Home / News / The Export Control Update: May 2016

It’s Pho Real!   Obama Lifts US Arms Embargo on Vietnam

By: John Black

During his visit to Vietnam, President Obama announced that the US was lifting its long standing arms embargo on Vietnam.   While this may not result in an immediate flood of US weapons to Vietnam, it paves the way for US exporters and foreign companies who sell US military items to seek new, yet perhaps relatively modest, business opportunities in Vietnam.  

On May 23, 2016, the Department of State's Directorate of Defense Trade Controls announced is it ending its policy prohibiting the sale or transfer of lethal weapons to Vietnam.   DDTC said it will review on case-by-case basis applications for licenses to export or temporarily import defense articles and defense services to or from Vietnam under the International Traffic in Arms Regulations (ITAR). DDTC will soon publish a rule in the Federal Register to implement a conforming change to ITAR §126.1.

While the US Commerce Department’s Bureau of Industry and Security (BIS) has not yet officially announced it will make corresponding changes to the Export Administration Regulations (EAR) to remove the EAR/ ITAR-lite arms embargo on Vietnam, it is reasonable to assume that BIS will do so in approximately the same “soon” timeframe as DDTC’s ITAR change.

"The decision to lift the ban was not based on China... but on our desire to complete what has been a lengthy process moving towards normalization with Vietnam," Obama said at a joint press conference alongside his Vietnamese counterpart President Tran Dai Quang.   A casual observer like me, however, cannot help but think that to a certain extent this US action is intended to send a clear symbolic, and perhaps tangible, signal to China in response to China’s recent empire expanding actions in the South China Sea including, for example, building a military air base on the Spratly Islands, which most of the world do not recognize to be Chinese territory.

Vietnam’s economy has been growing at an impressive rate compared to other countries in the region in recent years as it has begun to be a low cost manufacturing source that is taking some manufacturing opportunities away from China as Chinese manufacturing costs increase.  According to the latest CIA statistics, Vietnam has the 36th highest GDP in the world and its industrial production growth rate of 7.5% is the 15th highest in the world.  This is not to say that Vietnam soon will be cranking out  a high volume of low cost ITAR and EAR controlled military parts as it becomes a regional military manufacturing powerhouse.  It is unlikely that the US Government is prepared to approve the transfer of technology for the production of sophisticated military items to Vietnam anytime soon and equally unlikely that Vietnam has the capability to do so.  Nonetheless, this shift in US-Vietnam economic relations removes the US arms embargo as a cloud hanging over trade between the two countries and is another step in improving US-Vietnam relations.  Certainly too, some extent this enhances Vietnams status in the region.

North Korean Ruler Kim Jong-un was unavailable for comment.

 

 

 

Export Control Reform Is Not Dead

By: John Black

Maybe you were beginning to feel comfortable with the sweeping changes to US export controls resulting from the Obama Administration’s Export Control Reform Initiative.   Well, the regulatory change party isn’t over.  Get out your reading glasses and free up some time in your calendar because it won’t be long before the EAR-ITAR definitions clean-up regulations hit the street.  In 2015, DDTC and BIS published proposed, so-called harmonization rules to harmonize EAR and ITAR definitions of terms such as export, publicly available/public domain and others.  At first glance I thought the proposed EAR and ITAR rules were not harmonization because they proposed to have different definitions of many key terms.  Then the musicians in my family reminded me that when two people sing harmony they do not sing the same note at the same time but they sing different notes at the same time.  So I guess the proposal to have definitions in harmony was musically correct because the definitions were not the same.

 It’s easier for me to talk about the rules as definitions clean up, updates or clarifications, or perhaps just changes.  In any event, putting aside the name I prefer to use, this is a high level overview of what I/we should expect:

  • Clarifications of the EAR definitions of export (something leaves the US), reexport (something goes from one foreign country to another) and retransfer (change in end-use or end-user).

  • Stating in the EAR that a person’s country status under the EAR deemed export rule is the most recent country of citizenship or permanent resident status.

  • If technical data, technology or software is electronically transmitted or moved using end-to-end encryption, and is not intended for storage in the most sensitive export control countries such as China, Russia, and arms-embargoed countries, it is not an unauthorized export if electronic transmissions transit countries for which the a license would be required for the content of the transmission.

  • The EAR will include provisions to apply the ITAR 126.18 and 124.16 concepts to EAR deemed reexports of technology or source code.  Deemed reexports from Country Group A:5 STA eligible countries to nationals of any of those A:5 countries will be authorized.  Deemed EAR reexports involving other countries and nationals will be authorized along the lines of ITAR 126.18 which means the deemed reexporter has an NDA from the recipient, a compliance procedure to vet/control the deemed reexport and there is no substantive contact with problem countries.

  • The EAR will include provisions to apply ITAR special arrangements involving countries such as Canada, the UK and Australia to EAR issues.

  • The EAR will require that the license applicant inform all other parties in the license of the license scope and conditions.

  • The EAR will clarify that technology that is an input into a fundamental research is not fundamental research. 

To a large extent, the definition changes will merely clarify that the definitions mean what you thought they meant, which will increase your confidence in your understanding of the regulations and, hopefully, make it easier for you to explain and apply the rules in your organization, and perhaps help you to sleep better at night.  Clarification, even without hope for changes to the restrictions and requirements, is something I always appreciate because for me it is always better to understand the rules than to agree with them.

In any event, once the new changes are out, it will be time to join me as I print out the Federal Register notices, get some small sticky notes and a couple highlighter pens, pour yourself a big cup of coffee, and start to read the notices, including the preamble text, and study the new rules.  I am looking forward to it, and I hope you are too.

 

 

 

Commerce/BIS: "Cuba: Exports and Reexports of Foreign-Made Items"

(Source: Commerce/BIS)

Both the Department of Commerce's Bureau of Industry and Security (BIS) and the Department of the Treasury's Office of Foreign Assets Control (OFAC) administer Cuba sanctions pursuant to the Export Administration Regulations (EAR) (15 C.F.R. Parts 730-774) and the Cuban Assets Control Regulations (CACR) (31 C.F.R. Part 515), respectively.  Most export or reexport transactions require general or specific authorizations from both BIS and OFAC.  OFAC has issued a general license authorizing all transactions ordinarily incident to the exportation of items from the United States, or the reexportation of 100 percent U.S.-origin items from a third country, to any person in Cuba, provided that the exportation is licensed or otherwise authorized by BIS.  See 31 C.F.R. § 515.533.
 

Accordingly, for those BIS-licensed exports or reexports, further OFAC authorization generally is not needed.  However, in some cases, a specific license from OFAC may be required in connection with BIS-authorized exports or reexports.  For example, although BIS may authorize the export to Cuba of foreign-made items from the United States, persons may require a specific license from OFAC for the initial importation into the United States of items specifically intended for export to Cuba.  


Additionally, even if BIS has authorized the reexport of items that are not 100 percent U.S.-origin to Cuba, persons subject to U.S. jurisdiction would also require a specific license from OFAC to reexport the items, and OFAC's consideration of applications for such licenses may be subject to statutory restrictions.  See 31 C.F.R. § 515.559.

For additional information regarding BIS's Cuba sanctions, please visit http://www.bis.doc.gov/cuba. You may also call BIS's Foreign Policy Division (202-482-4252). 

For additional information regarding OFAC's Cuba sanctions, please visit http://www.treasury.gov/cuba.

You may also call OFAC's toll free hotline (800-540-6322), its local hotline (202-622-2490), or the Licensing Division (202-622-2480), or send a message to OFAC's email hotline account (ofac_feedback@treasury.gov).

 

 

 

Export Business Manager Pleads Guilty to Attempted Illegal Exports to Iran

By: Danielle McClellan

Asim Fareed (age 51) of North Brunswick, NJ operated an export business in Somerset, NJ that agreed to ship items purchased by customers in Iran. Fareed provided false documentation to the US Department of Commerce for export purposes between 2013 and 2015. He created invoices that contained false information related to the identity and geographic location of the purchasers of the goods. The items were supposed to be shipped from the US to the UAE and then onto Iran. The items never were actually shipped.

Asim Fareed agreed to enter a plea to conspiracy to provide false statements in connection to the illegal export of goods to Iran. "The Office of Export Enforcement vigorously pursues violators of our nation's export control laws, which are in place to further and protect our national security and foreign policy.  As in this instance, we work closely with our colleagues at HSI and other law enforcement agencies in prosecuting this case," said Jonathan Carson, Special Agent in Charge, U.S. Department of Commerce, Bureau of Industry and Security, Office of Export Enforcement, New York Field Office.
 

“This case demonstrates how far individuals will go to circumvent U.S. export laws to export goods to countries like the Islamic Republic of Iran,” said Angel M. Melendez, special agent in charge of HSI in New York. “The Iran Trade Embargo prohibits Americans from supplying goods, technology and services to Iran directly or indirectly. HSI is committed to aggressively pursuing those who conduct illegal business with Iran.” 
 

The case was investigated by the Department of Commerce, Office of Export Enforcement and U.S. Immigration and Custom Enforcement’s (ICE), Homeland Security Investigations (HSI).  Assistant U.S. Attorney Todd K. Hinkley is prosecuting the case.


More information: https://www.justice.gov/usao-mdpa/pr/new-jersey-man-charged-conspiracy-provide-false-statements-related-export-prohibited

 

 

 

Successful Violations for Dummies:  Don’t Fly to the US when Attempting to Arrange Illegal Exports


New Zealand Man Arrested in Seattle After Contacting Undercover Agent

By: Danielle McClellan

William Ali, a New Zealand man has been indicted in Seattle on federal charges that he attempted to purchase aircraft parts in the US that he planned to sell to a client in China. Last year Ali contacted a US company looking for “aircraft parts called accelerometers.” These parts are developed for low or zero gravity navigation systems used in spacecraft and aircraft and any one selling the items must have an export license (Ali did not).

A Homeland Security agent began to investigate Ali shortly after he contacted the company looking to purchase the accelerometers. The agent and Ali exchanged emails and Ali admitted that he knew there were controls on the sale of the items that he was looking to buy and that trying to buy them was turning out to be difficult. He also explained that he didn’t think he could get an export license for the parts so he was trying to purchase them through different sources. His client was looking for a “huge quantity” of the product because they were “manufacturing a variant of the MA60 aircraft and needed high-quality US parts” according to the criminal complaint.

After considering all of his options, Ali flew to Seattle to pick up the pars where he was arrested when he arrived on April 11, 2016.

More Details: http://www.seattletimes.com/seattle-news/crime/new-zealand-man-faces-illegal-export-charges-in-seattle/

 

 

 

Port of Export Code Updated in the Automated Export System

(Source: census@subscriptions.census.gov, 12 May 2016)

Port of Export Code Updated in the Automated Export System (AES)

Please note the following Port of Export code has been UPDATED in the AES effective immediately.

   Port Code Description   Allowed MOTs

   3901         Chicago, IL   Vessel, Air

Rail is no longer an Allowed MOT for Port of Export 3901.

 

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