BIS Publishes Tips You Can Use (or Not) to Unmask Russian Straw Purchasers
Posted by Clif Burns at 9:48 pm on May 19, 2015
Category: BIS • Russia Sanctions
The Bureau of Industry and Security (“BIS”) just released new guidance, snappily titled “Guidance on Due Diligence to Prevent Unauthorized Transshipment/Reexport of Controlled Items to Russia,” which attempts to reveal ways in which U.S. exporters can detect whether a purchaser is sneakily trying to buy things not for itself but for the bad guys in Russia. This, of course, is a laudable purpose, not just for the Russians, but for the many other countries and entities that know they can’t directly buy certain export-controlled goods and have a straw purchaser do their dirty work. But, sadly, most of the advice for sniffing out secret Russian intermediaries is about as useful as the secret decoder rings that used to be found in cereal boxes.
Here it is:
When inquiring into the ultimate destination of the item, an exporter should consider e-mail address and telephone number country codes and languages used in communications from customers or on a customer’s website. The exporter should also research the intermediate and ultimate consignees and purchaser, as well as their addresses, using business registers, company profiles, websites, and other resources. … Furthermore, exporters should pay attention to the countries a freight forwarder serves, as well as the industry sectors a distributor or other non-end user customer supplies.
Particularly risible is the advice to pay attention to the “email address and … languages used in communications from customers or on a customer’s website.” Because, of course, if you’re trying to hide the fact that your acting on behalf of the Russians you’re going to put up a website in Russian, email from a .ru domain, and say “Nyet” when asked if you’re secretly working for the Russkis.
It’s not quite clear why BIS mentions these factors — which may from time to time catch a really stupid Russian intermediary who slips and starts babbling in Russian — rather than more reliable red flags. The most frequent indicators that you’re dealing with an imposter is a purchaser who appears to have no clear understanding of, or use for, the item he or she is seeking to purchase. Small purchasers that your company has never dealt with or who say that they are simply a reseller should set off alarm bells. And here’s a personal favorite: Google Maps Street View is your friend. If you track down the address in Amsterdam and see that the purchaser of a controlled accelerometer is a bicycle store or a car repair garage, well, your work is done.
Export Control Reform Comes to USML Category XII
Posted by Clif Burns at 11:25 pm on May 5, 2015
Category: BIS • DDTC • Night Vision
Well, who would have thought? Contrary to broad expectations that export control reform would never in a million years come to Category XII, which contains tactical gamestoppers such as night vision and laser designators and markers, export control reform came today to Category XII in the form of proposed rules. The BIS proposed rules are here; the DDTC proposed rules are here.
While it may be surprising that Category XII is being reformed, it is not so surprising that the new “positive” list of items controlled in the new proposed Category XII has expanded considerably, growing from less than a page in the Code of Federal Regulations to five densely packed pages in the Federal Register. And what is and isn’t on this extensive new list will be the subject, I assume, of extensive industry comments due, by the way, on July 6, 2015.
Because of the much-publicized interagency squabbling between BIS and DDTC over which agency license which night vision system, a quick look at the new provisions relating to night vision is instructive. Obviously, the new rules do not simply cover infrared focal plan array detectors (“IRFPAs”) and image intensification tubes (“IITs”) designed for military use but instead cover IITs and IRFPAs with specified peak response levels. IITs meeting the peak response rate for IITs must have either second or third generation photocathodes. Interestingly, the definition of second and third generation photocathodes is completely different in the proposed rules from the definition given in the current USML, reinforcing the general conception that nobody really knows what the difference is between second and third generation night vision beyond the obvious: third is better than second.
A note to be included to subparagraph (c), which covers night vision, in Category XII appears to maintain, more or less, the current principle, at least for certain components, that when they are incorporated into commercial systems, the commercial system is not subject to ITAR controls, but the parts in question will be subject to ITAR controls if exported separately from the commercial system. However, a new qualification to this principle, that is not currently expressed in Category XII, is added: for this rule to apply, the component must not be removable from the system “without destruction or damage to the [component] or render [sic] the item inoperable.” What the practical impact of this new qualification will be is hard to predict, but my guess is that it may gut the exception and expand control over commercial system given that I can’t imagine many situations where the item can’t be removed without destroying it. But I’ll defer to any engineers who may know better whether this is the case or not.
Permalink Comments Off on Export Control Reform Comes to USML Category XII
Florida Man Sentenced for Brokering Dual-Use Exports
Posted by Clif Burns at 10:10 pm on April 29, 2015
Category: BIS • Criminal Penalties
ABOVE: Universal Industries HQ
Russell Henderson Marshall, a UK citizen living in Florida, pleaded guilty and was sentenced to 41 months in prison and deportation on charges that he brokered dual-use items listed on the Commerce Control List. Yes, that’s right — for brokering non-USML items listed on the CCL. Because there is no prohibition on unlicensed brokering of items on the CCL, you may wonder how this happened.
To understand how this happened, we have to go back to 2012 when Universal Industries Limited, Inc., was slapped by the Bureau of Industry and Security with an Order Denying Export Privileges based on Universal’s conviction under the Arms Export Control Act for unlicensed exports of military aircraft parts. The order prohibited Universal or any of its employees from “carrying on negotiations concerning … any item … to be exported from the United States.”
Marshall was the CEO of Universal and was charged with two counts of violating the denial order. The first count, as described in the factual proffer supporting Marshall’s guilty plea, alleged that he sent an email to a potential U.S. purchaser quoting a price for three aircraft temperature sensors. A document recovered after a BIS agent did some dumpster diving behind Universal’s office. Documents found in the trash revealed that the sensors were destined for the Royal Air Force of Thailand. The second count alleged that Marshall exchanged emails with a U.S. company related to a jet aircraft part to be exported to the Pakistan Air Force. The content of the emails sent by Marshall are not revealed.
Oddly, the factual proffer devotes considerable space to establishing that the items involved were ECCN 9A619.x. Given that the Denial Order would be violated if Marshall sent an email with a price quote for a Snickers Bar that was to be sent to Canada as a family birthday gift, it is not quite clear why the documents go to such length to establish that the items were not simply EAR99.
Permalink Comments Off on Florida Man Sentenced for Brokering Dual-Use Exports
Houston CEO Indicted For Not Having an Export License That He Didn’t Need
Posted by Clif Burns at 7:23 pm on April 22, 2015
Category: BIS • Criminal Penalties • Iran Sanctions • OFAC
Houston-based Smart Power Systems and its CEO Bahram Mechanic (as well as various other individuals) were indicted last week on charges that they exported certain export-controlled items to Iran without a license. The indictment alleges that certain uninterruptible power supplies, microcontrollers and digital signal processing chips, all allegedly classified as ECCNs 3A991, were transshipped through third countries to a company in Tehran, allegedly controlled by Mechanic.
Not surprisingly, the indictment tries to make the case that these run-of-the-mill electronic items are critical military goods that Iran can use to launch missiles and build nuclear bombs. Of course, the government’s credibility in its assessment of the alleged capabilities of these items is rather diminished by its claim that these items are classified as ECCN 3A991, one of the least stringent export controls under the Export Administration Regulations. At best, however, the microcontrollers are 3A991.a, which covers microprocessors meeting certain computational benchmarks. The uninterruptible power supplies are not covered at all by 3A991 and are almost certainly EAR99.
Worse, for the government, if the uninterruptible power supplies are EAR99, then the government’s theory of what laws were broken by their exports to Iran completely collapses. The indictment alleges that the defendants violated the International Emergency Economic Powers Act because no license was obtained from the Bureau of Industry and Security (“BIS”). Apparently, no one at the DOJ looked at EAR Section 746.7, which indicates that a BIS license is required only for certain items. EAR99 items are not among them.
Of course, a license from the Office of Foreign Assets Control (“OFAC”) is required to export EAR99 items from the United States to Iran. But the government is not alleging Mechanic and Smart Power needed an OFAC license; instead, it is saying they didn’t have a BIS license even though they did not need that license. If the government can’t get the law it is enforcing right, it should not try to send people to jail for violating it.
White House May Take Cuba off Terrorism List
Posted by Clif Burns at 8:35 pm on April 13, 2015
Category: BIS • Cuba Sanctions • DDTC
There have been news reports suggesting that Obama is contemplating, as part of the thaw in U.S.-Cuba relations, to remove Cuba from the list of countries that are state sponsors of terrorism. Beyond the symbolic significant of such a move, what would be the real consequences?
Of course, one consequence of being on the list is that, under section 40 of the Arms Export Control Act, 22 U.S.C. § 2780, any country put on the list of state sponsors of terrorism is automatically subject to an arms embargo. Of course, even if Cuba is removed from the list, I would not count on arms shipments from the U.S. to Havana in the foreseeable future.
Second, section 6(j) of the defunct Export Administration Act, 50 App § 2405, requires a license for exports to state sponsors if the export could make a “significant contribution to the military potential of such country” or if it could “enhance the ability of such country to support acts of international terrorism.” And, in those instances, Congress must be given notice of such exports thirty days in advance. Of course, the Export Administration Act is no longer in force and is only even in the appendix to Title 50 of the U.S.C. because the President breathes life into it every year using the superpowers bestowed on him by the International Economic Emergency Economic Powers Act. So the White House could end any license requirement for Cuba and end the notification requirement using the same superpowers that resurrected those provisions in the first place.
You might also think that removing Cuba from the list might make it easier to ship agricultural products, medicine and medical devices to Cuba under the Trade Sanctions Reform and Export Enhancement Act of 2000. After all, the Act, in section 7205, imposes a license requirement for shipping those goods to a sanctioned country if that country is also on the state sponsor of terrorism list. However, that section specifically identifies Cuba as a state sponsor of terrorism and imposes the license requirement on exports of agricultural products, medicines and medical products to Cuba. So, removing Cuba from the terrorism list will not eliminate the need for exporters to Cuba to continue to file the export notifications required to utilize License Exception AGR for TSRA exports to Cuba.
Permalink Comments Off on White House May Take Cuba off Terrorism List