Author Archive



Proposed CFIUS Legislation: Good News for Cattle Prod Makers, Bad News for Cows

Posted by at 3:09 pm on November 17, 2017

Cow by Kabsik Park [CC-BY-SA-2.0 (], via Flickr [cropped]On November 8, 2017, the House and Senate introduced the Foreign Investment Risk Review Modernization Act of 2017 (FIRRMA) proposing the first amendments to the CFIUS process since the Foreign Investment and National Security Act was passed in 2007. Although the bill has bi-partisan support and a good chance of passage, there are no guaranties on anything these days where Congress is concerned.

Of interest to export geeks is the proposed new definition of critical technologies to be considered by CFIUS during the review process. Section 3(a)(8) of the proposed legislation defines critical technologies to include:

(i) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations.

(ii) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled—

(I) pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

(II) for reasons relating to regional stability or surreptitious listening.

What that means is that items controlled solely for Crime Control or AT reasons won’t be critical technologies and that CFIUS will not get worked up if a Chinese company seeks to buy the Cowpoke Cattle Prod (ECCN 0A985) Company in Wyoming. Nor should it care much if a foreign purchaser makes a bid for Missouri-based Ferguson Sjamboks and Tonfas (ECCN 0A9678) R US, Inc.

It is, of course, unlikely that CFIUS would have, either before or after any potential passage of the proposed legislation, considered the fact that the target made cattle prods (or tonfas) even though it has routinely examined transactions where other export-controlled goods were involved. But the proposed legislation, if it becomes law, would provide a statutory basis for CFIUS to ignore issues arising from the U.S. business producing AT- or CC-controlled items.

Photo Credit: Cow by Kabsik Park [CC-BY-SA-2.0 (], via Flickr [cropped]. Copyright 2004 Kabsik Park

Permalink Comments (0)

Bookmark and Share

Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)



When You Might Not Be Libre To Drink a Cuba Libre in Cuba

Posted by at 6:02 pm on November 9, 2017
Category: Cuba SanctionsOFAC

Tropi Cola by Markus L [CC-BY-NC-2.0 (], via Flickr [cropped and processed]One of the things that pops out from the State Department’s Naughty List of Cuban businesses is all the beverage companies on it, which seems odd. I mean, honestly, how much can American tourists spend on TropiCola? How much of that will wind up in the pockets of Cuban spies and the Cuban military? Is the Cuban military going to crumble when it can’t sell TropiCola to American tourists?

On the list are Najita (orange soda), Cachito (sparkling lemonade), TropiCola, and rum producers Ron Caney and Ron Varadero. Havana Club Rum, the gold standard of Cuban rum, is, inexplicably, not on the Naughty List.

The relevant regulation here is the new section 515.209 of the Cuban Assets Control Regulations (“CACR”) which forbids “direct financial transactions” with any entity on the Naughty List. But don’t pin your hopes on the word “direct” because we’re talking OFAC here and we’re in the Upside Down where direct actually means indirect. When you buy TropiCola from a street vendor, that’s a direct transaction in the Upside Down where OFAC lives and an indirect transaction in the normal world.

For purposes of this prohibition, a person engages in a direct financial transaction by acting as the originator on a transfer of funds whose ultimate beneficiary is an entity or subentity on the State Department’s List of Restricted Entities and Subentities Associated with Cuba (“Cuba Restricted List”) … , including a transaction by wire transfer, credit card, check, or payment of cash.

So, when you give cash to bar in Havana to purchase a Cuba Libre made with Caney Rum and TropiCola, the ultimate beneficiaries are, arguably, TropiCola and Ron Caney. Perhaps an argument could be made that since both companies have already been paid, they aren’t the ultimate beneficiary of your payment to the bar. But, if section 515.209 of the CACR only applies when you buy Tropicola or Caney Rum directly from the bottler, why include them on the Naughty List? What U.S. tourist will ever deal directly with the bottler?

And since we made a trip to the Upside Down, I am compelled to add one thing: #JusticeForBob (spoiler alert!).

Photo Credit: Tropi Cola by Markus L [CC-BY-NC-2.0 (], via Flickr [cropped and processed]. Copyright 2010 Markus L

Permalink Comments Off on When You Might Not Be Libre To Drink a Cuba Libre in Cuba

Bookmark and Share

Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)



To Have and Have Not People-to-People Trips to Cuba

Posted by at 11:02 pm on November 8, 2017
Category: Cuba SanctionsOFAC

El Floridita by Miss Bono [CC-BY-SA-3.0 (], via [cropped]The Office of Foreign Assets Control (“OFAC”) today announced the long-awaited (or, perhaps more accurately, long-feared) amendments to the Cuban Assets Control Regulations designed to limit travel by U.S. persons to Cuba. (U.S. persons remain free to travel without restriction to the China, Russia, the Philippines, Saudi Arabia, Burma, Zimbabwe and other countries run by dictators that systematically and egregiously violate human rights, but that’s another story.)

The changes are pretty much what had been anticipated. Financial transactions with listed companies in the Cuban military, intelligence, or security services sector are forbidden, meaning that many hotels and shops in Cuba will be off-limits to U.S. travelers. The full State Department list can be found here.  The rules leave the non-travel liberalizations that occurred during the last administration pretty much in place.

Interestingly, it appears that El Floridita, the legendary daiquiri factory and Hemingway haunt in Old Havana, was spared, even though it is almost certainly owned by GAESA, the military conglomerate with tentacles throughout the Cuban economy and the target of the new restrictions. So, for the moment at least, any American who makes it to Cuba won’t go to jail for stepping inside El Floridita.

And, of course, the biggest loophole that allowed U.S. travel to Cuba – self-guided “people-to-people” tours – was closed up. Or maybe not.

The general license for people-to-people tours is still available but the travel must be conducted under the auspices of an organization. Section 515.565(b) now states that people-to-people travel is authorized provided that it occurs “under the auspices of an organization that is a person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact.” Additionally, the rule now requires that an “employee, paid consultant, agent, or other representative of the sponsoring organization accompanies each group traveling to Cuba.” This employee must “ensure that each traveler has a full-time schedule of educational exchange activities.”

Do you see where I’m going on here? I mean let’s say that you and several other U.S. friends want to go to Cuba. What would prevent you from, say, forming a non-profit in your home state with a charter saying that the non-profit’s purpose is to promote people-to-people travel to Cuba? And then draft an employment agreement between one of the friends and the new non-profit? Then, off you go, to sip daiquiris at El Floridita as long as you don’t stay in Hotel Ambos Mundos (where Hemingway finished Death in the Afternoon and started To Have and Have Not).

Certainly, you must be thinking, there must be something to prohibit this. But no, there is not. The new FAQ 16 addresses the question “[w]hat is an “organization” in the people–to-people context?” It simply repeats the definition that such an organization is subject to U.S. jurisdiction and sponsors exchanges promoting people-to-people contact. FAQ 16 also makes clear that you can’t even have your home-brew non-profit apply for an OFAC license just to make sure you’re okay.

To the extent proposed travel falls within the scope of an existing general license, including group people-to-people educational travel, organizations subject to U.S. jurisdiction may proceed with sponsoring such travel without applying to OFAC for a specific license. It is OFAC’s policy not to grant applications for a specific license authorizing transactions where a general license is available

Because the rules say that this organization sponsors “exchanges,” you’re going to have to make two trips, I suppose, but beyond that it certainly seems to me that enterprising travelers can still do people-to-people tours without having to pay a million dollars to the Smithsonian to go on one of their tours and get trapped on a tour bus with Bob and Ethel Plimsdale.

¡Buen viaje!

Photo Credit: El Floridita by Miss Bono [CC-BY-SA-3.0 (], via [cropped]. Copyright 2013 Miss Bono

Permalink Comments (1)

Bookmark and Share

Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)



OFAC and Zimbabwe Bank Negotiating over Penalties

Posted by at 6:17 pm on October 30, 2017
Category: OFACZimbabwe Sanctions

CBZ Bank via [Fair Use]African media is reporting that the Office of Foreign Assets Control (“OFAC”) and CBZ Bank are in the process of negotiating over a jaw-dropping proposed penalty.  The penalty negotiations arise from CBZ’s allegedly having cleared U.S. dollar transactions for ZB Bank, a bank in Zimbabwe that appears on OFAC’s List of Specially Designated Nationals and Blocked Persons.

The charges by OFAC involve 15,127 violations, which led OFAC to write this in its initial penalty notice sent to CBZ in March:

Accordingly, the base penalty for the apparent violations equals the applicable schedule amount for each apparent violation, capped at US$250 000 per apparent violation, which in this case totals US$3,856,505,460.

The math here is a little whacked out for some reason since 15,127 times $250,000 is $3,781,750,000.  But what’s several hundred thousand dollars, more or less, when you’re talking Dr. Evil sized billion dollar amounts?  According to the press accounts, OFAC has already been bargained down to $385 million.  Of course, that is still a good chunk of the banks current total assets of $2.1 billion.

The transactions involved were allegedly all denominated in U.S. dollars.  Even so, the bank is trying to argue with OFAC that the transactions were “in-country” and therefore not subject to U.S. sanctions.  It’s not quite clear whether this is an argument that only transactions by CBZ with SDNs not in Zimbabwe may be sanctioned, an argument not likely to get much traction.  Or, alternatively whether this is an argument that no correspondent accounts in New York were used to clear the transactions, something that might have been possible for a few small transactions but not very likely for all 15,127 violations.

The better argument here, it seems, is that a $385 million dollar penalty against a bank with $2 billion in assets could cause a run on the bank and could harm ordinary people in Zimbabwe with accounts at the bank.  That, of course, assumes that the U.S. government cares about ordinary people in Zimbabwe.



Permalink Comments Off on OFAC and Zimbabwe Bank Negotiating over Penalties

Bookmark and Share

Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)



The Dog Ate The White House’s Section 231 Guidance

Posted by at 12:48 pm on October 28, 2017
Category: OFACRussia DesignationsRussia SanctionsState Department

Vladimir Putin via [Fair Use]Because Congress was not convinced that the Trump administration would respond to Russia’s various shenanigans in Ukraine and in the U.S. elections, it passed, on August 2, 2017, the Countering America’s Adversaries Through Sanctions Act (“CAATS Act”). Section 231 of the CAATS Act targets U.S. and foreign persons that engage in a “significant transaction with a person that is part of, or operates for or on behalf of, the defense or intelligence sectors of the Government of the Russian Federation.” Under that section, the President must impose at least five of the laundry list of twelve possible (and familiar) sanctions described in section 235, including denial of export privileges, asset blocking, government procurement bans, visa and travel bans and prohibition of lending to, or investment in, the sanctioned entity. That section also permits these sanctions to be imposed not just on a corporate entity but also on its principal officers.

One immediate and obvious issue is the ban on dealing with persons acting on behalf of Russian intelligence. You don’t have to be an avid fan of “The Americans” or John le Carré to know that spooks don’t ever advertise that they are spooks. Kaspersky Labs, which may or may not be acting on behalf of the FSB, vigorously denies that it has had anything whatsoever, now or in the past, with the FSB, which, of course, is to be expected and is not in and of itself convincing proof that they are just a little anti-virus company in Moscow. So section 231(d) required the President to issue, by October 1, 2017, “regulations or other guidance to specify the persons that are part of, or operate for or on behalf of, the defense and intelligence sectors of the Government of the Russian Federation.” Not surprisingly, October 1, 2017 came and went without the required guidance. Tick. Tock. Tick. Tock.

Well, yesterday, almost a month late and after a draft of the guidance was leaked to the New York Times, the State Department released a list of thirty-nine entities associated with Russian defense and intelligence. Of those, only 10 were not previously on the SDN or SSI Lists. Of the twenty-nine already on one of those lists, eight are on the SSI List.

It is not at all clear why this list and the guidance are being issued from the State Department rather than from the Department of Treasury’s Office of Foreign Assets Control which normally handles economic sanctions of this sort. The result is that Heather Nauert, who held a State Department briefing on the new guidance and admitted that she was not a “sanctions expert,” had no idea what she was talking about. Hilariously (or perhaps tragically) she says that the entities on the list are “entities that [people] can no longer do business with.” The issued guidance says the exact opposite: “The Act does not provide for sanctions in cases in which transactions are not “significant.'” Oops.

Of course, even though the prohibition is only on “significant transactions” with these entities, it is not altogether clear what constitutes a “significant transaction.” Inexplicably, there is no dollar threshold mentioned in the guidance. The most detailed statement on what is not significant is this confusing statement: if a”transaction for goods or services has purely civilian end-uses and/or civilian end-users, and does not involve entities in the intelligence sector,”  this will “weigh heavily against” a determination that it is a significant transaction.  What this says, given that the restrictions are on dealings with the intelligence and defense sectors, is that transactions in the defense sector with purely civilian end-users or civilian end-uses won’t be deemed to be significant transactions. How a transaction in the defense sector can have purely civilian end-uses and end-users is far from clear.

Finally, it is important to understand that nothing in the guidance says that this is a comprehensive list of entities in the defense and intelligence sector where significant transactions can lead to sanctions. If you have a significant transaction with an entity in the intelligence sector, even one operating under deep cover, you and your principal officers can be sanctioned. Whether this will ever happen is unclear, but U.S. and foreign companies doing business with Russian companies will be doing so at their own risk.  Whether this is the intended result or simply an unintended result of incompetence is irrelevant.

Permalink Comments (1)

Bookmark and Share

Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)