Comments on: Did You Know That You Know More Than You Actually Know?

By: Clif Burns

Clif Burns — Fri, 28 Aug 2009 13:13:15 +0000

The undated charging letter claimed that the applicable penalty was $250,000. That would be wrong if there was a VSD before October 16, 2007 according to these guidelines. The charging documents did not say that there was a VSD as they usually do when there is a VSD. Instead that information came from the BIS press release. Perhaps the press release was wrong and there was no VSD. In that case, the undated charging letter might have been filed after October 17, 2007, and the higher penalty would apply

By: jeroop

jeroop — Fri, 28 Aug 2009 12:10:42 +0000

Quick correction to the post – if you look at the dates on the charge against Ms. Wilkins, RFMD must have filed the disclosure at some point prior to July 1, 2004. As such, under current BIS enforcement policy, they would have been subject to the $11,000/violation statutory maximum, rather than the current $250,000/violation maximum, which makes the “piling on” by BIS a little more understandable (or at least consistent with BIS practice in the past).

By: LDM

LDM — Mon, 24 Aug 2009 20:39:07 +0000

I agree with MJ and Hillbilly (and others) that too often a company buys a canned export program and does little more than hand it to an untrained staff member with no budget for further training and little care if it’s implemented. Even in large companies with a bigger volume, export compliance is seen as a cost center not a revenue generating one. It’s always hard to prove a negative such as cost/fine avoidance until management has a concrete example.

It would be great if those espousing that mentality was limited to Yankees with MBAs and attitude. So much easier to identify. Unfortunately it knows no regional bounds as I learned while living in the south.

By: Sentinel

Sentinel — Sat, 22 Aug 2009 01:48:59 +0000

So RF Micro is gullible for hiring the consultant and presumably trusting corporate counsel/ outside counsel to negotiate this fine with BIS with the “lumped on” charges, or were they preyed upon by BIS and/or the myriad of lawyers who no doubt made a tidy sum because they decided to export a commodity that required a license?

By: Hillbilly

Hillbilly — Fri, 21 Aug 2009 12:52:31 +0000

Well MJ’s comment is right on point: When I was an investigative team leader, we took an ineffectual compliance program as proof of knowledge and a decision by the company not to invest in serious compliance. Even outside of government, it continues to amaze me that so many companies think they can escape liability by buying some consultant’s form book, as though investigators will be overcome by the form and not see through the transaction. Let me tell y’all: Investigators are smarter than the average bear, certainly smarter than some Yankee with an MBA who thinks they are a master of the universe. All those forms, even when signed by customers, will not hide an otherwise illegal transaction. You folks, and those expensive consultants from former accounting firms, will still be liable. You need to craft compliance programs that fit your business instead of buying a form book from some accounting firm.

By: MJ

MJ — Fri, 21 Aug 2009 03:37:57 +0000

BIS is bound to impute knowledge to any company with a compliance program savvy enough to secure an outside consultant – especially where a quick look at the Alphabetical Index to the Commerce Control List reveals that the hardware _may_ be controlled.

By: SW

SW — Thu, 20 Aug 2009 17:47:30 +0000

Enjoy the posts – as always.

By: Wayne

Wayne — Thu, 20 Aug 2009 14:54:16 +0000

So where is the line drawn? We screen customers, verify end-use, and review jurisdiction of our commodities but how much ‘due diligence’ is actually ‘due’. Seems BIS and DDTC increasingly are applying ‘knowledge’ as a criteria in decisions and fines. Read the regulations and compliance managers can argue interpretation all day. Look at the USML and the CCL, throw in the concept of dual-use for kicks, let some engineers loose and watch the fun begin!

By: cs

cs — Thu, 20 Aug 2009 14:33:06 +0000

reason to know, possibly knowing or not knowing.. i’m reminded of a poem:

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don’t know
We don’t know.

By: Hillbilly

Hillbilly — Thu, 20 Aug 2009 14:06:52 +0000

Law, especially administrative law and statutory interpretation, is about semantics if nothing else. Therefore “just arguing semantics” is about determining just what the law actually requires.