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The Daily Bugle Weekly Highlights: Week 3 (18 – 22 Jan 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 8,500 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, Salvatore Di Misa, 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 Establishes a Common Approach on The Elements Of End-User Certificates in the Context of the Export of Small Arms and Light Weapons and Their Ammunition”; Monday, 18 Jan 2021; Item #8
  2. Commerce/BIS: “Implementation in the Export Administration Regulations of the United States’ Rescission of Sudan’s Designation as a State Sponsor of Terrorism”; Tuesday, 19 Jan 2021; Item #1
  3. State/DDTC Announces Policy Regarding Direct Commercial Sales of Precision-Guided Munitions (PGMs) and Partner Targeting Infrastructure; Tuesday, 19 Jan 2021; Item #9
  4. DHS/CBP: “Customs Broker License Examination (CBLE) Date Change”; Wednesday, 20 Jan 2021; Item #3
  5. White House: “Executive Order on the Revocation of Executive Order 13770”; Wednesday, 20 Jan 2021; Item #6

 

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EU Council Establishes a Common Approach on The Elements Of End-User Certificates in the Context of the Export of Small Arms and Light Weapons and Their Ammunition”

(Source: Official Journal of the European Union, 18 Jan 2021) [Excerpts] 

 

The purpose of this Decision is to help prevent the diversion of small arms and light weapons (SALW) and their ammunition to unintended end-users or end-uses, by agreeing on common elements for end-user certificates in the context of the implementation of the Union’s common rules governing control of exports of military technology and equipment. …

This Decision shall apply to the following categories of military equipment, insofar as these categories are included in categories ML1, ML2, ML3 and ML4 of the Common Military List of the European Union.

The following categories do not prejudge any future internationally agreed definition of small arms and light weapons (SALW) and may be subject to further clarification, and may be reviewed in the light of any future internationally-agreed definition of SALW. …

 

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Commerce/BIS: “Implementation in the Export Administration Regulations of the United States’ Rescission of Sudan’s Designation as a State Sponsor of Terrorism” 

(Source: Federal Register) [Excerpts]

 

86 FR 4929: Rule

* AGENCY: Bureau of Industry and Security, Commerce.

* ACTION: Final rule.

* SUMMARY: In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to implement the rescission of Sudan’s designation as a State Sponsor of Terrorism (SSOT). The Secretary of State rescinded this designation effective December 14, 2020 in accordance with established statutory procedures, including the President’s October 26, 2020 submission to Congress of a report justifying the rescission and certifying Sudan had not provided any support for acts of international terrorism during the preceding six month period and that Sudan had provided assurances that it would not support acts of international terrorism in the future. Accordingly, BIS amends the EAR by removing Anti-Terrorism (AT) controls on the country and by removing Sudan from Country Group E:1 (Terrorist supporting countries). These actions render the country eligible for a general 25 percent de minimis level. As a consequence of these actions, as well as the addition of the country to Country Group B, Sudan is also potentially eligible for several new license exceptions under the EAR. However, pursuant to this rule, two license exceptions will be unavailable for exports and reexports to Sudan. BIS also makes conforming amendments in other applicable EAR provisions as part of this rule.

* DATES: This rule is effective January 14, 2021.

 

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State/DDTC Announces Policy Regarding Direct Commercial Sales of Precision-Guided Munitions (PGMs) and Partner Targeting Infrastructure

(Source: State/DDTC, 19 Jan 2021)

 

Background

The U.S. government takes seriously its responsibility to ensure exports of defense articles and defense services are consistent with all aspects of the Conventional Arms Transfer (CAT) Policy, including the protection of human rights and the avoidance of civilian harm.  To this end, the Department of State has undertaken a comprehensive review of internal U.S. government criteria for adjudicating the export of precision-guided munitions (PGMs), their critical components, and related technical data and defense services to ensure that U.S.-origin PGMs and those defense articles and services are used in a manner consistent with U.S. intent when approving the transfer.  These criteria include, inter alia, a partner’s ability to properly mitigate the risk of civilian casualties (CIVCAS).

The responsible and effective employment of PGMs requires advanced target development (ATD) capabilities including “weaponeering”, collateral damage estimation (CDE), and target coordinate mensuration (TCM, also referred to as Precision Point Mensuration or PPM) for coordinate-seeking weapons.  Weaponeering refers to the ability to select the correct munition to achieve a specified level of effect, considering variables such as target vulnerability, warhead damage mechanisms/patterns, and weapon reliability, which result in more accurate target-weapon pairings.  CDE refers to the ability to accurately predict collateral damage resulting from target engagement, to include both CIVCAS and civilian objects.  TCM (or PPM) refers to the ability to generate absolute values of latitude, longitude, and elevation of a target to increase the accuracy of the munition. “Targeting infrastructure” means the training, software, and data necessary to conduct the full spectrum of ATD.  Helping U.S. partners obtain this more complete suite of targeting infrastructure will permit greater interoperability, increase operational effectiveness, and provide greater target discrimination. 

Statement of Policy

In order to comprehensively assess proposed transfers of U.S.-origin PGMs, their critical components, and/or related technical data or defense services, the U.S. government considers a partner’s complete targeting infrastructure.  Consistent with the CAT Policy and in concert with the Defense Security Cooperation Agency’s October 2019 Policy Memorandum 19-58 (Targeting Infrastructure Policy), the Department of State will henceforth review proposed direct commercial sale (DCS) transfers of U.S.-origin PGMs, their critical components, and/or related technical data or defense services against the criteria of a partner’s ATD targeting infrastructure. This approach will ensure an equivalent standard of review for PGM transfers regardless of whether the transfer is completed via DCS or the Foreign Military Sales (FMS) program.  

(U) Licenses subject to this policy will continue to be reviewed on a case-by-case basis; however, before authorizing DCS exports, reexports, or retransfer of U.S.-origin PGMs, their critical components, and/or related technical data or defense services, as enumerated below, the U.S. government will confirm the foreign end-user government possesses or is in the process of procuring sufficient U.S., indigenous, or third-party ATD capabilities with respect to the PGMs considered for transfer.  Exceptions to this policy may be made in extenuating circumstances – at the sole discretion of the Department of State – where the proposed transfer(s) would contribute to this policy’s goal of reducing civilian harm.  Exporters are not required to provide evidence of partner targeting infrastructure or proficiency when applying for authorizations, nor are exporters required to offer such capabilities as a part of an authorization request.  The U.S. government is committed to identifying the appropriate solutions for partners to employ precision munitions in the most effective manner, including through practices and use of technologies that can minimize collateral damage and mitigate harm to civilians.  

PGMs and Critical Components Subject to This Policy

The following defense articles and services are subject to this policy.  These munitions and components are most likely to be found in U.S. Munitions List (USML) Categories III, IV, V, and XI: 

Precision Guided Munition Classes: Air-to-Surface and guided indirect fire Surface-to-Surface munitions 105mm in diameter and larger:

  • Coordinate-seeking/feature-seeking;
  • Laser-guided;
  • Infrared/electro-optical;
  • Radar-seeking; and
  • Stand-off Munitions.

Critical Components: For end-use in the above U.S. munition classes: Computer Control Groups, Programmable Fuse Assemblies (complete), and Tail/Wing Kits.

Technical Data: Information, other than software, which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of any one or more of the defense articles identified above.

Defense Services: The furnishing of assistance to foreign persons whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of any one or more of the defense articles identified above.

Adjudication Procedures

(U) Upon receipt of an license application to export, reexport, or retransfer an article or service identified above, the Directorate of Defense Trade Controls will coordinate with the Department of State’s Office of Regional Security and Arms Transfers (PM/RSAT), the Department of Defense’s Defense Security Cooperation Agency (DSCA), and the Country Team at the U.S. Embassy in the country of ultimate destination or end-use to assess partner ATD capabilities; this effort is related to the Targeting Working Group initiative announced by the Department in October 2020.  No action will be required on the part of the U.S. applicant. A valid ATD solution is current for five years, after which the technical support and data need to be refreshed.  Within the five-year period of currency, in-scope licenses will be adjudicated as normal. 

For further information contact the DDTC Response Team at DDTCCustomerService@state.gov or PM/RSAT at PM_RSATGlobalTeam@state.gov.

 

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DHS/CBP: “Customs Broker License Examination (CBLE) Date Change”

(Source: DHS/CBP)

 

The U.S. Customs and Border Protection Broker Management Branch has changed the dates on which the semi-annual Customs Broker License Examination (CBLE) will take place during Calendar Year 2021. The CBLE scheduled for April, 2021 will be held on Wednesday, April 21, 2021, and the CBLE scheduled for October, 2021 will be held on Thursday, October 21, 2021.

The General Notice can be accessed at the Federal Register website.  

 

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White House: “Executive Order on the Revocation of Executive Order 13770”

(Source: The White House, 20 Jan 2021)

 

By the authority vested in me as President of the United States by the Constitution and laws of the United States of America, including section 301 of title 3, United States Code, and sections 3301 and 7301 of title 5, United States Code, it is hereby ordered as follows:

Section 1.  Revocation.   Executive Order 13770 of January 28, 2017, “Ethics Commitments by Executive Branch Appointees,” is hereby revoked, effective at noon January 20, 2021.  Employees and former employees subject to the commitments in Executive Order 13770 will not be subject to those commitments after noon January 20, 2021.

Sec. 2.  General Provisions.   (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

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