16-0922 Thursday “The Daily Bugle”

16-0922 Thursday “Daily Bugle”

Thursday, 22 September 2016

TOPThe Daily Bugle is a free daily newsletter from Full Circle Compliance, containing changes to export/import regulations (ATF, Customs, NISPOM, EAR, FACR/OFAC, FTR/AES, HTSUS, and ITAR), plus news and events. Subscribe 
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  1. Ex/Im Items Scheduled for Publication in Future Federal Register Editions
  2. Commerce/Census: “Tips on How To Resolve AES Fatal Errors” 
  3. Commerce/BIS: (No new postings.) 
  4. State/DDTC: (No new postings.) 
  5. EU Amends Specific Restrictions on Economic and Financial Relations with Iraq 
  1. Expeditors News: “CBP Expands C-TPAT AQUA Program”
  1. Energy Voice: “Opinion: Caution Required for Doing Business in Iran” 
  2. N. Feldman: “If Printing Guns Is Legal, So Is Distributing the Plans” 
  3. P.E. Jeydel, E. Krauland & M. Rathbone: “‘Egregious’ Sale of Flower Seeds to Iran Shows No Sector is Immune from OFAC” 
  4. R.C. Burns: “Don’t Forget Croatia” 
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Latest Changes: ATF (15 Jan 2016), Customs (26 Aug 2016), DOD/NISPOM (18 May 2016), EAR (20 Sep 2016), FACR/OFAC (18 May 2016), FTR (15 May 2015), HTSUS (30 Aug 2016), ITAR (8 Sep 2016) 



[No items of interest noted today.]

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OGS_a11. Ex/Im Items Scheduled for Publication in Future Federal Register Editions
(Source: Federal Register)

* Defense Acquisition Regulations System; RULES; Defense Federal Acquisition Regulation Supplements [Publication Date: 23 September 2016.]:
  – New Designated Country – Moldova
  – Rights in Technical Data

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OGS_a52. Commerce/Census: “Tips on How To Resolve AES Fatal Errors”
(Source: census@subscriptions.census.gov, 22 Sep 2016)
When a shipment is filed to the AES, a system response message is generated and indicates whether the shipment has been accepted or rejected. If the shipment is accepted, the AES filer receives an Internal Transaction Number (ITN) as confirmation. However, if the shipment is rejected, a Fatal Error notification is received.
To help you resolve AES Fatal Errors, here are some tips on how to correct the most frequent errors that were generated in AES for this month.
* Fatal Error Response Code: 331
  – Narrative: Ultimate Consignee Country Unknown
  – Reason: The Ultimate Consignee Country code reported is not valid in AES.
  – Resolution: The Ultimate Consignee Country code must be a valid ISO Country code found in Appendix C – ISO Country Codes. Verify the Ultimate Consignee Country code, correct the shipment and resubmit.
* Fatal Error Response Code: 628
  – Narrative: 1st Unit of Measure Code / Schedule B/HTS Mismatch
  – Reason: The Unit of Measure (1) reported does not match the Unit of Measure (1) required for the Schedule B/ HTS Number reported.
  – Resolution: The Unit of Measure (1) must match exactly the Unit of Measure (1) prescribed by the Schedule B/HTS Number reported. See Appendix K – Units of Measure Codes.  Verify the Unit of Measure (1) required for the reported Schedule B/HTS Number, correct the shipment and resubmit.
For a complete list of Fatal Error Response Codes, their reasons, and resolutions, see Appendix A – Commodity Filing Response Messages.
It is important that AES filers correct Fatal Errors as soon as they are received in order to comply with the Foreign Trade Regulations. These errors must be corrected prior to export for shipments filed predeparture and as soon as possible for shipments filed postdeparture, but not later than five calendar days after departure.
For further information or questions, contact the U.S. Census Bureau’s Data Collection Branch.
  – Telephone: (800) 549-0595, select option 1 for AES.
  – Email: askaes@census.gov
  – Online: www.census.gov/trade
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OGS_a23. Commerce/BIS: (No new postings.)

(Source: Commerce/BIS)
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OGS_a34. State/DDTC: (No new postings.)

(Source: State/DDTC)
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OGS_a45. EU Amends Specific Restrictions on Economic and Financial Relations with Iraq

  – Commission Implementing Regulation (EU) 2016/1695 of 21 September 2016 amending Council Regulation (EC) No 1210/2003 concerning certain specific restrictions on economic and financial relations with Iraq
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On September 20, 2016 U.S. Customs and Border Protection (CBP) posted a document providing additional information on the expansion of the Advanced Qualified Unlading Approval (AQUA) program under Customs-Trade Partnership Against Terrorism (C-TPAT).
The AQUA Lane program allows for qualified sea carriers to expedite their clearance process by unlading goods immediately upon arrival to port. Sea Carriers must be in good standing in C-TPAT to qualify for AQUA Lane. Currently four ports are participating in the pilot program and include, Port Everglades, New Orleans, Baltimore, and Oakland.
Additional ports will be extended to include:
  – September 15, 2016 – Miami, Long Beach, Los Angeles, Newark, Savannah, and Seattle/Tacoma
  – December 15, 2016 – Charleston, Houston, Jacksonville, Honolulu, Norfolk, Philadelphia, Wilmington (DE), Wilmington (NC), Boston, and San Juan

The BP document can be accessed here.
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As Iran’s natural resources markets newly open to foreign participation, international oil, gas, and mining companies are considering whether and how to participate. In particular, those in the exploration and production services sectors, especially those experienced in applying advanced technologies to extracting natural resources, are eager to find their way into this new market.
However, non-U.S. companies must be cautious, as U.S. sanctions may still apply to operations, especially the use of exploration equipment containing U.S.-origin components.
The Joint Comprehensive Plan of Action that went into force in January 2016 ended much of the international sanctions against Iran for non-U.S. companies. In particular, non-U.S. companies can now begin participating in the natural resources sector as long these companies do not engage in business with a limited number of Iranian entities specifically sanctioned by the UN, EU, U.S. or others. Engaging with such listed entities still can carry legal and/or financial repercussions. However, careful due diligence can be applied to manage this risk.
Conversely, a major issue being overlooked by those entering the Iranian natural resource space is the regulations that apply to equipment containing U.S.-origin technology. The U.S. Export Administration Regulations control the export of U.S.-origin technology. This includes U.S.-origin technology that is integrated into an item manufactured outside of the United States, if the amount of incorporated technology exceeds a certain threshold.
For example, the export of German-made drilling equipment to Australia is covered by U.S. export control regulations if there is more than 25% U.S. origin technology integrated into the equipment. Depending on the type of technology and the destination, the exporter may need to apply to the U.S. Commerce Department for an export license. For a good deal of basic technology, classified as EAR99, no licenses are needed.
In the case of Iran, Syria, and North Korea, though, the threshold is 10% and applies to all technology, no matter the level of sophistication. Exports of such items are prohibited without an export license and obtaining such a license is difficult. Depending on the extent of a violation, penalties for exporting U.S.-origin technology can include denial of export privileges, fines, and listing on various U.S. government blacklists, which makes engaging in international commerce incredibly challenging.
For example, Robbins & Myers Belgium SA, the Belgian-subsidiary of U.S.-based Robbins & Myers Inc., paid $1.6 million in criminal and civil fines for illegally exporting stators made from U.S.-origin steel to Syria for use in oil extraction equipment, as well as attempting to hide this activity from its parent company.
As companies consider how to enter the Iranian market, as well as where to deploy their equipment, they must take extra precautions to understand the export control rules that may apply to their equipment and activity.

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COMM_a28. N. Feldman: “If Printing Guns Is Legal, So Is Distributing the Plans”
Bloomberg View
* Author: Noah Feldman,
, Professor of Constitutional and International Law, Harvard University. Mr. Feldman was a clerk to U.S. Supreme Court Justice David Souter.
Can the government block the online publication of files that let anyone make an assault rifle on a 3-D printer? In a defeat for free speech and a win for gun-control advocates, an appeals court has said yes. The court declined to suspend a State Department regulation that treats posting the files as a foreign export of munitions. Although the impulse to block the easy creation of untraceable weapons is admirable, the court got it wrong. The First Amendment can’t tolerate a prohibition on publishing unclassified information — even if the information is potentially harmful.
Defense Distributed is a non-profit group devoted to “promoting popular access to arms guaranteed by the United States Constitution.” It wants to distribute free online the computer-aided design and text files that would enable anyone with access to a 3-D printer or a computerized mill to make the crucial component of an AR-15 rifle, the semi-automatic version of the military’s M16.
It’s not a fantasy. Defense Distributed has already given away files that allow a user to print a single-shot pistol called the Liberator. And the
lower receiver
of an AR-15 — the indispensable, regulated part of the gun that bears its serial number — can be made totally functional in plastic. Thus, the CAD files would allow anyone with a 3-D printer to make an untraceable AR-15.   It’s legal right now for Americans to 3-D print weapons, including the AR-15. And it would almost certainly be legal for Defense Distributed to hand out its files to Americans within the U.S.  But the organization wants to post the files online for easier distribution.
That brought the attention of the State Department, which is in charge of regulating U.S. arms sales abroad under the
Arms Export Control Act
.  The department says the files are technical data relating to items on the U.S. Munitions List, which cannot be “exported” abroad in the form of online posting without the department’s approval.  
Defense Distributed sued, joined by the Second Amendment Foundation. It asked a federal district court to issue a preliminary injunction that would bar the State Department from enforcing its regulations against the posting of the files.  In essence, the gun-rights advocates say that the State Department regulations amount to what’s called a “prior restraint” on speech — a ban on talking before you’ve even said anything. Prior restraints are profoundly disfavored in First Amendment law as a barrier to the free flow of ideas.  The district court refused to issue the injunction — and on Tuesday a divided panel of the U.S. Court of Appeals for the 5th Circuit
issued an opinion
 upholding the district court’s decision.
The appeals court’s reasoning was basically that, at the preliminary injunction stage, a court needs to weigh the potential irreparable harm to the party seeking the injunction against the public interest on the other side. The panel concluded that the district court didn’t abuse its discretion in concluding that the State Department’s public interest in avoiding the export of technology for untraceable weapons is more important than the free-speech rights of Defense Distributed.  The court acknowledges that denial of First Amendment rights is usually such an important interest that it would trump almost any other. But it said “that is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.”
Weighing the relative interests, the panel then said that if Defense Distributed eventually wins its case, it will be able to post the files online having suffered only the temporary harm of delay. But it said the government’s interest in preventing publication before an eventual judicial decision is greater, because once the files are available online, the cat can’t be put back in the bag — the information will be out there.  That sounds superficially convincing. But it really isn’t.  It’s totally unreasonable that information that could be made legally available within the U.S. to American citizens can’t be posted online because it counts as an “export” for purposes of regulation. Even if that were the meaning of the State Department regulation, it would violate the First Amendment as a content-based regulation on speech.
The government is allowed to prohibit speech on the basis of content only when there is a compelling government interest and the law is narrowly tailored to achieve it. Conceivably there might be a compelling interest in prohibiting the publication of some technical information that allows the creation of weapons, such as a recipe for building a nuclear bomb. But plenty of information about building serious weapons already exists in the world — weapons as dangerous as an unregistered and untraceable AR-15.
What’s more, Congress in its wisdom hasn’t prohibited Americans from making their own AR-15 parts at home. The fact that the conduct is legal is an overwhelming reason to conclude that directions on how to do it can’t be prohibited without violating freedom of speech.  Judge Edith Jones said as much in dissent. I don’t agree with Jones, a Ronald Reagan appointee, that often, but when you’re right, you’re right. She pointed out that the panel never squarely addressed the question of Defense Distributed’s likelihood of success on the merits in upcoming litigation.
When free-speech rights are in the balance, a long delay in publication is as good as the denial of the First Amendment. Defense Distributed has already been prohibited from speaking for three years.
To be sure, I don’t like what Defense Distributed is planning to say. Giving out the recipe for making untraceable weapons can’t be good for the world. But not every potential wrong can be repaired by invoking national security and suppressing speech — not so long as we have the First Amendment.

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COMM_a39. P.E. Jeydel, E. Krauland & M. Rathbone: “‘Egregious’ Sale of Flower Seeds to Iran Shows No Sector is Immune from OFAC”
* Authors: Peter E. Jeydel, Esq., pjeydel@steptoe.com, 202-429-6291; Ed Krauland, Esq., ekrauland@steptoe.com, 202-429-8083; and Meredith Rathbone, Esq, mrathbone@steptoe.com, 202-429-6437. All of Steptoe & Johnson LLP.
On September 13, 2016, the Treasury Department’s Office of Foreign Assets Control (OFAC) reached a $4,320,000 civil settlement with PanAmerican Seed Company (PanAm Seed), an Illinois-based division of Ball Horticultural Company, for alleged violations of the Iranian Transactions and Sanctions Regulations (ITSR) that occurred between 2009 and 2012.  Remarkably, OFAC treated this as an “egregious case,” which may raise eyebrows at first glance since it only involved the export of seeds, primarily for flowers, which is not a focus of US national security concerns related to Iran.  In fact, OFAC says that it likely would have granted licenses for these shipments had the company applied for them.  What this case shows is that the process of resolving a case with OFAC is a factor to keep top of mind that can impact the settlement, along with the agency’s assessment of the underlying conduct itself.  Companies operating in less sensitive fields such as agriculture, food, and medicine should not discount the importance of maintaining a sanctions compliance program and responding prudently to any inquiries from OFAC.
OFAC alleged that PanAm Seed violated § 560.204 of the ITSR by indirectly exporting seeds to Iran on 48 occasions through third parties in Europe and the Middle East.  Section 560.204 prohibits exports to third countries when done with knowledge or reason to know that the goods are “intended specifically” for Iran.  In discussing the settlement, OFAC noted that the company did not voluntarily disclose the underlying infractions, and characterized the parent company as a “commercially sophisticated, international corporation,” for which expectations of compliance and a compliance program are higher.  These factors no doubt contributed to the higher penalty amount.
But what is more significant is that OFAC stated that mid-level managers at PanAm Seed and its parent company were allegedly aware of the OFAC licensing requirement for shipments to Iran, but sought to conceal that the ultimate destination was known to be Iran.  Notably, according to OFAC, the company even continued these sales to Iran for nearly eight months after its Director of Finance learned about OFAC’s investigation.  Moreover, the resolution by OFAC appears to have been influenced by what was viewed as less than full cooperation in resolving the matter with OFAC.  For example, some of the information PanAm Seed provided in the course of the investigation was “inaccurate, misleading, or incomplete” in OFAC’s view.
An important take-away from this case is a reminder that not only must one be prepared to deal with the underlying substance of the alleged violations when dealing with OFAC to settle a case, but the manner in which a company responds when it detects violations and engages with OFAC to settle the matter are critical to a successful resolution.  The manner in which OFAC characterized this settlement serves as a lesson about the importance of responding in the right way when OFAC knocks on the door. 

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R.C. Burns: “Don’t Forget Croatia”

Export Law Blog
. Reprinted by permission.)
* Author: R. Clifton Burns, Esq., Bryan Cave LLP, Wash DC, 202-624-3949,
Yesterday, the Bureau of Industry and Security (“BIS”) announced various amendments to the encryption rules. I realize that the encryption rules are a sprawling mess, scattered through various sections of the EAR and written in an incomprehensible jargon that sounds like they were translated into English from a Vulcan paraphrase of the original Sanskrit. I also realize that your eyes understandably glazed over when you saw the word “encryption.” So I’ll try to make this as painless and entertaining as possible.
Let’s start with the really big news. Croatia has been added to the list of Supplement 3 Countries! Woohoo! For those of you aren’t really excited about this, that is probably because you forgot that if you are not a Supp. 3 country, there is a 30-day waiting period after a review request has been filed before encryption items described in 740.17(b)(2) and (b)(3) such as source code and high-performance network equipment can be exported to that country. And if those items were going to government end users in  country not on the Supp. 3 list, a license was required. So, today was declared a national holiday in Croatia and papier-mâché effigies of key BIS officials were draped with garlands and paraded through town squares across the country.
While we’re on the subject of government end users, the amendments create a new kind of government end user – “less sensitive government end users.” These are government agencies that are the toughest of their kind and at which you can hurl the most frightening insults – say, “you cabal of pointy-headed bureaucrats!” – without hurting their feelings. No, I’m just kidding with you. “Less sensitive government end users” are government agencies that are less likely to use encryption for evil purposes, like museums, water treatment plants and census bureaus.
The reason for identifying “less sensitive government end users” is that high performance network infrastructure equipment used to require a license to go to any government on the Naughty List (i.e., not on the Supp. 3 Nice list). Now these items can be exported 30-days after a review request is filed provided that it’s a less sensitive government end user.
The best news I’ve saved for last.  No more encryption registration numbers!  For the 50 or so companies out there who still don’t have an ERN, you’re off the hook.  Annual self-classification reports will still have to be filed; and the new format for the report, which is detailed in an amended Supplement 8 to Part 742, incorporates some of the information that used to be required by the ERN application.
For a summary of the remaining changes, including a long-needed update of the performance parameters for high performance network infrastructure equipment subject to higher encryption controls, you can read this excellent summary, which is mostly clear and more or less written in English, helpfully provided by the nice people at BIS.

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(Source: Editor)


Notable birthdays:


* Philip Stanhope, 4th Earl of Chesterfield (Philip Dormer Stanhope, 4th Earl of Chesterfield KG PC (22 September 1694 – 24 March 1773) was a British statesman, and a man of letters, and wit.)
  – “Whoever is in a hurry shows that the thing he is about is too big for him.”
* Michael Faraday (22 Sep 1791 – 25 Aug 1867, was an English scientist who contributed to the study of electromagnetism and electrochemistry.)
  – “The lecturer should give the audience full reason to believe that all his powers have been exerted for their pleasure and instruction.”

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12. Are Your Copies of Regulations Up to Date? 

(Source: Editor)

The official versions of the following regulations are published annually in the U.S. Code of Federal Regulations (C.F.R.), but are updated as amended in the Federal Register.  Changes to applicable regulations are listed below.
: 27 CFR Part 447-Importation of Arms, Ammunition, and Implements of War
  – Last Amendment: 15 Jan 2016: 81 FR 2657-2723: Machineguns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a Firearm  
: 19 CFR, Ch. 1, Pts. 0-199
  – Last Amendment: 26 Aug 2016: 81 FR 58831-58834: Administrative Exemption on Value Increased for Certain Articles  

  – Last Amendment: 18 May 2016: Change 2: Implement an insider threat program; reporting requirements for Cleared Defense Contractors; alignment with Federal standards for classified information systems; incorporated and canceled Supp. 1 to the NISPOM  (Summary here.)

  – Last Amendment: 20 Sep 2016: 81 FR 64693-64698: Revisions to the Entity List; and 81 FR 64655-64692: Wassenaar Arrangement 2015 Plenary Agreements Implementation, Removal of Foreign National Review Requirements, and Information Security Updates  

: 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders
  – Last Amendment: 18 May 2016: 81 FR 31169-31171: Burmese Sanctions Regulations 
: 15 CFR Part 30
  – Last Amendment: 15 May 2015; 80 FR 27853-27854: Foreign Trade Regulations (FTR): Reinstatement of Exemptions Related to Temporary Exports, Carnets, and Shipments Under a Temporary Import Bond 
  – HTS codes that are not valid for AES are available
  – The latest edition (9 May 2016) of Bartlett’s Annotated FTR (“BAFTR”), by James E. Bartlett III, is available for downloading in Word format. The BAFTR contains all FTR amendments, FTR Letters and Notices, a large Index, and footnotes containing case annotations, practice tips, and Census/AES guidance.  Subscribers receive revised copies every time the FTR is amended.  The BAFTR is available by annual subscription from the Full Circle Compliance website.  BITAR subscribers are entitled to a 25% discount on subscriptions to the BAFTR, please contact us to receive your discount code. 
, 1 Jul 2016: 19 USC 1202 Annex.  (“HTS” and “HTSA” are often seen as abbreviations for the Harmonized Tariff Schedule of the United States Annotated, shortened versions of “HTSUSA”.)
  – Last Amendment: 30 Aug 2016; Harmonized System Update (HSU) 1612, containing 4,692 ABI records and 935 harmonized tariff records.   
  – HTS codes for AES are available
  – HTS codes that are not valid for AES are available

22 C.F.R. Ch. I, Subch. M, Pts. 120-130 (Caution — The ITAR as posted on GPO’s eCFR website and linked on the DDTC often takes several weeks to update the latest amendments.)

  – Latest Amendment: 8 Sep 2016;
81 FR 62004-62008
: 22 CFR Parts 120, 125, 126, and 130; Public Notice: 9672; RIN: 1400-AD70; International Traffic in Arms: Revisions to Definition of Export and Related Definitions 

  – The only available fully updated copy (latest edition 8 Sep 2016) of the ITAR with all amendments is contained in Bartlett’s Annotated ITAR (“BITAR”), by James E. Bartlett III.  The BITAR contains all ITAR amendments to date, plus a large Index and over 700 footnotes containing case annotations, practice tips, DDTC guidance, and explanations of errors in the official ITAR text.  Subscribers receive updated copies of the BITAR in Word by email, usually revised within 24 hours after every ITAR amendment.  The BITAR is
the essential tool of the ITAR professional.  The BITAR is available by annual subscription from the Full Circle Compliance
website.  BAFTR subscribers receive a 25% discount on subscriptions to the BITAR, please
contact us to receive your discount code.  

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* The Ex/Im Daily Update is a publication of FCC Advisory B.V., edited by James E. Bartlett III and Alexander Bosch, and emailed every business day to approximately 7,500 subscribers to inform readers of changes to defense and high-tech trade laws and regulations. We check the following sources daily: Federal Register, Congressional Record, Commerce/AES, Commerce/BIS, DHS/CBP, DOJ/ATF, DoD/DSS, DoD/DTSA, 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.

* INTERNET ACCESS AND BACK ISSUES: The National Defense Industrial Association (“NDIA”) posts the Daily Update on line, and maintains back issues since August, 2009 here.

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