17-0721 Friday “The Daily Bugle”

17-0721 Friday “Daily Bugle”

Friday, 21 July 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 here for free subscription. Contact us for advertising inquiries and rates.

  1. Defense Trade Advisory Group to Meet on 8 September in Washington DC
  1. Ex/Im Items Scheduled for Publication in Future Federal Register Editions 
  2. Commerce/BIS: (No new postings.) 
  3. DHS/CBP Announces ACE PRODUCTION Outage on 22-23 July
  4. DHS/CBP Posts Notice of Customs Broker License Examination on 25 October
  5. State/DDTC: (No new postings.)
  1. Asia Times: “Sweden vs France: The Future of EU Arms Sales to Asia”
  2. House Budget Committee Proposes Moving BIS to State
  3. Morning Consult: “China and U.S. Diverge on High-Tech Trade in Economic Talks”
  4. Reuters: “Crimean Scandal Prompts Siemens to Retreat from Russian Energy”
  5. Reuters: “Exxon Sues U.S. Over Fine Levied for Russia Deal Under Tillerson”
  1. C. Tinaves: “Beware of Contracts Signed by Specially Designated Nationals”
  2. NEI: “How DOE’s Antiquated Export Controls Hamstring U.S. Nuclear Trade”
  3. Gary Stanley’s ECR Tip of the Day
  4. R.C. Burns: “ExxonMobil Fined Two Million Dollars for Two Milliliters of Ink”
  1. Friday List of Approaching Events
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Latest Changes: ATF (15 Jan 2016), Customs (30 Jun 2017), DOD/NISPOM (18 May 2016), EAR (7 Jul 2017), FACR/OFAC (16 Jun 2017), FTR (19 Apr 2017), HTSUS (28 Jun 2017), ITAR (11 Jan 2017)
  3. Weekly Highlights of the Daily Bugle Top Stories 



1. Defense Trade Advisory Group to Meet on 8 September in Washington DC

(Source: Federal Register)
82 FR 33939-33940: Defense Trade Advisory Group; Notice of Open Meeting
The Defense Trade Advisory Group (DTAG) will meet in open session from 1:00 p.m. until 5:00 p.m. on Friday, September 8, 2017 at 1777 F Street NW., Washington DC 20006. Entry and registration will begin at 12:30 p.m. The membership of this advisory committee consists of private sector defense trade representatives, appointed by the Assistant Secretary of State for Political-Military Affairs, who advise the Department on policies, regulations, and technical issues affecting defense trade. The purpose of the meeting will be to discuss current defense trade issues and topics for further study.
    The following agenda topics will be discussed:
  (1) One-Form electronic filing, review and discuss recommendations for making electronic filing more cost-effective and efficient for industry;
  (2) Identify key areas of concern with the proposed definition for defense services in 80 FR 31525 (June 3, 2015);
  (3) Review and provide feedback to accurately and effectively define “manufacturing” and distinguish it from other related activities like assembly, integration, installment and various services;
  (4) Examine and discuss the current rules regarding the release of technical data to foreign dual-nationals and identify alternative options which sufficiently facilitates risk assessment and risk mitigation; and
 (5) Discuss and provide assessment, including a cost-benefit analysis, of DDTC standardizing the expiration date for all new agreements to a fixed 10 year period from the date of initial approval.
  Members of the public may attend this open session and will be permitted to participate in the discussion in accordance with the Chair’s instructions. Members of the public may, if they wish, submit a brief statement to the committee in writing.
  As seating is limited to 125 persons, each member of the public or DTAG member that wishes to attend this plenary session should provide: His/her name and contact information such as email address and/or phone number and any request for reasonable accommodation to the DTAG Alternate Designated Federal Officer (DFO), Anthony Dearth, via email at DTAG@state.gov by COB Monday, August 28, 2017. If notified after this date, the Department might be unable to accommodate requests due to requirements at the meeting location. One of the following forms of valid photo identification will be required for admission to the meeting: U.S. driver’s license, passport, U.S. Government ID or other valid photo ID. For additional information, contact Ms. Glennis Gross-Peyton, PM/DDTC, SA-1, 12th Floor, Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, U.S. Department of State, Washington, DC 20522-0112; telephone (202) 663-2862; FAX (202) 261-8199; or email DTAG@state.gov.
  Anthony Dearth, Alternate Designated Federal Officer, Defense Trade Advisory Group, Department of State.

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. Ex/Im Items Scheduled for Publication in Future Federal Register Editions

Federal Register)
[No items of interest noted today.]

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DHS/CBP Announces ACE PRODUCTION Outage on 22-23 July

(Source: CSMS# 17-000414, 21 July 2017.)
There will be an ACE PRODUCTION Outage Saturday evening, July 22, 2017 from 2200 ET to 0400 ET Sunday, July 23, 2017.
Infrastructure maintenance activities and the following ACE Deployment will take place during this time:
  ACE Reference Tables
* CAOM-10717: Remove 4-digit foreign port codes from reference table of valid 5-digit Foreign Port codes.
Any import manifest, in-bond, or entry filings providing a 4-digit foreign port code, which is supposed to be 5 digits, will reject with an error. Examples of fields that use this code are Foreign Port of Lading, Previous Foreign Port of Lading, and In-bond Destination Foreign Port.

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DHS/CBP Posts Notice of Customs Broker License Examination on 25 October

This notice announces that U.S. Customs and Border Protection (CBP) will conduct an electronic version of the Customs Broker License Examination on Wednesday, October 25, 2017. Pursuant to the Final Rule 82 FR 29714 “Modernization of the Customs Broker Examination” published on June 30, 2017, the October 25, 2017 exam will be conducted in electronic format. The examination will be given at various locations. Please visit this website regularly as all exam information will be posted online in the time leading up to the exam.
The purpose of the examination, as authorized by 19 CFR 111.13(a), is to “determine the individual’s knowledge of Customs and related laws, regulations and procedures, bookkeeping, accounting, and all other appropriate matters, necessary to render valuable service to importers and exporters.”
CBP has provided a link on the broker home page titled “Sample Customs Broker Electronic Exam” at cbp.gov/trade/brokers that may be accessed to acquaint the prospective examinee with the navigation and layout of the modernized format. It may be accessed an unlimited number of time and may be useful in familiarizing exam applicants with the electronic exam process. This sample electronic exam will not evaluate answers.
Applicants for the Customs Broker License Examination must be U.S. citizens, age 18 or older, and not employed by the federal government at the time of the examination date of October 25, 2017.
The Customs Broker License Examination consists of 80 multiple-choice questions. A score of 75 percent is required to pass. The examination lasts 4.5 hours. (Exam topics typically include: Entry; Classification; Trade Agreements; Valuation; Broker Compliance; Power of Attorney; Marking; Drawback; Bonds; Foreign Trade Zones/Bonded Warehouse; Warehouse Entries; Intellectual Property Rights; Fines, Penalties and Forfeiters: and other subjects pertinent to a broker’s duties.
Applicants should bring the materials referenced below and any other desired reference materials to the examination. The use of any versions of the listed references other than those recommended is at the applicant’s own risk.
  – Harmonized Tariff Schedule of the United States (2017 Basic Edition)
  – Title 19, Code of Federal Regulations (2016, Revised as of April 1, 2016 or 2017, Parts 1 to 199)
  – Instructions for Preparation of CBP Form 7501 (July 24, 2012)
  – Right to Make Entry Directive 3530-002A
We anticipate that registration for the October 2017 exam will open in August 2017. Please monitor this website for registration information and other exam announcements.
Cell phones, laptops, pagers, smart watches and other communication devices may not be used inside the examination room. Any applicant caught cheating will be removed from the exam.
CBP invites the public to submit questions for possible use in future customs broker examinations. See Guidelines for writing questions for the customs broker examination. Please submit your questions to brokermanagement@cbp.dhs.gov. The SUBJECT line must read: Future Exam Questions.

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Asia Times: “Sweden vs France: the Future of EU Arms Sales to Asia”

Asia Times, 20 July 2017.) [Excerpts.]
The Swedish government is working on a bill to tighten arms sales to undemocratic countries. As opposed to Sweden’s attempt to introduce stricter rules on weapons transfers, France is trying to expand its export of military equipments.
The gulf between Swedish and French arms-export policies shows that despite repeated pledges by leaders of the European Union to deepen the bloc’s defense integration, member states continue to go it alone when it comes to defense-related sales.
Asia is becoming the most important market for European defense industries and the evolution of the EU’s internal debate on regulation of arms export will have an impact on the acquisition strategies of potential buyers from the Middle East and the Indo-Pacific region. …
The legislation proposed by the Swedish government contains a “democracy clause” for exports of weapons in that country. The bill has received across-the-board political support in the northern European country and is expected to be approved next year. …
In contrast to Sweden’s arms-export policy, France is betting big on the growth of its industrial defense sector. On July 7, the French Defense Ministry released a report on the country’s weapons exports. According to the document, French defense producers placed orders for military equipment worth $16.1 billion in 2016, of which $11.3 billion was in the Indo-Pacific region and $1.5 billion in the Middle East. …
The EU assumed a common position over export of military equipment and technology in 2008. The European bloc’s system has proved dysfunctional, however, as each member state interprets the relevant rules in a different way. …
In late June, EU governments agreed to pool resources to buy or jointly build up defense equipment, but the prospect is completely different for arms sales. The political and ethical distance between Swedish and French arms-export policies tell that the European grouping will struggle to elaborate a more effective common legislation on the issue.

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House Budget Committee Proposes Moving BIS to State

The following is an excerpt (pages 49-50) from the U.S. House Budget Committee, Building a Better America: A Plan for Fiscal Responsibility.
Building a Better America recommends a different path for the Department of Commerce.
Our budget supports the recent Presidential directives established by the Trump Administration to combat the regulatory burden placed on manufacturers and streamline the permitting review and approval processes. The Memorandum on Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (“Memorandum on Manufacturing”) provides for stakeholder engagement and feedback from the nation’s domestic manufacturers, in an effort to highlight unnecessary regulatory burdens and other administrative policies, practices, and procedures that inhibit economic growth and job creation. Our budget makes the following recommendations:
  * Eliminate Corporate Welfare Programs in the Department of Commerce. Subsidies to businesses distort the economy, impose unfair burdens on taxpayers, and are especially problematic given the federal government’s fiscal situation. Programs under consideration for elimination could include the following:
    – The Hollings Manufacturing Extension Program. This program subsidizes a network of nonprofit extension centers that provide technical, financial, and marketing services for small and medium-size businesses. The private market generally provides these services. The program, which was supposed to be self-supporting, derives two-thirds of its funding from non-Federal sources.
    – The International Trade Administration [ITA]. This Department of Commerce agency provides trade-promotion services for U.S. companies. The fees it charges for its services do not cover the costs. Businesses can obtain similar services from state and local governments and the private market. Congress should eliminate the ITA or require it to charge for the full cost of these “Trade Promotion Authority” services.
o The National Network for Manufacturing Innovation. This program, previously known as the Advanced Manufacturing Technology Consortia, provides federal grants to support research for commercial technology and manufacturing. As stated in the Heritage Foundation’s The Budget Book: “Businesses should not receive taxpayer subsidies; these long-lived and unnecessary subsidies increase federal spending and distort the marketplace. Corporate welfare to politically connected corporations should end.”
  * Eliminate Overlap and Consolidate Necessary Department of Commerce Functions Into Other Departments. Since its establishment in 1903, the Commerce Department has expanded in size and scope to include many activities better suited at other agencies. The Department of Commerce and its various agencies and programs are rife with waste, abuse, and duplication. This budget recommends the following dissolution, delegation of authority, and consolidation measures:
    – Consolidate National Oceanic and Atmospheric Administration functions into the Department of the Interior;
    – Establish the U.S. Patent and Trademark Office as an independent agency;
    – Eliminate the International Trade Administration; o Delegate trade enforcement activities to the International Trade Commission;
    – Consolidate the Bureau of Industry and Security into the Department of State;
    – Eliminate the Economic Development Administration;
    – Consolidate trade adjustment activities within the Department of Labor, which has a duplicate program;
    – Consolidate the Minority Business Development Agency into the Small Business Administration;
    – Consolidate the National Institute of Standards and Technology and the National Technical Information Services within the National Science Foundation; o Consolidate the National Telecommunication and Information Administration into the Federal Communications Commission as an independent agency; and
    – Consolidate the United States Census Bureau and the Bureau of Economic Analysis into the Department of Labor’s Bureau of Labor Statistics.

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Morning Consult: “China and U.S. Diverge on High-Tech Trade in Economic Talks”

(Source: Morning Consult, 20 July 2017.) [Excerpts.]
China and the United States are at a stalemate in high-tech talks: China seeks to expand high-tech imports that the U.S. is reluctant to sell to China, while the Trump administration wants Beijing to reduce trade barriers. And so far, neither side wants to make concessions, as evidenced by this week’s lack of progress at the U.S.-China Comprehensive Economic Dialogue in Washington.
The U.S. high-tech industry has for some time been concerned about structural issues within China that make it difficult for some American companies to access China’s market, namely prohibitions on U.S. social media and platform services, as well as requirements for U.S. firms to have a Chinese joint venture partner in cloud services, for example.
Those sentiments were underscored, in part, by U.S. Commerce Secretary Wilbur Ross at this week’s economic talks, where he drew attention to the trade deficit between the United States and the world’s second-biggest economy. …
Meanwhile, in remarks on Tuesday, Chinese Vice-Premier Wang Yang urged the United States to revamp its “outdated” export controls for high-technology products, saying such Chinese purchases could significantly reduce the U.S. trade deficit. He noted that only 4 percent of the $227 billion in integrated circuits that China imported last year came from the United States.
  “If the U.S. were to liberalize its export barriers against China to the same level applicable to France, the U.S. trade deficit would drop by up to 34 percent,” Wang said at the Washington luncheon, citing figures from the Carnegie Endowment for International Peace. …  

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Reuters: “Crimean Scandal Prompts Siemens to Retreat from Russian Energy”

(Source: Reuters, 21 July 2017.) [Excerpts.]
Germany’s Siemens tried to distance itself from a Crimean sanctions scandal on Friday, halting deliveries of power equipment to Russian state-controlled customers and reviewing supply deals.
The industrial group said it now had credible evidence that all four gas turbines it delivered a year ago for a project in southern Russia had been illegally moved to Crimea, confirming a series of Reuters reports over the past weeks.
The move is embarrassing for Russia which stands accused of disregarding EU sanctions and of flouting its original agreement with Siemens and it also risks making European companies more cautious about doing business there. The Kremlin declined to comment, saying it was a matter for the companies involved.
Siemens said it had not yet found proof that it had violated sanctions itself, reiterating that the turbines had been locally modified and unlawfully moved to Crimea against its will and in breach of contractual agreements.
Crimea is subject to EU sanctions on energy equipment since Russia annexed the Black Sea peninsula in 2014. Russian President Vladimir Putin has promised to provide the region with a stable energy supply.
  “This development constitutes a blatant breach of Siemens’ delivery contracts, trust and EU regulations,” Siemens said.
Siemens said it would “take immediate and decisive action” if it discovered further indications that export control regulations had been violated.
Siemens shareholders appeared supportive of its response. … 

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Reuters: “Exxon Sues U.S. Over Fine Levied for Russia Deal Under Tillerson”

(Source: Reuters, 20 July 2017.) [Excerpts.]
Exxon Mobil Corp sued the U.S. government on Thursday, blasting as “unlawful” and “capricious” a $2 million fine levied against it for a three-year-old oil joint venture with Russia’s Rosneft .
The U.S. Treasury Department on Thursday morning slapped the world’s largest publicly traded oil producer with the fine for “reckless disregard” of U.S. sanctions in dealings with Russia in 2014 when Secretary of State Rex Tillerson was Exxon’s chief executive.
The lawsuit and the Treasury’s unusually detailed statement on Exxon’s conduct represented an extraordinary confrontation between a major American company and the U.S. government, made all the more striking because Exxon’s former CEO is now in President Donald Trump’s Cabinet.
Exxon took the government to court despite the fact that the fine, the maximum allowed, would have a minor impact on the company, which made $7.84 billion in profit last year.
The fine came after a U.S. review of deals Exxon signed with Rosneft, Russia’s largest oil producer, weeks after Washington imposed sanctions on Moscow for annexing Ukraine’s Crimea region.
Between May 14 and May 23, 2014, top U.S.-based Exxon executives signed eight documents with Igor Sechin, the head of state-run Rosneft, the Treasury’s Office of Foreign Assets Control (OFAC) said in the statement on its website.
OFAC said Exxon had “demonstrated reckless disregard for U.S. sanctions requirements” by signing the deals with Sechin just weeks after the United States blacklisted him, OFAC said in the three-page statement. (For the statement, see: bit.ly/2vnvQf2)
The Treasury imposed sanctions on Sechin in April 2014 as part of measures to pressure Russia over its intervention in Ukraine, saying Sechin had shown “utter loyalty” to Russian President Vladimir Putin.
The sanctions prohibit U.S. citizens or people in the United States from dealing with those on the blacklist, such as Sechin. Rosneft itself is subject to narrower U.S. sanctions that still allow Americans to deal with the company on some transactions.
Exxon said in a statement that OFAC’s action was “fundamentally unfair,” and sued the U.S. government in Texas in an effort to overturn the decision. The company is based in Irving, Texas.
In its 21-page complaint, Exxon argued that Sechin “was subject to sanctions only in his individual capacity” and that guidance from the Obama administration at the time made clear that the sanctions “applied only to the ‘personal assets’ of the sanctioned individuals and emphasized that the sanctions did not restrict business with the companies those individuals managed.”
  Tillerson Not Consulted
Tillerson left Exxon late last year to become secretary of state after 10 years running the company. He is now responsible for U.S. foreign policy, which includes helping make sanctions decisions.
The State Department referred questions about the fine to Exxon and the Treasury. State Department spokeswoman Heather Nauert told reporters on Thursday that the agency was alerted to the fine on Wednesday.
A Treasury spokesman said OFAC engaged with Exxon’s lawyers only, and “did not discuss this case with Secretary Tillerson.”
Tillerson said in January that he would recuse himself from matters involving Exxon for one year after his December 2016 resignation, unless he is authorized to participate.
Though the State Department plays a major part in formulating sanctions policy, former U.S. officials and sanctions experts said it was unlikely the agency had a role in deciding the fine announced on Thursday, because it falls under OFAC’s regulatory role.
The back-and-forth between the Treasury and Exxon over the 2014 dealings spanned both the Obama and Trump administrations, and started with a subpoena from OFAC to Exxon in July 2014, Exxon said in its complaint.
Exxon fully complied with guidance from Democratic former President Barack Obama’s administration that ongoing oil and gas business activities with Rosneft were permitted, Exxon spokesman Alan Jeffers said in a statement.
The Treasury “is trying to retroactively enforce a new interpretation of an executive order” inconsistent with its prior guidance, Jeffers said. “OFAC’s action is fundamentally unfair.”
Exxon also cited a Treasury Department representative’s comments in May 2014 that BP Plc Chief Executive Bob Dudley – an American citizen – could continue to participate in Rosneft board meetings so long as they related only to Rosneft’s business.
In its statement explaining the fine, OFAC said that the Treasury Department representative’s comments did not address Exxon’s conduct. BP did not immediately respond to a request for comment.
Publicly available guidance on the Treasury’s website at the time of Exxon’s dealings with Sechin said Americans should ensure they do not enter into contracts signed by sanctioned individuals, OFAC said. 

And by dealing with Sechin, the company “caused significant harm” to U.S. sanctions on Russia, the agency said.
Because Rosneft itself is not off-limits to Americans, another company executive could have signed the contract with no sanctions risk to Exxon, said David Mortlock, who was a State Department and White House sanctions official under Obama.
  “You could have Sechin standing over the guy’s shoulder,” said Mortlock, now an attorney at Willkie Farr & Gallagher LLP in Washington. “But the problem here is that it was signed by Sechin himself.”
Exxon said that approach would have flown in the face of standard business practice.
  “You don’t ask your business partner to have someone else sign instead of the CEO,” said Exxon spokesman Jeffers.
  Opposition to Sanctions
Exxon has long opposed U.S. sanctions on Russia, saying they harm American business interests and actually help European rivals.
Tillerson said in 2014 that the company did not support sanctions because they are not effective “unless they are very well implemented.”
Sanctions were a contentious topic at Tillerson’s confirmation hearing last January. At the time, Republican and Democratic lawmakers were concerned that Trump, whose associates are now under investigation for their ties to Russia, would try to quickly lift U.S. sanctions on the country.
  “When sanctions are imposed, they by their design are going to harm American business,” Tillerson said during the hearing, in response to a question about his views on them.
He also said that Exxon “never directly lobbied against sanctions,” a claim that was immediately challenged by senators who cited Exxon’s own lobbying disclosure forms.
The case is Exxon Mobil Corp. v. Steve Munchin, et al, U.S. District Court, North District of Texas, No. 3:17-cv-1930.

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C. Tinaves: “Beware of Contracts Signed by Specially Designated Nationals”

* Author: Chalinee Tinaves, Esq., Commonwealth Trading Partners, ctinaves@ctp-inc.com.  
On July 20, 2017, the Office of the Foreign Assets Control (OFAC) announced a $2 million penalty against ExxonMobil Corporation and two of its subsidiaries for violating the Ukraine-Related Sanctions Regulations. According to OFAC, ExxonMobil violated the sanctions when its execs dealt in services with Igor Sechin, President of Rosneft OAO, when they signed eight legal documents relating to oil and gas projects in Russia between May 14, 2014, and May 23, 2014.
If you’ll travel back in time to March 2014, as tensions were heating up regarding Russian deployment of military forces in the Crimea region of Ukraine, President Obama issued Executive Order 13661, “Blocking Property of Additional Persons Contributing to the Situation in Ukraine,” in response to actions deemed to constitute an unusual and extraordinary threat to the national security and foreign policy of the U.S. Section 1(a)(ii) authorized the Secretary of the Treasury to designate officials of the Government of the Russian Federation, block any property or interests in property, and prohibit dealing in any property and interests in property of a person listed on the Specially Designated Nationals and Blocked Persons List (SDN List). Section 4 of E.O. 13661 prohibited US persons from making “any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order” as well as receiving “any contribution or provision of funds, goods, or services” from a designated person.
On April 28, 2014, OFAC designated Igor Sechin as an official of the Russian government, thereby generally prohibiting US persons from conducting transactions with him. Although Rosneft OAO is:
  – designated on the Sectoral Sanctions Identifications List (SSI List) pursuant to Executive Order 13662 “Blocking Property of Additional Persons Contributing to the Situation in Ukraine;”
  – subject to Directive 2 (prohibiting transacting in, providing financing for, or otherwise dealing in new debt of greater than 90 days maturity if that debt is issued on or after the sanctions effective date by, on behalf of, or for the benefit of the persons operating in Russia’s energy sector); and
  – subject to Directive 4 (prohibition against the direct or indirect provision of, exportation, or reexportation of goods, services, or technology in support of exploration or production for deepwater, Arctic offshore, or shale projects that have the potential to produce oil in the Russian Federation or in maritime area claimed by Russian Federation and extending from its Territory);

   nonetheless, Rosneft OAO is not designated on the SDN List and is therefore not subject to blocking sanctions.
As you can see, the conflict lies in how to conduct business transactions with an organization that is not blocked with an executive who is. According to the release, OFAC rejected ExxonMobil’s position that Sechin was acting in his professional capacity as President of Rosneft OAO when they signed the legal documents. Specifically, ExxonMobil referenced comments by a Treasury Department spokesman in April 2014 allowing BP Plc Chief Executive, Bob Dudley, to remain on the board of directors of Rosneft OAO so long as he did not discuss personal business with Sechin. In rejecting this argument, OFAC indicated that statement did not address ExxonMobil’s conduct nor did the plain language of Ukraine-Related Sanctions Regulations include a distinction between “personal” or “professional.” Further, OFAC has not interpreted the Regulations to create a carve-out for designated parties acting in their professional capacity.
Interestingly, in support of its position, OFAC pointed to its Frequently Asked Question #285 published on March 18, 2013, regarding the Burma Sanctions Program. Although conveniently now removed from OFAC’s FAQs and website following the termination of the Burma Sanctions Regulations, an archived link detailing FAQ #285 captured the full text of OFAC’s response to ministry dealings with a designated Burmese Government minister. According to OFAC:
A government ministry is not blocked solely because the minister heading it is an SDN. U.S. persons should, however, be cautious in dealings with the ministry to ensure that they are not, for example, entering into any contracts that are signed by the SDN.
However, in Treasury’s restatement of FAQ #285 in the ExxonMobil announcement, OFAC indicated that US parties should “be cautious in dealings with [a non-designated] entity to ensure that they are not providing funds, goods, or services to the SDN, for example, by entering into any contracts that are signed by the SDN.”
Rejecting ExxonMobil’s rebuttal that OFAC regulations state that different interpretations may exist among and between the sanctions programs that it administers, FAQ #285 “clearly signaled” that OFAC views the signing of a contract with an SDN as prohibited, even if the entity on whose behalf the SDN signed was not sanctioned in situations where sanctions programs also involve SDNs. These reasons, in addition to the definitions of “property” and “property interest” in the Ukraine-Related Sanctions Regulations, E.O. 13661, and statements issued by the White House and the Department of Treasury, served to provide ExxonMobil with notice that signing the legal documents with Sechin would violate the prohibitions in the Ukraine-Related Sanctions Regulations.
In assessing the penalty based on OFAC’s Economic Sanctions Enforcement Guidelines, among other aggravating factors, OFAC viewed ExxonMobil’s transaction to be a show of “reckless disregard for U.S. sanctions requirements when it failed to consider warning signs associated with dealing in the blocked services of an SDN” and contributed “significant harm” to the objectives of the Ukraine-Related Sanctions Program. Following the announcement, ExxonMobil stood by its position that it acted in full compliance with the sanctions guidelines in 2014 and argued that the Treasury Department is “trying to retroactively enforce a new interpretation of an executive order that is inconsistent with the explicit and unambiguous guidance from the White House and Treasury issued before the relevant conduct and still publicly available today.”
What does all this mean for U.S. companies? While FAQ #285 was initially crafted to address contracts with a designated government official (which Sechin satisfied based on his designation as a Russian official), it is unclear whether this interpretation would also be applicable in situations involving non-government SDNs and their corporate dealings. Further, the prohibited conduct of entering into a contract signed by an SDN in FAQ #285 was listed as an example. It is entirely possible that a range of other contract activities are prohibited by SDNs like negotiating a contract. Companies must be aware of the risks associated with projects that would require authorization by an SDN. Further, companies can mitigate their risk by screening all the parties involved in a transaction to avoid potentially violating a sanctions program.

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NEI: “How DOE’s Antiquated Export Controls Hamstring U.S. Nuclear Trade”

* DOE’s outdated nuclear export rules putting U.S. global leadership at risk;
  * NEI asks DOE to finalize “clear and workable” nuclear liability rules; and
  * Intellectual property and contractual regulations also need reform.
The U.S. Department of Energy’s nuclear technology export control regulation, 10 CFR Part 810, was originally created during the Cold War to prevent commercial nuclear technologies from falling into the wrong hands. From the 1950s to the 1970s, American leadership in commercial nuclear technology enabled the United States to establish the rules of the road for nuclear commerce. But in recent decades, that dominance has slipped as light water reactor technologies have become widely available from multiple supplier nations.
In comments to DOE last week, Nuclear Energy Institute (NEI) Vice President of Suppliers, New Reactors and International Programs Dan Lipman said that antiquated export controls are constraining U.S. exporters and undermining American influence on global nuclear safety, security, and nonproliferation policies and practices.
  Regulatory Burden
  “A comparative study of export control regimes concluded that Part 810 is more complex, more restrictive and less efficient than the equivalent export authorization regimes of other leading nuclear supplier nations and represents a significant competitive disadvantage for U.S. suppliers relative to foreign vendors,” Lipman said in the letter.
  “As national security experts have warned, burdensome U.S. restrictions on U.S. export of these technologies no longer control their spread. Rather, those restrictions divert foreign customers to non-U.S. suppliers, reducing U.S. influence on nuclear safety, security and nonproliferation, along with U.S. technology leadership, exports and jobs.”
NEI proposed multiple recommendations for modernizing the Part 810 regulations, including:
  – creating a 45-day “fast-track” general authorization process for exports of light water reactor technologies using low-enriched uranium fuel and exports to countries of low proliferation risk
  – enabling operational safety assistance to all countries; instituting a mandatory 90-day processing time for specific authorizations; and
Lipman adds, “Reinvigorating U.S. global supply of nuclear energy, a technology invented by us, must be a key component of U.S. energy dominance. Allowing U.S. nuclear leadership to decline against competition from state-owned companies in Russia and China would inflict tremendous harm on American economic and national security interests.”
NEI identified other areas where DOE can reduce regulatory burdens on the commercial nuclear industry. These include completing DOE’s rulemaking on the Convention on Supplementary Compensation for Nuclear Damage with a “clear and workable” final rule that “sets forth a logical process for allocating risk and cost, does not impose onerous regulatory, paperwork and recordkeeping requirements, and allows the industry to mitigate risk through insurance.”
NEI also urged reforming intellectual property regulations under the Atomic Energy Act of 1954 to prevent the government from usurping private sector intellectual property; reforming DOE regulations in the Financial Assistance Rules under 10 CFR Part 600 for government contracts (including grants) to reduce inefficiency, administrative burden and compliance costs; and promoting open publication of DOE’s research and development by addressing historic documents marked “Applied Technology.”
NEI’s July 14 comments were filed in response to a May 30 call by DOE for interested parties to identify regulations or other regulatory instruments that are “obsolete, unnecessary, unjustified, ineffective or nonsensical.” NEI strongly supports DOE’s plan to create a systematic method to identify such regulations, and urges DOE to “promptly suspend, rescind or amend” them once identified.

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Gary Stanley’s ECR Tip of the Day

(Source: Defense and Export-Import Update; available by subscription from
* Author: Gary Stanley, Esq., Global Legal Services, PC, (202) 352-3059,
Use of paragraph (x) in ITAR licensing is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR. To the extent that this requirement is met, DDTC will authorize “deemed exports.”

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R.C. Burns: “ExxonMobil Fined Two Million Dollars for Two Milliliters of Ink”

Export Law Blog
. Reprinted by permission.)
* Author: R. Clifton Burns, Esq., Bryan Cave LLP, Wash DC,
, 202-508-6067).
Yesterday the Office of Foreign Assets Control (“OFAC”) announced that it was fining ExxonMobil $2 million in connection with contracts signed by ExxonMobil with Rosneft in violation of the Ukraine Related Sanctions Regulations. The basis for the fine was not dealing with Rosneft itself; rather, OFAC premised the fine on the fact that Igor Sechin, an individual designated under Executive Order 13661 and the Ukraine Sanctions, signed the contracts. Simultaneously with the OFAC announcement, ExxonMobil filed suit in federal court in Texas seeking to overturn the penalty.
The OFAC announcement is unusual in that rather than simply announcing the fine and going through its usual analysis of how it calculated the penalty, OFAC responds to arguments made by ExxonMobil that it did not violate the sanctions. ExxonMobil argued that OFAC had designated Sechin in his private capacity and not in his capacity as an official of Rosneft. OFAC harrumphs, as if it were completely obvious, that there is no private/official distinction in designations. According to OFAC, it is completely clear that there will be a problem if the blocked officer signs any agreement with a U.S person. It supports this with a Burma FAQ that deals with a different situation, that was contained in a section dealing with the Burma regulations and that OFAC has removed from its website.
OFAC’s glib rejection of a public/private distinction is not founded in any analysis of the regulations at issue. In fact, as everyone has known for quite some time, the rules do not clearly address situations where an officer of a company is designated and blocked by OFAC but the company itself is not. The Ukraine regulations refer to Executive Order 13661 as defining what activities are illegal. That relevant part of the order is Section 4 which prohibits
the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order
It also prohibits the “receipt … of funds, goods, or services” from any such blocked person.
So how does Sechin’s signature of the Rosneft deals step over a line? Certainly ExxonMobil wasn’t providing any funds, goods or services for his benefit. The contracts were for the benefit of Rosneft. Nor did ExxonMobil receive any “funds, goods, or services” from Sechin in the contract. Unless perhaps OFAC thinks that Sechin provided a service to ExxonMobil when he whipped out his pen and spent three seconds spreading ink over the signature line.
If that is the illegal service that was being provided, and it seems that it is because OFAC is drawing a line at the signature line, it’s not very defensible. Let’s say that Sechin hid in a closet and told another company official to sign. That’s a service too. In fact, there is no way to imagine a scenario where a top official of a company does not ultimately approve a major contract, which is also a service, meaning that OFAC’s effort to maintain a distinction between sanctioning Rosneft and sanctioning its officers falls completely apart.
The FAQ relied on by OFAC does not help its position either. Because OFAC has disappeared this crucial guidance (in fact the only guidance from OFAC anywhere on the signature issue) from its website, I’ve retrieved it from the Wayback Machine:
285. If a Burmese Government minister is an SDN, how does that impact the ministry he leads?
A government ministry is not blocked solely because the minister heading it is an SDN. U.S. persons should, however, be cautious in dealings with the ministry to ensure that they are not, for example, entering into any contracts that are signed by the SDN. [03-18-13]
Significantly, guidance on the minister of a government ministry is not necessarily relevant to a situation involving an official of a private company. Additionally, it is hard to justify punishing a company for violating the Ukraine sanctions because it did not read a web document about another set of sanctions. Not to mention that this guidance no longer exists at all.
It’s easy to see what ExxonMobil sued. I’ll be watching the lawsuit closely. Pass the popcorn.

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. Friday List of Approaching Events

(Sources: Event Sponsors) 
Published every Friday or last publication day of the week. Send events to
, composed in the below format:

* DATE: PLACE; “TITLE;” SPONSOR; WEBLINK; CONTACT (email and phone number)

#” New listing this week:   
Continuously Available Training:

* E-Seminars: “
US Export Controls” / “Defense Trade Controls
;” Export Compliance Training Institute;
* On-Line: “
Simplified Network Application Process Redesign (SNAP-R)
;” Commerce/BIS; 202-482-2227
* E-Seminars: “
Webinars On-Demand Library
;” Sandler, Travis & Rosenberg, P.A.
Training by Date:

* Jul 26: Free Webinar; ”
Discover Value in Your Trade Compliance Data;” Integration Point

* Jul 26-27: Oklahoma City, OK; ”
Complying with U.S. Export Controls;” Dept. of Commerce/Bureau of Industry and Security

* Jul 26-27
: Seattle, WA; “
2017 Export Controls Conference
;” Dept. of Commerce/U.S. Commercial Service, Dept. of Homeland Security/Homeland Security Investigations, Seattle University, Dorsey & Whitney LLP

Jul 27: Webinar; ”
Site Visits, Enforcement Actions, and Voluntary Disclosures;” Shipman & Goodwin LLP
Aug 1: Webinar; ”
Consideration for Exporting to China;” Shipman & Goodwin LLP
* Aug 2-3: Naperville, IN; “Automated Export System Compliance Seminar and Workshop;” Commerce/Census, Commerce/BIS, DHS/CBP, State/DDTC, Treasury

* Aug 14-16: McLean, VA; “
Basics of Government Contracting
;” Federal Publications Seminars

Aug 17: Webinar; ”
Export Controls in the Cloud;” Shipman & Goodwin LLP

* Sep 4-9: Galveston, TX;ICPA Conference at Sea;”

International Compliance Professionals Association; wizard@icpainc.org

* Sep 4: Glasgow, UK; ”
Intermediate Seminar;” UK Department for International Trade;

* Sep 5: Glasgow, UK; ”
Beginners Workshop;” UK Department for International Trade;

* Sep 5: Glasgow, UK; ”
Licenses Workshop;” UK Department for International Trade;

* Sep 5: Glasgow, UK; ”
Control List Classification – Combined Dual Use and Military;” UK Department for International Trade;

* Sep 6: Nashville, TN; ”
AES Compliance Seminar;” Dept. of Commerce/Census

* Sep 12-13: Annapolis, MD; “ITAR/EAR Boot Camp;” spalmer@exportcompliancesolutions.com; 866-238-4018 / 410-757-1919

* Sep 12-13: Louisville, KY; ”
Complying with U.S. Export Controls;” Dept. of Commerce/Bureau of Industry and Security

* Sep 12-13: Milpitas, CA; ”
Complying with U.S. Export Controls;” Dept. of Commerce/Bureau of Industry and Security

* Sep 12-13: Wash, DC; “Interactive Export Controls Workshop;” ECTI; jessica@learnexportcompliance.com; 540-433-3977

* Sep 14: Milpitas, CA; “
Encryption Controls;”
Dept. of Commerce/Bureau of Industry and Security

* Sep 18-21: Austin, TX; “ITAR Defense Trade Controls / EAR Export Controls Seminar; ECTI; jessica@learnexportcompliance.com; 540-433-3977
* Sep 18-20: Las Vegas, NV; “
Basics of Government Contracting;” Federal Publications Seminars

* Sep 21: 
Webinar; “
US Export Administration Regulations
” Foreign Trade Association 

* Sep 20-22: Houston, TX; ”
Advanced Topics in Customs Compliance Conference;” Deleon Trade LLC
# Sep 27: Tysons Corner, VA; ”
IT Capabilities and Solutions for the Trade Compliance Community;” Society for International Affairs (“SIA”)
* Sep 27: Oxford, UK; ”
Intermediate Seminar;” UK Department for International Trade;

* Sep 27-28: Rome, Italy; “Defence Exports 2017;” SMi

* Sep 28: Oxford, UK; ”
Beginners Workshop;” UK Department for International Trade;
* Sep 28: Oxford, UK; ”
Licenses Workshop;” UK Department for International Trade;

* Oct 2-5: Columbus, OH; “University Export Controls Seminar;” ECTI; jessica@learnexportcompliance.com; 540-433-3977

* Oct 5-6: London, UK; ”
The World ECR Forum 2017;” World ECR
 10 Oct: Rotterdam, the Netherlands; “
Awareness Training Export Control, Dual-Use, and Sanctions
” day I/3 [in Dutch]; Fenex

* Oct 10-12: Dallas, TX; “
‘Partnering for Compliance™’ West Export/Import Control Training and Education Program
;” Partnering for Compliance
* Oct 12-13: Boston, MA; “Automated Export System Compliance Seminar and Workshop;” Commerce/Census, Commerce/BIS, DHS/CBP, State/DDTC, Treasury 

* Oct 13: Dallas, TX; “
Customs/Import Boot Camp
;” Partnering for Compliance

 Oct 16-17: Washington, DC; “The World ECR Forum 2017;” World ECR

* Oct 16-19: Amsterdam, Netherlands “
US Export Controls for EU/NL and other Non-US Companies/How US Controls Impact Non-US Companies, Affiliates and Transactions, PLUS Other Country Controls Comparison to US Seminar
;” ECTI;
; 540-433-3977

* Oct 22-24: Grapevine, TX; “
Annual ICPA Fall Conference
;” International Compliance Professional Association;

* Oct 23-24: Arlington, VA; “
2017 Fall Advanced Conference
;” Society for International Affairs

 24 Oct: Rotterdam, the Netherlands; “
Awareness Training Export Control, Dual-Use, and Sanctions
” day 2/3 [in Dutch]; Fenex

* Oct 30-Nov 2: Phoenix, AZ; “
ITAR Defense Trade Controls / EAR Export Controls Seminar
;” ECTI;
; 540-433-3977
* Nov 5-7: Singapore; ”
ICPA Singapore Conference;”
International Compliance Professionals Association;
 6 Nov: Rotterdam, the Netherlands; “
Awareness Training Export Control, Dual-Use, and Sanctions
” day 3/3 [in Dutch]; Fenex

* Nov 6-8: Chicago, IL; “Basics of Government Contracting;” Federal Publications Seminars

* Nov 7: Norfolk, VA; “
AES Compliance Seminar
” Dept. of Commerce/Census

* Nov 9-10: Shanghai, China;
ICPA China Conference;”
International Compliance Professionals Association;

* Nov 13-16: Wash DC; “ITAR Defense Trade Controls / EAR Export Controls Seminar;” ECTI; jessica@learnexportcompliance.com; 540-433-3977

* Nov 15: Leeds, UK; ”
Intermediate Seminar;” UK Department for International Trade;

* Nov 16: Leeds, UK; ”
Beginners Workshop;” UK Department for International Trade;

* Nov 16: Leeds, UK; ”
Licenses Workshop;” UK Department for International Trade;

* Nov 16: Leeds, UK; ”
Control List Classification – Combined Dual Use and Military;” UK Department for International Trade;

* Nov 16: Nijkerk, the Netherlands; “Training Export Control” [in Dutch]; Fenedex
* Dec 4-7: Miami FL; “
ITAR Defense Trade Controls / EAR Export Controls Seminar;” ECTI; jessica@learnexportcompliance.com; 540-433-3977

* 5 Dec: Brussels, Belgium; ”
Dual Use For Beginners
” [In Dutch]; Flemish Department of Foreign Affairs

* Dec 5: San Juan, PR; “AES Compliance Seminar in Spanish;” Dept. of Commerce/Census Bureau; itmd.outreach@census.gov

* Dec 6: Wood Ridge, NJ; “
AES Compliance Seminar
;” Dept. of Commerce/Census Bureau;

* Dec 7: Laredo, TX; “AES Compliance Seminar in Spanish;” Dept. of Commerce/Census Bureau; itmd.outreach@census.gov 

* Dec 11-13: Sterling, VA; “
Basics of Government Contracting
;” Federal Publications Seminars

* Mar 11-14: San Diego, CA; ”
ICPA Annual Conference;”
International Compliance Professionals Association;
* * * * * * * * * * * * * * * * * * * * 


. Bartlett’s Unfamiliar Quotations

(Source: Editor)

* Ernest Hemingway (Ernest Miller Hemingway, 21 Jul 1899 – 2 Jul 1961, was an American novelist, short story writer, and journalist. His economical and understated style had a strong influence on 20th-century fiction, while his life of adventure and his public image influenced later generations. Among his novels were The Sun Also Rises, For Whom the Bell Tolls, and The Old Man and the Sea. Hemingway won the Nobel Prize in Literature in 1954. He committed suicide in 1961.)
  – “There is nothing noble in being superior to your fellow men. True nobility lies in being superior to your former self.”
Friday Funnies
A little guy is sitting at the bar, just staring into his drink when a big mean-looking Hell’s Angel biker sits down next to him, grabs the little guy’s drink, and gulps it down. The little guy puts his head down in his hands and starts sobbing. “Oh come on, man,” says the biker.  “I was just giving you a hard time,” adding, “Let me buy you a drink.  I can’t stand to see a grown man cry.” The little guy replies, “This is the worst day of my life!  I can’t do anything right. I overslept this morning and was late to an important meeting, so I got fired. When I went to the parking lot I discovered my car had been stolen, and I don’t have theft insurance. I grabbed a cab home, but, after the cab left, I discovered I had left my wallet with my separation pay in the cab.  Then I walked into my house, and I found my wife in bed with the gardener!  So I came to this bar, trying to work up the courage to put an end to my life, and then you show up and drink the darn poison!”
  – Pete Caris, Western Springs, IL

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EN_a218. 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: 13 Jul 2017: 82 FR 32232-32241: Electronic Information for Cargo Exported from the United States; Technical Amendments


  – 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 cancelled Supp. 1 to the NISPOM  (Summary here.)

  – Last Amendment: 7 July 2017: 
82 FR 31442-31449: Revisions to the Export Administration Regulations Based on the 2016 Missile Technology Control Regime Plenary Agreements [Effective Date: 7 July 2017.] 


FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR): 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders
 – Last Amendment: 16 Jun 2017: 82 FR 27613-27614: Removal of Burmese Sanctions Regulations 

  – Last Amendment: 
19 Apr 2017: 
82 FR 18383-18393: Foreign Trade Regulations: Clarification on Filing Requirements 
  – HTS codes that are not valid for AES are available 
  – The latest edition (18 Jul 2017) 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: 28 Jun 2017: 
Harmonized System Update 1704, containing 
2,564 ABI records and 463 harmonized tariff records. 
  – HTS codes for AES are available 
  – HTS codes that are not valid for AES are available 
  – Last Amendment: 11 Jan 2017: 82 FR 3168-3170: 2017 Civil Monetary Penalties Inflationary Adjustment
  – The only available fully updated copy (latest edition: 10 Jun 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 800 footnotes containing amendment histories, 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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. Weekly Highlights of the Daily Bugle Top Stories

(Source: Editor)

Review last week’s top Ex/Im stories in “Weekly Highlights of Daily Bugle Top Stories” posted here.

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* The Ex/Im Daily Update is a publication of FCC Advisory B.V., compiled by: Editor, James E. Bartlett III; Assistant Editors, Alexander P. Bosch and Vincent J.A. Goossen; and Events & Jobs Editor, John Bartlett. The Ex/Im Daily Update is 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 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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