DAY 1 | Wednesday, January 25, 2012
7:30 Registration Opens and Coffee Served
8:30 Opening Remarks from Boot Camp Co-Chairs
Robert Vander Lugt
Director, Export Compliance & Training
Northrop Grumman Corporation (Dallas, TX)
Joseph A. Vicario, Jr.
Senior Counsel, International Trade Regulation
Texas Instruments, Incorporated (Dallas, TX)
8:45 EAR-ITAR Migration: How to Identify and Manage Migration Risks throughout the R & D and Product Life Cycle
Arvind Sharma
Senior International Trade Counsel
Flowserve Corporation (Irving, TX)
Nate Millsap
Export Compliance Manager
Marinette Marine Corporation (Marinette, WI)
F. Amanda DeBusk
Partner
Hughes Hubbard & Reed LLP (Washington, DC)
- How proposed export control reforms will affect the classification of your items and technologies, and migration to the CCL
- When EAR-controlled items are “tainted” by the ITAR: How to track classifi cation throughout the product life cycle
- Identifying migration of ITAR-controlled items and technologies to the EAR, and how to re-classify
- Key elements for developing classification procedures and a matrix for assessing EAR jurisdiction
- Key questions to ask when classifying new and innovative technologies: Conducting market and IT functionality analysis
- When to seek a formal CJ or CCATS vs. when to self-classify
- Working with your R&D group to stay within EAR boundaries and avoid ITAR migration
9:45 Deemed Export Compliance and Form I-129 Certification: How to Screen Foreign Nationals within Foreign Anti-Discrimination and Privacy Law Limits
Robert Vander Lugt
Director, Export Compliance & Training
Northrop Grumman Corporation (Dallas, TX)
Danial Chapman
Director, Export Compliance
ConocoPhillips (Bartlesville, OK)
Leigh T. Hansson
Partner
Reed Smith LLP (Washington, DC)
- Key definitions:
- “deemed export” and “reexport”
- “foreign national”
- “release” of technology, software or technical data
- “technology” and “technical data”
- When a BIS license is required for a foreign national
- How the EAR treats birth and nationality, and key screening requirements for determining the most recent country of citizenship or permanent residency
- When and how to seek an advisory opinion if the status of a foreign national is uncertain
- How to determine nationality of prospective employees and others within foreign legal limits
- what questions are permissible under EU and Canadian anti-discrimination and privacy laws
- Completing Form I-129 (Petition for a Nonimmigrant Worker)
- working with HR and other affected departments to assess risks of unauthorized access
- how to answer questions about your deemed export compliance program
- what to ask and look for when analyzing your business units and operations
- Ensuring the Form I-129 certification remains accurate throughout the employment relationship
- When inaccurate or false statements in Form I-129 could lead to penalties and other punitive measures
- How to coordinate EAR compliance, HR and the visa application process to avoid export delays and interruptions
- Tracking employee turnover, transfers to a new location and succession planning: How to ensure ongoing EAR compliance when assigning employees to new projects and roles
11:00 Networking Coffee Break
11:15 Commodity Classifi cation Requests: Do’s and Don’ts for Preparing and Submitting a CCAT
Antoinette D. Paytas
Partner
Thomsen & Burke LLP (Baltimore, MD)
- Difference between a CCAT vs. an advisory opinion
- The process and associated timeline for fi ling a CCAT
- Creating a License Application or Commodity Classification Work Item
- How to prepare the application
- key technical specifications of the commodity, software or technology that must be specified in your request
- supporting documentation to include, such as descriptive literature, brochures, precise technical specifications or papers
- providing a recommended classification and explaining the basis for your recommendation
- what to do if you cannot determine a recommended classification for your item
- How BIS reviews a CCAT, and key criteria affecting their determinations
11:45 End-Use and End-User Controls: How to Conduct Effective Checks and Reviews to Prevent Diversion
Joseph A. Vicario, Jr.
Senior Counsel, International Trade Regulation
Texas Instruments, Incorporated (Dallas, TX)
Kenneth G. Weigel
Partner
Alston & Bird LLP (Washington, DC)
- EAR end-use and end-user restrictions: How BIS applies its “Know Your Customer Guidance and Red Flags” guidance
- How to determine who will receive your item, and what the item will be used for
- Conducting an end-use/end-user check and review: Core elements to include in your processes and procedures
- key red flags and diversion warning signs when dealing with customers, agents, freight forwarders, trading companies and others
- ensuring the items will be used for civil applications only and not reexported or otherwise disposed
- working with a legitimate, established foreign buyer
- obtaining and reviewing a technology control plan (TCP) from your foreign buyer
- determining the last point of contact in the chain of sale
- How to meet requirements for end-user statements
- how to describe equipment and its intended application and workload
- ensuring a complete identification of all end-users and their activities
- When and how much to train third parties on diversion pitfalls
12:30 Networking Luncheon
1:45 Export Control Reform Discussion and Q & A: Practical Impact of Ongoing CCL Changes, New BIS Guidance on Diversion, and Other Policy Initiatives
Led by the Boot Camp Co-chairs, this interactive session will be an open forum for discussing the latest in export control reform. Learn how anticipated and ongoing reform will impact your business, compliance status and how to prepare. Attendees are encouraged to participate in this Q & A with faculty members – so bring your questions!
Topics will include:
- Key policy initiatives, their status and potential impact on your business
- What the proposed migration from USML to the CCL, EAR99 will mean for your export activities
- Update on changes to terminology and defi nitions, including “specially designed”, and the effect on the classification of your items and technology
- How proposed CCL changes impact the application of the Wassenaar Arrangement to specially designed items
- Review of BIS’ guidance on preventing unlawful diversion of US dual-use items
2:30 The Nuts and Bolts of Crafting a Successful License Application: Avoiding Critical Missteps Leading to License Denials and RWAs
Gene Christiansen
Senior Licensing Officer, Bureau of Industry & Security
U.S. Department of Commerce (Washington, DC)
Adrienne Braumiller
Partner
Braumiller Schulz LLP (Dallas, TX)
This interactive session will take you through the ins and outs of how to meet BIS’ expectations for a successful license application, how to fill out the forms and provide the required supporting documentation.
- Key differences between a general license vs. an individually validated license
- which destinations require an individually validated license: applying “Validated License Required” under EAR Part 799.1
- technical exceptions to the individually validated license requirement under the ECCNs
- The approvals process, timeframe and how to reduce the risk of delay
- What to include and how to submit the application
- how to fill out the forms
- what BIS expects, looks for and requires
- supplemental information required developing
- data sheets, end-user statements, and cover letters
- When and how to provide suffi cient data to support the application including:
- verification of ECCN’s
- end-use of items to be exported
- supporting documents supplied by the prospective purchaser or the government of the country of the ultimate destination
- international import certificate
- statement of ultimate consignee and purchaser.
- How to complete the SNAP-R Form
- When and how to work with engineering and other departments during the license application process
- Preventing a Return Without Action (RWA)
- Key types of license conditions, when they are imposed and what to do if you cannot meet themWhen and how to amend a license
- How to appeal a license denial: The process and associated timeline
3:45 Networking Coffee Break
4:00 What Triggers a BIS Visit or Inquiry: What to Expect and How to Prepare
Todd Marr
Special Agent, Office of Export Enforcement
Bureau of Industry and Security
U.S. Department of Commerce (Dallas, TX)
F. Amanda DeBusk
Partner
Hughes Hubbard & Reed LLP (Washington, DC)
- How BIS selects companies for visits or inquiries
- Key differences between a visit vs. an inquiry
- Responding to BIS requests for documents and other items
- The scope of BIS’ access rights to your information vs. what is protected by privilege
- Ensuring the availability of compliance personnel, management, outside counsel and data to respond and manage BIS requests
- What kind of documents must be retained and for how long
- When and how to conduct internal audits of your plants and operations in anticipation of a visit or audit
4:45 AES: How to File Export Shipment Data, and Prevent Penalties for Incorrect, Untimely Filings
Dale C. Kelly
Assistant Division Chief, Data Collection
U.S. Census Bureau, Foreign Trade Division (Washington, DC)
Miguel A. Garcia
Director, International Trade Compliance
ACS, a Xerox Company (Dallas, TX)
- The roles and jurisdiction of Census, BIS and Customs and Border Protection, and how they coordinate their efforts
- Selecting your interface method: The pros and cons of
- creating your own AES program
- purchasing AES certified software from a vendor
- using a paid AES service center
- using AES Direct or any of its enhancements
- Responsibilities of the FPPI and the USPPI in routed transactions
- who controls the movement of the goods out of the US
- who provides authorization to a US agent to file the EEI
- How to prepare your AES record
- ensuring SEDs, commercial invoices and EEIs are filed properly
- mandatory filing requirements for routed export transactions
- USPPI and the types of records required by the Foreign Trade Regulations
- when you should file yourself vs. outsource the filing to freight −forwarders
- knowing what value is claimed in AES for the shipments: the value between the FPPI and the USPPI
- key differences between AES filings for routine/standard export shipments, drop shipments and routed export transactions (RET)
- How AES validates your data
- Dealing with filing errors: What you need to disclose to Census and how
- How much an error can cost your company: How U.S. agencies are calculating mandatory penalties under the Foreign Trade Regulations
5:30 Boot Camp Adjourns to Day 2
DAY 2 Thursday, January 26, 2012
8:30 Opening Remarks from Boot Camp Co-Chairs
8:45 Building an Effective Export Management and Compliance Program (EMCP) in a Resource-Scarce Environment: Key Elements to Include in Your Compliance Program, Policies and Procedures
Robert Vander Lugt
Director, Export Compliance & Training
Northrop Grumman Corporation (Dallas, TX)
Arvind Sharma
Senior International Trade Counsel
Flowserve Corporation (Irving, TX)
Laura Molinari
Counsel, International Trade
GE Aviation (Washington, DC)
- Building your business case to senior management
- How much you need to spend: Tailoring your EMCP to your corporate structure, size, resources, specific risks and global operations
- What to do when you have little to no budget: Creative, inexpensive ways of developing and implementing an EMCP
- Creating an anonymous reporting tool and compliance hotline
- Designing an EMCP for your foreign subsidiary and affiliate: Key components and differences with your U.S. operations
- Core elements of a Material Requirements Planning (MRP) system for orders at different shipping points
- Designing an internal training program for your company: How to train your sales, HR, procurement, contracts, business development, accounting and other departments to foster compliance awareness
- When and how to conduct continuous risk assessments of your EMCP, and what to review:
- who should conduct an internal risk assessment or audit
- developing document gathering and other procedures
- determining whether your written procedures address product and country export and re-export restrictions
- developing a review matrix against anticipated international orders and countries in your marketing plan
- mechanisms to identify whether embargoed countries, Wassenaar reporting and Restricted Parties are involved in an export transaction
10:00 The Price of an EAR Violation: How BIS Targets Companies and Individuals, and Calculates Penalties
Kenneth G. Weigel
Partner
Alston & Bird LLP (Washington, DC)
- What kinds of EAR violations can trigger BIS enforcement
- What pushes a case from a warning letter to a penalty, and what can lead to a criminal prosecution
- What can mitigate vs. increase your company’s exposure
- Lessons learned from recent enforcement actions, including the Inospec case
- Update on recent penalty trends, and what has triggered the largest vs. smallest penalties
- Potential impact of the Obama Administration’s new export control initiatives on enforcement plans, priorities and penalty amounts
10:30 Networking Coffee Break
10:45 How to Monitor EAR Compliance across Your Global Supply Chain: Vetting, Monitoring and Training Third Parties to Reduce Civil and Criminal Liability Risks
Joseph A. Vicario, Jr.
Senior Counsel, International Trade Regulation
Texas Instruments, Incorporated (Dallas, TX)
Helaine Lobman
Assistant General Counsel
Mitsubishi Electric USA (Somerset, NJ)
Kwesi Baiden
Senior Legal Counsel
Ensco (Houston TX)
- Key EAR requirements for freight forwarders and other third parties across the supply chain
- Where the exporter’s responsibility for third party compliance begins and ends: When and how much to train third parties, and how much is too much
- How to vet third parties, including subcontractors, freight forwarders, distributors, customs brokers, customers, re-sellers and others: What to look for and ask at the due diligence stage
- Contractual safeguards to implement for orders and shipments, and when to terminate the relationship because of export enforcement risks
- Nature and extent of audit rights to include in third party contracts, and how to exercise them
- How to monitor supplier and other third party outsourcing activities
11:45 Recordkeeping: Satisfying EAR Requirements for Record Retention, Retrieval and Destruction Procedures
Suzanne D. Reifman
Partner
Vinson & Elkins LLP (Washington, DC)
- Key recordkeeping requirements in the EAR
- Reporting technical data exports, and data disclosed over the life of a license
- Types of records that need to be retained and how, including:
- transport documents
- licenses and supporting documentation
- memoranda, notes and correspondence
- contracts, accounting and fi nancial records
- Coordinating with sales, shipping, logistics, accounts payable and other departments to coordinate and centralize recordkeeping
- Developing data maintenance, preservation, retrieval and destruction procedures for your domestic and overseas offices
- Updating automation tools, and how to assess available software and vendors
- How long to retain records, and how to dispose of them
- When and how BIS and CBP inspect your records, and what they look for
12:15 Networking Lunch
1:30 What to Do if You Suspect or Discover an EAR Violation: Structuring an In-Depth, Cost-Efficient Internal Investigation
Dana Nahlen
Director of International Compliance
SunGard (Dallas, TX)
Kerry Tassopoulos
Vice President, Government Relations and Compliance
Mary Kay, Inc. (Dallas, TX)
Adrienne Braumiller
Partner
Braumiller Schulz LLP (Dallas, TX)
- Factors in deciding whether an internal investigation is necessary
- When to call BIS before starting an internal investigation, and what to say
- Determining the nature and scope of review
- When to use outside vs. in-house resources
- Structuring an internal investigation
- composing the right investigative team
- types of documents to review and what to look for
- how far to drill down
- privilege protection and related considerations
- Sharing the findings: How to communicate the findings across departments
- Identifying appropriate corrective action, and how to implement the measures
2:30 Refreshment Break
2:45 Encryption Controls: How to Apply Key Requirements, License Exceptions and Recent EAR Changes to Your Hardware, Software and Technology
Lourdes Valdez Carson
Director of Trade Compliance
Ericsson, Inc. (Dallas, TX)
Antoinette D. Paytas
Partner
Thomsen & Burke LLP (Baltimore, MD)
- Revisiting the jurisdiction of your encryption items based on an updated CCL: Practical impact of removing publicly available mass market encryption software off the CCL
- Defining “ancillary cryptography”
- Resolving classification challenges: When and how to self-classify vs. seek government review
- When a license is required for encryption products and what triggers a license approval/denial
- When and how to export encryption items under License Exception ENC and under the “mass market” provisions
- How Note 4 applies to your classification process: Determining EAR99 classification
- Modifying existing software to include encryption-related • technology, and how to re-classify
- When BIS approvals for foreign manufactured encryption products are required, and how to obtain them
- Key product information and required annual reports to BIS when self-classifying
- Definition of “cryptographic activation” under the Wassenaar decision and how this impacts your encryption licensing strategy
3:45 Voluntary Disclosures: Core Elements to Include in Your Disclosure to Mitigate Penalty Risks
Mark C. Joye
Partner
Baker Hostetler LLP (Houston, TX)
- The pros and cons of formal reports and voluntary disclosures to BIS
- BIS guidelines, expectations and EAR requirements
- How to prepare a voluntary disclosure:
- how much to disclose in your report
- what attachments to provide and how to summarize them
- what to say and how to say it
- disclosing small vs. large violations: Differences in your disclosure approach
- How BIS assesses voluntary disclosures, and key factors in their penalty assessments
- Mitigating and aggravating factors affecting penalty calculations
- What to expect from BIS post-disclosure: Recent trends in required corrective action
- When voluntary disclosures can trigger a BIS demand or request for an outside audit
4:30 Exporting to Embargoed Countries: What You Need to Know about Overlapping EAR, U.S. Economic Sanctions and Antiboycott Restrictions Affecting Your Business
Dana Nahlen
Director of International Compliance
SunGard (Dallas, TX)
Leigh T. Hansson
Partner
Reed Smith LLP (Washington, DC)
- The role and jurisdiction of the Office of Foreign Assets Control (OFAC) over export transactions, and their interaction with BIS
- Key economic sanctions restrictions affecting global exports, and how they overlap with the EAR
- What role will BIS play in enforcing Iran and Syria sanctions: Managing overlapping jurisdiction between BIS and OFAC
- When an export can trigger economic sanctions restrictions in addition to EAR compliance
- What triggers a denial of export privileges, penalties and other enforcement mechanisms by OFAC in addition to BIS
- Key differences between BIS v. OFAC antiboycott requirements
- Lessons learned from key cases, including:
- Balli Aviation
- TAK Components, Inc.
- Reza Mohammed Tabib
- Barclays Bank PLC
- Maersk Line, Ltd.
- How to incorporate OFAC screening requirements into your EMCP
5:15 EAR Boot Camp Concludes
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