Jun

19

The Unverified List Rises Again


Posted by at 7:01 pm on June 19, 2014
Category: BISRussia SanctionsUnverified List

By Daderot (Own work) [CC0], via Wikimedia Commons http://commons.wikimedia.org/wiki/File%3APatent_quote_-_United_States_Department_of_Commerce_-_DSC05103.JPGAs we reported back in January of this year, in a sort of Christmas amnesty, the Bureau of Industry and Security(“BIS”) freed all current prisoners on the Unverified List (“UVL”) and announced that it was building a bigger and more uncomfortable jail for the next set of UVL inmates. Under the rules of the new jail, all exports to parties on the UVL, regardless of the value of the export, would require an AES filing. If the export to the UVL party required a license, no license exceptions could be used. And, most importantly, UVL parties would have to sign a lengthy statement promising to obey the Export Administration Regulations, revealing the end use and end user of the item (including the address,  favorite ethnic food and Facebook password for each end user), committing to cooperate in all future end use checks and swearing on a religious book of choice that they would be home and in bed by 9:00 p.m. every night, no exceptions. (I exaggerate, of course, but the required statement is lengthy, contains most of the things I’ve listed and must be signed even if the U.S. exporter is planning to send a set of steak knives or other EAR99 item to the UVL party.)

On Monday, the gates of the new prison opened and 29 new UVL inmates were welcomed to the new and improved UVL correctional facility. I scanned the list and did not see any former entities on the UVL on this new list, although it’s possible I might have missed a few. The announcement of the new list does not reveal the particular crimes committed by each entity on the list but under BIS rules they would have had to have failed an end-use check in one way or other, either by not submitting to it, not being where they were supposed to be, or not being able to explain what happened to an item previously exported to them.

Five Russian companies were added to the UVL, and this was probably unconnected to recent sanctions on Russia over the Crimea and Ukraine issues. Given that BIS has suspended issuing licenses for Russia, being on the list may be somewhat more burdensome for the Russian parties.  Although licenses might in theory be available as a fall-back option to UVL parties outside Russia who could no longer use license exceptions, this fall-back option will not be available to the Russian entities on the UVL.

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Jun

16

It’s A Small World After All, Even For Economic Sanctions


Posted by and at 8:02 pm on June 16, 2014
Category: ChinaEconomic SanctionsEURussia SanctionsSanctionsSudan

It's A Small World by Darren Wittko https://www.flickr.com/photos/disneyworldsecets/2767829714/ CC BY 2.0 [https://creativecommons.org/licenses/by/2.0/] (cropped)G-7 countries recent meeting in Brussels understandably grabbed global headlines for their unified message that they “stand ready to intensify targeted sanctions and to implement significant additional restrictive measures to impose further costs on Russia should events so require.”

While sanctions imposed by G-7 countries, as well as the EU, drive the engine of global sanctions enforcement, there are almost 200 other countries in the world and many of them want to have their position on sanctions known.  Last week, for example, Serbian President Tomislav Nikolić surprised no one on Earth (or anywhere else for that matter) when he told Serbian media, “It’s impossible to imagine Serbia imposing sanctions on Russia.”  Of course, Nikolić’s pronouncement is hardly going to cause the E.U. to rethink, even for a fraction of a nanosecond, its position on Russian sanctions.  On the other hand, the E.U. sanctions may cause Serbia, given that Russia is one of it’s largest trading partners, to rethink the wisdom of its application to become a member of the E.U.

Besting Serbia’s population by over a billion, China is emerging as a critical Russian ally and the most important country that is not imposing sanctions against it.  As with Serbia, economic self-interest and the volume of China’s trade with Russia may be at the heart of this.  In fact, reports on the recent $400 billion, 30-year deal for Gazprom to supply natural gas to China suggest the deal would be based on a ruble-yuan exchange and bypass Western financial systems altogether.

With developed countries like China and Serbia using economic self-interest to justify trading with Russia despite its shenanigans in Ukraine, some developing countries may be acting against their own economic self-interest in imposing sanctions to deal with regional conflicts.  Reuters reported this week, for example, that members of the Intergovernmental Agency for Development, an East African trade group made up of Djibouti, Eritrea, Ethiopia, Kenya, Somalia, South Sudan, Sudan and Uganda, have threatened sanctions against South Sudan if warring factions do not cooperate to end conflict in that country.  The United States imposed sanctions in early May against military leaders involved in the conflict, but they likely will provide no meaningful impact.  However, when everyday trade with your neighboring countries starts to become restricted, sanctions are far more likely to achieve the goal of ending conflict.  If East African sanctions succeed against South Sudan while E.U and U.S. sanctions have no impact on Ukraine,  then we will certainly have a situation where it’s the mice that roar while the elephants squeak.

Sanctions news runs on the front page when it involves the United States and Europe but also on the back pages as it involves the rest of the world.  You have to read the whole paper to make sure you have the full story.

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Jun

13

Blame Canada!


Posted by at 9:18 am on June 13, 2014
Category: BIS

Bass Pro Store via http://content.basspro.com/outdoorworld/storeGalleryXML/storegalleries/67_6683939_0.jpg [Fair Use]Gun and sporting equipment retailer Bass Pro agreed to pay to the Bureau of Industry and Security (“BIS”) a $25,000 fine for exporting nine rifle sighting devices classified as ECCN 0A987 to China, Cyprus and Canada.

Wait, did you say Canada? Canada??? As in the 51st state? Surely this must be a mistake. Is that even an export? I thought you could export everything but Justin Bieber to Canada.

Of course, that’s a common misconception, and this case is an object lesson in one of the few things that can’t be exported to Canada. Items covered under ECCN 0A987, such as rifle scopes and sighting devices, have Firearms Convention (FC) as a reason for control and require BIS licenses for exports to all signatories to the Convention, including Canada.

The convention in question is the OAS’s Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. All members of the OAS except Cuba have signed the convention. The United States, mostly as a result of the NRA’s desire to protect the right of Mexican drug lords to own automatic weapons, has signed but not ratified the treaty.

So even though you can ship a rifle scope to France without an export license from BIS, under the OAS Firearms Convention you can’t ship one to Canada without that license.

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Jun

11

DDTC Deflates Cloud Puffery


Posted by at 5:25 pm on June 11, 2014
Category: DDTCDeemed ExportsEncryption

Lonely Cloud by Kate Haskell https://www.flickr.com/photos/fuzzcat/32487111/ CC BY 2.0 [https://creativecommons.org/licenses/by/2.0/] (cropped)One of the most frustrating ways in which the Luddites at DDTC have made life difficult for exporters in the 21st century is by taking the position that encrypted technical data is the same thing as unencrypted technical data for purposes of the ITAR. So if you put encrypted technical data on a cloud server outside the United States, you’d better get measured for an orange jumpsuit, because you’ve just exported technical data. Never mind, of course, that no one outside the United States can actually read or decrypt the data; you’ve still exported it.

Even the DoD, hardly a progressive force in these matters, thinks this position is nonsense. As we reported a while back, the DoD defended its decision to use Chinese satellites to transmit its own data on the grounds that all the data encrypted and thus meaningless to our friends in Beijing. Since DoD has guns, and DDTC does not, you won’t be surprised as to who would win any argument between DoD and State on the efficacy of encryption for these purposes.

So earlier this month, you might have been surprised to see this press release from Perspecsys:

Perspecsys, the leader in enterprise cloud data protection, announced today that it received a written ruling from the U.S. Department of State’s Directorate of Defense Trade Controls (DDTC) confirming that technical data secured using Perspecsys tokenization can be processed outside the U.S. through the cloud without obtaining an export license under the International Traffic in Arms Regulations (ITAR).

In its groundbreaking decision, DDTC reinterpreted the ITAR to authorize the use of Perspecsys tokenization to process ITAR technical data in the cloud without a license, even where the tokenized technical data may be transferred to servers located outside the United States. DDTC’s new interpretation shifts the regulatory landscape – opening the cloud to companies subject to the ITAR.

Tokenization is a process whereby a random token is issued to replace sensitive data such as a credit card number. Unlike encryption, there is no algorithm to decode the token back into the credit card number. Rather the token and the original data are maintained on a secure server which can be used to replace the token when necessary. Thus, if the press release were to be believed, if the translation server remained in the United States, the token for technical data could be transferred to a cloud outside the United States without need for an export license.

Of course, before you get too excited, I regret to inform you that this is not what the DDTC advisory opinion actually said. Instead, it said that section 125.4(b)(9) might exempt tokenized data if it was sent by by a U.S. employee overseas to another U.S. employee and no foreign person had access to the tokenized data. In other words, tokenized data would be treated exactly the same as its non-tokenized counterpart and was eligible only for export subject to exceptions that would be applicable to all technical data, whether encrypted, tokenized or in plain text.

DDTC was not amused by Perspecsys’s suggestion in its press release that the agency had finally entered the 21st century.  So the agency “requested” that Perspecsys post a statement that amounts to a retraction of Perspecsys’s earlier press release. In that statement, DDTC clarified (a) that only transfers from a U.S. corporation to its own U.S. national employees was covered by the advisory opinion, (b) that steps must be taken to assure that no foreign persons had access to the data and (c) that the advisory opinion did not hold that tokenization constituted sufficient steps to prevent foreign access to the technical data.

All this makes me wonder: if you shred controlled technical data into a million tiny bits of paper do you have to make sure that the garbage collector is not a foreign person and that no foreign persons are allowed to visit the garbage dump?

[Thanks to an alert reader who pointed out the two press releases to me!]

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Jun

10

Spanish Night Vision Dealer Debarred for Unauthorized Re-Exports


Posted by at 6:19 pm on June 10, 2014
Category: DDTCPart 122

By Spc. Jeffery Sandstrum via http://usarmy.vo.llnwd.net/e2/-images/2007/11/01/9792/ [Public Domain]Carlos Dominguez and his Madrid-based company Elint SA have been administratively debarred by the Directorate of Defense Trade Controls in connection with his unauthorized re-exports and re-transfers of night vision equipment shipped to him from the United States pursuant to DDTC licenses. The unauthorized re-exports and re-transfers were discovered by so-called Blue Lantern checks conducted by foreign embassy staff at the request of the DDTC to determine the ultimate disposition of items exported from the United States pursuant to DDTC licenses. (Interestingly, the cables requesting the Blue Lantern transfers had been previously disclosed when they were leaked by WikiLeaks.)

As a result of the unfavorable Blue Lantern checks, DDTC first imposed in 2009 a policy of denial on Dominguez and Elint. In 2010, DDTC followed up by sending a directed disclosure demand to Elint and Dominguez. A directed disclosure is a DDTC demand that the recipient investigate its export practices and provide to DDTC a list of all its export violations, a request that Dominguez and Elint not surprisingly ignored. A charging letter followed, also ignored, which led to a finding of default by an administrative law judge and the instant order of debarment.

Although section 127.7 of the ITAR specifies that such administrative debarments are “generally” for a period of three years, the order against Dominguez and Elint mentions no time period and is, presumably, permanent. It is safe to say that DDTC is not amused with Dominguez, and this appears to be in large part because of considerable evidence alleged by DDTC that Dominguez tried to evade the policy of denial by setting up shell companies and acting through third parties.

Interestingly, DDTC claims that it has the authority to issue “directed disclosures” under section 122.5(b) of the ITAR, which is, at best, a rather fanciful construction of that section. That section requires that records “maintained” under section 122.5 must be made available to DDTC, but says nothing about any obligation to create new records at the request of DDTC and then provide them. More interestingly, section 122.5 applies to “persons required to register” under Part 122. That obligation is imposed on persons who engage “in the United States in the business of manufacturing or exporting” defense articles. That, of course, does not cover foreign end users of U.S. exports, so it is not at all clear how DDTC can justify issuing the directed disclosure to Dominguez under section 122.5(b).

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