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17-0911 Monday “Daily Bugle”

17-0911 Monday “Daily Bugle”

Monday, 11 September 2017

TOP
The Daily Bugle is a free daily newsletter from Full Circle Compliance, containing changes to export/import regulations (ATF, Customs, NISPOM, EAR, FACR/OFAC, FTR/AES, HTSUS, and ITAR), plus news and events.  Subscribe 
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  1. Justice/ATF Seeks Comments on Form ATF F 6NIA, Application and Permit for Temporary Importation of Firearms and Ammunition by Nonimmigrant Aliens 
  1. Ex/Im Items Scheduled for Publication in Future Federal Register Editions
  2. Commerce/BIS: (No new postings.)
  3. DHS/CBP Announces AES Scheduled Outage, 12 Sep
  4. DHS/CBP Post Several Notices Concerning Hurricane Irma Aftermath
  5. State/DDTC: (No new postings.)
  6. Presidential Memorandum Extension TWEA Sanctions on Cuba
  1. ST&R Trade Report: “KORUS Withdrawal Threat Reportedly on Hold
  1. A. Daalderop & F. Rense: “Prison Sentence for Prohibited Indirect Trading with Iran”
  2. P. Kessler: “Six Cybersecurity Questions Government Contractors Should Address”
  3. T. Burrus & M. DeWitt: “Are 3D-Printed Guns a Threat to National Security?”
  4. Gary Stanley’s ECR Tip of the Day
  1. Dennis Burnett Retires 
  2. Monday List of Ex/Im Job Openings 
  1. ECTI Presents “Harmonized System Classifications: Learning by Doing Webinar – A Two Part Series”, 10 & 24 Oct 
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Latest Changes: ATF (15 Jan 2016), Customs (28 Jul 2017), DOD/NISPOM (18 May 2016), EAR (15 Aug 2017), FACR/OFAC (16 Jun 2017), FTR (19 Apr 2017), HTSUS (25 Jul 2017), ITAR (30 Aug 2017) 
  3. Weekly Highlights of the Daily Bugle Top Stories 

EXIMEX/IM ITEMS FROM TODAY’S FEDERAL REGISTER

EXIM_a1
1. Justice/ATF Seeks Comments on Form ATF F 6NIA, Application and Permit for Temporary Importation of Firearms and Ammunition by Nonimmigrant Aliens

(Source: Federal Register) [Excerpts.]
 
82 FR 42705-42706: Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection; Application and Permit for Temporary Importation of Firearms and Ammunition by Nonimmigrant Aliens–ATF F 6NIA (5330.3D)
* AGENCY: Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
* ACTION: 60-Day notice. …
* DATES: Comments are encouraged and will be accepted for 60 days until November 13, 2017.
* FOR FURTHER INFORMATION CONTACT: If you have additional comments, particularly with respect to the estimated public burden or associated response time, have suggestions, need a copy of the proposed information collection instrument with instructions, or desire any additional information, please contact Desiree M. Dickinson, ATF Firearms and Explosives Imports Branch either by mail at 244 Needy Road, Martinsburg, WV 25405, or by email at desiree.dickinson@atf.gov.
* SUPPLEMENTARY INFORMATION: …
  – The Title of the Form/Collection: Application and Permit for Temporary Importation of Firearms and Ammunition by Nonimmigrant Aliens. …
  – Form number (if applicable): ATF F 6NIA (5330.3D).
  – Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice. …
  – Abstract: The form allows nonimmigrant aliens to temporarily import firearms and ammunition into the United States for hunting or other sporting purposes. …
  If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405A, Washington, DC 20530.
 
  Dated: September 6, 2017.
Melody Braswell, Department Clearance Officer for PRA, U.S. Department of Justice.

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OGSOTHER GOVERNMENT SOURCES

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

* Justice; Alcohol, Tobacco, Firearms, and Explosives Bureau; NOTICES; Agency Information Collection Activities; Proposals, Submissions, and Approvals: Report of Multiple Sale or Other Disposition of Certain Rifles [Publication Date: 12 September 2017.]

* Treasury; Foreign Assets Control Office; NOTICES; Blocking or Unblocking of Persons and Properties [Publication Date: 12 September 2017.]
 
* U.S. Customs and Border Protection; PROPOSED RULES; Reducing Regulation and Controlling Regulatory Costs [Publication Date: 12 September 2017.]

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

 

(Source:
CSMS #17-000553, 11 Sep 2017)
 
This outage will be effective for a 1 hour period between 5:00am and 7:00am EST Tuesday, September 12.
 
AES filers will be unable to submit filings during this period, regardless of your connection type. AES Downtime Policy will not be enacted during this outage.
 
Please plan ahead and schedule your filings to account for this scheduled outage.

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OGS_a45. DHS/CBP Post Several Notices Concerning Hurricane Irma Aftermath

(Source: cbp@service.govdelivery.com, 11 Sep 2017)
 
 
The USVI Airports and Ports sustained severe damage due to the impact of Hurricane IRMA and they have been closed since September 5, 2017.
 
The USVI airports and ports remain closed until further notice. Vessel and aircraft arrival clearance also ceased until further notice.
 
The following USVI ports are affected by this closure:
 
  – 5101 CHARLOTTE AMALIE, ST THOMAS, VI
  – 5102 CRUZ BAY, ST JOHN, VI
  – 5103 CORAL BAY, ST. THOMAS, VI
  – 5104 CHRISTIANSTED, ST CROIX, VI
  – 5105 FREDERIKSTED, ST CROIX, VI
  – 5107 ST CROIX, ST THOMAS, VI
  – 7401 PRECLEARANCE, ST. THOMAS, VI
  – 7404 PRECLEARANCE, ST. CROIX, VI
 
NOTE: Updates about the USVI port, air and sea operations will be provided as soon as they become available.
 
 
The San Juan Area Port commercial trade operations were also affected last week by Hurricane Irma.
 
Local closure days are granted to all who filed entries last week, therefore, we are extending an additional day without liquidated damages for any entry summaries and payments due from September 5 through September 9, 2017 at any of the following ports of entry:
 
  – 4901 AGUADILLA, PR
  – 4904 FAJARDO, PR
  – 4907 MAYAGUEZ, PR
  – 4908 PONCE , PR
  – 4909 SAN JUAN, PR
  – 4913 LUIS MUÑOZ MARIN – AIR CARGO, PR
 
The San Juan Area Port is fully operational this week.
 
USVI POC – Mr. Efrain Rivas at: (787) 729-6950.
SAN JUAN Trade Operations POC – Mrs. Leida Colon at: (787) 729-6998.
 
 
The USVI Airports and Ports sustained severe damage due to the impact of Hurricane IRMA and they have been closed since September 5, 2017.
 
As of Friday September 8, 2017, the following ports are fully operational:
 
  – 5104 CHRISTIANSTED, ST CROIX, VI
  – 5105 FREDERIKSTED, ST CROIX, VI
  – 5107 ST CROIX, ST THOMAS, VI
  – 7404 PRECLEARANCE, ST. CROIX, VI
 
USVI POC – Mr. Efrain Rivas at: (787) 729-6950.
 
 
The Savannah Area Port commercial trade operations, vessel and aircraft operations will remain closed through Tuesday, September 12, 2017 due to effects of Hurricane Irma. Local closure days are granted to all filers, extending an additional day without liquidated damages for any entry summaries and payments due September 11 and 12, 2017 at the following ports of entry:
 
  – 1701 BRUNSWICK, GEORIGA
  – 1703 SAVANNAH, GEORGIA
 
Commercial trade operations will resume on Wednesday, September 13, 2017.
 
 
The USVI Airports and Ports sustained severe damage due to the impact of Hurricane IRMA and they have been closed since September 5, 2017.
 
As of Friday September 8, 2017, the following ports are fully operational:
 
  – 5104 CHRISTIANSTED, ST CROIX, VI
  – 5105 FREDERIKSTED, ST CROIX, VI
  – 5107 ST CROIX, ST THOMAS, VI
  – 7404 PRECLEARANCE, ST. CROIX, VI
 
USVI POC – Mr. Efrain Rivas at: (787) 729-6950.

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OGS_a56
State/DDTC: (No new postings.)

(Source: State/DDTC)

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OGS_a67
. Presidential Memorandum Extends TWEA Sanctions on Cuba

 
MEMORANDUM FOR THE SECRETARY OF STATE, THE SECRETARY OF THE TREASURY
 
SUBJECT: Continuation of the Exercise of Certain Authorities Under the Trading With the Enemy Act
 
Under section 101(b) of Public Law 95-223 (91 Stat. 1625; 50 U.S.C. 4305 note), and a previous determination on September 13, 2016 (81 FR 64047, September 16, 2016), the exercise of certain authorities under the Trading With the Enemy Act is scheduled to expire on September 14, 2017.
 
I hereby determine that the continuation of the exercise of those authorities with respect to Cuba for 1 year is in the national interest of the United States.
 
Therefore, consistent with the authority vested in me by section 101(b) of Public Law 95-223, I continue for 1 year, until September 14, 2018, the exercise of those authorities with respect to Cuba, as implemented by the Cuban Assets Control Regulations, 31 C.F.R. Part 515.
 
The Secretary of the Treasury is authorized and directed to publish this determination in the Federal Register.
 
DONALD J. TRUMP

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NWSNEWS

NWS_a18
. ST&R Trade Report: “KORUS Withdrawal Threat Reportedly on Hold”

 
The White House has reportedly postponed consideration of a withdrawal from the U.S.-Korea free trade agreement (KORUS) after administration officials, business groups, and others raised concerns.
 
According to press reports, following bilateral discussions in late August that yielded little progress toward President Trump’s goal of renegotiating the KORUS agreement, Trump considered notifying Korea that the U.S. would withdraw. However, a range of interested parties reacted quickly with an intensive effort to prevent a withdrawal.
 
In a joint statement, the senior Republican and Democrat leaders of the Senate Finance and House Ways and Means committees acknowledged that South Korea needs to improve its implementation and compliance with the agreement but said the U.S. “must not withdraw” as it works to achieve that goal. KORUS is “a central element” of the U.S.-Korea alliance, the lawmakers said, and Korea is the seventh-largest export market for the U.S., making it “a vital customer” for U.S. manufacturers, service providers, farmers, and ranchers.
 
U.S. Chamber of Commerce President Thomas Donahue was even more forceful, calling withdrawal a “rash and irresponsible move” that the Chamber opposes “in the strongest possible terms.” Donahue asserted that withdrawing from KORUS would reduce U.S. exports and the associated domestic jobs, jeopardize national security by alienating South Korea at a time of rising tensions with North Korea, and complicate other initiatives such as tax reform by damaging relations between the Trump administration, the business and agriculture communities, and Congress.
 
While there were reports that a notification of withdrawal could have been submitted as early as Sept. 5, no such action had been taken as of Sept. 8 and multiple press reports indicate that the White House has delayed further consideration. However, a Reuters article quoted an unnamed administration officials as cautioning that the idea of withdrawal is “not dead” and “could come back.” Stratfor, a geopolitical intelligence company, added that a withdrawal from KORUS is a “far more realistic” possibility than Trump’s repeated threats to pull the U.S. out of NAFTA given that the former is “a five-year-old trade deal between two countries an ocean apart” while the latter is “a 25-year-old trade deal between three countries on a deeply integrated continent.”

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COMMCOMMENTARY

COMM_a019
. A. Daalderop & F. Rense: “Prison Sentence for Prohibited Indirect Trading with Iran”

(Source: NautaDutilh B.V.)
 
* Authors: Annechien Daalderop, Esq.,
Annechien.Daalderop@nautadutilh.com
; and Francien Rense, Esq.,
Francien.Rense@nautadutilh.com
. Both of NautaDutilh B.V., Rotterdam.
 
On Monday 4 September, the Oost-Brabant District Court
sentenced
(only available in Dutch) a defendant to a prison term of 20 months for being the de facto person directing illegal trading with an Iranian party. The court dismissed his defence that he did not know that the intermediaries would forward the items concerned to the Iranian party. After all, there were sufficient indications and the defendant failed to investigate them.
 
The defendant’s company was alleged to have indirectly supplied replacement parts for engines to a sanctioned Iranian party (NIGC) between 2012 and 2015. NIGC was in fact run by the Iranian government and was allegedly involved in Iran’s nuclear weapons programme. It was precisely that programme that led to the Iran sanctions and to sanctions being imposed on NIGC (from mid-October 2012). The sanctions prohibit the supply of “economic resources” to the Iranian party. That prohibition covers anything that represents an economic value, so including the aforementioned goods used to replace defective parts.
 
The defendant argued that deliveries were made to parties in Dubai and Turkey and that he did not know that the goods were destined for the Iranian party. However, correspondence between the defendant and the intermediaries referred to the unique numbers of engines belonging to the sanctioned party. In addition, the correspondence asked whether the goods could be delivered directly to Tehran and the abbreviated name of the sanctioned party appeared in e-mails. The court also explicitly took into account the fact that the company had previously been fined for illegal trading with Iran. According to the court, it was therefore sufficiently clear to the company and the defendant that trade was being conducted with that sanctioned party; there was therefore, at the very least, an obligation to investigate what (or whom) the goods were actually intended for. That obligation had not been complied with.
 
The court found that the defendant had been the de facto person directing the violations of the (Dutch) Sanctions Act [Sanctiewet]. It also counted strongly against him that he had violated the sanctions for years solely for financial gain. Based on the estimated harm done (a total of EUR 500,000 for the seven export shipments) and the standard points for determining the sentence, the court came to a sentence of 20 months imprisonment, of which four months were suspended for two years.
 
This case once more makes clear how very important it is to carry out sufficient investigation in the case of trade in sanctioned countries or with parties in those countries, as well as when sanctioned products and projects are concerned, including in the case of onward supply. Signals and ambiguities must not be ignored. In practice, it is often thought or assumed that trading through an intermediary means that responsibility then ceases and that no further investigation is needed. But the use of an intermediary does not release the other parties in the chain from their own responsibilities in this regard. In all cases, the higher the risk, the more investigation and measures are expected to be implemented, and signals must be responded to. Sometimes, the question is whether it is still possible (or permissible) to trade at all (see
our blog
about the recent onward supply of gas turbines to Crimea). The ruling by the Oost-Brabant District Court is also a good reminder for directors and de facto managers that there are circumstances when it is not only the company that runs the risk of criminal prosecution!

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COMM_a2
10. P. Kessler: “Six Cybersecurity Questions Government Contractors Should Address”

(Source: RyanSharkey)
 
* Author: Perry Kessler, CPA, RyanSharkey, PKessler@ryansharkey.com, 703-652-1124.
 
With cyberattackers growing increasingly sophisticated in their methods and the number of data breaches on the rise, it’s no wonder that cybersecurity is top of mind for both the public and private sectors. In fact, the numerous attacks in recent years have been serious and costly enough to prompt action at the federal level.

On May 1, the Trump administration released an executive order mandating that all U.S. federal government agencies plan, develop and submit formal cybersecurity risk management plans to help safeguard their sensitive information and controlled unclassified information (CUI). This new cybersecurity EO is designed to promote cyber risk mitigation across the entire government by holding each agency head personally responsible for network protection and requiring all agencies to modernize their information technology systems. In addition to the cybersecurity EO, each agency is also expected to use the National Institute of Standards and Technology‘s Cybersecurity Framework to enhance its controls and management of CUI.

The government is also requiring government contractors to be held accountable to similar cybersecurity standards, dictated by the NIST Special Publication (SP) 800-171, “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations.” NIST SP 800-171 provides 109 individual controls categorized under 14 families of information security requirements designed to help companies control the security of their CUI. This set of cybersecurity requirements is soon to be implemented across government contractors via a new final rule to the Federal Acquisition Regulation, which is an expansion of the current U.S. Department of Defense‘s Defense Federal Acquisition Regulation Supplement implemented in June 2016.

With these additional regulations on the horizon, it’s not surprising that many government contractors feel overwhelmed; after all, they must now comply with several new requirements on top of the numerous industry-specific and international cyber standards, such as ISO 27001, already in place. As a result, many government contractors are experiencing numerous pain points related to the implementation of cybersecurity information governance, risk management and compliance.

Based on our discussions with more than 100 government contractors in recent months, we have outlined the top six cybersecurity questions they should address below.

 
(1) How can government contractors accurately and cost effectively assess their cybersecurity compliance to NIST SP 800-171?
 
First, it is important to understand that NIST SP 800-171 is a set of guidelines established to help companies protect their CUI and DOD covered defense information (CDI) in nonfederal systems and organizations. CUI is a result of the Obama administration Executive Order 13556, issued in November 2010. The CUI system aims to standardize and simplify how the government handles unclassified information that requires safeguarding. There are 22 approved CUI categories of information, covering everything from agriculture, transportation and energy to defense technical drawings and product specifications provided by federal government agencies to government contractors.

Second, according to NIST, there are two classifications of security requirements: basic and derived. The basic security requirements are obtained from the Federal Information Processing Standard 200, which provides high-level fundamental security requirements for federal information and information systems. The derived security requirements, which supplement the basic security requirements, are taken from the detailed security controls contained in NIST Special Publication 800-53.

Third, for a government contractor to ensure it receives an accurate and cost-effective assessment of its cybersecurity capabilities in comparison to the NIST SP 800-171 guidelines, it should competitively evaluate and select an independent professional services company with the ability to perform a high-quality and timely cyberrisk and gap assessment.

Currently, it appears that many government contractors do view the NIST 800-171 guidelines as a mandatory rule that requires full and strict compliance. It is expected that the new DFARS 252.204-7012 cybersecurity and information security management system will be treated in the same manner as the six current major contractor business systems: accounting, cost estimating, material management and accounting system, government property management and earned value management system.

 
(2) What actions do U.S. government contracting officers plan to take if government contractors fail to comply with the DFARS 252.204-7012 (NIST SP 800-171 compliance requirement) after the Dec. 31, 2017, deadline?
 
So far, government contractors have been advised via updates from the DOD chief information officer that the Defense Contract Management Agency may request a copy of their system security plan (SSP) for purposes of evaluation for compliance with the NIST SP 800-171 requirements and that the Defense Contract Audit Agency may audit their related information security management systems’ cost.

Concerns to consider:

 
* Currently, neither the DCAA nor the DCMA has the necessary cybersecurity expertise to assess the contractor’s compliance with the standard. Without certified information system security professionals, certified information technology auditors or the like, they cannot accurately evaluate government contractors’ SSPs to fairly assess their compliance with NIST SP 800-171.
* If the federal government decides to outsource the SSP evaluation to assess compliance with NIST SP 800-171, it is imperative to ensure that the selected companies are free of organizational conflicts of interest and personal conflicts of interest.
* If a government contractor is noncompliant with all or part of NIST SP 800-171, then the government contracting officer will have to decide on a number of actions. He or she can:
  – Withhold contractor payments up to 20 percent;
  – Issue a stop work order;
  – Issue a suspension of work; or
  – Terminate the contract for default.
 
(3) How should government contractors pay for this additional cybersecurity compliance expense?
 
The DCAA has not yet provided specific guidance on how the new cybersecurity compliance-related expenses will be audited. Nevertheless, these costs will likely be audited in a similar manner to the six existing DFARS contractor business systems. Compliance-related business expenses may be categorized as a direct or indirect cost, depending on the contract requirements and the contractor’s accounting system. Often, these DFARS contractor business system requirements are considered indirect costs. Thus, if these cybersecurity management system-related compliance costs are charged as indirect costs, properly allocated and considered fair and reasonable in both nature and amount, they should be deemed as allowable costs.
 
(4) Do I have to purchase cybersecurity liability insurance?
 
Currently, the FAR and DFARS do not require government contractors to purchase cybersecurity liability insurance.

Concerns to consider:

* If a government contractor does purchase cyber liability insurance, will the cost of the insurance be considered as an allowable cost on a government contract?
* How much cyber liability insurance will be considered sufficient by the federal government and deemed an allowable cost?
* If a government contractor experiences a cyberattack that results in a network breach and its insurance provider denies some or all of the security-related breach remediation costs, will costs, if fair and reasonable in nature and amount, be deemed an allowable cost on a government contract?
 
(5) Will prime government contractors be held contractually responsible and financially liable for cyber-related damages caused by their subcontractors and/or third-party partners’ failure to comply with NIST SP 800-171?
 
The FAR states that prime contractors are responsible for the selection, administration and performance of their subcontractors.

Concerns to consider:

* The contract between prime contractor and a subcontractor is a commercial contract. Subcontractors have no privity of contract with the government. Often, prime contractors do not communicate all the appropriate government requirements to their subcontractors.
* Prime contractors often attempt to contractually transfer all responsibilities and financial liabilities to their subcontractors.
 
(6) How can government contractors staff and retain high-quality cybersecurity talent to meet the increasing number of government information security compliance standards when considering the highly competitive marketplace and global shortage of cybersecurity professionals today?
 
The recruiting, staffing, training and retention of cybersecurity talent is a significant challenge for nearly every organization. The global shortage of experienced cybersecurity professionals is expected to increase over the next three to five years. Thus, the need to create the right balance of cybersecurity employees, tools and managed outsourced services becomes vital to all public and private organizations, especially for small to midsize companies.
 
Summary
 
As government contractors are required to comply with new U.S. regulatory requirements every year, they are also experiencing a rise in compliance-related costs. Many government contractors will sometimes decide to defer them to see if the government will enforce the new guidelines. If they are enforced, contractors will often wait to see how much the penalties are – and if they are greater than the cost of compliance – to decide whether they should bear the additional expenses.

Government contractors often find themselves facing a dilemma: They must figure out the best way they can properly safeguard their CUI and ensure compliance with the NIST SP 800-171 guidelines, while continuing to remain competitive in the federal marketplace and achieve a fair and reasonable return on investment.

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COMM_a3
11. T. Burrus & M. DeWitt: “Are 3D-Printed Guns a Threat to National Security?”

(Source: Cato Institute)
 
* Authors: Trevor Burrus, Research Fellow, tburrus@cato.org; and Megan Dewitt, Legal Associate. Both of Cato Institute’s Center for Constitutional Studies.
 
In 2013, Defense Distributed uploaded computer aided design (CAD) files and made them freely available to the public. With the proper equipment and knowledge, someone could use the CAD files to create a 3D-printed gun. The government quickly ordered the files removed (under threat of severe penalties) because it determined that the files ran afoul of the International Traffic in Arms Regulations (ITAR), which prevent people from communicating to foreign persons “technical data” about constructing certain arms. In other words, ITAR is one of the laws that makes it illegal to tell the foreign persons how to make things like an Apache helicopter. Not all arms are listed, and ITAR doesn’t restrict technical data that is merely “general scientific, mathematical, or engineering principles commonly taught in school.”
 
There are many manuals and documents out there that tell people how to make dangerous things. The Anarchist Cookbook is perhaps the most famous. Many people are surprised that the government lets The Anarchist Cookbook exist, but it is not the government that lets it exist-they’d probably rather it didn’t-it’s the First Amendment. The First Amendment protects communication about making dangerous things, from bombs to napalm, and it certainly protects communication on how to fix guns or even construct them from scratch. If the government is going to restrict such information it must do so narrowly and with good reason, while understanding that there is a difference between instructions for a plutonium trigger for a hydrogen bomb and CAD files for a plastic, one-shot pistol. And if the government goes too far, people should be allowed to challenge it.
 
ITAR’s regulation of communicating technical data is clearly a content-based prior restraint of speech-it restrains speech before it is published based on the content of the communication-which is one of the most egregious ways to violate the First Amendment. While it is certainly proper for the government to prohibit telling the North Koreans how to make a nuclear bomb, Defense Distributed believes that the government went too far in extending ITAR to cover CAD files for small, 3D-printed guns. Moreover, by uploading the files to the internet-which, yes, foreign persons can access-Defense Distributed believed it wasn’t communicating them to foreigners in the manner contemplated by the statute. In such situations, when a plaintiff believes a law has reached too far and is impinging on their freedom of speech, it is usually proper to seek a preliminary injunction that keeps the government from shutting the speech down until a court has determined the merits of the ultimate issue. But the district court improperly denied the request based on an incorrect approach to preliminary injunction analysis and a wholly inappropriate assessment of the relevant interests at stake. The Fifth Circuit upheld the lower court’s decision and denied a request for rehearing en banc, which is when all the judges on a circuit hear a case rather than the usual three-judge panel. Defense Distributed has now filed a petition for a writ of certiorari asking the Supreme Court to take up their case and protect their First Amendment rights. Cato has filed a supporting brief urging the Court to accept and summarily reverse the decision below. We argue that such disposition is required when a facially content-based prior restraint escapes review just because the government says “national security.”
 
In essence, the lower courts refused to look at one of the most important considerations in the preliminary injunction analysis-likelihood of success on the merits-because the government intoned the words “national security,” to which the judges said “okay, that clearly outweighs any interests Defense Distributed has.” Defense Distributed certainly has an interest-the rights protected by the First Amendment of the U.S. Constitution-and it was frankly ridiculous that the lower courts so casually let the government’s interests trump the First Amendment.
 
In a First Amendment case, in order to determine whether an injunction is in the public interest, the merits of a plaintiff’s claim must be evaluated before proceeding to weigh the equities. This is not like an injunction to prevent your neighbor from spilling pollutants on your lawn. In such a case the court would weigh the various interests involved in deciding whether to issue an injunction, but no one’s constitutional rights would be part of the consideration. Constitutional rights get special weight if it is likely they’re being violated. That’s why they’re in the Constitution. Nevertheless, the lower courts said that Defense Distributed failed to show how granting an injunction to enjoin an unlawful restriction of speech was in the public interest. But enforcing the Constitution is always in the public interest, and the government cannot be harmed if its own unconstitutional activity is enjoined. If it seems likely the government is violating the First Amendment, then that strongly indicates that the plaintiff’s equities outweigh the government’s because the First Amendment is being violated.
 
By concluding that the district court had not abused its discretion by failing to consider the merits of a First Amendment plaintiff’s claims, the Fifth Circuit fundamentally altered the preliminary injunction standard, laid out by the Supreme Court, which should be applied to the most egregious abridgments of speech. Dissenting from denial of rehearing en banc, Judge Elrod put it succinctly: “The panel opinion’s flawed preliminary injunction analysis permits perhaps the most egregious deprivation of First Amendment rights possible: a content-based prior restraint.”
 
While some people are frightened by the prospect of 3D-printed guns-including, perhaps, some of the judges in the lower courts here-that is no reason to allow the government to shut down speech about such guns without ensuring that the restrictions comport with the strictures of the First Amendment. Even if you don’t like guns, this case should concern you because the government should not be allowed to say “national security” in order to shut down speech it doesn’t like-“first they came for the guns, and I didn’t speak up because I didn’t own guns; then they came for the…” The implications for free speech rights could be catastrophic Defense Distributed fails to prevail in this case.

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COMM_4
12
Gary Stanley’s ECR Tip of the Day

(Source: Defense and Export-Import Update; available by subscription from
gstanley@glstrade.com
)
 
* Author: Gary Stanley, Esq., Global Legal Services, PC, (202) 352-3059,
gstanley@glstrade.com
.
 
The purpose of a cover letter accompanying a Commodity Jurisdiction Request to DDTC is to serve as an executive summary describing the commodity to be reviewed and the context in which it is to be used. Applicants may use the cover letter to further develop points addressed in the online application form, and to provide a high-level overview of each document included as supporting material to the request.

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MSEX/IM MOVERS & SHAKERS

MS_a1
13. Dennis Burnett Retires

(Source: Editor)
 
Dennis Burnett, formerly VP with EADS North America and most recently Chief Counsel, Government & Regulatory Affairs, Kymeta Corporation, retired from Kymeta last week. New contact information for Dennis is DJBurnett@Verizon.net and 703 944 9126.

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MS_a214. Monday List of Ex/Im Job Openings

(Source: Editor)  
 
Published every Monday or first business day of the week. Please send openings in the following format to jobs@fullcirclecompliance.eu.
 
* COMPANY; LOCATION; POSITION TITLE (WEBLINK); CONTACT INFORMATION; REQUISITION ID
 
#” New or amended listing this week.
 
* Advanced Micro Devices (AMD); Austin TX; 
Import/Export Compliance Manager
; Requisition ID: 24061

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

* American Science & Engineering; Billerica, MA OR Andover, MA; 

Senior Trade Compliance Specialist; Requisition ID 12285

* American Showa, Inc.; Columbus, OH (Rickenbacker); 
Import/Export Clerk
; Please contact 
Mattie Robinson
 for details.

* Ansell; Iselin NJ;
Senior Specialist NA Trade Compliance; Requisition ID: IRC6513

* Autodesk; San Rafael CA; 
Export Compliance Manager
; Requisition ID: 17WD24183

* BAE Systems; Los Angeles, CA;
International Program Manager; Job ID: 30539BR

*
BAE Systems; California, MD; Subcontracts Manager; Job ID 28240BR

*
BAE Systems; Nasua, NH; Contracts Summer Internship Program; Job ID: 30621BR


BAE Systems; Wayne, NJ; Contracts Summer Internship Program; Job ID: 30622BR

*
BAE Systems; Arlington, VA; Import Export Analyst II; Job ID: 29824BR

*
BAE Systems; Nashua, NH: Import Export Analyst II; Job ID: 26285BR

* Baylor University; Waco, TX;
Manager/Director of Export Compliance; Vacancy ID S030428

* Carpenter Technology Corporation; Reading, PA;
Senior Specialist, International Trade Compliance 

* Columbia Helicopters; Aurora, Oregon;
Trade Compliance Specialist; 17-0080

* Elbit Systems of America; NH, TX, AL;
Licenses and Agreement Officer; 2017-5671

*
 Esterline Technologies Corporation;
Bellevue, WA;
 
Manager, Trade Compliance Investigations and Disclosures

* Expeditors; Sunnyvale CA;
Customs Compliance Specialist
* Export Solutions Inc.; Melbourne FL; Trade Compliance Specialist;
info@exportsolutionsinc.com
* FLIR;
Wilsonville, OR; Billerica, MA
Director, Global Customs Compliance 
* FLIR;
Wilsonville, OR; Billerica, MA; Arlington, VA; 
Sr. Corporate Counsel, Global Trade Compliance 
* FLIR;
Wilsonville, OR/Billerica, MA; 
Senior Director, Dual-Use Licensing 

* Fluke; Everett, WA; 
Trade Compliance Manager
; Requisition ID: FLU005544

* General Atomics Aeronautical Systems, Inc.; San Diego CA; 


International Trade Compliance Analyst (ITC) / Export Import Specialist / Global Trade Administrator
; Requisition ID: 12252BR


General Dynamics Land Systems; Sterling Heights, MI; Compliance Officer

SHC-LC-17-19648

* George Washington University; Washington DC; 
Research Compliance Officer, Export Control
; Requisition ID: PI97906765


Harris Corporation; Clifton, New Jersey;
Trade Compliance Analyst
;
lsolomon@harris.com
; Requisition ID: ES20171608-20394  


Harsco; Columbia, SC; 
Import/Export Specialist

* Henderson Group Unlimited, Inc.; Alexandria, VA;
Defense Controls Analyst – Office of Defense Trade Controls Licensing 

* Indiana Mills & Manufacturing, Inc.; Westfield, IN;
International Trade Compliance Manager 

*
Intel Corporation; Gdansk, Poland or Swindon/High Wycombe, England, UK;
EMEA Export Project Manager / Trade Specialist
; Job ID JR0033212; OR contact 
Joy Robins
*
Jet Propulsion Laboratory; Pasadena, CA;
Export Compliance Advisor III

* Johnson and Johnson; Skillman, NJ;
Export Trade Compliance Lead

* KPMG; Antwerp, Brussels;
Manager Global Trade & Customs – SAP GTS
; 122756BR

* Lockheed Martin; Fort Worth, TX;
International Trade Compliance Export Advisor; Requisition ID: 402827BR

* Lockheed Martin; Fort Worth, TX; 
International Trade Compliance Empowered OfficialRequisition ID: 401582BR

* Lockheed Martin; Grand Prarie, TX; 
International Trade Compliance Senior Manager; Requisition ID: 405533BR

* Lockheed Martin; Moorestown, NJ;
International Licensing Analyst; Requisition ID: 398636BR

* Lutron; Coopersburg, PA;
Trade Manager-Export
; Requisition ID: 2926
* Medtronic; Heerlen, The Netherlands;
Trade Compliance Analyst
; Requsition ID: 16000DYY

* Medtronic; Wash DC; Global Trade Lawyer;  
stacy.m.johnson@medtronic.com
; Requisition ID: 170002ON

* Meggitt PLC; Simi Valley, CA;
Trade Compliance Officer
* Meggitt PLC; Akron, OH;
Import Specialist;
* National Institute of Standards and Technology (NIST); Gaithersburg, MD;
Operations Research Analyst; Vacancy Numbe
r: NISTLP-2017-0003

*
 
NetApp; Singapore; Trade Compliance Mananger – APAC; Requisition ID 43338BR

* Nissan/Kelly Services; Franklin, TN;
CONTRACT Position – Contract Customs Compliance Analyst;
frankie.bryson@nissan-usa.com; Requisition ID: 55224BR

* North Dakota State University; Fargo, ND;
Director for Research Integrity Compliance; Requisition ID: 1700372

* Northrop Grumman Corporation; Herndon VA;
International Trade Compliance Analyst 3/4; Requisition ID: 17001180

* Northrop Grumman Sperry Marine; New Malden, UK;
Trade Compliance Coordinator
;
careers.uk@sperry.ngc.com
* Northrop Grumman; Herndon, VA;
International Trade Compliance 5; Requisition ID: 17018159
* Northrop Grumman; Herndon, VA;
Manager, International Trade Compliance 2; Requisition ID: 17017794
* Northrop Grumman; Herndon, VA;
Manager, International Trade Compliance 2; Requisition ID: 17014690
* Northrop Grumman; Rolling Meadows, IL;
International Trade Compliance Analyst 3; Requisition: 17015695
* Northrop Grumman; Huntsville, AL;
International Trade Compliance Analyst 3; Requisition ID: 17013824
* 
OSI Optoelectronics; Hawthorne, CA; Manager, Global Trade Compliance; Requisition ID: 12235; or contact Kim Butcher, Senior Talent Acquisition Partner;

* Raytheon; Arlington, VA;
Export License and Compliance Manager; Requisition ID: 97599BR
* Raytheon; Tucson, AZ;
Export Compliance – Agreements Authorization Owner; Requisition ID: 99909BR

* Raytheon; McKinney, TX;
Principal Global Trade Licensing; Requisition ID: 101234 BR

* Saab Defense and Security USA LLC; Syracuse NY;
Senior Import/Export Analyst
; Requisition ID: USA_00413

* The Safariland Group; Jacksonville, FL; 
Import/Export Director
;  
amber.hobble@safariland.com
; Requisition ID: 2017-1855

* Sierra Nevada Corporation; Arlington, VA; 
International Trade Compliance Analyst I
 ; Req ID: 
R0003446
 

* Sierra Nevada Corporation; Arlington, VA; 
International Trade Compliance Manager I
; Req ID: 
R0003497
 

* SIRE: Noord-Brabant province, the Netherlands;
Trade Compliance Expert; Requisition ID: 33934

* Tesla Motors; Fremont CA; 
Global Supply Manager – International Logistics
; Requisition ID: 49362

* Ultra Electronics; Loudwater, United Kingdom;
International Trade Manager


# United Technologies Corporation, UTC Aerospace Systems; Charlotte NC; 


Authorization Manager, ITC
;
Requisition ID: 53243BR

# United Technologies Corporation, UTC Aerospace Systems; Chula Vista CA; 
ITC Specialist
; Requisition ID: 51240BR
# United Technologies Corporation, UTC Aerospace Systems; Chula Vista CA; 
ITC Program Senior Manager
; Requisition ID: 52640BR
# United Technologies Corporation, UTC Aerospace Systems; Chula Vista CA; 
ITC Operational Excellence Manager
; Requisition ID: 49904BR


United Technologies Corporation, UTC Aerospace Systems; Chula Vista CA; 
ITC Specialist
; Requisition ID: 51240BR


United Technologies Corporation, UTC Aerospace Systems; Chula Vista CA;
ITC Specialist
; Requisition ID: 51710BR

* United Technologies Corporation, UTC Aerospace Systems; Chula Vista CA; 
Sr Eng, ITC
; Requisition ID: 48780BR

* United Technologies Corporation, UTC Aerospace Systems; Chula Vista CA; 
ITC Operational Excellence Manager
; Requisition ID: 49904BR

# United Technologies Corporation, UTC Aerospace Systems; Everett WA;
International Trade Compliance (ITC) Specialist; 
Requisition ID: 52787BR

# United Technologies Corporation, UTC Aerospace Systems; Fairfield CA; 


Sr. Eng, Intl Trade Compl;
Requisition ID: 48780BR

* United Technologies Corporation, UTC Aerospace Systems; Troy OH;
Sr. Manager, Intl Trade Compliance

Requisition ID: 44065BR  

* United Technologies Corporation, UTC Aerospace Systems; Westford MA;


Sr Analyst, ITC
; Requisition ID: 51450BR

* University of North Carolina; Chapel Hill, NC;
Export Control Officer 

* VAG; Mannheim, Germany;
Trade Compliance Manager (m/w)
; Contact: Mr. Florian Uhl, +49 621 749 – 1870

* Vigilant; Unknown location in the U.S.;
BioTech/Pharmaceutical Global Trade Analyst

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

TECEX/IM TRAINING EVENTS & CONFERENCES

 
* What: Harmonized System Classifications: Learning By Doing – A Two Part Series 
* When: (TWO DAYS) October 10 & 24, 2017; 1:00 p.m. (EDT)
* Where: Webinars (two-part series)
* Sponsor: Export Compliance Training Institute (ECTI)
* ECTI Speaker: Melissa Proctor
* Register: Here or Danielle McClellan, 540-433-3977, danielle@learnexportcompliance.com. 
* * * * * * * * * * * * * * * * * * * *

ENEDITOR’S NOTES

* D.H. Lawrence (David Herbert Lawrence; 11 Sep 1885 – 2 Mar 1930; was an English novelist, poet, playwright, essayist, literary critic and painter, best known for his novels, Sons and Lovers, The Rainbow, Women in Love, and Lady Chatterley’s Lover. His collected works represent, among other things, an extended reflection upon the dehumanising effects of modernity and industrialisation. Some of the issues Lawrence explores are sexuality, emotional health, vitality, spontaneity, and instinct. After his death, he was eulogized by author E. M. Forster as “the greatest imaginative novelist of our generation.”)
  – “Love is the flower of life, and blossoms unexpectedly and without law, and must be plucked where it is found, and enjoyed for the brief hour of its duration.”
 
O. Henry 
(
William Sydney Porter; 11 Sep 1862 – 5 Jun 1910; known by his pen name O. Henry
, was an American short story writer. His stories are known for their 
surprise endings
.
)
  – “We may achieve climate, but weather is thrust upon us.” 

* Chauncey Wright (10 Sep 1830 – 12 Sep 1875; was an American philosopher and mathematician, who was an influential early defender of Darwinism and an important influence on American pragmatists such as Charles Sanders Peirce and William James.)
  – “Let one persuade many, and he becomes confirmed and convinced, and cares for no better evidence.”
 
Monday is Pun Day:
 
Q: How do you get an injured pig to the Emergency Room?
A: In a ham-bulance!
  — Pam Mills, Pensacola, FL
 
Q. What’s the difference between a mineral and a fossil?
A. A mineral is a bona fide stone, whereas a fossil is a stonified bone.
  — Rene Arbogast, Tallahassee, FL

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

EN_a317
. Are Your Copies of Regulations Up to Date?
(Source: Editor)

The official versions of the following regulations are published annually in the U.S. Code of Federal Regulations (C.F.R.), but are updated as amended in the Federal Register.  Changes to applicable regulations are listed below.
 
*
ATF ARMS IMPORT REGULATIONS
: 27 CFR Part 447-Importation of Arms, Ammunition, and Implements of War
  – Last Amendment: 15 Jan 2016: 81 FR 2657-2723: Machineguns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a Firearm. 
 
*
CUSTOMS REGULATIONS
: 19 CFR, Ch. 1, Pts. 0-199
  – Last Amendment: 28 Jul 2017: 82 FR 35064-35065: Technical Corrections to U.S. Customs and Border Protection Regulations
 
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 cancelled Supp. 1 to the NISPOM (Summary 
here
.)


EXPORT ADMINISTRATION REGULATIONS (EAR)
: 15 CFR Subtit. B, Ch. VII, Pts. 730-774

  
– Last Amendment: 15 Aug 2017: 
82 FR 38764-38819: Wassenaar Arrangement 2016 Plenary Agreements Implementation

  
*
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 
 
*
FOREIGN TRADE REGULATIONS (FTR)
: 15 CFR Part 30
  – 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
here.
  – The latest edition (18 July 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, Census/AES guidance, and to many errors contained in the official text. 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: 25 Jul 2017: Harmonized System Update 1706, containing 834 ABI records and 157 harmonized tariff records.
  – HTS codes for AES are available
here
.
  – HTS codes that are not valid for AES are available
here.
 
INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR): 22 C.F.R. Ch. I, Subch. M, Pts. 120-130.
  – Last Amendment: 30 Aug 2017: 82 FR 41172-41173: Temporary Modification of Category XI of the United States Munitions List
  – The only available fully updated copy (latest edition: 30 Aug 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.

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

EN_a0318. 
Weekly Highlights of the Daily Bugle Top Stories

(Source: Editor) 

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

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

EPEDITORIAL POLICY

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

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

* TO UNSUBSCRIBE: Use the Safe Unsubscribe link below.

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