ExportLawBlog » Clif Burns

Author Archive

Mar

12

Best Acronym Ever: “POOF”

Posted by Clif Burns at 5:16 pm on March 12, 2008

Category: DDTC

Microwave Antenna Tower Robert Bigelow is a Las Vegas hotel billionaire who owns Bigelow Aerospace and wants to put a Budget Suites of America motel somewhere in space near you. Such facilities are apparently called privately-owned orbital facilities or POOFs. Seriously.

Of course, the folks at Bigelow think that their dreams of space tourism may be negatively impacted by the anti-POOF forces over at the Directorate of Defense Trade Controls (“DDTC”). Those grinches take the view that most space-qualified stuff is on the USML and needs an export license, which, of course, is a major annoyance for someone who wants to build hotels (and other commercial facilities) in the sky.¹ So, according to an editorial by Bigelow’s general counsel in the print edition of Space News, Bigelow is going to file a commodity jurisdiction (“CJ”) request to transfer the company’s “space habitat” (or POOF) technology from the United States Munitions List to the Commerce Control List (“CCL”).

Anyone who has filed a CJ request is probably giggling more over the idea that Bigelow’s CJ request will be addressed by DDTC anytime soon than they are over the acronym POOF. Similarly, the idea that DDTC will move space technology, even for space hotels, over to the CCL will provoke similar snorts. And, of course, once DDTC says no to Bigelow’s request, that will be the end of the story since such decisions are shielded from judicial review under section 2778(h) of the Arms Export Control Act.

But you can’t blame Bigelow for dreaming, can you?

[Thanks to Res Communis and Hobbyspace for info on the Space News editorial]

¹Under section 120.17(a)(6) a space launch of a payload is not itself an export of the payload. However, Bigelow appears to be hoping to launch its components from outside the United States, and thus would be required to export them prior to launch.

Permalink

Comments (4)

Mar

11

Virginia Company Admits Illegal Exports to China

Posted by Clif Burns at 7:13 pm on March 11, 2008

Category: Criminal Penalties

Microwave Antenna Tower Virginia-based Wavelab pleaded guilty today to charges that it exported 2,400 microwave power amplifiers to China without the required licenses from the Bureau of Industry and Security (“BIS”). The company also agreed to forfeit the $85,000 it was paid for the amplifiers. Sentencing is scheduled for June 6, and the Court could impose additional fines.

The company’s website, which defaults to Chinese but is also available in English, lists 6 microwave amplifiers as its product line. Based on the spec sheets for these six products, it appears that they aren’t covered by ECCN 3A001.b.3 or 3A001.b.4, the two available classifications for microwave amplifiers. But the website also suggests that the company will custom produce microwave amplifiers for its customers, so it seems likely that such custom amplifiers were involved.

The company admitted in its plea agreement that it knew that the amplifier’s required licenses. Indeed, the ECCNs in question are relatively easy to apply and are based on the amplifier’s average output power, its frequencies of operation, its size and dimensions and its fractional bandwidth. (Fractional bandwidth is is the bandwidth of a device divided by its center frequency.) Although there are certainly ECCNs that pose difficulties in determining their applicability, these two are not among them.

An AP reporter that called the company for comment was told that everyone was “too busy” to talk and then hung up on.

Permalink

Comments (2)

Mar

10

Ahmadinejad Opponent Sentenced in U.S. for Plot to Export Uzis to Iran

Posted by Clif Burns at 7:30 pm on March 10, 2008

Israeli Soldier with Uzi Seyed Mostafa Maghloubi, an American citizen of Iranian origin, was sentenced today to three years and five months in connection with his attempt to export night vision goggles and up to 10,000 Uzis to Iranian government officials opposed to the current regime of current President Mahmoud Ahmadinejad. Maghloubi previously pleaded guilty to this offense in August 2007. Maghloubi had been apprehended in a sting operation during which a Los Angeles detective pretended to be an arms dealer.

The sentence may seem light, and it might be easy to attribute this to the fact that the weapons were destined to opposition groups in Iran. U.S. District Court Judge George King, who sentenced Maghloubi, dismissed any notion that the sentence should have been, or was, mitigated based on the intended recipients of the weapons. According to Judge King, Maghloubi’s actions might have resulted in “actually destabilizing an area of the world that has suffered enough from continuing upheaval.” King said while Maghloubi’s motivations were not anti-American, it was the job of the government, not U.S. citizens, to pursue foreign policy.

[Thanks, Linda, for the tip!]

Permalink

Comments Off

Mar

6

Don’t Forget Poland

Posted by Clif Burns at 11:18 pm on March 6, 2008

Category: BIS

ABOVE: Berkut 360 kit plane

The Bureau of Industry and Security (“BIS”) released a final order today denying export privileges to Ali Asghar Manzarpour for twenty years. The denial order is premised on allegations by BIS that Manzarpour attempted to export a single-engine aircraft to Iran on April 28, 2004, by exporting it to the U.K. and then ordering a freight forwarding company to re-export it to Iran.

Manzarpour never responded to BIS’s Charging Letter, and so a default order was entered by the BIS Administrative Law Judge. Most of the ALJ’s decision dealt with which one of the various attempts by BIS to serve the charging letter was sufficient to support a default order. Ultimately the ALJ relied on a registered letter sent to an alternate address for Manzarpour in Brighton, England, that was returned as “refused.”

The BIS documents don’t tell much about the considerably more interesting story of Mr. Manzapour’s export of the single-engine aircraft, but at least part of that story can be found in other sources, including a BBC radio interview with Mr. Manzarpour. The saga began when Polish authorities detained Mr. Manzarpour on February 17, 2005, based on the export of the aircraft from the U.S and at the request of Immigration and Customs Enforcement. Mr. Manzarpour was immediately placed in Polish custody pending an extradition motion from the U.S. On February 24, 2005, a grand jury in the District of Columbia indicted Manzarpour for violating the U.S. sanctions imposed on Iran.

According to the BBC interview with Manzarpour, the aircraft involved was a Berkut 360 kit plane — i.e., a small aircraft sold unassembled to aviation enthusiasts. (The U.S. asserts that these planes can be easily converted to military unmanned aircraft). Manzarpour also says that he obtained a license from the U.K. Export Control Organisation authorizing the export.

In all events, after Mr. Manzapour spent 22 months in a Polish prison, the Polish appeals court denied the U.S. request for extradition, apparently on the basis that the export of the Berkut 360 wasn’t a crime under Polish law. As a result, Mr. Manzarpour was, in December 2006, returned to the U.K.

Thereafter, in July 2007, after the U.S failed in its effort to bring Manzarpour to the U.S. for criminal prosecution, BIS issued the charging letter that led to the denial of Manzarpour’s export privileges. That’s what should have been done in the first place rather than wasting U.S. resources in a futile attempt to prosecute a foreign national for violation of unilateral U.S. sanctions on foreign soil.

Permalink

Comments (1)

Mar

5

U.S. Shutdown of Foreign Websites Could Reignite ICANN Debate

Posted by Clif Burns at 6:09 pm on March 5, 2008

Category: Cuba Sanctions

Cuba-Hemingway.com The New York Times has a story today on one Steve Marshall, a British citizen living in Spain and running a Cuba travel agency. It seems that Mr. Marshall had 80 of his websites shut down by his U.S. registrar eNom after eNom got a call from the folks at the Office of Foreign Assets Control (“OFAC”). That agency had put Mr. Marshall’s websites, including www.cuba-hemingway.com on the SDN list. For the insatiably curious, a copy of www.cuba-hemingway.com is available via The Wayback Machine. It appears that these sites were mostly feeder sites to promote his Cuba-centric travel agency.

The NYT piece has much wringing of hands about the plight of Mr. Marshall, and although I am a vocal opponent of the Cuba sanctions, I’m not terribly inclined to join in the sobfest. Anybody running a business like Mr. Marshall’s would have to be, well, stunningly naive to think that they should register websites for that business with a U.S.-based registrar. It would rather be like trying to open an “adult” DVD store in Tehran and then being surprised when the religious police burn it down.

But one thing in the story caught my eye and is worth further analysis. eNom is refusing to release the domain names back to Mr. Marshall because, not surprisingly, the domain names are considered blocked property under the Cuba sanctions program. Of course, eNom has an agreement with the Internet Corporation for Assigned Names and Numbers (“ICANN”) where eNom agrees to abide by ICANN’s “Policy on Transfer of Registrations between Registrars.” That policy sets forth the only circumstances under which a domain registrar may refuse to transfer a domain name to another registrar, such as a court order or evidence of fraud. The policy does not permit withholding that transfer based on a claim that the domain names are blocked property under OFAC’s regulations.

In such cases Marshall would be entitled to avail himself of ICANN’s “Registrar Transfer Dispute Resolution Policy” to obtain an arbitral order requiring eNom to transfer the domain name and, if eNom still refused to do so, ICANN could terminate eNom’s status as a domain name registry. But here’s the rub: ICANN either can’t or won’t do that because it is a California non-profit corporation and is itself subject to the Cuba sanctions.

This, of course, resurrects the dispute that the rest of the world had in allowing the U.S. so much control over the Internet name-assignment process in the first place. The Department of Commerce, which originally controlled the process, sought to alleviate these concerns by handing the process over to ICANN as a private company. But if the U.S. can use its control over the Internet name assignment process to try to bootstrap the scope of its Cuba sanctions to cover a non-U.S. citizen operating a web business with its offices and servers outside the United States, this could well re-ignite the international debate that this critical part of the Internet should be turned over to an international organization.

Permalink

Comments (2)