Remarks of David W. Mills Assistant Secretary of Commerce for Export Enforcement

BIS Annual Update Conference November 1, 2016

 

Good afternoon. It is a great pleasure for me to speak for the seventh and final time at BIS’s annual Update Conference on Export Controls and Policy here in Washington, DC. When I saw that the conference organizers had placed Enforcement in the afternoon of the second day, I understood their motivation: they were saving the best for last. We commit to keeping your attention for the remainder of the day.

 

As many of you know, I began my federal career at the Department of Commerce in 1985 - at what was then the Bureau for Export Administration. Those were formative years, particularly with regard to my wardrobe. I swore I would never be seen in polyester suits wearing short-sleeved dress shirts with pocket pen protectors, and started wearing cufflinks on a daily basis to underscore the point. Subsequently, I worked at the Office of Foreign Assets Controls at the U.S. Treasury Department, where the dress code was more formal and the practice was to put on your suit jacket when you went to the restroom. After eighteen years at OFAC, I rounded out my government experience by following the former OFAC

Director into private practice, where I worked with him representing clients on the receiving end of the regulatory regimes I had helped to administer and enforce.

For almost seven years now, I have served as the Assistant Secretary of Commerce for Export Enforcement at the Bureau of Industry and Security, or BIS, having come full circle back to the Department where I began my federal career. And I am still wearing cufflinks!

 

During my current tenure at Commerce, the challenges I have faced have been far beyond that of disassociating myself from pocket pen protectors. In the first instance, what are law enforcement Special Agents with guns and badges doing at a Department that is most frequently associated with things like business and community development, patents and trademarks, scientific research and weather prediction, the Census and the promotion of trade and foreign investment? I think at this point in time, it is well established what we are doing here. Not only in the mind of our incredibly dynamic and supportive Secretary, but in the interagency and international communities as well. In the words of one former high-ranking Commerce official: “Oh I get it, you play defense on the Commerce Department

export promotion team.” That led me to coin the motto displayed on our 30th

 

anniversary poster: “Securing America’s Trade.” That is the mission of Export Enforcement at BIS.

Export Enforcement at BIS

 

The President’s Export Control Reform or “ECR” initiative has catapulted BIS front and center on the export control stage and cemented our role in advancing this nation’s national security and foreign policy interests. This role has been recently characterized by the United States Senate, and I quote: “BIS is the principal agency involved in the development, implementation, and enforcement of export controls for commercial technologies and for many military technologies as a result of the President’s export control reform initiative. Export Enforcement…detects, prevents, investigates, and assists in the sanctioning of illegal exports of such items.”

 

In the context of ECR, the Administration and Congress have provided BIS additional resources to handle the increasing licensing load resulting from the transfer of ITAR articles to the EAR and to support Export Enforcement. This has allowed Export Enforcement at BIS to enhance our analytical capabilities by hiring new analysts, and to increase our overseas presence to conduct end-use checks through our Export Control Officer program. Furthermore, it has allowed us to expand our domestic footprint by hiring new Special Agents and increasing the number of cities in the United States in which we are located from nine to

seventeen. Most recently, we opened a new office in Portland, Oregon headed by a Resident Special Agent-in-Charge who reports to our San Jose Field Office.

 

Every day, our Special Agents and analysts are on the front line, researching transactions, developing leads, coordinating outreaches to help exporters acting in good faith to better comply, and initiating criminal and administrative cases and other measures against those who do not. Our Special Agents and analysts bring their unique subject matter expertise in the EAR and their sole focus on the enforcement of export controls to bear in their evaluation and investigation of complex commercial and financial transactions that may take years to unravel and bring to closure. In so doing, they have a formidable arsenal of remedies available to address the various scenarios that arise: criminal prosecutions, administrative penalties, redelivery of items being diverted in transit, denial orders to prevent imminent violations and impose sanctions for past violations, and placement of foreign parties on our Unverified and Entity Lists.

 

Having our licensing officers and enforcement agents and analysts under one roof at BIS also serves to streamline and facilitate secure trade and enhance compliance and enforcement efforts. Both sides of BIS, administration and enforcement,

collaborate to review existing policies and regulations and promulgate new ones when needed. A prime example of the synergy created by our collocation with our licensing colleagues is our Information Triage Unit, or ITU, a product of ECR. The ITU is housed in our Office of Enforcement Analysis, and allows us to review foreign parties to license applications in a comprehensive manner to facilitate the adjudication of license applications. The ITU also plays a critical role in

supporting Entity List nominations. It’s not an understatement to say that when the ITU gets involved, the likelihood of diversion of U.S.-origin items significantly decreases.

 

Our end-use check program, anchored by our Export Control Officers (ECOs) stationed in China, Germany, Hong Kong, India, Russia, Singapore, and the United Arab Emirates, also allows us to evaluate parties to license applications to assist with license application reviews as well as to determine whether any EAR item exported around the world has been diverted. Our ECOs have a geographical reach to more than 40 countries, and when combined with our Sentinel Teams of domestically-based Special Agents deployed on temporary duty abroad and U.S. Commercial Service colleagues that also conduct end-use checks, we achieve global end-use monitoring of sensitive U.S.-origin items. Last year, Export Enforcement conducted 1,031 end-use checks in 55 countries, and our ECOs

conducted 173 outreaches to help train foreign governments and companies on compliance with the EAR.

 

Our relationships with transshipment countries like Finland, Hong Kong, Singapore, and the UAE have also proven to be effective and productive. These countries are upgrading their customs screening tools to identify suspicious shipments and perform audits, and working with us to detain and redeliver unauthorized reexports. We have published best practices on our website for exports to and through these countries. On this note, let me emphasize that exporters need to ensure that export filings identify the actual end user of an item, not the intermediate consignee or freight forwarder, and that they have screened the end-user and addressed red flags associated with persons, addresses, and phone numbers prior to shipment.

 

Leveraging these capabilities, our enforcement successes have been notable. During the course of the ECR initiative, we have:

• Disrupted a foreign procurement network sourcing U.S. components for use in IEDs against coalition forces in Iraq and Afghanistan;

• Secured the largest criminal and some of the largest civil penalties ever to be imposed for sanctions and export violations under the International Emergency Economic Powers Act;

• Prevented Iranian airlines designated for their support for terrorism from acquiring aircraft and aircraft engines;

• Dismembered a domestically-based procurement network that was illegally exporting electronic components for use by the Russian military;

• Secured the first guilty plea in a United States court for an export violation from a Chinese company complicit in re-exporting material to a Pakistani nuclear facility; and

• Imposed a 2.8 million dollar fine - the statutory maximum - on a UAE company for illegally re-exporting to Syria U.S.-origin internet filtering devices that had the potential for use by the Syrian government to block pro- democracy websites and identify pro-democracy activists as part of that government's brutal crackdown on the Syrian people.

 

The lesson from these enforcement actions is clear: comply with the EAR or prepare to face substantial consequences. To further underscore the point, check out our new September 2016 edition of Don’t Let This Happen to You – available in hard copy here at this conference and on the BIS Website. This publication

provides important examples of how cutting compliance corners and flouting our export control rules will result in painful consequences for culpable individuals and companies.

 

Export Control Reform

 

Export controls constantly evolve as technologies develop, but they have taken a quantum leap under the President’s initiative beyond anything that has occurred since the Cold War. Under ECR, we are enhancing military interoperability between the United States and our allies through the transfer of tens of thousands of military parts and components from the Department of State’s International Traffic in Arms Regulations, or ITAR, to the Export Administration Regulations, or EAR. The underlying rationale for this reform is that the Commerce system is more flexible. It is able to facilitate exports through less burdensome licensing requirements. Furthermore, the enforcement of controls on these items is now supplemented by our Special Agents and analysts whose sole focused is evaluating export transactions for compliance and investigating unauthorized exports.

 

BIS recognizes the challenges associated with implementing corporate export compliance programs. ECR aims to reduce these burdens through the

establishment of a bright line between the ITAR and EAR so that exporters can classify their items in a predictable manner. We’ve done this by creating objective technical parameters to control items on the ITAR’s U.S. Munitions List to complement the positive list already contained in the EAR’s Commerce Control List, or CCL.

 

Enforcement Ramifications of Export Control Reform

 

ECR has intensified collaborative efforts within BIS, resulting in more focused targeting of sensitive items to the most sensitive destinations. As I mentioned earlier, the ITU’s role in vetting license applications has allowed Export Administration to make more informed decisions about the bona fides of parties to license applications. Our Office of Enforcement Analysis has become more sophisticated in identifying nefarious networks – through targeting, end-use checks, and enforcement lead generation – to support OEE investigations of direct national security significance.

 

Additionally, this collaboration has resulted in hands-on support to exporters. Export Administration has been supporting and reviewing exporters’ use of License Exception Strategic Trade Authorization. Similarly, the Office of

Enforcement Analysis is using its interagency and international resources to develop Guardian Leads for our Special Agents to warn U.S. exporters about suspicious foreign procurement activity to prevent diversions.

 

When our agents meet with companies, we discuss the general provisions of the EAR, the value of internal compliance programs, and encourage the submission of voluntary self-disclosures (VSDs). Last year, the Office of Export Enforcement saw a 61 percent increase in the number of VSD reviews initiated over the previous five-year average. This increase can be attributed, in part, to the transfer of former ITAR items to the 600 series. Approximately 99 percent of the all 286 VSD reviews completed in 2015 were closed without the issuance of administrative sanctions. Generally speaking, the vast majority of all of our cases involving 600 series or STA violations have been the result of VSDs.

 

From an interagency perspective, the ITU is working directly with the Department of State to identify parties on export licenses administered by the Directorate of Defense Trade Controls as well as those administered by BIS to establish consistencies during licensing evaluations, especially with regard to 600 series items. Our Export Control Officers are also supporting the Blue Lantern program

abroad to leverage resources while ensuring that we are not duplicating visits to foreign companies.

 

Finally, cooperation with our law enforcement partners remains paramount to our success. When the Office of Export Enforcement (OEE) initiates an investigation, we de-conflict the case with our partners at the Export Enforcement Coordination Center (E2C2), and where appropriate, we bring relevant enforcement agencies together for a whole-of-government approach. We want to ensure that U.S. Government resources are managed wisely and leveraged, which has resulted in more collaboration among law enforcement agencies and broader focus on proliferation networks.

 

Other Recent Policy Developments Impacting Enforcement

 

In addition to ECR, BIS’s ability to quickly amend our regulations and guidance – from licensing policy to proscribed party lists – ensures that we are addressing the most pressing national security challenges of the day. These actions guide us in our enforcement prioritization, from impeding destabilizing military modernization efforts, such as in Russia and China, to inhibiting Iran’s missile and other activities

of concern, to preventing broader WMD proliferation and terrorist procurement efforts.

 

Notwithstanding implementation of the Joint Comprehensive Plan of Action, our export control policy and enforcement posture vis-à-vis Iran have not changed.

We are vigorously monitoring shipments through our end-use check program to prevent diversions, investigating unauthorized procurements, and alerting our international partners about controls that remain on the reexport of U.S.-origin items to Iran. Iran remains the primary focus of our enforcement actions, representing 55 percent of criminal convictions last fiscal year.

 

In collaboration with the Departments of Defense and State, BIS’s Export Enforcement and Export Administration developed and published guidance to assist industry in preventing exports to locations and facilities under ISIS control. An update with additional items being actively sought by ISIS as well as ISIS- controlled facilities was posted in July on our website. We are also working directly with our international partners to investigate unauthorized exports of spare parts and other materiel that could be destined to areas controlled by this terrorist organization.

The change in licensing policy toward Russia following the annexation of Crimea in 2014 is another example of how regulatory policy directly impacts enforcement priorities. Over the past two years, our caseload for Russia has more than doubled and we continue to update our Entity List and inform exporters about end users of military concern to ensure U.S.-origin items are not supporting Russian military modernization.

 

Finally, since President Obama’s December 2014 announcement of a new diplomatic and economic policy approach toward Cuba, there has been tremendous interest in exporting and re-exporting to Cuba. The Departments of Commerce and the Treasury have published several sets of regulatory amendments that permit greater opportunities for trade and economic engagement in a wide variety of areas including agriculture, civil aviation, clean energy, and telecommunications. While these amendments remain consistent with the law governing the existing embargo, they reflect the most significant changes in U.S. policy toward Cuba in more than half a century. Most importantly, they create more prosperity for, and a closer relationship between, the people of the United States and Cuba. Of course, Export Enforcement is assisting Export Administration in ensuring U.S exports are made consistent with these regulatory changes.

New BIS Administrative Enforcement Guidelines

 

One of the most significant enforcement tools in the BIS arsenal is our administrative enforcement authorities. On June 22, we published new Administrative Enforcement Guidelines that entered into force on July 22. The new Guidelines will provide greater transparency and predictability to the BIS civil penalty process, and serve to more closely align the administrative enforcement policies and procedures of our Office of Export Enforcement, or OEE, and the Office of Foreign Assets Control, or OFAC, both of which administer the bulk of their programs under the International Emergency Economic Powers Act, or IEEPA. The new Guidelines reflect several changes to the current Guidelines set forth in Supplement No. 1 to Part 766. First, the Factors set forth in the Guidelines are reconstituted into the following four categories: 1) Aggravating Factors; 2) Mitigating Factors; 3) General Factors that could be considered either aggravating or mitigating depending upon the circumstances; and 4) other Relevant Factors on a case-by-case basis, such as related violations or other enforcement action.

 

Second, the Guidelines will now formally account for the substantial increase in the maximum penalties for violations of IEEPA and distinguish between egregious and non-egregious civil monetary penalty cases.

 

Third, reference in the Guidelines to ‘‘transaction value’’ provides sufficient flexibility to allow for the determination of an appropriate transaction value in a wide variety of circumstances. Amounts set forth in a schedule provide for a graduated series of penalty amounts based upon the underlying transaction values, reflecting appropriate starting points for penalty calculations in non-egregious cases not voluntarily disclosed to OEE. The base penalty amount for a non- egregious case involving a VSD equals one-half of the transaction value, capped at one half the statutory maximum, per violation of the EAR. The base penalty amount for cases deemed to be egregious and brought to OEE’s attention by means other than a VSD shall be an amount up to the statutory maximum. For those egregious cases involving a VSD, the base penalty amount shall be an amount up to half the statutory maximum.

 

OEE’s longstanding policy of encouraging the submission of VSDs involving apparent violations is reflected by the fact that, during my time as Assistant Secretary, only about 3 percent of all VSD reviews completed resulted in a civil penalty. As I noted earlier, that number declined to approximately 1 percent last

year. The majority of cases brought to the attention of OEE through VSDs are resolved with the issuance of warning letters.

 

OEE expects that the increasing number of VSDs for 600 Series transactions that are non-egregious violations will also generally be resolved with warning letters. Generally, OEE will issue warning letters in cases involving inadvertent violations and cases involving minor or isolated compliance deficiencies, absent the presence of aggravating factors.

 

On the other hand, you should expect to see a continuing robust and comprehensive administrative enforcement program at BIS involving cases where aggravating factors are present, particularly cases involving knowledge, willful conduct and/or harm to U.S. national security or foreign policy interests, whether or not those cases arise in the context of criminal prosecutions.

 

Partnership with the Exporting Community

 

Our objective at Export Enforcement is to further our partnership with the exporting community to help you comply with the EAR. The facilitation of secure

trade is in both your financial and reputational interest, and in our mutual national security interest. The partnerships we build with the exporting community are by far the most important. You are our eyes and ears; you are the ones who receive the suspicious inquiries, whose reputation is most damaged when items get diverted, and who spend hard-earned profits on compliance programs while your competitors may not. We ask exporters to be ever-vigilant, as all unsolicited inquiries or unauthorized intrusions, such as cyberthefts or unauthorized access to controlled technology, should trip a compliance system into motion.

 

As Under Secretary Hirschhorn has repeatedly said: “Strong enforcement is good for legitimate U.S. business by ensuring that all exporters that invest in an export compliance program can compete on a level playing field with their competitors.” Having an internal compliance program to identify suspicious inquiries and developing a dialogue between Export Enforcement and your sales force complements the actions that our Special Agents and analysts take to secure America’s trade. Accordingly:

• We are working hard every day to help exporters differentiate between legitimate and illegitimate business inquiries through outreaches, use of the Entity List and Unverified List, issuance of “is informed” letters, and a new

  practice of helping exporters comply with foreign export control requirements, by explaining those requirements on our Export Control Officer webpage;

• We are working hard every day to ensure that exporters with strong internal compliance programs are not placed at an economic disadvantage by those seeking to flout U.S. export rules; and

• We are working hard every day to differentiate between inadvertent compliance failures and less serious violations reported under our VSD program from the more egregious, more serious violations which typically cause harm to U.S. national security and may involve willful acts of misconduct.

   

  Office of Antiboycott Compliance

   

  Finally, in your attention to compliance with the EAR, be ever mindful of the Antiboycott Regulations that exist to prevent U.S. persons from supporting unsanctioned foreign boycotts that are contrary to U. S. foreign policy; notably, the Arab boycott of Israel. The Office of Antiboycott Compliance, or OAC, carries out its mandate in three ways:

  1. it counsels U.S. businesses on the substance and application of the EAR to particular transactions;

  2. it monitors and analyzes trends with respect to the source and type of boycott-related requests received by U.S. businesses; and

  3. it maintains a vigorous enforcement program bringing enforcement actions and imposing penalties, where necessary.

 

OAC enforces the antiboycott provisions of the EAR in an effort to ensure that no export transaction is encumbered by a restrictive trade practice to the detriment of

U.S. business interests. If anyone has a boycott issue or concern in a transaction, OAC is available all day, every day through their Advice Line to counsel and guide you.

 

Conclusion

 

The Obama administration has put in place a new system that prioritizes how we use our limited resources to ensure our export controls protect our national security and foreign policy interests, improve our interoperability with our allies, and remove the incentive for foreign manufacturers and even our allies to stop buying from the United States because of the onerous burdens imposed by an antiquated and cumbersome export control system. We are more secure today because of the

work that the outstanding export control interagency community has accomplished and the changes they have implemented.

 

The substance of the President’s ECR initiative has been realized, and these changes represent true reform, resulting in a new 21st century export control system. We at Export Enforcement at BIS will remain vigilant to safeguard the President’s ECR vision and protect U.S. national security. Thank you.