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17-1211 Monday “Daily Bugle”

17-1211 Monday “Daily Bugle”

Monday, 11 December 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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[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 Posts Reminder on ACE mid and FTZ Must Be Filed with ACE Header
  4. State/DDTC in the Process of Modernizing DECCS
  1. The Better India: “Entry into the WA: What This Means for India”
  2. Forbes: “Forty-Nine Countries Have Violated Sanctions On North Korea”
  3. Guns.com: “Four Sentenced After Selling Military Equipment Swiped from Fort Campbell”
  4. ST&R Trade Report: “Incentives to Self-Disclose FCPA Violations Increased”
  1. L.A. Low, B. Prelogar & J. Piquet Megaw: “The DOJ’s New FCPA Corporate Enforcement Policy: Dangling Presumptive Declination as an Incentive for Voluntary Disclosure”
  2. M. Volkov: “Pushing Ethics and Compliance Programs in the New FCPA Corporate Enforcement Policy”
  3. Gary Stanley’s ECR Tip of the Day
  1. Monday List of Ex/Im Job Openings: 130 Jobs Posted, Including 11 New Jobs
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Latest Changes: ATF (15 Jan 2016), Customs (8 Dec 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 

EXIMITEMS FROM TODAY’S FEDERAL REGISTER

EXIM_a1

[No items of interest noted today.] 

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OGSOTHER GOVERNMENT SOURCES

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

[No items of interest noted today.]

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OGS_a33.

DHS/CBP Posts Reminder on ACE mid and FTZ Must Be Filed with ACE Header

(Source:
CSMS #17-000761, 9 Dec 2017.)
 
CBP has noticed that there are MID and FTZ filings that continue to come in with the legacy ACS AB/YZ format. Please be advised that these filings will not process correctly and will need to be resubmitted. Any filings for MID and FTZ are expected to have the new ACE AB/YZ format.

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OGS_a44.

State/DDTC in the Process of Modernizing DECCS

(Source:
State/DDTC, 11 Dec 2017.)
 
The IT Modernization Team is continuing its development efforts aimed at producing a modernized system to securely and efficiently provide web-based applications for select DDTC functions. The Defense Export Control & Compliance System (DECCS) testing and release is targeted for early 2018. The project team will provide more information for testing and release preparations as they are available. 

Email pm_ddtcprojecteam@state.gov for any specific questions regarding DECCS.

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NWSNEWS

NWS_a1
5The Better India: “Entry into the WA: What This Means for India”

(Source: The Better India, 9 Dec 2017.) [Excerpts.]
 
The export control regime met for its plenary session earlier this week and admitted India into the 42-nation group.
 
In a significant development earlier this week, India was admitted into the Wassenaar Arrangement (WA)-a multilateral export control regime that regulates the transfer and access to conventional weapons and (dual use) technology used for both peaceful and military aims. …
 
Since India signed a historic nuclear deal with the United States in 2008, India has acquired a seat on the table of two (WA and Missile Technology Control Regime) major non-proliferation regimes in the world, despite not being a signatory to the Non-Proliferation Treaty (NPT). The other two regimes are the Nuclear Suppliers Group and the Australia Group. In the coming months, India is expected to get admission into the Australia Group. …
 
  “India’s membership (in Wassenaar Arrangement) is expected to facilitate high technology tie-ups with Indian industry and ease of access to high tech items for our defense and space programs… The membership would create the grounds for realignment of India in the export control policy framework or other WA members, including eligibility for certain licensing exemptions,” a spokesperson from the Ministry of External Affairs said on Friday at a press briefing.
 
For greater access to such necessary technology and product exports, India will still have to apply for licenses, but the entire application procedure is expected to get easier.
 

As a non-signatory to the NPT, India had trouble accessing dual-use technology from member nations of these export control regimes, even after signing the nuclear deal with the United States. ‘Dual-use’ refers to technology that can have peaceful and military applications. The technology used to harness nuclear energy, for example, is a good example of ‘dual-use’. …

 

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NWS_a2
6Forbes: “Forty-Nine Countries Have Violated Sanctions On North Korea”

(Source: Forbes, 7 Dec 2017.) [Excerpts.]
 
In recent years, 49 countries violated international sanctions on North Korea to various degrees. A new report from the Institute for Science and International Security analyzed UN Panel of Exports procurement data to illustrate the global extent of the violations from March 2014 to September 2017. 13 governments were found to be involved in military cases, including Cuba, Egypt, Iran and Syria. They include instances of Pyongyang providing undemocratic nations with military training as well as the import and export of military equipment.
 
A broader range of countries were involved in other non-military sanctions violations, ranging from the import and export of sanctioned goods and minerals from North Korea to activities associated with re-flagging vessels and aiding shipments. Further examples include involvement in the facilitation of front companies, financial transactions and other business activities. China, Pyongyang’s largest trading partner, was among those guilty of violating sanctions, along with France, Germany and Japan. … 

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NWS_a3
7Guns.com: “Four Sentenced After Selling Military Equipment Swiped from Fort Campbell”

(Source: Guns.com, 9 Dec 2017.) 
 
Four of eight charged last year as part of a conspiracy to sell gun parts and gear stolen from the Army were sentenced this week in federal court.
 
The stiffest punishment went to John Roberts, 27, of Clarksville, a civilian involved in the resale of the items, many of which were sold on eBay and shipped overseas. Roberts received 15 years in prison this on Tuesday following his conviction on charges earlier this year that included conspiracy, wire fraud and violating the Arms Export Control Act. The court also ordered Roberts to pay $4.2 million in restitution to the Army for the items.
 
Roberts was arrested last November as part of a ring that included several active duty U.S. Army enlisted men involved in selling gear removed without authorization from Fort Campbell.
 
According to court documents, between 2013 and February 2016, the soldiers carried away a varying degree of items from the base without permission, passing them to the two civilians in Clarksville, Tennessee, who resold them. Prosecutors argued Roberts knew the items were stolen and preyed on enlisted men who suffered from a variety of financial problems or serious drug addictions.
 
The ring moved millions in stolen equipment including full-auto firearm components, sensitive night-vision and communications gear, flight helmets, body armor, medical supplies and even items such as printer cartridges. The two civilian members of the conspiracy allegedly sold the nearly 1,600 items on eBay or to retail outlets, in the process frequently violating export laws on controlled items. Items were shipped overseas to destinations ranging from China and Russia to India and the Netherlands.
 
Firearm components stolen and sold by members of the conspiracy included sights for M203 grenade launchers, trigger groups for the M240 machine gun – listed for sale eBay for $399 – and a host of parts for the M249 machine gun including magazine adapters, heat shields, buffer tube assemblies, pintle mounts, and barrels. One of the defendants sold 30 stolen M249 barrels to a retail store. Another auction was for an M144 Sniper Spotting Scope.
 
Also sentenced on Tuesday were three who pleaded guilty to conspiracy charges: Aaron Warner, Alexander Hollibaugh, and U.S. Army Specialist Dustin Nelson, who each were given sentences ranging from time served to probation.
 
The four remaining defendants- Michael Barlow and Jonathan Wolford of Clarksville; Kyle Heade of Fort Campbell; and Cory Wilson of Gonzalez, Louisiana- all of whom have pleaded guilty to a variety of felonies, are scheduled to be sentenced in January.

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NWS_a4
8ST&R Trade Report: “Incentives to Self-Disclose FCPA Violations Increased”

 
Deputy Attorney General Rod Rosenstein announced recently a new enforcement policy that seeks to further enhance the benefits of self-disclosing violations of the Foreign Corrupt Practices Act. The policy, which is already in effect and has been incorporated into the U.S. Attorneys’ Manual, codifies and enhances a recently-concluded 18-month pilot program during which the Department of Justice received 30 FCPA voluntary disclosures, up from 18 during the previous 18-month period.
 
The new policy states that when a company satisfies the standards of voluntary self-disclosure, full cooperation, and timely and appropriate remediation there will be a presumption that DOJ will resolve the company’s case through a declination of prosecution. That presumption may be overcome only if there are aggravating circumstances; these are not defined, but examples include executive management involvement in the misconduct, a significant profit from the misconduct, pervasiveness of the misconduct within the company, and criminal recidivism.
 
If aggravating circumstances warrant an enforcement action even if a violation is voluntarily disclosed and all other requirements are satisfied, DOJ will recommend a 50 percent reduction off the low end of the Sentencing Guidelines fine range (except in the case of a repeat offender). DOJ will also generally not require the appointment of a compliance monitor if a company has implemented an effective compliance program at the time of resolution.
 
To qualify for this policy companies must pay all disgorgement, forfeiture, and/or restitution resulting from the misconduct at issue. Companies will remain free not to comply.
 
Rosenstein said the policy also provides details about how DOJ will evaluate an appropriate compliance program. While these will vary depending on the size and resources of a business, examples include fostering a culture of compliance, dedicating sufficient resources to compliance activities, and ensuring that experienced compliance personnel have appropriate access to management.

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COMMCOMMENTARY

COMM_a01
9. L.A. Low, B. Prelogar & J. Piquet Megaw: “The DOJ’s New FCPA Corporate Enforcement Policy: Dangling Presumptive Declination as an Incentive for Voluntary Disclosure”

(Source: Steptoe & Johnson LLP, 4 Dec 2017.)
 
* Authors: Lucinda A. Low, Esq., llow@steptoe.com, +1 202-429-8051; Brittany Prelogar, Esq., bprelogar@steptoe.com, +1 202-429-5518; and Jessica Piquet Megaw, Esq., jmegaw@steptoe.com, +1 202-429-8094.  All of Steptoe & Johnson LLP.
 
On November 29, 2017, in remarks made at the American Conference Institute’s 34th International Conference on the Foreign Corrupt Practices Act (FCPA), Deputy Attorney General Rod J. Rosenstein recognized the success of the FCPA Enforcement Plan and Guidance (commonly referred to as the FCPA “Pilot Program”), which had been in effect since April 5, 2016, and announced a revised FCPA Corporate Enforcement Policy.  The new policy, which has been formally incorporated into the US Attorneys’ Manual (USAM), and is specific to the FCPA, [FN/1] continues and builds upon aspects of the Pilot Program.  Its goal is to “increase the volume of voluntary disclosures” by providing additional transparency and certainty concerning the benefits of voluntary disclosure, full cooperation, and full and timely remediation, thereby “enhanc[ing] the [DOJ’s] ability to identify and punish culpable individuals.”  A transcript of Mr. Rosenstein’s remarks can be found here.
 
Most significantly, the FCPA Corporate Enforcement Policy creates a presumption that a company meeting all standards relating to “voluntary self-disclosure, full cooperation, and timely and appropriate remediation” (each of which the new policy defines) will have its case resolved through a declination “absent aggravating circumstances involving the seriousness of the offense or the nature of the offender.”  The Pilot Program, in contrast, provided that the DOJ would “consider” resolving the matter with a declination in such circumstances.  Under the new policy, however, the presumption of a declination may be overcome by “aggravating circumstances” that include (but are not limited to):
 
   – Executive-level involvement in the misconduct;
   – Significant profits to the company resulting from the misconduct;
   – Pervasiveness of the misconduct; and
   – Criminal recidivism.
 
These broadly phrased factors are substantially the same as the factors outlined in the Pilot Program as relevant to the DOJ’s consideration of whether to grant a declination, and leave significant discretion to DOJ prosecutors as to whether the presumption of declination will apply in a given case.
 
Even where such aggravating factors exist, however, and the DOJ views criminal prosecution as warranted, the Fraud Section will accord (or recommend to a sentencing court) a 50% reduction off of the lower end of the US Sentencing Guidelines (USSG) fine range (except in cases involving criminal recidivism) for companies that have self-disclosed, fully cooperated, and timely and appropriately remediated, and “generally will not require appointment of a monitor” (to the extent a company has already implemented an effective compliance program at the time of resolution).  Where a company has fully cooperated but did not voluntarily disclose misconduct, it will still be eligible for up to a 25% reduction off of the lower end of the USSG fine range.
 
To qualify for the FCPA Corporate Enforcement Policy, companies will be required to pay “disgorgement, forfeiture, and/or restitution,” even where they have made a voluntary disclosure, fully cooperated with enforcement authorities, and fully and timely remediated.  The Pilot Program likewise required payment of disgorgement and, while it did not explicitly require the payment of forfeiture and/or restitution, in practice the DOJ required such payments. [FN/2]  The new policy contemplates that these payment requirements may be satisfied by a parallel resolution with a relevant regulator, such as the SEC.
 
The FCPA Corporate Enforcement Policy also outlines the steps companies must take in order to qualify for credit for voluntary self-disclosure, as well as relevant factors in evaluating a company’s full cooperation and timely and appropriate remediation.  Consistent with the Pilot Program, a self-report must (1) be made “prior to an imminent threat of disclosure or government investigation;” (2) be made within a reasonably prompt time of the company learning of an offense (with the burden on the company to demonstrate timeliness); and (3) include a disclosure of all relevant facts, including concerning all individuals involved in the violation.  However, while companies required by law, contract, or agreement to make a disclosure were excluded from eligibility for the Pilot Program, this is no longer the case under the FCPA Corporate Enforcement Policy.
 
The elements of “full cooperation” outlined in the new policy (which are largely consistent with the Pilot Program) are “in addition to” those outlined in the current Principles of Federal Prosecution of Business Organizations and continue to include, among other criteria, the disclosure of overseas documents (with the burden on the company to establish any foreign law prohibition on such disclosure) and facilitation of third-party production of documents and witnesses, as well as “de-confliction” (of witness interviews and other investigative steps) between the company’s and DOJ’s investigations “where requested.” [FN/3]  They make no policy changes with respect to the assertion of legal privilege.
 
With respect to remediation, the FCPA Corporate Enforcement Policy calls for companies to demonstrate a “thorough analysis of causes of underlying conduct…and, where appropriate, remediation to address the root causes.” [FN/4]  Not surprisingly, implementing an effective compliance and ethics program by the time of resolution continues to be a requirement for appropriate remediation. [FN/5]  The DOJ continues to recognize that the criteria for such a program may vary based on a company’s size and resources.  Notably, while the new policy sets forth some of the criteria for such a program, it notes that such criteria “will be periodically updated.”  The criteria listed in the new policy largely mirror those set forth in the Pilot Program, including an emphasis on a culture of compliance; [FN/6] on the compliance function and personnel (including factors such as authority, autonomy, independence, resources, reporting structure, quality, compensation and promotion); and on conducting risk assessments and audits to assure the program’s effectiveness.
 
The new policy includes a few noteworthy additions, however, including the “availability of compliance expertise to the board” and the need for companies to “prohibit[] employees from using software that generates but does not appropriately retain business records or communications.”  Furthermore, in an interesting departure from language in the Pilot Program, which required companies to have “a system that provides for the possibility of disciplining others with oversight of the responsible individuals, and considers how compensation is affected by both disciplinary infractions and failure to supervise adequately,” the revised enforcement policy requires appropriate discipline for all employees responsible for misconduct, including through “failure in oversight, as well as those with supervisory authority over the area in which the criminal conduct occurred.”  This suggests that the DOJ will be looking for indications of accountability farther up the corporate chain, going beyond the direct supervisor level.
 
While the prospect of a presumptive declination under the new policy is potentially significant, it is difficult to assess how much of a game-changer it may be at this juncture.  It is not a leniency program, nor does it provide a compliance defense.  The presumption may be overcome based on the same factors articulated under the Pilot Program, which leave substantial room for the exercise of prosecutorial discretion, in determining whether any of the broadly-stated aggravating circumstances may apply.  The availability of a declination under this new policy will also turn on prosecutors’ judgment whether a company has met its burden in demonstrating it made a voluntary self-disclosure, has fully cooperated, and has taken timely and appropriate steps to remediate the misconduct consistent with the new policy.
 
The new policy does not address what will transpire with corporate groups, for example, when a parent and one or more subsidiaries are implicated in misconduct.  In the past, DOJ enforcement frequently differentiated between parent and subsidiaries, sometimes giving the parent a non-prosecution agreement or deferred prosecution agreement, while requiring a plea from the subsidiary. [FN/7]  It is possible under this policy that the parent would receive a declination for its reporting, cooperation, and remediation, while the subsidiary would be subjected to a criminal resolution.
 
Moreover, as under the Pilot Program, declinations under the FCPA Corporate Enforcement Policy will be made public. [FN/8]  Thus, overall, while the new policy offers a potentially significant benefit, the decision whether to self-report an FCPA violation to US enforcement authorities will likely still be one that requires careful consideration.  In this era of increased international cooperation among enforcement authorities, companies that self-report to the DOJ are likely to be opening themselves up to investigation and potential prosecution in multiple jurisdictions, as well as the collateral consequences that may flow from a public FCPA matter, even a declination.
 
————-
  [FN/1] The new policy is incorporated in chapter 9-47 of the USAM at section 120.  Section 9-47.120 begins by stating that “[d]ue to the unique issues presented in FCPA matters, including their inherently international character and other factors, the FCPA Corporate Enforcement Policy is aimed at providing additional benefits to companies based on their corporate behavior once they learn of misconduct.”
  [FN/2] Earlier this year, for example, the DOJ issued its first public FCPA declination under the Trump administration in a case involving an entity acquired in 2006 by Linde North America Inc. and Linde Gas America LLC.  Linde agreed to disgorge profits of the acquired entity and forfeit proceeds owed to certain unrelated entities in the amount of $11 million.  See DOJ Declination Letter, In re Linde North America Inc. (June 16, 2017).  Steptoe represented the companies in this matter.
  [FN/3] In a Comment, the FCPA Corporate Enforcement Policy notes that de-confliction “will be made for a limited period of time and will be narrowly tailored to a legitimate investigative purpose (e.g., to prevent the impeding of a specified aspect of the Department’s investigation)” and that the DOJ will notify the company when the “justification dissipates” and the DOJ is lifting its request. 
  [FN/4] This concept is included under § 1 of the DOJ’s Evaluation of Corporate Compliance Programs (Feb. 2017).
  [FN/5]
Although the interaction of various provisions of the USAM and USSG is complex, having an effective pre-existing compliance and ethics program in place appears to remain a consideration for the DOJ in investigating and charging misconduct, and negotiating plea agreements under the FCPA Resource Guide, and also lowers the applicable fine range under the USSG; that fine range can be further discounted for companies that qualify for the FCPA Corporate Enforcement Policy.
  [FN/6] Separately, the head of the DOJ FCPA Unit stated at this same conference that they do not consider “tone at the top” to be satisfied by the sending of management messages, but are focused instead on the “conduct at the top.” 
  [FN/7] Some cases reflect the full range of enforcement tools, from NPA to DPA and Plea.  In 2014, for example, an investigation of Hewlett-Packard Company (HP) and three wholly-owned subsidiaries resulted in different resolutions for each of three subsidiaries involved – a DPA for HP’s Polish subsidiary, an NPA for HP’s Mexican subsidiary, and a plea for HP’s Russian subsidiary.  See Deferred Prosecution Agreement, United States v. Hewlett-Packard Polska, SP. Z O.O, No. 5:14-cr202 (N.D. Cal. Apr. 9, 2014); Plea Agreement, United States v. Zao Hewlett-Packard A.O., No 5:14-cr-201 (N.D. Cal. Apr. 9, 2014); Non-Prosecution Agreement, Hewlett-Packard Mexico, S. de R.L. de C.V. (Apr. 9, 2014); Order Instituting Cease and Desist Proceedings, In re Hewlett-Packard Co., Exchange Act Release No. 71916 (Apr. 9, 2014).
  [FN/8] The new policy justifies this by noting that these are cases that would have been criminally prosecuted but for the factors of voluntary disclosure, full cooperation, and timely remediation.  Declinations made for other reasons (e.g., concerns about jurisdiction or proof), will not be effected pursuant to this policy. 

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COMM_a210
M. Volkov: “Pushing Ethics and Compliance Programs in the New FCPA Corporate Enforcement Policy”

(Source: Volkov Law Group Blog, 10 Dec 2017. Reprinted by permission.)
 
* Author: Michael Volkov, Esq., Volkov Law Group, mvolkov@volkovlaw.com, 240-505-1992.
 
The Justice Department’s aggressive enforcement program, particularly in the FCPA arena, has been the primary impetus to the growth and empowerment of the corporate compliance function.  The Justice Department and SEC’s FCPA Guidance, and the specific Hallmarks of an Effective Compliance and Ethics Program is the most definitive statement on compliance expectations ever released by US prosecutors.  Since 2012, the Justice Department has built on this foundation with its release of the FCPA Pilot Program in April 2016; Evaluation of Corporate Compliance Programs issued in March 2017; and with the recent adoption of a new FCPA Corporate Enforcement Policy.
 
In sum, the Justice Department has outlined a broad vision for the successful operation of an ethics and compliance program.  While many point to the US Sentencing Guidelines as the seminal definitions for a compliance practitioner, I would argue that the Justice Department’s work listed above has defined a new, broad and much more robust set of expectations for an ethics and compliance program.  As laid out by the Justice Department, a company that suffers violations, whether bribery, sanctions, antitrust, safety, anti-money laundering or other areas will be assessed based on the principles and functions described by the Justice Department, largely in the anti-corruption area.
 
In this context, it is important to examine the Justice Department’s recent outline of its expectations for timely and appropriate remediation in order to qualify for the benefits under the FCPA Corporate Enforcement Policy.
 
In order for a company to receive full credit for remediation and avail itself of the benefits of the FCPA Corporate Enforcement Policy, the company must have effectively remediated at the time of the resolution. There are four separate requirements that have to be satisfied under the remediation prong.
 
First, the company has to demonstrate that it analyzed the causes of underlying conduct (i.e., a root cause analysis) and, where appropriate, remediated the root causes;
 
The “root cause” analysis has been added as a separate requirement for remediation.  The Justice Department’s intent is to ensure that the company has analyzed its financial and compliance controls to determine any deficiencies that may have caused or contributed to the company’s bribery violations. A company’s task here is much more intensive and detailed than a typical risk and compliance program assessment – instead, the analysis focuses on the violations and analyzes how the culpable individuals were able to carry out the bribery scheme without detection by the company’s internal controls.
 
Second, the company has to implement at the time of resolution an effective compliance and ethics program.  The new FCPA Corporate Enforcement Policy specifically notes that the criteria for an effective program may be updated in the future and will vary depending on the size and resources of the company.
 
The specific criteria are valuable reminders of how powerful the message of compliance has become and the empowerment of compliance professionals.  The criteria include:
 
  (1) The company’s culture of compliance, including awareness among employees that any criminal conduct, including the conduct underlying the investigation, will not be tolerated;
  (2) The resources the company has dedicated to compliance.
  (3) The quality and experience of the personnel involved in compliance, such that they can understand and identify the transactions and activities that pose a potential risk;
 
This factor, coupled with factor 6 below stand as two critical requirements that elevate the stature and role of compliance professionals. The Justice Department’s expectation is clear – compliance professionals have to be competent, subject-matter experts, and given commensurate stature, pay and career development opportunities with other comparable executives. These requirements reflect the rise of the compliance profession as a separate, critical element of every corporate management structure.
 
  (4) The authority and independence of the compliance function and the availability of compliance expertise to the board;
 
The new FCPA Corporate Enforcement Policy modifies the original language in the FCPA Pilot Program. The original language states, “The independence of the compliance function.” The new FCPA Corporate Enforcement Policy added the term “authority” and mandated the “availability of compliance expertise to the board.”
 
I am not trying to make a mountain out of a molehill but the term “authority” reinforces the overall trend of maintaining an empowered CCO in corporate governance structures.  The term “authority” is meant to underscore the importance of a CCO having a defined role in senior management as a member of the C-Suite.  With that stature, the CCO can have line-of-sight across the organization and the important seat at the business table to coordinate and collaborate with business representatives in the corporate governance framework.  Additionally, the CCO’s access to the board and regular reporting to the board is emphasized with the new language, and reflects increasing concern over the importance of regular reporting by the CCO to the board.
 
  (5) The effectiveness of the company’s risk assessment and the manner in which the company’s compliance program has been tailored based on that risk assessment;
  (6) The compensation and promotion of the personnel involved in compliance, in view of their role, responsibilities, performance, and other appropriate factors;
  (7) The auditing of the compliance program to assure its effectiveness; and
  (8) The reporting structure of any compliance personnel employed or contracted by the company.
 
Third, the company has to demonstrate that it meted out appropriate discipline of employees, including those identified by the company as responsible for the misconduct, either through direct participation or failure in oversight, as well as those with supervisory authority over the area in which the criminal conduct occurred;
 
Fourth, The FCPA Corporate Enforcement Policy adds a new factor relating to document preservation requiring companies to maintain appropriate retention of business records and prohibiting the destruction or deletion of business records, including software that generates communications but does not retain business records (e.g. SnapChat). The Justice Department’s concern about document retention reflects unfortunate experiences when companies fail to retain documents or use technologies that do not retain the record of the communications.
 
The Justice Department’s FCPA Corporate Enforcement Policy is yet another watershed moment for ethics and compliance programs.  I am not so naïve to think that every company will immediately embrace these principles and develop action plans to make sure they are implemented (although they should).  Companies are slow to move unless they are under immediate threats – government enforcement or business threats.  Nonetheless, the new policy is an affirmation of a long road for compliance professionals but it is an important reminder to many about the difficult work and challenges that lie ahead.

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COMM_a3
11. Gary Stanley’s ECR Tip of the Day

(Source: Defense and Export-Import Update, 9 Dec 2017. Available by subscription via 
gstanley@glstrade.com.
)
 
* Author: Gary Stanley, Esq., Global Legal Services, PC, +1 202-352-3059,
gstanley@glstrade.com
.

Under EAR § 770.2 of the EAR, Interpretation 7 provides guidance on arms, ammunition, and implements of war that have been reduced to scrap. If such commodities “have been rendered useless beyond the possibility of restoration to their original identity only by means of mangling, crushing, or cutting,” then such commodities are considered scrap. Generally, scrap would be designated EAR99, provided the resulting material is not enumerated or otherwise described in an Export Control Classification Number (ECCN) on the Commerce Control List (CCL). If an ECCN includes a note or other guidance in regards to the classification of scrap commodities under that specific ECCN, then that note or guidance would take precedent over Interpretation 7.

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MSEX/IM MOVERS & SHAKERS

MS_a212. Monday List of Ex/Im Job Openings; 130 Jobs Posted This Week, Including 11 New Jobs

(Source: Editor)  
 
Published every Monday or first business day of the week. Please, send job openings in the following format to jobs@fullcirclecompliance.eu.
 
* COMPANY; LOCATION; POSITION TITLE (WEBLINK); CONTACT INFORMATION; REQUISITION ID
 

#
” New or amended listing this week (
11 New Jobs)

* Aerojet Rocketdyne; Huntsville, AL, or Camden, AR; 
Senior International Trade and Compliance Analyst
; Requisition ID: 12620

* Alcon Laboratories, Inc.; Fort Worth, TX;
Manager, Customs Compliance; Requisition ID: 227402BR

*
Arconic; Torrance, CA; Global Trade Compliance Manager – Import
*
ASM; Phoenix, AZ; Senior Manager Global Trade Compliance; Requisition ID: 7421

* Avaya; Washington, D.C.;
Senior Trade Compliance Manager II;

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

* BAE Systems; Nashua, NH;
Director of International Trade Compliance; Requisition ID: 31739BR
* BAE Systems; Manassas, VA;
Director of International Trade Compliance; Requisition ID: 31789BR
* BAE Systems; Radford, VA;
DoD Subcontracts Manager; Requisition ID: 33463BR
* BAE Systems; Nashua, NH;
Import Export Analyst II; Requisition ID: 26285BR
* BAE Systems; Washington, D.C.;
Mid-Level Compliance Support; Requisition ID: 25634BR

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

* Boecore; Colorado Springs; 
Export Compliance/Contracts Support
; Julie Perkins, 719-465-5341; Requisition ID: 8289



Boeing; Multiple Locations;
Trade Control Specialist
; Requisition ID: 
1700011280

* Compass Forwarding Co., Inc.; New York, NY;
Assistant Import Manager

* DroneShield; Warrenton, VA;
Export Compliance Manager
(through CyberCoders staffing agency)

* DynCorp International; San Juan, Puerto Rico

Contracts Manager Senior
;
 Requisition ID:
 
1704462

*
 DynCorp International; Tampa, FL; Foreign Disclosure Officer; Requisition ID: PR1701977

*
 DynCorp International; Fort Worth, TX; Contracts Manager Senior; Requisition ID: 1704797

* EoTech Technologies; Ann Arbor, MI;
Trade Compliance Manager; Requisition ID: 092335

* Expeditors; Sunnyvale, CA;
Customs Compliance Supervisor;

* Expeditors; Atlanta, GA; 
Customs Brokerage Agent

* 
Expeditors; Minneapolis, MN; 
Global Logistics-Customs Brokerage Specialist
;


* Expeditors; Aalsmeerderbrug
, NH – Netherlands; 
Import en Export Control Medewerker

* Expeditors; Krefeld, Germany; 
Sachbearbeiter Import/ Export;
* Expeditors; Bedfont, United Kingdom;
Customs Brokerage Clerk;
* Expeditors; Birmingham, UK;
Customs Brokerage Agent;

* Expeditors; Düsseldorf, Germany;
Sachbearbeiter Luftfracht Import;
* Expeditors; Samutprakarn, Thailand; 
Customs Brokerage Agent;


* Export Solutions Inc.; Melbourne FL; 
Trade Compliance Specialist;
info@exportsolutionsinc.com

* EY; Belgium; 
Senior Consultant, Global Trade; Requisition ID: BEL000PT

* FD Associates; Tysons Corner, VA; 
Senior Export Compliance Associate;
 Send 
resume to and salary requirements to 
jobs@fdassociates.net 

* FLIR; Billerica, MA;
International Export/Import Analyst;
# FLIR; Goleta, CA;
Senior Analyst, Licensing;
# FLIR; Meer, Belgium;
Global Trade Compliance Administrator;
# FLIR; Arlington, VA;
Senior Analyst, Licensing
# FLIR; Billerica, MA;
Senior Analyst, Licensing
;

*
 
General Atomics; San Diego, CA; Sr. Director of Import/Export Compliance; Job ID: 13892BR

* General Atomics; Huntsville, AL;
Experienced Contracts Manager / Huntsville; Requisition ID: 
13018BR

* General Atomics; San Diego, CA;
Contract Administrator / International;
Requisition ID: 13449BR
* General Atomics; San Diego, CA;
Experienced FMS International Contracts Administrator; Requisition ID: 14721BR



General Dynamics Land Systems; Sterling Heights, MI; Licensing Officer
; Requisition IDSHC-LC-17-20056

* Geokinetics; Houston, TX;
Global Trade Compliance & Logistics Manager;

* Georgia Institute of Technology; Atlanta, GA; Research Associate I; Requisition ID: PVA37002

* Georgia Institute of Technology; Atlanta, GA; Research Associate II; Requisition ID: PVA37001 

* Henderson Group Unlimited; Inc; Washington, DC; 
Process Improvement Mgr
* Henderson Group Unlimited; Inc; Washington, DC; 
Defense Control Analyst

* Henderson Group Unlimited, Inc; Washington, DC; 
Compliance Analyst;

* Honeywell; Bucharest, Hungary; 
Import and Export Compliance Manager; HRD12868
* JCB North America; Pooler, GA;
Compliance Manager;
* JCB North America; Pooler, GA;
Government and Defense Product Manager;
* Johnson and Johnson; Skillman, NJ;
Export Trade Compliance Lead;

* Livingston International; El Segundo, CA;
Research Consultant – ECCN Classification;
* Livingston International; El Segundo, CA;
ECCN Classification;
* Livingston International; El Segundo, CA;
HTS Classification;

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

* Lockheed Martin; Fort Worth, TX;
Aeronautics International Trade Compliance Senior Manager; Requisition ID: 407329BR
* Lockheed Martin; Manassas, VA;
International Licensing Analyst; Requisition ID: 399617BR
* Lockheed Martin; Shelton, CT;
International Trade Compliance Manager; Requisition ID: 403295BR

* Lockheed Martin; Ft Worth, TX; 
Senior Regulatory Compliance Analyst; Requisition ID: 
406664BR

* Lockheed Martin; Ft Worth, Texas;
International Trade Compliance Engineer; Requisition ID: 
411049BR_1

* Lockheed Martin; Orlando, FL;
International Trade Compliance Engineer; Requisition ID: 
411049BR_2

*
LORD Corporation; Cary, NC; Global Trade Compliance Specialist; Requisition ID: REQ-17-528

* Lutron; Coopersburg, PA;
Trade Manager-Export; Requisition ID: 2926
* L-3 LINK Division; Tulsa, OK; 
Contracts Administrator 1; Requisition ID: 091686
* L-3 LINK Division; Arlington, TX;
Trade Compliance Practitioner / Empowered Official; Requisition ID: 089915
* L-3 ALST; Orlando, FL;
Contracts Manager / Empowered Official; Requisition ID: 093069
* L-3 Warrior Sensor Systems; Middle East;
International Business Development Manager – Middle East Region; Requisition ID: 093343
* L-3 Technologies; Cincinnati, OH;
Trade Compliance Operations Associate and Contracts Administrator; Requisition ID: 092129
* Medtronic; Heerlen, The Netherlands;
Trade Compliance Analyst; Requisition ID: 16000DYY
* Medtronic; Minneapolis, MN; 
Global Trade Supply Chain Director; Requisition ID: 17000FU4

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

* Meggitt PLC; Simi Valley, CA;
Trade Compliance Officer;

* Meggit PLC; San Diego, CA; 
Trade Compliance Officer; Requisition ID: 28255

* Nortek Security & Control; Carlsbad, CA;
Global Logistics & Trade Compliance Analyst; Requisition ID: GLOBA01150

* Northrop Grumman; Herndon, VA;
Manager, International Trade Compliance 2; Requisition ID: 17014690
# Northrop Grumman; Herndon, VA;
Manager, International Trade Compliance 2; Requisition ID: 17022805
* Northrop Grumman; Herndon, VA;
Manager, International Trade Compliance 3; Requisition ID: 17020346
# Northrop Grumman; Huntsville, AL;
International Trade Compliance 3; Requisition ID: 17026172
# Northrop Grumman; Rolling Meadows, IL; 
International Trade Compliance Analyst 3; Requisition ID: 
17015695
# Northrop Grumman; San Diego, CA;
Import Export Administrator 3; Requisition ID: 17026003

* Northrop Grumman; San Diego, CA; 
Reg Compliance Analyst 3/4; Requisition ID: 17016952
* Oracle; Portland, OR; 
Senior Customs Compliance Specialist;

* Orbital ATK; Mesa, AZ; 
International Trade Compliance Sr. Analyst
; Jonathan Yeomans; Requisition ID: 41622

* Orbital ATK; Mesa, AZ; 
International Trade Compliance Analyst;
Jonathan Yeomans; Requisition ID 42250

* OSI Optoelectronics; Hawthorne, CA;
Manager, Global Trade Compliance; Requisition ID: 12235; or contact 
Kim Butcher, Senior Talent Acquisition Partner;
* Planet Pharma; Thousand Oaks, CA;
Senior Import/Export Associate

* Raytheon; Andover, MA; 
Global Trade Principal Advisor/Manager; Requisition ID: 103111BR

* Raytheon; El Segundo, CA;
Global Trade Manager; Requisition ID: 
97898BR
* Raytheon; El Segundo, CA;
Global Trade Authorization Owner; Requisition ID: 100859BR
* Raytheon; El Segundo, CA;
Principal Global Trade Licensing; Requisition ID: 102832BR

Raytheon; El Segundo, CA; 
Sr. Regulatory Compliance Analyst; Requisition ID: 101593BR

* Raytheon; Tucson, AZ;
Export Compliance – Agreements Authorization Owner; Requisition ID: 99909BR

* SABIC; Houston TX; 
Senior Analyst, Trade Compliance
;  
Danielle.Cannata@sabic.com
; Requisition ID: 8411BR

* Science and Engineering Services, LLC (SES); Huntsville, AL; 
Trade Compliance Administrator; OR: Contact 
julia.lang@ses-i.com
* Science and Engineering Services, LLC (SES); Huntsville, AL; 
Technical Writer II/ Trade Compliance
OR: Contact  
julia.lang@ses-i.com

* Teledyne Relays, Inc.; Hawthorne, CA; 
Trade Compliance Specialist
; Req. ID 2017-5259
 

* Thermo Fisher Scientific; Minneapolis, MN; 
Global Trade Compliance Manager;
* Thermo Fisher Scientific; Waltham, MA;
Director, Global Trade Compliance;
* Thermo Fisher Scientific; Oakwood, OH;
Import/Export Coordinator;

* Thermo Fisher Scientific; Tokyo, Japan;
Import/Export Manager;

* Thermo Fisher Scientific; Shanghai, China; 
Compliance Director — China/APAC;


T
hermo Fisher Scientific; Yokohama, Japan; Compliance Specialist;

* Thermo Fisher Scientific; Waltham, MA; 
Government Contracts Specialist;
* Thermo Fisher Scientific; West Pam Beach, FL;
Government Contracts Specialist;
* Thermo Fisher Scientific; Bannockburn, IL;
Government Contracts Specialist;


Thermo Fisher Scientific; Sunnyvale, CA;
Government Contracts Specialist
;

*
 T
hermo Fisher Scientific; Madison, WI;
Government Contracts Specialist
;

* Tradewin; Portland, OR;
U.S. Export Compliance Consultant

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

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

*
United Technologies Corporation, UTC Aerospace Systems; Cheshire, CT; Senior Analyst, International Trade Compliance;
Requisition ID: 54662BR


*
United Technologies Corporation, UTC Aerospace Systems; Westford, MA;
International Trade Compliance Specialist
; Requisition ID: 54366BR


* United Technologies Corporation, UTC Aerospace Systems; Pheonix, AZ;


Senior Manager, International Trade Compliance;
Requisition ID: 54860BR

* United Technologies Corporation, UTC Aerospace Systems; Chula Vista, CA;
International Trade Compliance Specialist
; Requisition ID: 54684BR
* United Technologies Corporation, UTC Aerospace Systems; Foley, AL; 
ITC Site Lead
; Requisition ID: 54820BR

* Vigilant; Remote Opportunity; 
Classification Specialist

* Vigilant; Bhudapest, Hungary;
Jr. Compliance Specialist;

* Vigilant; Negotiable Location, USA;
Global Trade Compliance Analyst;

* Varian Medical Systems; Palo Alto, CA, Washington, D.C., or Atlanta, GA; 
Export/Sanctions Compliance Analyst; Req ID 12270BR

* Varian Medical Systems; Palo Alto, CA, Washington, D.C., or Atlanta, GA;  
Export/Sanctions Counsel; eq ID 12271BR

* Vista Outdoor; Overland Park, KS;
Import Specialist; Requisition ID: R0002750 or contact
holly.greenwood@vistaoutdoor.com
* Vista Outdoor; Olathe, KS;
Global Logistics Manager

* Wurth Industry of North America; Sanford, FL; 
International Trade Compliance Specialist
; Requisition ID: 473-720

*
Xilinx, Inc.; San Jose, CA; 
Global Trade Compliance Manager; Requisition ID: 154441
*
Xilinx, Inc.; San Jose, CA; 
Global Trade Compliance Program Manager; Requisition ID: 154442


* Xylem, Inc.; Any Location, United States;
Manager, Global Ethics & Compliance

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

ENEDITOR’S NOTES


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

EN_a314
. 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: 8 Dec 2017: 82 FR 57821-57825: Civil Monetary Penalty Adjustments for Inflation
 
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: 9 Nov 2017: 82 FR 51983-51986: Amendments to Implement United States Policy Toward Cuba

  
*
FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR)
: 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

 
*
FOREIGN TRADE REGULATIONS (FTR)
: 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
here.
  – 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.
 
*
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: 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.

 
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: 19 Nov 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_a0315
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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