ExportLawBlog

Archive for the ‘BIS’ Category

Jun

13

Sales Clerk Charged with Illegal Exports Given New Trial

Posted by Clif Burns at 10:17 am on June 13, 2017

ABOVE: Alexander Fishenko

Almost a year ago, I commented on the fate of a lowly sales clerk, Anastasia Diatlova, in the prosecution of Alexander Fishenko, his company Arc Electronics, and employees of Arc for exports of various items to Russia without a license. Ms. Diatlova, the most junior sales clerk in the organization, had refused a plea of time served and gone to trial. This infuriated the prosecutors who took that offer off the table when a jury convicted Ms. Diatlova. Last month, however, Ms. Diatlova was granted a new trial on the export charges. The district court, in granting the new trial, held that there was insufficient evidence that Ms. Diatlova knew that it was illegal to ship the item in question.

The court described the evidence of criminal intent presented by the prosecution as follows:

(1) Diatlova received training on export controls and was aware that microelectronics, when mailed to Russia, are “generally subject to U.S. export control laws (emphasis added);” (2) the higher-ups at Arc (Fishenko, Posobilov and Abdullaev) “routinely lied and fabricated documents in order to evade export control restrictions”; (3) Diatlova filled out a “End-Use Certification/Statement of Assurance” indicating that the end user was Izhevsky Radio Plant, when the recipient was instead Atrilor, LTD, making her, at a minimum, guilty of aiding and abetting the illegal shipment of that part; and that proof exists that she was aware in April of 2012, upon arrest, that the part at issue was restricted.

The court held that allowing the jury verdict to stand “would constitute a ‘manifest injustice’ in light of the flimsiness of this evidence,” noting quite reasonably that her knowledge about the export at the time of arrest had little bearing on her knowledge as of the time of the export. Nor could the illegal intent of other employees be attributed to her. The court did not even comment on the export control training, implicitly rejectingÂ the notion that training alone can lay the groundwork for subsequent criminal prosecution. Finally, putting the wrong end-user on the end-use certificate was seen as the court as a sufficient predicate to let Ms. Diatlova’s conviction for wire fraud stand but not as proofÂ that she knew the export was illegal.

This highlights the difficulty confronted by prosecutors when they target people in the cubicles. Â As we noted in our prior post on Ms. Diatlova, she had only an eighth-grade education and was being paid only $15 per hour. Â Sadly, this appears to be another case of prosecutors who are more concerned about their conviction stats than anything else.

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May

3

Maybe BIS Should Read This Blog More Often

Posted by Clif Burns at 6:21 pm on May 3, 2017

Vladimir Putin via http://en.kremlin.ru/events/president/news/27394 [Fair Use] Way back in January of this year, I pointed out a problem that the Bureau of Industry and Security (“BIS”) and the Office of Foreign Assets Control Â (“OFAC”) may have unwittingly created for U.S. manufacturers of encryption-enabled products, i.e., virtually anything that touches the Internet or a private network. Â Both agencies had imposed sanctions on the FSB, the Kremlin spy agency formerly known as the KGB. Â The problem with this otherwise laudable move is that the FSB regulates import of encryption products into Putinstan, er, Russia, and these restrictions could effectively prevent exports of U.S. encryption items into Russia. Â This would happen because U.S. exporters were forbidden from filing the necessary paperwork with the FSB by virtue of its addition to OFAC’s SDN List and BIS’s Entity List.

Well, OFAC heard the howls of industry and in just after a little more than a week after the issue had come to light issued General License 1 to permit the filing with the FSB of the necessary paperwork for imports of these products. Â BIS, however, slept through those howls and did nothing. Â The original post on this problem had noted the difficulties posed by BIS having put FSB on the Entity List. Â It was at least possible that the FSB notification and application forms could contain unpublished EAR99 technology regarding the device to be exported to Russia, in which case a BIS license would be necessary before the notification or application could be sent to the FSB. Â That would be the case even after the OFAC General License authorized the notification and application forms to be sent

Rip van BIS-winkle has finally roused itself from its slumber on this issue. Â On April 17, 2017, BIS amended the Entity List designation for FSB to remove the license requirement for transactions for “items subject to the EAR” that are “related to transactions that are authorized by the Department of the Treasuryâ€™s Office of Foreign Assets Control pursuant to General License No. 1 of February 2, 2017.” What do you want to bet that a number of FSB applications were filed with technology “subject to the EAR” without the required license before this amendment to the Entity List? Technology, even technology relating to an EAR99 item, is subject to the EAR unless it has already been published or has arisen during “fundamental research.” Few people would think that unpublished information about a commercial EAR99 item would require a license. Most people probably felt that the OFAC General License got them to the finish line when dealing with the FSB. It now does, but it did not before April 17.

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Apr

27

The Gray Lady Seems Pretty Gray About Export Law

Posted by Clif Burns at 5:51 pm on April 27, 2017

Category: BIS • OFAC

Huawei HQ by BrÃ¼cke-Osteuropa Ditzel [Public Domain], via https://commons.wikimedia.org/wiki/File:Huawei_1.JPG The New York Times yesterday reported that it had, somehow or other, laid its hands on an administrative subpoena sent last December by the Office of Foreign Assets Control (“OFAC”) to Chinese telecom manufacturer Huawei. The subpoena, according to the newspaper, asks for information on the company’s dealings with “Cuba, Iran, Sudan and Syria over the past five years.”

The article notes that a similar subpoena had been issued earlier last summer by the Department of Commerce, presumably a reference to the Bureau of Industry and Security (“BIS”). This appears to have caused the Times to become perplexed over why OFAC was now sticking its nose into the matter. So they asked someone whom they imagined to be an expert what was going on and he came up with this humdinger:

The most likely thing happening here is that Commerce figured out there was more to this than dual-use commodities, and they decided to notify Treasury.

Nope. Let’s hope for this guy’s sake that he’s been misquoted. Our expert here seems to be unaware that BIS is concerned with more than the export of dual use items. Maybe Part 746 was ripped out of his copy of the Export Administration Regulations or, possibly, his dog ate that part. That part regulates exports of all items “subject to the EAR” to Cuba, Syria, North Korea and Crimea, not just dual-use items.

And, of course, OFAC has rules that prohibit exports of goods to Cuba, North Korea, Sudan, Crimea and Iran and the export of services to Syria as well as the five previously mentioned locations. So the real answer here as to why OFAC is piling on here is because itÂ can, not because there were concerns by BIS about transactions outside itsÂ jurisdiction.

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Mar

28

Commerce Export Award Winner Fined $27 Million for Export Violations

Posted by Clif Burns at 8:08 pm on March 28, 2017

Category: BIS

Access USA Facebook Page photo via https://www.facebook.com/myuscom/photos/a.10150689214007268.416222.88639537267/10154158962337268/?type=3&theater [Fair Use]

Access USA Shipping, which runs the website MyUS.com, was once the darling of the Commerce Department. Â According to the company’s website, the company won that agency’s “President’s ‘E’ Award” for exporters. Do they still get to keep that award after agreeing to pay the Department of Commerce’s Bureau of Industry and Security (“BIS”) a $27 million for 150 export violations?

The allegations contained in the BIS Charging Documents, if true, are pretty harrowing. According to BIS, Access USA changed values and item descriptions in export documents to avoid export scrutiny, describing, for example, guns and weapons parts as “sporting goods accessories,” “fishing tools and spare parts,” or “tailoring tools.” In another case, employees described exported rifle stocks and grips as “toy accessories.” And then, according to BIS, the company had a “personal shopper program” not to help busy executives pick out the best ties or dresses but to have employees pose as the foreign customer, using the employee’sÂ own personal credit cards and home addresses, where the U.S. seller had refused to sell export controlled goods to thatÂ foreign customer. There’s plenty more, but you get the gist.

Not surprisingly, the charging documents point out at lengthÂ that BIS had made “outreach” visits to explain the export laws to Access Shipping. The purpose of these references, apparently, was to bolster the case, as if thatÂ were needed, that the company knew what it was doing was on the dark side of the shady line. It strikes me that when guns are described as fishing tools — hey look, it’s a barrel of fish! — you’ve pretty much got the intent issue covered.

This reference to “outreach” visits reinforces the point I’ve made before that these “outreach” visits are not as much made out of the agency’s altruistic desire to educate as they are made to build future cases when the “outreach” victim makes a mistake — although this particular case, admittedly, seems pretty far from an innocent mistake. Â Just say no to “outreach” visits. Â They will provide less information than sending employees to real training conferences and seminars and will only come back to haunt you.

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Mar

24

About That Laptop Ban

Posted by Clif Burns at 5:31 pm on March 24, 2017

Category: BIS • DDTC

Qatar Airways - Airbus A380 by Glynn Lowe Photoworks [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/mDLaXv [cropped and processed] The United States and the United Kingdom just announced that laptops (and other electronic devices larger than a cellphone) would have to be checked as luggage and could not be carried by passengers into cabins when traveling on non-stop flights from certain destinations in the Middle East and North Africa, including Istanbul, Cairo and Doha, among others. I’m sure that some readers wondered how they were going to work on such flights while another (possibly much larger) group wondered how they would watch “Batman v. Superman” or “Bad Santa 2” during their flights home.

Of course, I wondered whether you would be arrested when you landed if you put in the hold a laptop with export controlled technical data, technology or software. That’s because I’m always looking out for my readers.

The issue, at least as far as BIS is concerned, is whether License Exception TMP or BAG still applies if you separate yourself from the laptop with controlled technology or software at check-in. TMP covers company laptops and BAG will cover personal laptops owned by the passenger.

Under section 740.9(a)(1) of License Exception TMP, items that are exported as “tools of the trade,” which includes software and hardware, “must remain under the â€œeffective controlâ€ of the exporter or the exporter’s employee.” I would take this to mean that if the laptop or software on it is controlled for the destination from which the employee is returning, it may not be checked. This is somewhat odd since that same provision allows that laptop and software to be shipped “unaccompanied” within one month prior to the employee’s arrival in the foreign country.

On the other hand, Â TMP does not impose the “effective control” on technology on a laptop that would require a license for the traveler’s destination. Instead, section 740.9(a)(3) speaks only of access controls such as a password for the device on which the technology is controlled.

License Exception BAG, under section 740.14(c)(1), only applies to items “owned by the individuals (or by members of their immediate families) â€¦ on the dates they depart from the United States.” So this exception would only apply to personally-owned laptops and personally-owned software if they are controlled to the traveler’s destination. Oddly, license exception BAG does not have the “effective control” limitation, so personal laptops could be checked consistently with the license exception even with EAR-controlled software. Additionally, BAG permits export of technology on the laptop, in the hold or the cabin, if there are access controls such as a password.

The ITAR deals with this travel issue in section 125.4(b)(9). As with EAR-controlled technical data, a laptop with ITAR-controlled technical data can be checked and stored in the hold as long as the laptop is protected with a password.

So, the only real issue prohibition under the ITAR or EAR against checking a laptop is when the laptop is not the personal property of the traveler and it contains software that is controlled under the EAR to the traveler’s destination. If there is ITAR-controlled technical data or EAR-controlled technology, a password on the device is sufficient.

Pardon me for a little skepticism here but it seems to me that this electronics ban has more to do with limiting foreign carrier competition in the United States than it does security. To begin with, it covers devices such as Kindles and cameras that are not much different from the size of a cellphone and which certainly do not seem to be more efficient threat vectors. More significantly, a person bent on terror using one of these devices merely needs to change his flight plan to include a stopover (where he won’t be screened again) before continuing to the United States — which is exactly what most travelers will do to avoid being separated from their expensive electronics.

Photo Credit: Mojito by Sami KeinÃ¤nen [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/4GyGSs [cropped]. Copyright 20xx Sami Keinanen

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