chapter 13
department has aauthority to decontrol items that are
controlled for national security reasons if they meet rules of foreign availability
Briggs and Stratton Corp vs Baldridge
court addresses challenges to US boycott regulations -Arab states called for economic boycott of israel which a firm is blacklisted if it traded with israel -briggs sent a survey and answered no to all the questions and then they were removed from the blacklist -US is consistent and says that they cannot furnish information that would have the effect of furthering a boycott against a nation friendly to the US -the antiboycott provisions were held up by the court depsite the difficulties of compliance or the economic consequences that may result
fundamental research
Research in science and/or engineering at an accredited institution of higher education in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. -not subject to ear but proprierotry research is
BIS required to review license applications within 90 days
true
diversion
unlawful transfer, reroute, transshipment, or rexporting of goods or technology to another destination that it was not licensed to receive the items
opponents of sanctions
use is ineffective and it affects innocent people more than it does people in power no universal cooperation
national security controls
used to prohibit the export of goods or technology that would make a significant contribution to another country's military that would be detrimental to the U.S.'s national security. -us allies based on wassenaar arrangement
business people advocate for multilateral controls like
wassenaar agreement
deemed reexport
the release or transfer of an item from someone who was licensed to receive it to a different foreign person
Defense Production Act of 1950
-enacted after the commencing of the Korean War -authorizes the federal government to "create, maintain or expand a domestic production capability needed for national defense." -a temporary law that necessitates re-authorization approximately "every two-to-three years."
three broad policies for controlling and licensing certain exports
-protect national security -promote US foreign policy -prevent short supply of essential domestic materials
commerce control list
Details which products can and cannot be shipped to certain countries
Wassenaar Arrangement
Established to contribute to regional and international security and stability by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilizing accumulations. -arrangement not treaty -meet periodically to coordinate national export control strategies and develop lists of items to be controlled
US vs Zhi Yong Guo
Guo attemped to argu that the export regulations were so complex and unclear that compliance was impossible -Guo is chinese citizen and he sent his friend in cali some high tech printers and someone notified commerce and when guo came to us to hide ten more cameras he was arrested -guo said regulations so complex -court ruled that the aexport administration regulations are neither vague nor so complex that compliance is impossible conviction only if the defenedent knew he needed a license and didnt get one not that he was able to understand all the intricacies and details
Conscious Avoidance
The exporter purposely avoided learning the truth about an end user or destination - information that might have had a bearing on his or her license application
extraterritorial jurisdiction
a nation have the ability to extend the power of its export control laws over its goods and technology once they have left its territory
to determine if license is needed exporters use
commerce control list and commerce country chart and these two documents identify items by export control classification number
export
actual chipment out of the us in any manner or releasing of technology or software to foreign person
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
EAR applies to
commercial and dual use goods technology and most software
the crisis over soviet natural gas pipeline to europe
american attempt to use extraterritorial export controls and led to a serious diplomatic and international business crisis -construct a 3000 mile natural gas pipeline from siberia to western europe -US tried to order a refrain from exporting goods for use in pipeline project and all those based on US patents and the other countries didnt listen -reagans attempt to assert extraterritorial jurisdiction of US export controls failed and they were eventually rescinded
once an export license is received and its time to ship goods, info about the shipment has to be sent to various federal agencies through
automated commercial environment
US export cntrol contain anti boycott provisions that make it unlawful for their citizens or companies to participate in a
boyctt -boycott of israel
propenents of sancions
bring attention to world issues and assert a moral stance
USA Patriot Act
changed IEEPA and gave more pwer to law enforcement to deal with terrorism -take more property -seize more asstes
US vs Mandel
court had to consider whether defedants 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 -defendant illegally exported a high tech equipment without license and Hong kong wanted to see records and they said they dont have to show why something is on control list -the info relied on by the secretary of commerce in deciding whether or not to put the item on the control list are not subject to discovery by the defendants and are not material the the defense -courts will not investigate in to national security or foreign policy reasons for controls
international emergecny economic powers act
current grant of authority to the president to regulate economic and financial transactions and to place restrictions on importing and exporting during a peactime international emergency -unusual and extraordinary threat
export regulatory system
decisions from president and DOC as to which items to control are largely exempt from public comment and judicial review
dual use items are those commercial items that may also have
military, terrorist or proliferation uses -drawn from wassenaar agreement
who decided which items to control by consulting with other government departments and agencies?
department of commerce
exporters in the US use the automated system to file an
electronic export information which is an electronic filing required for each export shipment
export administration regulations are under
export administration act of 1979 (expired in 2001 and not renewed) -export control laws and licensing of controlled items administered by BIS
burden of determining if an export shipment needs a license is on the
exporter
rise of international terrorism and war on terror created a get tough political environment and
gave president and US law far reaching powers to disrupt terrorist
foreign person
not US citizen or permanent US resident
export manaegement and compliance program
one of nest ways to ensure compliancex -internal security, licensing, use of red flag indicators , technology companies etc
factors that determne if license is needed for export
identity country of desitination reason for control identity of end user end use of item
technology
information necessary for development production or use of items and in almost any form like blueprints or designs
penalties for violating the export administration regulations are those found in
internationaI emergency economic powers act
Cuba sanctions
isolated due to communism but restrictions eased during obama -incrased suffering of cuban peple
US vs Mousavi
issue of defendanrs willful intent in violation of ieepa -mousavi immigrated to us from iran and became citizen was doing business with iran even under US embargo -he said it was not willfully but he traveled many times to iran -jury concluded that mousavi knew that conducting. business was illegal and he acted willfully -gov needed to prove that defendant acted with knowledge that his conduct was unlawful not that defendant knowingly violayed a specific provision of the law
export controls
laws and regulations that govern the licensing of certain goods and technology exported from the U.S. or transferred to non U.S. citizens
antiboycott laws
legal resonses by governments that make unlawful for their citizens to participate in a boycott
end user controls
license applicatins must say party receiving the item
commerce country chart
lists each country and indicates when an export license is required. (if X under 'reason for control'). Not all countries need an export liscense
if a nation restricts exports that are wdely available then nations exporters will just
lose business to foreign competitors
boycott
organized refusal of one or more nationals often backed by economic sanctions to trade with one or more other nations
US department of commerce bureai of industry and security is the lead agency for administering the export controls
over commercial and dual use goods
foreign policy controls
promote foreign policy goals of the US and to control missiles and prevent terrorism -must be likely to ahcieve purpose, must be able to be enforced and benefit must be greater than cost
trade controls for reasons of short supply
protect US economy from excessive foreign demand for scarce materials -needed food and agricultural products
reexport
refers to the shipment or transfer of American-controlled items or technology from one foreign country to another foreign country or foreign person
Record keeping requirements
related to all licensed expoets for a period of 5years
deemed export
release or transfer of any item subject to control including technology or software to a foreign person in the US and deemed to go to the home of the foreign person -electronics, telecommunications, computersm and aerospace
trading with the enemy act
restrict trade with hostile countries during times of war or time of emergency
foreign availability
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 -some countries cannot be decontrolled because if so military potential of that country would increase (russia, cuba, china)
