On April 2, the Bureau of Industry and Security (BIS) published a final rule in the Federal Register amending the Export Administration Regulations (EAR) to implement the recommendations presented at the February 2017 Australia Group (AG) Intersessional Implementation Meeting, and later adopted pursuant to the AG silent approval procedure, and the recommendations made at the June 2017 AG Plenary Implementation Meeting and adopted by the AG Plenary.

The Australia Group (AG) is “an informal forum of countries which, through the harmonization of export controls, seeks to ensure that exports do not contribute to the development of chemical or biological weapons. Coordination of national export control measures assists Australia Group participants to fulfil their obligations under the Chemical Weapons Convention and the Biological and Toxin Weapons Convention to the fullest extent possible.”

The following Export Control Classification Numbers (ECCNs) on the Commerce Control List (CCL) have been updated to reflect the February 2017 Intersessional Implementation Meeting recommendations that were adopted by the AG:

  • ECCN 2B350 (by adding certain prefabricated repair assemblies, and specially designed components therefor, that are designed for attachment to glass-lined reaction vessels, reactors, storage tanks, containers or receivers controlled by this entry);
  • ECCN 2B351 (by clarifying that toxic gas monitoring equipment includes toxic gas monitors and monitoring systems, as well as their dedicated detecting components); and
  • ECCN 2B352 (by adding certain nucleic acid assemblers and synthesizers to this entry and clarifying how the capacity of certain fermenters should be measured for purposes of determining whether they are controlled under this entry).

Consistent with the June 2017 AG Plenary Implementation Meeting recommendations that were adopted by the AG, this rule amends the following ECCNs on the CCL:

  • ECCN 1C350 (by addingN,N-Diisopropylamino­ethanethiol hydrochloride).
  • ECCN 1C353 (to clarify that genetically modified organisms include organisms in which the nucleic acid sequences have been created or altered by deliberate molecular manipulation and that inactivated organisms containing recoverable nucleic acids are considered to be genetic elements).
  • This rule also corrects several typographical errors in a note to ECCN 1C351 and updates the advance notification requirements in the EAR that apply to certain exports of saxitoxin.

Finally, the EAR has been amended to reflect the addition of India as a participating country in the AG.

Because of this, this rule makes “conforming amendments to the EAR to reflect the addition of India to the AG, as of January 19, 2018. Specifically, this rule amends the entry for India in the Commerce Country Chart (Supplement No. 1 to part 738 of the EAR) by removing the ‘‘X’’ from this entry under the column CB 2. In addition, this rule amends the Country Groups chart (Supplement No. 1 to part 740 of the EAR) by adding an ‘‘X’’ to the entry for India under column A:3, Australia Group.”

On March 22, the Bureau of Industry and Security (BIS) issued a final rule (“March Rule”) that (1) added 23 persons to its Entity List, (2) removed one person from the Entity List, and (3) corrected a licensing requirement inaccurately described in a previous rule related to twelve previously designated Russian entities.

(1) New Designees: The March Rule also adds twenty-three persons to the Entity List. These include: (a) 15 persons added in South Sudan for being government, parastatal, or private entities acting contrary to U.S. foreign policy interests; (b) two persons in Singapore and Pakistan added for seeking to procure U.S.-origin items for nuclear-related entities in Pakistan; and (c) five entities in Pakistan for being involved in the proliferation of unsafeguarded nuclear activities and/or assisting others in evading Entity List restrictions. For all 23 persons, BIS imposed a licensing requirement for all items subject to the Export Administration Regulations (“EAR”) with a presumption of denial.

(2) Removed Designees: BIS also chose to remove one designee in the UAE and one in Ecuador based on “information received by BIS” from those entities and a review undertaken by the End-User Review Committee (“ERC”).

(3) Correction of Licensing Requirement: Finally, BIS corrected an error in a final rule published on February 16 (“February Rule”), which had added 21 entities to the Entity List.

Specifically, the February Rule had added 12 entities to the Entity List to support a parallel designation of these entities by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) pursuant to Executive Order 13662 on its Sectoral Sanctions Identification (“SSI”) list. The February Rule had, however, inconsistently described the licensing requirements applicable to these 12 entities (the other 9 entities were designated by OFAC as Specially Designated Nationals (“SDN”) and the BIS Entity List licensing requirement was correctly described).

Specifically, the preamble to the February Rule correctly stated that a “license is required for exports, re-exports, or transfers (in-country) of all items subject to the [Export Administration Regulations] EAR, when the exporter, re-exporter or transferor knows that the item will be used directly or indirectly in exploration for, or production of, oil or gas in Russian deep water (greater than 500 feet) or Arctic offshore locations or shale formations in Russia, or is unable to determine whether the item will be used in such projects.” That tailored requirement is consistent with the tailored licensing requirements BIS had previously imposed on entities designated by OFAC as subject to its sectoral sanctions program.

However, the February Rule also included a more general, and conflicting, entry for each of the 12 entities. Specifically, BIS had stated in its conclusion that a license was required for all items subject to the EAR for all end uses for all entities identified in the February Rule; this was a correct description of the requirements applicable to the nine designees who had been designated by OFAC as SDNs, but was too broad of a statement for the 12 designees designated by OFAC as SSIs.

The March Rule clarifies the February Rule and removes the conflict. Specifically, the March Rule confirms that the 12 entities subject to OFAC’s sectoral sanctions program (i.e., designated as SSIs) are subject only to the more limited licensing requirements related to all items subject to the EAR when used in projects specified in § 746.5 of the EAR. The broader restriction on the nine SDNs remains in place and was not modified in the March Rule.

On February 15, 2018, Representative Ed Royce, Chairman of the House Foreign Affairs Committee, introduced new legislation intended to “modernize U.S. export control regulations of dual-use items.”

In spite of its title, the Export Control Reform Act of 2018 (H.R. 5040) does little to further the original goals of the Export Control Reform initiative and appears more squarely focused on using the Export Administration Regulations to prevent U.S. adversaries — principally the PRC — from gaining access to U.S. “emerging critical technologies,” whether dual-use or solely commercial. The bill is the newest in a series that have been introduced without success since the Export Administration Act lapsed in 2001. Its fate appears tied to the ongoing CFIUS reform efforts, which this bill seeks to complement by enhancing regulatory controls on technology transfers of concern.

Much of the legislation would codify the current practices of the Department of Commerce and other U.S. export control regulatory agencies, and so do not appear to present significant changes. Notably, however, the bill diverges sharply with respect to its proposed definition of “U.S. Persons,” which excludes entities organized under U.S. law unless U.S. individuals “own, directly or indirectly, more than 50 percent of the outstanding capital stock or other beneficial interest in such legal entity.” The definition appears unworkable; publicly traded companies would have difficulty certifying that they meet a 50 percent U.S. ownership requirement, and, absent a comprehensive licensing mechanism or a broad exemption scheme, foreign-owned U.S. companies would be effectively unable to manufacture and export CCL-controlled items.

Other sections of the legislation appear focused on expanding congressional oversight of the Departments of State and Commerce’s ability to license or otherwise authorize activities with the U.S. embargoed countries or nationals thereof. The provisions reflect a congressional desire to curtail the Executive branch from unilaterally relaxing such export controls, seemingly in reaction to the previous administration’s approach toward Cuba.

Earlier this month, BIS’ Office of Boycott Compliance announced a Settlement Agreement with Mitsui Plastics, Inc., a domestic concern doing business in New York, to settle its potential civil liability for nine alleged violations of the Export Administration Regulations (EAR).

Charges Details Summary Enforcement Action
§ 760.2(d) Furnishing Information about Business Relationships with Boycotted Countries or Blacklisted Persons In connection with the sale and/or transfer of goods from the U.S. to Bahrain, Mitsui, on two occasions “furnished information concerning another person’s business relationships with another person who is known or believed to be restricted from having any business relationship with or in a boycotting country.” Civil Monetary Penalty of $28,600
§ 760.5 Failing to Report the Receipt of a Request to Engage in a Restrictive Trade Practice or Foreign Boycott Against a Country Friendly to the United States Also in connection with the sale and/or transfer of goods from the U.S. to Bahrain, Mitsui, on seven occasions “received a request to take an action which would have the effect of furthering or supporting a restrictive trade practice or unsanctioned foreign boycott. Mitsui failed to report its receipt of these requests to the Department…”

On February 12, the State Department’s Directorate of Defense Trade Controls (DDTC) published a Federal Register Notice seeking comments to inform its review of controls implemented in recent revisions to the following United States Munitions List (USML) Categories:

V – Explosives and Energetic Materials, Propellants, Incendiary Agents, and Their Constituents;

X – Personal Protective Equipment; and

XI – Military Electronics

Commerce’s Bureau of Industry and Security (BIS) also published a notice on February 12. The agency is seeking public comments to perform a complementary review of items on the Commerce Control List (CCL) concurrent with DDTC’s review to ensure that the descriptions of these items on the CCL are clear, items for normal commercial use are not inadvertently controlled as military items on the USML, technological developments are accounted for on the control lists, and controls properly implement the national security and foreign policy objectives of the United States.

This is part of DDTC and BIS’ periodic post-Export Control Review (ECR) of the USML/CCL.

Comments for both notices are due on April 13.

BIS published a Final Rule in the January 26 Federal Register adding 21 persons to the Entity List, Supplement No. 4 to part 744 of the Export Administration Regulations (EAR).

The Entity List identifies entities and other persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The EAR imposes additional license requirements on, and limits the availability of most license exceptions for, exports, re-exports, and transfers (in-country) to those listed.

These twenty-one persons will be listed on the Entity List under the destinations of Bulgaria, China, Kazakhstan, Russia, Syria, and the United Arab Emirates (U.A.E.).

Among the 21 are a number of entities from China, Kazakhstan, Russia, and the U.A.E. They are:

Country Name
China Chengdu Spaceon Technology Co., Ltd., along with the alias “Tianao Electronics Co. Ltd.”
Kazakhstan/Russia Abtronics
UAE Advanced Aerospace Industries
UAE Deira General Marketing
UAE DGL Clearing and Forwarding LLC
UAE Emitech Middle East FZC
UAE Eurotech DMCC
UAE Foremost International FZE
UAE Jazirah Aviation Club
UAE Modest Marketing LLC
UAE Pearltrainer FZE
UAE Sky Gulf Consultancy and Researches LLC
UAE Stealth Telecom FZC

In addition, this rule amends the EAR by removing three entities from the Entity List. This rule removes one entity listed under the destination of Taiwan and two entities listed under the destination of the U.A.E. from the Entity List. All three of the removals are the results of requests for removal received by BIS pursuant to the section of the EAR used for requesting removal or modification of an Entity List entry and a review of information provided in the removal requests.

Finally, this final rule modifies two existing entries on the Entity List. This rule modifies one entry under China and one entry under Pakistan to provide additional or modified addresses and/or names for these persons

 

 

 

On January 11, BIS announced a Settlement Agreement with MHz Electronics, Inc. of Phoenix, AZ, to settle its potential civil liability for two alleged violations of the Export Administration Regulations (EAR).

Charges Details Summary Enforcement Action
§ 764.2(a) Engaging in Prohibited Conduct On two occasions in 2013, the company exported pressure transducers subject to the EAR under Export Control Classification Number (ECCN) 2B230 without a license to China and Taiwan Civil Monetary Penalty of $10,000

Complete an external audit of its export controls compliance program

BIS found the company did not seek to determine the ECCN of the items, intended end use, end users, or otherwise determine if an export license was required. MHz Electronics, at the time, did not have any program in place to ensure U.S. export control compliance.

On December 20, 2017, the Bureau of Industry and Security (BIS) added two Russian companies to  its Entity List because they provided technology which aided the development of a new Russian cruise missile—the nuclear-capable Novator 9M729 missile (designated by NATO as the SSC-8)—which the U.S. alleges is a violation of the 1987 Intermediate Nuclear Forces Treaty (INF).

BIS’s action is part of the new Trump Administration INF Treaty Integrated Strategy. It states, “While the United States will continue to pursue a diplomatic solution, we are now pursuing economic and military measures intended to induce the Russian Federation to return to compliance.” In addition to the first BIS designations related to alleged INF treaty violations, the U.S. is beginning research and development on its own new nuclear cruise missile, an action that Russia is alleging represents a separate violation of the INF Treaty.

The two designated parties are: (1) Joint Stock Company Experimental Design Bureau Novator; and (2) Joint Stock Company Federal Scientific and Production Center Titan-Barrikady.

On January 8, the Treasury Department published its quarterly ‘List of Countries Requiring Cooperation with International Boycott’ in the Federal Register.

On the basis of the best information currently available to the Department of the Treasury, the following countries require or may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986:

  • Iraq, Kuwait, Lebanon, Libya, Qatar, Saudi Arabia, Syria, United Arab Emirates, and Yemen.

This list is unchanged from Treasury’s last Federal Register Notice regarding boycott, published on August 2, 2017.

Office of Foreign Assets Control (OFAC)

  • On November 17, American Express Company (AMEX) agreed to pay $204,277 to settle its potential civil liability for 1,818 alleged violations of the Cuban Assets Control Regulations (CACR). The violations occurred between 2009 and 2014, at which time a wholly-owned subsidiary of AMEX, Alpha Card Group, owned 50 percent of BCC Corporate SA (BCCC), a Belgium-based credit card issuer and corporate service company. Alpha Card and BCCC failed to implement controls to prevent its credit cards from being used in Cuba. AMEX and BCCC voluntarily self-disclosed the violations. OFAC determined this was a non-egregious case.
    • Aggravating factors included:
      • Personnel within both Alpha Card and BCCC had reason to know of the conduct that led to the apparent violations.
      • Despite Alpha Card’s business model prior to its acquisition of BCCC in March 2009, in which it dealt exclusively with AMEX-related products (and therefore had insight into all the parties involved in any transactions throughout the network), none of the companies involved appear to have appreciated the possibility or risk that BCCC-issued credit cards could be used in Cuba, and the company should have taken steps to assess the level of sanctions risk, and related controls, for BCCC-issued credit cards.
      • The apparent violations resulted in harm to U.S. sanctions program objectives at the time they occurred.
      • AMEX is a large and commercially sophisticated financial institution.
      • During OFAC’s investigation, AMEX and BCCC provided certain information on multiple occasions that was verifiably inaccurate or incomplete, including material omissions.
    • Mitigating factors included:
      • BCCC has not received a penalty notice or Finding of Violation from OFAC in the five years preceding the earliest date of the transactions giving rise to the apparent violations.
      • Upon discovering the apparent violations, AMEX took swift and appropriate remedial action.
      • AMEX and BCCC voluntarily self-disclosed the apparent violations to OFAC.
      • BCCC signed a statute of limitations tolling agreement and tolling agreement extensions.
  • On November 28, OFAC issued a Finding of Violation to Dominica Maritime Registry, Inc. (DMRI) of Fairhaven, Massachusetts, for a violation of the Iranian Transactions and Sanctions Regulations (ITSR). On July 4, 2015, the company executed a binding Memorandum of Understanding, which OFAC determined to be a contingent contract, with the National Iranian Tanker Company (NITC), an entity of the Government of Iran. The company did not voluntarily disclose the violation. OFAC ruled it a non-egregious case.
    • Aggravating Factors:
      •  DMRI failed to exercise a minimal degree of caution or care by executing a contingent contract with an entity it knew was listed on the SDN List at the time of the violation.
      • DMRI executives had actual knowledge of, and actively participated in, the conduct the led to the violation, and were aware of NITC’s status when DMRI executed the contingent contract.
      • DMRI undermined the policy objectives of the ITSR by dealing in the blocked property of a Government of Iran entity identified on the SDN List.
    • Mitigating factors included:
      • DMRI had not received a penalty notice or Finding of Violation from OFAC in the five years preceding the date of the transaction giving rise to the violation.
      • DMRI is a small company.
      • DMRI took remedial actions, including engaging trade counsel to assist it in understanding its obligations under U.S. sanctions laws, updating its OFAC compliance procedures, and undertaking a process to establish an OFAC compliance training program for all employees.
    • OFAC determined a Finding of Violation was the appropriate enforcement response because DRMI is a small company, the scope of the contract at issue was limited, and there was no performance on the contract.

Bureau of Industry and Security (BIS)

  • On November 20, BIS announced a Settlement Agreement with Pilot Air Freight, LLC (a.k.a. Pilot Air Freight Corp.) of Lima, Pennsylvania, to settle potential civil liability for one alleged violation of the Export Administration Regulations (EAR). In February 2015, Pilot allegedly aided or abetted an attempted unlicensed exported to IKAN Engineering Services in Pakistan, an entity on BIS’ Entity List. The item was an ultrasonic mill cutting machine controlled for Anti-Terrorism reasons, and valued at more than $250,000.
    • Pilot was assessed a civil penalty of $175,000.
    • The company agreed to complete two external audits of its export controls compliance program.

For more information, contact: Jeff Snyder, Edward Goetz