ExportLawBlog

Archive for the ‘AES’ Category

Jan

12

Let’s Do the Time Warp Again

Posted by Clif Burns at 6:42 pm on January 12, 2016

Category: AES • CBP

Checkpoint Charlie Berlin by Francisco Antunes [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/j3Maw2 [cropped] Over the holidays I watched on Amazon “The Man in the High Castle,” a television adaptation of Philip K. Dick’s Hugo Award winning novel of the same name about an alternate reality in which Germany and Japan won World War II. So I was a little surprised when, thanks to a reader, I stumbled into an alternate reality in the non-award winning Code of Federal Regulations where the Cold War never ended and the Berlin Wall never fell. The author of this fiction was not an esteemed science fiction writer like Philip K. Dick but instead our very own Customs and Border Protection (“CBP”) who are apparently are too busy throwing innocent people in jail to keep up with (vaguely) current events.

Of course, I’m referring to section 19 C.F.R. Â§ 4.75(c) which details countries for which vessels may not be cleared until complete manifests and shippers export declarations are filed. And on that list you will find an entry for this country:

German Democratic Republic (Soviet Zone of Germany and Soviet Zone sector of Berlin)

(Not to mention the defunct Union of Soviet Socialist Republics and the equally vanished Polish People’s Republic and Czechoslovakia.) Â Oddly, the CPB amended these regulations in 2000, more than 11 years after the Soviet sector went poof, and yet the reference to East Berlin, Czechoslovakia, the Polish People’s Republic and the USSR all remained. I’m wondering whether I will find lurking in the somewhere in CPB’s rulesÂ a provision dealing with exports to the Confederate States of America.

The practical impact of CPB living more than 25 years in the past may be limited. Under the current rules set forth in 15 C.F.R. Â§ 30.4 the EEI must be filed through AES in all instances prior to the vessel leaving the United States, whether it is bound for England, France, Lilliput, Middle Earth, Flatland, Prussia, Rhodesia, Tattoine, Naboo, Endor, Grand Fenway or Freedonia.

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Mar

23

Feds Indict Man For Mistakes on Discontinued Forms

Posted by Clif Burns at 1:00 pm on March 23, 2015

Lamp, Typewrite and Specs by John Levanen[CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/54814530@N00/8314704680/[cropped]

As most readers of this blog know, the venerable Shipper’s Export Declaration was discontinued in 2008. Instead, exporters now file the Electronic Export Information using the Automated Export System.

Apparently the news of this change has yet to make its way into the Justice Department, which recently indicted a California man, Pavel Flider, and his company, Trident International, for “false and misleading export information â€¦ in an SED” with respect to fifteen exports made between 2011 and 2013, long after said “SED” had been definitively retired.

Oh, and because those statements on the non-existent form were false, the DOJ charged him with violating the anti-smuggling statute, 18 U.S.C. Â§ 554, which covers any export made “contrary to any law or regulation of the United States.” I’ve criticized this ridiculously overbroad statute before, noting that it turns a trucker on his way to Canada who drives 10 hours and 1 second in a day into a smuggler and a felon. Here the rule violation that turned the defendant into a smuggler was the false statement “in an SED.”

The DOJ press release contains allegations not included in the indictment, namely that “many” (but not all) of the items at issue were “controlled dual-use programmable computer chips capable of operating in austere environments making them useful in both civilian and military applications.” If that truly is the case, you have to wonder why they are just charging the defendant with false SED statements rather than a simple export violation.

Of course, I can imagine that there will be plenty of fun in the courtroom when the prosecutors, who don’t even know which forms are filed with exports, accuse the defendants of making mistakes when they filed their export documentation.

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Feb

14

More APO/FPO Export Confusion

Posted by Clif Burns at 9:34 pm on February 14, 2011

Category: AES • DDTC

APO Postmark 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 Bureauâ€™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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