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17-0117 Tuesday “The Daily Bugle”

17-0117 Tuesday “Daily Bugle”

Tuesday, 17 January 2017

TOPThe Daily Bugle is a free daily newsletter from Full Circle Compliance, containing changes to export/import regulations (ATF, Customs, NISPOM, EAR, FACR/OFAC, FTR/AES, HTSUS, and ITAR), plus news and events. Subscribe 
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  1. Commerce/BIS Amends EAR, Revisions to Sudan Licensing Policy
  2. Commerce/BIS Seeks Comments on Voluntary Self-Disclosure of Antiboycott Violations
  3. Treasury/OFAC Amends Sudanese Sanctions Regulations
  4. DHS/CBP & Treasury Seek Comments on Donations of Technology and Support Services To Enforce Intellectual Property Rights
  5. DHS/CBP Delays Effective Date of ACE as Sole CBP Authorized EDI System Until Further Notice
  6. DHS/CBP Delays Effective Date for Modifications of the NCAP Tests Until Further Notice
  1. Ex/Im Items Scheduled for Publication in Future Federal Register Editions
  2. Commerce/BIS: (No new postings.) 
  3. GAO Ex/Im Reports and Testimonies of Interest 
  4. Justice: Rolls-Royce plc Agrees to Pay $170 Million Criminal Penalty to Resolve Foreign Corrupt Practices Act Case 
  5. State/DDTC: (No new postings.) 
  6. EU Amends Restrictive Measures Concerning Iran and North Korea 
  7. UK/BIS ECO Posts Strategic Export Controls Licensing Data for Jul – Sep 2016 
  8. UK BIS: “Why Microservices?” 
  1. G.D. Hagen: “Do You Know What Export Control Reform Did With Those Crown Jewels?” 
  2. M.A. Srere & K. Robinson: “What is the Price for Failing to Voluntarily Disclose an FCPA Violation? – A Curious Case Of Successor Liability”
  1. Maureen Johanson Retires from Lockheed Martin
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Latest Changes: ATF (15 Jan 2016), Customs (20 Dec 2016), DOD/NISPOM (18 May 2016), EAR (17 Jan 2017), FACR/OFAC (17 Jan 2017), FTR (15 May 2015), HTSUS (1 Jan 2017), ITAR (10 Jan 2017) 

EXIMEX/IM ITEMS FROM TODAY’S FEDERAL REGISTER

EXIM_a11. 
Commerce/BIS Amends EAR, Revisions to Sudan Licensing Policy

(Source:
Federal Register) [Excerpts.]
 
82 FR 4781-4783: Revisions to Sudan Licensing Policy
* AGENCY: Bureau of Industry and Security, Commerce.
* ACTION: Final rule.
* SUMMARY: This rule revises the policy of review for applications for licenses to export or reexport to Sudan certain items that are intended to ensure the safety of civil aviation or the safe operation of fixed-wing, commercial passenger aircraft. Such applications will now be reviewed under a general policy of approval rather than a general policy of denial.
    This rule also revises the review policy from a general policy of denial to a general policy of approval for applications for licenses to export or reexport to Sudan certain items for use to inspect, design, construct, operate, improve, maintain, repair, overhaul or refurbish railroads in Sudan. This rule does not create any new license requirements or remove any existing license requirements for exports or reexports to Sudan. BIS is making these licensing policy changes in connection with ongoing U.S.-Sudan bilateral engagement, and with the aim of enhancing the safety of Sudan’s civil aviation and improving the country’s railroads. This action takes into account the United States’ goals to improve regional peace and security.
    This rule also removes two instances of ”contract sanctity dates” pertaining to the export and reexport of certain items to Sudan from the EAR that currently serve no practical purpose.
    BIS is taking these actions in coordination with the Department of the Treasury’s Office of Foreign Assets Control (OFAC), which is amending the Sudanese Sanctions Regulations.
* DATES:
Effective: January 17, 2017.
* FOR FURTHER INFORMATION CONTACT: Foreign Policy Division, Bureau of Industry and Security, Phone: (202) 482-4252.
* SUPPLEMENTARY INFORMATION: …
    Applications to export or reexport to Sudan complete aircraft and applications to export or reexport to Sudan aircraft-related items that are controlled for anti-terrorism reasons and one or more additional reasons (for example, missile technology reasons) will continue to be reviewed under a general policy of denial to all end users. …
     With respect to both aircraft related-items and railroad-related items, the general policies of approval set forth in this rule apply only to exports and reexports to Sudan for civil uses by non-sensitive end-users within Sudan. Sensitive end users, who are not eligible for these policies, include Sudan’s military, police, and/or intelligence services and persons that are owned by or are part of or are operated or controlled by those services. Additionally, license applications for the export or reexport of items that would substantially benefit such sensitive end users will generally be denied. To implement these policies, this rule revises Sec.  742.10(b)(3) of the EAR, which sets forth exceptions to the general policies of denial that apply to most license applications to export or reexport to Sudan. …
    BIS will continue to evaluate license applications in light of section 6(j) of the Export Administration Act of 1979 (EAA), as continued in effect under the International Emergency Economic Powers Act, and any other relevant legal requirements.
    This rule also removes and reserves paragraphs (c)(6)(iii) and (c)(10)(iii) of Supplement No. 2 to part 742, which state licensing policy and contract sanctity dates for aircraft, and cryptographic and cryptologic equipment, respectively. The licensing policies for these commodities are stated in paragraphs (b)(1)(iv) and (b)(1)(v) of Sec.  742.10 and need not be repeated in Supplement No. 2. Moreover, as a consequence of this rule, which revises licensing policy for certain aircraft-related items and railroad-related items, the latter category potentially including cryptographic and cryptologic equipment, paragraphs (c)(6)(iii) and (c)(10)(iii)’s statements of a general policy of denial for all end-users in Sudan is no longer accurate. Additionally, the recitation of contract sanctity dates in Supplement No. 2 does not serve a practical purpose. The term ”contract sanctity date” draws on section 6(p) of the EAA. That section constrains BIS’s ability to limit exports and reexports in performance of contracts entered into prior to the date of imposition of export controls. The references to the contract sanctity dates in the supplement do not limit or otherwise affect the right of any license applicant to assert that the provisions of section 6(p) of the EAA apply to the license application that it is submitting. The identified dates are also long outdated, with March 21, 2003, the most recent contract sanctity date that this rule removes from Supplement No. 2 to part 742. …
 
    Dated: January 4, 2017.
Kevin J. Wolf, Assistant Secretary for Export Administration.

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EXIM_a2
2. 
Commerce/BIS Seeks Comments on Voluntary Self-Disclosure of Antiboycott Violations

(Source:
Federal Register) [Excerpts.]
 
82 FR 4842: Submission for OMB Review; Comment Request; Voluntary Self-Disclosure of Antiboycott Violations
  The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
   – Agency: Bureau of Industry and Security.
   – Title: Voluntary Self-Disclosure of Antiboycott Violations.
   – Form Number(s): N/A.
   – OMB Control Number: 0694-0132. …
   – Needs and Uses: 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. …
    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
OIRA_Submission@omb.eop.gov or fax to (202) 395-5806.
 
Sheleen Dumas, PRA Departmental Lead, Office of the Chief Information Officer.

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

EXIM_a3
3. Treasury/OFAC Amends Sudanese Sanctions Regulations

(Source:
Federal Register
) [Excerpts.]
 

82 FR 4793-4794: Sudanese Sanctions Regulations
* AGENCY: Office of Foreign Assets Control, Treasury.
* ACTION: Final rule.
* SUMMARY: The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is amending the Sudanese Sanctions Regulations to authorize all prohibited transactions, including transactions involving property in which the Government of Sudan has an interest. OFAC is issuing this general license in connection with ongoing U.S.-Sudan bilateral engagement and in response to positive developments in the country over the past six months related to bilateral cooperation, the ending of internal hostilities, regional cooperation, and improvements to humanitarian access.
* DATES:
Effective: January 17, 2017.
* FOR FURTHER INFORMATION CONTACT: The Department of the Treasury’s Office of Foreign Assets Control: Assistant Director for Licensing, tel.: 202-622-2480, Assistant Director for Regulatory Affairs, tel.: 202-622-4855, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Department of the Treasury’s Office of the Chief Counsel (Foreign Assets Control), Office of the General Counsel, tel.: 202-622-2410.
* SUPPLEMENTARY INFORMATION: …
    OFAC is amending the Sudanese Sanctions Regulations (the “Regulations”) to add section 538.540, authorizing all transactions prohibited by the Regulations and by Executive Orders 13067 and 13412, effective as of January 17, 2017. Newly authorized transactions include the processing of transactions involving persons in Sudan; the importation of goods and services from Sudan; the exportation of goods, technology, and services to Sudan; and transactions involving property in which the Government of Sudan has an interest.
    OFAC is issuing this rule in connection with ongoing U.S.-Sudan bilateral engagement and in order to support and sustain positive developments in the country over the past six months. In conjunction with this engagement, the U.S. government has supported the Sudanese government’s ongoing efforts, including its cessation of military offensives in Darfur and the Two Areas, its cooperative efforts to resolve the ongoing conflict in South Sudan and cease any activity to undermine stability there, to improve access for humanitarian assistance by reducing government obstruction and streamlining governing regulations, and to enhance bilateral counterterrorism and security cooperation, including efforts to counter the Lord’s Resistance Army.
    Notwithstanding these positive developments in Sudan and the decision to amend the Regulations today to authorize all transactions prohibited by the Regulations, section 906 of the Trade Sanctions Reform and Export Enhancement Act of 2000, as amended (22 U.S.C. 7201 et seq.) (TSRA), continues to require in pertinent part that the export of agricultural commodities, medicine, and medical devices to Sudan shall be made pursuant to one-year licenses issued by the U.S. government, except that the requirements of such one-year licenses shall be no more restrictive than general licenses administered by the Department of the Treasury. See 22 U.S.C. 7205(a)(1). Section 906 of TSRA also specifies that procedures be in place to deny licenses for certain exports of agricultural commodities, medicine, and medical devices to Sudan. As with a general license added to the Regulations in 2011 that authorized the exportation or reexportation of food to Sudan (see 31 CFR 538.523; 76 FR 63191 (October 12, 2011)), the new general license added today includes the one-year license requirement and, along with counter-terrorism sanctions implemented by OFAC set forth in 31 CFR chapter V and other continuing requirements and authorities, satisfies TSRA’s requirement that procedures be in place to deny authorization for exports to Sudan that are determined to be promoting international terrorism. In particular, Sec.  501.601 of the Reporting, Procedures and Penalties Regulations, 31 CFR part 501 (RPPR), requires that all U.S. persons maintain records of authorized transactions for a period of not less than five years and further provides that OFAC may obtain these records at any time to monitor activities conducted pursuant to the general license; section 538.502 of the Regulations provides that OFAC may exclude any person, property,
or transaction from the operation of this general license; and section 501.803 of the RPPR provides that OFAC may amend, modify, or revoke this general license at any time.
    This new general license does not eliminate the need to comply with other provisions of 31 CFR chapter V including those parts related to terrorism, the proliferation of weapons of mass destruction, or narcotics trafficking, or other applicable provisions of law, including any requirements of agencies other than OFAC. Such requirements include, for example, the Export Administration Regulations (15 CFR parts 730 through 774) administered by the Bureau of Industry and Security of the Department of Commerce. This general license does not affect past, present, or future enforcement actions or investigations with respect to any violations, including apparent or alleged violations, of the Regulations that occurred prior to the effective date of this final rule. …
 
    Dated: January 10, 2017.
John E. Smith, Acting Director, Office of Foreign Assets Control.

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EXIM_a044. DHS/CBP & Treasury Seek Comments on Donations of Technology and Support Services To Enforce Intellectual Property Rights

(Source:
 Federal Register
) [Excerpts.]
 
82 FR 4800-4803: Donations of Technology and Support Services To Enforce Intellectual Property Rights
* AGENCY: U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.
* ACTION: Notice of proposed rulemaking.
* SUMMARY: This document proposes amendments to the U.S. Customs and Border Protection (CBP) regulations pertaining to the enforcement of intellectual property rights. Specifically, CBP is proposing amendments to implement a section of the Trade Facilitation and Trade Enforcement Act of 2015 which requires CBP to prescribe regulatory procedures for the donation of technologies, training, or other support services for the purpose of assisting CBP in intellectual property enforcement. The proposed regulations would enhance CBP’s intellectual property rights enforcement capabilities.
* DATES: Comments must be received on or before March 3, 2017. …
* FOR FURTHER INFORMATION CONTACT: Garrett D. Wright, Chief, Donations Acceptance Program, Office of Field Operations, U.S. Customs and Border Protection, telephone (202) 344-2344.
* SUPPLEMENTARY INFORMATION: …
 
Discussion of Proposed Amendments
 
New Subpart H to Part 133–Donations of Intellectual Property Rights Technology and Support Services
 
Sec.  133.61
    This document proposes to implement section 308(d) of the TFTEA by promulgating a new subpart H to part 133 of title 19 of the Code of Federal Regulations, entitled ”[D]onations of Intellectual Property Rights Technology and Support Services,” which would provide for the receipt and acceptance by CBP of donations of hardware, software, equipment, and similar technologies, as well as training and support services, for the purpose of assisting CBP in enforcing IPR. It is also proposed to add and reserve subpart G to part 133.
    New subpart H, as set forth in proposed new Sec.  133.61, prescribes the methods by which donations of IPR technology and support services may be made. Specifically, proposed 19 CFR 133.61(a) sets forth the scope of this section and identifies the relevant authority. Proposed 19 CFR 133.61(b) prescribes the conditions applicable to a donation offer and provides that CBP will notify the donor, in writing, if additional information is requested or if CBP has determined that it will not accept the donation. In this regard, it is noted that CBP will take into consideration all aspects of the proposed donation offer, including whether such offer would pose a real or potential conflict between the interests of the donor and the interests of the government. Proposed 19 CFR 133.61(c) provides that if CBP elects to accept a donation offer, CBP will enter into a signed, written agreement with an authorized representative of the donating entity that commemorates all applicable terms and conditions, and that an agreement to accept training and other support services must provide that the services or training are offered without the expectation of payment and that the service provider expressly waives any future claims against the government. …
 
R. Gil Kerlikowske, Commissioner.
    Approved: January 09, 2017.
Timothy E. Skud, Deputy Assistant Secretary of the Treasury.

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EXIM_a5
5. DHS/CBP Delays Effective Date of ACE as Sole CBP Authorized EDI System Until Further Notice

(Source: 
Federal Register
) [Excerpts.]
 
82 FR 4900-4901: Delay of Effective Date for the Automated Commercial Environment (ACE) Becoming the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Electronic Drawback and Duty Deferral Entry and Entry Summary Filings
* AGENCY: U.S. Customs and Border Protection, Department of Homeland Security.
* ACTION: Delay of effective date.
* SUMMARY: On August 30, 2016, U.S. Customs and Border Protection (CBP) published a notice in the Federal Register announcing plans to make the Automated Commercial Environment (ACE) the sole electronic data interchange (EDI) system authorized by the Commissioner of U.S. Customs and Border Protection (CBP) for processing electronic drawback and duty deferral entry and entry summary filings. The changes announced in that notice were to have been effective on October 1, 2016. On October 3, 2016, CBP published a notice in the Federal Register announcing that the effective date for the transition to ACE as the sole CBP-authorized EDI system for electronic drawback and duty deferral entry and entry summary filings would be delayed until further notice. On December 12, 2016, CBP published a notice in the Federal Register announcing that the effective date for the transition would be January 14, 2017.
This notice announces that the effective date for the transition has been delayed until further notice. …
* FOR FURTHER INFORMATION CONTACT: Questions related to this notice may be emailed to
ASKACE@cbp.dhs.gov with the subject line identifier reading ”ACS to ACE Drawback and Duty Deferral Entry and Entry Summary Filings transition”.
* SUPPLEMENTARY INFORMATION: …
    The effective date for the all that was announced in the August 30, 2016 Federal Register notice, including the transition to ACE as the sole CBP-authorized EDI system for electronic drawback and duty deferral entry and entry summary filings, is delayed until further notice. CBP will publish a subsequent notice announcing the effective date.
 
    Dated: January 11, 2017.
Brenda B. Smith, Executive Assistant Commissioner, Office of Trade.

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

EXIM_a6
6. DHS/CBP Delays Effective Date for Modifications of the NCAP Tests Until Further Notice

(Source:
Federal Register
) [Excerpts.]
 
 
82 FR 4901: Delayed Effective Date for Modifications of the National Customs Automation Program Tests Regarding Reconciliation, Post-Summary Corrections, and Periodic Monthly Statements
* AGENCY: U.S. Customs and Border Protection, Department of Homeland Security.
* ACTION: Delay of effective date.
* SUMMARY: This notice announces that the effective date for the modifications to the National Customs Automation Program (NCAP) tests regarding Reconciliation, Post-Summary Corrections, and Periodic Monthly Statements is delayed until further notice. On December 12, 2016, U.S. Customs and Border Protection (CBP) published a notice in the Federal Register announcing modifications to the National Customs Automation Program (NCAP) test regarding reconciliation, and the transition of the test from the Automated Commercial System (ACS) to the Automated Commercial Environment (ACE). The modifications made by this notice were to be effective on January 14, 2017. On December 12, 2016, U.S. Customs and Border Protection (CBP) published in the Federal Register a document announcing CBP’s plans to modify and clarify the National Customs Automation Program (NCAP) test regarding Post-Summary Correction (PSC) claims to entry summaries that are filed in the Automated Commercial Environment (ACE), as well as the Periodic Monthly Statement (PMS) test. The notice liberalized and eliminated some requirements needed for the filing of PSCs; however, it also placed burdens on the importer in the form of a restriction and a prohibition. Subsequently, CBP published a notice in the Federal Register on January 9, 2017, to remove the restriction imposed on all PSC filings to make payments within three business days of submitting the PSC, with the exception of entry type 03 filings, and to remove the prohibition of filing additional PSCs until additional duties, fees and taxes are deposited. The changes to the PSC and PMS tests were to have been effective January 14, 2017. This notice announces that the effective date for the modifications to these NCAP tests has been delayed until further notice.
* DATES: The effective date for the modifications to the reconciliation, PSC, and PMS NCAP tests is delayed until further notice.
* ADDRESSES: Comments concerning the reconciliation test program may be submitted any time during the test via email, with a subject line identifier reading, ”Comment on Reconciliation test”, to
OFO-RECONFOLDER@cbp.dhs.gov.
    Comments concerning the PSC and PMS test programs may be submitted via email to Monica Crockett at ESARinfoinbox@dhs.gov with a subject line identifier reading, ”Post-Summary Corrections and Periodic Monthly Statements.”
* FOR FURTHER INFORMATION CONTACT: Reconciliation: Acenitha Kennedy, Entry Summary and Revenue Branch, Trade Policy and Programs, Office of Trade at (202) 863-6064 or ACENITHA.KENNEDY@CBP.DHS.GOV.
   – PSC and PMS: For policy-related questions, contact Randy Mitchell, Director, Commercial Operations, Trade Policy and Programs, Office of Trade, at
Randy.Mitchell@cbp.dhs.gov. For technical questions related to ABI transmissions, contact your assigned client representative. Interested parties without an assigned client representative should direct their questions to the Client Representative Branch at (703) 650-3500.
* SUPPLEMENTARY INFORMATION:
    On December 12, 2016, U.S. Customs and Border Protection (CBP) published a notice in the Federal Register (81 FR 89482) announcing plans to modify and clarify, effective January 14, 2017, the National Customs Automation Program (NCAP) test regarding Post-Summary Correction (PSC) claims, and the Periodic Monthly Statement (PMS) test. The modifications made by the notice eliminated or liberalized certain requirements for the filing of a PSC, making it easier for importers to file a PSC for additional entry types, and allowed filers additional time to make a deposit for duties, fees and taxes owed. With regard to the PMS test program, the notice announced the time at which CBP considers a PMS as paid when filers use the Automated Clearing House (ACH) debit process.
    Subsequently, CBP decided not to implement two of the changes announced in the December 12, 2016 notice. In a notice published in the Federal Register (82 FR 2385) on January 9, 2017, CBP removed the requirement that additional duties, fees and taxes be submitted within three business days of filing a PSC, and limited the restriction of submitting payment to PSC filings declaring an increase of liability for antidumping/countervailing duties and associated fees and taxes. The notice also removed the prohibition of filing additional PSCs until the duties, fees and taxes are deposited. Like the changes made in the December 12, 2016 notice, these changes were to become effective on January 14, 2017. This notice announces that the effective date for the modifications to the PSC and PMS tests has been delayed until further notice.
 
    Dated: January 11, 2017.
Brenda B. Smith, Executive Assistant Commissioner, Office of Trade.

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

OGS
OTHER GOVERNMENT SOURCES

OGS_a17. Ex/Im Items Scheduled for Publication in Future Federal Register Editions
(Source: Federal Register)

* President; ADMINISTRATIVE ORDERS; Middle East Peace Process, Terrorists Who Threaten To Disrupt; Continuation of National Emergency (Notice of January 13, 2017) [Publication Date: 18 January 2017.]
 
* President; EXECUTIVE ORDERS; Sudan: Recognizing Positive Government Actions and Revoking Certain Sanctions (EO 13761) [Publication Date: 18 January 2017.]
 
* Treasury; Foreign Assets Control Office; NOTICES; Blocking or Unblocking of Persons and Properties [Publication Date: 18 January 2017.]
* * * * * * * * * * * * * * * * * * * *

OGS_a28. Commerce/BIS: (No new postings.)

(Source: Commerce/BIS)
* * * * * * * * * * * * * * * * * * * *

OGS_a39. GAO Ex/Im Reports and Testimonies of Interest

(Source: GAO)    
 
In 2014, the President announced a shift in U.S. policy toward Cuba-restoring diplomatic relations, modifying the long-standing economic embargo, and increasing support for the Cuban people, including the nascent private sector.
 
Along with the import of cigars and rum, new U.S. regulations have fostered some travel and commerce with Cuba-but the embargo and Cuban government barriers still limit economic engagement.
 
Federal agencies have begun to engage with U.S. businesses and Cuban entrepreneurs, but with uncertain results.
 
We
recommended agencies start collecting information necessary to monitor the economic impacts of the policy change.
 

The full report can be accessed here

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

OGS_a410. Justice: Rolls-Royce plc Agrees to Pay $170 Million Criminal Penalty to Resolve Foreign Corrupt Practices Act Case

(Source:
Justice) [Excerpts.]
 
Rolls-Royce plc, the United Kingdom-based manufacturer and distributor of power systems for the aerospace, defense, marine and energy sectors, has agreed to pay the U.S. nearly $170 million as part of an $800 million global resolution to investigations by the department, U.K. and Brazilian authorities into a long-running scheme to bribe government officials in exchange for government contracts.  …
 
  “Bribery of government officials undermines the integrity of a free and fair market,” said U.S. Attorney Glassman.  “This multinational resolution imposes significant criminal penalties on Rolls-Royce for its multinational corruption.”
 
  “For more than a decade, Rolls-Royce repeatedly resorted to bribes to secure contracts and get a competitive edge in countries throughout the world,” said Chief Weissmann.  “The global nature of this crime requires a global response, and this case is yet another example of the strong relationship between the United States and U.K. Serious Fraud Office and Brazilian Ministério Público Federal, and the collective efforts to ensure that ethical companies can compete on an even playing field anywhere in the world.” …
 
According to admissions made in court papers unsealed today, Rolls-Royce admitted that between 2000 and 2013, the company conspired to violate the Foreign Corrupt Practices Act (FCPA) by paying more than $35 million in bribes through third parties to foreign officials in various countries in exchange for those officials’ assistance in providing confidential information and awarding contracts to Rolls-Royce, RRESI and affiliated entities (collectively, Rolls-Royce):
 
  – In Thailand, Rolls-Royce admitted to using intermediaries to pay approximately $11 million in bribes to officials at Thai state-owned and state-controlled oil and gas companies that awarded approximately seven contracts to Rolls-Royce during the same time period.
  – In Brazil, Rolls-Royce used intermediaries to pay approximately $9.3 million in bribes to bribe foreign officials at a state-owned petroleum corporation that awarded multiple contracts to Rolls-Royce during the same time period.
  – In Kazakhstan, between approximately 2009 and 2012, Rolls-Royce paid commissions of approximately $5.4 million to multiple advisors, knowing that at least a portion of the commission payments would be used to bribe foreign officials with influence over a joint venture owned and controlled by the Kazakh and Chinese governments that was developing a gas pipeline between the countries.  In 2012, the company also hired a local Kazakh distributor, knowing it was beneficially owned by a high-ranking Kazakh government official with decision-making authority over Rolls-Royce’s ability to continue operating in the Kazakh market.  During this time, the state-owned joint venture awarded multiple contracts to Rolls-Royce.
  – In Azerbaijan, between approximately 2000 and 2009, Rolls-Royce used intermediaries to pay approximately $7.8 million in bribes to foreign officials at the state-owned and state-controlled oil company, which awarded multiple contracts to Rolls-Royce during the same time period.
  – In Angola, between approximately 2008 and 2012, Rolls-Royce used an intermediary to pay approximately $2.4 million in bribes to officials at a state-owned and state-controlled oil company, which awarded three contracts to Rolls-Royce during this time period.
  – In Iraq, from approximately 2006 to 2009, Rolls-Royce supplied turbines to a state-owned and state-controlled oil company.  Certain Iraqi foreign officials expressed concerns about the turbines and subsequently threatened to blacklist Rolls-Royce from doing future business in Iraq.  In response, Rolls-Royce’s intermediary paid bribes to Iraqi officials to persuade them to accept the turbines and not blacklist the company.
 
Rolls-Royce entered into a deferred prosecution agreement (DPA) in connection with a criminal information, filed on Dec. 20, 2016, in the Southern District of Ohio and unsealed today, charging the company with conspiring to violate the anti-bribery provisions of the FCPA.  Pursuant to the DPA, Rolls-Royce agreed to pay a criminal penalty of $195,496,880, subject to a credit discussed below.  The company has also agreed to continue to cooperate fully with the department’s ongoing investigation, including its investigation of individuals.
 
In related proceedings, Rolls-Royce also settled with the United Kingdom’s Serious Fraud Office (SFO) and the Brazilian Ministério Público Federal (MPF).  As part of its resolution with the SFO, Rolls-Royce entered into a DPA and admitted to paying additional bribes or failing to prevent bribery payments in connection with Rolls-Royce’s business operations in China, India, Indonesia, Malaysia, Nigeria, Russia and Thailand between in or around 1989 and in or around 2013, and Rolls-Royce agreed to pay a total fine of £497,252,645 ($604,808,392).  As part of its leniency agreement with the MPF, Rolls-Royce also agreed to pay a penalty of approximately $25,579,170 for the company’s role in a conspiracy to bribe foreign officials in Brazil between 2005 and 2008.  Because the conduct underlying the MPF resolution overlaps with the conduct underlying part of the department’s resolution, the department credited the $25,579,170 that Rolls-Royce agreed to pay in Brazil against the total fine in the United States.  Therefore, the total amount to be paid to the United States is $169,917,710, and the total amount of penalties that Rolls-Royce has agreed to pay is more than $800 million.   
 
A number of factors contributed to the department’s criminal resolution with the company, including that Rolls-Royce did not disclose the criminal conduct to the department until after the media began reporting allegations of corruption and after the SFO had initiated an inquiry into the allegations and that the conduct was extensive and spanned 12 countries.  However, the company did cooperate with the department’s investigation.  Rolls-Royce has also taken significant remedial measures, including terminating business relationships with multiple employees and third-party intermediaries who were implicated in the corrupt scheme; enhancing compliance procedures to review and approve intermediaries; and implementing new and enhanced internal controls to address and mitigate corruption and compliance risks.  Thus, the criminal penalty reflects a 25-percent reduction from the bottom of the U.S. Sentencing Guidelines fine range.  In addition, the department considered the parallel resolutions reached by the SFO and MPF in determining the resolution. …

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

OGS_a511. State/DDTC: (No new postings.)

(Source: State/DDTC)
* * * * * * * * * * * * * * * * * * * *

OGS_a612. EU Amends Restrictive Measures Concerning Iran and North Korea

 
Regulations:
  –
Council Implementing Regulation (EU) 2017/77 of 16 January 2017 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran
  –
Commission Implementing Regulation (EU) 2017/80 of 16 January 2017 amending Council Regulation (EC) No 329/2007 concerning restrictive measures against the Democratic People’s Republic of Korea
 
Decisions:
  –
Council Decision (CFSP) 2017/82 of 16 January 2017 amending Decision (CFSP) 2016/849 concerning restrictive measures against the Democratic People’s Republic of Korea
  –
Council Decision (CFSP) 2017/83 of 16 January 2017 amending Decision 2010/413/CFSP concerning restrictive measures against Iran

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

OGS_a713. UK/BIS ECO Posts Strategic Export Controls Licensing Data for Jul – Sep 2016

(Source:
UK/BIS ECO)   
 
UK/BIS has released the export licensing data for various periods between January 2014 – 30 September 2016.
 
Each quarterly report published since ‘Strategic export controls: licensing statistics, 1 January to 31 March 2015’ (published in July 2015) provides users with:
 
  (1) a set of data tables presenting data on licensing decisions and processing times for all license applications.
    – for each quarterly report data is provided annually and quarterly from 2008 to the latest available quarter as excel sheets.
    – each set of tables is fully updated where they have been changes to data since the last publication (back to the start of 2008) so users should refer to the latest release for the most up to date data.
  (2) the same data presented in csv spread sheets for easier data manipulation.
  (3) a statistical commentary report that aims to summarize the key data trends and provide context and explanation for trends
  (4) a country level data report giving data per country published as a PDF
 
Country level data reports are available for each quarter and year from January to March 2008 onwards. The information available in these reports is provided in each quarterly report from January to March 2015.
 
Users can also download data relating to specific license types, destinations and goods by generating a ‘new report’ from the
strategic export controls: reports and statistics website. …
 
The reports are available at
here

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OGS_a814. UK/BIS: “Why Microservices?”

(Source: 
UK/BIS Blog)   
 

Before you read any further: this will be a technology-heavy blog post. If you’re not interested in the cogs whirring away inside an online platform like this one, we’ll forgive you for giving this one a miss.
 
Justin previously gave an explanation of some of the technologies that we’re going to use to build LITE and how we chose them. It’s worth taking a moment to discuss how these technologies will benefit users of the new service and provide the development team with the capability to meet the range of demands being placed on them.
 
We’re using microservices, and here’s why.
 
Better Software Development
 
Technologies like
Docker and
Kubernetes are relatively new, but rapidly becoming mainstream. Google, BBC and Netflix (among thousands of other major organisations) are using these tools to build highly scalable and highly available systems that are backed by microservices.
 
Essentially, a microservices software architecture is just a way of building software in lots of small, individually deployable pieces, rather than one large program (often referred to as a “monolith”).
 
At this scale, developers can reason about and fully understand the impact of a change they’re making, reducing risk and the chances of introducing bugs.
 
An added benefit of small, succinct code is that it’s easier to automatically test (via unit testing and other methods), which gives further assurance that bugs aren’t being introduced by changes.
 
As all of the services interact with each other via an agreed contract, changes that might break other parts of the system can be more easily identified, understood and managed.
 
This all makes for a more reliable and bug-free experience, and keeps development moving quickly.
 
Tightening The Feedback Loop
 
The software industry gold standard for how to run projects is now, without a doubt, the agile methodology. One of its core fundamentals is getting feedback quickly and iterating the design based on that feedback.
 
Getting quick feedback is reliant on being able to show off your work. One of the best ways to do that is to deploy it to an environment where others can see it (a testing or staging environment).
 
To this end, Docker and Kubernetes act as a cutting-edge deployment mechanism helping our development team to tighten the feedback loop.
 
Enabling Continuous Delivery
 
The traditional method of delivering software via a so called “big bang” release (after weeks or months of development) is going out of fashion – and for good reason. Software is of more value to everyone if it can be released and updated more rapidly, incorporating feedback and changes as necessary.
 
An ideal situation is one where we’re delivering updates to production systems on a regular basis – potentially many times per day. That might sound risky, but it’s actually one of the best ways to remove risk from software development.
 
If changes are so small, and so easy to understand that they can move through your entire development, QA, build and deployment pipeline in a day, the overall risk is significantly reduced. From an operational perspective, smaller, more regular changes are also easy to manage, test and revert if there’s a problem.
 
Seamless Upgrades
 
Kubernetes and Docker allow us to move away from an era of deployment where a whole system is turned off for a few hours for maintenance and upgrades. We’ll be able to upgrade small parts of a system at any time – no more ‘Service temporarily unavailable’.
 
We can react to problems faster, with no need to wait until the evening or weekends to release crucial fixes or changes. We can test changes with a subset of the user community before performing a wider roll-out. We can A/B test changes (by providing two different implementations in parallel).
 
Most importantly, if changes have adverse effects we can roll them back easily and investigate further.
 
Building An Open Architecture
 
During the alpha and early beta, we’ve been producing a set of building blocks that allow us to deliver a first class export licensing service. Later other licensing regimes related to export controls can be brought on-board, so that exporters have a single, consistent way to interact with government.
 
A services-first approach enables us to easily on-board other development teams (who could even be using different tools and programming languages). A we can change or add to our own software ecosystem as the requirements and approach for these other pieces of work starts to become clear.
 
What’s The Impact On The Project?
 
These benefits don’t come for free. Some of the challenges that we face are around log management and debugging – in that when a problem comes up, we have to be able to identify which part of the software ecosystem is causing it.
 
As with everything in software, we’re making a trade-off, balancing the day-to-day costs of microservices with the benefits of faster deployment, a tighter feedback loop and a more resilient software solution. We believe the trade-off is worth it, and that we’ll provide a more stable and maintainable service for our customers.
 

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COMMCOMMENTARY

COMM_a115.
 G.D. Hagen: “Do You Know What Export Control Reform Did With Those Crown Jewels?”

(Source:
Author)
 
* Author: Gary D. Hagen, Export Controls Professional (Principal)
at the Pacific Northwest National Laboratory,
gary.hagen@pnnl.gov, 509-375-2506.
 
When then-Secretary of Defense Robert M. Gates gave his
“Crown Jewels” speech on April 20, 2010, he launched the Export Control Reform Initiative we have seen unfold in recent years.  In outlining the Obama Administration’s long-term plan, he stated:
 
We need a system that dispenses with the 95 percent of ‘easy’ cases and lets us concentrate our resources on the remaining 5 percent.
 
The vision at the time was to build a single export control list rather than the somewhat fragmented and disjointed approach of recent decades.
 
This single list, combined with a single licensing agency, would allow us to concentrate on controlling those critical technologies and items — the crown jewels, if you will — that are the basis for maintaining our military technology advantage, especially technologies and items that no foreign company or government can duplicate.
 
Nuclear weapons technologies would arguably be included in that top 5 percent, the crown jewels, of critical technologies. But where did they go? They are no longer found in the ITAR; but neither do they now appear in the EAR as virtually all other export reform transfers have done, before or since.  So for the boomer generation (pardon the pun) it’s a case of
Car 54 Where Are You.
 
On January 30, 2013, Department of State issued a proposed rule for revising USML Category XVI (nuclear weapons related articles); see 78 FR 6269 (2013-01-30). [F/N1] The proposed rule sought to draw a jurisdictional bright line with respect to items that are now subject to the Department of Energy.  As a result, most of the items then enumerated in USML XVI were removed. The only USML XVI articles that remained subject to ITAR control were modeling or simulation tools for the environment generated by nuclear detonations, or the effects of those environments. Also remaining in the ITAR were technical data, defense services, and specially designed items related to, and other commodities or software used in or with, those same modeling or simulation tools.
 
But not everything that was proposed to be transferred out of USML XVI was destined to the jurisdiction of Department of Energy, or even to the “600 series” of the CCL.  Some items were to transfer to the EAR under already existing, non-‘600 series’ ECCNs.  Such items included those that had been listed in USML XVI as “nuclear radiation detection and measurement devices specifically designed or modified for military applications.”  These items were proposed to become subject to Department of Commerce jurisdiction under ECCNs 1A004.c.2 or 2A291.e.
 
The parallel notices of January 2, 2014 from Departments of State and Department of Commerce implemented these proposed rules as final; see 79 FR 34 (2014-01-02) and 79 FR 264 (2014-01-02).  Again, no articles formerly in USML Category XVI – Nuclear Weapons Related Articles were identified in “600 series” ECCNs.  As proposed, the radiation detectors formerly in USML XVI transferred to already existing ECCNs.  But where did all the other Nuclear Weapons Related Articles land? 
 
The export and import of these nuclear weapons related articles are controlled today by Department of Energy’s National Nuclear Security Administration (NNSA) under the Atomic Energy Act of 1954, as amended.  To establish applicable policy and procedures, NNSA’s Office of Defense Programs published Policy Letter NAP-23, Atomic Energy Act Control of Import and Export Activities.  AEA-controlled information, items and services are managed in a graded manner.  Three control tiers are currently established by NAP-23.  Additional details can be found in the NAP-23 Policy Letter located
here:
 
So now you know.
 
———-
  [FN/1]: Export and import of AEA-controlled information, items and services are managed by the Department of Energy’s National Nuclear Security Administration under the NAP-23 Policy Letter found
here

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COMM_a216. M.A. Srere & K. Robinson: “What is the Price for Failing to Voluntarily Disclose an FCPA Violation? – A Curious Case Of Successor Liability”

(Source: Bryan Cave LLP)
 
* Authors: Mark A. Srere, Esq., mark.srere@bryancave.com, 202-508-6050; and Kristin Robinson, Esq., kristin.robinson@bryancave.com, 202 508 6334. Both of Bryan Cave LLP.
 
On January 6, 2017, the Securities and Enforcement Commission filed an Administrative Action announcing a settlement with two global agribusiness companies. The Order is brief and short on facts. The facts that it does share leads to a bit of head-scratching, and raises questions about how the SEC penalizes companies for not voluntarily disclosing potential violations of the FCPA.
 
Essentially, Company 1 failed “to conduct appropriate due diligence on” and “monitor the activities of” an agent that its Indian subsidiary engaged in January 2010. Company 2 bought Company 1 in February 2010, but was precluded from conducting far-reaching anti-corruption due diligence. The Indian subsidiary made approximately $90,000 in payments to the agent from February to October 2010. In October 2010, Company 2 received information questioning the payments to the agent and as the result of an internal investigation terminated the agent and stopped any further payments.
 
According to the Order, Company 1’s failure “created the risk that funds paid to [the agent] could be used for improper or unauthorized purposes.” Moreover, the subsidiary’s books and records did not accurately and fairly reflect the nature of the agent’s services and Company 1 did not devise and maintain an adequate system of internal accounting controls. Company 2 was tabbed with successor liability.
 
The Indian subsidiary sought government licenses and approvals necessary for expansion and solicited assistance from an outside agent. Subsidiary representatives met with, negotiated with and recommended hiring the agent, who management approved without further due diligence. In the six months that followed, the agent submitted several invoices purportedly for the preparation and submission of license applications, when in fact those documents were prepared by employees of the Indian subsidiary. In addition, after receiving each payment, the agent withdrew the money from the bank in cash.
 
When Company 2 acquired Company 1, it conducted “substantial, risk-based, post-acquisition compliance-related due diligence reviews in 24 countries, including India. This post-acquisition due diligence review did not identify the relationship between [the agent and Company 1].” However, the Order further states that “In October 2010, upon commencement of an internal investigation related to [the agent], [Company 2] required [Company 1] to end the relationship with [the agent] and no further payments were made.”
 
The Order also notes that Company 2 cooperated with the SEC’s investigation and undertook extensive remedial actions.
 
Sounds pretty good, doesn’t it? Successor company takes over target and conducts serious post-acquisition due diligence as well as responds to what must have been a whistleblower complaint that identified a problem, stopped payment and fired an agent, and took remedial action. Isn’t that appropriate action for a good corporate citizen? Isn’t that what most lawyers would advise a company to do?
 
Yet the reward for such good corporate behavior was a cease and desist order for both Company 1 and Company 2 as well as a $13 million civil penalty for Company 2. A $13 million penalty for a successor company that inherited a problem it did not create, and for which it tried to conduct due diligence to detect and prevent seems highly unusual.
 
The Order is especially surprising in light of the government’s FCPA Guidance on successor liability. The Guidance notes that the government has not gone after companies that have voluntarily disclosed the violations, and states that “DOJ and SEC have only taken action against successor companies in limited circumstances, generally in cases involving egregious and sustained violations or where the successor company directly participated in the violations or failed to stop the misconduct from continuing after the acquisition.” From the facts articulated in the Order, this does not appear to be an “egregious and sustained violation,” nor does it appear that Company 2 directly participated in the violation. Most importantly, Company 2 stopped the conduct upon discovery.
 
The Guidance also states: “Importantly, a successor company’s voluntary disclosure, appropriate due diligence, and implementation of an effective compliance program may also decrease the likelihood of an enforcement action regarding an acquired company’s post-acquisition conduct when pre-acquisition due diligence is not possible.” To quote Meatloaf, two out of three ain’t bad. But under this settlement, apparently missing the voluntary disclosure results in a fairly punitive fine.
 
When viewed objectively, Company 1 had operations in 60 countries and employed 45,000 people, including 2,100 in India. That’s a huge operation to get your hands around. Company 2 did everything right: “substantial, risk-based, post-acquisition compliance-related due diligence reviews in 24 countries, including India.” It stopped the conduct within 9 months of the takeover and apparently immediately after the conduct was called to its attention.
 
Thus, it appears the successor company’s only mistake was to not voluntarily disclose this one issue to the government. Given that voluntary disclosure is not required (hence the term voluntary), the $13 million penalty seems extreme.
 
If additional conduct led to the penalty amount, the SEC did not reference it in the Order – which creates the issue we discuss above. If the SEC is not willing to include all pertinent facts/allegations in the Order, then it serves no explanatory or deterrent purpose. And that makes it difficult for companies to properly read the tea leaves.

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MSEX/IM MOVERS & SHAKERS

MS_a1
17. Maureen Johanson Retires from Lockheed Martin

 
After 25 years in International Trade Compliance at Lockheed Martin to pursue a new career as an independent Executive Consultant for Rodan+Fields skincare.  She can be reached at
maureen.johanson@hotmail.com or 407-433-7755.

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ENEDITOR’S NOTES

(Source: Editor)


*
Benjamin Franklin
(17 Jan 1706 – 17 Apr 1790, was one of the Founding Fathers of the United States. Franklin was a renowned polymath and a leading author, printer, political theorist, politician, freemason, postmaster, scientist, inventor, civic activist, statesman, and diplomat.)

  – “Lost time is never found again.”

  – “It takes many good deeds to build a good reputation, and only one bad one to lose it.”

     (Or the military equivalent: “One aw-s**t! wipes out ten atta-boys!”)

 

*
Anne Bronte
(17 Jan 1820 – 28 May 1849, was an English novelist and poet, the youngest member of the three Brontë sisters, including Emily and Charlotte.)

  – He who dares not grasp the thorn, Should never crave the rose.”

    (Or the Italian proverb equivalent: “Non c’è rosa senza spine.” – There is no rose without thorns.)
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EN_a219
. 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: 20 Dec 2016: 81 FR 92978-93027: Regulatory Implementation of the Centers of Excellence and Expertise 

* 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: 17 Jan 2017: 82 FR 4781-4783: Revisions to Sudan Licensing Policy 

  
*
FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR)
: 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders
  – Last Amendment: 17 Jan 2017: 82 FR 4793-4794: Sudanese Sanctions Regulations 
 
*
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 Jan 2017: 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: 1 Jan 2017: 2017 Basic HTS  
  – 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.
  – Latest Amendment: 10 Jan 2017: 82 FR 2889-2892: International Traffic in Arms Regulations: Revision of U.S. Munitions List Category XV

  – The only available fully updated copy (latest edition 15 Jan 2017) of the ITAR with all amendments is contained in Bartlett’s Annotated ITAR (“BITAR”), by James E. Bartlett III.  The BITAR contains all ITAR amendments to date, plus a large Index, 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 subscribers to inform readers of changes to defense and high-tech trade laws and regulations. We check the following sources daily: Federal Register, Congressional Record, Commerce/AES, Commerce/BIS, DHS/CBP, DOJ/ATF, DoD/DSS, DoD/DTSA, State/DDTC, Treasury/OFAC, White House, and similar websites of Australia, Canada, U.K., and other countries and international organizations.  Due to space limitations, we do not post Arms Sales notifications, Denied Party listings, or Customs AD/CVD items.

* 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 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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