Commentary: Advice on unrestricted Huawei affiliates

Consultant warns exporters still need to exercise common sense to ensure there’s no suggestion that the integrity of an export transaction is suspect.

   It is the belief of many exporters who are conscientious about compliance that one should not conduct business with an organization or individual that appears on any of the published U.S. government restricted or sanctions lists. However, not all export-related restricted lists have the same criteria applied to the limitations. 
   While it’s prudent for an exporter to take a conservative approach when it comes to making a decision on whether to pursue a revenue-generating opportunity or decline a transaction, it’s equally important to base that judgment on an understanding of the nuances to complying with the specific regulation assigned to that particular restricted list. 
   Take for example the recent additions of China-based Huawei Technologies Co. Ltd. and its 68 affiliates to the Commerce Department’s Entity List does not in itself prohibit a U.S. or non-U.S. party from conducting business or exporting, re-exporting or in-country transferring U.S. product/technology to other Huawei non-listed affiliates. 
   The Commerce Department’s Bureau of Industry and Security has done a very good job in posting relevant FAQs on its website that provide succinct guidance as to what is acceptable for compliance and what is prohibitive activity related to the restrictions.
   A key example for my comment regarding doing business with unlisted affiliates of “entity restricted parties” relates to subsidiaries, parent companies and sister companies that are legally distinct from listed entities. Several of my clients have pending orders with such parties. So how do you proceed with these transactions in a due diligent manner?
   First, it’s imperative that you obtain a written confirmation from an independent third party on letterhead (accounting or law firm) of the consignee that is in a position to verify the business relationship status of the consignee, demonstrating it’s a “legally distinct affiliate and is not a branch or operating division of any listed entities.”
   Second, obtain a written assurance on company letterhead from a senior official of the consignee affirming that “they will not act as an agent, a front or a shell company for the listed restricted entities.” Remember to provide them with a complete list of associated restricted parties.
   After obtaining the above mentioned assurances, you still need to exercise common sense and instincts to ensure that there is no stated or implied information suggesting that the integrity of the transaction is suspect.
   One other area of importance to address is whether you can conduct business with a “listed entity.” The answer is “yes, but proceed with caution,” which could mean that you are restricted from providing U.S. products/technology (non-U.S products would not be prohibited if they meet the U.S. content de-minimis standard) without a valid export license, but could provide services, such as repairs for an existing customer product, as long as no replacement products are of U.S. origin.
   Ultimately, it comes down to a business decision by the senior executives of the exporting party based on taking “extra due diligence” among their compliance checks and balances to ensure adherence to the export regulations versus taking a political position that supports the current administration’s keeping pressure on the Chinese government to negotiate in good faith for stealing U.S. intellectual property.
    DiVecchio, principal of Boston-based DiVecchio & Associates, has provided export compliance consulting services to U.S. exporters for nearly 40 years. He may be reached by email at pauldivec@earthlink.net.