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16-1107 Monday “The Daily Bugle”

16-1107 Monday “Daily Bugle”

Monday, 7 November 2016

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  1. Commerce/BIS Seeks Comments on Voluntary Self-Disclosure of Antiboycott Violations 
  2. President Continues National Emergency With Respect to Iran 
  1. Ex/Im Items Scheduled for Publication in Future Federal Register Editions 
  2. Commerce/BIS: (No new postings.) 
  3. DoD/DSCA Posts SAMM and Policy Memoranda, Week 6-12 Nov 
  4. Justice: “Two Pakistani Nationals Sentenced for Conspiring to Illegally Ship Pharmaceuticals into the United States” 
  5. State/DDTC: (No new postings.) 
  6. U.S. District Court Grants Protective Order re Production of Documents Subject to Export Controls 
  1. ST&R Trade Report: “Export Control Reform Will be Ongoing Process, BIS Official Says” 
  1. C.B. Stagg: “DDTC Issues Conflicting Guidance Concerning Firearms and Congressional Notification” 
  2. F.A.I.R. Trade Group: “State Department Policy is to Apply $1 Million Congressional Notification Trigger to Certain Firearm Parts & Accessories” 
  3. Gary Stanley’s ECR Tip of the Day 
  1. ECTI Presents Export Compliance in Australia: What U.S. Companies Need to Know about Export Controls in Australia Webinar, 29 Nov 
  1. Thao Huynh Moves to Raytheon 
  2. Monday List of Ex/Im Job Openings: 105 Jobs Posted 
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Latest Changes: ATF (15 Jan 2016), Customs (28 Oct 2016), DOD/NISPOM (18 May 2016), EAR (4 Nov 2016), FACR/OFAC (4 Nov 2016), FTR (15 May 2015), HTSUS (30 Aug 2016), ITAR (12 Oct 2016) 

EXIMEX/IM ITEMS FROM TODAY’S FEDERAL REGISTER

EXIM_a11. Commerce/BIS Seeks Comments on Voluntary Self-Disclosure of Antiboycott Violations

 
81 FR 78110: Proposed Information Collection; Comment Request; Voluntary Self-Disclosure of Antiboycott Violations
* AGENCY: Bureau of Industry and Security, Department of Commerce.
* ACTION: Notice. …
* DATES: Written comments must be submitted on or before January 6, 2017.
* ADDRESSES: Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at JJessup@doc.gov).
* FOR FURTHER INFORMATION CONTACT: Mark Crace, BIS ICB Liaison, (202) 482-8093, Mark.Crace@bis.doc.gov.
* SUPPLEMENTARY INFORMATION: …
  – Abstract: This collection of information supports enforcement of the Antiboycott provisions of the Export Administration Regulations (EAR) by providing a method for industry to voluntarily self-disclose Antiboycott violations. …
  – OMB Control Number: 0694-0132.
  – Form Number(s): N/A. …
 
Sheleen Dumas, PRA Departmental Lead, Office of the Chief Information Officer.
* * * * * * * * * * * * * * * * * * * *

EXIM_a22. President Continues National Emergency With Respect to Iran

(Source: Federal Register) [Excerpts.]
 
81 FR 78495: Continuation of the National Emergency With Respect to Iran
 
On November 14, 1979, by Executive Order 12170, the President declared a national emergency with respect to Iran and, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701-1706), took related steps to deal with the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States constituted by the situation in Iran. Our relations with Iran have not yet returned to normal, and the process of implementing the agreements with Iran, dated January 19, 1981, is still under way. For this reason, the national emergency declared on November 14, 1979, must continue in effect beyond November 14, 2016. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency with respect to Iran declared in Executive Order 12170.
 
(Presidential Sig.)
THE WHITE HOUSE,
November 3, 2016.
* * * * * * * * * * * * * * * * * * * *

OGSOTHER GOVERNMENT SOURCES

OGS_a13. Ex/Im Items Scheduled for Publication in Future Federal Register Editions
(Source: Federal Register)


[No items of interest noted today.]   
* * * * * * * * * * * * * * * * * * * *

* * * * * * * * * * * * * * * * * * * *

 
   – This memo updates Chapter 3 – Technology Transfer and Disclosure to establish a process to initiate Technology Security and Foreign Disclosure (TSFD) processes in the absence of an LOR and accelerate, when possible, the release of U.S. technologies
* * * * * * * * * * * * * * * * * * * *

OGS_a4

6. Justice: “Two Pakistani Nationals Sentenced for Conspiring to Illegally Ship 
Pharmaceuticals into the United States”

(Source: Justice) [Excerpts.]
 
Two Pakistani nationals, who have been held in continuous custody since their October 2012 arrest in London, have been sentenced by Chief Judge Beryl A. Howell of the U.S. District Court in the District of Columbia, after pleading guilty to charges related to their operation of Internet sites that illegally shipped pharmaceuticals from Pakistan and the United Kingdom to customers in the United States, the Department of Justice announced.
 
Sheikh Waseem Ul Haq and Tahir Saeed operated Internet sites that, from late 2005 until October 2012, illegally shipped $2 million of pharmaceuticals from Pakistan and the United Kingdom to customers worldwide, including nearly $780,000 in sales to U.S. purchasers.  . . . .
* * * * * * * * * * * * * * * * * * * *

OGS_a57. State/DDTC: (No new postings.)

(Source: State/DDTC)

* * * * * * * * * * * * * * * * * * * *

OGS_a68. U.S. District Court Grants Protective Order re Production of Documents Subject to Export Controls

(Source: 2016 U.S. Dist. LEXIS 153665)
 
* Case:
Ponzio v. 3m Co., 2016 U.S. Dist. LEXIS 153665 (Case No. 2: 16-CV-3521-JFW (KSx))

* Parties: Joseph Ponzio, Jr. and Barbara Ponzio, Plaintiffs, vs. 3M Company, BASF Corp,, The Boeing Company, Hexcel Corp., IMO Industries Inc., Shell Oil Company, United Technologies Corp., and Wyeth Holdings Corp., Defendants.
* Court: U.S. District Court for the Central District of California
* Dates: 28 Oct 2016 (Decided); 28 Oct 2016 (Filed) 
* Judges: Karen L. Stevenson, United States Magistrate Judge. 
*
Opinion by: Karen L. Stevenson
* Excerpts of Opinion:

 
STIPULATED PROTECTIVE ORDER BETWEEN PLAINTIFFS AND DEFENDANT THE BOEING COMPANY REGARDING CONFIDENTIAL AND EXPORT-CONTROLLED MATERIALS
 
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on Plaintiffs’ and Defendant The Boeing Company’s (the “parties”) Stipulation Regarding Confidential and Export-Controlled Materials (“Stipulation”) filed on October 26, 2016 and their subsequent showing of good cause, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been modified by the Court’s amendment of paragraphs titled “Purposes and Limitations,”
“Good Cause Statement,” and numbered 1, 2, 3, 4, 11, 12, 13, 14, 17, 19, and 24 of, and Exhibit A to, the Stipulation.
 
AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND MODIFIED BY THE COURT
 
PURPOSES AND LIMITATIONS
 
Counsel for the Plaintiffs and for The Boeing Company (“Boeing”), have meet and conferred over the last several weeks regarding production of documents by Boeing to the Plaintiffs, which are agreed by all parties to be relevant and responsive to discovery in this matter. It has been represented by Boeing and the parties agree that some of the responsive documents fall within categories which require them to be subject to a protective order. The parties acknowledge that this Order does not It confer blanket protections on all disclosures or responses to discovery, and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The burden of establishing that documents and/or materials have been properly designated as [*4] “CONFIDENTIAL” shall be upon the Designating Party at all times.
 
GOOD CAUSE STATEMENT
 
This action involves production of documents and discussions of trade secrets, research and development and/or proprietary information for which special protection from public disclosure is warranted and for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted. In addition, Boeing asserts that some of the responsive documents in this matter fall within the protections of the export-and import-control laws and regulations of the United States, including, but not limited to, the U.S. Arms Export Control Act, as amended, 22 U.S.C. §§ 2751-2799, the International Traffic In Arms Regulations (“ITAR”), as amended, 22 C.F.R. §§ 120-130), the Export Administration Act, as amended, 50 U.S.C. §§ 2401-2420, and/or the U.S. Export Administration Regulations, as amended, 15 C.F.R. §§ 730, et seq. (collectively, “U.S. Export Control Laws”).
 
Specifically, ITAR regulations control the export and import of defense-related articles and services on the United States Munitions List (“USML”). The Department of State Directorate of Defense Trade Controls (“DDTC”) interprets and enforces ITAR, and its goal is to safeguard U.S. national [*5] security and further U.S. foreign policy objectives. ITAR regulations dictate that information and material pertaining to defense and military-related technologies (for items listed on the U.S. Munitions List) may only be shared with U.S. Persons unless authorization from the Department of State is received or a special exemption is used. Corporations such as Boeing can face heavy fines if they have, intentionally or not, provided non-U.S. persons with access to ITAR-protected defense articles, services or technical data. Prior to disclosure, documents subject to U.S. Export Control Laws must be stamped to indicate that the materials are subject to export control laws. Any access to the documents must be restricted to ensure that sensitive information is not disclosed in violation of U.S. Export Control Laws. Violation of these statutes will subject Boeing to draconian fines and other potential penalties.1
 
Because of the national security interests and the potential for severe criminal and civil penalties, there is a clear showing of a particular and specific need for the protective order. Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975).  In similar circumstances, courts have found good cause for protective orders in cases involving documents and information deemed confidential under U.S. Export Control Laws. See, e.g., Ross-Hime Designs, Inc. v. United States., 109 Fed. Cl. 725, 744-46 (2013) (structure descriptions, drawings, and photographs requiring an export license pursuant to the Export Administration Regulations were within the scope of restricted information covered by a protective order); United States v. Int’l Bus. Machs. Corp., 461 F. Supp. 732 (S.D.N.Y. 1978) (protective order issued for defense exhibits, including applications and licenses deemed confidential pursuant to the Export Administration Act).)
 
These export control requirements make it imperative that documents produced in discovery are handled in such a way so that violation of the various controls on dissemination of the information are not [*7] violated. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information which the parties are required to keep confidential under the laws of the United States, while ensuring the parties are permitted reasonable and necessary uses of such material in preparation for and in the conduct of trial, and to serve the ends of justice, a protective order for such information is justified in this matter. 
 
Information will not be designated as confidential for tactical reasons and that nothing shall be so designated without a good faith belief that it has been maintained in a confidential non-public manner and there is good cause why it should not be part of the public record of this case:
 
  (1) The following shall apply to information, documents, testimony, and excerpts from documents and other materials produced in this action by certain Defendants pursuant to the Federal Rules of Civil Procedure and the Local Civil Rules of the Central District of California governing disclosure and discovery.
  (2) Information, testimony, documents and other materials produced pursuant to FRCP 26 and any discovery requests and/or responses in this matter, may be designated (“Designated Material” or “Protected Material”) by any of the parties to this lawsuit (“Designating Party(ies)”) in the manner permitted as set forth in this order. All such information, testimony, documents, excerpts from documents, and other materials produced in this matter will constitute “Designated Material” under this Order. The designations shall be (a) “CONFIDENTIAL”; (b) “SENSITIVE-SUBJECT TO EXPORT CONTROL-U.S. Arms Export Act, International Traffic In Arms Regulations, Export Administration Act, U.S. Export Administration Regulations,” (hereinafter: “Export-Controlled”); and/or, (c) “Limited Distribution;” and/or (d) “Proprietary.”  …

* * * * * * * * * * * * * * * * * * * *

NWSNEWS

NWS_a19. ST&R Trade Report: “Export Control Reform Will be Ongoing Process, BIS Official Says”
 
Although most of the initial regulatory revisions associated with the export control reform initiative have been completed, ECR “will never really end” because its objectives “are now baked into the system.” That was the message to attendees at the Bureau of Industry and Security’s recent Update Conference in Washington, D.C., from Assistant Secretary of Commerce for Export Administration Kevin Wolf, who asserted that ECR “has helped produce a more reliable, predictable, and transparent structure that benefits all of us.”
 
A review early in the Obama administration concluded that the U.S. export control system was overly complicated, contained too many redundancies, and, in trying to protect too much, diminished the United States’ ability to focus its efforts on the most critical national security priorities. ECR was subsequently launched to address these problems by first reconciling various export control definitions, regulations, and policies and then ultimately creating a single control list, single licensing agency, unified information technology system, and enforcement coordination center. To date hundreds of items have been moved from the U.S. Munitions List to the Commerce Control List, revising the licensing policies for these items and allowing for streamlined exports for ultimate government end-use to 36 U.S. allies and most countries that are members of all four multilateral export control regimes.
 
However, Wolf said that ECR will not end when these changes are complete and instead will be an ongoing process. Agencies will continue to identify, as precisely as possible, those items providing a significant military or intelligence capability and thus warranting control on the USML, he said, with all other military and controlled dual-use items on the CCL. Agencies will also continue to review and adjust the controls to ensure they are clear, do not inadvertently control on the USML items in normal commercial use, and account for technological developments.
 
In addition, notices of inquiry asking for ideas on how to improve the categories and the rules will be published on a regular basis. Wolf said BIS will be particularly looking to (1) find and fix actual mistakes, (2) describe particular provisions more clearly if it is apparent, based on their application since being published, that they could be written better, (3) increase controls based on new threats or emerging technologies of concern, and (4) decrease controls based on, for example, increased commercialization of less sensitive items. BIS is also willing to work with exporters and reexporters to see if licenses for specific programs or topics can be streamlined to reduce the burden for companies and the government.
* * * * * * * * * * * * * * * * * * * *

COMMCOMMENTARY

COMM_a110. C.B. Stagg: “DDTC Issues Conflicting Guidance Concerning Firearms and Congressional Notification”

(Source: Stagg P.C., Nov. 7, 2016; chris@staggpc.com. Reprinted by permission.)
 
* Author: Christopher B. Stagg, Esq., chris@staggpc.com, 212-518-4854; Stagg P.C.
 
A trade group recently requested that the Directorate of Defense Trade Controls clarify informal guidance and licensing provisos some of its members have received. In particular, the request pertains to Congressional notification requirements involving firearms under the Arms Export Control Act. The trade group noted that the notification requirement only involves actual firearms identified within Category I paragraphs (a) through (d) of the U.S. Munitions List, and not paragraphs (e) through (g) involving items such as barrels and receivers. Yet, it has been learned that DDTC is nevertheless notifying items within paragraphs (e) through (g).
 
In support of its position, the trade group cited a regulatory interpretation within Category I and a DDTC guidance document. Both of these sources address the issue consistently, directly, and unambiguously. But DDTC rejected the trade group’s arguments. In its response, DDTC argues that the word “firearm” is not defined by the statute, and therefore it is free to define its meaning. DDTC then discusses how, in the absence of a statutory definition, it can also consider the “overall objective of the reporting requirement” when determining its meaning. Thus, DDTC states it is reasonable for it to interpret “firearm” to include the items contained within paragraphs (e) through (g) of Category I. Moreover, DDTC distanced itself from its regulations by stating that they do not apply to the statute.
 
Here is where DDTC’s analysis goes awry. As DDTC recently explained in another advisory opinion response involving registration requirements for gunsmithing, when a word is not defined within a statute (such as “manufacturer” or “firearm”) then its common and ordinary meaning is applied. This meaning is derived from its usage in dictionaries. As it relates to “firearm,” dictionaries are all in common agreement that it means a rifle or pistol that is intended to fire a projectile. Conspicuously absent from that common definition are the components that make up a firearm, such as a barrel or receiver. Thus, DDTC’s statement over the lack of a “precise statutory definition” is a red-herring because the law does apply it a definition: the common and ordinary meaning. FDIC v. Meyer, 510 U.S. 471, 476 (1994). As such, DDTC’s newly-revealed conflicting and informal definition of a “firearm” does not conform to its common and ordinary meaning.
 
DDTC also fares no better at the next stage of analysis since it has interpreted the meaning of “firearm” within the regulations. This is a critical point because regulations are legally binding. United States v. Mead Corp., 533 U.S. 218, 227 (2001). This means that both the public and DDTC are bound to the regulatory interpretation of “firearm” embodied within the ITAR. That a regulation is binding is merely common sense since a regulatory agency’s interpretation has no higher legal footing than when an agency places it into publicly-noticed regulations. There is also nothing about the ITAR’s regulatory interpretation of “firearm” that is unreasonable, as it merely conforms to the common and ordinary meaning. For example, a simple review of how a dictionary defines “firearm” shows that the ITAR’s interpretative note simply provides the identical meaning: “A firearm is a weapon … which is designed to expel a projectile by the action of an explosive or which may be readily converted to do so.” ITAR § 121.1, Category I(j)(1).
 
Accordingly, the ITAR’s definition is binding on DDTC as its definitive interpretation of “firearm.” This does not change because “firearm” is only specifically mentioned under the Congressional notification requirements within Section 36(c) of the statute rather than Section 38 (which establishes the ITAR). In short, the issue here is not over the notification requirements directly, but what defense articles within Category I are defined as a “firearm.” In particular, the text of the statute plainly yields to the regulations within Category I to answer that question. 22 U.S.C. § 2776(c) (“in the case of a defense article that is a firearm controlled under category I of the United States Munitions List”). And Congress clearly deferred, through a delegation of authority, to DDTC to designate firearms as defense articles and to develop regulations accordingly. 22 U.S.C. § 2778(a)(1). Those designations are supported by DDTC’s binding regulatory interpretation of what a “firearm” means.
 
Stated differently, the reference within the Congressional notification section of the statute does not relate to any separate statutory definition of “firearm.” Rather, it simply refers back to the regulations for that meaning, and thus DDTC’s attempt to paint this issue as over a separate meaning of “firearm” for the ITAR and for statutory notification fails. Similarly, DDTC’s argument that it considered how “firearm” is defined by other statutes and regulations is immaterial, because the controlling definition is the one DDTC promulgated in its regulations. Moreover, the existing interpretative note within Category I has been in the ITAR for over fifty years, even before the Arms Export Control Act superseded the Mutual Security Act. 22 C.F.R. § 121.03(a) (1965). Thus, Congress not only knew its meaning when it wrote the Arms Export Control Act, but DDTC’s action here of attempting to informally infringe upon well-established law is even more untenable.
 
Finally, DDTC attacks its own firearms guidance by arguing that it does not supersede statutory requirements. Specifically, the statement that is relevant here reads: “Per §123.15(a)(3) of the ITAR, a license application for the export of firearms in Categories I(a) through I(d)with a total value of $1 million or higher will require Congressional Notification.” As already discussed, the real issue is a regulatory matter and not a statutory one. Therefore, this guidance document is interpreting regulations and the specific statement is consistent with those regulations. Thus, DDTC’s interpretation of its own regulations in this guidance document is valid as it is not plainly erroneous or inconsistent with the regulation. Auer v. Robbins, 519 U.S. 452, 461(1997). Moreover, there is no deference to DDTC in this case because the regulation is unambiguous, as DDTC conceded in its response. It is also evidence to show that contrary to its dubious assertion, DDTC has no “long-standing practice” of notifying to Congress items within paragraphs (e) through (g) of Category I. Even if it did, a “long-standing practice” that is contrary to law does not somehow make it valid, though it does reveal DDTC’s non-compliance with the ITAR.
 
In conclusion, DDTC should immediately withdraw this newly revealed informal position that directly conflicts with well-established law. Seven years ago, the Seventh Circuit unanimously admonished DDTC over its constitutionally dubious practices of carrying out and enforcing secret laws, which that court noted were akin to the behavior of a totalitarian regime. United States v. Pulungan, 569 F.3d 326, 328 (7th Cir. 2009). It is certainly deeply troubling that DDTC now tacitly acknowledges it secretly disavows publicly-noticed, unambiguous regulations. This is once again contrary to the Seventh Circuit’s contempt for DDTC’s practices, noting that a “regulation is published for all to see” and DDTC “must operate through public laws and regulations.”
 
NOTE: A copy of the trade group’s original request is available here (PDF) and DDTC’s response is available here (PDF). The materials presented in this article are for general information purposes only and do not constitute legal advice or establish an attorney-client relationship.

* * * * * * * * * * * * * * * * * * * *

COMM_a211. F.A.I.R. Trade Group: “State Department Policy is to Apply $1 Million Congressional Notification Trigger to Certain Firearm Parts & Accessories”
 
On November 4, 2016, F.A.I.R. Trade Group received a response from the State Department’s Directorate of Defense Trade Controls (DDTC) to our request for clarification of the congressional notification requirements related to certain defense articles controlled in U.S. Munitions List (USML) Category I, specifically parts, components and attachments listed in Cat. I(e)-(g). The full Advisory Opinion request and DDTC’s reply are available on F.A.I.R.’s website. 
 
In its reply, dated October 27, 2016, DDTC advised that the $1 million congressional notification threshold applies to firearm parts and components in USML Cat. I(e), and (g) in the same manner as it applies to fully assembled firearms listed in USML Cat. I(a), (b), (c) and (d). Cat. I(e) lists firearm silencers, mufflers, sound and flash suppressors and their “specifically designed,” modified or adapted components and parts. Cat. I(g) lists firearm barrels, cylinders, receivers (frames) or complete breech mechanisms.
 
In its correspondence, DDTC walks through an analysis of the controlling statute, the Arms Export Control Act (AECA), the implementing regulations known as the International Traffic in Arms Regulations (ITAR), and the agency’s own guidance to justify its policy.

First, DDTC points out that the controlling statute, the AECA, does not define the term “firearm.” The implementing regulations, however, do explain the term “firearm” in USML Category I paragraph (j). Regardless, DDTC chooses not to rely on the ITAR, stating that the defined term found in the ITAR applies only to the Regulations and cannot be used to shed light on what is meant by the term “firearm” within the AECA.

F.A.I.R. wishes to point out that the AECA requires certification to Congress before an export license is issued for a defense article that is a “firearm controlled under category I of the United States Munitions List” when the value is $1 million or more. The AECA does not define “firearm,” but industry should be able to reasonably rely on the interpretations the State Department has listed in USML Cat. I(j) as explaining the phrase “defense article that is a firearm controlled under category I of the USML.” Indeed, USML Cat. I(j) states: “The following interpretations explain and amplify the terms used in this category and throughout [the ITAR].” The first interpretation put forth in USML Cat. I(j) is what constitutes a firearm (“a weapon not over .50 caliber which is designed to expel a projectile by the action of an explosive or which may be readily converted to do so.“).

Rather than pointing to a clear requirement in either the statute or regulations, DDTC relies solely on prior legal and policy review and a “long-standing practice” of notifying Congress to support its interpretation that the $1 million threshold applies equally to parts and attachments listed in paragraphs (e), and (g). DDTC does not articulate what the prior review entailed, and does not address the fact that such interpretation is in direct conflict with the regulations. DDTC does explain, however, that the statutory requirement to notify “firearms” valued at $1 million or more could “reasonably be interpreted” to extend to firearm parts, components and attachments identified in USML Cat. I(e) and (g) because of the “treatment” of the term “firearm” in other statutes and regulations.  

This policy of applying the $1 million threshold to parts and attachments also conflicts with DDTC’s own guidance. In response to this conflict, DDTC explains that “any instruction in the Firearms Guidelines does not supersede the statutory notification requirement.” While this statement is accurate in the sense that interpretive guidance does not have the force of law, we question why DDTC would publish instructions and guidance for industry that does not reflect what the agency believes are the requirements of the ITAR and AECA. If industry cannot rely on DDTC’s own guidance to be an accurate representation of what is required by law and regulation, the challenges present in ensuring compliance with complex regulations has now increased exponentially.
 
DDTC’s reply should be concerning to all exporters, not just the firearms industry. DDTC’s response provides insight on how DDTC regards the interpretive guidance it provides, which directly impacts its other industry guidelines, as well as interpretive definitions found in the ITAR. If industry is not able to rely on the accuracy of DDTC’s guidance, how is industry to remain compliant? If the definitions provided in the ITAR itself are in conflict with the underlying statute that the ITAR enacts, how is industry to know how to interpret the regulations when they now have cause to question the accuracy of DDTC’s published guidance?

* * * * * * * * * * * * * * * * * * * *

COMM_a312. Gary Stanley’s ECR Tip of the Day
(Source: Defense and Export-Import Update; available by subscription from
gstanley@glstrade.com
)
 
* Author: Gary Stanley, Esq., Global Legal Services, PC, (202) 352-3059,
gstanley@glstrade.com
 

ITAR § 126.18 does not impose on the U.S. exporter an obligation to request a written statement or certification from the foreign company that it will be invoking the provisions of § 126.18 and has met all the requirements outlined therein to prevent the diversion of defense articles to unauthorized end-users and end-uses. However, it is always good business practice to be sure that foreign companies that are receiving ITAR-controlled items understand the requirements and restrictions associated with the receipt and handling of such items.

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TEEX/IM TRAINING EVENTS & CONFERENCES

TE_a113. ECTI Presents Export Compliance in Australia: What U.S. Companies Need to Know about Export Controls in Australia Webinar, 29 Nov
(Source: Danielle McClellan, danielle@learnexportcompliance.com)

* What: Export Compliance in Australia: What U.S. Companies Need to Know about Export Controls in Australia
* When: November 29, 2016; 1:00 p.m. (EDT)
* Where: Webinar
* Sponsor: Export Compliance Training Institute (ECTI)
* ECTI Speaker: Eva Galfi
* Register: Here or Danielle McClellan, 540-433-3977, danielle@learnexportcompliance.com.
* * * * * * * * * * * * * * * * * * * *

MSEX/IM MOVERS & SHAKERS

MS_a214. Thao Huynh Moves to Raytheon

(Source: Thao Huynh)

Mr. Thao C. Huynh has moved to Raytheon Missile Systems, where he now serves at Sr. Manager, Global Trade. Contact Thao at 520-794-3765 or Thao.C.Huynh@raytheon.com.

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MS_a115
. Monday List of Ex/Im Job Openings: 105 Jobs Posted

(Source: Editor)  


 
Published every Monday or first business day of the week.  Send openings in the following format to
apbosch@fullcirclecompliance.eu
.
 
COMPANY; LOCATION; POSITION TITLE (WEBLINK); CONTACT INFO; REQ ID

#” New listing this week:

 

* The Aerospace Corporation; Crystal City VA; 
Export Compliance Staff V
; Requisition ID: 2761

* Amazon; London, UK;
Senior Trade Compliance Program Manager (M/F)
; Requisition ID: 429019

* Amazon; Seattle WA;
Compliance Investigator
; Requisition ID: 432560
* Amazon; Seattle WA;
Compliance Investigator
; Requisition ID: 432561
* Amazon; Seattle WA;
Compliance Investigator
; Requisition ID: 432564
* Amazon; Seattle WA;
Sanctions Compliance Specialist
; Requisition ID: 431298

* Amazon; Seattle WA;
NA Compliance Analyst; Requisition ID: 256357

* Amazon; Seattle WA;
Prime Air Trade Compliance Program Manager; Requisition ID: 395658

* Amazon; Singapore;
Sr. Trade Compliance Manager
; Requisition ID: 441734

* Aramco Services Company; Houston TX;
Trade Compliance Specialist
; Requisition ID: 295802


* Boeing; Englewood CO;
Trade Specialist 2
; Requisition ID: 792575


* Bunn-O-Matic Corporation; Springfield IL;
Global Logistics Analyst
;
employment.openings@bunn.com
; GO1678
* Bunn-O-Matic Corporation; Springfield IL;
Global Trade Compliance Analyst
;
employment.openings@bunn.com
; GO1687

* Catalent; Swindon, Bathgate or Bolton, UK;
International Trade Compliance Analyst
; Requisition ID: 0020306

* Cirrus Logic; Austin TX;
Logistics & Trade Compliance Analyst
; Requisition ID: RB-3290

* CONMED Corporation; Utica NY;
Logistics & Trade Compliance Analyst
; Requisition ID: 3469

* Continental; Manila,
Philippines;
Head of Transportation and Foreign Trade Compliance
; Requisition ID: 42475BR

* Coriant; Naperville IL;
Sr Mgr of Global Trade Compliance
; Requisition ID: 11353

* Crane Currency; Nashua NH;
Import/Export & Logistics Manager
; Requisition ID: 2016-1459
* CSL Behring; King of Prussia PA;
Global Trade Compliance Manager
; Requisition ID: R-031549

* DeLaval; Kansas City MO;
Trade Compliance Analyst

* Dow; Terneuzen, The Netherlands;
Customs & Trade Compliance Leader – Europe (M/F)
; Requisition ID: 16066552
#
DRS Technologies; Dayton OH;
Senior Trade Compliance Specialist
; Requisition ID: 61027

* DRS Technologies; Germantown MD;
Senior Trade Compliance Manager
;
Requisition ID: 54749

* DRS Technologies; Melbourne FL;
Senior Trade Compliance Specialist
; Requisition ID: 59327

* Esterline Technologies Corporation; Bellevue WA;
Audit Manager – Compliance
; Requisition ID: 8215BR

# Esterline Technologies Corporation; Bellevue WA;
Sr. Trade Compliance Manager – Sensors & Systems (Engineering)
; Requisition ID: 8791BR

* Esterline Technologies Corporation; Brea CA;
Trade Compliance Manager; Requisition ID: 7333BR

* Esterline Technologies Corporation; Paso Robles CA;
Trade Compliance Manager
; Requisition ID: 6148BR

* Expeditors; Bangkok, Thailand; Regional Trade Compliance Manager – Indochina & Philippines
* Export Solutions Inc.; Melbourne FL; 

Trade Compliance Specialist II

info@exportsolutionsinc.com

* FLIR Systems; Arlington VA;
Director of Defense Trade Licensing & Compliance

# FLIR; Arlington VA;
Sr. Defense Trade Licensing & Compliance Analyst
; Requisition ID: 7924
#
FLIR; Billerica MA; 
Sr. Defense Trade Licensing & Compliance Analyst
;
Requisition ID: 8008

* General Dynamics; South Wales, UK;
Senior Trade Compliance Officer
; Requisition ID: 6079

* Google; Amsterdam, the Netherlands;
Export Compliance Program Manager

* Graco; Rogers MN;
Trade Compliance Supervisor 

* Henderson Group Unlimited Inc.; Wash DC;
Commodities Jurisdiction Analyst
;
alannasmith@hendersongroupinc.net


* IPG Photonics; Oxford MA;
Trade Compliance Analyst
* Jacobs; Houston TX;
Trade Compliance Coordinator
; Requisition ID: REF00008A

* Lam Research Corporation; Fremont CA:
Foreign Trade Analyst 6
; Requisition ID: 12079BR

* Linde; Stewartsville NJ;
Compliance Administrator; Requisition ID: 916130

* Lumber Liquidators; Toano VA;
Compliance Auditor
; Requisition ID: 913

* Lumber Liquidators; Toano VA;
Supply Chain Compliance Specialist
; Requisition ID: 1578


* Lutron; Coopersburg PA;
Trade Manager-Export
; Requisition ID: 2926

* Lutron; Coopersburg PA; Trade Compliance Coordinator; Requisition ID: 2834

* MACOM; Lowell MA;
Trade Compliance Analyst 1
; Requisition ID: 1529

* Medtronic; Heerlen, The Netherlands;
Trade Compliance Analyst
; 16000DYY

* Meggitt (Erlanger), LLC; Erlanger KY;
Trade Compliance Manager
; Requisition ID: 22005

* Meggitt PLC; Los Angeles CA;
Export Control/Trade Compliance Administrator
; Requisition ID: 22591
# Meggitt Control Systems; North Hollywood CA;
Trade Compliance Officer
;
jenn.avritt@meggitt.com
; Requisition ID: 23720

* Meggitt Advanced Composites Limited; Shepshed, UK;
Trade Compliance Officer
; Requisition ID: 22122

* Mentor Graphics; Fremont CA;
Senior Global Trade Compliance Manager
; Requisition ID: 5129

* Microsoft; Redmond WA;
Trade Director, Regulatory Compliance & Standards
;
rybeli@microsoft.com
; Requisition ID: 973167

* Moog; East Aurora NY;
Export Compliance Manager
;
anihill@moog.com
; Requisition ID: 161913

* Northrop Grumman T
echnology Services Sector, Advanced Defense Services (ADS) Division
; International Posting (Saudi Arabia);
Manager International Trade Compliance 1
(Saudi Arabia)
; Requisition ID: 16003577

* Northrop Grumman Corporation; Sierra Vista AZ and Herndon VA;

International Trade Compliance Analyst 4
; Requisition ID: 16008077 

* Northrop Grumman Corporation; El Segundo CA;
International Trade Compliance Analyst 4

; Requisition ID: 16024349 

# Northrop Grumman Corporation; Falls Church VA;
International Trade Compliance Analyst 3/4
; Requisition ID: 16026961

* Northrop Grumman Corporation; Falls Church VA;
International Trade Compliance Manager 1
; Requisition ID: 16023413

* Northrop Grumman Corporation; Linthicum MD;
International Trade Compliance Analyst 3
; Requisition ID: 16013233

* Northrop Grumman Corporation; Redondo Beach CA;
International Trade Compliance Analyst 4
; Requisition ID: 16024309
* Northrop Grumman Corporation; Rolling Meadows IL;
International Trade Compliance Analyst 3
; Requisition ID: 16024684


* Northrop Grumman Corporation; Rolling Meadows IL;
International Trade Compliance Analyst 3
; Requisition ID: 16023994

* Paraxel; Berlin, Germany;
Trade Compliance Specialist
; Requisition ID:
pare-10055069

* PerkinElmer; Krakow, Poland or Zaventem, Belgium;
Regional Trade and Compliance Specialist – Belgium or Poland based
* PerkinElmer; Seer Green Bucks, United Kingdom, Zaventem, Belgium, or Krakow, Poland;
International Trade Compliance Regional Manager – EMEA

* PerkinElmer; Waltham MA;
International Trade Compliance Associate, Informatics


* Raytheon; Arlington VA;
Export Licensing Manager I
; Requisition ID: 88665BR
*Raytheon; Arlington VA;
Export Licensing Manager I
; Requisition ID: 87321BR

* Raytheon; El Segundo CA;
Manager I Export-Import Control
; Requisition ID: 85354BR

* Raytheon; Fullerton CA;
Global Trade Compliance Manager
; Requisition ID: 85521BR

* Raytheon; Indianapolis IN;
Principal SC Compliance Specialist
; Requisition ID: 84932BR


* Raytheon; Waltham MA;
Sr Principal SC Compliance Specialist
; Requisition ID: 86169BR


* State Department; Wash DC;
Supervisory Compliance Specialist; Requisition ID: HRSC/T/PM-2017-0003

* Tecomet; Lansing MI;
Export Control Coordinator – EAR/ITAR
; Requisition ID: 1539

* TE Connectivity; Middletown PA;
Senior Director Global Trade Services
; Requisition ID: 2016-73314

* Tenneco; Edenkoben, Germany;
Global Trade Compliance Manager (m/w)
; Requisition ID: 176871-846

* Textron Systems; Wilmington MA;
Principal Export Compliance Analyst
; Requisition ID: 242857


* Thales; Piscataway NJ;
Manager, Trade Compliance
; Requisition ID: R0012077

* Thales; Piscataway NJ;
Trade Compliance Specialist/Facility Security Officer; Requisition ID: R0012102

* ThermoFisher Scientific; Matamoros, Mexico;
Import/Export Supervisor
; Requisition ID: 39750BR

* ThermoFisher Scientific; Shanghai, China;
Compliance Director, Greater China
; Requisition ID: 38520BR
* ThermoFisher Scientific; Shanghai, China;
Sr. Compliance Specialist
; Requisition ID: 37066BR
* Tractor Supply Company; Brentwood TN;
Customs Analyst
;
nknott@tractorsupply.com
; Requisition ID: 16-986

* Troy Corporation; Florham Park NJ;
Global Trade and Compliance Manager
; Requisition ID: 306


* United States Pharmacopeia; Rockville MD OR Frederick MD;
Trade Compliance Specialist
;
Meaghan Ireland –
mci@usp.org
;
Requisition ID: 709-679

* United Technologies Corporation, UTC Aerospace Systems; Charlotte NC;
Manager, ITC-Authorizations
; Requisition ID: 22846BR  

* United Technologies Corporation, UTC Aerospace Systems; Charlotte NC;
* United Technologies Corporation, UTC Aerospace Systems; Charlotte NC;
International Trade Compliance Auditor; Requisition ID:
34285BR
* United Technologies Corporation, UTC Aerospace Systems; Charlotte NC;
* United Technologies Corporation, UTC Aerospace Systems; Charlotte NC;
* United Technologies Corporation, UTC Aerospace Systems; Charlotte NC;
Program Manager, Customs; Requisition ID:
31331BR


* United Technologies Corporation, UTC Aerospace Systems; Phoenix AZ; Sr Analyst, International Trade Compliance; Requisition ID: 30058BR 


* XPO Logistics; Greenwich CT;
Global Trade Compliance Analyst


* * * * * * * * * * * * * * * * * * * *

ENEDITOR’S NOTES

(Source: Editor)

* Zig Ziglar (Hilary Hinton “Zig” Ziglar, 6 Nov 1926 – 28 Nov 2012, was an American author, salesman, and motivational speaker.)
  – “Your attitude, not your aptitude, will determine your altitude.”
 
* Marie Curie (Marie Skłodowska Curie, 7 Nov 1867 – 4 Jul 1934, was a Polish and naturalized-French physicist and chemist who conducted pioneering research on radioactivity.  She was the first woman to win a Nobel Prize, the first person and only woman to win twice, the only person to win a Nobel Prize in two different sciences, and was part of the Curie family legacy of five Nobel Prizes.)
  – “One never notices what has been done; one can only see what remains to be done.”
 
Monday is pun day:

Q: Which world capital is named after an automobile?
A:  Dakar.
  — Julia Ward, Ypsilanti, MI
 
Q:  What’s the difference between a cat and a comma?
A:  One has its claws at the end of its paws, the other has its pause at the end of its clause.
  — Gene Beatty, Mt. Clemens, MI

* * * * * * * * * * * * * * * * * * * *

EN_a217
. 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.
 
*
ATF ARMS IMPORT REGULATIONS
: 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 
 
*
CUSTOMS REGULATIONS
: 19 CFR, Ch. 1, Pts. 0-199
  – Last Amendment: 28 Oct 2016: 81 FR 74918: New Mailing Address for the National Commodity Specialist Division, Regulations and Rulings, Office of Trade; Technical Correction  

* DOD NATIONAL INDUSTRIAL SECURITY PROGRAM OPERATING MANUAL (NISPOM): DoD 5220.22-M
  – 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.)

* EXPORT ADMINISTRATION REGULATIONS (EAR): 15 CFR Subtit. B, Ch. VII, Pts. 730-774 
  – Last Amendment: 4 Nov 2016: 81 FR 76859-76861: Amendments to the Export Administration Regulations: Update of Arms Embargoes on Cote d’Ivoire, Liberia, Sri Lanka and Vietnam, and Recognition of India as Member of the Missile Technology Control Regime 

  
*
FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR)
: 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders
  – Last Amendment: 4 Nov 2016: 81 FR 76861-76863: Amendments to OFAC Regulations To Remove the Former Liberian Regime of Charles Taylor Sanctions Regulations and References to Fax-on-Demand Service 
 
*
FOREIGN TRADE REGULATIONS (FTR)
: 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
here.
  – The latest edition (9 Mar 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.
 
*
HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES (HTS, HTSA or HTSUSA)
, 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
here
.
  – HTS codes that are not valid for AES are available
here.
 
INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR): 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: 12 Oct 2016: 81 FR 70340-70357: Amendment to the International Traffic in Arms Regulations: Revision of U.S. Munitions List Category XII and associated sections.
  – The only available fully updated copy (latest edition 12 Oct 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, footnotes to amendments that will take effect next week on 15 November, and on 31 December, plus a large Index and over 750 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 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.

* * * * * * * * * * * * * * * * * * * *

EPEDITORIAL POLICY

* 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 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.

* RIGHTS & RESTRICTIONS: This email contains no proprietary, classified, or export-controlled information. All items are obtained from public sources or are published with permission of private contributors, and may be freely circulated without further permission. Any further use of contributors’ material, however, must comply with applicable copyright laws.

* CAVEAT: The contents of this newsletter cannot be relied upon as legal or expert advice.  Consult your own legal counsel or compliance specialists before taking actions based upon news items or opinions from this or other unofficial sources.  If any U.S. federal tax issue is discussed in this communication, it was not intended or written by the author or sender for tax or legal advice, and cannot be used for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing, or recommending to another party any transaction or tax-related matter.

* SUBSCRIPTIONS: Subscriptions are free.  Subscribe by completing the request form on the Full Circle Compliance website.

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