On April 6, 2011, BIS posted below announcement on the top page for Japan's humanitarian relief support activity. Appreciating flexible license practice for emergency support to Japan!
"The BIS supports all efforts for Japan involving items subject to the EAR. However, most shipments of dual-use items extended to Japan do not require a Commerce license. If you plan to export items in support of current relief efforts in Japan and you think that a license may be required, you should contact BIS for guidance. If a license is required, expedited processing may be requested."
2011年4月6日水曜日
Japan extend ban on all trades North Korea
On April 5, 2011, Ministry of Economy, Trade and Industry ("METI") announced on its press release that Japan continue the ban on all export and import with North Korea, which have been imposed since 2006 with one year term extension each year. This measure is substantially trade embargo, including prohibition of export, import, brokering, and financial transaction for all items, based on Foreign Exchange and Foreign Trade Law ("FEFTL").
Outline of the measure
1. Prohibition of export of all items to North Korea by imposing an approval by METI. (Implying the denial of all approval) - FEFTL Article 48 (3)
2. Prohibition of import of all items from North Korea or originating items of North Korea by imposing an approval by METI (implying the denial of all approval) - FEFTL Article 52.
3. Prohibition of brokering between third country and North Korea (including buy/sell, lease and donation of all items) - FEFTL Article 25 (6).
4. Prohibition of payment for importing goods from North Korea or North Korea origin item (without approval by METI) - FEFTL Article 16 (5).
However, an exemption of above restriction may apply to humanitarian purpose aid. This notice is valid from April 14, 2011 until April 13, 2012 for one year.
Tips for legal professional:
It is important to know the difference between "permission" and "approval" of export license under FEFTL. Here is quick comparison below.
- Permission （許可） is under FEFTL Article 48 (1) which is used for trade control of national security, international peace, or trade of dual-use controlled items, such as NSG, AG, MTCR, and Wassenaar Arrangement.
- Approval （承認） is under FEFTL Article 48 (3) which is used for equilibrium of international balance of trade or for achievement of sound development of foreign trade, such as for CITES Washington Convention or Hazardous wastes under Basel Convention.
The difference of this license type leads to the different window of license application to METI, different procedure, different penalty and sanction in case of violation. As for penalty under FEFTL, the violation "without permission" is much severer than "without approval". For example, the sanction of export prohibition to offender is not more than 3 years for "without permission" of FEETL Article 48 (1), but for offender of "without approval" of Article 48 (3), it is not more than 1 year.
In other words, if a guy sends WA dual-use items illegally to North Korea, it is "without permission".
If a guy sends Gucci handbag to North Korea illegally, it is "without approval" and the penalty is less severe than dual-use items export.
Outline of the measure
1. Prohibition of export of all items to North Korea by imposing an approval by METI. (Implying the denial of all approval) - FEFTL Article 48 (3)
2. Prohibition of import of all items from North Korea or originating items of North Korea by imposing an approval by METI (implying the denial of all approval) - FEFTL Article 52.
3. Prohibition of brokering between third country and North Korea (including buy/sell, lease and donation of all items) - FEFTL Article 25 (6).
4. Prohibition of payment for importing goods from North Korea or North Korea origin item (without approval by METI) - FEFTL Article 16 (5).
However, an exemption of above restriction may apply to humanitarian purpose aid. This notice is valid from April 14, 2011 until April 13, 2012 for one year.
Tips for legal professional:
It is important to know the difference between "permission" and "approval" of export license under FEFTL. Here is quick comparison below.
- Permission （許可） is under FEFTL Article 48 (1) which is used for trade control of national security, international peace, or trade of dual-use controlled items, such as NSG, AG, MTCR, and Wassenaar Arrangement.
- Approval （承認） is under FEFTL Article 48 (3) which is used for equilibrium of international balance of trade or for achievement of sound development of foreign trade, such as for CITES Washington Convention or Hazardous wastes under Basel Convention.
The difference of this license type leads to the different window of license application to METI, different procedure, different penalty and sanction in case of violation. As for penalty under FEFTL, the violation "without permission" is much severer than "without approval". For example, the sanction of export prohibition to offender is not more than 3 years for "without permission" of FEETL Article 48 (1), but for offender of "without approval" of Article 48 (3), it is not more than 1 year.
In other words, if a guy sends WA dual-use items illegally to North Korea, it is "without permission".
If a guy sends Gucci handbag to North Korea illegally, it is "without approval" and the penalty is less severe than dual-use items export.
2011年4月4日月曜日
Violation case study - import prohibition sanction
On April 01, 2011, Ministry of Economy, Trade and Industry ("METI") announced the trade sanction to a Japanese national individual who violated the import control of Foreign Exchange and Foreign Trade Law ("FEFTL"). The sanction is the prohibition of any kind of import (including the import transaction through third party) for 1 month from April 08, 2011 to May 07, 2011 based on Article 53 (2) of FEFTL.
The law prescribe the sanction is for a period of not more than one year, therefore the 1 month sanction is not so severe one. The violation of this individual was to import bird's feather from United States which is restricted under CITES without import approval. (Violation of Article 52 of FEFTL). The bird's feather is in CITES Appendix I, that are threatened with extinction and the trade in wild-caught specimens of these species is illegal (permitted only in exceptional licenced circumstances).
So, why this guy imported the feather into Japan? What purpose? If you search this guy's name in google, you can easily find his profile and web site. He sold the bird's feather as fishing imitation bait through online sales! I'm not so familiar with fishing technique, but the CITES Appendix I bird's feather is worth while violating FEFTL?
(Source: http://www.meti.go.jp/press/2011/04/20110401012/20110401012.html )
The law prescribe the sanction is for a period of not more than one year, therefore the 1 month sanction is not so severe one. The violation of this individual was to import bird's feather from United States which is restricted under CITES without import approval. (Violation of Article 52 of FEFTL). The bird's feather is in CITES Appendix I, that are threatened with extinction and the trade in wild-caught specimens of these species is illegal (permitted only in exceptional licenced circumstances).
So, why this guy imported the feather into Japan? What purpose? If you search this guy's name in google, you can easily find his profile and web site. He sold the bird's feather as fishing imitation bait through online sales! I'm not so familiar with fishing technique, but the CITES Appendix I bird's feather is worth while violating FEFTL?
(Source: http://www.meti.go.jp/press/2011/04/20110401012/20110401012.html )
2011年3月24日木曜日
Additional sanction Libyan entities
Following the sanction announcement to Libya by Japanese government earlier this month, Japan announced additional Libyan sanctioned entities on March 23 on its News Release issued by METI. This sanction follows the decision of UNSCR 1970 to freeze the asset of relating entities close to Qadhafi, they are 5 organizations and 7 individuals.
The payments and asset transactions to these sanctioned entities are subject to approval by Japanese government. The asset transactions include a contract of deposit, a contract of trust, and money lease contract etc.
The names of additional 5 sanctioned organizations are as follows:
1. Central Bank of Libya
2. Libyan Investment Authority
3. Libyan Foreign Bank
4. Libyan Africa Investment Portfolio
5. Libyan National Oil Corporation
(Source: METI News Release on March 23, 2011 http://www.meti.go.jp/press/20110323010/20110323010.html )
The payments and asset transactions to these sanctioned entities are subject to approval by Japanese government. The asset transactions include a contract of deposit, a contract of trust, and money lease contract etc.
The names of additional 5 sanctioned organizations are as follows:
1. Central Bank of Libya
2. Libyan Investment Authority
3. Libyan Foreign Bank
4. Libyan Africa Investment Portfolio
5. Libyan National Oil Corporation
(Source: METI News Release on March 23, 2011 http://www.meti.go.jp/press/20110323010/20110323010.html )
2011年3月21日月曜日
Safety of Tokyo in Radiation Measurements
Many of foreign companies get out of Tokyo, some expatriates left Japan, or some moved to Osaka to fear of radiation of Fukushima nuclear plant accident.
As Japanese government and TEPCO's PR presentation was very poor and not comprehensive, it is natural response that many foreigner left Japan for the time being.
I also had impression from their announcement that it is difficult to get reliable, truthful, concrete information about the situation, true risks, short term and longer term assessments, etc.
Although I'm not scientist, not familiar with nuclear technology, what I learned so far is that radiation level in Tokyo is pretty much safe level, we don't have to be panic, not necessary to rush out of Tokyo to evade from radiation.
First, what we need to understand is the radiation measure unit, what Sievert ("Sv") means, and the difference of micro SV, mille Sv, and Sv.
As Japanese government and TEPCO's PR presentation was very poor and not comprehensive, it is natural response that many foreigner left Japan for the time being.
I also had impression from their announcement that it is difficult to get reliable, truthful, concrete information about the situation, true risks, short term and longer term assessments, etc.
Although I'm not scientist, not familiar with nuclear technology, what I learned so far is that radiation level in Tokyo is pretty much safe level, we don't have to be panic, not necessary to rush out of Tokyo to evade from radiation.
First, what we need to understand is the radiation measure unit, what Sievert ("Sv") means, and the difference of micro SV, mille Sv, and Sv.
- Micro Sv x 1,000 = Mille Sv.
- Mille Sv x 1,000 = Sv
So, from what level is harmful to human? It is said as above 200 mille Sv. This means 200K micro Sv.
So far, radiation in east Japan is reported as micro Sv level, e.g. Tokyo Shinjuku area's radiation level as of March 20 is 0.0452 micro Sv per hour. If a guy stands out of building most of a day (10 hours), it means this guy receive 0.452 micro Sv. (But as you imagine, this is unlikely behavior.) As long as TV or news report "micro Sv" level, there is no concern at all in human health. Just for comparison, CT scan health check is 6,900 micro Sv.
Tokyo is 200-300km far from Fukushima Daiichi plant. As IAEA reported recently on their web site, "Tokyo and other areas outside the 30-kilometre zone remain below levels which would require any protective action. In other words, they are not dangerous to human health." IAEA verified Japanese government announcement was not lie.
Also, compared with Hiroshima atomic bomb in 1945, my grandparents and parents lived in a city just 100km away from Hiroshima. Atomic bomb radiation level was estimated as about 30 Sv (please be noted this means 30 millions micro Sv!) in 500meter from the ground zero point. This radiation level leads to immediate death or die within 1 month. But even in this extremely high radiation level, the people living 100km away from Hiroshima, they didn't have any health concern and my parents still live healthy, never suffered from cancer in 70 years time. I know it is not scientific analysis to refer the atomic bomb more than 60 years ago, but this idea personally relieve myself.
2011年3月9日水曜日
Libyan Sanctions by Japan
Following the recent Libyan sanctions by US and EU, Japanese government also announced similar sanctions to Libya by Japan. Followings are the summary of the sanction. It is effective immediately on March 08, 2011.
- Financial sanction: Frozen assets of Qadhafi and his family and relatives
Based on the Notification issued by Ministry of Foreign Affairs in Japan ("MOFA"), the payment to Qadhafi and his relevant persons is required permission. Asset transactions (including deposit contract, trust contract, and loan contract) are also required permission. The Qadhafi and his relevant persons are listed in http://www.mofa.go.jp/mofaj/press/release/23/3/PDF/0308_01_01.pdf - Prohibition of import of arms from Libya
By issuing the Notification based on Foreign Exchange and Foreign Trade Law ("FEFTL"), the import of arms originating in Libya and being shipped from Libya are prohibited.
(Source: METI web site http://www.meti.go.jp/press/20110308001/20110308001.pdf )
2011年3月7日月曜日
Draft list of export control of Japan in public comment
As of March 05, 2011, Japanese METI published new export control list update in its public comment web site. The revised list is in Ministerial Ordinance and the comment is by April 03, 2011.
http://search.e-gov.go.jp/servlet/Public?CLASSNAME=PCMMSTDETAIL&id=595111011
The list update is to reflect the list change of international regimes, such as Wassenaar Arrangement ("WA") December 2010 list update. For example, in electronics items (3A001) and encryption items (5A002), below are the examples of list change summary which is in line with the WA December 2010 list update.
Category 3 IC chip: Relax of technical parameter in Integrated Circuit Analogue-to-digital and digital-to-analogue converter integrated circuits, Category 3A001.a.5.a. (Please be noted the ordinance is written in Japanese and below ECCN should be converted to Japanese numbering system in its ordinance article 6.)
3.A.1.a.5.a.2. - output rate parameter increased (from current 200 million) to greater than 300 million words per second
3.A.1.a.5.a.3. - output rate parameter increased (from 105 million) to greater than 200 million words per second
3.A.1.a.5.a.4. - output rate parameter increased (from current 10 million) to greater than 125 million words per second
3.A.1.a.5.a.5. - output rate parameter increased (from current 2.5 million) to greater than 20 million words per second
Category 5 part 2 “Information Security”:
Add new exemption provision to 5A002 encryption item (Please be noted the ordinance is written in Japanese and the exemption "J" is written as "ヨ" in its Japanese document.)
j. Equipment, having no functionality specified by 5.A.2.a.2., 5.A.2.a.4., 5.A.2.a.7., or 5.A.2.a.8., where all cryptographic capability specified by 5.A.2.a. meets any of the following:
1. It cannot be used; or
2. It can only be made useable by means of ″cryptographic activation″.
Add new restricted item’s provision as 5A002.b (Please be noted the ordinance is written in Japanese and the 5A002.b is written as Ordinance Article 8, paragraph 1, item 9-2.)
5A002.b: Systems, equipment, application specific "electronic assemblies", modules and integrated circuits, designed or modified to enable an item to achieve or exceed the controlled performance levels for functionality specified by 5A002.a that would not otherwise be enabled.
Above are just examples of changes in IT industries. There are many other changes in most of WA categories, through Category 1 to 9. Traders are encouraged to review the items where applicable. In addition, as Japanese export control list quickly reflect the WA list update, this causes some disparities with other WA list adopted countries and its list update is behind the Japan’s pace. For example, Singapore and Malaysia adopt the EU list and its update follow the EU list, which only reflect WA 2008 version currently. For global traders, even if the item has same technical parameter, the classification result may vary depending on the timing of export control list update in each country.
As the due date of public comment is on April 03, 2011, the new list implementation in Japan is likely to be sometime after couple of months later on after April 2011.
http://search.e-gov.go.jp/servlet/Public?CLASSNAME=PCMMSTDETAIL&id=595111011
The list update is to reflect the list change of international regimes, such as Wassenaar Arrangement ("WA") December 2010 list update. For example, in electronics items (3A001) and encryption items (5A002), below are the examples of list change summary which is in line with the WA December 2010 list update.
Category 3 IC chip: Relax of technical parameter in Integrated Circuit Analogue-to-digital and digital-to-analogue converter integrated circuits, Category 3A001.a.5.a. (Please be noted the ordinance is written in Japanese and below ECCN should be converted to Japanese numbering system in its ordinance article 6.)
3.A.1.a.5.a.2. - output rate parameter increased (from current 200 million) to greater than 300 million words per second
3.A.1.a.5.a.3. - output rate parameter increased (from 105 million) to greater than 200 million words per second
3.A.1.a.5.a.4. - output rate parameter increased (from current 10 million) to greater than 125 million words per second
3.A.1.a.5.a.5. - output rate parameter increased (from current 2.5 million) to greater than 20 million words per second
Category 5 part 2 “Information Security”:
Add new exemption provision to 5A002 encryption item (Please be noted the ordinance is written in Japanese and the exemption "J" is written as "ヨ" in its Japanese document.)
j. Equipment, having no functionality specified by 5.A.2.a.2., 5.A.2.a.4., 5.A.2.a.7., or 5.A.2.a.8., where all cryptographic capability specified by 5.A.2.a. meets any of the following:
1. It cannot be used; or
2. It can only be made useable by means of ″cryptographic activation″.
Add new restricted item’s provision as 5A002.b (Please be noted the ordinance is written in Japanese and the 5A002.b is written as Ordinance Article 8, paragraph 1, item 9-2.)
5A002.b: Systems, equipment, application specific "electronic assemblies", modules and integrated circuits, designed or modified to enable an item to achieve or exceed the controlled performance levels for functionality specified by 5A002.a that would not otherwise be enabled.
Above are just examples of changes in IT industries. There are many other changes in most of WA categories, through Category 1 to 9. Traders are encouraged to review the items where applicable. In addition, as Japanese export control list quickly reflect the WA list update, this causes some disparities with other WA list adopted countries and its list update is behind the Japan’s pace. For example, Singapore and Malaysia adopt the EU list and its update follow the EU list, which only reflect WA 2008 version currently. For global traders, even if the item has same technical parameter, the classification result may vary depending on the timing of export control list update in each country.
As the due date of public comment is on April 03, 2011, the new list implementation in Japan is likely to be sometime after couple of months later on after April 2011.
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