With each export violation for an item on the Commodity Control List, there is always the possibility that not only will the exporter have BIS to deal with, but also the freight forwarder and shipper will have an unpleasant encounter with the agency. This is a lesson that UTi Worldwide, a global logistics company, just learned the hard way.

The story starts in February 2002 when Extreme Networks, Inc., a NASDAQ-listed provider of communications hardware, shipped a telecommunications switch to Beijing University of Aeronautics and Astronautics (Beihang University). The switch was classified as ECCN 5A991, which is controlled for AT reasons and normally would not require a license to China. Beihang, however, is on BIS’s “Entity List” and therefore a license was required for shipment of the switch to Beihang. According to the BIS charging letter, Beihang knew this because it had previously applied for, and been denied, a license to ship comparable items to Beihang. Extreme Networks agreed in May 2006 to pay a $35,000 civil penalty to settle BIS’s charges.

UTi was the freight forwarder in the transaction. The BIS charging letter accused UTi of aiding and abetting Extreme Networks’ export violation, of aiding and abetting Extreme Network’s false statement on the SED that the goods were destined for Hong Kong, making a false statement on the SED by stating that the item was EAR99, and transporting the item from Hong Kong to China. UTi agreed to to a fine of $33,000, or just $2,000 less than the fine paid by the exporter Extreme Networks.

There is considerable controversy about when a freight forwarder should pay for the sins of the exporter. The charging letter for UTi is, not surprisingly, devoid of many details describing the transaction, so it is difficult to determine why BIS sought to hold UTi culpable here. UTi is charged with aiding and abetting the export and with making a false statement that the item being exported was EAR99. It seems likely that UTi took Extreme Network’s claim that the item was EAR99 at face value. Having done so, it was then charged with making a false statement on the SED. The question here is what does a freight forwarded need to do to protect themselves? Should the forwarded open the package, inspect the goods, and attempt to classify them itself?

Perhaps what actually got UTi in hot water here is revealed in the third charge — that UTi exported the item from Hong Kong to China. (For BIS purposes, Hong Kong and China are still separate countries.) That was likely done by simple transshipment through Hong Kong. This should, under any interpretation, have been recognized by UTi as a red flag warranting further investigation of the shipment.

UTi’s woes did not end with the $33,000 civil penalty for the Extreme Network’s shipment. On the same date that UTi entered into the settlement relating to the Extreme Network’s violation, it entered into a separate settlement agreement for 34 other exports. The charging letter accused UTi of omitting the exporter’s EIN on one SED and of providing false EINs for the exporter on the other 33 exports. To settle these charges, UTi agreed to pay a civil penalty of $76,500.

It is easy to see how UTi should be culpable for failing to provide an EIN on the SED because it certainly knows that one must be provided. However, as to the false EINs, culpability seems less clear. That information was provided to UTi by the exporter and there appears to be no reason that UTi shouldn’t have accepted the exporter’s word as to its own EIN. Are shippers required to demand that exporters provide a document from the IRS attesting to the accuracy of the EIN? That would appear to be the only safe course but is a solution that is impractical both for exporters and their shippers and freight forwarders.

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Copyright © 2006 Clif Burns. All Rights Reserved.
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