LEGL4900 Ch. 13

extraterritorial jurisdiction

a nation, as a matter of law, be able to extend the power of its export control laws over its goods and technology once they have left its territory

dual-use items

those commercial items that may also have military, terrorist, or "proliferation" uses

reexport

the shipment or transfer of American-controlled items or technology from one foreign country to another foreign country or foreign person

foreign policy controls

controls used to promote the foreign policy goals of the US and for the following reasons...

deemed reexport

the release or transfer of an item from someone who was licensed to receive it to a different foreign person

deemed export

the release or transfer of any item subject to control, including technology or software, to a foreign person in the United States; export is deemed to be to the home country of the foreign person, and depending on the item and country, may require licensing

diversion

the unlawful transfer, transshipment, rerouting, or reexporting of controlled goods or technology from one destination to which the goods or technology were legally shipped to another destination or foreign person who has not been licensed to receive the items

short supply controls

to protect the US economy from excessive foreign demand for scarce materials; can be used to preserve needed food and ag products, medicines or vaccines, or natural resources

Export Control Classification Number

CCL and CCC used together identify items by an _____, give reasons for control for each, and tell whether a license is required for export to specific countries

license exception

an authorization to export without a license

Commerce Country Chart

Details which countries can and cannot be shipped to/from

Commerce Control List

Details which products can and cannot be shipped to certain countries

multilateral sanctions

Sanctions imposed by more than one country; usually more effective than sanctions that don't have universal support

United States v. Mousavi

addresses the issue of the defendant's willful intent, or willfulness, in his violation of IEEPA Mousavi immigrated to the US from Iran and became a naturalized citizen in 1999. He operated two businesses but during 2006 audit IRS discovered that he had unreported income of $45,000 from a Kuwaiti company to help him develop his business in Iran, including a development of a prospective gas pipeline from Iran to Kuwait. Mousavi had no license from OFAC to transact business with Iran so he was convicted in US District Court for violating a US embargo of Iran under the IEEPA and the Iranian Transaction Regulations. ITR prohibits any transaction or dealing in or related to buying, selling, brokering, or financing goods, tech, or services with Iran or its government, whether directly or indirectly. On appeal, Mousavi argued that his conviction should be reversed because he did not willfully intend to violate a specific law or regulation. Affirmed. In order to sustain a conviction for the willful violation of IEEPA and the Iranian sanctions, the government need not prove that the defendant knowingly violated a specific provision of the law, but that the defendant acted with knowledge that his conduct was unlawful.

validated end user program

allows qualified exporters to preapprove shipments to foreign trusted customers, business partners, and subsidiaries of American companies of certain high-technology or dual-use items without the need for individual export licenses

Consolidated Screening List

an online compilation of prohibited end users; lists consolidated into one searchable online database

Automated Commercial Environment

an online system of US Customs and Border Protection, in collaboration with the US Census Bureau

boycott

an organized refusal of one or more nations, often backed by economic sanctions, to trade with one or more other nations

export

the actual shipment or transmission out of the US in any manner, or releasing or transferring of technology or software to a foreign person in the US

national security controls

coordinated with the US allies on the basis of the Wassenaar Arrangement; export of an item may be controlled to particular countries for reasons of national security if the item would make...; license is required from Bureau of Industry and Security (BIS) for all items controlled for national security reasons, with exceptions for Canada

Briggs & Stratton Corp. v. Baldridge

court addresses a challenge to the US anti-boycott regulations 1954 League of Arab States called for economic boycott of Israel and firm could be blacklisted if traded with Israel. Plaintiff manufactures internal combustion engines and products are often used as component parts. Briggs had been blacklisted because of dealings with Israel. May of 1977 Briggs received a letter from its Syrian distributor telling it that it had been blacklisted and refused an import license and received a questionnaire to which Briggs answered "no" to the questions, but did not have it authenticated because of the new antiboycott regulations. Blacklisting continued but subsequently company was removed from the blacklist. Briggs was injured economically from the blacklisting and brought an action against the officials charged with enforcing the act and regulations, claiming that they violated the First, Fifth, and Ninth Amendments to the US Constitution. The antiboycott regulations were upheld by the court despite the difficulties of compliance or the economic consequences that may result. The district court's decision was affirmed by US Court of Appeals.

conscious avoidance

criminal cases are based on willful conduct or for ___ ___, meaning that the exporter purposefully avoided learning the truth about an end user or destination--information that may have had a bearing on his or her license application

United States v. Zhi Yong Guo

defendant attempted to argue that the export regulations were so complex and unclear that compliance was impossible defendant is Chinese citizen who worked as engineer in Beijing developing photoelectric technologies. defendant's friend and accomplice, Chao, was a US citizen who owned a printing business in Cali. On defendant's instructions, Chao purchased three export-controlled thermal imaging cameras, called FLIR systems, and had them shipped to China. Export compliance staff thought it was strange that a printing company was purchasing such highly developed equipment and notified the Department of Commerce. Defendant then came to LA, purchased ten additional cameras, hid them in his baggage, and was arrested by federal agents while attempting to board a return flight to China. Both were charged with knowingly and willingly conspiring to export, and attempting to export, controlled items without a license. Chao pled guilty and defendant was convicted at trial of violating the criminal provisions of the International Emergency Economic Powers Act applicable to violations of the Export Administration Regulations. Defendant appealed, arguing that compliance was impossible because the regulations were too vague and complex. Affirmed. The Export Administration Regulations are neither vague nor so complex that compliance is impossible. Conviction only requires that the defendant knew that a license was required for shipment and that he had failed to get one, not that he was able to understand all of the intricacies and details of the regulations or the statue which gave them legal effect.

fundamental research

defined in the EAR as "research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons"; not within the scope of the EAR and not subject to licensing or the deemed export rules

Electronic Export Information

exporters in US used the automated system to file an ___ __ ___, an electronic filing required for each export shipment leaving the United States

foreign availability

generally means that the controlled item, or one of comparable quality, is "available-in-fact" from non-US sources in sufficient quantities so that any attempt to control for national security purposes would be ineffective

technology

the information necessary for the development, production, use, or operation of items, and in almost any form, such as blueprints, drawings, photographs, formulae, and engineering designs, whether written, verbal, or electronic

United States v. Mandel

had to consider whether the defendants should be given access to the records and info that the Secretary of Commerce used in deciding to place the subject items on the control list Defendants were charged with illegally exporting high technology equipment without a license; indictment alleged application for license was returned as inadequate but instead of resubmitting they are alleged to have shipped the equipment to Hong Kong company placing the application number on shipping documents in place of an actual license number. During discovery, they requested to see the records relied on by the Secretary of Commerce in deciding whether to place the subject items on the control list, and wanted to know the factual basis for national security controls related to each item. Government argued records not material to defense because criminal defendant cannot challenge the Secretary's decision to place commodity on control list, and that the Secretary's decision was a political question & not reviewable by the courts. District Court required government to provide the records and government appealed. Reversed and remanded. Info and factual basis relied on in deciding are not subject to discovery by the defendants and are not material to the defense; it is a political question

export controls

laws and regulations that govern the control and licensing of certain goods and technology exported from the United States or released or transferred to anyone who is not a US citizen or permanent resident, whether that person is within or outside the United States

antiboycott

legal responses by governments that make it unlawful for their citizens or companies to participate in a boycott

export management compliance program

one of the best ways to ensure compliance is for a company to establish an internal ____; virtually mandatory today in large exporting firms; should be in writing and state company compliance policies, involve senior management as well as personnel at all levels, use trained personnel or outside specialists to implement the policy, etc.

foreign person

one who is neither a US citizen nor a permanent US resident

sanction

regulation that restricts or prohibits certain relationships with specified foreign countries, foreign entities, or named foreign individuals because of their support for international terrorism, the proliferation of weapons of mass destruction, for international drug and narcotics trafficking, or other threats to national security

red flag indicator

should be included in policies covering procedures for these