the United Kingdom in respect of Northern Ireland, in accordance with point 47 of Annex 2 to the Protocol on Ireland/Northern Ireland (the ‘Protocol’) annexed to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (*1), listing the provisions of Union law referred to in Article 5(4) of the Protocol)
(*1) Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 7).’.”
Article 2
Entry into force and application
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 January 2021.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 December 2020.

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(Source: UK Export Control Joint Unit, 21 Dec 2020) [Excerpts]
The UK has left the EU, and the transition period after Brexit comes to an end this year. This page tells you what you’ll need to do from 1 January 2021. It will be updated if anything changes. For current information, read: Notice to exporters 2020/03: exporting and trading items subject to strategic controls during the transition period. You can also read about the transition period.


  1. Controlled goods
  2. Exporting military items
  3. Exporting firearms to the EU
  4. Exporting dual-use items
  5. Exporting civil nuclear material
  6. Exporting goods that could be used for torture or capital punishment
  7. Trade sanctions
  8. What you can do next

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Licences allowing people who are temporarily based abroad to access their business’ technology and information technology systems in the UK.
These OGELs have been revised to take into account changes in legislation following the end of the transition period.
These open general export licences (OGELs) allow, subject to certain conditions, people who would normally be based in the UK, but who are temporarily based abroad, and authorised by their employer, to access their business’ technology and information technology systems in the UK, via laptops if appropriate, in connection with their business’ operations.
Open general export licence (access overseas to software and technology for military goods: individual use only – from October 2019)
This version of the licence is available for registration.
The version marked [comes into force 11pm 31 December 2020] is a preview of the revised licence.
Open general export licence (access overseas to software and technology for military goods: individual use only)
This version of the licence is no longer available for registration, but remains available for users who registered before 29 October 2019.
The version marked [comes into force 11pm 31 December 2020] is a preview of the revised licence. It is no longer available for registration, but will be the in-force version for those who registered before 29 October 2019.
Reporting requirements
These OGELs are subject to reporting requirements under the open licence returns transparency initiative.
Revoked licences

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Two German nationals are currently standing trial in the Hanseatic Higher Regional Court on charges relating to violations of the EU-Russia arms embargo. The defendant, Alexander S, is alleged to have sold and delivered 15 metal-working machines, valued at €8 million, which can be used to manufacture rocket technology to a Russian defence firm between 2015 and 2018. Exports of these machines are controlled under Council Regulation (EC) 428/2009, which covers dual-use civil and military goods, and their export to Russia is subject to licence requirements pursuant to Council Regulation (EU) 833/2015.
His co-defendant, Alexander O, is said to have acted as an intermediary for the sales by using business contacts in Russia who worked on behalf of Russia’s secret services to procure foreign goods for the armaments industry.
In order to deceive the German export authorities, the defendants are accused of having obtained the relevant export licences using false information, which indicated that end user of the goods was a civilian company. It is alleged that the machines were sent to a company in its immediate vicinity owned by a Russian arms and missile manufacturer. See the court’s press release.

(Source: The Washington Post, 19 Dec 2020) [Excerpts]

The Trump administration has added prominent Chinese semiconductor and drone manufacturers to an export blacklist, an attempt to continue exerting pressure on Beijing in the final weeks of the Trump presidency.
The Commerce Department said it has placed Semiconductor Manufacturing International Corp., or SMIC; drone maker DJI; and dozens of other Chinese companies and universities on the Entity List, which bans the export of U.S. technology to the entities unless the exporter receives a government license.
But national security experts and some lawmakers said that the semiconductor export control is virtually meaningless because of the way Commerce wrote the rule governing its application.
The ban applies only to those technologies that are “uniquely” capable of producing semiconductors at 10 nanometers in size or below. Because nearly all semiconductor manufacturing tools are capable of making nanometers of different sizes, only a tiny fraction will effectively be barred, said one industry executive speaking on condition of anonymity because of the matter’s sensitivity.
The Commerce Department said it was adding DJI for enabling high-tech surveillance in China, which the agency called a human rights abuse.
The additions also include several construction companies, among them China Communications Construction Co., for helping China militarize disputed territory it has occupied in the South China Sea.
Also added to the list were several universities, in Beijing, Nanjing and Tianjin, for alleged actions including trade-secret theft or “acquiring and attempting to acquire U.S.-origin items in support of programs for the People’s Liberation Army.”
DJI did not respond to questions about how much U.S. technology, if any, it uses to make its drones, which the Shenzhen-based company exports worldwide.


* Principal Author: Robert J. Dalling, 44-330-060-5447, Jenner & Block London LLP
When the clock strikes 11 pm on 31 December 2020, the UK will no longer apply EU sanctions and will implement its own autonomous regime. The central message delivered by the UK’s Office of Financial Sanctions Implementation (OFSI) is that while the new UK sanctions are intended to deliver substantially the same policy effect as the existing EU sanctions, they are not identical. Importantly, UK sanctions may apply to non-UK companies and non-UK nationals, so it is important that all companies and individuals with any UK nexus consider the effect of the new UK sanctions.  
The legal framework
In preparation for Brexit, the UK introduced The Sanctions and Anti-Money Laundering Act 2018 (the Sanctions Act or SAMLA). This provides the legal framework under which the UK is able to impose, review, and revoke sanctions autonomously. Under SAMLA, the UK government has already laid secondary legislation, known as regulations, for over 30 sanctions regimes (the UK Sanctions Regulations). Most of the UK Sanctions Regulations will come into force post-Brexit. The main exception to this is the UK’s “Magnitsky-style” sanctions, the Global Human Rights Sanctions Regulations 2020, which was the first UK sanctions regime to come into force in July 2020.
Who does this affect?
UK sanctions will usually apply to any conduct within the UK and the territorial sea of the UK. In addition, all UK persons (i.e., UK nationals and legal entities incorporated in the UK) must usually comply with UK sanctions wherever they are in the world. This may include compliance by UK companies’ branches irrespective of where their activities take place.
In the context of financial sanctions, OFSI clarified that it may enforce sanctions even where the breach does not occur in the UK. OFSI considers that a UK nexus might be created by “a UK company working overseas, transactions using clearing services in the UK, actions by a local subsidiary of a UK company (depending on the governance), action taking place overseas but directed from within the UK, or financial products or insurance bought on UK markets but held or used overseas”.
Key areas of change
Although companies should consider how any regime which might be relevant to them has changed, we consider some of the general changes under the new UK sanctions regimes which companies should be aware of.
1. The new sanctions lists
After Brexit, OFSI will continue to maintain its Consolidated List, and this will cover all those subject to UK financial sanctions. There will also be the new UK Sanctions List maintained by the UK Foreign, Commonwealth and Development Office (FCDO) which will be more extensive and will consist of all designations made under UK sanctions (financial or otherwise). The UK Sanctions List already includes those designated under Global Human Rights Sanctions Regulations 2020. Companies should refer to both lists for their sanctions screening processes.
Depending on how a company’s screening system is set up, it may pick up a significant number of new designation hits at 11 pm on 31 December 2020. It is likely that most of these hits will be as a result of the administrative changes (e.g., because the designations are made under UK sanctions as opposed to EU sanctions). However, it will be important for companies to distinguish between administrative changes and any substantive changes. In terms of substantive changes, some EU designations may be removed from the UK Sanctions List.
2. Designations
Linked to the above, in order for an EU designation to be maintained under UK sanctions, the UK legal test for designation must be met. Under SAMLA and the UK Sanctions Regulations the government can designate a person where there is reasonable grounds to suspect the person is involved in, or connected to, an activity set out in the regulations for a particular sanctions regime.
Another change relating to designations is the introduction of designations by description. This is a new facet of UK sanctions which can only be used when the government cannot practically “identify and designate by name all the persons falling within that description at that time”. However, the description must be “such that a reasonable person would know whether that person fell within it”. It remains to be seen how this will operate in practice. However, designations by description will present challenges to sanctions screening tools which commonly rely on name searches.
Finally, under SAMLA and the UK Sanctions Regulations an individual or an entity who wishes to dispute their UK designation can challenge their listing in the UK courts. However, in contrast to the position under EU sanctions, if a designation is made pursuant to UN sanctions the individual cannot challenge this in court but can only request the UK’s assistance to secure their removal.
3. Ownership and control
The UK Sanctions Regulations include asset freezing sanctions that are similar to the EU sanctions. Both EU and UK asset freezes prevent dealings with a person who is owned or controlled directly or indirectly by a designated person. While the EU does provide guidance on ownership and control, the UK Sanctions Regulations contain an express “ownership” and “control” test. The UK test is not identical to the EU guidance test. In addition, SAMLA grants the UK government a power to designate an entity on the basis that it is owned or controlled by another designated person and OFSI indicated that the UK “will look to designate owned or controlled entities/individuals in their own right where possible”.
4. Licensing
OFSI confirmed that the majority of licences (i.e., permission to act in a way that would otherwise breach sanctions) that have already been issued by OFSI under EU sanctions will remain valid until they expire or are revoked. However, after Brexit any new licences will need to be issued in the UK under licensing grounds (or derogations) under UK Sanctions Regulations. The licensing grounds in the UK Sanctions Regulations largely reflect the EU sanctions. Some important differences in the EU and the UK licensing grounds are as follows:
A reasonableness test has been added to the UK licensing ground for the Routine Holding and Maintenance of funds or economic resources.
The UK Sanctions Regulations add an “extraordinary situations” grounds which “enables anything to be done to deal with an extraordinary situation” (e.g., support of disaster relief) in relation to non-UN sanctions.
The UK Sanctions Regulations allow the government to issue General Licences which allow multiple parties to undertake specified activities which would otherwise be prohibited by the UK Sanctions Regulations without the need for a specific licence.
5. EU Blocking Regulation
The EU’s Blocking Regulation (2271/96/EC) (the EU Blocking Regulation) was created to protect EU operators from the extraterritorial application of third-country laws. At present, it protects EU operators from US secondary sanctions relating to Iran and Cuba. Although the Blocking Regulation makes it illegal for EU operators to comply with these proscribed sanctions, it does allow such persons to request an authorisation to comply with the proscribed sanctions. After Brexit, and subject to amendments made by UK secondary legislation, the EU Blocking Regulation will form part of retained EU law applying to the UK. The secondary legislation, together with the retained EU Blocking Regulations, are referred to as the UK’s “Protection of Trading Interests Legislation” or the “Retained Blocking Regulation”. The Department of International Trade published guidance on the application of Retained Blocking Regulation.
The guidance states that prior to Brexit, any authorisations to comply with the proscribed sanctions must be sought from the European Commission and that any such authorisations will be treated as if they were authorisations issued by the UK. However, post-Brexit, an authorisation granted in the EU will not be recognised by the UK.
Brexit will mean that a company that operates in the UK and the EU will be subject to at least two separate sanctions regimes. Companies who have any UK nexus should pay close attention to the development of UK sanctions. Although the UK government has done a lot of work to ensure that UK sanctions are in a good position prior to Brexit, there will be movement and clarifications to this area next year and companies are advised to keep a watchful eye.

* Principal Author: Jenny (Jia) Sheng, Esq., +86-10-8572-1166, Pillsbury Winthrop Shaw Pittman LLP
One day after China’s new Export Control Law took effect, on December 2, 2020, China’s Ministry of Commerce (MOFCOM), the State Cryptography Administration (SCA) and the General Administration of Customs (GAC) jointly issued an Announcement on the Issuance of Import Licensing List, Export Control List and Related Administrative Measures for Commercial Encryption (Encryption Announcement) to restrict commercial encryption products and related technology. The Encryption Announcement takes effect on January 1, 2021, and includes: (1) a list of commercial encryption items subject to import licensing requirement (Encryption Import List); (2) a list of commercial encryption items subject to export control (Encryption Export List); and (3) procedures for the application of import and export licensing of commercial encryption (Encryption Licensing Procedures).
Below, we summarize the Encryption Import List, Encryption Export List, and our key observations.
Encryption Import List
The Encryption Import List includes four types of commercial encryption items:
  1. encrypted phones;
  2. encrypted fax machines;
  3. cipher machines (including cipher cards); and
  4. encryption VPN devices.
Importers in China must obtain a license from MOFCOM to import the above encryption items.
Encryption Export List
The Encryption Export List includes hardware, software and technology related to the following items:
  1. security chips;
  2. cipher machine (cipher card);
  3. encrypted VPN devices;
  4. key management products;
  5. special purpose cryptographic devices;
  6. quantum cryptographic devices; and
  7. cryptanalytic devices;
  8. items specifically designed to develop or produce items 1) to 7) above; and
  9. items specifically designed to measure, test, evaluate and examine items 1) to 7) above.
Our Key Observations
1. Regulatory changes affecting importers and exporters
Prior to the advent of the Export Control Law and the Encryption Announcement, the import and export of encryption items in China were administered by the SCA. Specifically, importers and exporters of encryption items were required to apply with the SCA or its local (provincial, regional or municipal) counterparts for the “Encryption Products and Equipment Containing Cryptographic Technology Import License” or the “Commercial Encryption Product Export License.”
After January 1, 2021, the import and export of commercial encryption items will be governed by the Encryption Announcement as well as the applicable laws, in particular the Encryption Law, the Export Control Law and the Customs Law. MOFCOM will become the central authority (though it may consult with SCA and/or GAC) to review and issue the “Import License for Dual-Use Items and Technologies” or the “Export License for Dual-Use Items and Technologies” for the import or export of the commercial encryption items respectively listed in the Encryption Import List or Encryption Export List.
2. Mass-market exception for commercial encryption items
Similar to the mass-market exception in the U.S. export control regulations, China’s new Export Control Law and Encryption Announcement include a mass-market exception. According to Article 28 of the Encryption Law, the commercial encryption contained in or used for mass-market consumer products will not be subject to control upon export from or import to Mainland China.
Although there is no clear definition of what items would qualify for the mass-market exception, SCA’s Encryption Q&As may provide some guidance. Specifically, Question 87 states that “commercial encryption used in mass consumer products” refer to encryption technology implemented in products that the general public can purchase through regular retail channels without restrictions for personal use, and cannot easily change the password function. In Question 87, SCA further indicated that commercial encryption used by mass-market consumer products pose a small and controllable risk to national security and public interests. Excluding commercial encryption used by mass-market consumer products from import and export restrictions would minimize the impact on international trade, which is not only a common practice in the international community, but also in line with China’s existing commercial encryption import and export practices.
3. Liabilities for violation
According to Article 38 of the Encryption Law, violations of the rules for import licensing and export control will be subject to punishment by the relevant departments under the State Council and the GAC. We anticipate that after January 1, 2021, the enforcement agencies on the import and export of commercial encryption will change from the SCA and its local counterparts to MOFCOM and/or GAC and their local counterparts. Also, legal basis for the punishments on violations will be mainly the Encryption Law and the Export Control Law.
In case of serious violations, such as exporting of controlled items without obtaining the qualification export operations, exporting controlled items without prior approval and license, exporting controlled items beyond the permitted scope specified in the export license, and/or exporting controlled items that are prohibited from being exported, a fine of up to RMB5 million (about US$758,000) or 10 times the turnover made from the illegal activities may be imposed, together with possible business suspension and revocation of export business qualification. In case of other violations, such as obtaining the export license of controlled items by fraud, bribery or other improper means, or illegally transferring the export license of controlled items, the authorities shall withdraw the approval and revoke the export license, confiscate any illegal income, and impose a fine that is greater than five times and less than 10 times the illegal turnover if the illegal turnover is more than RMB200,000 (about US$30,300). If there is no illegal turnover or the illegal turnover is less than RMB200,000, a fine ranging from RMB200,000 to RMB2 million (about US$303,030) will be imposed.
Businesses engaged in the import or export of commercial encryption items listed in the Encryption Announcement must obtain the appropriate license for the import or export of encryption items.
Multinational companies engaging in import or export in China should identify items that may be subject to import licensing or export control discussed in this alert. We will keep monitoring and advising clients of any development in China’s import and export regulatory regime.

* Principal Author: Sven De Knop, +32-2-504-6468, Sidley Austin LLP
The EU Dual-Use Regulation regulates exports outside the EU, transfers inside the EU, transit through the EU and the brokering of certain sensitive goods, services, software and technology (referred to as “items”) that are considered “dual-use.” Dual-use items have both military and civil applications. The EU has updated its export control rules for dual-use items to (1) take account of Brexit, (2) ensure consistency with recent developments in international non-proliferation regimes and export control arrangements, and (3) address cyber-surveillance and other security threats stemming from new technologies, reinforce cooperation among competent EU authorities, and impose enhanced compliance obligations (including a requirement to adopt internal compliance programs) on businesses. These updates, which are addressed in turn, will have significant implications for businesses dealing in dual-use items.
EU Guidance on Post-Brexit Export Controls
On September 16, 2020, the Commission published an updated notice on export controls after Brexit (Notice). The Notice provides guidance on the changes to export control rules, including export authorization requirements, for dual-use items. The changes will enter into force at the expiry of the transition period on December 31, 2020, when the United Kingdom will no longer be subject to EU law. 
The Notice provides two key clarifications:
  1. Shipments between EU Member States and the UK: 
    All shipments of dual-use items from the EU to the UK will require an EU export authorization, as set out in the EU Dual-Use Regulation. Vice versa, all shipments of dual-use items from the UK to the EU will require a UK export authorization, as set out in the Export Control Order 2008.

    A specific regime will apply to Northern Ireland. Consistent with the Protocol on Ireland/Northern Ireland, the EU Dual-Use Regulation will continue to apply to and in Northern Ireland. Therefore, shipments of dual-use items from the EU to Northern Ireland, and vice versa, will be considered intra-EU transfers, which are not subject to export authorization (with the exception of certain particularly sensitive dual-use items listed in Annex IV of the EU Dual-Use Regulation). The application of the EU Dual-Use Regulation in Northern Ireland means that shipments of dual-use items from Northern Ireland to the UK or to other non-EU countries will remain subject to EU export authorization.

  2. Shipments from EU Member States or from the UK to third countries: EU exporters will no longer be able to rely on UK export authorizations granted pursuant to the EU Dual-Use Regulation to ship dual-use items from the EU to other third countries. EU exporters will need to reapply for and obtain relevant authorizations from competent authorities in EU Member States. Vice versa, UK exporters will need to reapply for and obtain UK export authorizations for exports of dual-use items from the UK to third countries.
The Notice itself does not address the possibility of the EU adding the UK to the list of destinations covered by Union General Export Authorisation (GEA) EU001. Union GEA EU001 authorizes registered exporters to export multiple shipments of certain dual-use items to listed destinations (currently: Australia, Canada, Japan, New Zealand, Norway, Switzerland, and the United States), hence facilitating exports to those countries. Nonetheless, on November 4, 2020, the Commission published a proposal to include the UK in the Union GEA EU001. The proposal will become effective once formally adopted by the European Parliament and the Council of the EU.


Separately, the UK has confirmed that it will allow exports of dual-use items from the UK to the EU under an Open General Export License (OGEL). The OGEL would only require exporters to register with the UK authorities, in order to be authorized to export dual-use items (other than those currently listed in Annex IIg of the EU Dual-Use Regulation) to the EU.
EU Lists of Dual-Use Items
On October 7, 2020, the Commission adopted the annual delegated regulation to update the lists of dual-use items subject to export controls under the EU Dual-Use Regulation (Delegated Regulation), to reflect recent developments in international non-proliferation regimes and export control arrangements. Specifically, the changes proposed in the Delegated Regulation result from the revisions carried out by the Australia Group, the Missile Technology Control Regime, the Nuclear Suppliers Group, and the Wassenaar Arrangement, during the period from 2019 to February 2020.
Among the numerous changes made to the lists, the most notable are new controls for a variety of items, including:
  • Software specifically designed for monitoring or analysis by law enforcement
  • Systems, equipment, and components for defeating, weakening, or bypassing information security
  • Certain chemicals, including Novichok nerve agent precursors
  • Middle East Respiratory Syndrome-related coronavirus
In addition, there are numerous changes to various control entries, including:
  • Metal alloys
  • Fluids and lubricating materials
  • Simulation software
  • Information security system 
The Commission has published a summary of the changes to the control lists. The Delegated Regulation entered into force on December 15, 2020.
Companies exporting dual-use items should verify whether they are affected by the foregoing updates to the EU export control rules. Non-compliance with EU (and UK) export control rules can have serious criminal, financial, and reputational consequences for companies and their employees.
Agreement for a New EU Dual-Use Regulation
On November 9, 2020, the German presidency of the Council of the EU and representatives of the European Parliament reached an agreement on revising the current EU Dual-Use Regulation. The agreed changes to the existing EU export control framework aim to (1) promote human rights compliance by addressing cyber-surveillance and other security threats stemming from new technologies, (2) strengthen the EU common approach to export controls by reinforcing cooperation among Member State authorities, and (3) impose enhanced compliance obligations on businesses (including a requirement to adopt internal compliance programs). The most significant changes include:
  1. Stricter export controls for potential misuses of new technologies, and in particular cyber-surveillance items. An authorization will be required for exporting cyber-surveillance items capable of covert surveillance of natural persons by monitoring, extracting, collecting, or analyzing data from information and telecommunication systems, even if not listed in Annex I of the EU Dual-Use Regulation, if such items are or may be intended for use in connection with internal repression or serious violations of international human rights and international humanitarian law.
  2. The introduction of two new Union GEAs, to ease the authorization process for intra-group technology transfers (EU007) and exports of cryptographic items to certain destinations (EU008).
  3. New harmonized rules on certain services related to dual-use items, such as technical assistance. Providing technical assistance will require authorization if related to listed dual-use items intended for certain specific military uses, with the possibility for EU Member States to extend these requirements to non-listed dual-use items.
  4. Enhanced due diligence and reporting obligations for businesses to show compliance with applicable export controls. Exporters using global export authorizations will be required to adopt and implement internal compliance programs, namely policies and procedures to ensure compliance with export controls.
  5. A strengthened cooperation mechanism among EU Member State authorities to facilitate information exchange, policy alignment, and enforcement actions.

The Commission had first published a proposal for a revised EU Dual-Use Regulation (in force since 2009) in 2016. Since then, there has been heated debate among EU institutions on the opportunity to update the Regulation, and the extent of any such update. Further to the agreement reached on November 9, 2020, the text of the new EU Dual-Use Regulation now needs to be endorsed by the Permanent Representatives Committee (COREPER), and then formally adopted by the Council of the EU and the European Parliament.


MS_a112. Monday List of Ex/Im Job Openings: 68 Jobs Available – 7 New Job Openings This Week

(Source: Events & Jobs Editor)
New Jobs
* Honeywell: Praha-Dubeč, Czechia; Export Compliance Officer
* Markem-Imaje: Barcelona, Spain; Global Export Compliance Manager
* SAP: Budapest, Hungary; Export Control Expert
* Siemens Gamesa: Taichung City, Taiwan; Head of Export Control and Customs, Taiwan
* Takeda: Vienna, Austria; Customs & Trade Compliance Specialist 
* Volvo: Göteborg, Sweden; Export Controls Expert 

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* Thomas Becket (21 Dec 1119 – 29 Dec 1170; was Archbishop of Canterbury from 1162 until his murder in 1170. He is venerated as a saint and martyr by both the Catholic Church and the Anglican Communion. He engaged in conflict with Henry II, King of England, over the rights and privileges of the Church and was murdered by followers of the king in Canterbury Cathedral. Soon after his death, he was canonized by Pope Alexander III.)
– “Those who tread among serpents, and along a tortuous path, must use the cunning of the serpent.”
* Benjamin Disraeli (21 Dec 1804 – 19 Apr 1881; was a British politician of the Conservative Party who twice served as Prime Minister of the United Kingdom.)
– “The secret of success is to be ready when your opportunity comes.”
Monday is pun day.  

* What do snowmen eat for breakfast? Snowflakes.

* What did Adam say on the day before Christmas? It’s Christmas, Eve!

* Which of Santa’s reindeer needs to mind his manners the most? Rude Olph.


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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. 

18 Nov 2020: 
85 FR 73411:  Revisions to Export Enforcement Provisions. 

24 Apr 2018: 

83 FR 17749: Foreign Trade Regulations (FTR): Kimberley Process Certificates. The latest edition of Bartlett’s Annotated FTR “BAFTR” is 15 Dec 2020. 

: 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.


11 Dec 2020: 85 FR 79836: Extension of temporary suspensions, modifications and exceptions. The latest edition of Bartlett’s Annotated ITAR (BITAR) is 11 Dec 2020.  

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