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The Daily Bugle Weekly Highlights: Week 19 (10-14 May 2021)

Every Monday we post the highlights out of last week’s FCC Export/Import Daily Update (“The Daily Bugle”). Send out every business day to approximately 9,500 readers of changes to defense and high-tech trade laws and regulations, The Daily Bugle is a free daily newsletter from Full Circle Compliance, edited by James E. Bartlett III and Elina Tsapouri.

We check the following sources daily: Federal Register, Congressional Record, Commerce/AES, Commerce/BIS, DHS/CBP, DOE/NRC, DOJ/ATF, DoD/DSS, DoD/DTSA, FAR/DFARS, State/DDTC, Treasury/OFAC, White House, and similar websites of Australia, Canada, U.K., and other countries and international organizations.  Due to space limitations, we do not post Arms Sales notifications, Denied Party listings, or Customs AD/CVD items. To subscribe, click here.

Last week’s highlights of The Daily Bugle included in this edition are:

  1. EU Council: “Trade ofDual-use Items: New EU Rules Adopted”; Monday, 10 May 2021; Item #8
  2. State/DDTC: Reminder — Public is Invited to DTAG Open Session Thursday, May 20, 2021, 1-5 pm EDT by WebEx; Tuesday, 11 May 2021; Item #3
  3. Justice/ATF: “Revision of a Currently Approved Collection – Explosives Employee Possessor Questionnaire-ATF Form 5400.28”; Wednesday, 12 May 2021; Item #1
  4. Commerce/BIS Posts Joint Agency Answers to FAQs on Foreign Military Sales; Thursday, 13 May 2021; Item #3
  5. Commerce/BIS Updates FAQs for Control of Guns and Ammo; Thursday, 13 May 2021; Item #4

 

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EU Council: “Trade of Dual-use Items: New EU Rules Adopted”

(Source: Council of the European Union, 10 May 2021)

 

The EU has upgraded its legislation on the export controls applicable to sensitive dual-use goods and technologies such as cyber-surveillance tools.

Today the Council adopted a regulation modernising the EU system for the control of exports, brokering, technical assistance, transit and transfer of dual-use items. These are goods, software and technology that can be used for both civilian and military applications.

We welcome the new EU rules on exports of dual-use items that give human rights the prominence they deserve. Strong controls will allow us to prevent human rights violations and abuses, while keeping up with the latest technological developments.

The new regulation strengthens controls on a wider range of emerging dual-use technologies, and the coordination between member states and the Commission in support of the effective enforcement of controls throughout the EU. By introducing due diligence obligations for producers, the new rules also give companies an important role in addressing the risks to international security sometimes posed by dual-use items.

Finally, the dual-use regulation paves the way for better coordination between the EU and partner countries in enhancing international security through more convergent approaches to export controls at global level.

Next steps
After the European Parliament and the Council sign the adopted regulation, it will be published in the EU Official Journal and enter into force 90 days later.

   * Regulation setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items

   * New rules on trade of dual-use items agreed (press release, 9 November 2020)

 

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State/DDTC: Reminder — Public is Invited to DTAG Open Session Thursday, May 20, 2021, 1-5 pm EDT by WebEx

(Source: 86 FR 19940, 15 Apr 2021)

 

The Defense Trade Advisory Group (DTAG) will meet in open session from 1:00 p.m. until 5:00 p.m. on Thursday, May 20, 2021. The meeting will be held by WebEx. The virtual forum will open at 12:00 p.m. The following agenda topics will be discussed, and final reports presented:

(1) Provide recommendations for revisions to the ITAR § 123.17 with regard to exemptions for Personal Protective Gear.

(2) Incorporate relevant legislative and treaty requirements into its analysis on an alternative reporting approach (related to Part 130 Reporting), paying particular attention to which reporting requirements mandate DDTC to report contributions, gifts, commissions, or fees offered; versus paid, or both.

(3) Develop comprehensive ITAR citations of the various compliance requirements that could be used to assist companies and universities to develop robust ITAR compliance programs.

There will be one WebEx invitation for each attendee, and only the invited 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 may submit questions by email following the formal DTAG presentation. 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. Each member of the public who wishes to attend this session must provide: Name and contact information, including an email address and phone number, and any request for reasonable accommodation to the DTAG Designated Federal Officer (DFO), Deputy Assistant Secretary Michael Miller, via email at DTAG@state.gov by COB Tuesday, May 18, 2021.

FOR FURTHER INFORMATION CONTACT: Ms. Barbara Eisenbeiss, PM/DDTC, SA-1, 12th Floor, Directorate of Defense Trade Controls, Bureau of Political-Military

 

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Justice/ATF: “Revision of a Currently Approved Collection – Explosives Employee Possessor Questionnaire-ATF Form 5400.28”

(Source: Federal Register, 12 May 2021) [Excerpts]

 

86 FR 26069: Notice 

* AGENCY: Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.

* ACTION: 60-Day notice.

* SUMMARY: The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ), 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. The proposed collection OMB 1140-0072 (Explosives Employee Possessor Questionnaire-ATF Form 5400.28) is being revised to include additional questions, and a new format and layout to improve user experience. This collection is also being published to obtain comments from the public and affected agencies.

* DATES: Comments are encouraged and will be accepted for 60 days until July 12, 2021.

 

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Commerce/BIS Posts Joint Agency Answers to FAQs on Foreign Military Sales

(Source: Commerce/BIS, 12 May 2021)

 

FMS FAQs: Exports of items that would otherwise be “subject to Export Administration Regulations (EAR),” but are authorized under the Foreign Military Sales (FMS) Program of the Arms Export Control Act (AECA) pursuant to a Letter of Offer and Acceptance (LOA).

Introduction: 

These Joint FMS FAQs were developed by the Bureau of Industry and Security (BIS) and the U.S. Census Bureau at the Department of Commerce; the Directorate of Defense Trade Controls (DDTC) and the Office of Regional Security and Arms Transfers (RSAT) at the Department of State; the Defense Security Cooperation Agency (DSCA) at the Department of Defense; and U.S. Customs and Border Protection (CBP) at the Department of Homeland Security.  

These Joint FMS FAQs address questions that have been received about items that would otherwise be “subject to the EAR,” but are not “subject to the EAR” because they will be exported under FMS authority. The agencies that developed the FAQs are posting them to provide information to exporters. 

These FAQs were created because BIS, DDTC, RSAT, DSCA, and CBP continue to receive questions from the public regarding the export of items that were moved from the USML to the CCL that are being exported under FMS authority. Exporters are having difficulty in understanding how the EAR, 

the International Traffic in Arms Regulations (ITAR) and the FMS Program relate to each other for items transitioned from the ITAR to the EAR. The movement of these items to the EAR did not change the FMS Program. However, once the “600 series” military items were moved to the EAR, application questions about the FMS Program increased because the number of FMS exports of items that would otherwise have been subject to the EAR increased significantly. These FAQs will provide guidance to address common questions the agencies have received on this aspect of the FMS Program.    

Questions specific to the application of the FMS Program, ITAR, security cooperation programs, or the EAR should be directed to the relevant agencies, as applicable: 

Questions on the FMS Program should be directed to RSAT: 

* Email: PM_RSATFMSTeam@state.gov

      * Tel: (202) 663-3030

https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-andinternational-security-affairs/bureau-of-political-military-affairs/office-of-regionalsecurity-and-arms-transfers/

Questions on the retransfer or change of end use of defense articles acquired via the FMS Program should be directed to the third party transfer (TPT) team in RSAT:

* Email: PM_RSAT-TPT@state.gov

https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-andinternational-security-affairs/bureau-of-political-military-affairs/office-of-regionalsecurity-and-arms-transfers/

Questions specific to the ITAR should be directed to DDTC:  

* Email: ddtcresponseteam@state.gov

* Tel: (202) 663-1282

https://www.pmddtc.state.gov/ddtc_public

Questions specific to a security cooperation program administered by DSCA should be directed to DSCA: 

* Email: dsca.ncr.lmo.mbx.info@mail.mil

* Tel: (703) 697-9709

http://www.dsca.mil/

Questions specific to the EAR should be directed to BIS: 

* E-mail: ECDOEXS@bis.doc.gov

* Tel: (202) 482-4811 – Outreach and Educational Services Division (located in Washington, DC); (949) 660-0144 – Western Regional Office (located in Irvine, CA);

(408) 998-8806 – Northern California branch (located in San Jose, CA)

www.bis.doc.gov

(Editor’s Note: The following list of Q&As is too long to fully include in the Daily Bugle, so we have reprinted all the questions but only a portion of the answers. Download the full document HERE.)

Q.1: I will be exporting an item normally “subject to the EAR,” under FMS authority.  Section 734.3(b)(1)(vi) of the EAR specifies that the export of items exported under FMS authority are not “subject to the EAR.” Does this mean I may apply (or do I have to apply) for a license or other approval from the Department of State under the ITAR for this export? 

A.1: Items that will be exported under FMS authority are not “subject to the EAR” pursuant to § 734.3(b)(1)(vi) of the EAR because they are “defense articles” pursuant to section 47 of the AECA (22 U.S.C. 2794). . . .

Q.2: I understand the ITAR section 120.5(b) approval process. However, in my export scenario, the items will not be exported “in or with” any defense articles that are enumerated or otherwise described on the USML. Because DDTC will not issue a license or other approval, may I apply (or do I have to apply) for a license from BIS to authorize these types of exports?  

A.2: As noted in Q.1, items that are “subject to the EAR,” but will be exported under the FMS authority, are not “subject to the EAR” pursuant to § 734.3(b)(1)(vi) of the EAR. Therefore, . . .

Q.3: Answers A.1 and A.2 above clarify that a license or other approval is not required under the EAR or the ITAR for the export of items that are “subject to the EAR,” but will be exported under FMS authority, as specified in § 734.3(b)(1)(vi) of the EAR. Does this mean there is no U.S. Government authorization required for such exports?   

A.3: The terms and conditions of the LOA govern the export, reexport, or other transfer of the items shipped under the FMS case and thus serve as the U.S. Government authorization. See also § 734.3(b)(1)(vi) of the EAR. 

Q.4: In order to abide by § 734.3(b)(1)(vi) for the export of items that would otherwise be “subject to the EAR,” but are not because they will be exported under FMS authority, is it necessary to obtain a return without action (RWA) notification from DDTC and BIS?    

A.4: No. . . .

Q.5: How do I determine whether or not I need a license or other authorization from BIS for the export of items under FMS authority?

A.5: The export of an item under FMS authority does not require a license or other authorization (including a No License Required (NLR) designation) from BIS. The exporter must have determined . . .

Q.6: If I’m not sure if my item will be exported under FMS authority, does § 734.3(b)(1)(vi) apply?   

A.6: An export is either being made under FMS authority, or it is not. . . .

Q.7: Based on the Q&As above, I understand the relationship between the FMS authority and transfers (exports) pursuant to the applicable LOA for purposes of § 734.3(b)(1)(vi) of the EAR. However, I am not sure how to interpret the last sentence of § 734.3(e), which states the following: 
“Exports, reexports, or in-country transfers of items subject to the EAR under a Foreign Military Sales case that exceed the scope of § 126.6(c) of the ITAR or the scope of actions made by the Department of State’s Office of Regional Security and Arms Transfers require separate authorization from BIS.”
When does this sentence apply? How does the sentence relate to paragraph (b)(1)(vi)? I am concerned that even if my item is not subject to the EAR based on § 734.3(b)(1)(vi), that my export may still require an EAR authorization because of the last sentence of paragraph (e).

A.7: Section 734.3(e) of the EAR only applies to items that are “subject to the EAR.” . . . . 

Q.8: Paragraph (b)(2) of License Exception GOV in 740.11  paragraphs that authorize exports, reexports, and transfers (in-country) for certain cooperative programs. Paragraphs (b)(2)(iii)(B) and (b)(2)(v) of § 740.11 appear to authorize exports under FMS authority because such FMS-related transfers (exports) are part of a cooperative program. In addition, paragraph (b)(2)(iv) provides a broad authorization for items exported at the direction of U.S. Department of Defense and appears to be another available authorization. Can these paragraphs of License Exception GOV be used to authorize exports of items that would otherwise be “subject to the EAR,” but are not because the items are to be exported under FMS authority?

A.8: No. . . . . 

Q.9: For purposes of export clearance, if I wanted to alert U.S. Customs and Border Protection (CBP) that the items are not “subject to the EAR” pursuant to § 734.3(b)(1)(vi), does BIS have suggestions on how to communicate that?

A.9:  The following statement may be included in export control documents that may accompany the export, “Not subject to the EAR (NOEAR) pursuant to section 734.3(b)(1)(vi).”

[F/N 1] If the item is “subject to the EAR,” it is enumerated or otherwise described in an Export Control Classification Number (ECCN) or designated as EAR99. This same footnote applies to all FMS FAQs in which the phrase that would otherwise be “subject to the EAR” is used.

 

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Commerce/BIS Updates FAQs for Control of Guns and Ammo

(Source: Commerce/BIS, 12 May 2021) [Excerpts of 75-page document.]

 

Frequently Asked Questions: “Control of Firearms, Guns, Ammunition and Related Articles the President Determines No Longer Warrant Control Under the United States Munitions List (USML)(85 FR 4136)”

Table of Contents:

Publication and Effective Date … 3
Transition and Grandfathering … 5
Registration and Applying for Licenses and Classifications … 6
Addition of new ECCNs… 6
ECCN 0A501; ECCN 0A502; ECCN 0A504; ECCN 0A505; ECCN 0A602 … 8-14
Removal of Nine ECCNs … 14-17
Revisions to Eight ECCNs … 17
3D Printing of Firearms … 17
Brokering Controls … 23
License Exceptions … 26-46
Licensing Process … 49
Conventional Arms Reporting … 49
Export Clearance Requirements … 50
Entry Clearance Requirements for Temporary Imports … 59
Changes to EAR Recordkeeping … 62-64
For Further Information Contacts … 65
Enforcement … 66

Key Terms … 67

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