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:
- State/DDTCPosts New FAQs Regarding ITAR 126.4; Tuesday, 12 May 2020; Item #4.
- Hong Kong TID: “Re-exports of U.S.-origin Electronics, Computers, and Telecommunications from Hong” Kong”; The Daily Bugle; Tuesday, 12 May 2020; Item #6.
- Justice/ATF: “Information Requested on the Application for Restoration of Firearms Privileges-ATF Form 3210.1”; The Daily Bugle; Wednesday, 13 May 2020; Item #1.
- Treasury/OFAC Publishes Guidance to Address Illicit Shipping and Sanctions Evasion Practices; Thursday, 14 May 2020; Item #8.
- Commerce/BIS Issues Expected Final 90-Day Extension of Temporary General License Authorizations; The Daily Bugle; Friday, 15 May 2020; Item #5
State/DDTC Posts New FAQs Regarding ITAR § 126.4
(Source: DDTC Website, 11 May 2020)
Q: Other than prohibited countries under § 126.1, what’s the general breadth of ITAR exports under ITAR § 126.4? Are there portions of the USML where ITAR § 126.4 would be unavailable?
A: ITAR § 126.4 may be used for the transfer of any defense article or the furnishing of any defense service described on the United States Munitions List (“USML”). The plain text of the provision does not limit the scope of the exemption to certain portions of the USML. However, this section does not authorize any transfer that is otherwise prohibited by any other administrative provisions or by any statute or that is inconsistent with U.S. arms embargoes or United Nations Security Council Resolutions (see ITAR § 126.1).
Q: When utilizing ITAR § 126.4, whose responsibility is it to receive and keep the end-user certification, where applicable? Is this the U.S. Government’s, the exporter’s, somehow decided between the two, or is this process exempt from that requirement?
A: ITAR § 123.26 provides that “[a]ny person engaging in any export … of a defense article or defense service pursuant to an exemption must maintain records of each such export….” This means the person or entity undertaking the transfer is responsible for all applicable filing, record keeping, and certification requirements. The exporter should, at all times, be able to satisfy the relevant record keeping requirements.
Q: ITAR § 126.4(b) notes that an export can be conducted “on behalf of the U.S. Government” to: (1) the U.S. Government where requested, or (2) other entities pursuant to written direction and where an international agreement is in effect. What separates the exemption under § 126.4(b) from the exemption in § 126.4(a)? When is one applicable over the other?
A: ITAR § 126.4(b) allows a person or entity other than the U.S. Government to undertake a transfer “on behalf of” a department or agency of the U.S. Government. ITAR § 126.4(a) allows transfers by a department or agency of the U.S. Government. The difference between (a) and (b) lies in the person that is undertaking the transfer.
Q: Can the authorization discussed under § 126.4(b) be verbal?
A: U.S. Government departments and agencies are responsible for developing their own criteria for what constitutes a “request” as discussed under ITAR § 126.4(b)(1) to conduct a transfer on their behalf. The “written direction” required under ITAR § 126.4(b)(2) must be in writing.
Q: Can I ask DDTC to issue a determination or an Advisory Opinion that will tell me whether my transaction qualifies for the ITAR § 126.4 exemption
A: No. DDTC does not provide exporters with a determination as to whether or not they qualify for an exemption. DDTC deems that exporters are best positioned to make their own determination with respect to whether their activities comply with available exemptions, including the new exemption contained in ITAR § 126.4(b)(1).
Q: Does ITAR § 126.4(a)(1)(ii) authorize exports by U.S. contractors supporting U.S. Government programs? Assuming that the parameters of ITAR § 126.4(a)(1)(ii) (A)-(D) are complied with, is this all the authorization a contractor needs to export an ITAR-controlled defense articles for a government program?
A: No. ITAR § 126.4(a) allows transfers bya department or agency of the U.S. government. If a department or agency of the U.S. government is undertaking the transfer, they may do so if the recipient is a U.S. government employee (ITAR § 126.4(a)(1)(i)) or a person or entity in a contractual relationship with the U.S. government that satisfies the conditions outlined in ITAR § 126.4(a)(1)(ii)(A)-(D). ITAR § 126.4(b) is the exemption available to non-government persons in a contractual relationship with the U.S. Government who wish to export a defense article.
Q: Can ITAR § 126.4 be used in lieu of obtaining a third party transfer approval from PM/RSAT for articles procured via FMS?
A: No. As stated in ITAR § 126.4(a)(5), “[a]uthorization under this section is for compliance with the ITAR and does not constitute any other U.S. Government approval that may be required prior to the transfer of a defense article, and does not satisfy other obligations of U.S. law or regulation, or applicable government process, procedure, or practice, including the requirement that any export of an item listed on the MTCR Annex receive the case-by-case review called for in the MTCR Guidelines.”
Q: Can ITAR § 126.4 be utilized to conduct classified transfers?
A: Yes, ITAR § 126.4 can be used to conduct classified transfers. Persons who intend to transfer classified defense articles and services, including classified technical data, pursuant to ITAR § 126.4 are required to comply with all certification and filing requirements for significant military equipment and exemptions.
Q: Does ITAR § 126.4 cover exchanges of ITAR technical information during conversations or meetings that may lack written approval from the relevant government agency?
A: Yes. If a transaction involving the transfer of technical data satisfies the provisions of ITAR § 126.4(a) or 126.4(b), then these provisions may serve as the export approval for exchanges of ITAR technical information during conversations or meetings. Note that under ITAR § 126.4(b)(1), transfers of technical information to a department or agency of the U.S. government are approved pursuant to its “request,” as defined by the department or agency requesting the transfer.Further, under ITAR § 126.4(b)(2), transfers of technical information to an entity other than the U.S. government or pursuant to an international agreement or arrangement are approved pursuant to a “written request.” For transfers that are oral, visual or electronic the exporter must also complete a written certification as required by ITAR § 125.6(b) and retain it for a period of five years.
Hong Kong TID: “Re-exports of U.S.-origin Electronics, Computers, and Telecommunications from Hong Kong”
(Source: Hong Kong Trade and Industry Department, 12 May 2020)
This circular informs traders of the elimination of U.S. Licence Exception Civil End Users (“Licence Exception CIV”) which will affect the exports, re-exports and transfers of certain U.S.-origin electronics, computers and telecommunications products starting from 29 June 2020.
On 28 April 2020, the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce published a final rule (referred as “the rule” hereafter) announcing the elimination of Licence Exception CIV. The rule can be found at the following web link.
With effect from 29 June 2020, US export authorisation, which is usually in the form of an individual validated licence issued by the BIS, will be required for exporting/ re-exporting/transferring items previously covered by Licence Exception CIV to countries/ places in Group D:1. The items affected include, for example, electronics, computers and telecommunications products under Export Control Classification Numbers (“ECCN”) 3A001.a.3, 3A001.a.7, 3A001.a.11, 4A003.g, 5A001 and their sub-categories.
There is no change to Hong Kong’s import and export licensing control on strategic commodities as required under the Import and Export Ordinance (Chapter 60 of the Laws of Hong Kong) and the Import and Export (Strategic Commodities) Regulations (Chapter 60G of the Laws of Hong Kong).
To facilitate Trade and Industry Department (“TID”)’s consideration of strategic commodity licence applications, applicants are often required to provide additional supporting documents which include but not limited to valid export authorisations issued by the products’ originating countries/places. In light of the rule, traders importing/exporting the US-origin products concerned are advised to liaise and check with their U.S. exporters/manufacturers, particularly to obtain the necessary and applicable US export authorisation.
In this connection, strategic commodity licences previously issued by TID featuring “U.S. Licence Exception CIV” under the “Export Authorisation of Foreign Exporting/Product’s Originating Country (Place)” should no longer be used after 29 June 2020. TID will liaise with the licensees concerned to revise the licences’ validity period and/or cancel the unused licences.
If you have any enquiry concerning this circular, please contact Miss Cas Lam at telephone number 2398 5575 or by email at email@example.com.
Justice/ATF: “Information Requested on the Application for Restoration of Firearms Privileges-ATF Form 3210.1
(Source: Federal Register, 13 May 2020) [Excerpts]
* 85 FR 28664: 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. The proposed information collection (IC) 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 13, 2020. …
Treasury/OFAC Publishes Guidance to Address Illicit Shipping and Sanctions Evasion Practices
(Source: Treasury/OFAC, 14 May 2020)
The U.S. Departments of State and Treasury, and the U.S. Coast Guard, issued a global advisory to alert the maritime industry, and those active in the energy and metals sectors, to deceptive shipping practices used to evade sanctions, with a focus on Iran, North Korea, and Syria. The advisory includes a detailed set of best practices for private industry to consider adopting to mitigate exposure to sanctions risk.
The advisory updates and expands upon previous advisories issued by the U.S. government. It is intended to provide actors that utilize the maritime industry for trade with information on and tools to counter current and emerging trends in sanctions evasion related to shipping and associated services. The advisory highlights common deceptive shipping practices used with respect to countries like Iran, North Korea and Syria.
Commerce/BIS Issues Expected Final 90-Day Extension of Temporary General License Authorizations
(Source: Commerce/BIS, 14 May 2020)
The U.S. Department of Commerce announced today it is extending the terms of the existing Temporary General License (TGL) authorizations for Huawei Technologies Co. Ltd. and its non-U.S. affiliates (Huawei) on the Entity List for 90 days. The terms and duration of any future general licenses will be announced prior to the expiration of this 90-day time period.
This announcement follows public comments received from numerous companies, associations, and individuals about the TGL. The Department continues to assess the national security and foreign policy implications of companies and individuals that have not yet transitioned from Huawei equipment.
The 90-day extension provides an opportunity for users of Huawei devices and telecommunication providers-particularly those in rural U.S. communities-to continue to temporarily operate such devices and existing networks while hastening the transition to alternative suppliers.
In announcing this extension, the Department is also notifying the public that activities authorized in the TGL may be revised and possibly eliminated after August 13, 2020. Companies and persons relying on TGL authorizations should begin preparations to determine the specific, quantifiable impact of elimination if they have not done so already. Those companies and persons should be prepared to submit license applications to the Department to determine which, if any, activities will be authorized in the event that their TGL authorization is eliminated. The Department will provide prior notice via the Federal Register of a need to submit such applications.
The Bureau of Industry and Security (BIS) in the Department of Commerce is responsible for overseeing these export control activities. BIS’s mission is to advance U.S. national security and foreign policy objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership. BIS is committed to restricting U.S.-origin commodities and technology from use in support of Weapons of Mass Destruction projects, terrorism, or destabilizing military modernization programs. For more information, please visit www.bis.doc.gov.