Since our last post, there have been actions throughout the various export control agencies that may impact your business. Ranging from the new Conventional Arms Transfer Policy to tweaks to the USML and CCL to CFIUS country policies to new sanctions, we have the highlights below.
White House: CAT Policy
The White House released an updated Conventional Arms Transfer (CAT) Policy on February 23, 2023. Formalizing the administration’s current practice, the new policy covers ITAR-controlled defense articles as well as EAR-controlled 600-series items and commercial firearms. It increases emphasis on human rights concerns while continuing to take in to account other considerations such as effects on partner capacity, regional stability, risk of diversion, and the defense industrial base. The State Department also published a fact sheet on the CAT Policy.
Department of State: DDTC / ITAR
The Department of State, Directorate of Defense Trade Controls (DDTC) issued International Traffic in Arms Regulations (ITAR) Compliance Program Guidelines (pdf) on December 5, 2022. See our newsletter for a summary!
Cyprus temporarily removed from § 126.1:
- Republic of Cyprus’ status as a proscribed destination is suspended from October 1, 2022, through September 30, 2023
- 87 FR 71250, November 22, 2022
ITAR controls temporarily suspended for certain capacitors described in the U.S. Munitions List (USML) Category XI.
- Applies to capacitors that have a voltage rating of one hundred twenty-five volts (125 V) or less
- Effective November 21, 2022 to May 22, 2023
- 87 FR 74967, December 7, 2022
Proposed Amendment to the Definition of Activities That Are Not Exports, Reexports, Retransfers, or Temporary Imports
- “First, subject to certain conditions, the taking of defense articles outside a previously approved country by the armed forces of a foreign government or United Nations personnel on a deployment or training exercise is not an export, reexport, retransfer, or temporary import.”
- “Second, a foreign defense article that enters the United States, either permanently or temporarily, and that is subsequently exported from the United States pursuant to a license or other approval under this subchapter, is not subject to the reexport and retransfer requirements of this subchapter, provided it has not been modified, enhanced, upgraded, or otherwise altered or improved or had a U.S.-origin defense article integrated into it.”
- 87 FR 77046, December 16, 2022
Consolidation and Restructuring of Purposes and Definitions
- Finalizes 2022’s interim final rule reorganizing ITAR definitions
- Includes review of comments and minor changes
- 88 FR 12210, February 27, 2023
Department of Commerce: BIS / EAR & CCL
Pakistan Due Diligence Guidance
- BIS website, September 9, 2022
Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification
- New ECCNs 3A090 and 4A090
- Changes to license requirements, license exceptions, and foreign direct product rule
- New End-Use and End-User Control for “Supercomputers” Under § 744.23 of the EAR
- Additions to Entity List
- 87 FR 62186, October 13, 2022
- BIS background page, including press release, presentations, webcast, and FAQs
- Updated to apply to Macau (88 FR 2821, January 18, 2023)
Revisions to the Unverified List; Clarifications to Activities and Criteria That May Lead to Additions to the Entity List
- 87 FR 61971, October 13, 2022
Implementation of Australia Group Decisions From 2021 and 2022 Virtual Meetings: Controls on Marine Toxins, Plant Pathogens and Biological Equipment
- Affects ECCNs, 1C350, 1C351, 1C353, 1C354, 1E001, 2B352
- 88 FR 2507, January 17, 2023
Implementation of 2021 Wassenaar Arrangement Decisions
- Implements the remaining controls agreed to during the December 2021 WA Plenary meeting by revising the CCL, as well as certain EAR provisions, including License Exception Adjusted Peak Performance (APP). This final rule also makes corrections to align the scope of Significant Item (SI) license requirements throughout the EAR and makes a revision to License Exception Strategic Trade Authorization (STA).
- Affects ECCNs 0A988, 1A613, 1C006, 2E003, 3A001, 3A002, 4A003, 4D001, 4E001, 5A003, 6A005, 6A008, 6D003, 7D003, 9A004, 9B001, and 9E003.
- 88 FR 12108, February 24, 2023
Additional Sanctions on Russia, Belarus, and Iran
- Russia & Belarus: expands industry sector sanctions and luxury goods sanctions. Refines existing export controls on Russia and Belarus. (88 FR 12175, February 27, 2023)
- Iran: imposes license requirements for a subset of EAR99 items identified by HTS code that are destined to Iran, regardless of whether a U.S. person is involved in the transaction, due to potential use on Iranian Unmanned Aerial Vehicles (UAVs). The rule also adds a new foreign direct product (FDP) rule specific to Iran. (88 FR 12150, February 27, 2023)
Committee on Foreign Investment in the United States (CFIUS)
Excepted Foreign States and Excepted Real Estate Foreign States now include Australia, Canada, New Zealand, and the United Kingdom
- Refer to Treasury’s Part 800 and Part 802 lists, last updated February 13, 2023.
2023 Inflation Adjustments for Commerce, State, and OFAC Penalties
Department of State
- 127.10(a)(1)(i) change from $1,272,251 to the greater of $1,200,000 or the amount that is twice the value of the transaction that is the basis of the violation
- 127.10(a)(1)(ii) increase from $925,041 or five times the amount of the prohibited payment, whichever is greater to $996,685, or five times the amount of the prohibited payment, whichever is greater.
- 127.10(a)(1)(iii) increase from $1,101,061 to $1,186,338.
- 88 FR 1505, January 11, 2023
Department of Commerce
- International Emergency Economic Powers Act (2007) increase from $330,947 to $356,579
- Export Controls Act of 2018 (2018) increase from $328,121 to $353,534
- 88 FR 3, January 3, 2023
Office of Foreign Assets Control (OFAC)
- Trading With the Enemy Act increase from $97,529 to $105,083
- International Emergency Economic Powers Act (2007) increase from $330,947 to $356,579
- 88 FR 2229, January 13, 2023
As always, if you need more information or assistance in any of these areas, ECS is here to help!