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ZTE Denial Order Imposed

By Alexandra Baj, Ed Krauland & Brian Egan on April 18, 2018
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On April 16, 2018, the US Department of Commerce, Bureau of Industry and Security (BIS) imposed a denial order involving Zhongxing Telecommunications Equipment Corporation of Shenzhen, China (ZTE Corporation) and ZTE Kangxun Telecommunications Ltd of Hi-New Shenzhen, China (ZTE Kangxun).  The denial order, effective immediately, restricts ZTE Corporation and ZTE Kangxun from participating in any way in any transaction involving any hardware, software, or technology that is exported / re-exported or to be exported / re-exported from the United States and is subject to the US Export Administration Regulations (EAR).  The denial order also restricts any person from engaging, directly or indirectly, in certain EAR-related activities involving ZTE Corporation or ZTE Kangxun. 

Restricted activities include exporting or re-exporting to ZTE Corporation or ZTE Kangxun any hardware, software, or technology subject to the EAR (including US-origin items abroad and foreign-made items with more than 25 percent controlled US content), as well as facilitating acquisition of such items by the ZTE entities, and servicing EAR-controlled items that are owned, possessed or controlled by the ZTE entities. It should be noted that with respect to non-US items that incorporate US content, such US content is “controlled” where a license would be required to export it to the country of destination as indicated by the Commerce Control List and BIS Country Chart.

Restrictions on servicing also include servicing items in ZTE’s possession that are not subject to the EAR if, in providing the service, a person uses an item that is subject to the EAR.  “Service” in this context means installation, maintenance, repair, modification, or testing.  The restrictions in the order last for a period of seven years, until March 13, 2025.  

The Commerce Department’s action follows a March 2017 settlement agreement related to ZTE activities in violation of US law regarding Iran and North Korea.  Commerce found that those activities involved “an elaborate scheme to hide the unlicensed transactions from the US Government, by deleting, destroying, removing, or sanitizing materials and information.” 

Commerce activated the suspended denial order in reaction to Commerce’s findings that ZTE had continued to make false statements to Commerce, particularly regarding disciplinary action for ZTE employees involved in the activity with Iran and North Korea.  Commerce stated that the activity was “part of an unacceptable pattern of false and misleading statements and related actions”. 

This denial order is already having a significant impact on the two entities, with collateral effects on affiliates, and on all entities who are in the supply chain or provide support services for ZTE where they have items subject to the EAR to be used in the relationship.

Photo of Alexandra Baj Alexandra Baj

Alex Baj’s practice primarily involves export controls and economic sanctions laws and regulations, anti-corruption investigations and compliance, international trade, and security clearance issues. Alex advises clients on export control and economic sanctions laws and regulations, including the Export Administration Regulations (EAR), International…

Alex Baj’s practice primarily involves export controls and economic sanctions laws and regulations, anti-corruption investigations and compliance, international trade, and security clearance issues. Alex advises clients on export control and economic sanctions laws and regulations, including the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), US sanctions regulations administered by the Office of Foreign Assets Control (OFAC), and nuclear export controls under the jurisdiction of the Nuclear Regulatory Commission (NRC).  Alex specializes in the development and implementation of export and anti-corruption compliance policies and procedures and training, internal investigations and voluntary disclosures under the EAR, the ITAR, and OFAC rules, due diligence for mergers and acquisitions, and on encryption and cybersecurity export controls.  Her clients include companies involved in defense, aerospace, software, semiconductor, and uranium processing industries.

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Photo of Ed Krauland Ed Krauland

Edward J. Krauland focuses on export controls/economic sanctions. Ed’s extensive experience includes representing clients on matters involving US and multilateral economic sanctions, defense and nuclear export controls, dual-use export controls under the EAR, anti-boycott compliance, internal investigations and enforcement work, and review of…

Edward J. Krauland focuses on export controls/economic sanctions. Ed’s extensive experience includes representing clients on matters involving US and multilateral economic sanctions, defense and nuclear export controls, dual-use export controls under the EAR, anti-boycott compliance, internal investigations and enforcement work, and review of government procurement regulations in the cross-border context. His practice spans all aspects of these laws, including counseling, compliance work, transactional advice, licensing and opinion work, internal reviews, disclosures, and enforcement actions. He has served as co-chair of the International Trade Committee of the ABA Section of International Law and Practice. He is former Chairman of an ABA-wide Task Force on Gatekeeper Regulation (anti-money laundering compliance), and senior adviser to the ABA Section of International Law and Practice’s anti-money laundering committee.

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Photo of Brian Egan Brian Egan

Brian Egan advises on a number of international legal issues that affect US and foreign clients, including economic sanctions, export controls, and anti-money laundering programs; national security trade and investment reviews; international arbitration and other cross-border disputes; international cybersecurity and data privacy; and…

Brian Egan advises on a number of international legal issues that affect US and foreign clients, including economic sanctions, export controls, and anti-money laundering programs; national security trade and investment reviews; international arbitration and other cross-border disputes; international cybersecurity and data privacy; and issues of public international law. He has worked in various senior legal positions for the US government, giving him keen insight into domestic and international legal matters that influence US government national security and foreign relations policies and programs. Before joining Steptoe, Brian served as the Legal Adviser to the US Department of State, the Legal Adviser to the National Security Council, Deputy White House Counsel, and Assistant General Counsel for Enforcement and Intelligence with the US Department of the Treasury. Brian has regularly appeared in public fora to speak on international legal issues, including testifying before Congress, public speaking engagements, and panel presentations.

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  • Posted in:
    Government and Public Policy
  • Blog:
    International Compliance Blog
  • Organization:
    Steptoe LLP

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