Feb
14
More APO/FPO Export Confusion
Posted by Clif Burns at 9:34 pm on February 14, 2011
Category: AES • DDTC
If there is anything that qualifies as a true urban legend in the export areas, it’s the surprisingly widespread belief that shipments to overseas APO and FPO addresses aren’t exports. Of course, that’s no more true than the belief that the fate of a rider on an equestrian statute can be determined by the position of the horse’s hooves. (Not.)
The International Traffic in Arms Regulations (“ITAR”) aren’t uniformly clear in all aspects, but the definition of export is pretty clear in this respect. Section 120.17(a) defines export as “sending or taking a defense article out of the United States in any manner.” It doesn’t say “in any manner except by mail to an APO or FPO address.” And if you ask DDTC this question, they will tell you that an APO address outside the U.S. requires an export authorization by license or exemption like any other shipment that leaves the United States.
This urban legend is sufficiently widespread that even one government agency has propagated this bogus notion. And not just any agency but an agency itself intimately involved in dealing with exports — the U.S. Census Bureau — has said that APO and FPO shipments aren’t exports. As recently as December 22, 2010, Census said on its own blog, in a post that has now been flushed down the memory hole, that the “State Department does not license shipments to APO or FPO addresses.”
But we’ve heard from another exporter that it gets worse. According to that exporter, the mandatory Automated Export System does not allow you to enter an ITAR license number when shipping an item to an APO address. Part 523 of the USPS’s International Mail Manual says this:
Goods mailed to APO/FPO/DPO addresses are not subject to the Foreign Trade Regulations. Accordingly, customers are not required to file electronic export information via the U.S. Census Bureau’s Automated Export System or AESDirect Web site for such mailings, and they do not need to present a Proof of Filing Citation, AES Downtime Citation, or Exemption and Exclusion Legend.
The same exporter says that DDTC is saying in such a case that the exporter must provide its own notification of the export to DDTC when it can’t be done through AES. Although this is a nice courtesy to DDTC, there is nothing in the ITAR that requires the exporter to provide this notice to ITAR in these cases.
But there’s a larger point here: if the government can’t figure out its own export regulations, why should it expect anyone else to figure them out?
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Copyright © 2011 Clif Burns. All Rights Reserved.
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6 Comments:
So why is it that the post office always makes me fill out a customs form when I mail a package to my brother deployed in a warzone?
Customs forms from the Postal Office might have been for entry formalities at the foreign location. The Census AES report mentioned in the article is for US export documentation. Two separate and different systems at work here.
Maybe State will deal with this problem when they rewrite ITAR 126.4 . . . .
My understanding was that mail going to APO/FPO addresses could be handled by foreign postal systems during transit, and in some cases moved by private carriers where the U.S. government was not in complete control as they are for domestic mail. The USPS might have arrangements to move some of the mail, including APO/FPO addressed mail via different logistics paths depending on traffic, season, strikes, cost, etc. Ergo; export control reviews pertaining to the specific sojourn were a prudent measure lest our technological advances be pilfered enroute.
It doesn’t help when people in the DOD mistakenly believe that they are exempt from U.S. import/export laws.
For a commercial shipment going by commercial freight forwarder to Guantanamo Bay Naval Air Station, a representative of the U.S. Navy once said that an export declaration isn’t needed because it was U.S. soil. This, despite the fact that their own web site (http://www.cnic.navy.mil/guantanamo/) proudly states “GTMO is … the only base located in a country with which the U.S. does not maintain diplomatic relationsâ€. As I recall, the U.S. is renting the soil to the Cuban government, dutifully sending their rent checks (presumably under OFAC license) which the Cuban government has for years refused to cash so not to imply that the base is anything other than a military occupation.
As well, for a commercial import coming to a U.S. Air Force base, a representative there once told me that a customs entry was not needed. U.S. Customs and Border Protection actually helped perpetuate the myth when, after that representative made a phone call to them, CBP simply wrote it off the inbound manifest, thereby proving me, uh, “wrongâ€. Then the USAF sent their own truck to pick it up and wondered why the forwarder/broker couldn’t do their, uh, “jobâ€. I wonder if the collect air freight ever got paid on that one.
Jim Dickeson
Import Export Geeks
Better Import Export Compliance Training
Clif – Great post, although in the first paragraph I thought you were going to tell us there’s some new legal rider on equestrian export statutes that supercedes “Horses by sea.” Seriously though, I’ve heard this rumor many times before. And all the points/comments about the government not being able to correctly apply export regulations to their own circumstances are spot on.
