17-1122 Wednesday “Daily Bugle”

17-1122 Wednesday “Daily Bugle”

Wednesday, 22 November 2017

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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[No items of interest noted today.] 

  1. Items Scheduled for Publication in Future Federal Register Editions
  2. Commerce/BIS: (No new postings.)
  3. DHS/CBP Releases Reminder on Implementation Date of the Updated In-Bond Regulations
  4. State/DDTC Announces DTAS System Outages on 30 Nov and 6 Dec
  5. EU Commission Releases Annual Report Concerning Regulation (EC) No. 428/2009
  1. iPolitics: “Feds Want to Maintain Cabinet Power Over Arms Shipments in Treaty Bill”
  2. Reuters: “U.S. Sanctions 13 Chinese and North Korean Organizations”
  3. SentinelSource: “North Korea’s On-Again-Off-Again Status as a State Sponsor of Terrorism”
  1. M. Volkov: “Internal Investigations: Protecting the Attorney-Client Privilege”
  2. University of Liège Releases PhD Study on the Impact of Export Control on Scientific Research
  3. Gary Stanley’s ECR Tip of the Day
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Latest Changes: ATF (15 Jan 2016), Customs (28 Sep 2017), DOD/NISPOM (18 May 2016), EAR (9 Nov 2017), FACR/OFAC (13 Nov 2017), FTR (20 Sep 2017), HTSUS (20 Oct 2017), ITAR (30 Aug 2017) 
  3. Weekly Highlights of the Daily Bugle Top Stories 



[No items of interest noted today.]

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OGS_a11. Items Scheduled for Publication in Future Federal Register Editions
(Source: Federal Register

* U.S. Customs and Border Protection; NOTICES; Customs Brokers User Fee Payment for 2018 [Publication Date: 24 Nov 2017.]

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DHS/CBP Releases Reminder on Implementation Date of the Updated In-Bond Regulations

CSMS #17-000736, 22 Nov 2017.) [Excerpts.]
That implementation of the updated In-Bond regulations (see Federal Register notice of 28 Sep 2017) will occur on 27 November 2017. While the trade community should continue to make every effort to ensure that all in-bonds are submitted electronically from that date, CBP ports will not begin enforcement of those regulations on that date. CBP is working on an enforcement strategy to address identified issues. CBP field offices and the trade community will receive additional information when final decisions are made. … 

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State/DDTC Announces DTAS System Outages on 30 Nov and 6 Dec

State/DDTC, 22 Nov 2017.)
The DTAS information systems will be unavailable from 4:00AM-6:00AM Thursday, 30 November 2017 for scheduled routine maintenance. The DTAS systems will be available Thursday, 30 November 2017 after 6:00AM.
Also, the DTAS information systems will be unavailable from 6:00PM-8:00PM Wednesday, 6 December 2017 for scheduled routine maintenance. The DTAS systems will be available Wednesday, 6 December 2017 after 8:00PM.

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EU Commission Releases Annual Report Concerning Regulation (EC) No. 428/2009 

EU Commission, 21 Nov 2017.)
Article 23(3) of Regulation (EC) No. 428/2009 calls for the Commission to submit an annual report to the European Parliament on the activities, examinations and consultations of the Dual-Use Coordination Group (DUCG). Furthermore, the Commission Communication (COM(2014)244) recognizes that the publication of reports and non-sensitive control information could be critical steps to enhance transparency and improve operators’ compliance and their capacity to implement controls. This report, prepared by the Commission with inputs from Member States’ in the DUCG, provides information on the implementation of the Regulation in 2016, and includes aggregated export control data for 2015. …
To read the entire report, click here

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6. iPolitics: “Feds Want to Maintain Cabinet Power Over Arms Shipments in Treaty Bill”

(Source: iPolitics, 22 Nov 2017.) [Excerpts.]
The [Canadian] government is proposing language in an arms treaty bill that would maintain cabinet’s power to authorize arms shipments to countries involved in civilian conflict, as Canada has done over the past two years in the case of Saudi Arabia, iPolitics has learned.
Liberal MPs tabled the amendment at the last minute in the House of Commons Standing Committee on Foreign Affairs and International Development, sources say.
The committee is studying legislation that would allow Canada to sign on to a 2013 UN Arms Trade Treaty by incorporating standards in Canadian law that would prevent military arms exports to countries where the weapons could be used against civilians or in contravention of human rights.
But NDP MP Helene Laverdiere told iPolitics the government has not been supportive of changes to the treaty enabling legislation, Bill C-47, that experts have testified are required to bring Canada’s arms export controls and prohibitions in line with terms of the Arms Trade Treaty. …
The timetable suggests the bill to bring Canada into the Arms Trade Treaty – one of several Liberal gun-control promises from the 2015 election introduced in the Commons last April – has little chance of getting through Parliament and becoming law before February, 2018, after a winter parliamentary recess. …
Canada’s system requires the Canadian government to “closely control” the export of military goods and technology to countries that pose a threat to Canada, are involved in hostilities or are under UN sanctions – and to governments that have a persistent record of human rights violations against their citizens – “unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population.”
The Arms Trade Treaty would prohibit the Canadian government from authorizing any transfer of conventional arms “if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a party.” …  

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7. Reuters: “U.S. Sanctions 13 Chinese and North Korean Organizations

(Source: Reuters, 21 Nov 2017.) [Excerpts.]
The United States on Tuesday imposed sanctions on 13 Chinese and North Korean organizations Washington accused of helping evade nuclear restrictions against Pyongyang and supporting the country through trade of commodities like coal.
The U.S. Treasury announced the action one day after President Donald Trump put North Korea back on a list of state sponsors of terrorism, on its website.
The new curbs show the Trump administration’s focus on hurting trade between China and North Korea, which it sees as key to deterring Pyongyang from its ambition to develop a nuclear-tipped missile capable of hitting the United States.
  “This designation will impose further sanctions and penalties on North Korea and related persons, and supports our maximum pressure campaign to isolate the murderous regime,” said Treasury Secretary Steven T. Mnuchin.
The latest sanctions included blacklisting three Chinese companies, Dandong Kehua Economy & Trade Co., Dandong Xianghe Trading Co., and Dandong Hongda Trade Co., which the Treasury Department said had done more than $750 million in combined trade with North Korea over almost five years until Aug. 31. …
It said they were involved in trade of coal, iron ore, lead, zinc and silver ore, lead metal and ferrous products as well as notebook computers. … 

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8. SentinelSource: “North Korea’s On-Again-Off-Again Status as a State Sponsor of Terrorism”

(Source: SentinelSource, 21 Nov 2017.)
The U.S. government redesignated North Korea as a state sponsor of terrorism Monday. The move, announced by President Donald Trump during a brief photo op at a Cabinet meeting, was designed to put pressure on Pyongyang’s nuclear weapons program.
  “It should have happened a long time ago,” Trump told reporters. “It should have happened years ago.”
This isn’t North Korea’s first time on the list. The country was designated a state sponsor of terrorism in 1988 and stayed on the list until it was removed in 2008.
Q: What is a state sponsor of terrorism?
A: Since 1979, the State Department has kept a list of countries that are alleged to have “repeatedly provided support for acts of international terrorism.” The designation results in a variety of unilateral sanctions, including a ban on arms-related exports and sales, prohibitions on economic assistance, and other punitive measures.
The list is determined by three laws: Section 6j of the Export Administration Act, Section 40 of the Arms Export Control Act and Section 620 of the Foreign Assistance Act.
Exactly what makes a country a sponsor of terrorism is kept relatively vague: Joseph DeThomas, a former State Department official who focused on North Korea and Iran and is a professor of international affairs at Pennsylvania State University, has called it “more of an art than a science” and noted that “political and diplomatic context plays a considerable role in such designations.”
When first released in 1979, the list included only four nations: Libya, Iraq, South Yemen and Syria. Over the years, a number of countries have been added to the list and some removed. Until North Korea was added this week, only Iran, Syria and Sudan remained on the list.
Q: Why was North Korea first added to the list in 1988?
A: Before 1988, North Korea had been implicated in a number of international plots, including hijackings, abductions, bombings and assassination attempts.
However, it was the bombing of Korean Air Flight 858 in 1987 that sealed North Korea’s place on the list of state sponsors of terrorism. In this attack, later linked to North Korean agents, a plane flying between Baghdad and Seoul was blown up over the Andaman Sea. All 115 people on board were killed.
The bombing of Flight 858, as well as a 1983 attack in Rangoon, Burma, that killed 17 South Koreans and four Burmese that was linked to Kim Jong Il, prompted the Ronald Reagan administration to decide that North Korea should be added to the list.
Q: Why was North Korea removed from the list in 2008?
A: Two decades after being designated a state sponsor of terrorism, North Korea was removed from the list in 2008 by the administration of President George W. Bush. It was a controversial move; then-Sen. Barack Obama was among those who supported it, calling the decision “an appropriate response.”
For a nation to be removed from the list of state sponsors, Bush had to certify to Congress that its government had either fundamentally changed its stance on providing support to terrorism or had not provided support for international terrorism for six months and had given assurances to the United States that it would not support international terrorism in the future.
North Korea was able to meet these criteria relatively simply: The State Department’s 2007 Country Reports on Terrorism had noted that North Korea was not known to have sponsored any terrorist acts since 1987, and the U.S. government later announced that Pyongyang had issued “an authoritative and direct public statement affirming that it does not support international terrorism now and will not support international terrorism in the future.” North Korea was able to meet those criteria relatively simply: The State Department’s 2007 Country Reports on Terrorism had noted that North Korea was not known to have sponsored any terrorist acts since 1987, and the U.S. government later announced that Pyongyang had issued “an authoritative and direct public statement affirming that it does not support international terrorism now and will not support international terrorism in the future.”
Another major important factor in the move to drop North Korea from the list were faltering talks over nuclear disarmament with Pyongyang that the Bush administration hoped could be salvaged by the delisting move. Notably, U.S. officials said North Korea had agreed to not restart the partially disabled Yongbyon nuclear reactor, which had been producing fissile material for weapons tests.
Q: Why is the Trump administration redesignating North Korea as a state sponsor of terrorism?
A: The 2008 decision to delist North Korea has long divided experts, some of whom have called for the country to be redesignated.
One key bone of contention is whether North Korea has committed acts of terrorism in recent years. For example, in 2015, Joshua Stanton of the Committee for Human Rights in North Korea issued a report that argued that although it was commonly thought that North Korea had not been directly linked to high-profile terrorism plots since 1987, Pyongyang had been actively involved in suspected arms transfers to terrorists as well as other threats and assassination plots that met the legal definitions of “international terrorism” and terrorism “support.”
These arguments were bolstered in recent years by the alleged hack of Sony Pictures in 2014 and the assassination of Kim Jong Nam, brother to North Korean leader Kim Jong Un, in 2017 – the latter of which was called an “act of terrorism” by South Korea soon afterward. 

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9. M. Volkov: “Internal Investigations: Protecting the Attorney-Client Privilege”

(Source: Volkov Law Group Blog, 20 Nov 2017. Reprinted by permission.)
* Author: Michael Volkov, Esq., Volkov Law Group, mvolkov@volkovlaw.com, 240-505-1992.
I like to repeat myself – attorneys are valuable for only two reasons: (1) attorney-client privilege; and (2) advice of counsel defense. I know I am not supposed to denigrate my profession but these are two important reasons, especially the attorney-client privilege.
In the context of corporate internal investigations, the attorney-client privilege is an essential tool when conducting internal investigations involving serious issues. I am not suggesting that every internal investigation should be conducted under the attorney-client privilege; rather, the attorney-client privilege should be used in every serious internal investigation.
Given the increasing importance of internal investigations to the resolution of any government enforcement action, companies have to be careful to take appropriate steps to preserve the privilege. Here are a few suggestions – I am sure there are more but these are suggestions that I have applied in my practice:
At the beginning of any internal investigation, counsel should identify the purpose of the investigation and specifically how the results will be used, if at all. If, for example, the matter under investigation is likely to result in litigation, then the privilege should be preserved. On the other hand, if the investigation is only for an internal purpose, or a minor disciplinary action, then the privilege may be less important to protect.
If the privilege is going to be applied, then the investigation should make it clear, at the inception, with documented guidance from the company’s Chief Legal Officer that the specific investigation is being conducted under a claim of privilege. Thereafter, and at every step, counsel and investigators have to state unequivocally before any interview that the investigation is being conducted under the privilege, and that it is the company’s privilege, so that waiver or any claim belongs to the company not to any individual. The company should document carefully the legal basis for the investigation, the specific assertion of the privilege, and provide basic guidance on how the privilege should be preserved.
If in-house or outside counsel needs to obtain data from within the company (e.g. emails, documents), counsel should make clear and document that the collection and use of such information as part of the internal investigation is for the purpose of providing legal advice and counsel to the client company. Counsel should advise in writing and orally those who collect such information of the confidentiality of the information and the fact that such information is being collected under the company’s privilege.
If outside counsel conducts the investigation under its privilege and retains any consultants or experts who will assist in the investigation, outside counsel should, in writing, directly retain the consultants or experts and make sure that the information supplied to outside counsel is provided to outside counsel with clear documentation and notations that such information is being provided to outside counsel for purposes of providing legal advice and counsel to the clienbt company.
Confidential and privileged communications should be directed to counsel and not to high-level executives or managers in the company. Executives, managers and employees should not communicate among themselves about privileged matters – it should be directed specifically to the counsel handling the matter. All too often, companies believe that they are preserving the privilege when they communicate between or among themselves and add an attorney to the cc or bc line – in the latter case, such a claim, if challenged, will be rejected.
All communications and copies of documents or email messages (whether hard copy or electronic) should be marked with (e.g. attorney-client privilege markings “Protected by Attorney-Client Privileged” or “Prepared for Counsel and Protected by Attorney-Client Privilege.”)
In conducting interviews, counsel should fully advise any subject of the investigation of his/her “Upjohn” rights, and should do so in writing, and with clear waiver language and witness signature and date, so that there is adequate documentation that the witness was advised of his/her rights and chose to go forward with the interview.
Executives, managers and employees should not forward any attorney-client privileged communications (especially any third party) without first checking with counsel to prevent an inadvertent or unintended waiver claim.
All discussions, meetings or communications involving the fact that an internal investigation is ongoing, the process, or any conclusions (tentative or otherwise) should be conducted with counsel present and engaged.

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10. University of Liège Releases PhD Study on the Impact of Export Control on Scientific Research

(Source: University of Liège, 14 Nov 2017.)
At a time when the diffusion of knowledge into society and the utilization of science by industry is as high as ever, some types of research may undergo restrictions on the basis of ethical principles and security imperatives. The role of Christos Charatsis PhD research is to clarify the legal obligations originating from export control laws and affecting research activities and, explore the level of awareness of proliferation risks within the scientific community. National law provisions and especially international law would normally reflect and codify long-lasting ethical principles and patterns that guarantee the smooth functioning of societies. 
The study by no means intends to stigmatize specific areas of research and direct a purely ethical discussion on what should be considered as moral or not when conducting research. Instead, its main purpose is to identify the implications of export controls of dual-use items and technologies for legitimate research and equip researchers and research organizations with a strategy to cope with the challenges being inherent to the combat against the proliferation of Weapons of Mass Destruction (WMD).
The entire study, “Interferences between non-proliferation and science: ‘exporting’ dual-use know-how and technology in conformity with security imperatives,” is available in PDF here

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11. 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, +1 202-352-3059,

Under the EAR, merely providing foreign persons in the United States with access to controlled equipment, software, or technology does not necessarily trigger a requirement to get a license or determine whether a license exception is available to be compliant with the EAR. The question in such circumstances is whether “technology” is actually “released,” as defined in 
EAR § 734.15, during the provision of such access.

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* Rodney Dangerfield (born Jacob Rodney Cohen; 22 Nov 1921 – 5 Oct 2004; was an American stand-up comedian, actor, producer and screenwriter known for the catchphrase “I don’t get no respect!” and his monologues on that theme. He is also remembered for his 1980s film roles, especially in Easy Money, Caddyshack, and Back to School.)
   – “I saved a girl from being attacked last night. I controlled myself.”
   – “My psychiatrist told me I was crazy and I said I wanted a second opinion. He said okay, you’re ugly too.”
* George Eliot (Mary Anne Evans; 22 Nov 1819 – 22 Dec 1880; known by her pen name George Eliot, was an English novelist, poet, journalist, translator and one of the leading writers of the Victorian era. She is the author of seven novels, including Adam Bede (1859), The Mill on the Floss (1860), Silas Marner (1861), Middlemarch (1871-72), and Daniel Deronda (1876), most of which are set in provincial England and known for their realism and psychological insight.)
  – “It is never too late to be what you might have been.”
* Miley Cyrus (born Destiny Hope Cyrus; 23 Nov 1992; is an American singer, songwriter, and actress. She became a teen idol starring in the television series Hannah Montana in 2006. While promoting her albums in 2011 and 2012, her sexually explicit behavior generated widespread controversy. Cyrus returned to a more wholesome image with her sixth studio album in 2017.)
  – “If I could get any animal it would be a dolphin. I want one so bad! Me and my mom went swimming with dolphins and I was like, ‘How do we get one of those?’ and she was like, ‘You can’t get a dolphin. What are you gonna do, like, put it in your pool?'”

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. 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.
: 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. 
: 19 CFR, Ch. 1, Pts. 0-199
  – Last Amendment: 28 Sep 2017: 82 FR 45366-45408: Changes to the In-Bond Process [Effective Date: 27 Nov 2017.]

  – 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 

: 15 CFR Subtit. B, Ch. VII, Pts. 730-774

  – Last Amendment: 9 Nov 2017: 82 FR 51983-51986: Amendments to Implement United States Policy Toward Cuba

: 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders
  – Last Amendment: 13 Nov 2017: 82 FR 52209-52210: Removal of Côte d’Ivoire Sanctions Regulations

: 15 CFR Part 30
  – Last Amendment:
20 Sep 2017:
82 FR 43842-43844
: Foreign Trade Regulations (FTR): Clarification on Filing Requirements; Correction
  – HTS codes that are not valid for AES are available
  – The latest edition (20 Sep 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.
, 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: 20 Oct 2017: Harmonized System Update 1707, containing 27,291 ABI records and 5,164 harmonized tariff records.

  – HTS codes for AES are available here.
  – HTS codes that are not valid for AES are available here.

  – 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: 19 Nov 2017) of the ITAR with all amendments is contained in Bartlett’s Annotated 

, 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
. 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 the Daily Bugle Top Stories” published 

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

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