Archive for the ‘Crimea Sanctions’ Category

Jul

3

The Perils of Travel, or Welcome to Batam

Posted by at 10:31 am on July 3, 2015
Category: Crimea Sanctions • Extradition • Iran Sanctions

User:Abelard Fuah, via Wikimedia https://en.wikipedia.org/wiki/File:Batam_City_Mix.jpg#/media/File:Batam_City_Mix.jpg licensed under CC BY-SA-3.0 [http://creativecommons.org/licenses/by-sa/3.0/][cropped]Ling Yong Nam, a Singaporean national under indictment in the United States, will be extradited to the United States after a ruling by a court in Batam, Indonesia. Lim is accused of having arranged the shipment of radio modules from the United States to Iran.

Interestingly, Lim could have avoided extradition if he just had stayed home. In 2011, Singapore had refused Lim’s extradition relying on the dual criminality provision in the extradition treaty between the United States and Singapore, which requires that the conduct serving as the basis for extradition be a criminal offense both in Singapore and the United States. Since the unlicensed shipment of radio modules to Iran was not illegal under the law of Singapore, the dual criminality test was not met, and the extradition request was denied.

Fast forward to October 2014. Lim hopped a ferry from Singapore to Batam to attend a trade show. He was nabbed as he stepped off the ferry and has been sitting in jail in Batam ever since.

The United States has no extradition treaty with Indonesia, so the judge issuing the extradition order engaged in some creative legal reasoning to reach his decision:

The judge said he had taken into consideration the two countries’ good relations and America’s help in returning two Indonesian criminals to Indonesia.

“As a result of this, we will grant the extradition request and detain Lim Yong Nam till this extradition process is carried out,” said Judge Cahyono on behalf of the three-judge panel.

He might as well have added that he once visited Disneyland and enjoyed it immensely.

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Copyright © 2015 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)
Apr

16

Thursday Grab Bag

Posted by at 8:05 am on April 16, 2015
Category: Crimea Sanctions • Criminal Penalties • Cuba Sanctions • Iran Sanctions • OFAC • Sudan • Syria

Grab BagHere are a few recent developments that you may have missed:

  • Last month we criticized the Department of Justice for conspiring with foreign luxury car makers to jail U.S. citizens who exported luxury cars to China to arbitrage the difference between U.S. and Chinese prices for these vehicles. Apparently, the DoJ now is having second thoughts about wasting taxpayer money and its resources on this nonsense. According to the  New York Times, settlements have recently been reached in nine states where prosecutors have agreed to return seized cars to, and drop charges against, luxury car exporters. Good.
  • On Monday we reported that Obama was going to drop Cuba from the list of state sponsors of terrorism, a move we thought was largely symbolic. Yesterday he did just that, and provided the 45-day notice required under the three acts that provide the basis for the list: § 6(j)(4)(A)(i)-(iii) of the Export Administration Act of 1979; § 40(f)(1)(A)(i)-(iii) of the Arms Export Control Act; and § 620A(c)(1)(A)-(C) of the Foreign Assistance Act of 1961. The linked New York Times article wrongly states that Congress can block this action with a joint resolution. Only the Arms Export Control Act provides for this blocking mechanism, and, as we noted, there’s no way that the White House will remove Cuba from the current arms embargo. So a joint resolution under the AECA would be, like the removal itself, largely symbolic
  • The Office of Foreign Assets Control (“OFAC”) revised its rules on Monday to amend the Syrian Sanctions Regulations to permit certain activities with respect to written publications, including the ability to pay advances and royalties, to substantively edit manuscripts and to create marketing campaigns. These activities have been permitted for Cuba, Sudan and Iran since 2004. Don’t try this yet in Crimea which remains, bizarrely and incomprehensibly, the most heavily sanctioned place on the face of the planet
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Copyright © 2015 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)
Feb

4

Crimea River: BIS Muddies the Water

Posted by at 9:04 pm on February 4, 2015
Category: BIS • Crimea Sanctions • OFAC

The Swallows Nest by Vyacheslav Argenberg [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/argenberg/199746052 [cropped]The Bureau of Industry and Security (“BIS”) has issued rules governing exports to Crimea and there’s good news and bad news. The bad news (for exporters): the BIS rule is incomprehensibly written and, arguably, may require you to have a license both from OFAC and BIS for the same export.  The good news (for lawyers):  the BIS rule is incomprehensibly written and, arguably, may require you to have a license both from OFAC and BIS for the same export.

Let’s start with the easy part: BIS amended part 746 of the Export Administration Regulations to add a new section 746.6 to establish a license requirement for exports to the Crimea region of all goods subject to the EAR other than food and medicine.  Note: basic medical supplies, because they are not either food or medicine, are not exempt, apparently on the grounds that the best way to get Putin where it hurts is to make sure that U.S.-origin bandages, hearing aids and hospital beds are kept out of Crimea.  That’ll show him.

But wait a minute.  Didn’t OFAC issue General License 4 permitting the unlicensed export of all items on its list of medical supplies without a license to Crimea?  OFAC, SCHMOFAC — here’s what BIS has to say about that:

The rule establishes a presumption of denial for all such exports or reexports to the Crimea region of Ukraine and transfers within the Crimea region of Ukraine, except with respect to items not exempt from the license requirement but authorized under the Department of the Treasury’s Office of Foreign Assets Control (OFAC) General License No. 4 (discussed in greater detail in the next paragraph) which BIS will review on a case-by-case basis.

And unlike, as is the case with, say, the Iran rules, where BIS says in section 746.7(a)(2) that if an item is authorized by OFAC no license from BIS will be necessary, the new Crimea rules say no such thing. So, what BIS appears to be saying is that OFAC General License No. 4 is nothing more than guidance that BIS will use when it decides whether to grant a license to export medical supplies to Crimea.

There is one contorted interpretation of General License No. 4 and the BIS statements that would avoid this result. General License No. 4 covers exports by U.S. persons or from the United States. Arguably, this may not cover re-exports of medical supplies with more than a de minimis (25%) U.S. controlled content. Such exports would then be licensed by BIS and these license applications would be considered on a case by case basis (rather than under a presumption of denial) for foreign manufactured medical supplies on the list. The problem with this reading is that the foreign manufactured items would not be “authorized under . . . General License No. 4” and thus would fall back under the presumption of denial.

The bottom line: even if you have an item on the list of medical supplies and eligible for General License No. 4 that you want to export from the United States, you probably should also file a license application with BIS rather than relying on the general license. Better safe than sorry.

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Copyright © 2015 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)
Jan

29

The Case of the Missing Cuba Embargo Regulations

Posted by at 9:25 pm on January 29, 2015
Category: BIS • Crimea Sanctions • Cuba Sanctions • OFAC

Cuba Capitole by y.becart(Own work) [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/yoh_59/13697566663The recent OFAC amendments to the Cuba embargo regulations, and related statements by OFAC, went to great pains to make clear that, notwithstanding these changes, the embargo was still in place. That being said, it is somewhat perplexing that the Cuba Assets Control Regulations have disappeared, or at least most of the Cuba Assets Control Regulations have disappeared from OFAC’s website.

If you go to OFAC’s page on the Cuba sanctions, and then scroll down to the bottom, you will see under “Code of Federal Regulations” a link for “31 CFR Part 515 – Cuban Assets Control Regulations.” Click on that link, and it will take you here, which is the Federal Register notice with just the amended regulations. The other regulations are nowhere to be found. Maybe OFAC did repeal the Cuba embargo after all?

In another example of epic Web fail, BIS today promulgated new regulations relating to the Crimea Sanctions, which can be found here in the Federal Register. But if you go to the BIS website, the new rules are nowhere to be found. They are not mentioned in the slider at the top listing other current developments. They are not even mentioned in the BIS Newsroom where the latest entry is — seriously — July 22, 2014. What? No news at all for 6 months??

As to the new Crimea regulations themselves, I am not at all sure what they mean. I’ll post on them once I figure that out.

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Copyright © 2015 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)
Jan

6

OFAC Issues Wind-Down License for Crimea

Posted by at 9:44 pm on January 6, 2015
Category: Crimea Sanctions • OFAC • Russia Sanctions

By Иерей Максим Массалитин (originally posted to Flickr as Ласточкино гнездо) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons http://http://commons.wikimedia.org/wiki/File:%D0%9B%D0%B0%D1%81%D1%82%D0%BE%D1%87%D0%BA%D0%B8%D0%BD%D0%BE_%D0%B3%D0%BD%D0%B5%D0%B7%D0%B4%D0%BE.jpgRight before the New Year, the Office of Foreign Assets Control (“OFAC”) started some of the inevitable clean-up on the Executive Order sanctioning Crimea that the agency rushed out before the President went on vacation. Not having time to calibrate the sanctions, the order just prohibited all imports and exports (except for the statutorily required exceptions for agricultural products, medicine and medical devices, which, somehow or other, became “medical supplies”). The first of these was General License No. 5 which permits U.S. persons to wind-down operations in Crimea.

But, sadly, the General License is a mess. For starters, although the license permits transactions and activities “normally incident” to “the winding down of operations, contracts, or other agreements that were in effect prior to December 20, 2014,” the General License gives no indication of what types of transactions might be “normally incident” to winding down. The General License does say what is not incident to winding down. New exports of goods and services to Crimea don’t qualify. And, in a masterpiece of useless circular definition, neither are new imports of goods and services from Crimea “except as needed to wind down operations, contracts, or other agreements.” Thanks, that clears everything up.

Let’s take a concrete example. Let’s say that money is owed under a contract for services performed prior to December 20, 2014, in Crimea. Can that money be paid? Who knows. But if you decide that it is, you have to make the payment by February 1, 2015, and file a report within 10 days with OFAC about everything you did to wind down operations. That way OFAC can decide (after the fact, of course) whether what you did was normally incident to winding down and send you a charging letter (too late for a voluntary disclosure) if it decides that it was not.

The February 1, 2015 deadline is pretty unrealistic for certain wind downs that involve divestiture of assets in Crimea. Any potential purchaser who knows about the deadline (and they all will know about it) will, of course, wait until January 31 and offer  the U.S. seller fire-sale prices. So who’s being sanctioned here?

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Copyright © 2015 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)