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December 13, 2012 

Finding a Willing Buyer Is Only the First Step of the Export Process

U.S. Exporters Looking to Boost Business Overseas Need to Understand the Rules and Regulations That Apply to International Trade Transactions
By Douglas N. Jacobson, Esq.*

In 2010, President Obama announced the National Export Initiative (NEI), a U.S. government-wide effort to double U.S. exports by the end of 2014. As part of the NEI, the federal  government plans to increase its trade advocacy efforts, including educating U.S. companies about opportunities overseas, directly connecting them with new customers and advocating more forcefully for their interests. The NEI will also include a focus on improving access to export financing and helping to remove barriers that prevent U.S. companies from getting access to foreign markets. Only a very small percentage of U.S. companies currently export their products, and of those that do, the majority export to only one country.

While increasing the number of U.S. companies that export and increasing trade promotion assistance are laudable goals, U.S. exporters must be aware that finding a willing buyer is only the first step in the exporting process.

In addition to taking the necessary steps to ensure they are paid for their goods, U.S. exporters need to understand the wide range of U.S. regulatory and legal issues applicable to exports. The increasing exports is beneficial for U.S. companies, the penalties for violating export controls, sanctions, customs and other laws and regulations can be severe. Many U.S. exporters learn of their export and sanctions compliance obligations only after they receive an administrative subpoena from the Commerce Department’s Bureau of Industry and Security (BIS), the Treasury Department’s Office of Foreign Assets Control (OFAC) or another U.S. enforcement agency. Many of those violations could have been avoided if the exporters understood their export compliance obligations prior to making the sale and shipping their goods abroad.

Examples of the types of export compliance-related rules and regulations that U.S. exporters should be aware of when selling goods overseas include the following:

Jurisdiction and Classification of Goods – Proper jurisdiction and classification of goods and technology under the Export Administration Regulations (EAR) (for commercial and so-called “dual-use” goods) and International Traffic in Arms Regulations (ITAR) (for defense articles) is required to determine the appropriate export licensing requirements and end-use and end-user restrictions for all products, software and technology exported from the U.S. U.S. Customs and Border Protection (CBP) often seizes goods at U.S. ports, airports and border crossings that are being exported without the appropriate license or other export authorization.

Ultimate Destination – U.S. export controls and licensing requirements vary by the country of destination. Some countries are subject to comprehensive U.S. sanctions and embargoes, while others are subject to targeted sanctions directed at certain individuals and companies. In addition, defense articles and technical data subject to the ITAR cannot be shipped to a number of “proscribed” countries.
Electronic Export Information Filings The Foreign Trade Regulations (FTR) administered by the Census Bureau require exporters or their agents, such as freight forwarders, to submit certain information before the export takes place in an Electronic Export Information (EEI) filing. The information that must be provided in connection with most exports includes the quantity and value of the goods, the Schedule B number and a description of the goods, as well as the name of the foreign buyer. Penalties can be imposed on U.S. exporters for inaccurate or late filings.

Export Screening – To avoid engaging in transactions with parties that have been denied export privileges or are subject to U.S. sanctions, exporters should screen all customers and parties involved in the export against the government’s various restricted part lists, including the Denied Persons List, Entity List and Specially Designated Nationals List.

Know Your Customer and Export Red Flags – It is important for U.S. companies to be aware of the various “know your customer” guidelines issued by the Bureau of Industry  to make sure that the goods will not be diverted to a prohibited country or person. In addition, exporters should be on the lookout for export “red flags” that could be a sign that a customer may be attempting to obtain the goods for a prohibited purpose or end-user.

Antiboycott Compliance – Boycott requests, which often contain the words “boycott” or “blacklist” or provisions prohibiting the importation of goods from certain countries, are often found in documents involving sales to the Middle East, including purchase orders, tenders, contracts, shipping requests and letters of credit. Providing prohibited information in furtherance of an unsanctioned boycott is prohibited by the Antiboycott provisions of the Export Administration Regulations. Certain boycott requests must be reported to the Bureau of Industry and Security’s Office of Antiboycott Compliance on a quarterly basis.

Foreign Corrupt Practices Act – The U.S. Foreign Corrupt Practices Act (FCPA) prohibits U.S. persons and their agents from paying bribes and making other prohibited payments to foreign government officials in order to obtain or retain business. Significant civil and criminal penalties can be imposed on individuals and companies that violate the FCPA.

Incoterms 2010© – International Commercial Terms (Incoterms), such as FCA, CIF, DAP and DDP, are a set of internationally recognized terms published by the International Chamber of Commerce. Incoterms establish the responsibilities, risks and costs associated with international shipments. It is important for U.S. exporters to have a clear understanding of the correct Incoterm to use for a particular transaction in order to determine which party will be responsible for various aspects of the export transaction, including transportation costs and import duties in the country of destination. Once the appropriate Incoterm has been established it should be clearly indicated on the sales documents, including the purchase order and commercial invoice.

Customs Requirements, Import Duties and Taxes – Many countries impose customs duties, value added tax and other charges on imported goods. It important for U.S. exporters to understand who will be responsible for paying for the customs duties and other taxes imposed on the goods. It is also important for the U.S. exporter to know the proper customs classification of the product under the Harmonized System (known as the Harmonized Tariff Schedule number) they are exporting so they can advise their customer.

Free Trade Agreements The growing number of U.S. Free Trade Agreements (FTAs), including NAFTA (Mexico and Canada), KORUS (U.S.-South Korea) have leveled the playing field for U.S. exporters by greatly reducing or eliminating the customs duties on U.S. goods exported to many countries. However, for U.S. goods to qualify for preferential duty treatment under the FTAs when imported into the customer’s country the goods must “originate” in the U.S. Each of the FTAs has specific “rules of origin” that specify whether a product qualifies for duty free treatment or not. In some FTAS, such as NAFTA, the exporter must prepare a specific Certificate of Origin certifying that the goods qualify for the FTA. It is important for U.S. companies to understand the rules of origin of the applicable FTA to make sure that the goods being exported qualify for the FTA and that the Certificate of Origin is properly completed.  

There are a number of other regulatory requirements that may be applicable to goods exported from the U.S. For example, certain countries require labels, user manuals and instructions to be printed in a particular language. Other countries impose registration and licensing requirements. Some countries require certificates of origin. Working with reputable customers, experienced counsel and other international trade resources will greatly enhance the chances that an export transaction will be problem free.

*Doug Jacobson is a Washington, DC-based international trade attorney. He can be reached at (202) 431-2407 or at info@djacobsonlaw.com.


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