Archive for May, 2009

Georgia Arms Exports on Hold: Fact or Rumor?

Thursday, May 28th, 2009
Tbilsi, Georgia
ABOVE: Tbilsi, Georgia

Worldnet Daily, a highly partisan and potentially unreliable source, reports that the Obama administration

placed a hold on all U.S. military exports to Georgia due to a “policy review,” with no indication as to when it will be completed or what defensive military items will be allowed to be exported ….

U.S. sources [said] that such a review has been so “close-hold” that even the Defense Department, which also reviews license applications for national security reasons, was unaware of the action. DOD has been recommending approval of munitions license applications for Georgia

The whiff or partisanship, however, is ripe. The article claims that the Obama administration was “bowing to Russian pressure” and cited an un-named U.S. official saying this:

“The Obama administration is caving to the Russians,” one official said. “It means that we’re letting the Russians control U.S. foreign policy interests.”

Leaving aside that Worldnet Daily, which is still claiming that Obama isn’t a U.S. citizen, may have a partisan axe to grind with the Obama administration, the notion that the U.S is caving to Russia on the Georgia issue isn’t terribly consistent with recent statements from Secretary of State Clinton, who has continued to emphasize in public that the U.S. and Russia don’t see eye-to-eye on Georgia. In her joint statement with Russian Foreign Policy Minister Sergey Lavrov on May 7, Secretary Clinton emphasized that Georgia was an issue on which U.S. and Russian “views may diverge” and on which the countries have a disagreement. More recently, Secretary Clinton said in an interview with Russian television outlet RTR that Georgia remained an “area of disagreement” between the two countries.

So my vote is for rumor. But I’d be interested to hear from any readers who have licenses for exports to Georgia held up.

Are There Unknown Knowns, or Known Unknowns?

Wednesday, May 27th, 2009
Skopje, Macedonia
ABOVE: Skopje, Macedonia

The Bureau of Industry and Security (“BIS”) just released an order fining and denying export privileges for Micei International, a retailer of guns. police equipment, digital cameras and other miscellaneous items in Skopje, Macedonia. The order, which adopted a recommended order by an administrative law judge, arose from charges that Micei aided and abetted Yuri Malinkovski, aka Yuri Montgomery, in violating an order denying Malinkovski’s export privileges. Pursuant to that order, Micei was fined $126,000 and had its export privileges denied for 5 years.

Malinkovski’s export privileges were denied in 2000 based on his conviction for unlicensed exports of stun guns to Macedonia. According to the BIS charging letter and the adminstrative law judge’s decision adopted by the order, Micei had Malinkovski negotiate the purchases of various items, including shirts and boots, for export from the United States to Micei in Skopje. Although the documents are not entirely clear on this point, it appears that the items were exported not by Malinkowski but by the vendors with whom he was negotiating on Micei’s behalf.

Micei was charged with knowing violations under section 764.2(e) of the Export Administration Regulations. The basis for the claim that these were knowing violations is, to say the least, somewhat dubious. The ALJ’s recommended order noted two bases for this finding. One was that the denial order was published in the Federal Register and that therefore knowledge of the denial order could be “imputed” to Micei. “Imputed” knowledge is a thin reed on which to base a claim of actual knowledge, particularly where knowledge is imputed to a company in Macedonia based on a Federal Register notice. I don’t think I’m going out on a limb here when I say that it seems a stretch to expect a company in Skopje, Macedonia, to subscribe to and read each word of the Federal Register to make sure it wasn’t dealing with parties whose export privileges had been denied.

The ALJ order also noted that an officer of Micei knew that Malinkowski was subject to a denial order. This is a better basis for a claim of a knowing violation, but still somewhat short of a slam dunk. Since it appears that the items were being exported by the sellers, and not by Malinkovski, there is a reasonable possibility that Micei didn’t know that Malinkowski’s actions as a purchasing agent rather than as an exporter would violate that order. To the credit of the BIS’s final order, however, the agency relied only on this statement by the Micei officer, and not on the claim that Federal Register publication could be imputed knowledge, in finding a knowing violation.

(For those of you who click through the BIS link, prepare to be a bit confused because it appears that someone at BIS shuffled the pages before scanning them.)

Microsoft Shuts Off IM Service in Sudan and Other Sanctioned Countries

Tuesday, May 26th, 2009

Live Messenger in SudanEconomic sanctions continue to spread into cyberspace as Microsoft announced last Friday that customers in sanctioned countries would receive an error message if they tried to log into their Windows Live Messenger accounts and would no longer be able to use the service.

When you try to sign in to Windows Live Messenger, you receive the following error message:

810003c1: We were unable to sign you in to the .NET Messenger Service.

Microsoft has discontinued providing Instant Messenger services in certain countries subject to United States sanctions. Details of these sanctions are available from the United States Office of Foreign Assets Control ["OFAC"].

Why it took Windows so long to get with the program when arch-rival Google had disabled downloads to Sudan and other sanctioned countries ages ago is not clear.

Although the shutoff applies to Cuba, North Korea, Iran, Sudan and Syria, Sudan seems to have taken it most to heart, judging from this report on the shutoff in the Sudan Tribune, a Paris-based on-line newspaper covering Sudan:

The software, Microsoft’s Windows Live Messenger, allows users to chat directly with one another, send photos, play games or send messages to mobile phones. The Messenger is widely used by the Sudanese diaspora to contact their families and until last week had been available for free downloading in the countries targeted by US sanctions.

Of course, Microsoft’s action is incredibly easy for users to circumvent. First, users can log back into their accounts and change their country to a non-sanctioned country. (Oddly, Microsoft’s drop-down list for countries on its Live Messenger sign up page- still includes Sudan — not to mention Cuba, North Korea, Iran and Syria!) Second, if Microsoft is also using geolocation filters on the IP addresses, the user can always connect through a proxy server located in a non-sanctioned country. Et voilà, the Sudanese (or Syrian, Cuban, Iranian or North Korean) resident can IM to his or her hearts content, Microsoft is in full compliance with the law, and OFAC is none the wiser and can still believe that it has hastened the downfall of these governments by keeping their citizens from communicating with their family and friends.

House Committee Passes Export Reform Proposal

Thursday, May 21st, 2009
Howard Berman
ABOVE: Howard Berman
Chair, House Foreign Affairs


Yesterday, the House Committee on Foreign Affairs approved legislation that would, among other things, amend parts of the Arms Export Control Act (“AECA”). The Bill, H.R. 2410, is titled the ‘‘Foreign Relations Authorization Act, Fiscal Years 2010 and 2011’’ and was sponsored by Rep. Howard Berman, chair of the committee.

Like many of its predecessors, the bill would set processing time goals for licenses and commodity jurisdiction requests, each to be no more than 60 days. And commodity jurisdiction determinations would be required to be posted by the Directorate of Defense Trade Controls (“DDTC”) on its website. The processing times are just “goals” so, even if the legislation passes, I wont be holding my breath waiting for CJ requests to blast out the door in 60 days. But I think we can all give some polite golf claps, and maybe even a louder hooray or two, to the requirement that CJs be posted on the website.

Section 826 of the bill permits the President to remove “satellites and related components” from the United States Munitions List, but it is poorly drafted and has a confusing China exception which reads:

(b) Exception- The authority of subsection (a) may not be exercised with respect to any satellite or related component that may, directly or indirectly, be transferred to, or launched into outer space by, the People’s Republic of China.

Come again? Does this mean that satellites and parts that might be transferred to China stay on the USML and, like all other items, require a license to all destinations? Or does it mean that DDTC can decide that the satellite-related items in Category XV can be exported to every destination but China without a license? And where does the Bureau of Industry and Security (“BIS”) fit into this? Can it require BIS licenses for satellites and parts removed from the USML? Your guess is as good as mine.

A third provision of interest in the proposed legislation might be referred to as the Full Prisons Act. Section 831 increases the maximum criminal penalty from 10 years imprisonment to 20 years imprisonment. For whatever reason, Congress seems unable to enact any reform with increasing prison sentences, even though this appears to be an effort to conform the criminal penalties under the AECA to the increased penalties provide under the International Emergency Economic Powers Enhancement Act (“IEEPEA”) for violations of other export laws. Look for life imprisonment to be a penalty for false AES entries in the not-so-distant future.

Section 831 also attempts to conform civil penalties under the AECA to those enacted under IEEPEA by providing for a penalty equal to the greater of $250,000 per violation or twice the value of the export involved. But Representative Berman’s legislation doesn’t quite manage to get this right either. First, it fails to amend section 38(e), 22 U.S.C. § 2778(e) of the Arms Export Control Act which sets the maximum civil penalty at $500,000. Does this mean that a transaction valued at $1 million, and thus eligible for a $2 million penalty under the amended 38(c), is limited to a penalty of $500,000?

Worse the language of the bill, unlike the language in IEEPEA, makes the penalty payable “upon conviction.” Does that mean that the civil penalty is only available after a criminal conviction? Again, this is probably a drafting oversight, but with all the newly unemployed lawyers in town, can’t the committee hire somebody to clean up its bills?

Do What The E.U. Says Not What It Does

Wednesday, May 20th, 2009

FlagsThe excellent online E.U. news source, EUobserver.com, ran an interesting column on the E.U. and arms sales to Sri Lanka. The column noted that on Monday the E.U. condemned human rights abuses by the Sri Lankan military and demanded an independent inquiry into the matter. The column cited a statement of the E.U. foreign ministers which stated:

The EU is appalled by the loss of innocent civilian lives as a result of the conflict and by the high numbers of casualties, including children, following recent intense fighting in northern Sri Lanka.

Such human rights abuses should trigger an arms embargo under the E.U. Code of Conduct on Arms Exports. According to that code, member states shouldn’t export arms if there is a “clear risk that the proposed export might be used for internal repression.” The code did not become binding until 2008 and seems to have been widely ignored in the case of Sri Lanka. Bulgaria, the Czech Republic, Slovakia, the UK, France, Italy, Lithuania, the Netherlands and Poland haveall exported arms to Sri Lanka.

The U.S. has an arms embargo in place against Sri Lanka. That embargo provides an exception only for, on a case-by-case basis, “technical data or equipment made available for the limited purposes of maritime and air surveillance and communications.”

ECO Announces Big Fine In Short Newsletter

Monday, May 18th, 2009

Big BenThe United Kingdom’s Export Control Organization has launched a newsletter, pithily titled “Compliance Newsletter.” In its premier four-page issue, we learn that the ECO is big on warning letters, boasting that it has issued 50 of them since establishing procedures for warning letters a year ago.

The newsletter also notes that an unnamed company agreed to settle export charges for £575,000 ($880,000). The newsletter’s description of the settlement is a treasure trove of useful information:

In April 2009, a UK company paid a compound penalty of £575,000 for alleged offences in relation to the export of controlled goods to a number of sensitive destinations without licences between 2003 and 2006.
 
Compounding is the means by which HMRC can settle out of court a case which would normally be prosecuted to save both the tax payer and the company time and legal fees.

That’s it. Those 66 words are the entire entry on the settlement, or about £8,700 ($13,000) per word. There is no mention of the identity of the company, the goods exported, the number of exports, the destinations, or the value of the goods. This blog often complains about the paucity of information given by U.S. export agencies in announcements of export settlements, but in comparison to the ECO’s stingy announcement, the U.S agencies are releasing disclosures the length of a 17th century epistolary novel — OFAC, perhaps, excluded.

In fact, the monthly newsletter of the East Anglia Society for the Protection of Water Voles and Stoats is longer and packed with more information than the ECO’s new newsletter.

Intrigue in the Blogosphere: Export Law Blog Gets an Anonymous Call

Thursday, May 14th, 2009

No Image AvailableAt 11:30 this morning, an unidentified caller rang me and said that he was responsible for the blog that I discussed yesterday that principally consisted of posts copied in their entirety from this blog. The man on the other end of the line told me that he meant no harm, that he thought this was a permissible use of this blog’s RSS feed, and that he would remove my posts from his site, which he has done.

Intrigued by why a steadfastly anonymous individual would be trying to run an export compliance blog in an obvious attempt to garner export compliance business, I asked him directly who he was, and he declined to identify himself. I asked him why he didn’t want to identify himself. “I’d rather not say,” was the response. He did indicate that the purpose of his blog was “to generate email leads” and that it had been successful in doing that. And he sent me an email from a gmail account using a misspelled pseudonym (“Herbert Bloomffield”), confirming that he had deleted my posts.

All of this faux cloak-and-dagger stuff — Ukrainian pornographers, anonymous phone calls, pseudonymous emails — suggests to me that Mr. “Bloomffield” was being far from straightforward in his proclamation of naive innocence. And the next time this fellow wants to put on his Maxwell Smart cap and make a call from his shoe phone, he might remember that there are these marvelous technologies called Caller ID and reverse lookups on the Internet. Throughout my conversation with Mr. “Bloomffield,” there was the name of his (large) export compliance company on my telephone display. A telephone number was displayed too. A reverse-lookup showed that number belonged to the company shown on the telephone Caller ID display.

Now that I know who the caller was and where he was calling from, it’s perfectly clear that Mr. “Bloomffield” knew what he was doing and knew that what he was doing was questionable, both legally and ethically. He just didn’t want his company — with more than 100 employees and well-known probably to most, if not all, of the readers of this blog — connected with Ukrainian pornography sites, RSS feed scraping, and the use of someone else’s work to generate business for his own company.

Oh, and just so Mr. “Bloomffield” knows that I’m not bluffing about knowing who he really is, I just filled out a contact form on his website asking to be sent information on his company.

UPDATE: The culpable employee has now identified himself in an email to me, indicating that his company was in no way involved in this purloined blog affair. He appears to have been an overzealous sales person looking for leads.

The Sincerest Form of Flattery?

Wednesday, May 13th, 2009

ThiefA helpful reader emailed me earlier today that some guy was so impressed with this blog that he decided to start his own site* (pdf image file of site – safe) by stealing each and every one of my posts — text, images, links and all. If you click on the link to the site, it doesn’t look exactly like it did earlier today. I utilized the geeky magic of the htaccess file to change the images on his site from the images taken from my site to a new image that I felt was a more appropriate illustration to the stolen posts. (You may need to refresh your browser when you return here to clear the alternative image from your browser’s cache.) Of course, I can’t wait to see if this post shows up on the site in question.

While poking around in the links of the site in question to see if I could figure out the identity of Export Law Blog’s new BFF, I discovered a document posted at California’s Centers for International Trade Development that reinforces my long-held belief that these state centers provide atrocious advice on export matters. My favorite bit of “advice” from these “Export FAQs” was this:

1. Do I need any special permits or approvals to start an export business in the U.S.?

The U.S. Government does not require a company to have a license or permit to engage in the import/export business. Contact your appropriate state or local city hall regarding requirements and procedures for obtaining business permits.

I think that deserves the Export “Epic Fail” award of 2009. Exporters of defense articles certainly need to register under Part 122 of the ITAR to export those items. But perhaps the author of the document said what he did because he was totally unfamiliar with the Directorate of Defense Trade Controls (“DDTC”). Although he discusses the Bureau of Industry and Security and the Office of Foreign Assets Control, there is not one reference in these “Export FAQs” to the DDTC. Oops.

UPDATE: The blogger has taken down his site and replaced them with pornography links. I’ve removed all links to the site and will link to a pdf of the file I captured yesterday.

UPDATE: More on this here.


*I’ve changed the link to the offending site to a tinyurl link in order to make sure that the site doesn’t get search engine credit for my having linked to it. Also it appears that our “friend” has two addresses for his site. One is hosted on blogbugs, a Ukrainian porn-centered blog hosting service, and can be found here (link removed). This explains why some readers haven’t been able to get on the site. So he/she has another site which uses the same porno sites nameservers but has a URL that might sneak past porn filters. That’s the URL linked in the post above. You know that the person behind the sites in questions is up to know good when he’s operating namelessly from Ukrainian porn site.

USPS Proposes to Give OFAC Information on Mail to Iran

Tuesday, May 12th, 2009

Bundle of LettersThe United States Postal Service published in today’s Federal Register a notice of a proposed modification to its privacy regulations. One of the modifications relates to customs declarations that postal customers supply to the USPS in connection with exports made by those customers using the USPS. According to the notice, the USPS is proposing to give those declarations for “certain mailpieces” to the Office of Foreign Assets Control (“OFAC”), apparently pursuant to a specific request from OFAC.

Needless to say, the notice doesn’t explicitly describe those “certain mailpieces” for which OFAC has requested the Customs Declaration. But a tantalizing clue suggests that only mail to Iran is involved. The notice references three executive orders imposing sanctions: E.O 12957,
E.O.12959, and E.O 13059. Each of these orders promulgates sanctions on Iran. Beyond that, we have little indication of which postal shipments to Iran are subject to this disclosure proposal.

Two minor things are of additional interest regarding the USPS notice. First, the USPS refers to OFAC throughout as “the OFAC,” which, however quaint, suggests that “the” USPS doesn’t have much dealing with OFAC which, for whatever reason, normally doesn’t have the definite article prepended to its acronym in the same way it precedes USPS. Also the contact point for the notice is a USPS employee with a literary name: Jane Eyre. That’s pretty cool, but a contact named Clarissa Harlowe would have been even cooler on a USPS notice.

Obama Extends Syria Emergency, Sanctions

Monday, May 11th, 2009

Bashar al-AssadLast Friday President Obama renewed the national emergency with respect to Syria. This action allows the current sanctions against Syria to continue for another year. The previous declaration of emergency was scheduled to expire on Sunday. Current sanctions, among other things, prohibit all exports to Syria other than food and medicine.

During Friday’s daily press briefing at the Department of State, acting spokesman Robert Wood explained the President’s logic in renewing the sanctions:

[T]he President felt it was necessary to take these measures. These are not new sanctions, and there is still – I think this shows you that we still have some very serious concerns about Syrian behavior and activity in the world. We’ve said to you before our concerns about what Syria is doing in Iraq, its support for terrorist groups.

When questioned about how to square the extension of the emergency and the attendant sanctions with talks between White House envoy Jeffrey Feltman and the Syrian government currently taking place, Wood had this to say:

We have very serious concerns about Syrian behavior. I think you all understand that very clearly, and those haven’t gone away. But what we’re saying is instead of isolating Syria, we’re willing to engage them.

Syria, for its part, declined to read any special significance into the renewal of the sanctions, describing it as “routine.”