Exports
Are Thoroughly Regulated. Our Customs and International Trade
Lawyers Have the Necessary Expertise to Assist You
Exporting
to foreign countries is a complicated process requiring in-depth
knowledge of licensing commodities and the various requirements
and rules of the US agencies that regulate exporting. Customs lawyers
find themselves dealing with Customs, Federal Maritime Commission,
Department of Commerce, State Department, Defense Department and
other specialized agency regulations, such as the ITAR governing
weaponry. Customs penalty and Customs seizure actions frequently
occur to persons or companies unaware of export rules.
The
Customs Lawyers at The Mooney Law Firm advise exporters of goods
on the following and related issues:
- Are your export practices in compliance with the United States
Department of Commerce Bureau of Industry and Security (BIS) and
U.S. Customs and Border Protection regulations?
- Does the commodity require export licensing in any setting?
- Is the country or entity to which the article is going "controlled"
or "denied" according to any State Department or other agency
list?
- Have you protected your intellectual property rights (trademark,
copyright, service mark, patent, counterfeit control) in the country
to which you are exporting?
- Will there be any problems exporting due to new controls as
a result of terrorism concerns?
- Are all necessary ITAR permits obtained prior to attempted
export?
Bureau
of Industry and Security (BIS) Homepage
Export
Administration Regulations
Denied
Persons List
UPDATE:
May 2008
INEXPENSIVE EXPORT ADMINISTRATION REGULATIONS AVAILABLE
The U.S. Government bookstore is selling the complete EAR with update subscriptions for an indefinite period, for only $182.00. In a twist, this is less than one-half the price being charged by private firms duplicating this document, which is not copyrighted. To buy from the government at this price, click HERE.
FIRST IRANIAN NATIONAL SECURITY TECHNOLOGY MATTER CLOSED
Super Micro of San Jose, Calif. plead guilty on September 19 to one count among several allegations, and agreed to pay a $150,000 fine for export violations. The company was charged on September 1, 2006 with a single count of knowingly exporting items subject to export regulations without obtaining a license, the Justice Department said.
In pleading guilty, the company admitted that between December 2001, and January 2002, it sold 300 of the company's P4SBA+ motherboards worth $27,600 to a company based in the United Arab Emirates. The exports occurred despite the fact that the company knew the items would be shipped to Iran, the Justice Department said. The exported boards were controlled for national security reasons, and exporting them to Iran without a license was illegal, the Justice Department said.
PENALTY
RISK INCREASES FIVE-FOLD
The
Bureau of Industry and Security has issued a final rule, effective
4 August, which increases the civil monetary penalties that the
BIS may currently impose for violations of the Export Administration
Regulations. Specifically, the BIS is amending the regulations to
explicitly state that when any provision of the EAR is continued
by the International Emergency Economic Powers Act or other statutory
authority (i.e., when the Export Administration Act has lapsed,
as it did on 21 August 2001), the maximum civil monetary penalty
amount is that which is authorised by the applicable authority.
As
a result, for any violations of the EAR of licence, order or authorisation
thereunder that occurs on or after 9 March 2006, when the EAA is
in lapse and the IEEPA is the authorising statute, the BIS may impose
a civil monetary penalty of up to US$50,000 per violation. This
represents an increase from the previous maximum of US$11,000, as
authorised by an amendment to the IEEPA made by the USA PATRIOT
Act Improvement and Reauthorization Act of 2005. The
Mooney Law Firm is actively defending several companies accused
of export violaitons under the new regime.
BIS
SEMINARS AVAILABLE NATIONWIDE
Generally
these are two-day programs led by the Bureau of Industry and Security's
professional counseling staff. They are intended to provide
in-depth examination of the Export Administration Regulations (EAR)
and cover the information exporters need to have to comply with
U.S. export control requirements. For a fee of $300.00, topics ordinarily
include:
- what items and activities are subject to
the EAR;
- steps to take to determine the export licensing
requirements for your item;
- how to determine your export control classification
number (ECCN);
- when you can export or reexport without
applying for a license;
- export clearance procedures and record
keeping requirements;
- Export Management System (EMS) concepts;
and
- real life examples in applying this information.
More
information can be obtained by clicking here.
CURRENT
LISTS TO CHECK
It is critical to check the parties to your transaction (including
freight forwarders, intermediate consignees, and the ultimate consignee)
against the most recent Denied Persons List, Unverified List, Entity
List, Specially Designated Nationals List, and the Debarred
List .
Although
you are only required to make this check for export or reexport
transactions, it may also be useful to do so for domestic transactions
as well. The items below are all hyperlinked and you can click on
each underlined phrase to go to that list.
BIS
ADDS FIVE ENTITIES TO UNVERIFIED LIST
The Bureau of Industry and Security (BIS) published a notice in
the Federal Register on October 31st announcing the addition
of five new entitites to the Unverfied List. They include: T.Z.H.
International Co. Ltd. of Hong Kong; Design Engineering Center in
Pakistan ; Kantry in Russia ; Elaton Company in Russia ; and Pskovenergo
Service in Russia . As a result of the inclusion of these entities
on the Unverified List, a "red flag" now exists for transactions
with these firms. Exporters have an affirmative duty to inquire,
verify, or otherwise substantiate every proposed transaction to
satisfy themselves that it does not involve a prohibited proliferation
activity and/or does not violate anyother provision of the Export
Administration Regulations.
For
more information please click HERE:
ITAR
AMENDED BY DIRECTORATE OF DEFENSE TRADE CONTROLS
The Federal
Register contains several amendments to the ITAR, primarily technical
additions and corrections and Office name changes. Nevertheless,
important changes to Section 122.3 requiring renewals of registration
30 days in advance of expiration and changes to 122.5 recordkeeping
rules. The full text of the Register can be seen by
clicking HERE.
TREASURY DEPARTMENT ALTERS CUBA TRADE CASH-IN-ADVANCE
POLICY
On Friday, July 29, 2005, the Treasury Department
announced:
"The U.S. Department of the Treasury today confirmed that under
the Cuban Assets Control Regulations, U.S. sellers or their agents
are permitted to settle accounts for overpayment by the buyer, in
accordance with standard shipping tolerances.
Treasury also confirmed that under cash in advance, goods may be
shipped once the seller or the seller's agent receives payment from
Cuba. The agent may be anyone legally designated by the seller to
receive payment for the seller's goods, including a third country
financial institution. This confirms to exporters that the above-mentioned
practices are presently permissible under existing regulations."
For more information on the February 22, 2005 clarification of cash
in advance, please click HERE:
BOEING
ACCUSED OF EXPORT VIOLATION WITH $47 MILLION POTENTIAL FINE.
The State Department's Directorate of Defense
Trade Controls has issued Boeing a charging letter alleging that
it violated the Arms Export
Control act by exporting 96 jet aircraft containing QRS11
GyroChips to China and other countries between 2000 and 2003.
Boeing has long had a rocky relationship with the Department
of State.
The
Seattle Times article can be found HERE:
"DON'T
LET THIS HAPPEN TO YOU!"
The Bureau of Industry and Security's Office of Export Enforcement
has published a new edition of their publication "Don't
Let This Happen to You!" The publication in PDF
format covers the Export Administration Regulations (EAR), with
examples of relevant actual criminal and administrative cases which
resulted in fines, imprisonment, and/or denial of export privileges.
The publication includes chapters on deemed exports, freight forwarders,
antiboycott issues, successor liability and other provisions of
the EAR.
The publication can be found HERE:
FOREIGN CORRUPT PRACTICES VIOLATION COSTS TITAN $28.5 MILLION.
Titan Corporation of San Diego, California, settled enforcement
actions brought by the U.S. Securities and Exchange Commission (SEC)
and the U.S. Department of Justice (DOJ). Alleged were violations
of the anti-bribery, internal controls and books and records provisions
of the U.S. Foreign Corrupt Practices Act (FCPA). Titan pled guilty
to one felony count of violating the anti-bribery provisions of
the FCPA, one felony count for falsifying the books and records
of Titan, and one felony count for violating Title 26 U.S.C. Section
7206(2).
Titan
consented to the entry of a final judgment permanently enjoining
it from future violations of the FCPA and requiring it to;
1)
pay $15.5 million in disgorgement and prejudgment interest,
2)
pay a $13 million penalty which will satisfy criminal fines of that
amount in parallel proceedings brought by the U.S. Attorney, and
3)
retain an independent consultant to review the company's FCPA compliance
procedures and adopt and implement the consultant's recommendations.
The
$28.5 million penalty is the largest FCPA penalty ever paid by a
publicly traded company.
BIS
Imposes Civil Penalty on Company for Attempting to
Export
Oil Burning Nozzles to Iran
The Commerce Department's Bureau of Industry and Security imposed
a $10,000 penalty on New Jersey-based Nozzle Manufacturing Company
(formerly known as JEP Manufacturing, Inc. and Newton Tool &
Manufacturing). In its charging letter BIS alleged that Nozzle Manufacturing
violated 15 C. F. R. 764.2(c) of the Export Administration Regulations
(EAR) by attempting to export oil burning nozzles to Iranthrough
Germany without authorization from the Office of Foreign Assets
Control (OFAC) as required.
Nozzle Manufacturing agreed to settle the matter by agreeing to
pay a civil penalty of $10,000 to the Commerce Department no later
than the date Nozzle Manufacturing is sentenced in the related criminal
case, or March 1, 2005 , whichever occurs first. The settlement
agreement specifies that failure to make timely
payment of the civil penalty may result in the denial of all of
Nozzle Manufacturing's export or reexport privileges for a period
of one year.
The
charging letter and settlement agreement can be viewed here
(click)
Office of Foreign Assets Control (OFAC) Penalizes Exports
to Cuba, Iran, Yugoslavia
The Treasury Department issued a list of civil penalties imposed
upon entities violating OFAC sanctions. OFAC imposed more than $80,000
in civil penalties to settle 8 separate enforcement actions for
violations of the current or former embargoes imposed by the U.S.
on Cuba , Iran and Yugoslovia. At the same time, OFAC imposed nearly
$27,000 in penalities to settle 23 cases involving violations of
the Cuban sanctions regulations.
- OFAC imposed a $32,500 penalty on DaimlerChrylsler's
North America Holding Co. because a Mexican subsidiary exported
to Cuba .
- A $11,000 penalty was imposed on BEF Corporation,
a supplier of photographic processing equipment, for exporting
to Iran .
- OFAC imposed a $26,956 penalty on Fort Dodge
Animal Health, a manufacturer and distributor of prescription
and over-the-counter animal health care products, for exporting
goods to Yugoslavia during 2000.
- OFAC settled five other cases involving the exportation
of goods and services to Yugoslavia during 1999 to 2001.
- OFAC imposed a $1,125 penalty on an individual
for the importation of Cuban-origin goods.
- OFAC imposed a total of $21,250 in penalties
to settle 18 cases involving travel-related transactions with
Cuba .
Bureau of Industry and Security
Imposes Penalties for Exports to Iran
The U.S. Department of Commerce's announced settlement
of two enforcement cases involving unlicensed exports to Iran.
GE Ultrasound and Primary Care Diagnostics, LLC
agreed to pay a $32,000 civil fine to settle charges that a company
acquired by it exported bone densitometer equipment to Iran in violation
of the Export Administration Regulations.
In
the second case, 3-G Mermet Corporation of Cincinnati, Ohio paid
$17,500 to settle charges that it attempted tattempted to ship interior
window shade fabric through its parent company, Mermet S.A. of France,
to Iran without obtaining a license.
OFAC
Issues Cuba Educational License to Southern Illinois University
The Office of Foreign Assets Control (OFAC), whose Director, Richard
Newcomb recently resigned, has renewed a specific license permitting
Southern Illinois University to engage in educational activities
with Cuba. It had previously advised the institution that
the license would be allowed to expire.
Many U.S. universities have reduced and/or cancelled their Cuban
study programs as a result of June 16 changes to the Cuba travel
regulations. The university heavily lobbied Congress to press OFAC
to renew the travel license. Consistent with the recent Cuba travel
restrictions issued by OFAC in June, this renewal is valid for a
year only. Nevertheless, its issuance at all is significant
if it indiates a softening of U.S. policy toward cultural exchange
between the two nations.
Dept.
of Census Will Not Provide SED Information to Foreign Governments
The Chief of the Census Bureau's Foreign Trade Division recently
issued a letter to the trade community advising that it will not
provide export information contained in Shipper's Export Declarations
(SEDs) or in Automated Export System (AES) records to foreign governments.
Harvey Monk Jr. indicated that many foreign governments have requested
Census and Freight Forwarders to provide copies of SEDs for exports
from the United States. Costa Rica has recently been very
aggressive in demanding them. The letter confirms that U.S. law
makes that the information in SEDs confidential: they may not be
disclosed to anyone other than the U.S. Principal Party in Interest
or their agent and only when such a copy is needed to comply
with United States official legal and regulatory export control
requirements.
A copy of the letter can be found HERE
(click)
Visit our Export Compliance Forum
here if you have any questions or experiences to share on the above.
The
Mooney Law Firm • (850) 893 0670 (800) 583 0250•
Fax (850) 391 4228
nmooney (at) customscourt.com
With Affiliated Customs and International Trade Lawyers
In All Principal Ports
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