A Primer on U.S. Export Controls

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1 A Primer on U.S. Export Controls Presentation for the Pacific Northwest Defense Coalition By Akana K.J. Ma Partner, Ater Wynne LLP 16 July 2013 (503) Akana K.J. Ma 2013 All Rights Reserved.

2 Today s Program This is an Overview of US Export Controls and its importance for companies of all sizes Summary of EAR for commercial products/technical data and ITAR for military products/technology Jurisdictional issues Who is covered What transactions are covered 2

3 Today s Agenda (continued) Technical Data and Deemed Exports Compliance Best Practices Penalties and Enforcement Trends Not a product classification exercise, nor licenses or filings Goal to is cover enough topics so that companies know when and where they need to dive deeper into issues 3

4 Speaker Export Controls Experience Akana K.J. Ma 29 years of business law legal practice Corporate, IP, Tech Transfer, International Trade US Dept. of Energy, In-house Corporate Counsel, Private Practice, USDOC Advisor (DEC member/ EC Trainer) 25 years advising on US export controls Compliance Product Development Foreign sales and tech licensing Investigations Audits Enforcement Actions Voluntary Disclosures 4

5 The Regulations Commercial Exports - Export Administration Regulations (the EAR) [Export Administration Act 1969] BIS Commercial products, services, and technology Dual-use items - Commercial products that may have a military application Military Exports - International Traffic in Arms Regulations (the ITAR) [Arms Export Control Act 1976] DDTC Defense Articles, Services, and Technical Data Products that have been specifically designed or modified.for a military application 5

6 What is an Export? Shipment out of the U.S. Electronic transmission out of the U.S. Release of technology (technical data) to a foreign national within the U.S. ( Deemed Export under the EAR; same concept under the ITAR) 6

7 What is a Reexport? A shipment of a U.S. origin item from one foreign country to another Shipment from one foreign country to another of an item manufactured abroad based on U.S. origin technology or parts. Both EAR and ITAR require Destination Control Statements and Letters of Assurance 7

8 Who is an Exporter Versus Who Must Comply With Export Controls Exporter - A person in the United States who has the authority of a principal party in interest to determine and control the sending of items out of the United States. Direct Owner/Shipper Business Entity or Individual What of other Supply Chain Entities? Build to print contract manufacturer? Engineering Consultant? Data Center? 8 Duty to Inquire and Notify 8

9 Who Controls Exports? Licensing Agencies Commercial Goods and Dual-use items U.S. Department of Commerce, Bureau of Industry and Security What are Dual-use items? Military Goods and Services (called Defense Articles and Services) U.S. Department of State, Directorate of Defense Trade Controls U.S. Persons and Money U.S. Department of the Treasury Export Clearance Agencies U.S. Customs and Border Protection U.S. Census Bureau Department of Defense 9

10 Determining and Documenting the Critical Facts Critical Export Information What is the product, service or technology? Where is it going? Who will receive it? (Denied Parties Clearance June 20, $35,000 fine to NY scrap metal exporter to Pakistani co. on Entity List ) Intermediate consignees Ultimate consignee/recipient Where is the ultimate destination? What will be the end use? 10

11 11 11

12 How is the EAR Structured? Over 1000 pages of detailed control parameters by country policy, product functional parameters, and technology specifications EAR Analysis: A positive control list Very specific about product technical functionality Reasons for control Countries where licenses required Specific exceptions to license requirement Under the EAR some de minimis levels, but not under the ITAR 12

13 13

14 14

15 How is the ITAR Structured? Brief summary of controlled defense articles - USML, with short statements of policy and procedure covering Defense Articles, Services, Technology 21 categories of the USML covering large weapons systems 15

16 How is the ITAR Structured? Control language of each category is broad USML lacks the detailed control parameters of the CCL under the EAR There is no common structure applied across each category, though generally, paragraph (a) tends to name principal defense articles and subsequent paragraphs typically address parts, components and sub-systems Analysis: Is it on the USML OR is it specifically designed or modified for a military application. 16

17 17

18 How The EAR and ITAR are Changing Many Changes occurring October 16, 2013 Higher fences around fewer items Culmination of 3 years of revision of the ITAR and EAR by DDTC and BIS to change the methods by which jurisdiction is determined and the controls on exports Wholesale migration of thousands of commodities from the ITAR to the EAR Or whether specifically designed. or modified for a military application, and. Specially designed standard April 16, 2013 to be implemented October 16, 2013 for ITAR finalized revisions 18

19 How the EAR and ITAR are Changing Specially Designed Analysis: Has properties peculiarly responsible for achieving or exceeding the performance levels, characteristics, or functions in the relevant EAR or USML item Is a part, component, accessory, attachment or software of an EAR or ITAR specific item Exporter and manufacturer registration Broker registration Fall 2013 revision by DDTC (wider not smaller net) 19

20 Deemed Exports Will Remain an Issue EAR 734.b(2)(ii) Any release of technology or source code subject to the EAR to a foreign national.is deemed to be an export to the home country of the foreign national. ITAR (4) and 125.2(c) Deemed Export is a term not used under the ITAR, but the concept is the same:.the oral, visual or documentary disclosure of technical data by U.S. persons to foreign persons. 20

21 Examples of Potential Deemed Exports Product demonstrations Technical trainings Sharing drawings, visual inspections, verbal conversations Working with business partners - foreign interns, consultants, employees, JV partners (e.g., the plant floor visit or technical meeting) Collaborations in the educational setting teachers/students, foreign lecturers, foreign visitors Access to database containing controlled technology 21

22 The Hiring Process I-129 CIS Form I-129, Part 6 certification, Effective February 20, 2011 Applies to U.S. Employers filing H-1B, L-1, O-1 visa applications Part 6 is Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the U.S. 22

23 Internal Company Controls Companies should implement effective Export Compliance Programs Employee training Applicable regulations Knowledge of company products/tech Red flag transaction details Employee empowerment without retribution Empowered Official and company commitment from all levels of management Internal Recordkeeping and audit procedure 23

24 Common Export Breakdowns Failure to determine jurisdiction of new products Failure to obtain a license Technology released to foreign persons within the U.S. deemed exports No control over server access Modification of military products for commercial uses Vendors who believe it s the OEM s problem No Records of Ongoing Compliance Procedures, and that they were followed 24

25 Export Controls Recordkeeping ITAR recordkeeping requirements in 122.5: Electronic records must be reproducible on paper and track all changes, author and date describes retention of Any other document used in the regulation or control of a defense article, defense service, or technical data for which a license or approval is required by the ITAR 25

26 Export Controls Recordkeeping In combination with regarding TAAs, companies are advised to retain records of all ITAR-related transactions of technical data, hardware, software, and services How long? At least 5 years from the end of the export-related transaction or the expiration of an applicable license etc. EAR Mirrors the ITAR and requires retention of a long list of possible transaction documents - See Part

27 Export Control Best Practices Export Controls Compliance Program Not a static process Employee Training Periodic internal audits Internal Investigations - Use neutral outside counsel not implicated in suspected export controls violations Corrective actions Legal counsel as opposed to in-house counsel, consultant or accountant 27

28 Houston, We ve Got a Problem The EAR and ITAR both encourage Voluntary Disclosures of violations Voluntary Disclosure is a Judgment Call! Disclosure of violation must be made prior to U.S. Government independently learning of the same or substantially similar information and commencing an investigation Goals of Disclosures Mitigate liability Narrow the investigation Favorably interpret facts and regulations Inform and guide U.S. agency investigators Never lie, be trustworthy, seek a fair result 28

29 Penalties Under The EAR Penalties For EAR Violations: Criminal (Entities): Up to US$1Million Criminal (Individuals): Up to US$250,000/20 years prison Civil Fines: US$50,000 Denial of export privileges 29

30 Penalties Under The ITAR Penalties for ITAR Violations: Criminal (Entities): Up to US$1Million Criminal (Individuals): Up to US$1Million/10 years prison Civil Fines: Up to US$500,000 and Forfeitures Debarment from government contracts 30

31 ITAR Enforcement Large contractors always a target April 30, 2013 Raytheon US$8 Million fine to settle 125 alleged violations 110 charges for failing to abide by license terms and restrictions 15 charges for inaccurate tracking, valuation and documentation for temporary imports and exports of hardware Outside monitor for 2 years paid by Raytheon Consistent disregard of administrative controls 31

32 Enforcement Trends - Individuals Jason Liang, owner of Sanwave Int l sentenced April 23, 2012 to 4 years in prison and 3 years supervised release for exporting thermal imaging cameras to China without an export license. Liang argued no damage to US national security, but violations are more like strict liability, not affected by resulting effect on national security 32

33 Enforcement Trends Closer to Home December 18, count indictment against 2 Chinese nationals for scheme to obtain dual use (extreme temperature) programmable logic chips from Lattice Semiconductor, Hillsboro, OR Attempt to deceive company into selling to a shell company in NY. Efforts of FBI, OEE and US Attorney in Oregon 33

34 Further Export Controls Assistance This concludes the overview if a topic hasn t been covered or you d like more information, contact the speaker Other Export Controls topics that we could not cover today: Product classification License procedures ECCP Empowered Official duties Internal Investigations Audits of your existing compliance program Voluntary Disclosures 34

35 Why Comply? Protection of National Security Goals (as defined by the U.S. Government) Competitive business advantage Compliance is less costly than Remediation It s the law. In this case, asking for forgiveness is NOT better than asking for permission. 35

36 Thank You Ask for a Certificate of Attendance Akana K.J. Ma Partner, Chair of Global Trade Group Ater Wynne LLP 1331 NW Lovejoy Street, Suite 900 Portland, Oregon

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