Hickey, Jr. et al v. Chadick et al

Filing 31

ORDER denying 20 Motion for Leave to File Surreply; granting 30 Motion for Leave to File Reply to Defendants' E-mail Submission; denying 9 Motion to Dismiss for Lack of Jurisdiction; deferring ruling on 9 Motion for Summary Judgment. Signed by Judge James L Graham on August 12, 2009. (Attachments added on 8/13/2009: # 1 Defense Logistics Acquisition Directive, # 2 Excluded Parties List) (bw)

Excluded Parties List System

Search - Current Exclusions > Advanced Search > Multiple Names > Exact Name and SSN/TIN > MyEPLS > Recent Updates View Cause and Treatment Code Descriptions > Reciprocal Codes > Procurement Codes > Nonprocurement Codes Agency & Acronym Information > Agency Contacts > Agency Descriptions

Frequently Asked Questions (FAQs)

Resources > Search Help > Public User's Manual > FAQ > Acronyms > Privacy Act Provisions > News Reports

by OFFICIAL GOVERNMENT USE ONLY d ONLY we ie nanc > Debar Maintenance V t > Administration Las
> Upload Login

> State/Country Code Descriptions

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> Advanced Reports Rec > Recent Updates > Dashboard

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Archive Search - Past Exclusions > Advanced Archive Search > Multiple Names > Recent Updates Contact Information > Email: [e-mail] [e-mail] > Phone: 1-866-GSA-EPLS 1-866-472-3757

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1.

What is the Excluded Parties Lists System (EPLS)? What is the purpose of EPLS? Why was EPLS established? What are the requirements for using EPLS? How often is EPLS updated? Is EPLS the same or similar list as the OIG, ECHO, LDP and FACIS? S?

2. 3. 4.

5. 6.

7.

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How do I obtain a copy o ain or subscription to th Lists iption tio the of Parties E f Parties Excluded from Feder Federal Procurement or Nonprocurement Program (Lists), the monthly hardcopy? What are Reciprocal, Procurement and Nonprocurement Exclusion Types?

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9.

Do I have to check all three Exclusion Types (Reciprocal, Procurement, Nonprocurement)?

10. What is an Individual Classification? 11. What is a Firm Classification?
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12. What is an Entity Classification? 13. What is a Vessel Classification? 14. What is a Primary and Cross-reference (x-ref) record type? 15. What is a Cause and Treatment (CT) Code and how do I apply it to the entry? 16. What should a Federal debarring agency do if the EPLS does not have a suitable CT Code for the type of exclusion taken taken ken by your agency? ncy? ncy? s Action Date 17. What is an Act and Term and Termination Date?

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What is an Archive Date?

19. What is the function of Advanced Search? 20. What is the function of Advanced Reports? 21. What is the function of Advanced Archive? 22. If an individual or firm appears in the archive list, may I make an award to the individual or firm?

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23. How do I find out about an individual or firm that was convicted or plead guilty but is not on EPLS? 24. How do I obtain information on an exclusion that has been removed from the list of current exclusions? 25. How do I confirm or obtain more information on a listed individual or firm? 26. How do I determine the federal agency responsible for the exclusion?

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28. What is SDN?

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29. What do I do if I have a match to the SDN list? 30. What is the Control list? Who do I call about the Control list? What is the difference between the Control list and OFAC's SDN list? 31. What is a Denied Persons List? 32. What is an Entity List?

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33. What browsers does EPLS Support?

1.

What is the Excluded Parties Lists System (EPLS)? http://acquisition.gov/ faqs_whatis.cfm#epls TOP

2.

What is the purpose of EPLS? The purpose of EPLS is to provide a single comprehensive list of individuals and firms excluded by Federal government agencies from agencies fro receiving federal contracts g federal co fed or federally a r ederally approved subcontracts and from subcont certain types of federal ce financial and nonfinancial assistance and benefits. The EPLS is used to keep agencies abreast of administrative, as well as, statutory exclusions taken throughout the Federal Government. Actions may be taken under the Federal Acquisition Regulation (FAR) or supplements thereto, under specific agency regulations or under the Government-wide Nonprocurement Suspension and Debarment Common Rule [68 FR 66533] or other specific

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statutory authority. TOP 3. Why was EPLS established? The EPLS was established to ensure that agencies solicit offers from, award contracts, grants, or financial or non-financial assistance and benefits to, and consent to subcontracts with responsible contractors only and not allow a party to participate in any affected program if any Executive department or agency has debarred, suspended, or otherwise wise ise excluded (to the extent e specified in the exclusion in he exclu action) that par from party on) participation in an affected participat participat program. pro

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Reference FAR Subpart 9.4 (Procurement Programs) and Executive Orders 12549 and 12689 and the Government-wide Nonprocurement Suspension and Debarment Common Rule [68 FR 66533] (Nonprocurement Programs) provide the guidance for using EPLS. TOP 4. What are the requirements for using EPLS?

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FAR Subpart 9.405(d)(1) require contracting officers to review the EPLS after the opening of bids or receipt of proposals. FAR Subpart 9.405(d)(4) require contracting officers to review the EPLS again, immediately prior to award, to ensure that no award is made to a listed contractor. FAR 9.405-1(b) also requires contracting officers to check the EPLS prior to awarding "new work" as defined in this provision. Subpart D of the Government-wide Nonprocurement Suspension and Debarment and Debar Deba Common Ru e requires mon Rule re agency officials to check agency offi off the EPLS before they enter the E into a primary tier covered transaction, approve a principal in a primary tier covered transaction, approve a lower tier participant when agency approval is required, or approve a principal in a lower tier transaction if agency approval of the principal is required.

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TOP 5. How often is EPLS updated?

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Agencies taking the exclusion actions update EPLS data in real time as changes to the data occur. An update may consist of a new record being added to EPLS, a current record being modified or updated, or a record being deleted from the current list of exclusions. Once a record has been deleted from the current list of exclusions, it is then placed in the archive list of past exclusions. When performing searches, updates are available in real time, however, updates to the reports are processed ed during the nightly runs. y uns.

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Is EPLS the same or Is t th similar list as the OIG, simi ECHO, LDP and FACIS? The EPLS database located at http://www.epls.gov is a Federal government system maintained by GSA as required by FAR Subpart 9.4 and Executive Orders 12549 and 12689. EPLS data is received and maintained by Federal debarring/excluding agencies only. A federal agency may maintain an internal agency system similar to EPLS. However, the EPLS database maintained by GSA is the official government-wide

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system of records of debarments, suspensions and other exclusionary actions. EPLS is not a subset of or a supplement to any other system. GSA cannot guarantee the accuracy of data provided by other systems. Therefore, GSA officials do not respond to inquiries retrieved from other systems. Users obtaining data from systems other than the official GSA EPLS database should contact the owner of that system for data verification and support.

7.

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am hn a copy How do I obtain o obtai mC or subscription to the or subscrip a rah Lists of Parties Excluded Lists o G
from Federal f Procurement or Nonprocurement Program (Lists), the monthly hardcopy?

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GSA discontinued distribution of the monthly hardcopy List of Parties Excluded from Federal Procurement and Nonprocurement Programs (Lists) effective July 11, 2003. EPLS is the electronic version of the Lists and serves as the official government-wide list of excluded parties required by FAR Subpart 9.4,

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Executive Orders 12549 and 12689 and the Government-wide Nonprocurement Suspension and Debarment Common Rule [68 FR 66533]. TOP 8. What are Reciprocal, Procurement and Nonprocurement Exclusion Types? There are three (3) Exclusion Types: Reciprocal, Procurement and Nonprocurement. The Exclusion Type identifies es the Program that the party t he has been excluded under. cluded cluded und Below are descriptions of w are descrip e each program list and the each progr prog effect of an exclusion listed effect under that program.

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Reciprocal List - is a comprehensive list of both Procurement and Nonprocurement program exclusions. All exclusionary actions initiated on or after August 25, 1995, are excluded government-wide from both Procurement and Nonprocurement programs and are being added to the EPLS as Exclusion Type Reciprocal. The Federal Register dated June 26, 1995, published the final regulation that establishes reciprocity between the

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Procurement and Nonprocurement debarment and suspension systems. Therefore, individuals, businesses, contractors and entities listed under this exclusion type are ineligible to participate in Federal Procurement contracts and sales program and Nonprocurement Federal financial and nonfinancial benefit and loan programs (unless otherwise noted). Procurement List - is a list of actions taken before August 25, 1995, of individuals, businesses, esses, ses, contractors and entities nd ineligible to participate in ble partic Federal Proc ederal Pro deral Procurement contracts and sales contra programs only and does not preclude the party from participating in any Nonprocurement programs (unless otherwise noted). Effective August 25, 1995, maintenance of this list shall only consist of updates and deletions. No new actions are being added to this list. This list will no longer exist when the last action has been deleted.

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Nonprocurement List - is a list of actions taken before August 25, 1995, of individuals, businesses, contractors and entities
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ineligible to participate in Nonprocurement Federal financial and nonfinancial benefit and loan programs only and does not preclude the party from participating in any Procurement programs (unless otherwise noted). Effective August 25, 1995, maintenance of this list shall only consist of updates and deletions. No new actions are being added to this list. This list will no longer exist when the last action has been deleted. If you are not certain of a f listed party's eligibility bility ity status, it is recommended recommende ecommende that you contact the federal ou contact t con agency resp agency responsible for the exclusion (See question # exclus 22 on how to determine the debarring/excluding agency).

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TOP 9. Do I have to check all three Exclusion Types (Reciprocal, Procurement, Nonprocurement)?

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The Reciprocal, Procurement and Nonprocurement Exclusion Type programs are separate and distinct listings with separate and distinct effects. The searching capability of EPLS does not require the user to select an Exclusion Type. When the user selects an option from the Search Menu of current exclusions, the search is performed on the entire list of current exclusions in the EPLS database. When the user selects an option from the Archive Menu of archived d exclusions, the search is earch rch performed on the entire list n of archived exclus hived exclusions in ed the EPLS database. he da

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to run and/or download a report, the user will be required to identify the Exclusion Type. To determine a parties' eligibility status to participate in Federal contracts and sales (Procurement) programs, the user should select Exclusion Types Reciprocal and Procurement. To determine a parties' eligibility status to participate in Federal financial and nonfinancial benefit and loan (Nonprocurement)

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programs, the user should select Exclusion Types Reciprocal and Nonprocurement. If you are not certain of a listed party's eligibility status, it is recommended that you contact the federal agency responsible for the exclusion (See question #22 on how to determine the debarring/excluding agency). TOP 10. What is an Individual Classification? A person.

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11. What i a Firm What is Classification? C Cl A company or organization. TOP

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12. What is an Entity Classification? A person, organization, or thing capable of bearing legal rights and responsibilities. This classification is used exclusively by the Department of Treasury's Office of Foreign Assets Control (TREAS-OFAC). TOP

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13. What is a Vessel Classification? A mode of transportation capable of transport by water. This classification is used exclusively by the Department of Treasury's Office of Foreign Assets Control (TREAS-OFAC). TOP 14. What is a Primary and Cross-reference (x-ref) record type? EPLS identifies the relationship of an exclusion involving more than one individual and/or firm by y linking and tagging one ng record as the Primary listing e and the other(s) as a Crossthe other(s) reference to the Primary t listing. The federal agency listin listing determines which records to tag as Primary and Crossreference(s). A record tagged as Primary will list all parties associated with the exclusion. A record tagged as a Cross-reference will identify its association to a related Primary record.

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TOP 15. What is a Cause and Treatment (CT) Code and how do I apply it to the entry?

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The purpose of the Cause and Treatment (CT) Code is to provide users with information regarding the reason for the exclusion. The Cause provides the authority by which the action was taken and the Treatment provides information on the procedure(s) to apply to the action. Users should review the record's CT Code(s) to determine the conditions of the exclusion. If you are unable to determine the extent of the exclusion, contact the federal agency responsible for the exclusion. Checking the CT ng g Code is crucial because ial al some CT Codes only apply T Codes o d to a limited number of o agencies or provide a agenc specific narrow impact of the listing.

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TOP 16. What should a Federal debarring agency do if the EPLS does not have a suitable CT Code for the type of exclusion taken by your agency?

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If the EPLS does not currently contain a suitable CT Code for the type of exclusion taken by your agency, it is the agency's responsibility to contact GSA's EPLS Project Manager to request the addition of a new CT Code. The agency must provide GSA's EPLS Project Manager with proposed written language for both the cause and the treatment for the requested CT code. GSA will work with the requesting agency on any necessary amendments and add the CT code to EPLS. Requests should be directed to Ms. Priscilla scilla illa Owens at [phone]. 03) 03) 605-34

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17 Wha 17. What is an Action Date and Termination Date? The Action Date is the effective date of the exclusion and the Termination Date is the date the action will be removed from the current list of exclusions and placed in the Archive list. TOP 18. What is an Archive Date?

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The Archive Date is the date the record was removed from the current list of exclusions and placed in the archive list. A record can be removed from the current list of exclusion and placed in archive manually or by the termination date defined in the record's termination field. TOP 19. What is the function of Advanced Search? The purpose of the Advanced Search is to provide the user with several search options to ons s determine if a party has been excluded and listed in cluded the EPLS database. The e EPLS dat searching capabilities of the searchin Advanced Search will Ad perform a search of the entire list of current exclusions available in the EPLS database. Each option is explained below.

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Name - This option performs a search of the entire list of current exclusions in the EPLS database based on the individual or company name entered in the Name field. A Name search requires the user to select a Match by either Partial Name or Exact Name.

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A Partial Name search of an individual or company name is performed on the individual's Last Name or the first word of the company's name (other than the words "A" and "The"). An Exact Name search of an individual or company requires that the name you enter in the name field is an exact match with the name in EPLS. For instance, e, if you enter Doe, oe, e, John D., in the na name ., nam field, and the EPLS eld, and nd database has Doe, databa John David, the result is no match because of the middle name (David). Likewise, if you enter Express Computer Service in the name field, and the EPLS database has Express Computer Services, Inc., the result is no match because of the Inc. in the company name.

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Any portion of the name of an entity in EPLS. For example: 'John', 'building', or 'Smith' Action Date range - The
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date range when a debarment first becomes active. You must supply both a starting and an ending date. Termination Date range - The date range when a debarment will be terminated. You must supply both a starting and an ending date. Create Date range When the data was first entered into the EPLS. Data Universal Numbering System (DUNS) number - The number provided by Dun & y Bradstreet to uniquely o identify a business. It is fy busines sines important to note that all important t EPLS records identified as EPLS r "Firms" may not provide a DUNS number. Therefore, the user should also perform a Name search to ascertain that the concerned Firm is not listed in the EPLS.

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Exclusion Type - What type of exclusion is associated with the entity. Each CT code is associated with an Exclusion Type and a single code may be associated with several Exclusion Types. Consequently, CT codes may be selected for each of the available Exclusion
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Types. If one or more Exclusion Types are selected, all selected CT codes must correspond to the selected Exclusion Types. For example, it is incorrect to select an Exclusion Type of Procurement and a CT code from the Reciprocal list. Cause and Treatment (CT) Code - The reason why the entity has been debarred. Agency - The agency that imposed the debarment. US State - The US state e where the entity is located. s ocated. Country - The country The cou where the entity is located. here en

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Ca An identifier y G ge Code -specific to one b that may be or more US federal government agencies. More than one advanced search criterion may be selected, but they do not all need to be selected to perform a search. In fact, many searches will not return any results if more than two criteria are selected, as each one will reduce the number of returned search results. Exact Name and SSN/ TIN - Searches the entire

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list of current exclusions for an action that matches both the Exact Name and Social Security Number (SSN)/ Taxpayer Identification Number (TIN) that you enter in the Exact Name and SSN/TIN fields. If the system does not retrieve a match for your search criteria, this does not necessarily suggest that the individual is not listed in the EPLS database. The results of a no match may be due to: (1) the Name and SSN/ TIN that you entered may not have resulted in an Exact Name and SSN/TIN match with a record in dn EPLS, (2) the Name that e you entered may not have tered may n red resulted in a Exact Name sulted an match with a record in EPLS match w or (3) the Name may be o listed, however, the SSN/ TIN may not have been provided with the record information to result a match.

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It is recommended that you try your search again by selecting the Name option listed at the Search Menu. For best results, try performing a Partial Name search on the individual's last name or the first word (other than the words "A" and "The") of the company's name.

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TOP 20. What is the function of Advanced Reports? The purpose of the Advanced Reports is to allow users to select and define multiple search criteria to meet user needs. See #15 for an explanation of each option. TOP 21. What is the function of Advanced Archive? The Archive Menu is a historical list of past exclusions. The purpose of the Archive Menu is to allow o users to review a past ew exclusion to (1) determine to: on to (1) de if an individu or company an individual has ev ever has eve been excluded, (2) verify that a previous ve exclusion has been terminated and (3) to determine when a record was deleted from the current list of exclusions. The Archive Menu can serve many purposes depending on the user's need.

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TOP 22. If an individual or firm appears in the archive list, may I make an award to the individual or firm?

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The archive is for historical reference only. It should not be used to deny an eligible individual or firm from participating in federal contracts or federally approved subcontracts and other types of federal financial and nonfinancial assistance and benefit type programs. TOP 23. How do I find out about an individual or firm that was convicted or plead guilty but is not on EPLS? If you have information tion on about an indictment and/ ctment and ment and/or convictions of an individual ns of ind or firm that conducts rm c business with a Federal business Government agency, and Go the party is not listed on EPLS, you may provide such information to the appropriate federal agency point of contact.Agency points of contacts names and telephone numbers are available by clicking on the " Agency Contacts" link under the category labeled "Agency and Acronym Info."

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TOP

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24. How do I obtain information on an exclusion that has been removed from the list of current exclusions? Past exclusions can be obtained by performing an Archive Search. See comment at #17. TOP 25. How do I confirm or obtain more information on a listed individual or firm? If a match is found and further verification is needed beyond what the record information n provides, users should ers ers contact the federal agency act fede that took the action against that t the listed party. Agency the li l points of contacts names and telephone numbers are available by clicking on the " Agency Contacts" link under the category labeled "Agency and Acronym Info."

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TOP 26. How do I determine the federal agency responsible for the exclusion?

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To determine the federal agency, users should refer to the "Agency" field provided in the record information. This field contains the federal agency's acronym and identifies the federal agency to contact for additional information. See #22 for information on agency points of contacts. TOP 27. How do I contact the federal agency responsible for the exclusion?

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A list of agency points of nts s contact is available at the able able th EPLS main page by clicking ain page age on the " Agency Contacts" the link. Select the S Se corresponding acronym or scroll the list to locate the federal agency's point of contact name and telephone number. Some agencies may provide their website address as a point of reference. Presently, EPLS does not provide hyperlinks to these sites but you may copy the uniform resource locator (URL) or internet address and access the agency website by pasting the internet address into your internet browser window.

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TOP

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28. What is SDN? As part of its enforcement efforts, the U.S. Department the Treasury, Office of Foreign Assets Control (OFAC) publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not countryspecific. Collectively, such individuals and companies are called "Specially Designated Nationals" or ationals" tionals" "SDN." Their assets are heir blocked and U persons U.S. ocked ked are generally prohibited are gene from dealing with them. To fro access the SDN list, please visit www.treas.gov/ofac and click on the link for the SDN list under the OFAC mission statement.

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TOP 29. What do I do if I have a match to the SDN list?

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If you have checked a name manually or by using software and find a match, you should do a little more research. Is it an exact name match or very close? Is your customer located in the same general area as the SDN? If not, it may be a "false hit." If there are many similarities, contact the Office of Foreign Assets Control's (OFAC) "Hotline" at 1-800-540-6322 for verification. Unless a transaction involves an exact match, it is recommended that you contact OFAC Compliance nce office before actually ally ly blocking assets. ets.

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30 Wha 30. What is the Control list? Who do I call about the Control list? What is the difference between the Control list and OFAC's SDN list? The Control List was developed by the law enforcement community in response to the events of September 11. It is separate from the OFAC's SDN list and is not disseminated by OFAC. If you have received a copy of this list, you should follow the instructions received with it.

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TOP 31. What is a Denied Persons List? The purpose of 'The Denied Persons List' is to prevent the illegal export of dualuse items before they occur; investigate and assist in the prosecution of violators of the Export Administration Regulations (EAR) and the Fastener Quality Act (FQA); and inform and educate exporters, freight forwarders, and manufacturers of their enforcement responsibilities bilities ties under the EAR and FQA. nd The list is created by U.S. eated eated U Bureau of Indust and au of Industry dust Security Security as part of BIS's Export Expo Enforcement (EE) program. You may access the U.S. Department of Commerce, Bureau of Industry and Security's Denied Persons List at www. bis.doc.gov. Click on the Lists to Check link located to the left of the screen.

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TOP 32. What is an Entity List?

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Excluded Parties List System

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The Entity List contains a list of foreign end users involved in proliferation activities and informs the public of export license requirements related to these entities. The listing is based on the Enhanced Proliferation Control Initiative (EPCI), which has been implemented in the Export Administration Regulations, and has been created by the U.S. Department of Commerce, Bureau of Industry and Security. While this list will assist exporters in determining whether an entity poses proliferation feration ration concerns, it is not s comprehensive. It does not rehensive. I hens ve relieve exporters of the relieve expo responsibility to determine respo the nature and activities of their potential customers. You may access the U.S. Department of Commerce, Bureau of Industry and Security's Entity List at www. bis.doc.gov. Click on the Lists to Check link located to the left of the screen.

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TOP 33. What browsers does EPLS Support? EPLS supports the latest versions of both Internet Explorer and Netscape/ Mozilla/Firefox.

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Excluded Parties List System

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