LEGL4900 Ch. 13

3 policy reasons for controlling and licensing exports

1. Protect national security 2. Promote US foreign policy 3. Prevent the short supply of essential domestic materials

How to determine if a license is needed for export

Commerce Control List and Commerce Country Chart

Briggs & Stratton Corp. v. Baldridge

League of Arab States called for a boycott on Israel. Firms could be blacklisted for trade with them. Briggs manufactures internal combustion engines, blacklisted for deals with Israel. The anti boycott regulations were held up in court.

Antiboycott Law

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

Conscious Avoidance

a doctrine under which executives cannot "consciously try to avoid knowledge" about the actions and activities of those within the company, that may help in curbing deception

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.

deemed reexport

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

sanction

A regulation that restricts certain relationships with specific foreign countries because of their support for international terrorism, WMDs, or drugs.

Boycott

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

Export management and compliance program

Basically mandatory in large exporting firms today, should be in writing and state their compliance policies to be effective

US v. Mandel

Charged with illegally exporting high technology equipment without a license. Used their denied application number instead of a license number. They wanted records on the goods which fell under national security threats but they weren't given them bc gov didn't have to in a criminal case. Company appealed. Decides that items on control lists ARE NOT subject to discovery for defendants and are not material to their case.

US v. Zhi Yong Guo

Chinese engineer buys thermal imaging cameras from US friend, suspicious. Later he buys 10 more in the states and tries to smuggle them, charged with knowingly conspiring to export controlled items without a license. Determines that the EAR regulations aren't vague or complex enough that compliance isn't possible. He should've known he needed a license period end of story

Extraterritorial jurisdiction

Extension the power of a country's power over export control laws outside of its territory

Factors which determine if a license is needed for export

Identity of item, country of destination, reason for control, identity of end user, and end use of item

IEEPA

International Emergency Economic Powers Act, gives president authority to regulate economic and financial transactions during a peacetime international emergency

Technology

Means the information necessary for the development, production, use or operation of items in any form like blueprints, drawings, photos, etc.

US v. Mousavi

Mousavi is a Irani immigrant naturalized in the US. Had unreported income of $45,000 from a company in Kuwait trying to develop a gas pipeline from there to Iran. No license to do so. Convicted for violating IEEPA embargo against Iran. Decides that gov doesn't need to prove defendant knowingly defied a specific provision of the law, just that he acted knowing his conduct was unlawful at all

If an item is subject to the EAR, does it mean an export license is required?

No. Most don't, some do. Plan for the worst hope for the best

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 and for which researchers have not accepted restrictions for proprietary or national security reasons

multilateral sanctions

Sanctions imposed by more than one country, usually more effective than sanctions without universal support

Reexport

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

Deemed export

The transfer of or access to technology controlled under the EAR or ITAR to a foreign person even while in the United States.

Diversion

The unlawful transfer, transshipment, rerouting, or re-exporting of controlled goods/tech from one destination where the goods were legally shipped to another location/person who is not licensed to receive them

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

Electronic Export Information

an electronic filing of information required for each export shipment leaving the United States

consolidated screening list

an online compilation of prohibited end users

Automated Commercial Environment

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

short supply controls

apply to certain foodstuffs, medicines, basic metals, or natural resources. Law permits the use of these to protect the economy from excessive foreign demand for scarce materials

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

dual-use items

goods and services that are useful for both military and civilian purposes

USA Patriot Act

law passed due to 9/11 attacks; sought to prevent further terrorist attacks by allowing greater government access to electronic communications and other information; criticized by some as violating civil liberties

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

Export Administration Regulations (EAR)

regulations designed to control the export and re-export of most commercial items. EAR restrictions vary from country to country, and embargoed countries such as Cuba, North Korea, Sudan, Syria and Iran are prohibited from receiving US exports. EAR does not control all goods, services, and technologies, however.