19-0604 Tuesday “Daily Bugle'”

19-0604 Tuesday “Daily Bugle”

Tuesday, 4 June 2019

The Daily Bugle is a free daily newsletter from Full Circle Compliance, containing changes to export/import regulations (ATF, DOE/NRC, Customs, NISPOM, EAR, FACR/OFAC, FAR/DFARS, FTR/AES, HTSUS, and ITAR), plus news and events. Subscribe here. Contact us for advertising 

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  1. USTR Modifies Section 301, Grants Additional Exclusion Requests 
  1. Items Scheduled for Publication in Future Federal Register Editions 
  2. Commerce/BIS: (No new postings.)
  3. DHS/CBP Releases Harmonized System Update (HSU) 1910
  4. DHS/CBP Removes India From GSP and Adds India to Sec 201
  5. State/DDTC: (No new postings.)
  6. UK ECJU Updates Three Open General Licenses
  1. American Shipper: “Final Rule to Further Restrict Air and Vessel Travel to Cuba”
  2. Bloomberg: “China Stokes Rare Earths Concerns with Possible Export Controls”
  3. The Economic Times: “Infosys Reviews Exposure to Sanctions-Hit Huawei, Other IT Majors to Follow Suit”
  4. ST&R Trade Report: “More China List 1 Goods Excluded from Section 301 Tariffs; Retroactive Refunds Available”
  1. M. Baki Fadlallah, T. Denour, & N. Ifudu Nweke: “Trump Administration Expands Sanctions Targeting Iran’s Industrial Metals Sector”
  2. E. Dall & T. Keatinge: “Securing the Supply Chain: Implementing North Korea Sanctions Beyond Banking (Part II of II)””
  3. B. Gevers & M. Van den Bossche: “Belgium (Finally) Implements Sanctions for Violation of the EU Blocking Regulation”
  4. M. Kieffer: “The Impact of the New Trade Secrets Act on the Use of IoT Products”
  5. M. Miller, B. Murphy, & S. Murray: “Trump Administration Trade Updates”
  1. Louis Rothberg Moves to Lowenstein Sandler 
  1. FCC Presents “Designing an ICP for Export Controls & Sanctions”, 1 Oct in Bruchem, the Netherlands
  1. Bartlett’s Unfamiliar Quotations 
  2. Are Your Copies of Regulations Up to Date? Latest Amendments: DHS/Customs (5 Apr 2019), DOC/EAR (24 May 2019), DOC/FTR (24 Apr 2018), DOD/NISPOM (18 May 2016), DOE/AFAEC (23 Feb 2015), DOE/EINEM (20 Nov 2018), DOJ/ATF (14 Mar 2018), DOS/ITAR (19 Apr 2018), DOT/FACR/OFAC (29 Apr 2018), HTSUS (4 Jun 2019) 
  3. Weekly Highlights of the Daily Bugle Top Stories 


USTR Modifies Section 301, Grants Additional Exclusion Requests

(Source: Federal Register, 4 June 2019.) [Excerpts.]
84 FR 25895-25898: Notice of Product Exclusions: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation
* AGENCY: Office of the United States Trade Representative.
* ACTION: Notice of product exclusions.
* SUMMARY: Effective July 6, 2018, the U.S. Trade Representative (Trade Representative) imposed additional duties on goods of China with an annual trade value of approximately $34 billion (the $34 billion action) as part of the action in the Section 301 investigation of China’s acts, policies, and practices related to technology transfer, intellectual property, and innovation. The Trade Representative’s determination included a decision to establish a product exclusion process. The Trade Representative initiated the exclusion process in July 2018, and stakeholders have submitted requests for the exclusion of specific products. In December 2018, March 2019, April 2019, and May 2019, the Trade Representative granted exclusion requests. This notice announces the Trade Representative’s determination to grant additional exclusion requests, as specified in the Annex to this notice. The Trade Representative will continue to issue decisions on pending requests on a periodic basis.
* DATES: The product exclusions announced in this notice will apply as of the July 6, 2018 effective date of the $34 billion action, and will extend for one year after the publication of this notice. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
* FOR FURTHER INFORMATION CONTACT: For general questions about this notice, contact Assistant General Counsels Philip Butler or Megan Grimball, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For specific questions on customs classification or implementation of the product exclusions identified in the Annex to this notice, contact traderemedy@cbp.dhs.gov.
Joseph Barloon, General Counsel, Office of the U.S. Trade Representative.

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OGS_a12. Items Scheduled for Publication in Future Federal Register Editions
(Source: Federal Register)


* Treasury/OFAC; FINAL RULE; Cuban Assets Control Regulations 
[Pub. Date: 6 June 2019.]
* Commerce/BIS; FINAL RULE;
Restricting the Temporary Sojourn of Aircraft and Vessels to Cuba
[Pub. Date: 6 June 2019.]
* U.S.-China Economic and Security Review Commission; NOTICE;
Public Hearings
[Pub. Date: 6 June 2019.]

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Commerce/BIS (No new postings.)

(Source: Commerce/BIS)

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OGS_a34. DHS/CBP Releases Harmonized System Update (HSU) 1910

CSMS# 19-000276, 6 June 2019.)


Harmonized System Update (HSU) 1910 was created on June 3, 2019 and contains 1379 ABI records
and 283 harmonized tariff records. 
System modifications were made to support the Office of the United States Trade Representative’s (USTR)

Notice Regarding Application of Section 301, issued May 31, 2019.

Changes also include those made as a result of recent Presidential Proclamation, To Modify the List ofBeneficiary Developing Countries Under the Trade Act of 1974. This proclamation can be found using the link below… 


Modifications were made to support the PGA Message Set functionality as well.Adjustments required by the verification of the 2019 Harmonized Tariff Schedule (HTS) are also included.
The modified records are currently available to all ABI participants and can be retrieved electronically via the procedures indicated in the CATAIR. For further information about the retrieval process, please contact your client representative.

All other questions regarding this message, please contact Jennifer Keeling

via email at Jennifer.L.Keeling@cbp.dhs.gov. 

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OGS_a45. DHS/CBP Removes India From GSP and Adds India to Sec 201 

CSMS# 19-000275, 3 June 2019.)
On May 31, 2019, President Trump signed a Presidential Proclamation to Modify the List of Beneficiary Developing Countries Under the Trade Act of 1974, effective June 5, 2019.
Pursuant to this Presidential Proclamation:
(1) India’s designation as a beneficiary developing country is terminated, effective June 5, 2019;
(2) General notes 4(a) and 4(d) of the Harmonized Tariff Schedule of the United States (HTSUS) and pertinent subheadings of the HTSUS are modified, as set forth in Annex A to the proclamation;
(3) Any provisions of previous Presidential Proclamations and Executive Orders that are inconsistent with the actions taken in this Proclamation are superseded to the extent of such inconsistency;
(4) India is no longer exempted from application of the Section 201 safeguard measures on certain Crystalline Silicon Photovoltaic (CSPV) cells (CSPV products) and large residential washers and parts, effective June 5, 2019.   Imports of CSPV products, and washers and parts, from India are now subject to the duties and tariff rate quotas on these products. See
https://www.cbp.gov/trade/remedies/201-solar-cells-panels-washing-machines and https://www.cbp.gov/trade/quota/bulletins for more information;
(5) Subdivision (b)(2) of U.S. note 17 and subdivision (b) of U.S. note 18 to subchapter III of chapter 99 of the HTSUS are modified, as set forth in Annex B to the proclamation; and
(6) Any merchandise from India or Turkey subject to the safeguard measures implemented by Proclamation 9693 and Proclamation 9694 that is admitted into a United States foreign trade zone on or after 12:01 a.m. eastern standard time on June 5, 2019, must be admitted as “privileged foreign status,” as defined in 19 CFR 146.41, and will be subject upon entry for consumption to the safeguard measures implemented by Proclamation 9693 and Proclamation 9694.
Please, see Annex A and B for detailed HTSUS information.
ACE programming will be completed by June 5, 2019.
Questions should be addressed to the Trade Agreements Branch at

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OGS_a67UK ECJU Updates Three Open General Licenses

The UK Export Control Joint Unit (ECJU) within the Department of International Trade (DIT) has published the following update on its website:

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NWS_a18. American Shipper: “Final Rule to Further Restrict Air and Vessel Travel to Cuba”

American Shipper, 4 June 2019.)
The Bureau of Industry and Security (BIS) is issuing a final rule further limiting the types of aircraft authorized to fly to Cuba and vessels that can sail to Cuba on temporary sojourn.

The rule will amend the Export Administration Regulations’ (EAR) license exception for aircraft, vessels and spacecraft (AVS) to remove the authorization for the export or re-export to Cuba of most noncommercial aircraft and passenger and recreational vessels on temporary sojourn
The rule also will amend the licensing policy for exports and re-exports to Cuba of aircraft and vessels on temporary sojourn to establish a general policy of denial absent a foreign policy or national security interest as determined by the U.S. government, such as temporary sojourn of vessels for use in oil spill response, the final rule states.

“Given the administration’s stated objectives of holding the Cuban regime accountable for its repression of the Cuban people, including by restricting non-family travel to Cuba, such licenses will be issued only in extraordinary circumstances,” BIS said.
The only civil aircraft of U.S. registry that will remain eligible for AVS license exception when destined for Cuba are commercial aircraft operating under air carrier operating certificates or certain other Federal Aviation Administration certificates or specifications identified in the license exception.

Further, only cargo vessels for hire for use in the transportation of separately authorized items will be eligible for export or re-export to Cuba on temporary sojourn, provided all other terms and conditions of the AVS license exception are met, the final rule says.
Applications for temporary sojourn of aircraft operated by certified air carriers or cargo vessels for hire that aren’t eligible for AVS license exception will be reviewed case by case, including cargo vessels that may need to remain in Cuba beyond the 14-day limit outlined in the license exception due to port congestion, BIS said.
The final rule will become effective Wednesday (5 June 2019).

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Bloomberg: “China Stokes Rare Earths Concerns with Possible Export Controls”

Bloomberg, 4 June 2019.) [Excerpts.]
China’s state planner is closely studying proposals to establish rare-earth export controls, adding to concerns that the mineral critical in production of military equipment and tech devices will be used as a weapon in Beijing’s trade war with Washington.
The National Development and Reform Commission met with experts focused on promoting the development of the industry who suggested that the government set up a mechanism for tracking and approving exports of rare earths.
Departments of the NDRC have indicated they will fully take on the experts’ advice, and put measures in place as soon as possible, the state planner said in a statement Tuesday. The experts also asked that authorities crack down on illegal mining, production and smuggling of rare earths, according to the statement.

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NWS_a310. The Economic Times: “Infosys Reviews Exposure to Sanctions-Hit Huawei, Other IT Majors to Follow Suit”

The Economic Times, 4 June 2019.) [Excerpts.]
Infosys has begun to review its contracts with Huawei to ensure it is not caught short by the US government clamping down on the technology Chinese giant, a move that experts say will likely be replicated by other Indian IT companies.
Last month, the US government-imposed sanctions on Huawei placing it on its ‘Entity List’ which restricts the Chinese company’s ability to buy and sell hardware, software and services to and from American hi-tech suppliers. The company was grant a three month reprieve to continue purchasing US equipment until mid-August. 
Infosys does a large chunk of work with Huawei and export controls apply to all individuals and companies that deal with US-origin technology, irrespective of their citizenship, experts said. …

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NWS_a411. ST&R Trade Report: “More China List 1 Goods Excluded from Section 301 Tariffs; Retroactive Refunds Available”

Sandler, Travis & Rosenberg Trade Report, 4 June 2019.) [Excerpts.]
Dozens more goods have been excluded from the additional 25 percent duty imposed on some $34 billion worth of imports from China (List 1 goods). These exclusions cover one HTSUS subheading and 88 specially prepared product descriptions and reflect about 464 separate exclusion requests.
The exclusions will be retroactive to July 6, 2018, and remain in place until June 4, 2020. They must be claimed using new HTSUS subheading 9903.88.10.
Importers should review the list of affected goods (see below for general overview and attached notice for full details) and apply for refunds of any tariffs paid on such goods since July 6, 2018. The exclusions are available for any product that meets the specified product description, regardless of whether the importer filed an exclusion request. The scope of each exclusion is governed by the scope of the product descriptions set forth in the attached notice and not by the product descriptions in any particular request for exclusion. …

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COM_a112M. Baki Fadlallah, T. Denour & N. Ifudu Nweke: “Trump Administration Expands Sanctions Targeting Iran’s Industrial Metals Sector”

Akin Gump, June 3 2019.) [Excerpts.]
* Authors: Mahmoud Baki Fadlallah, Esq.,
mfadlallah@akingump.com, +971 4 317 3030; Tristan Denour,
tdenour@akingump.com, +971 4 317 3025; and Nnedinma C. Ifudu Nweke, Esq.,
nifudu@akingump.com, +1 202 887 4013. All of Akin Gump.
Key Points
– President Trump issued a new Executive Order (EO) on May 8, 2019-exactly one year after the Trump administration withdrew from the Iran nuclear deal-that widened the scope of existing sanctions targeting the Iranian industrial metals sector. The executive order imposes secondary sanctions relating to the Iranian iron, steel, aluminum and copper sectors, and authorizes restrictions on correspondent banking and payable-through accounts on non-U.S. financial institutions involved in certain transactions involving these metals.
– Preexisting sanctions regarding Iranian metals were more limited in scope, and were restricted to limited sectors; for example, some sanctions were only applicable when metals were used in connection with the Iran’s development of nuclear weapons or ballistic missiles. The new sanctions do not have similar limitations, and expand the bases for secondary sanctions applicable to non-U.S. persons.
– Companies and individuals have until August 6, 2019, to wind-down preexisting contracts involving Iranian iron, steel, aluminum and copper. New transactions are sanctionable as of May 8, 2019.


On May 8, 2019, the one-year anniversary of the United States’ withdrawal from the Joint Comprehensive Plan of Action (JCPOA), also known as the Iran nuclear deal, President Donald Trump issued Executive Order 13871 (EO 13871), authorizing sanctions on Iran’s iron, steel, aluminum and copper sectors.
[FN/1] The EO states that its aim is to deny the Iranian government revenue from metals, and to counter nuclear development. According to the White House and the State Department, Iran’s industrial metals sector is its second largest industry sector after petroleum, signaling the United States’ intent to target a key economic driver.
U.S. sanctions targeting Iran’s metal sector have been in place since January 2013, under sections 1245-1246 of the Iran Freedom and Counter-Proliferation Act (IFCA). The IFCA imposes sanctions on persons who 
knowingly engage in the sale, supply or transfer, directly or indirectly, to or from Iran of certain materials, including precious metals (
e.g., silver and gold),
[FN/3] as well as graphite, raw and semi-finished metals such as aluminum and steel, copper infiltrated tungsten metal and copper-beryllium metal.
The sanctions under the IFCA on engaging in dealings to or from Iran concerning graphite, raw and semi-finished metals apply only if the metals are (i) used in connection with the energy, shipping or shipbuilding sectors of Iran; (ii) used in a sector deemed by the President to be controlled by Iran’s Revolutionary Guard Corps (IRGC); (iii) sold to Specially Designated Nationals or Blocked Persons (SDNs); (iv) used in connection with Iran’s nuclear, military or ballistic missiles;
[FN/5] (v) used by Iran as a medium for barter, swap or any other exchange or transaction; or (vi) listed by Iran as assets of the Government of Iran for purposes of the national balance sheet of Iran.
The IFCA also contains an exception for persons exercising due diligence. The President is not permitted to impose the sanctions described in the IFCA if “the President determines that the person has exercised due diligence in establishing and enforcing official policies, procedures, and controls” to ensure they do not sell or transfer metals to restricted persons or sectors (
i.e., the energy, shipping or shipbuilding sectors, IRGC-controlled sectors, SDNs or persons using them in connection with Iran’s military sector). The President can waive this exception, but must renew the waiver every 180 days.
Effects of the Executive Order
Under the new EO 13871 sanctions, the Secretary of the Treasury, in consultation with the Secretary of State, has authority to designate the following persons on the U.S. Department of the Treasury, Office of Foreign Assets Control’s (OFAC) SDN List:
– Persons determined to be operating in the iron, steel, aluminum or copper sector of Iran, or a person that owns or controls an entity in the iron, steel, aluminum or copper sectors of Iran.
– Persons who knowingly engaged in a significant transaction for the sale, supply or transfer to Iran of significant goods used in connection with the iron, steel, aluminum or copper sectors of Iran.
– Persons who knowingly engaged in a significant transaction for the purchase, acquisition, sale, transport or marketing of iron, iron products, aluminum, aluminum products, steel, steel products, copper or copper products from Iran.
– Persons who materially assisted, sponsored or provided support for, or goods or services in support of, persons blocked under these sanctions.
– Entities owned or controlled by, or acting for, persons blocked under these sanctions.
Non-U.S. financial institutions are also targeted by the EO, and these institutions may lose correspondent banking or payable-through account rights in the United States for knowingly conducting or facilitating any significant financial transaction:

– For the sale, supply or transfer to Iran of significant goods or services used in connection with the iron, steel, aluminum or copper sector of Iran.

– For the purchase, acquisition, sale, transport or marketing of iron, iron products, aluminum, aluminum products, steel, steel products, copper or copper products from Iran.
– For or on behalf of any person blocked due to involvement in Iran’s iron, steel, aluminum or copper sector.
OFAC anticipates adopting the interpretation of “significant” set out the Iranian Financial Sanctions Regulations, 31 CFR Part 561.
[FN/6] This generally consists of a multifactor, non-exhaustive, totality of the circumstances assessment, including the size, number and frequency of the transaction at issue, the nature of the transaction, the impact of the transaction on the objectives of various Iran sanctions laws, whether the transaction involves deceptive practices and other relevant factors determined by the Secretary of the Treasury.
[FN/7] A 90-day wind-down period applies to existing business in this sector, meaning that companies with existing contracts involving these metals have until August 6, 2019, to conclude their transactions, but new business is subject to sanctions.
Difference from Existing Sanctions on Iranian Metals
EO 13871 expands existing sanctions on Iranian metals beyond those imposed through the IFCA.
9 EO 13871 explicitly adds Iran’s copper and iron sectors as potential sanctions targets, which were not previously included in the metals targeted. The new EO is also not restricted to particular circumstances as the sanctions under the IFCA were (
i.e., sales to the IRGC, or in connection with Iran’s nuclear or military capabilities), and it applies broadly to any person operating in the iron, steel, aluminum and copper sectors. Additionally, the new EO does not contain the due diligence exception present in the IFCA restrictions. Unlike the IFCA, no credit is given for conducting diligence or imposing controls to avoid targeted trade involving relevant Iranian metals.
Practical Effects
This EO is the latest in a series of actions by the U.S. government in its 

“maximum economic pressure” campaign against Iran. Businesses currently operating in Iran’s iron, steel, aluminum and copper sectors have 90 days to wind down their activities without risk of secondary sanctions, and new business in this space can immediately be subject to blocking sanctions. Non-U.S. financial institutions in this space are subject to the same 90-day wind-down period. Companies that choose to continue to engage in the iron, steel, aluminum and copper sectors of Iran face risk of secondary sanctions and could face SDN listing.
In addition, the U.S. government is authorized to impose sanctions on non-U.S. persons who materially assist, sponsor or provide financial, material or technological support for, or goods or services in support of, blocked persons even if such material support is provided unknowingly. This is a departure from the sanctions provisions under the IFCA, and greatly widens the scope and risk of sanctions for non-U.S. persons doing business that intersects Iran’s metals sector.
[FN/5] 22 U.S.C. §8804.
[FN/7] 31 C.F.R. § 561.404.
[FN/9] 22 U.S.C. § 8804.

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E. Dall & T. Keatinge: “Securing the Supply Chain: Implementing North Korea Sanctions Beyond Banking (Part II of II)”

RUSI Newsbrief, 24 May, 2019.)
* Authors: Emil Dall, Esq.,
emild@rusi.org; and Tom Keatinge, Esq.,
tomk@rusi.org. Both of The Royal United Services Institute (RUSI).
Assessing the Status of the Global Response: Evolving, But Narrow in Scope
As the latest UN Panel report reveals, implementation of the UN’s North Korea sanctions regime remains fractured. Countries in Africa continue to undertake trade with and buy services from North Korea; North Korean diplomats and laborers continue to generate revenue for the regime; and supply chains continue to be vulnerable to abuse. But some positive initiatives have been developed or are under consideration to address certain hotspots of North Korean sanctions-evasion activity.
One such industry is the oil and refined petroleum products sector, a priority for the US government in particular. As part of the ongoing ‘maximum pressure’ sanctions campaign against North Korea, the US believes that restricting North Korea’s oil supplies will particularly damage the regime. The US government has issued advisories to private sector actors detailing North Korean illicit shipping practices, 
most recently updated in March. Despite their relevance to many of the commodities North Korea may transport, the note particularly highlights the risk of ‘illicit ship-to-ship transfers of refined petroleum and coal’ and provides annexes with lists of vessels suspected of having engaged in petroleum and coal transfers.
Recognizing the importance of imported energy to the North Korean regime, considerable focus has been applied by the UN investigators to prevent illicit ship-to-ship transfers of oil and refined petroleum products to North Korea. All ships above a certain size are required to use an Automatic Identification System (AIS) transponder, a useful means by which their movements can be tracked. In its latest report, the UN Panel encourages member states to require their petroleum industries ‘to include end-use delivery verification measures and AIS screening as well as an “AIS switch-off” clause’ in all contracts, to deter (and be aware of suspected) ship-to-ship transfers. One major global commodity broker 
is already taking this step.
The strategy thus far seems to focus efforts mostly on the larger, global commodity broker and oil-producers, with the expectation that policies adopted by those at the top of the supply chain will filter down to smaller companies in local markets and create a ripple effect of heightened awareness and monitoring. Similar efforts to push-down compliance best practice had positive effects in the banking industry.
Another area of heightened focus is coal. News stories have highlighted how North Korea continues to export its coal products, despite restrictions. In May 2019, the US government 
announced it was taking control of a vessel which in April 2018 had been seized by Indonesian authorities for shipping North Korean coal.
While this focus is justified – after all North Korea’s coal exports used to earn the regime upwards of 
$1 billion a year in income before 2016 – other high-income sectors have not received the same focus. For example, prior to sanctions measures restricting these exports, North Korea was estimated to earn an average of 
$760 million each year from textile exports, 
$300 million from the export of seafood, and $360 million from the export of iron, iron ore, lead and lead ore. Before the end of 2019, countries will need to expel the nearly 100,000 North Korean laborers working abroad, an activity which generates 
$500 million annually for the North Korean regime. North Korean workers are placed in a range of sectors including the construction and service industry, thus further expanding the range of private sector stakeholders who must become aware of North Korea sanctions for the first time.
The focus on oil and petroleum products and coal means some larger industry stakeholders directly involved in these supply chains, as well as the insurers and banks who work with them, have invested in staff and technology to monitor and detect North Korean ship-to-ship transfers, educating themselves about the risks and developing higher due diligence standards. However, this does not mean that these efforts have been successful in stopping North Korean sanctions evasion in those sectors.
The US has 
estimated that in 2018 alone North Korea successfully imported ‘seven and a half times the allowable amount of refined petroleum’, and the UN Panel report highlighted that when it comes to coal exports North Korea has ‘switched most of its maritime-related coal trade to illegal ship-to-ship transfers’ making them ‘regularized and systemic in 2018’.
So, What’s to be Done?
The UN Panel of Experts continues to demonstrate that North Korea is able – with limited effort – to secure the funding, resources and commodities it needs to maintain its nuclear program. Nascent efforts by the insurance industry and stakeholders involved in the oil and coal supply chain are attempting to close these gaps by adapting their due diligence and risk awareness as relates to North Korea. These efforts should be welcomed.
However, the authors’ conversations with industry stakeholders and governments suggests that these efforts are far from universal, providing North Korea with plenty of space to continue hiding in plain sight.
In particular, current efforts are focused on key activities (ship-to-ship transfers of petroleum and coal) among global players in those industries. Thus, while guidance from the US government on illicit ship-to-ship transfers is useful, it must go further to inform and mobilize the full range of stakeholders who should be involved in implementing North Korea sanctions.
For example, the authors’ conversations with governments and private sectors around the world suggest that little, if any, attention has been paid to industries supporting the trade in luxury goods, seafood, food and agricultural products, textiles and fabrics, minerals, iron and steel – and even statues – all of which are prohibited trading activities with North Korea. Additionally, awareness of activity-based sanctions restrictions on joint ventures or dealing with North Korean designated entities and individuals, those controlled by them, acting on their behalf or for the benefit of them, are rarely considered beyond the banking sector. Even within the banking sector, the operationalization of some obligations is behind. For example, the obligations to restrict North Korea’s diplomatic bank accounts was passed by the UN in November 2016, but only in March 2019 did the Panel provide its recommendations for how countries should implement this obligation.
The action needed to combat the systemic problems outlined above are threefold. First, governments need to extend their outreach and guidance on North Korea sanctions implementation beyond banks, to include all supply-chain actors who may be exposed to North Korea sanctions risk. This also includes expanding awareness of North Korea sanctions implementation to local markets in regions such as Southeast Asia and Eastern and Southern Africa, where North Korean trade and financial networks are most active.
Second, those actors must in turn urgently consider how they might be exposed to North Korea’s illicit activities. For example, transport companies specializing in the movement of seafood and agricultural products need to consider exposure to North Korea and put in place due diligence measures to ensure that goods do not originate from North Korea. Others, like insurers, have a particular responsibility to prevent issuing insurance cover to vessels engaged in activities on behalf of North Korea.
Finally, it is important that this approach is joined up across the supply chain. If the international community truly wants to prevent petroleum products from reaching North Korea, it is not enough that only the world’s largest commodity broker is committed to preventing this from happening. Others involved in the supply chain – insurers, banks, vessel owners and managers, terminal operators and storage facilities – need to be linked up to and coordinated with this commitment as well, supported by guidance from governments.
Over the past four years, RUSI has studied the response of the international community (both governments and their private sectors) to expanding sanctions requirements against North Korea, a response that fails to match the increasing breadth and complexity of these new sanctions regimes. Selected initiatives, such as prioritization of the issue during the current one-year US Presidency of the FATF (until 30 June 2019) or the efforts by certain commodity brokers to restrict the opportunities for ship-to-ship transfers, are welcome. But the supply chain of goods and finance remains wide open to abuse by North Korea as global implementation has failed to match the ambition of policymakers and UN Security Council members. This needs to change as North Korea’s commitment to its nuclear ambition remains undiminished.

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. B. Gevers & M. Van den Bossche: “Belgium (Finally) Implements Sanctions for Violation of the EU Blocking Regulation”

World Trade Controls, 3 June 2019.)
* Authors: Bert Gevers, Esq.,
bert.gevers@loyensloeff.com, +32 2 743 43 43; and Maria-Clara Van den Bossche, Esq.,
maria-clara.van.den.bossche@loyensloeff.com, +32 2 773 23 63. Both of Loyens & Loeff.


Last week, the Belgian Act implementing the EU Blocking Regulation was published in the Belgian Official Gazette (see 
Why is it important?
On 8 May 2018, President Trump announced that the US would cease its participation in the JCPOA and would re-impose US secondary sanctions in relation to Iran in two phases: the first phase took effect on 7 August 2018; and the second phase took effect on 5 November 2018 which included secondary sanctions. In response, the EU has updated Council Regulation (EC) No. 2271/1996 (the ”
EU Blocking Regulation“), which is intended to ”
provide protection against and counteract the effects of the extra-territorial application of the laws specified in the Annex” (Article 1)[FN/1]. 
The EU Blocking Regulation foresees among other a (i) prohibition to comply and a (ii)  possibility to recover damages. 
Prohibition to comply 
Article 5, first paragraph, read in conjunction with Article 11 of the EU Blocking Regulation, provides that: 
“no legal person incorporated within the EU shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition (…) based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom”.
Recovery of damages 
Article 6, first paragraph, read in conjunction with Articles 1 and 11 of the EU Blocking Regulation, provides that: 
“any legal person incorporated in the EU, engaging in international trade and/or the movement of capital and related commercial activities between the EU and third countries, shall be entitled to recover any damages, including legal costs, caused to that person by the application of the laws specified in the Annex or by actions based thereon or resulting therefrom”. 
The Guidance note on the EU Blocking Regulation confirms that the scope of damages that can be claimed is thus very broad, in line with the protective aim of the Regulation.[FN/2]
Article 6, second paragraph, provides that the recovery may be obtained from the natural or legal person or any other entity causing the damage or from any person acting on its behalf or intermediary[FN/3]. 
Article 6, third paragraph states that damages can be recovered before the courts. 
The Guidance Note specifies that, the question which court will be competent will depend on the specifics of the case, the applicable rules on jurisdiction, the national civil procedure etc. As a general rule, the third paragraph of Article 6 refers to the rules enshrined in the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
Because it is a regulation and it does not provide anything to the contrary, the Blocking Regulation is directly applicable in all EU Member States. A recovery of damages claim can thus be filed before the Belgian courts on the basis of the EU Blocking Regulation. 
However, the Member States’ authorities are responsible for the implementation of the Blocking Statute, including for the adoption and implementation in their respective legal orders of penalties for possible breaches. Until recently Belgian legislation did not foresee any sanctions for violating the Blocking Regulation including its ‘
prohibition to comply with the sanctions mentioned in Annex 1″.  
On 21 May 2019, the Belgian Act implementing the EU Blocking Regulation was finally published.
Who are the competent authorities in Belgium?   
Pursuant to the Belgian Act implementing the EU Blocking Regulation, the Belgian 
Federal Public Service for Foreign Affairs now is the competent authority as referred to in 
Article 2(3) and 
Article 10 of the EU Blocking Regulation, i.e. the competent authority in view of Belgium’s obligation to inform the EU Commission of any information it receives from EU operators within the context of the reporting obligation and of any measures taken under the EU Blocking Regulation. 
Pursuant to the same Act, the Belgian 
Federal Public Services for Finance and
 for the Economy are now the competent authorities for supervising compliance with the obligations laid down in 
Article 2(1) and (2) and 
Article 5 of the EU Blocking Regulation, i.e. the competent authorities to monitor compliance in Belgium by EU operators with the reporting obligation and the prohibition to observe the specified sanctions. 
Administrative fines 
Importantly, if the competent authorities (the Federal Public Services for Finance and for the Economy) establish an infringement of the EU Blocking Regulation in Belgium, the relevant Minister (of Finance or Economy) may now impose administrative fines on 
“the infringer(s) and, where appropriate, one or more members of its executive board, of its executive committee, or if there is no executive board or committee, on the effective managers, responsible for the infringements”.
For legal entities, the administrative fine ranges from EUR 10,000 to 10% of the entity’s annual net turnover of the previous business year. For individuals, the fine ranges from EUR 250 to EUR 5,000,000. 
The actual amount of the fine is determined having regard to all relevant circumstances, and in particular: the seriousness and duration of the breach, the responsibility of the infringer, the infringer’s financial strength, the benefit or advantage obtained through the breach, the damages caused, any prior and the infringer’s willingness to cooperate with the authorities. 
Entry into force
The Act enters into force on 31 May 2019
[FN/3] More info on the exact meaning and responsibilities can be found in the Guidance Note on the EU Blocking Regulation issued by the European Commission clarifies that liability in damages not only arises for the responsible entity but also for its ‘representatives’.

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. M. Kieffer: “The Impact of the New Trade Secrets Act on the Use of IoT Products” 

Lexology, 2 June 2019.)
* Authors: Dr. Michael Kieffer,
M.Kieffer@taylorwessing.com, +49 89 21038 0. Of Taylor Wessing.
Airplanes and drones are well equipped with Internet of Things (IoT) sensors. Such digital and connected commodities provide operators with better products and added value. For example, the transmission of performance and maintenance data helps to improve the efficiency of aircraft plants. However, it must be taken into account that data is collected which allows detailed knowledge of the operator’s company and business operations. They provide an insight into the operational business and therefore affect its interest in protecting its trade secrets.
Under previous law, trade secrets used to be protected per se if the information was in any way related to the company and the company wanted to keep it secret. Since 26 April 2019, when the German Trade Secrets Act (GeschGehG) came into force (and in principle already since June 2018 with direct application of the Trade Secrecy Directive), this is no longer sufficient. Now a compliance system is required which also brings new challenges for the aviation industry.
In detail:
(I) The protection of business and company secrets under
previously applicable law
Until now, there was only a minimum level of protection for business and company secrets. The Act against Unfair Competition (UWG) protected companies against the betrayal of secrets by an employee, industrial espionage or the exploitation of secrets by unauthorized persons (§§ 17, 18 UWG). Information provided to third parties was only protected under certain circumstances. Furthermore, the German Criminal Code (§§ 202a ff. StGB) does not protect those who voluntarily publish information. The companies could only resort to contractual regulations.
(II) The GeschGehG
The GeschGehG implements the EU Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (Directive (EU) 2016/943), which sets a uniform standard for the protection of trade secrets in Europe. It now offers entrepreneurs significantly better protection and efficient means to enforce their rights.
However, GeschGehG does not only increase the protection of trade secrets, but at the same time significantly raises the threshold for the existence of a trade secret. According to § 2 No. 1 GeschGehG, “business secrets” are, in short, information that is:

  (1) secret,

  (2) of commercial value (because secret) and

  (3) subject to appropriate confidentiality measures.

This definition is considerably stricter than defined under the previous legal situation. Up to now, operating and business secrets were comprehensively understood as all information relating to a company that is not public and in which the company has a legitimate interest not to disclose it (BGH GRUR 2006, 1044 para. 19). Thus, an interest in secrecy, the existence of which has so far not been subject to particularly high requirements, was of decisive importance. It was sufficient that the intention was gathered from the nature of the secret fact.
Under the GeschGehG, however, this intention is no longer sufficient. “Appropriate secrecy measures” must be taken. It will take some time until the term “appropriate secrecy” is substantiated by case-law with concrete specifications. First indications of what needs to be done, however, already exist.
(III) What needs to be done?
From now on, companies must develop and implement an effective know-how protection concept. This includes in particular:
(1) Identification of information to be kept secret
As a first step, an evaluation should be carried out of the confidential information in stock. The information can or should already be classified according to the degree of secrecy and labelled accordingly. For particularly sensitive information, stricter protective measures may have to be taken and proven.
(2) Design of internal protective measures and their documentation
The government’s draft pointed out that both physical access restrictions and precautions as well as contractual security mechanisms for the protection of trade secrets should be considered:

– As such basic measures, physical, in particular technical, protective measures such as access and access restrictions or the prohibition of the use of private storage media as well as the encryption of documents are obvious.

– In addition to these physical measures, corporate employees must create a comprehensive awareness of the fact that business secrets exist and also develop a feeling for cases in which such a secret is to be classified as such, e.g. through suitable training measures and clear guidelines.

– Finally, compliance with existing protection measures and the documentation of the disclosure of trade secrets to third parties must be checked and documented.

– Attributing clear competencies with regard to structure and implementation within the company plays a crucial part for an effective concept on protecting know-how.

(3) Adapting existing or creating new contractual regulations with business and cooperation partners
In principle, existing (contract) drafts prepared under the old law should not be used without hesitation, but instead carefully reviewed and – if necessary – adapted to the new legal situation.
Non-disclosure agreements should be formulated narrowly and general clause-like formulations should be avoided. The declarations of non-disclosure within the framework of employment contracts should also be reviewed. If clauses in such contracts are ineffective, they cannot be regarded as “appropriate confidentiality measures”, with the consequence that a violation of the trade secret would possibly remain without sanction.

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M. Miller, B. Murphy & S. Murray: “Trump Administration Trade Updates”

Miller & Company P.C., 1 June 2019.)
* Authors: Marshall Miller, Esq.,
; Brian Murphy, Esq.,
; and Sean Murray, Esq.,
, a
ll of Miller & Company P.C.
On May 31, 2019, President Trump 
terminated by Presidential Proclamation India’s status as a beneficiary developing country under the Generalized System of Preferences (GSP) effective June 5, 2019.  The termination of India’s GSP status has the following consequences:
– Goods of Indian origin will no longer qualify for special tariff treatment under the Generalized System of Preferences and will instead be subject to normal tariff rates.
– Goods of Indian origin are no longer exempted from Safeguard measures implemented on January 23, 2018 by Presidential Proclamations 9693 and 9694 concerning crystalline silicon photovoltaic (CPSV) cells and large residential washers. 
– Any merchandise from India subject to these Safeguard measures admitted into a foreign-trade zone after 12:01 am on June 5, 2019 must be admitted as privileged foreign status and will be subject upon entry for consumption to the Safeguard measures. 
– The Proclamation is silent on whether on-hand FTZ merchandise in privileged foreign status prior to June 5 preserves GSP benefits.
On May 16, 2019, President Trump 
terminated by Presidential Proclamation Turkey’s status as a beneficiary developing country under the Generalized System of Preferences (GSP) effective May 17, 2019.  The termination of Turkey’s GSP status has the following consequences:
– Goods of Turkish origin will no longer qualify for special tariff treatment under the Generalized System of Preferences and will instead be subject to normal tariff rates. 
– Goods of Turkish origin are no longer exempted from Safeguard measures implemented on January 23, 2018 by Presidential Proclamations 9693 and 9694 concerning crystalline silicon photovoltaic (CPSV) cells and large residential washers effective May 17, 2019. 
– While not outlined in the May 16, 2019 Proclamation, President Trump’s May 31, 2019 Presidential Proclamation terminating India’s GSP status provides at Paragraph (6) new specific FTZ guidance on the termination of Turkey’s GSP status. Merchandise from Turkey subject to these Safeguard measures admitted into a foreign-trade zone after 12:01 am on June 5, 2019 must be admitted as privileged foreign status and will be subject upon entry for consumption to the Safeguard measures.  The gap period of May 17 to June 5 is not explained.
– The Proclamation is silent on whether on-hand FTZ merchandise in privileged-foreign status prior to May 17 preserves GSP status.
On May 31, 2019, the United States Trade Representative (USTR) 
indicated it intends to publish a notice in the Federal Register on China Section 301 List 3 duties exported on or before May 9.  USTR will extend the amount of time exported China goods have to enter the United States from June 1, 2019 to June 15, 2019 before being subject to the increased 25% duty rate.  CBP issued detailed instructions in 
CSMS #19-000274 (May 31, 2019) on potential filing issues that should be carefully considered.  Clients are advised to enter such goods before June 15, 2019 to take advantage of the 10% duty rate.  While the USTR notice and CSMS message are silent on FTZ merchandise, clients utilizing FTZs should continue to admit merchandise in privileged-foreign status to secure the 10% duty rate.

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MS_a117. Louis Rothberg Moves to Lowenstein Sandle

(Source: Editor)
Louis K. Rothberg, Esq., formerly with Morgan, Lewis & Bockius, has moved to his current position as Senior Counsel, Global Trade and Policy, Lowenstein Sandler LLP, Washington, DC.  Contact Louis at 1-202-753-3816 or 

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TE_a118. FCC Presents “Designing an ICP for Export Controls & Sanctions”, 1 Oct in Bruchem, the Netherlands

This training course is designed for compliance officers, managers, and other professionals who aim to enhance their organization’s compliance efforts. The course will cover multiple topics and tackle various key questions, including but not limited to:
– Setting the Scene: ensuring compliance in the export control and sanctions arena
– What is expected from your organization? A closer look at the official frameworks and guidelines from U.S. and European government agencies
– Key elements of an ICP
– Best practice tips for enhancing your current compliance efforts  
– Internal controls samples (policies, procedures, instructions)
– Strategic benefits of having an ICP.
* What: Designing an Internal Compliance Program (ICP) for Export Controls & Sanctions
* Date: Tuesday, 1 Oct 2019
* Location: Full Circle Compliance, Landgoed Groenhoven, Dorpsstraat 6, Bruchem, The Netherlands
* Times:
  – Registration and welcome: 9.00 am – 9.30 am
  – Training course hours: 9.30 am – 4.30 pm
* Level: Intermediate
* Target Audience:  the course provides valuable insights for both compliance professionals, employees and (senior / middle) management working in any industry subject to U.S. and/or EU (member state) export control laws and sanctions regulations.
* Instructors: Drs. Ghislaine C.Y. Gillessen RA and Marco M. Crombach MSc.
* Information & Registration: click
here or contact us at 
events@fullcirclecompliance.eu or 31 (0)23 – 844 – 9046.  

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


DHS CUSTOMS REGULATIONS: 19 CFR, Ch. 1, Pts. 0-199.  Implemented by Dep’t of Homeland Security, U.S. Customs & Border Protection.

  – Last Amendment: 5 Apr 2019:
84 FR 13499-13513: Civil Monetary Penalty Adjustments for Inflation

DOC EXPORT ADMINISTRATION REGULATIONS (EAR): 15 CFR Subtit. B, Ch. VII, Pts. 730-774. Implemented by Dep’t of Commerce, Bureau of Industry & Security.
  – Last Amendment: 24 May 2019: 84 FR 24018-24021: Revisions to Country Group Designations for Venezuela and Conforming Changes for License Requirements; and 84 FR 24021: Addition of Certain Entities to the Entity List, Revision of an Entry on the Entity List, and Removal of an Entity From the Entity List [Correction to 14 May 2019 Entity List Amendment.]  
* DOC FOREIGN TRADE REGULATIONS (FTR): 15 CFR Part 30.  Implemented by Dep’t of Commerce, U.S. Census Bureau.
  – Last Amendment: 24 Apr 2018: 83 FR 17749-17751: Foreign Trade Regulations (FTR): Clarification on the Collection and Confidentiality of Kimberley Process Certificates
  – HTS codes that are not valid for AES are available here.
  – The latest edition (1 Jan 2019) 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 approximately 250 footnotes containing case annotations, practice tips, Census/AES guidance, and explanations of the numerous errors contained in the official text. Subscribers receive revised copies in Microsoft Word 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. Government employees (including military) and employees of universities are eligible for a 50% discount on both publications at www.FullCircleCompiance.eu.   


  – 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.)
DOE ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES: 10 CFR Part 810; Implemented by Dep’t of Energy, National Nuclear Security Administration, under Atomic Energy Act of 1954.
  – Last Amendment: 23 Feb 2015: 80 FR 9359, comprehensive updating of regulations, updates the activities and technologies subject to specific authorization and DOE reporting requirements. This rule also identifies destinations with respect to which most assistance would be generally authorized and destinations that would require a specific authorization by the Secretary of Energy.
DOE EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL; 10 CFR Part 110; Implemented by Dep’t of Energy, U.S. Nuclear Regulatory Commission, under Atomic Energy Act of 1954.
  – Last Amendment: 20 Nov 2018, 10 CFR 110.6, Re-transfers.

* DOJ ATF ARMS IMPORT REGULATIONS: 27 CFR Part 447-Importation of Arms, Ammunition, and Implements of War.  Implemented by Dep’t of Justice, Bureau of Alcohol, Tobacco, Firearms & Explosives.
  – Last Amendment: 14 Mar 2019: 84 FR 9239-9240: Bump-Stock-Type Devices 


DOS INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR): 22 C.F.R. Ch. I, Subch. M, Pts. 120-130. Implemented by Dep’t of State, Directorate of Defense Trade Controls.
  – Last Amendment: 19 Apr 2019: 84 FR 16398-16402: International Traffic in Arms Regulations: Transfers Made by or for a Department or Agency of the U.S. Government   
  – The only available fully updated copy (latest edition: 19 Apr 2019) 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.
* DOT FOREIGN ASSETS CONTROL REGULATIONS (OFAC FACR): 31 CFR, Parts 500-599, Embargoes, Sanctions, Executive Orders. 

Implemented by Dep’t of Treasury, Office of Foreign Assets Control.

  – Last Amendment: 29 Apr 2019: 84 FR 17950-17958: Foreign Interference in U.S. Elections Sanctions Regulations [amendment of 31 CFR Part 579 to implement EO 13848] 
* USITC HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES (HTS, HTSA or HTSUSA), 1 Jan 2019: 19 USC 1202 Annex. Implemented by U.S. International Trade Commission. (“HTS” and “HTSA” are often seen as abbreviations for the Harmonized Tariff Schedule of the United States Annotated, shortened versions of “HTSUSA”.)

Last Amendment: 4 June 2019:
Harmonized System Update (HSU) 1910  

  – HTS codes for AES are available here.

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

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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; and Assistant Editors, Alexander Witt and Sven Goor. The Ex/Im Daily Update is emailed every business day to approximately 7,000 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, DOE/NRC, DOJ/ATF, DoD/DSS, DoD/DTSA, FAR/DFARS, 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, provided attribution is given to “The Export/Import Daily Bugle of (date)”. Any further use of contributors’ material, however, must comply with applicable copyright laws.  If you would to submit material for inclusion in the The Export/Import Daily Update (“Daily Bugle”), please find instructions here.

* 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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