BIS Extends Huawei General Licenses

The U.S. Department of Commerce’s Bureau of Industry & Security (BIS) yesterday granted an extension of the existing Temporary General License (TGL) for China’s Huawei Technologies Co. and 115 other affiliates around the world from those parties’ current placement on the BIS Entity List.

A previous TGL (modifying the respective Entity List entries) was issued on May 20, 2019 for the original 69 entities placed on the list, and a subsequent extension incorporating the additional 46 entities was issued on August 21, 2019 (effective August 19).

The extension of the TGL provides these entities with some significant reprieve, however it does not remove their entries from the Entity List. As this reprieve is not permanent and is subject to repeal, and as it does not cause a removal from the Entity List for that period of time, there are still lingering effects that likely cause hesitation for many companies considering business with Huawei, including those whose products and technologies are not of U.S. origin or otherwise subject to the U.S. Export Administration Regulations (EAR).

The timely nature of these TGLs reflects in some part the urgency given the widespread use of Huawei’s technologies and products. Other companies named to the Entity List may experience a tougher challenge in demonstrating the need for such relief, and the presumption is likely that the named party is actively seeking permanent removal from the list, not just a series of short-term lifelines. This requires a good-faith effort to take all steps required to seek a proper delisting of the company.

Posted in Uncategorized

The Other American Designation – the BIS Entity List

While many professionals in the compliance space around the world are familiar with the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) list of Specially Designated Nationals and Blocked Persons (the “SDN List”), another U.S. government list is quickly rising in importance.  As news articles over the past few years (think ZTE and Huawei) have indicated the U.S. Department of Commerce’s Bureau of Industry & Security’s Entity List is becoming increasingly noticed and used as a tool of U.S. foreign policy in curtailing the flow of U.S. origin goods and technologies to certain foreign parties.

The Entity List is arguably the most potent list at the BIS, an agency tasked with administering the Export Administration Regulations (“EAR”), a set of regulations governing U.S. origin goods – broadly defined in a way that covers many goods made even outside the United States with U.S. technologies or foreign goods that have transited through the United States.  While a BIS list, the naming of parties to the Entity List, the modification of their entries, and their removal is the responsibility of the End-User Removal Committee (ERC), an inter-agency group with representatives from various U.S. departments, including Commerce, Defense, and Energy.

The impact of being on the Entity List can be devastating. The limitations can vary, for example some Russian entities on the list are subject to somewhat narrow prohibitions on certain oil extraction-related technologies (which can be very broad for their purposes given the scope of what they do) to blanket bans on all items subject to the EAR. It usually leads to a domino effect, where even transactions that are not prohibited become impossible to execute due to de-risking by suppliers, vendors, and service providers like banks and shippers, in cases where the transaction is not even prohibited under the regulations.  Broad prohibitions can be painful and can cause companies to collapse. You may recall a story where China’s ZTE was apparently unable to fix a urinal in its men’s room due to difficulty in obtaining a part, all arising from its Entity List designation.

Removal from the Entity List, while rare, is not impossible. The rarity may come from the fact that few may take the necessary expert approach towards removal. It’s critical to take immediate steps quickly to begin the process for permanent removal, and this should be done by experienced lawyers well-versed in U.S. trade regulations, particularly export controls. Given the reputation issues at stake, companies that are serious about rehabilitating their businesses must address the designation seriously.Compliance Items

Tagged with: , , ,
Posted in Compliance, Entity List, Export Controls

Treasury Adds Scores of Iranian Companies to SDN List

The US Department of the Treasury announced it was adding scores of Iranian entities to its list of Specially Designated Nationals and Blocked Persons (the SDN list) due to their connections with the Islamic Revolutionary Guards Corps (IRGC)-affiliated Basij force, specifically the Bonyad Taavon Basij (Basij Cooperative Foundation).  Importantly, however, these additions are not strictly military related, and include some Iranian economic giants across sectors including automotive, finance, and mining, including household names such as:

  • Bahman Automotive Group
  • Bank Mellat
  • Esfahan Mobarakeh Steel Company
  • Iran Tractor Manufacturing Company (ITMC)
  • Mehr Eqtesad Bank
  • Parsian Bank
  • Sina Bank

Mobarakeh Steel and ITMC are the largest companies in the region in their respective sectors of steel production and tractor manufacturing.  Importantly, Bank Mellat and Bank Parsian are among Iran’s largest financial institutions.  Bahman Group is a large automotive company that has assembled foreign automobiles in Iran.

The additions of the banks may be the most interesting for many, especially U.S. persons seeking to divest from Iran. Being designated under the SDGT (Executive Order 13224) makes virtually all transactions with such entities prohibited.  This covers otherwise exempt or general license transactions such as medical, food, and agricultural sales, and the transfer of personal remittances.  As such, to the extent U.S. persons have any transactions with Iran in non-sanctioned areas such as humanitarian sales and divestment or personal remittances, they should take extra care to make sure such entities have no interest in such transactions.  Any such involvement can subject such funds to blocking upon coming into possession of a U.S. person.  The release of blocked funds requires a specific OFAC license.   If such entities have been or are involved, a specific OFAC license will now be needed and such parties should not proceed without first consulting a professional.

This announcement dovetails an advisory issued last week by the Department of the Treasury’s Financial Crime Enforcement Network (FinCen) on deceptive Iranian financial practices.

Importantly, today’s move by the Department of the Treasury does not appear to be related to President Trump’s announcement in May 2018 that the United States would be ceasing participation in the Joint Comprehensive Plan of Action (the “Iran Deal”), but rather part of the Administration’s policy to increase pressure against the Islamic Republic, particularly on the economic front.


Posted in Uncategorized

How does Sanctions Snap Back Impact Iranian-Americans?

We’ve been getting a lot of questions at the office as to what President Trump’s May 8, 2018 announcement to cease U.S. participation in the Joint Comprehensive Plan of Action (JCPOA, also known as the “Iran Deal”), an agreement between Iran and the “P5+1” (U.S., UK, France, Russia, China, and Germany) over Iran’s nuclear program. In the midst of this sanctions snap-back and sliding value of the Iranian Rial, many Iranian-Americans naturally have some cause for consternation and confusion.

Importantly, the general laws on remittances and asset divestiture from Iran are largely the same for U.S. persons, which the sanctions regulations define as U.S. citizens and permanent residents wherever they are (including in Iran) or other people physically in the United States. While we can no longer import Iranian-origin food products or carpets, regulations governing the sale of personal assets, the transfer of personal and family funds and the receipt of gifts remain intact. The only noticeable difference legally is that certain Iranian banks like Melli, Mellat, Sepah, and Tejarat will soon return to the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) list of Specially Designated Nationals and Blocked Persons (the “SDN” list). This means that transactions involving such entities will largely require specific OFAC licenses to be permissible to avoid blocking (aka “freezing”) by U.S. banks, for example.

Beyond the law however, we are seeing some tangible differences from the pre-JCPOA era. For one, the size of transfers appears to be shrinking, although this may be a direct result of the spike in the Dollar’s value versus the Iranian Rial/Toman.  In other words, for example, a $500,000 asset divestiture may require more funds transfers now than before.

Also, banks appear to be stepping up scrutiny of Iran-related transfers (such as gifts, proceeds from the sale of real estate, etc.) Remember, the law does require you to keep proper records of Iran-related transactions and these laws are not new. However, recent trends we have seen point to the increased importance of this. It is not only a legal requirement but a best practice that banks will likely look for more and more when processing funds transfers for their clients.

The best you can do is be firm on what the law is – often many people start inquiring as to what U.S. law is after they have begun the divestment or transfer process. That’s too late. Many transactions require licenses and while the laws on such licensing haven’t changed because of the JCPOA (other than issues connected to banks that will go back on the SDN list and an increased number of other entities that are being designated by OFAC), the logistics are getting a bit more difficult. These logistical issues can naturally create legal exposure points, so it’s best to be thorough and comprehensive. Exercising best practices is not only a matter of complying with the law but keeping good documents and properly informing your U.S. financial institution through the right channels (i.e., informing the right people, not just anybody at the bank).

Remember, banks often look for erratic activity in accounts, much like credit card companies do.  Oftentimes remittance transfers from Iran (like the transfer of inheritance or the sale of a home) will be unlike transactions typical to your account, and the source is not going to be identifiable as funds must be processed from a third country. This can arouse suspicion for a completely lawful transfer. Therefore, as bank compliance departments increase their scrutiny, there will be more responsibility on the part of customers to ensure that the underlying transaction (1) was lawful, and either allowed by OFAC by general or specific license (and you have a specific license if needed); and that (2) all aspects of the handling and transfer of the funds are lawful.  Otherwise you can run a high risk of having your funds rejected, or your account. It is key to provide proper documentation to your bank’s compliance team to ensure everything is not only done legally but also transparently.


Posted in Uncategorized

Telecommunications and the Iran Protests – a Sanctions Response from the Trump Administration?

Many have been caught by surprise by widespread anti-government protests in Iran that started in Mashhad last week ostensibly over food prices and have now engulfed the whole country, going on to their 9th straight day.  The Trump administration has indicated moral support for the protestors’ right to peaceful demonstration and their gripes against the Iranian government. “Support,” however, is very vague, and some are demanding that the United States do more to demonstrate support. In the absence of diplomatic relations between the two states, how could this support work out? The answer may very likely lie in our sanctions laws.

Much has been said about decertification of the Joint Comprehensive Plan of Action (JCPOA), the so-called “nuclear deal” entered into by the United States and the “P5+1” nations of the United States, United Kingdom, France, Germany, Russia, and China in 2015, implemented in January 2016. But that’s not the real extent (or potentially even the focus) of sanctions as a foreign policy tool in U.S. policy against Iran.

The United States continues to maintain a very robust sanctions architecture in place against Iran, covering the vast majority of trade between so-called “U.S. persons,” which include U.S. companies, as well as citizens and permanent residents wherever located, and others are physically in the United States.  Despite the 2015 nuclear deal (the Joint Comprehensive Plan of Action or JCPOA), a large number of “secondary” sanctions remain in place. These are limitations whereby the U.S. can place limits on the U.S. activities of third country actors (such as European or Asian companies) that engage in certain transactions with Iran or specific Iranian entities that may be sanctioned by the United States.

So, given recent events in Iran, what could the Trump administration change with respect to sanctions?


Information & Communications Technology (IT) 

The Iranian government’s restrictive internet policies have been a key challenge to Iranian civil society on many fronts.  Despite the presence of nearly 50 million smart phones in Iran, the government continually throttles the internet and blocks sites like YouTube, Facebook, and Twitter (even though many Iranian officials maintain a presence on these sites), and there have been recent reports of blocking Instagram and Telegram, a messaging app hugely popular in Iran.

These actions are not new, and in 2013, in a bid to improve the access of people in Iran to telecommunications with one another and the outside world, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued General License D (now General License D-1).  This “General License” authorizes the lawful exportation to Iran of many U.S. origin telecommunications goods and services, such as mobile phones, tablets, laptops and accessories without having to obtain OFAC approval, provided the sales are executed in a lawful manner, which includes restrictions on end-use, end-user, and receipt of payment. While GL D-1 is expansive in what it allows, it is not without limitations, and there has been talk of expanding the scope of and activities it authorizes, or at least encouraging the U.S. government to expand it.

Although U.S. companies can export many fee-based and non-fee based apps to Iran, they cannot host a wide array of Iranian web content, such as e-commerce sites or related apps (for example those allowing users in Iran to purchase goods).  This is consistent with U.S. sanctions policy of limiting Iran’s commercial activity with U.S. persons.  The effect is that lawful U.S. apps become more difficult to access from Iran as companies like Apple and Google have closed their app stores to Iranians, presumably out of fear that Iranians could download certain apps that are not permitted and that the U.S. tech giants may host Iranian apps that they are not allowed to. Therefore, a lot of what is allowed to happen simply isn’t available, or at least not with ease.  OFAC could clarify its position on such activities in the coming days and weeks, making it easier for companies to export these goods and services.

Second, OFAC could expand General License D-1 to also include the exportation of items like Apple TV, Roku and the Amazon Fire, which will allow individuals in Iran with easier access to foreign television feeds. Given the Iranian government’s practice of jamming signals from foreign news channels like the BBC Persian or Voice of America (VOA), not to mention fairly regular drives to collect illegal rooftop satellite dishes, this move could be seen as a way to expand people’s access to foreign media and receive more varied news. It could also enable the provision of services to Iran enabling the exportation of internet and television connectivity to individuals in Iran, enabling them to bypass the throttled internet.

Sanctioning Iran’s State-Owned Television & Radio

The other potential move by the U.S. government could be to reimpose currently waived sanctions against IRIB, which maintains a constitutional monopoly on television and radio.  Remember a few years back when the United States was imposing new sanctions legislation against Iran in rapid succession.  One issue of concern particularly after the 2009 Iranian election was the use of Iranian television to broadcast mass trials and allegedly false confessions Following implementation of the Iran Freedom and Counter-Proliferation Act of 2012 (the IFCA), the IRIB was added to the OFAC Specially Designated Nationals (SDN) list, effectively a “black list” of parties around the world that U.S. persons are generally barred from dealing with.  This originated from the Iran Threat Reduction and Syria Human Rights Act (aka the “Threat Reduction Act” or “TRA”), which, among other things, called for drastic expansions of U.S. broadcasting to Iran and Persian-language content and to overcome the regime’s attempts to jam outside broadcasting signals.

The IFCA notably has a provision (§ 1244) calling for the designation on the SDN list of certain non-U.S., non-Iranian persons, such as Asian and European companies if they under some circumstances “knowingly provides significant financial, material, technological, or other support to, or goods or services in support of any activity or transaction on behalf of or for the benefit of” an Iranian SDN such as IRIB. In other words, the U.S. government can sanction a European company for providing material satellite services to the IRIB if there is no U.S. waiver or other authorization in place.  That would cause an effective blocking of that entity from the United States economy and banking system.

In 2014 and 2015, before the JCPOA, the Obama administration issued a waiver on certain “secondary sanctions” on IRIB, which punish third country companies that engage in certain transactions with the entity.  This waiver enabled IRIB to deal with satellite companies around the world to broadcast its signals, many but not all of which reached far beyond Iran’s borders.  By revoking this waiver, the U.S. Department of State could substantially paralyze IRIB’s ability to broadcast not only outside Iran but even within its borders.

But didn’t the JCPOA get rid of these limitations? Not really. As part of the JCPOA, many activities subject to sanctions in the IFCA were waived, but only for Iranian entities in the “annex” to the JCPOA, which does not include the IRIB.  Given this, the IRIB remains subject to secondary sanctions and the Department of the Treasury has wide discretion to designate entities violating the spirit of §1244.

Alternatively there are other possibilities OFAC and the Department of State may pursue, such as sanctioning more human rights violators, blocking any assets of theirs coming into the hands of U.S. persons among other things.

The past 15 or so years have seen increasing bipartisan support for sanctions as a non-violent tool to implement U.S. policy objectives and effectuate a change in behavior by sanctioned entities. It is likely sanctions may be the United States’ first formal response to recent events.

Posted in Iran, OFAC, Sanctions

No, the Iran Deal is not over…

The long awaited policy statement by President Trump on Iran along with the “decertification” of the Iran nuclear deal or the Joint Comprehensive Plan of Action (JCPOA) finally happened yesterday.  What does it all mean?

shutterstock_101051161 This blog is really focused on legal issues and is not a political blog, so I will keep the political discussion short. The plan announced yesterday strives to be a comprehensive approach that addresses U.S. policy on Iran in totality, beyond simply the nuclear program and the scope of the JCPOA.  Notably, the United States and Iran did not ever reached a “grand bargain” on bilateral matters, and the JCPOA did not address longstanding U.S. grievances against Iran, which largely served as the basis for the main body of U.S. sanctions against Iran, including the Iranian Transactions and Sanctions Regulations (ITSR), which has many comprehensive restrictions on dealings by U.S. persons with Iran. In effect the nuclear deal in many respects dialed back the clock to 2005 or 2006, where Iran was under many, albeit less, sanctions (the fact that the world of business and compliance has changed markedly since then notwithstanding, which is part of the reason Iran has not been able to benefit as much from sanctions relief as it had hoped).

Decertification is not the end of the deal, at least not for now.  The White House’s press release has some new information but much of this appears more of a pronouncement than really new policy.  Effectively, the President has punted the issue to Congress, which can vote to modify certain legislation it passed when the JCPOA was implemented. That legislation placed certification requirements on the President, whereby confirmation had to be given every 90 days. That may be ultimately removed. Therefore, the deal is still standing.

As for the Islamic Revolutionary Guards Corps (IRGC), it was already sanctioned before, so the impact of the additional designation (under Executive Order 13224, which is focused on counterterrorism) will be arguably minimal (notably, many entities placed on any type of restriction by the United States typically face an effective “shutdown” in dealings with foreign companies, however light the actual restrictions may be).  The IRGC has been under so many designation one has to wonder who was actually willing to do business with it before yesterday’s decision.

In the long run, this should have little effect on the ITSR as that body of regulations was largely unchanged by the JCPOA. This means people-to-people communications, medical exports, food exports and IT exports will most probably remain intact.

What remains to be seen is how the new policy will shape carveouts (referred to as “general licenses” or “exemptions”) in the ITSR. We may see more willingness by OFAC to approve activities in spaces like telecommunications and informational technology (IT) exports, as such technologies can expand the access of Iranians to the outside world. We may see other similar changes elsewhere.  This is not comparable to what the Administration is doing on the North Korean sanctions front.  That said, like other actions by the U.S. government, the ripple effects of such policy modifications, meaning the “psychological” impact, can be much farther reaching on the business and broader communities than what is actually mandated by law.


Posted in Uncategorized

ExxonMobil’s Sanctions Penalty and the Lesson on Specially Designated Nationals

OFAC slapped a $2 million penalty on ExxonMobil on Thursday for alleged violations of U.S. sanctions on Russia. Specifically the allegations were that during a narrow, 9-day window in May 2014, the U.S.-based oil giant entered into several contracts with Russian energy company Rosneft OAO where the signatory was Igor Sechin, who was named by OFAC as a Specially Designated National (SDN).  (It’s worthy to note that ExxonMobil then turned around and brought suit, alleging some similar arguments to those my law firm Akrivis Law Group successfully made on behalf of Epsilon Electronics in California in its landmark case challenging a $4 million penalty by OFAC.)  Beyond the constitutional arguments, this case highlights the taint of the SDN in transactions.


SDNs, as you probably know, are non-U.S. entities (companies, organizations, or natural persons) who have been designated by OFAC for varying reasons.  The list, which is effectively a “black list” for U.S. persons, numbers well into the hundreds of pages (it is almost reminiscent of the old white pages the phone company issued every year).  While many are in sanctioned countries like Iran, Cuba, and Syria, many are in countries with which the United States maintains very robust trade and diplomatic ties. U.S. persons are generally barred from dealing with such entities and these entities’ assets that come into possession of U.S. persons must generally be blocked.  Since there are many ways to get on to the SDN list (in large part through Executive Orders), not all designations are treated equally. In fact, there are sometimes carveouts for some SDNs.

Despite these nuances ion the list, many parties around the world, specifically banks, often adopt a “de-risking” approach towards SDNs – meaning they will generally not comb through the laws and enable or execute those transactions that may be exempted under law (even if they are specifically licensed by OFAC to do so) – rather, they prefer to simply not deal with such entities, even if a transaction does not include a single U.S. element. Long story short, it can be a fast downward spiral for any company, organization, or individual on a truly global scale. Getting off the list can be very challenging and time consuming.

So what happened here? Even though Rosneft was not itself on the SDN list, OFAC’s position was that ExxonMobil effectively imported the services of a designated entity, specifically Mr. Sechin. The dealing with Rosneft itself was not necessarily an issue per se, but having an SDN sign the contracts on behalf of Rosneft was.  In other words, Sechin’s signature on the contract and other work he did in furtherance of constituted a prohibited dealing for ExxonMobil.

ExxonMobil tried to argue that White House statements at the time indicated that these types of transactions were not problematic (although OFAC published a somewhat responsive Frequently Asked Question or “FAQ” on the same issue vis-à-vis the Burmese sanctions). White House or government agency statements can be very useful in determining a compliance approach or strategy, but ultimately the actual law is what’s written in the books.

Beyond the issue of policy versus law, again, the most important point here arguably is that the presence of an SDN can taint an entire transaction. OFAC licenses for certain activities with sanctioned countries often state that certain entities remain off limits. Therefore even if an activity is specifically licensed by OFAC or subject to a general license, one must be very careful to avoid SDNs in any aspect of the transaction (unless there is an applicable carveout or the specific license clearly states that you are allowed to deal with a given SDN for a particular purpose). The presence of an SDN may not necessarily invalidate all activities surrounding a given transaction.  However, it can not only constitute a violation of applicable OFAC regulations, but also lead to money or other assets being blocked.

The lesson here is particularly important in countries like Russia where many designated entities are persons or companies of extremely elevated importance in those countries’ economies. The SDN “taint” typically trickles down to any entity they own or control (think subsidiaries), which is why you should always do your due diligence and care to make sure all aspects of your transaction, not just the one that’s the focus of your attention, is compliant with applicable OFAC regulations.




Posted in Uncategorized
Akrivis Law Group, PLLC
Washington, DC

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 105 other followers

  • RT @amyklobuchar: Minnesota Attorney General Keith Ellison is increasing charges against Derek Chauvin to 2nd degree in George Floyd’s murd… 1 day ago
This website aims to provide notes and commentary on international legal, business, and political developments in economic and other sanctions. It is intended solely for information and entertainment purposes and should in no way be construed as legal advice. If you have any questions or are unclear on any of the subject matters addressed or discussed on this site, please consult a licensed legal professional. Views presented in the comments and outside links do not necessarily reflect those of the website author. All external links on this website to articles and documents are external and provided for informational purposes only. They have no relation to the author of this website unless specified otherwise.

This website is independent of Akrivis Law Group, PLLC and any statements of opinion posted on this website are therefore not to be considered positions of Akrivis Law Group, PLLC.

Quotations and linkages do not imply any type of endorsement.

Copyright 2019 Farhad R. Alavi.
All rights reserved.
US Sanctions Law Blog