Jun

28

ZTE Gets Last Minute Reprieve (Sort Of)


Posted by at 10:33 pm on June 28, 2016
Category: BISChinaEntity ListIran Sanctions

ZTE Stand 6 via http://www.zte.com.cn/cn/events/ces2013/show/201301/t20130110_381605.html [Fair Use]The Bureau of Industry and Security today announced that it was extending the Temporary General License which permitted exports to ZTE from June 30 all the way to August 30. ZTE, as this blog reported here, was placed on the Entity List because of elaborate shenanigans by the company by which it bought U.S. goods and resold them to Iran.

Two weeks after bringing the ban hammer down on ZTE, BIS issued a temporary general license which covered March 24 to June 30, more than three months. The new temporary license expires on August 30, one day short of two months from June 30. Why this temporary license is shorter than the previous one was not disclosed but one can only suspect that ZTE may not be minding its manners in the way that BIS would like to see.

The problem for U.S. exporters is that such a short license, with the real possibility, given its shortened length, that it may not be renewed beyond August 30, opens up the possibility that the exporter will sell items to ZTE that it may not later be able to service even though the warranty on those items is still in force. If the temporary general license is not renewed and ZTE stays on the list, the ability of the U.S. exporter to send replacement parts to ZTE or, alternatively, to repair the item in the United States and return it to ZTE will be in question. It would not surprise me if the temporary general license does not get much use.

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Jun

24

A Brief Brexplanation of Brexit and Brexport


Posted by at 11:37 am on June 24, 2016
Category: BrexitEconomic SanctionsEUOFAC

Boatleave-12 by Gary Knight [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/J5K8dc [cropped]

Although Brexit is unlikely to be in effect for almost two years or more, there are some questions as to what impact Brexit might have on British export controls and economic sanctions.  Any prediction here is risky beyond my speculation that the UK will be unlikely to alienate the U.S. and other allies by significantly altering its export and sanctions regimes.

At this point, and in the wake of the vote last night, you may find it useful to understand the legal background under which Brexit will affect U.K. export controls and sanctions.   Given that all your Facebook friends have suddenly become experts on Brexit (soon to be known as Brexperts), you can now impress them as a Brexport Brexpert.

Let’s start with the Wassenaar Arrangement.  The European Union is not a party to the Wassenaar Arrangement.  Rather all member states of the E.U. (other than Cyprus) are individual members of the Wassenaar Arrangement.   Accordingly, Brexit will have absolutely no impact on Britain’s obligations under Wassenaar.   The Wassenaar Agreement is the source, via Council Regulation (EC) No 428/2009 (and associated legal amendments) of the UK Control Lists.  Although the intermediate authority for the lists will go away on Brexit, no alteration in those control lists will occur by virtue of Brexit alone.

This brings us to Council Regulation (EC) No. 428/2009, which establishes the E.U. framework for export controls. Here it is important to understand that the regulation did not create a centralized EU export control regime. Rather it left principal authority with Member States to implement their own control regimes in accord with principles set forth in the regulation. Britain’s Export Control Order of 2008 implements 428/2009 and related EU authorities. Although it will become untethered from 428/2009 on Brexit, there is no reason that it should not remain in place post-Brexit.

The situation with sanctions is somewhat more complicated and depends on the particular EU sanction. The JCPOA, which lifted many international sanctions on Iran, for example, will not be affected because the U.K. is an independent signatory to the JCPOA.  Other E.U. sanctions, such as the Russia/Ukraine sanctions, have direct legal effect in the U.K., although it is up to the member state to establish and enforce penalties. In these instances, there is no independent legal authority in the U.K. for that sanction, and its status after Brexit becomes uncertain. It is, of course, likely that Britain will not seek to alienate its allies by walking away from these sanctions, but it will have to enact domestic legislation to implement them before or after Brexit.

Photo Credit: Boatleave-12 by Gary Knight [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/J5K8dc [cropped]. Copyright 2016 Gary Knight

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Jun

23

Delay in Filing Voluntary Disclosure Costs Company $100k


Posted by at 9:00 am on June 23, 2016
Category: Criminal PenaltiesDDTCVoluntary Disclosures

Microwave Engineering CorporationFour years ago, this blog last reported on Microwave Equipment Corporation (“MEC”) in North Andover, Massachusetts, when its President, Rudolf Cheung, pleaded guilty to exporting a military antenna to Singapore without a license. MEC is back in the spotlight again having just agreed to pay the Directorate of Defense Trade Controls (“DDTC”) $100,000 in connection with MEC’s unlicensed provision of ITAR-controlled technical data to a Chinese national employee without a license. According to the Proposed Charging Letter, Cheung “repeatedly provided Employee with ITAR-controlled … technical data … between December 2009 and June 2010 … in relation to five discrete research and manufacturing projects.”

The charging letter specifically noted MEC’s “exceptional cooperation” during the investigation, but still decided to whack the company with a large fine, citing the fact that the employee was Chinese and, apparently more significantly, the delay by MEC in filing the voluntary disclosure after discovering the violation:

Respondent’s Export Compliance Officer became aware that specific projects were being discussed with Employee in or around May 2010, and took steps to limit such conversations. Respondent did not, however, submit a disclosure to DDTC reporting the unauthorized transfer of ITAR-controlled information to Employee until January 20, 2012. The disclosure was submitted by the company on the same day that Dr. Cheung pleaded guilty to an unrelated criminal violation of the AECA.

This seems harsh, to say the least. It is obviously not a coincidence that the voluntary disclosure was not filed until Cheung, the president of the company, pleaded guilty to his own export charges. Clearly, Cheung, no doubt for his own reasons, was blocking the disclosure, and it seems unfair to penalize those left behind for these additional violations by Cheung because he delayed their disclosure. Still, this underlines the conventional wisdom that voluntary disclosures should be filed promptly after the discovery of the violation.

As an interesting footnote, Cheung has still not been sentenced, almost four years after his guilty plea. A sentencing hearing was scheduled for April 24, 2015, but it did not take place. Since that time, various deadlines and hearings were reset by the court. The last docket entry is a call for a joint status report which was due to be filed on January 29, 2016, but appears to have never been filed.

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Jun

22

DDTC Solicits Public Comment on New Application System Sight Unseen


Posted by at 8:03 am on June 22, 2016
Category: DDTC

Cockers for the Nationals by Clif Burns [All Rights Reserved], via Flickr https://flic.kr/p/F2FiEi

So, I’ve decided to give you the contents of this box over here. Of course, the deal is you must keep the contents whatever they are. So, please tell me what you think about what’s in the box and whether you will like whatever it is. Nope, no peeking. You tell me whether you like what’s in the box and then I’ll give it to you. That way if the box contains an 80-foot Burmese python, you can’t say I didn’t give you a chance to object before saddling you with your new pet.

On Monday, the Directorate of Defense Trade Controls did just that when it announced that it is overhauling its export licensing system. No more DSP-5s. No more DSP-83s. Instead, according to the agency

licensing operations will move from the current, largely form-based submissions to an intuitive system which will allow both industry users and DDTC staff to smoothly and securely navigate the submission and review process.

DDTC is giving the public 60-days to comment on this new system. No details on the system have been provided beyond what’s quoted above. So the box that DDTC is proposing to drop on your doorstep may have a cute puppy inside. Or maybe a hungry python. So, speak up now. Tell us what you think!

Of course, if DDTC revises the utterly ridiculous mess surrounding agreement submissions (where, among other things the transmittal letter is longer than the agreement and where the submission process is described in a constantly changing 223-page document that rivals War and Peace for prolixity and Finnegan’s Wake for obscurity) there will be general rejoicing all around. But there isn’t a scintilla of a suggestion in the notice that this monstrosity is going away.

So, which will it be? Puppy or python?

Photo Credit: Cockers for the Nationals by Clif Burns [All Rights Reserved], via Flickr https://flic.kr/p/F2FiEi. Copyright 2016 Clif Burns

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Jun

21

Package Forwarder Coughs Up $60K For Export Violations


Posted by at 10:18 pm on June 21, 2016
Category: BISChina

Fulfill Your Packages HQ via Google Maps https://goo.gl/maps/gJ8z3G3j2gm [Fair Use]
ABOVE: Fulfill Your Packages HQ

The Bureau of Industry and Security (“BIS”) issued settlement documents last week indicating that a California company called Fulfill Your Packages agreed to pay a $250,000 fine, of which $190,000 was suspended if the company behaves itself for the next two years and commits no further export violations. At least from the facts recited by BIS, it’s a very odd case.

Fulfill Your Packages is apparently a company that agrees to serve as a local address for Chinese companies. Those companies order products from U.S. companies which Fulfill Your Packages dutiful re-packages and ships to China. Frankly, a better name for the company might be Ginormous Export Red Flag, Inc., but I suppose Fulfill Your Packages sounds better.

The violation arose from an unnamed Chinese company ordering an export controlled FLIR thermal imaging camera from an unnamed U.S. company which then shipped the camera to Fulfill Your Packages’ address in Portland, Oregon. The Google Street View of that address reveals a large warehouse. Google itself further reveals that the address is used by several logistics companies and, oddly, a liquor store.

When Fulfill Your Packages received the package, it dutifully repackaged the FLIR system and arranged for the USPS to pick up the package. For reasons that aren’t clear, Fulfill Your Packages described the item on shipping documents as “metal parts” even though its own order system described the item as an “infrared webcam/surveillance installation kit.” It also stated the value as $255 even though the distributor’s invoice for the camera received with the package listed the value at $2,617. It’s not clear at all why the company, for the small fee it was receiving, would falsify the export documents. It didn’t really have a dog in the race. Of course, it could be simple incompetence. Or perhaps it was some conspiracy with the Chinese purchaser for a large sum. There’s no way to tell.

But what about the distributor that shipped a FLIR system to a warehouse in Oregon for a Chinese customer? Don’t they bear some responsibility here? They didn’t ignore red flags, they ignored red banners the size of a skyscraper. Or maybe not. The BIS documents suggest that BIS thwarted the shipment before the USPS arrived to pick up the package. What likely happened here is that the distributor did do its job, did consult the all-knowing wizard of Google while evaluating the order, smelled a rat and called BIS.

The lesson here is that the Internet is your friend and that orders for export controlled items should not be fulfilled without doing the research that is now, literally, at your fingertips.

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Copyright © 2016 Clif Burns. All Rights Reserved.
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