The U.S. Department of State (State Department) and U.S. Department of Commerce (Commerce Department), have recently previewed, proposed or finalized changes to relevant trade controls. These new regulatory updates include amendments to the defense trade controls, updated guidance on the provision of defense services by U.S. persons abroad (USPAB), increases to the State Department’s civil monetary penalties, and legislative amendments that expand the Commerce Department’s authority to issue military end use controls under the Export Administration Regulations (EAR).
The State Department recently published its Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions, which previews the agency’s regulatory agenda and expected new rulemaking. The State Department’s Directorate of Defense Trade Controls (DDTC) administers the International Traffic in Arms Regulations (ITAR), which controls defense articles and services identified on the U.S. Munitions List (USML). Within the agenda, the State Department previewed several planned amendments and revisions to the USML, including:
The State Department will propose an amendment to the ITAR that would update the definition of “regular employee” currently defined under ITAR Section 120.64. The revised definition would allow subject persons to work remotely and clarify the contractual relationships that meet the definition of regular employee.
The current definition of regular employee includes an individual who is (i) permanently and directly employed by the company, or (ii) a long-term contractor subject to the control of a company and who works full-time and exclusively at a company facility. This change follows the DDTC’s proposed rule published in May 2021 that would permanently allow employees involved in certain ITAR activity to work remotely and still be considered regular employees, which received industry support. However, public comments reflected disappointment that the definition did not sufficiently address short-term contractual employees.
The adjusted definition is a response to the remote work environment resulting from the COVID-19 pandemic, which has shaped new work conditions and flexibility of physical location of employees for many companies that operate in the defense space. The regulatory revision would allow certain personnel operating under technical assistance agreements (TAAs), license agreements or other exemptions to continue those services while working remotely. However, companies could face compliance challenges as they update compliance procedures to ensure adequate controls on remote employees’ access to and handling of ITAR technical data.
As this is just the announcement of the regulatory agenda, none of the specific details have yet been released. For the new items on the docket, a proposed rule, or an interim final rule, is expected to be published in the Federal Register to provide industry with the opportunity for public comment during an allotted period. For items already in progress, such as the telework rule that has already gone through the proposed rule and comment process, a final rule is expected for publication in the Federal Register.
On January 5, 2023, DDTC published updated website guidance on the authorization of defense services by USPAB. Updates include:
Notably, the updated DDTC FAQs reinforced that:
DDTC also clarified that USPAB authorizations do not always provide authorization for the USPAB in question to telework, and that those case-by-case assessments depend on the residency status and physical location of the person while teleworking. Additionally, authorizations do not cover scenarios where a USPAB travels to the U.S. for “a technical meeting or a trade show” and provides defense service to a foreign person while physically in the U.S., which DDTC noted as a scenario that would require a separate authorization.
On January 11, 2023, the State Department published a final rule that increases the civil monetary penalties within Section 127.10 of the ITAR.
Section 9708 of the National Defense Authorization Act for Fiscal Year (NDAA) for Fiscal Year 2023 (Pub. L. 117-263) amended Section 38 of the Arms Export Control Act (AECA), which is the statutory authority for the ITAR. The new maximum civil penalty for ITAR violations is now the greater of $1.2 million or twice the value of the transaction that is the basis of the violation with respect to which the penalty is imposed. The new statutory amounts only apply to penalties assessed for violations occurring on or after December 27, 2022. Criminal penalties remain the same, and an individual can be fined for each violation not more than $1 million, imprisoned not more than 20 years or both (22 U.S.C. § 2778(c)).
The amendment is in line with the trend of increased penalties across agencies to keep up with inflation under the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134). On January 3, 2023, the Commerce Department increased its civil monetary penalty under the Export Control Reform Act of 2018 (ECRA) for inflation, making the new maximum penalty $353,534. On January 13, 2023, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) increased its civil monetary penalty for inflation under the International Emergency Economic Powers Act (IEEAP) (50 U.S.C. 1701-1706, at 1705) for 2023 to $356,579.
Section 5589 of the NDAA (Pub. L. 117-263) amended Section 4812 of ECRA to expand the authority of the Commerce Department’s Bureau of Industry and Security (BIS) to regulate U.S. person activities related to foreign military, security or intelligence services. Previously, ECRA provided BIS with authority to regulate activities related to foreign military intelligence services, but not those related to military or security services more broadly.
Importantly, controls adopted by BIS pursuant to this authority apply regardless of where U.S. persons are located and even when commodities, software or technology subject to the EAR are not involved. This authority is currently implemented in Section 744.6 of the EAR, which restricts U.S. persons’ activities with respect to nuclear proliferation; military intelligence in Belarus, Burma, Cambodia, the People's Republic of China, Russia, Venezuela, or a country listed in Country Groups E:1 or E:2; and, most recently, certain advanced chip production activities in China.
The amendment allows the U.S. government to further regulate the provision of defense-related services by U.S. persons, even where those services do not involve defense articles or other tactical training or support, which are currently captured by the ITAR. However, it remains to be seen how BIS will choose to implement this new authority: targeting just the arms embargoed countries in Group D:5 or subject to the Military End User Rule (15 CFR § 744.21); focusing on issues related to 600-series items and other more sensitive controlled items; or something broader.
If you have any questions about any of the highlighted changes or implications for your business, or on any general international trade and compliance matters, please contact the authors of this alert.