Don’t Light Up Those Cubans Just Yet

Posted by at 8:35 pm on December 17, 2014
Category: Cuba Sanctions

Obama Announces Changes in Cuba Regulations from White House Youtube account [Public Domain]President Obama today announced his intention to make some changes in U.S. sanctions on Cuba. Although these changes fall far short of lifting the embargo completely, the usual suspects on the Hill have already started the wailing and gnashing of teeth, vowing to do whatever they can to thwart these changes, convinced that forcing Cubans to drive 60-year-old cars will cause them, sooner or later, to rise up and throw out the current regime.

The changes, as described in this White House fact sheet, however, hardly seem to justify the fit that Marco Rubio is pitching right now.

  • Remittance levels will raised from $500 to $2000 and the remittance forwarders no longer will require a license to forward money to Cuba
  • Exports of “building materials for private residential construction, goods for use by private sector Cuban entrepreneurs, and agricultural equipment” will be permitted
  • General licenses will be issued for travelers in the 12 current categories of authorized travel (which do not include going to Cuba for the fun of it or for the daiquiris)
  • Travelers can come back with $400 in goods, of which only $100 can be alcohol or tobacco products
  • Banks can open correspondent accounts in Cuban financial institutions to facilitate authorized transactions
  • The rules will be revised to make clear that sales of cash against documents of title (e.g., bills of lading) are permitted for authorized exports and to remove the old rule that cash had to be paid prior to the shipment of the goods.

The question posed by all the noise from Congress is, of course, how far can the President go on his own?  For example, the fact sheet states that the U.S. will permit foreign vessels that enter Cuban ports to engage in humanitarian trade may immediately thereafter enter U.S. ports.  However, section 6005(b) of the Cuba Democracy Act states that vessels that enter into Cuban ports to engage in “trade in goods or services” may not enter a U.S. port for 180 days without a license.  Apparently, the change in vessel policy appears to depend on the argument that vessels that enter Cuban ports for humanitarian trade are not involved in the trade of goods or services.

Of course, the 800-pound gorilla here is section 204 of the Helms-Burton Act which purports to prohibit the President from suspending the economic embargo on Cuba unless a “transitional government” is in place in Cuba.  The Act, however, never defines what constitutes suspending the embargo.  So, in theory, the President can remain in compliance with section 204 if he lifts all restrictions on Cuba other than a ban on exporting Chia Pets and Whoopee Cushions to Cuba.

Needless to say, the ink on the fact sheet was scarcely dry before OFAC released a statement that none of these changes will be effective until OFAC revises its regulations to implement these changes.  No indication was given as to how long this would take, other than that it would occur in the “coming weeks.” But given the agency’s often sluggish pace, the “coming weeks” might be quite far off.  Don’t expect any Cohibas under your Christmas tree this year.

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The Shoot Blanks, Don’t They?

Posted by at 8:39 pm on December 16, 2014
Category: DDTC

Mockingjay Part 1 Publicity Still via [Fair Use]In case you were wondering, rifles that shoot blanks are still rifles and are covered by Category I of the United States Munitions List.  So, film producers shooting at foreign locations may need to get from the State Department’s Directorate of Defense Trade Controls licenses to export these movie props to the foreign location.  Apparently, the producers of the Hunger Games, which exported Herstal P90s and F2000s to France and Germany, got tangled up in U.S. export laws and made things unnecessarily difficult for themselves.

According to the Hollywood Reporter:

Due to the U.S. legal restrictions, the guns couldn’t be sent off to Europe and then hop from country to country, causing complications for the multi-national shoot. “We can’t take the firearms and ship them out to France, and then go from France to Germany with them,” says Weschta. “We could do it, but they would have to come back here [to the U.S.] first and then go back out anyway.”

Ultimately, two discrete batches were sent — one to France, and one to Germany. … “The guns from ISS had to go back to the United States because of the temporary export license that was for France only,” [a prop handler for the film] says.

Of course, there is no reason why a temporary export license (DSP-73) can’t cover multiple destinations. The instructions for the DSP-73 application state:

Requests for temporary export of hardware may be submitted for more than one foreign destination. However, when the country(s) of ultimate destination are geographically dispersed, the applicant should submit a separate application for each major geographical region (e.g. Africa, East Asia, Europe, etc.).

Interestingly, the instructions for a DSP-73 application also include a requirement that applications for temporary exports of firearms for use in motion pictures provide “the details of the security arrangements in the foreign country.” Obviously DDTC is apparently used to handling request to export guns to shoot blanks on foreign movie sets.

If the Hunger Games team just obtained a DSP-73 for France, that was their own fault. Perhaps that is what comes from having unpaid interns fill out the license applications.

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Expressio Unius Est Exclusio Alterius: E Pluribus (License Conditions) Unum

Posted by at 9:33 pm on December 10, 2014
Category: BIS

By Daderot (Own work) [CC0], via Wikimedia Commons Bureau of Industry and Security has announced that, starting on December 8, a new license condition will appear on all validated licenses. That condition reads as follows:

Unless limited by a condition set forth below, the export, reexport or transfer (in-country) authorized by this license is for the item(s), end-use(s), and parties described in the license application and any letters of explanation. The applicant is responsible for informing the other parties identified on the license, such as ultimate consignees and end-users, of the license’s scope and of the specific conditions applicable to them. BIS has granted this license in reliance on representations the applicant made in the license application, letters of explanation, and other documents submitted.

The laudable purpose here is to get rid of the silly license conditions that simply reiterate existing requirements of the Export Administration Regulations, such as Part 744′s prohibition on nuclear end uses. BIS is concerned about possibility that the existence of, say, the no nuclear use condition will give someone the idea that it is okay to allow the exported item to be used in the production of chemical weapons in violation of section 744.4 of the EAR. Expressio unius and all that.

But I wonder, and the BIS announcement does not say, whether the language quoted above will replace the following condition that is included, in one form or another, on all licenses:

No resale, transfer, or reexport of the items listed on this license is authorized without prior authorization by the U.S. Government.

The issue here is an odd lacuna in the EAR. If you look through the General Prohibitions, there is no explicit prohibition against in-country transfers of items exported under license. The prohibitions on certain exports and re-exports do not, by definition, reach in-country transfers. Rather the General Prohibitions only address in-country transfers in connection with denial orders (General Prohibition 4) and illegally exported items (General Prohibition 10). Instead, the way that in-country transfers are prohibited is through General Prohibition 9, which prohibits violation of any license condition, such as the one quoted above, which makes clear that no in-country transfer can occur with U.S. Government approval.

The new license condition is worded in such a way that it seems possible that it will replace the standard condition prohibiting resale, transfer or re-export without government approval. But if it does, BIS will have unintentionally opened the door to unlicensed in-country transfer of items exported under license.

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New Indictment Issued in Halal Export Case

Posted by at 11:34 pm on December 9, 2014
Category: Agricultural ExportsCriminal Penalties

Midamar Halal Pizza via [Fair Use]The Feds have stepped up their game in the Midamar prosecution, initially discussed here, by indicting more defendants and providing more detail in the new indictment as to the nature of the alleged activities. The initial indictment charged William Aossey Jr. with falsely stating on export certificates that meat had been slaughtered in a Halal-certified slaughterhouse.

The new indictment adds Mr. Aossey’s sons and Midamar itself. Based on comments we received from Midamar to our original post, it appeared that a central part of Midamar’s argument was that even if the meat was not slaughtered in Halal-certified slaughterhouses, the meat was still Halal meat as represented by the company.

The facts set forth in the new indictment seem to be directly aimed at this argument, going into the specific ways in which the slaughtered meat did not comport with the Halal standards that Midamar detailed on its own website. The non-Halal practices detailed in the indictment included: (a) the use of penetrative stun guns to kill animals, (b) the slaughter of cattle by slaughtermen that were not Muslim, and (c) the slaughter of cattle without the recitation of the requisite prayers. These non-Halal practices rendered false, according to the Government’s theory, the statements on export certificates that the meat complied with the requirements of the importing countries, all of which required that such meat be Halal.

In addition to my discomfort with the prosecutor’s delving so deeply into the religious matter of what is and isn’t Halal slaughter, it seems that there is little evidence that the defendants knew that the slaughterhouses were not always complying with the letter of Muslim religious practice. The only evidence in this regard mentioned in the indictment is the relabeling of meat by Midamar employees to indicate that the meat in question came from a slaughterhouse other than the one from which the meat actually came. Above and beyond that, you have to wonder why the U.S. government is expending such considerable resources to prosecute a case which ultimately deals with whether cows were slaughtered by Muslims while reciting specified ritual prayers.

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Some Clouds Do Have Silver Linings (or Not)

Posted by at 9:15 pm on December 4, 2014
Category: BIS

Lonely Cloud by Kate Haskell CC BY 2.0 [] (cropped)In an advisory opinion dated November 13, 2014, the Bureau of Industry and Security (“BIS”) rode once again into the cloud computing breach to confront the tricky metaphysical question of when software that lives in the cloud is exported.  At issue is this: when a foreign user accesses a U.S. server running a software application, say Adobe Photoshop, has the software for the application been exported to the  foreign user? In such a scenario, the foreign user will be using the software in exactly the same fashion as if it had been download and installed on his local hard drive, with the only difference being a slight lag if his Internet connection is poor.

The BIS advisory opinion takes what might be called, in philosophical terms, a positivist approach to this question:

Instead of downloading the software and processing data locally the foreign user of a U.S. server sends its data to the cloud for processing, and causes its processed data to be transmitted back to it. Although there may be export of technology in this context, there is no export of software.

So the silver lining here, for cloud companies, is this literalist view of software exports. Software is exported when a physical disk with the software or an electrical impulse representing the code crosses a border. Just because someone uses the software remotely it has not been exported.

Now for the “Or Not” in the headline. Although BIS’s literalist approach to the download of software has a certain appeal, and is likely to be welcomed by cloud providers, there is something that the advisory opinion does not say. And this is where we can see the utter insanity of having export control scattered over competing agencies each trying to establish their own primacy in the export control domain. The advisory opinion says nothing about the rules of the Office of Foreign Assets Control (“OFAC”) which, in more than a few instances, might be implicated by the cloud scenario described above. Suppose the foreign user is in, say, Iran. Although the U.S. cloud provider might not be exporting software to Iran, at least the way BIS sees it, it certainly will be exporting a service to Iran in violation of OFAC rules.

Faithful readers of this blog will likely recognize this issue, but others reading the BIS opinion might conclude that, because there is no export of the software to Iran, it is completely legal to make the program available to Iranians from a U.S. based cloud. Until all export control is moved under the control of one agency, this kind of nonsensical trap will continue to snare innocent people and businesses for no good reason.

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