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16-1116 Wednesday “The Daily Bugle”

16-1116 Wednesday “Daily Bugle”

Wednesday, 16 November 2016

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The 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. Justice/ATF Posts 2016 Annual List of Explosive Materials 
  1. Ex/Im Items Scheduled for Publication in Future Federal Register Editions 
    1. Commerce/BIS: Hassan Jamil Salame of Lisbon, OH, Denied Export Privileges for 10 Years 
    2. Commerce/BIS: Luis Alberto Najera-Citalan of Beaumont, TX, Denied Export Privileges for 10 Years 
    3. Commerce/BIS: Daniel Miranda-Mendoza, Hinton, OK, Denied Export Privileges for 10 Years 
    4. Commerce/BIS: Javier Nenos Rea of Folkston, GA, Denied Export Privileges for 10 Years 
    5. Commerce/BIS: Julio Cesar Solis-Castilleja of Adelanto, CA, Denied Export Privileges for 10 Years 
    6. Commerce/BIS: Jorge Santana Jr. of Beaumont, TX, Denied Export Privileges for 10 Years 
  2. State/DDTC Posts Reminder, Last day to Submit Commodity Jurisdiction Applications Through EFS 
  3. State/DDTC Cancels 3:00 Drop-off/Pick-up on 23 & 25 Nov 
  4. EU Again Amends Restrictive Measures Concerning Syria 
  5. UK/BIS ECO Updates Five Dual-Use Open Licenses and Revokes One 
  6. UK/BIS ECO Posts Updated Consolidated List of Strategic Military and Dual-Use Items That Require Export Authorization 
  1. Reuters: “European Leaders and Obama to Discuss Russia Sanctions in Berlin” 
  2. ST&R Trade Report: “USTR Lists Goods That Could Become Ineligible for GSP; Dec. 2 Deadline for Waiver Petitions” 
  1. CTP Compliance Solutions: “The Future is DECCS” 
  2. L. Gilbreath & K. Gray: “Is Your Waste Coming or Going? EPA Revises Hazardous Waste Export-Import Rules and Reforms Generator Rules” 
  3. L.S. Zengerle, E.L. LaRocca, D.J. Delott: “TN Visa Category Faces Uncertain Future” 
  4. R.C. Burns: “New White House Cannot Impose China Tariffs Under Trading With The Enemy Act” 
  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. Justice/ATF Posts 2016 Annual List of Explosive Materials

 
81 FR 80686-80686: Commerce in Explosives; 2016 Annual List of Explosive Materials
* AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); Department of Justice.
* ACTION: Notice of list of explosive materials.
* SUMMARY: Pursuant to 18 U.S.C. 841(d) and 27 CFR 555.23, the Department must publish and revise at least annually in the Federal Register a list of explosives determined to be within the coverage of 18 U.S.C. 841 et seq. The list covers not only explosives, but also blasting agents and detonators, all of which are defined as explosive materials in 18 U.S.C. 841(c). In the 2016 listing, the Department amends the term “Xanthamonas hydrophilic colloid explosive mixture” to read “Xanthomonas hydrophilic colloid explosive mixture” and removes the term “Special fireworks” from the list of explosive materials. This notice publishes the 2016 Annual List of Explosive Materials.
* DATES: The list becomes effective November 16, 2016.
* FOR FURTHER INFORMATION CONTACT: William E. Frye Jr., Chief, Explosives Industry Programs Branch; Firearms and Explosives Industry Division; Bureau of Alcohol, Tobacco, Firearms, and Explosives; United States Department of Justice; 99 New York Avenue NE., Washington, DC 20226; 202 648-7120.
* SUPPLEMENTARY INFORMATION:
   The list includes all mixtures containing any of the materials on the list. Materials constituting blasting agents are marked by an asterisk. While the list is comprehensive, it is not all-inclusive. The fact that an explosive material is not on the list does not mean that it is not within the coverage of the law if it otherwise meets the statutory definitions in 18 U.S.C. 841. Explosive materials are listed alphabetically by their common names followed, where applicable, by chemical names and synonyms in brackets. …
   Pursuant to 18 U.S.C. 841(d) and 27 CFR 555.23, I hereby designate the following as explosive materials covered under 18 U.S.C. 841(c): …
 
   Dated: October 20, 2016.
Thomas E. Brandon, Deputy Director.
* * * * * * * * * * * * * * * * * * * *

OGSOTHER GOVERNMENT SOURCES

OGS_a12. Ex/Im Items Scheduled for Publication in Future Federal Register Editions
(Source: Federal Register)


* Justice; Alcohol, Tobacco, Firearms, and Explosives Bureau; NOTICES; Agency Information Collection Activities; Proposals, Submissions, and Approvals: Request for Background Investigation Information [Publication Date: 17 November 2016.]

* Treasury; Foreign Assets Control Office; NOTICES; Blocking or Unblocking of Persons and Properties [Publication Date: 17 November 2016.] 

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

 
* Respondent: Hassan Jamil Salame, Lisbon, OH
* Charges: On 3 November 2015, in the U.S. District Court for the District of South Carolina, Hassan Jamil Salame (“Salame”), was convicted of violating Section 38 of the Arms Export Control Act (“AECA”). Specifically, Salame knowingly and willfully attempted to export and caused to be exported, defense articles, that is, firearms and ammunition, including a Ruger .44 Magnum revolver, two Bushmaster .223 caliber rifles, a Ruger .45 caliber pistol, a Glock .45 caliber pistol, and a Beratta 9mm pistol from the United States to Lebanon, without first having obtained a license or written approval from the United States Department of State. Salame was sentenced to 45 months in prison, three years of supervised release, and a $300 assessment.
* Debarred: 10 Years from the date of Salame’s conviction, until 3 November 2025.
* Date of Order: 9 November 2016

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

 
* Respondent: Luis Alberto Najera-Citalan, Beaumont, TX
* Charges: On 9 June 2015, in the U.S. District Court for the Southern District of Texas, Luis Alberto Najera-Citalan (“Najera-Citalan”, was convicted of violating Section 38 of the Arms Export Control Act (“AECA”). Specifically, Najera-Citalan intentionally and knowingly conspired to knowingly and willfully export, attempt to export, and cause to be exported to Mexico from the United States a defense article, that is, to wit: approximately five (5) AR-15 style rifles which were designated as defense articles on the United States Munitions List, without having first obtained from the Department of State a license for such export or written authorization for such export. Najera-Citalan was sentenced to 60 months in prison, three years of supervised release, and a $100 assessment.
* Debarred: 10 Years from the date of Najera-Citalan’s conviction, until 9 June 2025.
* Date of Order: 9 November 2016
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OGS_a45. Commerce/BIS: Daniel Miranda-Mendoza, Hinton, OK, Denied Export Privileges for 10 Years
(Source: Commerce/BIS)
 
* Respondent: Daniel Miranda-Mendoza, Hinton, OK
* Charges: On 25 August 2015, in the U.S. District Court for the Southern District of Texas, Daniel Miranda-Mendoza (“Miranda-Mendoza”), was convicted of violating Section 38 of the Arms Export Control Act (“AECA”). Specifically, Miranda-Mendoza intentionally and knowingly conspired to knowingly and willfully export, attempt to export, and caused to be exported from the United States to Mexico, a defense article, that is, to wit: approximately one Kel-Tec pistol, Model PMR-30, .22 caliber, one Remington rifle, Model 7400, .30-06 caliber, and one Browning rifle, Model X-bolt, .270 caliber, which were designed as defense articles on the United States Munitions List, without having first obtained from the Department of State a license for such export or written authorization for such export. Miranda-Mendoza was sentenced to 37 months in prison and a $100 assessment.
* Debarred: 10 Years from the date of Miranda-Mendoza’s conviction, until 25 August 2025.
* Date of Order: 9 November 2016.
* * * * * * * * * * * * * * * * * * * *

OGS_a56. Commerce/BIS: Javier Nenos Rea of Folkston, GA, Denied Export Privileges for 10 Years
(Source: Commerce/BIS)
 
* Respondent: Javier Nenos Rea, Folkston, GA
* Charges: On 13 January 2015, in the U.S. District Court for the Southern District of Florida, Javier Nenos Rea (“Nenos Rea”), was convicted of violating Section 38 of the Arms Export Control Act (“AECA”). Specifically, Nenos Rea knowingly and willfully attempted to export defense articles, that is, AK-47 assault rifles and a .40 caliber semi-automatic pistol, from the United States to Bolivia without having first obtained a license or written approval from the United States Department of State. Nenos Rea was sentenced to 46 months in prison, two years of supervised release, and a $100 assessment.
* Debarred: 10 Years from the date of Nenos Rea’s conviction, until 13 January 2025.
* Date of Order: 9 November 2016.
* * * * * * * * * * * * * * * * * * * *

OGS_a67. Commerce/BIS: Julio Cesar Solis-Castilleja of Adelanto, CA, Denied Export Privileges for 10 Years
(Source: Commerce/BIS)
 
* Respondent: Julio Cesar Solis-Castilleja, Adelanto, CA
* Charges: On 30 June 2014, in the U.S. District Court for the Southern District of Texas, Julio Cesar Solis-Castilleja (“Solis-Castilleja”) was convicted of violating Section 38 of the Arms Export Control Act (“AECA”). Specifically, Solis-Castilleja knowingly and willfully attempted to export and caused to be exported from the United States to Mexico a defense article, that is, a Norinco MAK 90 Sporter 7.62x39mm caliber rifle, a Bushmaster .308 caliber rifle, a DPMS Panther .308 caliber rifle, a FN Herstal .308 caliber rifle, a PTR 91C .308 caliber rifle, four (4) 7.62x51mm magazines, and one (1) 7.62x39mm magazine, which were designated as a defense article on the United States Munitions List without having first obtained from the Department of State a license for such export or written authorization for such export. Solis-Castilleja was sentenced to 46 months in prison, three years of supervised release, and a $100 assessment.
* Debarred: 10 Years from the date of Solis-Castilleja’s conviction, until 30 June 2024.
* Date of Order: 9 November 2016.
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OGS_a78. Commerce/BIS: Jorge Santana Jr. of Beaumont, TX, Denied Export Privileges for 10 Years
(Source: Commerce/BIS)
 
* Respondent: Jorge Santana Jr., Beaumont, TX
* Charges: On 5 May 2014, in the U.S. District Court for the Southern District of Texas, Jorge Santana Jr. (“Santana”), was convicted of violating Section 38 of the Arms Export Control Act (“AECA”). Specifically, Santana knowingly and willfully attempted to export and caused to be exported from the United States to Mexico a defense article, that is, a .357 caliber magazine, two (2) 9mm magazines, a Smith & Wesson .40 caliber magazine, approximately 5,440 rounds of 7.62 caliber ammunition, 200 rounds of .40 caliber ammunition, and 400 rounds of .38 super caliber ammunition, which were designated as a defense article on the United States Munitions List without having first obtained from the Department of State a license for such export or written authorization for such export. Santana was sentenced to 66 months in prison, three years of supervised release, 100 hours of community service, and a $100 assessment.
* Debarred: 10 Years from the date of Santana’s conviction, until 5 May 2024.
* Date of Order: 9 November 2016
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OGS_a89. State/DDTC Posts Reminder, Last day to Submit Commodity Jurisdiction Applications Through EFS
(Source: State/DDTC)
 
Wednesday, November 16th at 5PM EST will be the last day users will be able to submit the DS-4076, Request for
Commodity Jurisdiction
(“CJ”) Determination, PDF form through the Electronic Form Submission (EFS) application. Beginning Monday, November 21st at 8AM EST users will submit CJ applications via the Defense Export Control and Compliance System (DECCS) CJ application. For more information on the DECCS CJ release click here.
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OGS_a910. State/DDTC Cancels 3:00 Drop-off/Pick-up on 23 & 25 Nov
(Source: State/DDTC)
 
Due to the Thanksgiving holiday, the Directorate of Defense Trade Controls has cancelled the 3:00 drop-off/pick-up in the second floor lobby for Wednesday, November 23rd and Friday, November 25th.
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OGS_a1011. EU Again Amends Restrictive Measures Concerning Syria
 
Regulations:
  – Council Implementing Regulation (EU) 2016/1996 of 15 November 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria
 
Decisions:
  – Council Implementing Decision (CFSP) 2016/2000 of 15 November 2016 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria
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OGS_a1112. UK/BIS ECO Updates Five Dual-Use Open Licenses and Revokes One

(Source: UK/BIS ECO)

The Export Control Organisation has updated and amended five Open General Export Licenses (OGELs) following an update to the EU dual-use list, which was published in the EU Official Journal, 15 November 2016. The updates include changes to the goods schedule of each relevant license.
 
Ivory Coast and Liberia have been removed from the list of excluded destinations for the OGEL (PCBs and components for dual-use items). This follows the removal of EU sanctions in June 2016.
 
All licenses have been updated to refer to the new Department for International Trade, of which the Export Control Organisation now forms a part and to amend the address (where relevant) for the MOD team in the Export Control Joint Unit (who process Form 680 applications).
 
Open General Export License (international non-proliferation regime decontrols: dual-use items) has been revoked as it is no longer of use to exporters.
 
Licenses affected
 
 
Action for exporters
 
If you can no longer meet the terms and conditions of a particular license because the scope of the goods or destinations have changed, or if a license has been revoked, then you will need to de-register from the license via SPIRE.
 
If your goods are no longer subject to export controls because the relevant rating code has been amended or deleted then you no longer need a license to export those goods. However, you will still need to complete an annual return at the end of the calendar year in December for any exports of these goods made under an Open General or Open Individual Export License. If your goods are still controlled but not listed under an appropriate OGEL, you will need to apply for a Standard Individual Export License.
 

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OGS_a1213. UK/BIS ECO Posts Updated Consolidated List of Strategic Military and Dual-Use Items That Require Export Authorization
(Source: UK/BIS ECO)
 
This latest version published is in force from 16 November 2016.
 
The list includes items such as radioactive sources and torture goods. It also includes dual-use items (which are designed for civilian purposes that also potentially have a military application) such as lasers, avionics, navigation and high tech engineering equipment.
 
Do I need an export license? contains more guidance on whether your goods will be subject to license controls.
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NWSNEWS

NWS_a114
. Reuters: “European Leaders and Obama to Discuss Russia Sanctions in Berlin”

 
European leaders and President Barack Obama will discuss on Friday an extension of the sanctions imposed on Russia for its intervention in Ukraine, as well as possible new sanctions for its bombing in Syria, multiple sources familiar with the plans said.
 
The meeting in Berlin, hosted by German Chancellor Angela Merkel and including the leaders of Britain, France, Italy and Spain, comes a little over a week after Donald Trump’s victory in the U.S. presidential election.
 
Trump has indicated that he will seek a rapprochement with Russia, raising doubts in Europe about the future of the sanctions regime introduced by Washington and Brussels in 2014 following Russia’s intervention in eastern Ukraine.
 
A German official said the plan was to agree a rollover of EU sanctions against Russia, which are due to expire at the end of January, in the coming weeks.
 
But there is concern that Trump might move in the opposite direction after his inauguration on Jan. 20th. European leaders will therefore be seeking clarity from Obama, who met with Trump at the White House for over an hour last week. Obama is due to arrive in Berlin on Wednesday evening after visiting Greece.
 
  “We’re in a really critical situation,” said the German official. “We have to prevent a situation where the EU rolls over the sanctions and then the new U.S. president comes in and lifts them.”
 
After his meeting with Trump, Obama sought to reassure U.S. allies that the president-elect would maintain core relationships around the world, including with NATO.
 
European officials fear that Russia will use the time before Trump’s inauguration to launch new offensives in Syria and Ukraine. Two diplomatic sources said the issue of Syria would also come up at the Friday meeting in Berlin.
 
  “Syria will definitely be on the agenda,” said one of the sources, citing coordinated Russian missile strikes against rebels in Syria launched on Tuesday from an aircraft carrier in the Mediterranean.
 
The Kremlin has said it is maintaining a moratorium on air strikes in the city of Aleppo.
 
European Union leaders last month condemned Russia for its bombing of civilians in Aleppo and signaled that they could introduce new sanctions for its actions there if the bombing continued.
 
The Syrian opposition has been pressing Western countries to expand sanctions to include some Russian firms that are supplying weapons and bank notes to Syria.
 
Syrian opposition leaders are due to meet with EU leaders, including EU foreign policy chief Federica Mogherini, in Brussels on Friday.
 
The second source said European leaders were keen to send a signal to Trump, making it more difficult for him to reverse U.S. policy and cozy up to Russia.

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NWS_a215. ST&R Trade Report: “USTR Lists Goods That Could Become Ineligible for GSP; Dec. 2 Deadline for Waiver Petitions”
 
The Office of the U.S. Trade Representative has made available import statistics for the first nine months of 2016 that identify goods that could become ineligible for benefits under the Generalized System of Preferences. This information may be useful in deciding whether to submit a petition to waive the competitive need limitations and thus retain preferential treatment for GSP-eligible articles that might otherwise lose it. The deadline for such petitions is Dec. 2.
 
GSP provides for the duty-free importation of designated articles when imported from designated beneficiary developing countries. When the president determines that a BDC has exported to the U.S. during a calendar year a quantity of a GSP-eligible article having (a) a value in excess of the applicable amount for that year ($175 million for 2016) or (2) a value equal to or greater than 50 percent of the value of total U.S. imports of the article from all countries, GSP duty-free treatment for that article from that BDC must be terminated by no later than July 1 of the next calendar year unless the president grants a waiver before the exclusion goes into effect.
 
Any interested party may submit a petition seeking a waiver of the 2016 CNL for individual BDCs with respect to specific GSP-eligible articles. In addition, the president may waive the 50 percent CNL with respect to an eligible article imported from a BDC if the value of total imports of that article from all countries during the calendar year did not exceed the applicable de minimis amount for that year ($23 million for 2016).
 
The interim statistics show that the following products from the indicated BDCs may exceed the CNLs for 2016.
 
  – HTSUS 0410.00.00 – other edible products of animal origin (Indonesia)
  – HTSUS 0714.90.10 – fresh or chilled dasheens, whether or not sliced or in the form of pellets (Ecuador)
  – HTSUS 1104.29.90 – grains of cereals other than barley, oats or corn, hulled, pearled, clipped, sliced, kibbled or otherwise worked, but not rolled or flaked (Turkey)
  – HTSUS 2909.19.18 – ethers of acyclic monohydric alcohols & derivatives, not elsewhere specified (Brazil)
  – HTSUS 2933.99.22 – other heterocyclic aromatic or modified aromatic pesticides with nitrogen hereo-atom(s) only, not elsewhere specified (India)
  – HTSUS 4011.20.10 – new pneumatic radial tires, of rubber, of a kind used on buses or trucks (Indonesia)
  – HTSUS 4409.10.05 – coniferous wood continuously shaped along any of its ends, whether or not also continuously shaped along any of its edges or faces (Brazil)
  – HTSUS 6801.00.00 – setts, curbstones and flagstones, of natural stone (except slate) (Turkey)
  – HTSUS 6802.99.00 – monumental or building stone and articles thereof, not elsewhere specified, further worked than simply cut/sawn (Brazil)
  – HTSUS 8525.80.30 – television cameras, not elsewhere specified (Thailand)
  – HTSUS 9001.50.00 – spectacle lenses of materials other than glass, unmounted (Thailand)
 
Regardless of whether or not an article is listed above, all determinations and decisions regarding application of the CNLs will be based on full calendar year 2016 import data for each GSP-eligible article. USTR advises interested parties to conduct their own reviews of 2016 import data with regard to the possible application of CNLs.
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COMMCOMMENTARY

COMM_a116. CTP Compliance Solutions: “The Future is DECCS”
 
The folks at DDTC are beginning a slow roll out of their new electronic interface, DECCS, starting next week. DECCS, which stands for the Defense Export Control and Compliance System, is DDTC’s new modernized IT system. It is intended to eventually replace the current D-Trade, the Electronic Filing System (EFS), MARY and ELLIE systems. The first phase of the DECCS rollout will focus on the new Commodity Jurisdiction (CJ) application.
 
DDTC recently hosted a webinar (available here) to get people up to speed on the process including a demo of the process to submit a CJ. Some new features include web-based applications instead of the prior Adobe PDF forms, the ability to save works in progress, the use of a digital signature instead of ink, and prompts to upload specific documents necessary to include with the specific form. Further, accessibility of the application will no longer be limited to a particular web browser as Chrome, Firefox, and Safari will all be available. Although DECCS will be the method used to submit CJ requests going forward, ELISA will still be available for users to track the status of requests. Determinations from DDTC will continue to be mailed although the notification process will be automated in a later version.
 
As you can imagine, new features and kinks will be worked out in subsequent releases. The vision for the system is to provide a better user experience with a one stop shop featuring a content rich home page, updates, history and copy in-progress or completed submissions. The end goal is for all activities associated with ITAR registration, commodity jurisdiction, and licensing to occur through DECCS. As of Wednesday, November 16 at 5:00 pm, DDTC will no longer accept CJ applications through the EFS system and will go dark until DECCS  goes live on Monday, November 21.
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COMM_a217. L. Gilbreath & K. Gray: “Is Your Waste Coming or Going? EPA Revises Hazardous Waste Export-Import Rules and Reforms Generator Rules”
(Source: Pierce Atwood LLP)
 
* Authors: Lisa Gilbreath, Esq., lgilbreath@pierceatwood.com, 207-791-1177; and Ken Gray, Esq., kgray@pierceatwood.com, 207-791-1212. Both of Pierce Atwood LLP.
 
In late October 2016, the United States Environmental Protection Agency (EPA) adopted two final rules that will very shortly change procedures for those who export or import Resource Conservation and Recovery Act (RCRA) hazardous waste and – in the long run – allow important changes for hazardous waste generator management practices.
 
First, EPA finalized significant revisions to RCRA hazardous waste export-import regulations. These revisions are generally consistent with EPA’s 2015 proposed rule and implement the more stringent transboundary shipment rules of the Organization for Economic Cooperation and Development. The rules provide one consolidated and streamlined set of requirements applying to all exports and imports, some of which are effective at the end of December.
 
In general, the revisions affect four groups:

  (1) all persons who export or import (or arrange for the export or import of) hazardous waste for recycling or disposal, including universal waste;
  (2) all facilities that receive imports of such hazardous wastes for recycling or disposal;
  (3) all persons who export, or arrange for the export of, conditionally excluded cathode ray tubes being shipped for recycling; and
  (4) all persons who transport any export and import shipments.

 
These rule changes – which will go into effect on December 31, 2016 – will affect transboundary shipments currently subject to 40 C.F.R. Part 262 Subpart H, as well as those shipments to Canada and Mexico under Subparts E and F. Streamlining these requirements, in an effort to reduce confusion and increase compliance, EPA has folded all three sets of regulations into the revised Subpart H. As a result, shipments to and from Canada and Mexico will now be subject to all the requirements of Subpart H.
 
Additional substantive changes to the requirements of Subpart H, which will affect all transboundary shipments regardless of origin or destination, include electronic submittal of most documents, submittal of export consent information as part of the exporter’s declaration to the U.S. Customs and Border Protection (CBP), and a requirement that traders who merely arrange for export of hazardous waste obtain an EPA ID number.
 
Among other immediate requirements, as of December 31, 2016 exporters must now establish or amend contracts to provide additional information on aspects of the shipment, must prepare and provide a RCRA manifest for every shipment listing waste stream consent numbers matched to each listed waste, and must prepare and provide an international movement document for every shipment. Recognized traders must obtain an EPA ID number prior to export.
 
Certain other changes will be phased in over time, including electronic reporting to EPA’s Waste Import Export Tracking System and submitting certain information to CBP through its Automated Export System. The terms of consents issued prior to the rule’s effective date are generally unaffected.
 
These rules are effective in all states, as allowed by RCRA, and civil penalties for each RCRA violation just increased to over $70,000 per day.
 
Second, EPA adopted a comprehensive overhaul to the RCRA generator rules. This is the first overhaul since the generator rules were published in the 1980s. While some of these rules will simplify and streamline compliance as compared to existing rules, the 60 plus changes are, overall, a mixed bag. Importantly, none of these Generator Improvement Rule changes will be effective in RCRA authorized states (which is the vast majority, including all New England states) until those states update their rules.
 
Among the notable features of the “Generator Improvements Rule”:
 
  – Very Small Generators (less than 100 kgs/month) may send their waste to a Large Quantity Generator facility under control of the same company, under certain conditions;
  – Very Small Generators may maintain their smaller status if there is only episodic generation of larger quantities within 60 days;
  – There may be a local waiver of the 50-foot property line buffer for storage of ignitable wastes;
  – Generators must now provide certain information to local responders in advance; and
  – Generator rules will now be found in one location in the CFR.
 
There are several new burdens, including:
 
  – Hazardous Waste containers must now describe hazards and dates of initial accumulation; and
  – Small Quantity Generators must re-notify every four years starting in 2021.
 
EPA has codified several “clarifications” that may require changes for generators who have been unaware of these agency interpretations. These include:
 
  – Waste is regulated “as generated” before any mixing, treatment or dilution;
  – When a generator may rely on “generator knowledge”; and
  – Allowing satellite accumulation areas for Small Quantity Generators.
 
One of several of EPA’s proposed changes not adopted in the final rule included a recordkeeping requirement to document determinations that waste was not a hazardous waste.
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COMM_a318. L.S. Zengerle, E.L. LaRocca, D.J. Delott: “TN Visa Category Faces Uncertain Future”
 
* Authors: Lynda S. Zengerle, Esq., lzengerle@steptoe.com, 202-429-8170; Elizabeth Laskey LaRocca, Esq., elarocca@steptoe.com, 202-429-1351; and Dana J. Delott, Esq., ddelott@steptoe.com, 202-429-6498. All of Steptoe & Johnson LLP.
 
Throughout the campaign season, President-Elect Trump vowed to re-negotiate the North American Free Trade Agreement (NAFTA), which he characterized as the “worst trade deal in history.”  Mr. Trump has threatened US withdrawal from NAFTA, absent satisfactory renegotiation with Mexico and Canada, our NAFTA partners.  This threat has serious implications for the TN (Trade NAFTA) immigration category.  With a new and radically changed administration, employers need to reduce their exposure to immigration risks associated with sudden changes in policy.
 
TN: Canadian and Mexican Temporary Professional Workers
 
The TN temporary immigration category is available exclusively to citizens of Canada and Mexico.  The category is further limited to a designated list of professional occupations.  
 
The TN category is widely utilized by US businesses.  Companies with offices in the US and Canada and/or Mexico often rely on the TN category for key members of their workforce.  The advantages of the TN category include an abbreviated application process, unlimited extensions and no annual limit or “cap” on utilization. 
 
NAFTA Uncertain Under Trump, Assess TN Alternatives
 
The future of NAFTA is uncertain under a President Trump.  Thus far, Canadian Prime Minister Justin Trudeau has stated that he is ready to discuss and renegotiate NAFTA.  Mexican Foreign Minister Claudia Ruiz Massieu has confirmed Mexico’s willingness to “modernize” NAFTA, but not renegotiate.  In light of this, companies which rely on the TN category should evaluate long term options and plan for the possibility that the TN category could be changed or eliminated, permanently or temporarily.
 
Primary Alternative Options
 
Permanent Residence: Unique Commuter Option

There is no limit on the number of years a person can hold TN status.  Thus, there are many foreign nationals who have worked in the US in TN status for many years.  Some of these individuals alternate between working in the US and working in Canada or Mexico.  With the uncertainty brought on by a Trump administration, both for the TN category and US immigration in general, it is time to consider permanent immigration options for these long term employees.
 
US permanent residence (green card) status via employer sponsorship is typically a lengthy process.  However, for native-born citizens of Mexico and Canada, the outlook and time frames are more favorable than for nationals of India and China.  Additionally, there is a unique provision in the law which allows a US permanent resident to reside in a foreign contiguous territory and commute to a job in the US.  Thus, it is possible for an employee to reside in Canada or Mexico as a US permanent resident, provided the individual commutes to a job in the US.
 
H-1B: Cap Timing Hurdles
 
The H-1B temporary professional worker category is a potential option for many current TN employees.  Almost all designated TN positions require a bachelors or higher level degree as a prerequisite.  Thus, these positions often fit neatly into the H-1B category requirements.
 
The primary hurdle for employers considering the H-1B category is the annual limit or “cap.”  Cases filed for first-time, cap-subject beneficiaries can only be filed during the first five business days of April annually.  Companies should identify their H-1B candidates by January each year, so ample time remains for H-1B petition preparation.  Complicating matters further, the H-1B cap limit is not sufficient to meet the demand in this category.  Thus, the US Citizenship and Immigration Services (USCIS) conducts a lottery each year to select the cases which will go forward.  Cases which are not selected are rejected.  It is not uncommon to have to pursue this category over more than one cap season, as the volume of filings is typically more than twice the annual numerical limit.
 
L-1: Intracompany Transferees
 
The L-1, intracompany transferee, category is another option which may be available to TNs.  The L-1 is appropriate for some of the TN employees working for multinational companies.  Executives and high- level managers fall within L-1(A); specialized and advance knowledge employees fall within L-1(B).
 
As the L-1 category is reserved for transferees, that is, employees who have worked for the company abroad for at least one full year in the last three years prior to coming to the US, planning is required. Decisions about employee relocation, to and from the US, should include an analysis of the implications of the timing on L-1 eligibility.
 
E-1/E-2: Not an Option
 
While both Canada and Mexico are currently able to utilize the E-1 (Treaty Trader) and E-2 (Treaty Investor) categories, these, too are tied to NAFTA.  NAFTA is the treaty underlying the E-1 and E-2 categories for Canada and Mexico.  Thus, the fate of these categories is also dependent upon the fate of NAFTA.
 
Permanent Residence Provides Greater Stability
 
Both the H-1B and L-1 categories have been the target of substantial criticism in recent years. Both categories have seen restrictions and enhanced compliance changes, such as the addition of USCIS visits to the employment site. These categories have limits on the maximum period of stay.  Ultimately, long term employment of foreign nationals requires employers to pursue green card options.  US Permanent Residents have far more security than those in temporary categories and are indefinitely eligible to live and work in the US.

 

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COMM_a419. R.C. Burns: “New White House Cannot Impose China Tariffs Under Trading With The Enemy Act”
(Source:
Export Law Blog
. Reprinted by permission.)
 
* Author: R. Clifton Burns, Esq., Bryan Cave LLP, Wash DC, 202-624-3949,
Clif.Burns@bryancave.com
)
 
We trawl the nether regions of the Internet looking for export stories so that you don’t have to. We saw one today, on a dubious site called ValueWalk by a dubious journalist, reporting that China has threatened to ban sales of iPhone if the new administration imposes a threatened 45% tariff on Chinese imports. Global Times, a PRC-run website, did indeed threaten to halt sales of iPhones, Boeing airplanes and U.S. autos in China if tariffs are imposed on Chinese imports by the United States.
 
But the reporter for ValueWalk went off the deep end when she said Trump could unilaterally impose tariffs under the Trading with the Enemy Act (“TWEA”):
 
First of all, Trump could invoke the “Trading with the Enemy Act of 1917” to set big tariffs against other nations. The law states that the President can restrict trade with other countries “during time of war.” But here’s the thing: the U.S. doesn’t necessarily have to be at war with China for Trump to impose his desired 45% tariffs on Chinese imports. The definition is so loose that America can be “at war” in any part of the world, while Trump can impose tariffs on any countries he wants. In fact, some political experts believe that having U.S. special forces deployed in Syria and Libya is already enough to invoke the law.
 
Er, no, no, no and no again.
 
Let’s start with a rundown of the history of section 5(b) of the Trading with the Enemies Act, 50 App. USC § 5(b). As initially passed, that section permitted the President, or a delegated agency, “[d]uring time of war or any other period of national emergency declared by the President” to regulate imports of any property in which a foreign national has an interest. The section was amended in 1977 by Public Law 95-223, which struck the language in 5(b) relating to national emergencies declared by the President. The law allowed current regulations passed under the national emergency powers of the TWEA, which included the Cuba regulations and all regulations in effect under the law at the time of the amendment, to remain in force – provided that the President made an annual finding of national emergency justifying their continuation.
 
So we can’t look at the current regulations on Cuba under the TWEA despite the absence of an existing state of war as proof of a loose definition of a state of war. They are justified under the deketed but grandfathered national emergency language of section 5(b). The definitions in section 2 of the TWEA of “beginning of the war” and “end of the war” make clear that “war” under the TWEA requires a formal declaration of war by Congress. Boots on the ground anywhere outside the United States does not constitute “war” under Section 5(b) justifying the President to impose broad controls on international trade. Indeed, there would have been little purpose to the deletion of the national emergency powers of Section 5(b) if the President could exercise unilateral power of international trade by sending a handful of troops overseas to any zone of conflict or potential conflict.
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ENEDITOR’S NOTES

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EN_a321
. 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 (15 Nov 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 15 Nov 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 took effect on 15 November and will take effect 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.

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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 8,000 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.

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