International Trade Law News

Published by Jacobson Burton Kelley PLLC

U.S. Immigration and Customs Enforcement (ICE) announced yesterday that a federal grand jury in Los Angeles indicted the former owner of a Los Angeles-area gun store and two employees of a freight forwarding company for violating international arms trafficking and export control laws for allegedly exporting gun sights and equipment used to manufacture assault rifles to the Philippines without the required export licenses.

The three men are accused of conspiring to illegally ship defense articles and other controlled items to the Philippines in violation of the Arms Export Control Act and the International Emergency Economic Powers Act.

According to the indictment, the defendants conspired to purchase and export to the Philippines, in three separate shipments, a total of 250 forging for AR-15 assault rifles and 11 holographic rifle sights. Two of the shipments were intercepted by Philippine customs officials. It is alleged that the forgings are subject to the jurisdiction of the International Traffic in Arms Regulations and the rifle sights are subject to the jurisdiction of the Export Administration Regulations.

Two of the defendants were arrested yesterday and the third defendant apparently fled to the Philippines several years ago.

Labels: BIS, Export Controls, ITAR

Below are some photos from the Bureau of Industry and Security's 2010 Export Control Forum that was held earlier this week in Irvine, California. The event's Keynote Speaker was Kevin Wolf, who was recently sworn in as Assistant Secretary of Commerce for Export Administration. In addition to speakers from BIS, the program also featured speakers from OFAC, Census, DDTC and DTSA.

Photos courtesy of John Priecko, Chief Executive Officer and President of Trade Compliance Solutions (photos 1-4), and Melissa Miller Proctor, Sandler, Travis & Rosenberg, P.A.

Labels: BIS

The next meeting of the National Council on International Trade Development (NCITD) will take place on Wednesday, March 10, 2010 in Washington, DC and will feature the following speakers:

• Adam Szubin, Director, Office of Foreign Assets Control, Department of the Treasury. Topic: OFAC News and Update;

• Charles Shotwell, Director, Office of Defense Trade Controls Policy, Directorate of Defense Trade Controls, US Department of State. Topic: Commodity Jurisdiction: Trends, Statistics and Automation Update;

• Jamal El-Hindi, Associate Director, Regulatory Policy and Programs Division, Financial Crimes Enforcement Network, Department of the Treasury. Topic: FinCEN Enforcement Efforts and Updates.

Labels: Miscellaneous, OFAC

An unusual criminal case involving a customs broker illustrates the need for U.S. importers to be vigilant in exercising oversight over the activity of their customs brokers.

Earlier this week a New York-based customs broker was sentenced to 24 months in prison, three years of supervised release and ordered to pay nearly $1.2 million in restitution for defrauding an importer of medical equipment by submitting false customs documents that indicated that the importer owed customs duties on goods that were actually duty free.

According to the Justice Department, the customs broker, who had served as the importer's broker since 1980, continued to invoice the importer for customs duties over a seven year period even though the U.S. duty rate had decreased on  imported medical equipment from 5.5% to duty free.

To show that the invoices were legitimate, the customs broker sent the importer falsified customs forms that indicated the amount of duty owed on the medical equipment. As a result, the importer reimbursed the customs broker for duties that the broker never paid, in amounts ranging from $1,000 to $9,000 per customs entry. By the time the importer discovered the problem seven years later the broker had defrauded the importer out of almost $1.2 million.

Under U.S. law, a conviction of a customs broker of a crime involving the importation of merchandise or arising out of the conduct of customs business is grounds for revocation of a customs broker license. As a result, assuming that this case is not overturned on appeal, the defendant's customs broker's license will be revoked by U.S. Customs and Border Protection.

While this type of activity by a customs broker is extremely rare (customs brokers must undergo an extensive background check before they receive their broker's license), this situation could have been easily avoided had the importer audited the customs entries to verify that the amount of duties and fees shown on the invoices and documents provided by the broker was consistent with the applicable duty rate shown on the Harmonized Tariff Schedule of the United States.

Labels: CBP; Marking, Customs, Customs Brokers

Yesterday the U.S. Senate confirmed Kevin Wolf to serve as Assistant Secretary of Commerce for Export Administration and David Mills to be Assistant Secretary of Commerce for Export Enforcement.

These two confirmations, along with 25 positions at other agencies, occurred after Senate Republicans earlier this week released a hold on a number of pending nominees following President Obama's threat to fill open positions by way of a recess appointment while the Senate is in recess next week.

However, the Senate confirmations did not include the nomination of Eric Hirschhorn to serve as Under Secretary of Commerce for Export Administration, the most senior position at the Bureau of Industry and Security. Mr. Hirschhorn's nomination was reported to the full Senate and has been included on the Senate calendar since December 17, 2009. Mr. Hirschhorn and 35 other nominees still await Senate confirmation. It is expected that the Senate will act on Mr. Hirschhorn's nominations in the coming weeks.

In a statement issued by President Obama after yesterdays' confirmations, he said that the Senate's action "is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess.  If they do not act, I reserve the right to use my recess appointment authority in the future."

Labels: BIS

Despite the snow in the Washington, DC area, the blizzard of FCPA prosectutions continues.

Today, John W. Warwick pleaded guilty before U.S. District Court Judge Henry E. Hudson in Richmond, Virginia., to a one-count indictment charging him with conspiring to make corrupt payments to foreign government officials for the purpose of securing business for Ports Engineering Consultants Corporation (PECC) in violation of the Foreign Corrupt Practices Act

According to the indictment issued on December 15, 2009, PECC, a company incorporated under the laws of Panama, was affiliated with an engineering firm based in Virginia Beach. According to the indictment, PECC was created so that Warwick, co-conspirator Charles Jumet, an the engineering firm could obtain certain maritime contracts from the Panamanian government.

According to the Justice Department, Warwick and Jumet participated in a conspiracy to pay money secretly to Panamanian government officials for awarding contracts to PECC to maintain lighthouses and buoy in Panama. In December 1997, the Panamanian government awarded PECC a no-bid, 20-year concession to perform these duties. Upon receipt of the concession, Warwick, Jumet, and others authorized payments to be made to the Panamanian government officials.

In connection with his guilty plea, Warwick admitted that at least from 1997 through approximately July 2003, he, Jumet and others conspired to make corrupt payments totaling more than $200,000 to the former administrator and deputy administrator of the Panama Maritime Authority and to a former, high-ranking elected executive official of the Republic of Panama.

As part of his plea agreement, Warwick agreed to forfeit $331,000,the proceeds of the contract. At sentencing, scheduled for May 14, 2010, Warwick faces a maximum of five years in prison and a fine of the greater of $250,000 or twice the gain.

Jumet pleaded guilty on Nov. 13, 2009, to a two-count criminal information charging him with conspiring to make corrupt payments to foreign government officials for the purpose of securing business for PECC, in violation of the FCPA, and making a false statement. Jumet is scheduled to be sentenced on March 26, 2010.

Labels: FCPA

The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) today took further action to implement existing U.S. sanctions against Iran's Islamic Revolutionary Guard Corps by adding to the Specially Designated Nationals List an individual and four companies affiliated with the Revolutionary Guard pursuant to Executive Order 13382, which freezes the assets of designated proliferators of weapons of mass destruction and their supporters.

Today's action targets Khatam al­-Anbiya Construction Headquarters, an arm of the Revolutionary Guard, previously designated in 2007 pursuant to E.O. 13382.

Today's designations include Revolutionary Guard Corps General Rostam Qasemi, the commander of Khatam al-Anbiya Construction Headquarters, the engineering arm of the Revolutionary Guard that serves to help the Revolutionary Guard generate income and fund its operations. According to the Treasury Department, Khatam al-Anbiya is owned or controlled by the Revolutionary Guard and is involved in the construction of streets, highways, tunnels, water conveyance projects, agricultural restoration projects, and pipelines.

OFAC also designated the following four companies companies that are owned or controlled by Khatam al-Anbiya, or that act on its behalf, and directly support various mining and engineering projects:

• Fater Engineering Institute
• Imensazen Consultant Engineers Institute (ICEI)
• Makin Institute
• Rahab Institute

Labels: OFAC, Sanctions; Iran

An aerospace engineer formerly employed by Rockwell International and Boeing was sentenced on February 8, 2009 to 15 years and eight months in federal prison after being convicted on charges of economic espionage and acting as an agent of the People's Republic of China (PRC).

Dongfan "Greg" Chung, 73, of Orange, California, was convicted in July 2009 after a 10 day bench trial held in U.S. Federal Court in Santa Ana, California on one count of acting as a foreign agent, one count of conspiring to violate the Economic Espionage Act of 1996, six counts of violating the EEA and one count of making a false statement to the Federal Bureau of Investigation. In his written decision after the trial, United States District Judge Cormac J. Carney found that Mr. Chung had been an agent of the PRC for over thirty years.

At the sentencing hearing, Judge Carney said that he could not "put a price tag" on national security, and that with the long sentence for Mr. Chung he wanted to send a signal to China to "stop sending your spies here."

The case against Mr. Chung resulted from an investigation into Mr. Chi Mak who was convicted of providing defense articles to China. Mr. Mak was sentenced in March 2008 to more than 24 years in prison. Four of Mr. Mak's family members later pleaded guilty to similar charges.

According to the evidence presented during Mr. Chung’s trial, individuals in the Chinese aviation industry began sending Mr. Chung "tasking" letters as early as 1979. Over the years, the letters directed Mr. Chung to collect specific technological information, including data related to the Space Shuttle and various military and civilian aircraft. Mr. Chung responded in one undated letter that "I would like to make an effort to contribute to the Four Modernizations of China." In various letters to his handlers in the PRC, Mr. Chung referenced engineering manuals he had collected and sent to the PRC, including 24 manuals relating to the B-1 Bomber.

Between 1985 and 2003, Mr. Chung made multiple trips to the PRC to deliver lectures on technology involving the Space Shuttle and other programs During those trips he met with PRC government officials, including agents affiliated with the People’s Liberation Army. Mr. Chung and PRC officials exchanged letters that discussed Mr. Chung’s travel to China and recommended methods for passing information, including suggestions that Mr. Chung use Chi Mak and his wife Rebecca to transmit information.

In September 2006, FBI and NASA agents searched Mr. Chung’s house and found more than 300,000 pages of documents from Boeing, Rockwell and other defense contractors inside the house and in a crawl space underneath the house. Among the documents found in the crawl space were scores of binders containing decades' worth of stress analysis reports, test results and design information for the Space Shuttle, Delta IV Rocket, F-15 fighter, B-52 bomber, CH-46/47 Chinook helicopter, and other proprietary aerospace and military technologies.

According to reports, Mr. Chung told the judge during the sentencing hearing that he had taken the information to write a book.

Mr. Chung's attorney plans to appeal.

Labels: China;

While the federal government in Washington, DC remains closed today for the second day in a row, the Government Printing Office remains open and publishing the Federal Register.

Today's edition of the Federal Register contains one export control-related notice, a final rule published by the Bureau of Industry and Security amending the Export Administration Regulations (EAR) to modify License Exception GOV to provide authorization for exports and reexports for use on the International Space Station (ISS).

In order to prepare for the end of the Space Shuttle program (there are only four more shuttle missions scheduled), today's final rule amends section 740.11 of the EAR by providing a new authorization for the export or reexport of commodities subject to the EAR that are classified under ECCN 9A004 (which covers space launch vehicles and spacecraft not controlled by the ITAR) for use on the ISS.

Specifically, this rule provides a new authorization for commodities classified under ECCN 9A004 that are subject to the EAR that  are needed at launch destinations outside of the U.S. (France, Japan, Kazakhstan and Russia) on short notice. The rule defines "short notice" as a requirement to have a commodity manifested and at the scheduled launch site for hatch-closure no more than 45 days from the time the exporter or reexporter received complete documentation.

While most exports of items for use on the RSS to launch countries are handled by NASA, this amended license exception permits other exporters to use this license exception if necessary.

Labels: BIS; EAR;, Export Controls

While there have been many export control reform proposals issued in the past few months, very few of them have focused on the legal aspects of the U.S. export control regime.

Neena Shenai, an adjunct scholar at the American Enterprise Institute for Public Policy Research, has added an interesting perspective to the export control reform debate in her working paper entitled Export Control Reform 2010: Transforming the Legal Architecture of Dual-Use and Defense Trade Controls (available here in PDF format). Ms. Shenai, an attorney, is well-suited to provide this perspective given her experience in the private sector and in government, which includes serving as a law clerk to a judge at the U.S. Court of International Trade, practicing international trade law at a leading law firm and serving as an advisor to the Assistant Secretary for Export Administration at the Commerce Department's Bureau of Industry and Security.

The paper offers the thesis that improvements in the export control system’s legal architecture, including administrative procedural safeguards and limited judicial review while also protecting classified information and national security determinations, will improve the workings of the system in general.

Ms. Shenai reaches that conclusion by discussing the existing legal framework of dual-use and defense-related export controls, examining the various shortcomings of the existing export controls legal regime and discussing what can be learned from other U.S. international-related legal regimes that could serve as useful models for reform of the U.S. export control system. The regimes examined include the licensing of nuclear products by the Nuclear Regulatory Commission, the administration of trade remedy laws, the administration of U.S. customs laws and the treatment of national security information protected from disclosure under the Freedom of Information Act.

The paper then provides a number of general and specific recommendations to improve the legal framework of the export control system, including improvements to the commodity jurisdiction (CJ), commodity classification and licensing processes. For example, the paper advocates having agency decisions provide applicants with detailed information on why licenses were granted or denied, the grounds on how CJ determinations are made and allowing applicants the ability to appeal such decisions to a federal court, preferably the Court of International Trade, given its longstanding history of hearing cases under the U.S. trade laws.

Ms. Shenai concludes by noting that "the recommendations made in this paper, if implemented, would serve to ensure that the U.S. export control laws are administered in a fair, transparent, predictable, and accountable fashion, while simultaneously maintaining national security protections."

It should be noted that this working paper has not yet been finalized and Ms. Shenai welcomes comments and corrections. Information on how to contact Ms. Shenai can be found in the document.

Labels: BIS, Export Controls, ITAR

Finding a Willing Buyer Only One Part of the Export Process

Exporters Looking to Boost Business Need to Mind Rules and Regulations Too

The Obama administration is launching a government-wide effort to double U.S. exports over the next five years as part of a plan to increase domestic employment and boost the U.S. economy. However, companies looking to take advantage of the new National Export Initiative to break into new markets should be aware that shipping goods overseas comes with potential perils as well as opportunities.

As part of the NEI, the federal government plans to increase its trade advocacy efforts, including educating U.S. companies about opportunities overseas, directly connecting them with new customers and advocating more forcefully for their interests. The NEI will also include a focus on improving access to export financing and helping to remove barriers that prevent U.S. companies from getting access to foreign markets. Only a very small percentage of U.S. companies currently export their products, and of those that do, 58% export to only one country. The Obama administration is looking to increase these figures in the expectation that doing so will also increase employment.

However, warns Doug Jacobson, head of Sandler, Travis & Rosenberg’s export controls practice group, while increasing the number of U.S. companies that export and increasing trade promotion assistance are laudable goals, U.S. exporters must be aware that finding a willing buyer is only the first step in the exporting process.

“In addition to taking the necessary steps to ensure they are paid for their goods, U.S. exporters must be aware of the wide range of U.S. regulatory and legal issues applicable to exports,” Jacobson said. “The benefits of exporting can be great for U.S. companies, but the penalties for violating export laws and regulations can be severe. ST&R often represents exporters in enforcement actions that learn of their export compliance obligations only after they receive an administrative subpoena from the Bureau of Industry and Security or the Office of Foreign Assets Control. Many of those violations could have been avoided if the exporters understood their export compliance obligations in advance.”

Examples of the important compliance-related issues that U.S. exporters should be aware of when selling goods overseas include the following.

Ultimate Destination. U.S. export restrictions and licensing requirements vary by the country of destination. Some countries are subject to comprehensive embargoes, while others are subject to targeted sanctions directed at certain individuals and companies.

Jurisdiction and Classification of Goods. Proper jurisdiction and classification of goods under the Export Administration Regulations or the International Traffic in Arms Regulations is required to determine export licensing requirements and end-use and end-user restrictions for all products being exported from the U.S. In addition, the proper export classification is required to be declared in the Electronic Export Information filing that must be transmitted via the Automated Export System.

Know Your Customer. To avoid engaging in transactions with parties that have been denied export privileges or are subject to U.S. sanctions, exporters should screen all customers and parties involved in the export against the government’s various restricted party lists.

Anti-boycott Compliance. Boycott requests, which often contain the words “boycott” or “blacklist” or provisions prohibiting the importation of goods from certain countries, are often found in documents involving sales to the Middle East, including purchase orders, tenders, contracts, shipping requests and letters of credit. Certain boycott requests must be reported to the Bureau of Industry and Security.

Foreign Corrupt Practices Act. The FCPA prohibits U.S. persons and their agents from making prohibited payments to foreign government officials to obtain and keep business.

For more information on these issues please contact Doug Jacobson at (202) 431-2407.

Labels: Export Controls, Exports, Sanctions

Balli Aviation Ltd., a subsidiary of the United Kingdom-based Balli Group PLC (collectively "Balli"), pleaded guilty today in the U.S. District Court for the District of Columbia to a two-count criminal information in connection with its illegal export of commercial Boeing 747 aircraft from the United States to Iran.

In a related civil enforcement case, Balli entered into a joint settlement agreement with the Treasury Department's Office of Foreign Assets Control (OFAC) and the Commerce Department's Bureau of Industry and Security (BIS) to settle alleged violations of U.S. export controls and sanctions laws..

Under the criminal plea agreement, Balli agreed to pay a $2 million criminal fine and be placed on corporate probation for five years. In the civil settlement with BIS and OFAC, Balli agreed to pay a $15 million civil penalty (payable in five installments over two years) to settle alleged violations of the Iranian Transactions Regulations and Export Adminstration Regulations. The terms of the civil settlement agreement provide that $2 million of Balli's civil penalty will be suspended and waived if Balli remains in compliance with U.S. export control laws.

According to count one of the criminal information, from 2005 through 2008, Balli conspired to export three Boeing 747 aircraft from the United States to Iran via a subsidiary without first having obtained the required export license from BIS or authorization from OFAC, in violation of the EAR and Iranian Transactions Regulations. The criminal information also states that the Boeing 747 was purchased  with financing obtained from Mahan Airlines, the first private airline in Iran. (Mahan Airlines prominently features the Boeing 747 on its home page).

Count two of the information states that Balli violated a Temporary Denial Order (TDO) issued by BIS in March 2008 that prohibited the company from conducting any transaction involving any item subject to the EAR. The Justice Department alleged Balli subsequently violated the TDO by carrying on negotiations with others concerning buying, receiving, using, selling and delivering U.S.-origin aircraft.

In the civil case, Balli was charged with conspiracy to violate the EAR by working with the Iranian airline to export the U.S.-origin aircraft to Iran. BIS also charged Balli with one count of acting contrary to the terms of a TDO by attempting to sell and export three additional 747s to Iran.

In addition to the civil monetary penalties, BIS suspended Balli's export privileges for five years (as noted, Balli was previously subject to a BIS TDO that was later lifted), although BIS agreed to suspend the denial order as long as the penalty is timely paid and the company remains compliant with the EAR. Mahan Airways remains on BIS's Denied Persons List.

In addition, the civil settlement agreement requires Balli to hire an unrelated third-party consultant with expertise in U.S. export control laws and sanctions regulations to conduct audits of Balli's U.S. export control and sanctions compliance on an annual basis during the next five years and to submit the audit results to BIS and OFAC.

The OFAC and BIS joint settlement agreement, which contain additional details on Balli's alleged activities, can be found here (pdf).

SIDEBAR: On a somewhat related note, last month marked the 40th anniversary of the first commercial flight of the Boeing 747 from New York to London by its launch customer Pan American World Airways.  The Flightglobal website has put together a special section marking the 40th anniversary of the Boeing 747 here.

Labels: BIS, OFAC, Sanctions; Iran

The next meeting of the National Council on International Trade Development (NCITD) will take place on Wednesday, February 10, 2010 in Washington, DC and will feature the following speakers:

• Bill Reinsch, President, National Foreign Trade Council
  Topic: Export Control Reform Update

• Charles B. Shotwell, Director, Office of Defense Trade Controls Policy, Directorate of Defense Trade Controls, U.S. Department of State                                                                                                   Topic: Commodity Jurisdiction: Trends and Statistics; Automation Update  

Labels: DDTC, Export Controls

Yesterday the Senate Committee on Banking, Housing, and Urban Affairs approved the nominations of Kevin Wolf to serve as Assistant Secretary of Commerce for Export Administration and David Mills to be Assistant Secretary of Commerce for Export Enforcement.

The Senate Banking Committee held a hearing to consider these and other Obama Administration nominees on January 21, 2010. The webcast of the hearing can be viewed here. 

On November 5, 2009, the Senate Banking Committee held a hearing on the nomination of Eric Hirschhorn to serve as Under Secretary of Commerce for Export Administration, the most senior position at the Bureau of Industry and Security. Mr. Hirschhorn's nomination was reported to the full Senate and has been included on the Senate calendar since December 17, 2009. However, the Senate has not yet held a vote on Mr. Hirschhorn's nomination or the nominations of several other nominees.

Labels: BIS, Congress

The Justice Department announced today that Mr. Yi-Lan Chen, aka “Kevin Chen,” who holds a Taiwan passport, was arrested yesterday in Guam on charges of illegally exporting commodities for Iran’s missile program in violation of the International Emergency Economic Powers Act (IEEPA) and the Iranian Transactions Regulations administered by the Treasury Department's Office of Foreign Assets Controls

According to the affidavit filed in support of the criminal complaint filed in federal court in Miami, Florida, Mr. Chen allegedly facilitated the purchase and export of various dual-use products from the U.S. to Iran by way of Taiwan and Hong Kong, including P200 turbine engines and spare parts, sealing compound, glass to metal pin seals, and circular hermetic connectors.

Federal agents learned of Chen’s efforts to obtain and export U.S. goods and commodities after Chen apparently attempted to export detonators through a California company. An investigation allegedly revealed that Chen’s ultimate customers were located in Iran and included Electro SANAM Industries, which has been linked to Iran's ballistic missile program, and the owner of a company in Tehran linked to chemical research and development facilities in Iran.

After receiving orders from customers in Iran, Chen apparently requested quotes, usually by e-mail, from U.S. businesses and made arrangements for the sale and shipment of the goods to freight forwarders in Hong Kong and Taiwan. Once in Hong Kong or Taiwan, the goods were then shipped to Iran.

If convicted, Chen faces a statutory maximum sentence of up to 20 years in prison and fines of up to $1 million.

Labels: Export Controls, Sanctions; Iran

On February 1st, Secretary of Defense Robert Gates delivered the 2010 Quadrennial Defense Review (QDR) report to Congress. The QDR, which was mandated by Congress in the National Defense Authorization Act for Fiscal Year 1997 (10 USC 118(a)), is intended to be a "comprehensive examination of the national defense strategy, force structure, force modernization plans, infrastructure, budget plan, and other elements of the defense program and policies of the U.S."

In addition to discussing U.S. defense capabilities, strategy and objectives, the 2010 report focused on reforming the way that that the Pentagon does business and included an extensive discussion on the need to reform the U.S. export control system. While export control reform was mentioned in previous QDRs, the 2010 report contained an extensive discussion of the need to reform U.S. export control laws and called the current system "a relic of the Cold War" and noted "system itself poses a potential national security risk."

The export control section of the 2010 QDR is reprinted below:

Today’s export control system is a relic of the Cold War and must be adapted to address current threats. The current system impedes cooperation, technology sharing, and interoperability with allies and partners. It does not allow for adequate enforcement mechanisms to detect export violations, or penalties to deter such abuses. Moreover, our overly complicated system results in significant interagency delays that hinder U.S. industrial competitiveness and cooperation with allies.

The United States has made continuous incremental improvements to its export control system, particularly in adding controls against the proliferation of weapons of mass destruction and their means of delivery. The United States has also been a leader in international export controls, creating and improving the multilateral regimes made up of U.S. allies and trading partners that control what is exported to countries of concern to the United States. The regimes also have
become a global control standard via United Nations Security Council resolutions. They help ensure that key technologies and items available in numerous countries are controlled in order to prevent their acquisition by actors who would use them contrary to U.S. and allied interests.

However, the current system is largely out-dated. It was designed when the U.S. economy was largely self-sufficient in developing technologies and when we controlled the manufacture of items from these technologies for national security reasons. Much of the system protected an extensive list of unique technologies and items that, if used in the development or production of weapons by the former Soviet Union, would pose a national security threat to the United States.

The global economy has changed, with many countries now possessing advanced research, development, and manufacturing capabilities. Moreover, many advanced technologies are no longer predominantly developed for military applications with eventual transition to commercial uses, but follow the exact opposite course. Yet, in the name of controlling the technologies used in the production of advanced conventional weapons, our system continues to place checks on many that are widely available and remains designed to control such items as if Cold War economic and military-to-commercial models continued to apply.

The U.S. export system itself poses a potential national security risk. Its structure is overly complicated, contains too many redundancies, and tries to protect too much. Today’s export control system encourages foreign customers to seek foreign suppliers and U.S. companies to seek foreign partners not subject to U.S. export controls. Furthermore, the U.S. government is not adequately focused on protecting those key technologies and items that should be protected and ensuring that potential adversaries do not obtain technical data crucial for the production of sophisticated weapons systems.

These deficiencies can be solved only through fundamental reform. The President has therefore directed a comprehensive review tasked with identifying reforms to enhance U.S. national security, foreign policy, and economic security interests. Reform efforts must reflect an inherently interagency process as current export control authorities rest with other departments. Similarly, meaningful reforms will not be possible without congressional involvement throughout the process. The Department of Defense has a vital stake in fundamental reform of export controls, and will work with our interagency partners and Congress to ensure that a new system fully addresses the threats that the United States will face in the future.

The Treasury Department's Office of Foreign Assets Control (OFAC) published in yesterday's Federal Register the Belarus Sanctions Regulations (31 C.F.R. Part 548) to implement Executive Order 13405 issued by President Bush in June 2006 that authorized the blocking of assets of individuals and entities determined to be responsible for undermining democratic processes or institutions in Belarus or engaging in political repression or public corruption.

The Belarus Sanctions Regulations are targeted only at certain persons and entities who have been specifically designated by the U.S. and do not prohibit trade or the provision of banking or other financial services involving  Belarus, unless the transaction or service involves a person whose property and interests in property have been blocked.

The names of persons and entities in Belarus and elsewhere whose property and interests in property are blocked pursuant to EO 13405 are included on OFAC's Specially Designated Nationals and Blocked Persons List (‘‘SDN’’ list) with the identifier "[BELARUS]." Included on the SDN List is Belneftekhim, the largest enterprise in Belarus and was previously the largest exporter of Belarusian products to the United States.

Labels: Belarus, OFAC

In a notification required by the National Defense Authorization Act for Fiscal Year 2010, President Obama today sent a letter to Congress stating that the Obama Administraition will not reinstate North Korea as a state sponsor of terrorism since it "does not meet the the statutory criteria to again be designated as a state sponsor of terrorism."

Former President George W. Bush announced in June 2008 that North Korea would be removed as a state sponsor of terrorism and in October 2008 Secretary of State Rice signed an order rescinding the designation of North Korea as a state sponsor of terrorism.

Currently, Cuba, Iran, Syria and Sudan are designated as state sponsors of terrorism by the U.S.

Although North Korea is no longer designated as a state sponsor of terrorism is rescinded, North Korea is still included in Country Group E:1 and an export license is required to export or reexport any item subject to the EAR to North Korea, except food and medicines classified as EAR99. While many products are subject to the policy of denial of export licenses, certain humanitarian and other products are subject to a licensing policy of approval.

North Korea also remains subject to a U.S. arms embargo and is subject to a variety of OFAC sanctions, including a prohibition on the import of North Korean products.

Labels: North Korea

The State Department's Directorate of Defense Trade Controls (DDTC) announced today that it entered into a consent agreement this week with Kaltenkirchen, Germany-based Interturbine Aviation Logistics GmbH, and its Grand Prairie Texas branch office, Interturbine Aviation Logistics GmbH, LLC, to resolve violations of the Arms Export Control Act (AECA) and International Traffic in Arms Regulations (ITAR) allegedly committed in 2004. The Interturbine companies are distributors of a wide range of products for the international commercial aviation sector.

This case marks the first penalty action taken by DDTC in 2010. It is widely expected that DDTC this year will conclude many more than the consent agreements that were finalized in 2009.

According to the Proposed Charging Letter, DDTC alleged that Interturbine committed seven violations of the ITAR associated with the unlicensed export to Germany of  400 kilograms of a heat resistant protective coating classified in USML Category IV(f) that can be used on missiles to protect high heat areas. The Proposed Charging Letter notes that even though the product was indicated in the company's inventory system as export controlled, some senior members of the company in Germany bypassed the company's normal procedures to order the product from its U.S. affiliate for shipment to a customer in Germany. After the product was shipped from Texas to Germany as NLR, the German customer later contacted Interturbine about the lack of an export license, suspended payment and quarantined the shipment. The material was subsequently returned to the U.S. and seized by U.S. Customs and Border Protection. A criminal investigation was then initiated by U.S. Immigration and Customs Enforcement.

Although the criminal case was later dropped as a result of the company's remedial measures, DDTC charged the company with one count of exporting the ITAR-controlled material to Germany without the proper license, one count of misrepresentation and omission of facts, two counts of willfully causing an unauthorized export, one count of exporting a defense article without being registered with DDTC, one count of failing to obtain a non-transfer and use certificate (DS-83) and one count of an unauthorized retransfer.

Under the consent agreement, Interturbine agreed to pay a civil penalty of $1,000,000, of which $900,000 will be suspended. DDTC agreed to suspend $500,000 of the penalty on the condition that Interturbine has already applied that amount to self-initiated, pre-consent agreement remedial compliance measures. In addition, $400,000 will be suspended on the condition that Interturbine maintains its self-initiated exclusion from all ITAR regulated activities.

If within the two-year term of this Consent Agreement Interturbine decides to become involved in ITAR regulated activities, Interturbine agreed to use this $400,000 for additional remedial compliance measures agreed to by the Department.  Interturbine will also be subject to an independent audit to ensure that its company-wide Automated Export Control system prevents its involvement in all ITAR regulated activities and agreed to on-site reviews by DDTC. 

Labels: ITAR