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The Daily Bugle Weekly Highlights: Week 21 (24-28 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 10,000 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. Commerce/BIS: Notice of Meeting ofRegulations and Procedures Technical Advisory Committee (RPTAC) June 8, 2021; Monday, 24 May 2021; Item #1
  2. DHS/USCIS Designates Burma (Myanmar) for Temporary Protected Status; Tuesday, 25 May 2021; Item #1
  3. State/DDTC Requests Comments on Proposed Amendment to ITAR § 120.39, Regular Employee; Thursday, 27 May 2021; Item #2
  4. UK ECJU: “Updated Guidance for Open General Export Licences for Information Security Items”; Thursday, 27 May 2021; Item #8
  5. DOD/DSCA Posts New Policy Memos 21-07 and 21-47; Friday, 28 May 2021; Item #5

 

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Commerce/BIS: Notice of Meeting of Regulations and Procedures Technical Advisory Committee (RPTAC) June 8, 2021 

(Source: 86 FR 27827, 24 May 2021) [Excerpts]

* AGENCY: DEPT OF COMMERCE, Bureau of Industry and Security Regulations and Procedures Technical Advisory Committee;
* ACTION: Notice of Partially Closed Meeting
* SUMMARY: The Regulations and Procedures Technical Advisory Committee will meet June 8, 2021, at 10:00 a.m., Eastern Daylight Time, via remote teleconference. The Committee advises the Office of the Assistant Secretary for Export Administration on implementation of the Export Administration Regulations (EAR) and provides for continuing review to update the EAR as needed. . . .

The open session will be accessible via teleconference to participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at Yvette.Springer@ bis.doc.gov, no later than June 1, 2021. …

 

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DHS/USCIS Designates Burma (Myanmar) for Temporary Protected Status

(Source: 86 FR 28132, 25 May 2021)


* AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS).
* ACTION: Notice of Temporary Protected Status (TPS) designation.
* SUMMARY: Through this Notice, DHS announces that the Secretary of Homeland Security is designating Burma for TPS for 18 months, effective May 25, 2021, through November 25, 2022. Under the Immigration and Nationality Act (INA), the Secretary is authorized to designate a foreign state (or any part thereof) for TPS upon finding that extraordinary and temporary conditions in the foreign state prevent its nationals from returning safely, unless permitting the foreign state’s nationals to remain temporarily in the United States is contrary to the national interest of the United States. Regardless of an individual’s country of birth, this designation allows eligible Burmese nationals (and individuals having no nationality who last habitually resided in Burma) who have continuously resided in the United States since March 11, 2021, and have been continuously physically present in the United States since May 25, 2021 to apply for TPS. This Notice also describes the other eligibility criteria applicants must meet. Individuals who believe they may qualify for TPS under this designation may apply within the 180-day registration period that begins on May 25, 2021, and ends on November 22, 2021. They may also apply for TPS-related Employment Authorization Documents (EADs) and for travel authorization.
* DATES: The designation of Burma for TPS is effective on May 25, 2021, and will remain in effect for 18 months, through November 25, 2022. The 180-day registration period for eligible individuals to submit TPS applications begins May 25, 2021, and will remain in effect through November 22, 2021 

* PURPOSE OF THIS ACTION (TPS)

    Through this Notice, DHS sets forth procedures necessary for eligible nationals of Burma (or individuals having no nationality who last habitually resided in Burma) to submit an initial registration application under the designation of Burma for TPS and apply for an EAD. Under the designation, individuals must submit an initial Application for Temporary Protected Status (Form I-821) and they may also submit an Application for Employment Authorization (Form I-765) during the 180-day initial registration period that runs from May 25, 2021 through November 22, 2021. In addition to demonstrating continuous residence in the United States since March 11, 2021, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since May 25, 2021, the effective date of this designation of Burma, for USCIS to grant them TPS. USCIS estimates that approximately 1,600 individuals are eligible to apply for TPS under the designation of Burma. 

* WHAT IS TEMPORARY PROTECTED STATUS (TPS)? 

    TPS is a temporary immigration status granted to eligible nationals of a foreign state designated for TPS under the INA, or to eligible individuals without nationality who last habitually resided in the designated foreign state. 

    During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to obtain EADs so long as they continue to meet the requirements of TPS. 

    TPS beneficiaries may also apply for and be granted travel authorization as a matter of discretion. Upon return from such authorized travel, TPS beneficiaries retain the same immigration status they had before the travel. 

The granting of TPS does not result in or lead to lawful permanent resident status. 

To qualify for TPS, beneficiaries must meet the eligibility standards at INA section 244(c)(1)-(2), 8 U.S.C. 1254a(c)(1)-(2). 

When the Secretary terminates a foreign state’s TPS designation, beneficiaries return to one of the following: 

     — The same immigration status or category that they maintained before TPS, if any (unless that status or category has since expired or been terminated); or 

     — Any other lawfully obtained immigration status or category they received while registered for TPS, as long as it is still valid beyond the date TPS terminates. 

* WHY WAS BURMA DESIGNATED FOR TPS? . . . .

 

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State/DDTC Requests Comments on Proposed Amendment to ITAR § 120.39, Regular Employee

(Source: Federal Register, 27 May 2021) [Excerpts]

 

86 FR 28503: Proposed Rule

* AGENCY: Department of State.
* ACTION: Proposed rule.
* SUMMARY: The Department of State proposes to amend the International Traffic in Arms Regulations (ITAR) to update the definition of regular employee to allow subject persons to work remotely, and to clarify the contractual relationships that meet the definition of regular employee.

* DATES: Send comments on or before July 26, 2021.

* ADDRESSES:  . . . . 

* FOR FURTHER INFORMATION CONTACT: Ms. Engda Wubneh, Foreign Affairs Officer, Office of Defense Trade Controls Policy, U.S. Department of State, telephone (202) 663-1809; e-mail DDTCCustomerService@state.gov.  ATTN: Regulatory Change, ITAR Section 120.39: Regular Employee.

* SUPPLEMENTARY INFORMATION: In March 2020, the President declared a national emergency as a result of the COVID-19 pandemic. Subsequently, the Department announced a temporary suspension, modification, and exception through July 31, 2020, of the requirement that a regular employee, for purposes of ITAR § 120.39(a)(2), work at a company’s facilities.  The temporary measure allowed individuals to work remotely provided they are not located in Russia or a country listed in ITAR § 126.1 (85 FR 25287, May 1, 2020), and still be considered regular employees under the ITAR. The Department requested and received comments regarding the efficacy and duration of this temporary measure (85 FR 35376, June 10, 2020). Many commenters, one industry association, and several individual entities endorsed the telework provisions and requested that this measure be effective until the end of the year, if not extended indefinitely. Additionally, many commenters mentioned that this temporary measure allowed industry to continue their business activities despite COVID-19 as many employees could work remotely. In response, this temporary measure was extended until December 31, 2020 (85 FR 45513, July 29, 2020).

The Department is proposing to amend ITAR § 120.39 permanently to allow certain individuals to work remotely, and further proposes to clarify the contractual relationships that meet the definition of regular employee. The Department recognizes that the workplace environment is evolving, therefore, the current “regular employee” criterion that an individual must work at a company’s facilities will be removed in the revised definition to allow for remote work.  

The Department also proposes to set forth clear criteria that will allow regulated entities to treat certain contractual staff as regular employees for the purposes of the ITAR, provided those individuals are sufficiently subject to the employer’s control such that the Department can hold the regulated employer responsible for the individual’s actions.  

Further, the Department proposes to codify the meaning of a “long term contractual relationship” in ITAR § 120.39(a)(2) by clarifying in the regulations that individuals must be providing services to an entity under a contract for a term of one year or more (ITAR § 120.39(a)(2)(i)). The goal of this provision is to minimize the risk of diversion of U.S. defense articles. The delineation of a contract for one year or more was selected in part based on the Department’s expectation that a long-term contractor will receive superior orientation and training from a regulated entity upon onboarding, and the ability to absorb and apply training materials and adhere to compliance policies and procedures (e.g., ITAR-related training) is more likely to occur with at least a year of experience on the job. For those individuals not in a “long term contractual relationship” with a regulated entity (i.e., where the contract is less than one year), the Department will allow such individuals to be treated as regular employees provided that, in addition to the control and non-disclosure considerations described in ITAR § 120.39(a)(3), the individual also maintains an active security clearance approved by the United States or by the government of the entity to which the individual’s services are provided.  

Lastly, although employment type is not explicitly referenced in the definition, individuals providing services pursuant to a contractual relationship can include independent contractors, seconded employees, individuals provided by a staffing agency, or contractors provided by a contracting agency.

. . . .

PART 120 – PURPOSE AND DEFINITIONS

. . . .

Section 120.39 is revised to read as follows:

  • 120.39 Regular employee.

(a) Regular employee means: 

   (1) An individual permanently and directly employed by an entity; or

   (2) An individual providing services to an entity:

(i) Under a contract with a term of one year or more;

(ii) Who works under the entity’s direction and control;

(iii) Who works full time for the entity;

(iv) Who is subject to the entity’s compliance policies and procedures; and

(v) Who executes a nondisclosure agreement with the entity that provides assurances that the individual will not transfer any defense articles to persons or entities unless specifically authorized by the entity; or

   (3) An individual providing services to an entity:

(i) Under a contract with a term of less than one year;

(ii) Who maintains an active security clearance approved by the United States or by the government of the entity to which the individual is providing services;

(iii) Who works under the entity’s direction and control;

(iv) Who works full time for the entity;

(v) Who is subject to the entity’s compliance policies and procedures; and

(vi) Who executes a nondisclosure agreement with the entity that provides assurances that the individual will not transfer any defense articles to persons or entities unless specifically authorized by the entity.  

   (4) A secondment from one entity to another meets the definitions described in paragraphs (a)(2) and (3) of this section.

 

(b) Nothing in this section shall be construed to provide authorization for the export, retransfer, or reexport of defense articles or defense services.

 

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UK ECJU: “Updated Guidance for Open General Export Licences for Information Security Items”

(Source: UK ECJU, 26 May 2021)

 

Details

These open general export licences (OGELs) allow the export of ‘low risk’ information sec

OGELs amended to include China, Hong Kong and Macao as permitted destinations for specific items.

 

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DOD/DSCA Posts New Policy Memos 21-07 and 21-47

(Source: Defense Counterintelligence & Security Agency (DSCA) 

 

(1) DSCA Policy Memo 21-07, Requirement of the Standard Financial Information Structure (SFIS) Implementation: This memorandum establishes policy directing the Security Cooperation community to use Standard Financial Information Structure (SFIS) compliant systems executing Security Assistance Accounts (SAA) financial transactions. The SFIS is a comprehensive data structure that supports requirements for budgeting, financial accounting, cost/performance, and external reporting across the Department of Defense (DoD) enterprise. This memo updates C14.3. – Standard Financial Information Structure, and renumbers existing sectons.

(2) DSCA Policy Memo 21-47, Assignment of Program Code “EP” to track Fiscal Year (FY) 2021Funding Provided for Peacekeeping Operations (PKO) and Global Peace Operations Initiative (GPOI): Effective immediately, program code “EP” is assigned to track FY 2021 funds provided to execute PKO and GPOI programs under the authority of section 551 of the Foreign Assistance Act (FAA) of 1961, as amended. Funds were provided by Division K of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2021 (P.L 116-260). This memo revised and adds codes to: Table C4.T2B. – Security Cooperation (SC) Customer and Regional Codes and FMS Eligibility (DSCA/DFAS Reserved); and Table C15.T2. BPC Programs and Authorities – Peacekeeping Operations (PKO) – Global

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