Sudan

The United States Government has decided to take another small step to aid the peoples of Southern Sudan by agreeing to approve certain exports of defense articles to Southern Sudan to support the peace arrangement between Southern Sudan and the murderous Government of Sudan which, along with its Janjaweed henchmen, is known to support or be involved in the murdering and burning of babies, women and children as part of its genocide against certain groups in Sudan.

The Department of State alongside with Foreign Operations has authorized the US to provide non-lethal defense services to the Government of Southern Sudan. This will include military assistance, military education and training, and defense services controlled under the International Traffic in Arms Regulations. It has been determined by State that this is in the best interest of the United States and Southern Sudan and that the assistance may be provided pursuant to section 666(e) of the ITAR.

More information:

• Federal Register Notice

On February 28, 2008 the Department of the Commerce, Bureau of Industry and Security issued a final rule amending the Export Administration Regulations. The rule will expand authorization for temporary exports and reexports to Sudan under EAR License Exception TMP (”Temporary Imports, Exports, and Reexports”), 15 C.F.R. Part 740.9.

The revision will now allow for an expanded list of “tools or trade” usually characterized by “usual and reasonable kinds of quantities of commodities, software, and technology for lawful use”. Software must be solely used for servicing or in-king replacement of software legally exported, which must remain loaded on exempted equipment while in Sudan. Before the final rule, all software was required to be loaded on to the hardware prior to sending the hardware to Sudan.

The new regulation will now permit reexports, they must however, be shipped to Sudan to and by eligible users for eligible uses. A permissible “eligible” user includes any non-governmental organizations or an individual staff member, employee, or contractor of such an organization.

All revisions are said to be effective immediately, but many are cautioned that there are still several restrictions involving TMP. For a complete list of restrictions and newly authorized component please see the final rule.

More information:

• Federal Registers
• BIS - Sudan Web Guidance (PDF)

The Department of Treasury’s Office of Foreign Assets Control has issued a guidance document to give much need direction banks, importers, and exporters regarding blocked property and interests in blocked property. The main issue the OFAC is attempting to answer in this document is, what if a company is not on the SDN list, but one of its partners/ shareholders/ members is? Can we do business with the company? The answer is not so clear however, it actually is that it depends. If the SDN lists any partners/ shareholders/ members who have 50% or more interest in the company than the answer is no, but if they only have 49% or less interest in the company than you can in fact do business with the company but you should act with strong caution.

This all may sound a bit clear until the fact arises of how to actually find out if the SDN has 50% or greater interest therein the company. The OFAC does not give any opinions or options to generate an answer for this problem. If in fact a company fails to detect a SDN interest in 50% or more in one of their customers and ends up engaging in business the company will be treated by the OFAC as if they dealt with an SDN directly.

OFAC warns and reminds companies, “In certain OFAC sanctions programs (e.g., Cuba and Sudan), there is a broader category of entities whose property and interests in property are blocked based on, for example, ownership or control.”

More information:
OFAC Guidance Document (PDF)

On December 19, 2007, the Department of State issued an amendment to the International Traffic in Arms Regulations concerning exports and sales which were prohibited by United Nations Security Council embargoes. The amended list will add countries subject to such embargos. The current list includes: Cote d’Ivoire, Democratic Republic of Congo, Iraq, Iran, Lebanon, Liberia, North Korea, Rwanda, Sierra Leone, Somalia, and Sudan.

More information:

Federal Register 72FR71575.pdf (PDF)

On October 31, 2007 the Sudanese Sanctions Regulations were amended to partially lift the prohibitions imposed across the country. The blocking and asset freezing of denied entities will remain in effect and unchanged as will the prohibitions involving petroleum and petrochemical industries throughout all of Sudan.

The following areas have been taken off of the prohibited list:

• Southern Sudan, Southern Kordofan/Nuba Mountains State
• Blue Nile State
• Abyei
• Darfur
• 4 official camps for internally displaced persons in Khartoum

This will allow for export/import trade activities involving goods, services and technology to the above mentioned areas without a license. If the transaction involves property or assets held by the government of Sudan or a denied persons, relates to Sudan’s petroleum or petrochemical industry, or involves transshipment through regions of Sudan that are prohibited, a license must be obtained from OFAC.

More information:

OFAC news release

In the August 30, 2007 Federal Register, the Office of Foreign Assets Control (OFAC) made several amendments to the Cuban Assets Control Regulations, Burmese Sanctions Regulations, Sudanese Sanctions Regulations, and Iranian Transactions Regulations to extend the general licensing to cover services in connection with written publications. A key element of the amendments applies to electronic publications that are already exempt from OFAC jurisdiction. The amendments extend the exemption for informational materials to also apply to embedded software that is embedded in the informational materials and used to search, view or read the electronic publications.

Maybe Google Needs a New Export Compliance Consultant or Lawyer

In an effort to highlight the Government of Sudan’s systematic genocide against the “non-Arab” people in Darfur, Google Earth has added information to its internet software which allows internet surfers to view evidence of the horrific acts being committed there. These changes to Google Earth went into effect in early April. At about the same time, Sudanese citizens began to notice that they could no longer download Google Earth from Google’s servers.

The initial speculation was that Sudan’s government had blocked access to Google Earth so that its people would be shielded from the harsh reality of its rule. (We personally didn’t speculate like that because we figured the people being massacred by the Government of Sudan probably already had a good idea of what was going on, and the other people in Sudan (e.g., the people of Southern Sudan) have previously themselves experienced the Government of Sudan’s tactics of using mass killings, burning down entire villages, kidnappings, slavery, rape, and denial of international aid supplies to wipe out groups of people it doesn’t like.)

According to Google spokesperson, Megan Quinn, “in accordance with US export controls and economic sanctions and regulations, we are unable to permit the download of Google Earth in Sudan”.

I disagree with Google’s reading of the Treasury Department Sudan sanctions rules as they apply to the free Google Earth. Treasury normally excludes from its prohibitions “informational materials” which closely resembles the concept of “publicly available” in the Export Administration Regulations. The free Google Earth seems to meet these definitions and be free from Treasury restrictions. Google Earth Plus ($20) and Google Earth Pro ($400) likely are prohibited by Treasury regulations, although an argument could be made that Plus may also be OK.

NOTE: OK, this is just arm chair consulting here. I don’t have all the facts about exactly how Google does business, and, honestly, I haven’t taken the time to research Google.

(And, duh, by the way, did anybody ever stop to think how somebody in Sudan could even have a computer?? Virtually all computers are subject to US jurisdiction, either because they incorporate US components or because they use Microsoft software. US trade controls prohibit all transfers of such computers to Sudan, but, obviously prohibiting the transfers does not necessarily prevent the transfers.)

Now, even if Treasury Department rules did prohibit the download of free Google Earth, anyone with any sort of internet savvy can utilize software tools such as “Tor” that make it impossible for Google’s servers to tell where they are accessing from (unless Google prevents all downloads from Tor), and thus possible to access Google Earth from Sudan.

In any event, if you want to see evidence of the Government of Sudan’s efforts to wipe the “non-Arab” peoples of Darfur, you can get the free Google Earth at earth.google.com and navigate Google Earth to the African continent where you will see a special link “Crisis in Darfur.” If you want to find out more about the atrocities in Darfur, I recommend you get the book Not on Our Watch, the Mission to End Genocide in Darfur and Beyond by Don Cheadle and John Prendergast.

Source:

• Sudan Tribune - April 25, 2007, Author: Stefan Geens

It has been more than seven and a half years since President Clinton invoked the International Emergency Economic Powers Act (pdf) and issued Executive Order 13067 to declare a national emergency and institute broad sanctions against Sudan. The rationale for the sanctions have shifted somewhat over time, from support for terrorism (Sudan was Osama bin Laden’s home before Afghanistan), the prevalence of slavery, and curtailment of religious freedom to human rights abuses in the country’s south and west (Darfur). There have lately been some (we think dubious) reports that the US will substantially lift its unilateral sanctions of Sudan, but for now the Office of Foreign Assets Control is just making some relatively small changes to how the Sudanese Sanctions Regulations treat transfers of funds.

OFAC is removing the section of the SSR which said that funds transfers from the US to Sudan were not a prohibited exportation of services. This change has the effect of banning the transfer of funds.or at least it would have had OFAC not also issued two related general licenses as part of the same rule. The first license (adapted from an existing interpretation) permits US financial institutions to operate noncommercial accounts for individuals ordinarily resident in Sudan as long as they are not associated with the Government of Sudan. The second authorizes U.S. depository institutions, U.S. registered brokers and dealers in securities, and U.S. registered money transmitters (all terms newly-defined in the SSR) to engage in noncommercial funds transfers to or from Sudan or for individuals ordinarily resident in Sudan. The end result of these revisions is to more carefully circumscribe permissible the transfer of money to and from Sudan and on behalf of people who live there.

In addition to addressing funds transfers, the rule attempts to clarify OFAC vs. Bureau of Industry and Security jurisdiction for reexports by non-US persons, makes some changes to how OFAC handles civil penalties, and clears up a confusing reference to the Government of Sudan in the Reporting, Procedures and Penalties Regulations.