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Greetings!
This month's import/export news highlights include: BIS revisions to the EAR - including revising encryption export controls; BIS clarifies de minimis rule requirements; CBP to revise policy on use of CF28s to preclude prior disclosures; VA resident sentenced to 37 months imprisonment for FCPA violations; and French company settles FCPA alleged violations with $240M civil penalty. As always, we would appreciate any comments or suggestions you may have to improve this newsletter either by email or via our feedback survey link in our left column.Thank you for reading! Jennifer Kessinger, Tammie Goldstein Krauskopf
& Ruta Riley
globaltradeexpertise
info@globaltradeexpertise.com
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BIS Publishes Rule Based Upon a Systematic Review of the Commerce Control List
BIS welcomes continuing public comments on the rule
 On June 28, 2010, the Bureau of Industry and Security (BIS) published a final rule revising the Export Administration Regulations (EAR) based upon a systematic review of the Commerce Control List (CCL).
The rule is the third phase of the regulatory implementation of the results of a review of the CCL that was conducted by BIS starting in 2007. The BIS review was aided by input received from BIS's Technical Advisory Committees (TACs) and comments received from the interested public.
The revisions in this rule include clarifications to existing controls; eliminating redundant or outdated controls; and establishing more focused and rationalized controls. This rule also makes CCL related changes to other parts of the EAR, including CCL related definitions and license exceptions.
The rule is effective upon publication and while no formal comment period, BIS welcomes comments from the public on this rule on a continuing basis.
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BIS Publishes Revised Encryption Export Controls and Seeks Public Comments
Comments are due by August 24, 2010
On June 25, 2010, the Bureau of Industry and Security (BIS) issued an interim final rule that amends the Export Administration Regulations (EAR) to modify the requirements of License Exception ENC, "Encryption Commodities, Software and Technology," and the requirements for qualifying an encryption item as mass market. In addition, the rule also amends specific license requirements for encryption items. EAR sections affected are 15 CFR Parts 730, 734, 738, 740, 742, 748, 772 and 774. BIS also posted on its website a press release, a summary of the rule, and additional information to assist exporters.
BIS believes that the rule will streamline procedures for (1) less sensitive encryption items eligible for export under License Exception ENC and (2) most mass market encryption products. The interim final rule also implements the Wassenaar Arrangement's decontrol of items that perform "ancillary cryptography" in the Commerce Control List.
The rule includes several significant changes to encryption export controls by modifying the way information about encryption products is collected an analyzed. The rule, as amended:
· Removes review requirements for less sensitive encryption items;
· Establishes a company registration requirement for encryption items under License Exception ENC or as mass market encryption items. Under the new rule, authorization for License Exception ENC and mass market treatment is based on company authorizations that operate like a bulk license for the company's products rather than product-by-product authorizations;
· Creates an annual self-classification report requirement for such items pursuant to an encryption registration. Under the new rule, the self-classification report would be required to be submitted annually to BIS and the ENC Encryption Request Coordinator in February for items exported and reexported the previous calendar year;
· Makes encryption technology eligible for export and reexport under License Exception ENC, except to countries of highest concern;
· Lifts the semi-annual sales reporting for less sensitive encryption items under License Exception ENC. When sales reporting is not required under License Exception ENC, companies need only maintain records as required by the EAR that can be reviewed by appropriate agencies of the U.S. Government upon request;
· Removes the 30-day delay to export and reexport less sensitive encryption items under License Exception ENC; and
· Removes the 30-day delay to make most mass market encryption items eligible for mass market treatment.
Comments on the suggested changes are due by August 24, 2010.
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Census Foreign Trade Division Updates HTS Codes and Schedule B Database
New HTS codes go into effect on July 1, 2010
The U.S. Census Bureau's Foreign Trade Division (FTD) has posted a warning to the trade community that some freight forwarders and Customs brokers may need to update their current commodity number classifications as updated/new Harmonized Tariff Schedule (HTS) numbers go into effect on July 1, 2010.
HTS commodity classification codes are generally revised twice annually, in January and July by the U.S. International Trade Commission. The codes are usually revised because members in the trade community are looking for more detailed statistical data. Recommendations for revisions to existing classifications or for the establishment of new classifications should be submitted to the Chairman of the Committee for Statistical Annotation of Tariff Schedules.
In addition, the FTD posted a link to an improved Schedule B database of export commodity codes. According to FTD, "the new improved search tool will interpret common commercial product information and interact intelligently and intuitively with users to help alleviate the complex nature of finding the correct code in the Schedule B book."
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Iranian National Convicted of Export Violations
Defendant faces a maximum penalty of ten years imprisonment and a $1M fine
 On June 17, 2010, the U.S. Department of Justice announced that Omid Khalili, an Iranian national, pleaded guilty in U.S. District Court for the Southern District of Alabama to attempting to illegally export fighter jet or military aircraft parts from the U.S. to Iran.
Khalili and other defendant were charged in a nine-count indictment returned on January 28, 2010, with conspiracy, money laundering, smuggling, and violations of the Arms Export Control Act (AECA), and the International Emergency Economic Powers Act (IEEPA).
According to court documents, Khalili and his co-conspirator have been working with the Iranian government to procure military items for the Iranian government. In November 2009, Khalili contacted an undercover agent seeking parts for the military aircraft for export to Iran.
The parts requested by Khalili are designated as defense articles on the U.S. Munitions List and require a U.S. State Department export license. In addition, these items may not be exported to Iran without a license from the U.S. Treasury Department due to the U.S. trade embargo on Iran. Neither Khalili nor his co-conspirator obtained the required export licenses.
On November 20, 2009, Khalili send an e-mail to the undercover agent containing a list of aircraft parts for the military aircraft and inquiring about their prices. In December 2009, Khalili and his co-conspirator talked with the agent and informed him that the parts were to be sent to Iran and that, because of the U.S. embargo, they would need to be re-routed through an intermediate country. When the undercover agent agreed to send the requested parts to the defendants, Khalili and his other co-conspirators sent four separate cash deposits totaling in excess of $70,000 from a bank in U.A.E. to a bank in Alabama as down-payment for the aircraft parts.
Khalili faces a maximum penalty of ten years in prison and a $1 million fine.
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BIS Publishes Update 2010 Dates & Instructions
Interest form must be submitted to BIS
The Bureau of Industry and Security's (BIS) announced that its annual Update Conference on Export Controls and Policy will be held on August 31- September 2, 2010 in Washington, DC.
To attend this year's conference, you must follow a two-step process: (1) you must submit the online "Interest Form" between June 15 and June 28. If there are more potential participants than there is space available, BIS will grant registration through a random selection from the entire list of respondents, regardless of when received during the period. Those selected will be notified and given registration instructions in early July. They must register and submit payment by a designated date indicated in the instructions or their spot will be forfeited and given to someone on the wait list. Those not selected will be notified that they have been placed on a wait list.
More detailed program information will be posted in the coming weeks.
Registration transfers within companies or organizations may be permitted with prior approval from BIS. Registration transfers will not be permitted between different organizations or companies. Registrations may not be resold.
BIS will make every effort to ensure broad company representation at this event. Due to the limited capacity of the Update Conference, BIS reserves the right to limit, restrict or decline registrations to this event. Registrations are not confirmed until accepted and verified by BIS and the registration fee has been paid. |
BIS Clarifies De Minimis Content Requirements
On June 4, 2010, Bureau of Industry and Security (BIS) issued a final rule in Federal Register that clarifies language concerning the de minimis provisions in the Export Administration Regulations (EAR).
The EAR generally do not apply to items that were made and are located outside the U.S. and that contain only a "de minimis" level of U.S-origin content. The procedures for calculating whether an item exceeds the de minimis threshold note that the calculation is appropriate only for items that are made outside the U.S. and are not currently in the U.S.
Effective June 4, 2010, the rule removes EAR provision in §734.3(b)(4), which outlines a category of items not subject to the EAR ("foreign made items that have less than the de minimis percentage of controlled U.S. content"), because the provision could be erroneously read as applying the de minimis exclusion to foreign made items that are located in the U.S.
In addition, the final rule provides technical corrections to the EAR involving certain performance criteria of turning machines and the rule also removes obsolete cross references, removes and reserves two regulatory provisions, corrects a typographical error, and removes an unnecessary reporting requirement. |
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CBP to Revise Policy on the Use of CF28s as Start of Formal Investigation
Express notice of investigation required to preclude prior disclosure
 On June 10, 2010, during the Customs Lawyers Association Annual meeting in Washington, DC, Charles Ressin, Chief of the Penalties Branch, Regulations & Rulings at the CBP's Office of International Trade, stated that CBP intends to revise and publish policy concerning Request for Information (CBP Form 28) as beginning of formal investigation for purposes of customs enforcement. Mr. Ressin stated that CBP's issuance of a CBP Form 28 alone does not preclude the importer from filing a prior disclosure unless express notice of investigation is included in the form.
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VA Resident Sentenced to 37 Months Imprisonment for FCPA Violations
Additional $331,000 Forfeited
 On June 25, 2010, the U.S. Department of Justice announced that John Webster Warwick, a 64-year old Virginia Beach, VA, resident, was sentenced in U.S. District Court in Richmond, VA, to 37 months in prison for conspiring to pay bribes to former Panamanian government officials to secure maritime contracts.
On February 10, 2010, Warwick pleaded guilty to conspiracy to make corrupt payments to foreign government officials for the purpose of securing business for Ports Engineering Consultants Corporation (PECC) in violation of the Foreign Corrupt Practices Act (FCPA).
According to court documents, Warwick and others conspired to pay money secretly to Panamanian government officials for awarding contracts to PECC. In December 1997, the Panamanian government awarded PECC a no-bid 20-year concession. In December 1997, Warwick and others authorized payments to be made to the Panamanian government officials, which totaled more than $200,000.
In addition to the prison term, Warwick forfeited $331,000 in proceeds of the conspiracy and will be subject to a two-year supervised release following his prison term.
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French Company Settles FCPA Charges with a $240 Million Penalty
Charges stem from alleged participation in decade-long scheme to bribe Nigerian government officials
 On June 28, 2010, Department of Justice (DOJ) announced that Technip S.A., a global engineering, construction, and services company based in Paris, France, has agreed to a $240 million criminal penalty to resolve charges related to the Foreign Corrupt Practices Act (FCPA) for its participation in a decade-long scheme to bribe Nigerian government officials to obtain engineering, procurement, and construction (EPC) contracts. The EPC contracts to build liquefied natural gas (LNG) facilities on Bonny Island, Nigeria, were valued at more than $6 billion.
DOJ filed a deferred prosecution agreement and a criminal information against Technip in the U.S. District Court for the Southern District of Texas. The two-count information charges Technip with one count of conspiracy and one count of violating the FCPA.
Technip, Kellogg Brown & Root Inc (KBR) and two other companies were part of a joint venture that was awarded four EPC contracts by Nigeria LNG Ltd. (NLNG) between 1995 and 2004 to build LNG facilities on Bonny Island. The government-owned Nigerian National Petroleum Corporation (NNPC) was the largest shareholder of NLNG.
According to court documents, Technip authorized the joint venture to hire two agents to pay bribed to a range of Nigerian government officials, including top-level executive branch officials, to assist Technip and the joint venture in obtaining the EPC contracts. The joint venture paid approximately $182 million to its agents to be forwarded to Nigerian government officials as bribes.
Under the terms of the deferred prosecution agreement, DOJ agreed to deter prosecution of Technip for two years. Meanwhile, Technip is obligated to obtain an independent compliance monitor for a two-year period to review the design and implementation for Technip's compliance program and to cooperate with the department in ongoing investigations. If Technip abides by the terms of the deferred prosecution agreement, DOJ will dismiss the criminal information when the term of the agreement expires.
Technip also reached a settlement of a related civil complaint filed by the Securities and Exchange Commission (SEC) charging Technip with violating the FCPA's anti-bribery, books and records, and internal controls provisions. As part of this settlement, Technip agreed to pay $98 million in disgorgement of profits relating to those violations.
Including today's resolutions, a total of $917 million in criminal and civil penalties have been obtained to date as a result of the ongoing DOJ and SEC investigations of the scheme to bribe Nigerian government officials in order to win the Bonny Island EPC contract.
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Who's Hiring?
A Summary of Current Trade Job Opportunities
 As a service to the international trade community, Global Trade Expertise compiles links to trade job opportunities from many different sources. New trade job listings are posted frequently on our website.
To sort the job opportunities by region, fields, or levels, click on the appropriate category or tag in the right column on our Trade Jobs webpage. |
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Calendar of Events
Upcoming Trade Events & Seminars
 Our website has a comprehensive listing of import and export conferences held throughout the country, as well as Customs training, EAR training, ITAR training, and other training. Below is a small sampling of what's available in the coming months:
ITAR Compliance and Audits - Federal Publications Seminar
July 15 - 16, 2010 - Hilton Head, SC - $995
2010 Summer Back to Basics Conference - Society for International Affairs
July 19 - 20, 2010 - Baltimore, MD - $700-$800
Complying with U.S. Export Controls - Bureau of Industry and Security
August 11 - 12, 2010 - Universal City, CA - $450
2nd Annual "Partnering for Compliance™" West Coast Training and Education Program - Partnering for Compliance
August 25 - 27, 2010 - San Jose, CA - $450
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Thanks again for your interest in our newsletter!
Sincerely,
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Jennifer Kessinger, Tammie Krauskopf & Ruta Riley
Attorneys & Consultants
jk@globaltradeexpertise.com
Tel. 925.876.1381 (Jennifer Kessinger)
tk@globaltradeexpertise.com
Tel. 708.707.4087 (Tammie Krauskopf)
rr@globaltradexpertise.com
Tel. (630) 862-8123
www.globaltradeexpertise.com
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