Oct

28

U.S. Indicts Exporter for Failing to Meet Halal Meat Standards


Posted by at 7:59 pm on October 28, 2014
Category: Agricultural ExportsCriminal Penalties

Midamar Halal Pizza via http://www.midamarhalal.com/Product/Pizza/Halal-Pizza/166/Halal-Beef-Pepperoni-Pizza-12in-bake-Rise.aspx [Fair Use]Who knew that the Islamic Religious Police had an office at Main Justice? You might justifiably wonder that reading this indictment in which an Iowa man, William B. Aossey Jr., is accused of violating federal law by exporting meat from a slaughterhouse not certified as halal to Indonesia and Malaysia, both Muslim countries where the importation of non-Halal meat is forbidden by law. Aossey is the owner of Midamar Corporation, a leading producer and exporter of Halal meat and food products.

Actually, the prosecutors get to this odd result by a familiar route, namely accusing the defendant of making false statements to the federal government in connection with the export. We saw this in the warm chicken case which we reported on back in 2012. In order to encourage U.S. exports, the U.S. Department of Agriculture agrees to certify to foreign governments that agricultural products exported from the United States comply with the importing country’s requirements. As part of that process, the exporter fills out a USDA Food Safety Inspection Service Form 9060-6, which is an application for the required export certificate. In that application, just above the signature line, is the following sentence:

Under penalty of law, I certify that the product covered by this application for export meets the inspection requirements for the country of destination.

If the importing country requires that the animal be slaughtered by a Muslim in a particular manner while invoking the name of the deity and that has not happened, then the statement on the Form 9060-6 is false and a violation of 21 U.S.C. § 611(b)(5), which prohibits false statements in applications for export certificates. Violation of that provision is made criminal by 21 U.S.C. § 676.  The indictment alleges that the defendant’s company represented in the export certificate that the meat came from a Halal-certified slaughterhouse when in fact it came from another, non-Halal slaughterhouse.

It is not quite clear why the charge was under 21 U.S.C.  § 611(b)(5), which provides for a maximum jail term of three years, rather than under 18 U.S.C. § 1001, which penalizes false statements to federal agencies and provides for a maximum jail term of five years. Perhaps it was because the defendant was recently appointed by the U.S. Secretary of Commerce to the position of Vice Chair of the Iowa District Export Council, a fact oddly omitted from the indictment. I suppose that’s worth cutting the guy just a little slack.

UPDATE: We received the following communication from Midamar:

In your article “U.S. Indicts Exporter for Failing to Meet Halal Meat Standards” in your Export Law Blog you state “You might justifiably wonder that reading this indictment in which an Iowa man, William B. Aossey Jr., is accused of violating federal law by exporting non-Halal meat to Indonesia and Malaysia…” Midamar is a company that has built its brand on halal integrity and would never falsely label any product as Halal if it was not Halal. Bill Aossey is not accused of exporting non halal meat to SE Asian countries in violation of federal law. Please see Midamar Statement http://www.midamar.com/News/20141025/49/Midamar-Statement-on-Indictment-of-Founder-Bill-Aossey.aspx and also see: http://youtu.be/sAT7LJKEYsU for some history on Bill Aossey and Midamar.

The indictment alleges that Aossey certified that meat came from a slaughterhouse that was Halal-certified when in fact, it is alleged, it came from another slaughterhouse that was not Halal-certified. The point being made by Midamar’s statement above appears to be that the meat was still Halal even if it came from a slaughterhouse that was not Halal-certified. We have slightly amended the sentence in question to read that Mr. Aossey is accused of “of violating federal law by exporting meat from a slaughterhouse not certified as halal to Indonesia and Malaysia.”

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Oct

20

Did Ron Jeremy Save This Export Defendant From Jail?


Posted by at 6:31 pm on October 20, 2014
Category: BISCriminal PenaltiesIran Sanctions

Touraj Ghavidel and Ron Jeremy via Ghavidel's Twitter Feed https://twitter.com/MrTouraj [Fair Use]
ABOVE: Touraj Ghavidel and Ron
Jeremy


The Bureau of Industry and Security just released settlement documents resolving allegations that Borna Faizy, Touraj Ghavidel and Signal Microsystems, Inc., illegally exported computer equipment from the United States to Iran. According to the BIS charges, Faizy, Ghavidel and Signal Microsystems transshipped the items through Dubai (where else?), used coded language in emails with Iranian customers to hide their customer’s identities and locations, and falsely stated on their Electronic Export Information filings that the ultimate end users were in Dubai. As a result, over at least 2 years, more than $1 million in computer equipment was shipped by the three to Iran. Under the settlement agreement, no fine is being imposed; rather the three exporters have agreed to a ten-year denial order.

The settlement agreement comes on the heels of a plea agreement entered by Faizy and Ghavidel where they plead to making false statements to federal agents in violation of 18 U.S.C. § 1001. Under the plea, the government and the defendants agree that a fine and one year probation would be an adequate sentence. The basis for the charge under 18 U.S.C. § 1001 is that Faizy and Ghavidel, when questioned by federal investigators, swore up and down that they were absolutely not doing any business with Iran and would never ever even think of doing so, cross their hearts and hope to, etc., etc.

It is hard to tell why such a favorable plea deal was reached here. The false EEIs and the coded emails certainly suggest that the defendants knew that they were breaking the law. And they also managed to ship a boat load, almost literally, of computers to Iran. All I can figure is that the prosecutors saw the picture of Ghavidel with Ron Jeremy, which Ghavidel put on his own Twitter feed, and decided that Ghavidel was too cool to go to jail.

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Oct

16

New York Times Futilely Calls for End to Cuba Embargo


Posted by at 9:52 pm on October 16, 2014
Category: General

Cuba Capitole by y.becart(Own work) [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/yoh_59/13697566663Earlier this week the New York Times editorial board called for the end of the fifty-three-year-old embargo on Cuba. There is, of course, nothing unfamiliar or new about the arguments forwarded by the Times for the end of the embargo. The Board noted that Castro used the embargo as an excuse for his own regime’s shortcomings, that the embargo was ineffective in ending the Castro regime, and that it has caused needless suffering among ordinary Cubans.

Of course the chance that Congress will take any action to end the Cuban embargo is about the same as the chance that Castro will shave his beard and join the cast of Dancing with the Stars, and the opinion of the Times editorial board is unlikely to change these odds. The Times acknowledges that Congressional action would be necessary but suggests that the White House could still take some actions.

But there is much more the White House could do on its own. For instance, it could lift caps on remittances, allow Americans to finance private Cuban businesses and expand opportunities for travel to the island.

Section 204 of the Helms-Burton act purports to put restrictions on the President’s ability to end the embargo on Cuba. But that does not prevent amelioration or change of the scope of the embargo as long as the White House does not abrogate specific legislative restrictions such as the prohibition on investments in telecommunications, the prohibition on investments in confiscated property, or limits on vessels that have visited Cuban ports. Even so, it is far from clear that this or any subsequent White House is or will be willing to take the political hit involved in any major modifications of the embargo.

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Oct

13

It’s Déjà Vu All Over Again All Over Again


Posted by at 11:50 am on October 13, 2014
Category: Anti-BoycottBIS

McWane Pipes via http://www.mcwanepipe.com/upl/images/homepage/51269ef106307116cac-a9f28ef2.jpg [Fair Use]The best job at the Bureau of Industry and Security is, without question, working at the Office of Antiboycott Compliance (“OAC”) because all their cases are pretty much the exact same thing, leaving plenty of time to finish the daily crossword puzzle and read the sports pages. If you don’t believe me that they are all the same, just look at the latest enforcement action from OAC against McWane International, an Alabama company that manufacturers water pipes. McWane agreed to a $7,000 fine for providing a certificate that a ship was “allowed by Arab authorities to call at Arabian ports” and failing to report documentary requirements in a letter of credit for a certificate from the “owner, carrier or captain of the vessel or their agent” that the ship could call in Arab ports.

Regular readers of this blog, which obviously did not include anyone at McWane, will immediately see the problems with these certifications. Under BIS rules such certifications can only be made by the “owner, charterer, or master” of the ship. It can’t be made by McWane (which was none of the above) or by an “agent” of the “owner, charterer, or master.” We’ve talked about this identical issue at length here and here.

Fortunately the fine is only $7,000, well below an amount that might lead anyone to challenge the dubious statutory authority of the Office of Antiboycott Compliance to even exist. Disagreements over the antiboycott provisions in the Export Administration Act were one of the reasons that the act lapsed. Whether in that context the existence of the Arab boycott is a national emergency authorizing the President to extend the antiboycott provisions under the International Economic Emergency Powers Act (“IEEPA”) is highly questionable.

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Oct

8

Intel Sub Fined for Encryption Exports


Posted by at 9:14 pm on October 8, 2014
Category: BISEncryption

Wind River Convention Booth via https://twitter.com/WindRiver/media [Fair Use]The Bureau of Industry and Security (“BIS”) announced today that it had convinced Wind River, an Intel subsidiary, to pay a whopping $750,000 to settle charges that it exported products with encryption functionality without required licenses. There were also four unlicensed exports of the items to parties on the BIS Entity List.  This is the first announced fine (at least to my knowledge) involving encryption exports, and it has created a bit of a stir among those of us who handle encryption export matters.

Basically the encryption rules try to prevent the export of technology that every twelve-year-old in Estonia already has. Door to empty barn, meet escaping horses; escaping horses, meet door to empty barn. It is a not-so-well-kept secret that the encryption rules are not really there to protect sensitive U.S. technology but as a means to permit the NSA to see who is using what encryption where in order to better snoop on everyone using encryption.

As usual, details are scarce in the settlement documents as to what exactly went on, with the documents simply saying that Wind River exported items classified as 5D002 to government end users in China, Hong Kong, Russia, Israel, South Africa and South Korea. A little snooping of our own showed that the items involved, mostly real time operating systems, were classified by Wind River as 5D002 “ENC restricted.” All ENC restricted items require licenses to government end users in countries other than those countries listed in Supplement 3 to Part 740 of the EAR. The countries involved in the exports at issue are not Supp. 3 countries and, hence, required a license.

The BIS press release justified the size of the fine, despite Wind River’s voluntary disclosure of the violation, because it would “serve as a reminder to companies of their responsibility to know their customers and, when using license exceptions, to ensure their customers are eligible recipients.” This suggests that Wind River’s problems may have arisen because it was dealing with entities that it did not realize were government end users.

However the BIS definition of government end users is hardly a model of clarity:

A government end-user is any foreign central, regional or local government department, agency, or other entity performing governmental functions; including governmental research institutions, governmental corporations or their separate business units (as defined in part 772 of the EAR) which are engaged in the manufacture or distribution of items or services controlled on the Wassenaar Munitions List. …

Consider the portion of the definition that includes “governmental corporations or their separate business units (as defined in part 772 of the EAR) which are engaged in the manufacture or distribution of items or services controlled on the Wassenaar Munitions List.”   For starters, does the qualifier “engaged in manufacture … of items … on the Wassenaar Munitions List” qualify just “separate business units” or both “governmental corporations” and “separate business units”? And what are government corporations? Companies that have a government charter but private ownership? Companies that have a significant percentage owned by the government? Private companies given a government monopoly and that perform a traditional government function? Who knows? But if you get it wrong, expect to be fined by BIS and to be the object of a snide comment that it’s your own darn fault for not figuring out that the company was a government corporation under an essentially meaningless definition.

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