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Last Updated on: 18th October 2023, 09:01 am
Exporting products or services from the United States involves navigating a complex web of regulations and requirements. Failure to comply can result in severe penalties, including criminal prosecution. That’s why it’s essential for companies involved in exporting to have effective compliance programs and experienced legal counsel. This article provides an overview of key export regulations, compliance best practices, and working with defense lawyers to avoid or mitigate enforcement actions.
There are several major regulations that govern exports from the US:
Within these regulations are requirements for licenses or other authorizations for exports based on the item, destination, end-use, and end-user. There are also various reporting requirements.
Maintaining an effective export compliance program is essential for any company involved in exporting. Here are some best practices:
Having clear, written export compliance policies and procedures tailored to your business activities and risk exposure is foundational. It’s also critical to stay up to date on regulatory changes which occur frequently.
With the complex and shifting landscape of export regulations, most companies find it beneficial to have experienced legal counsel guiding their compliance efforts. Attorneys can help:
Retaining competent export control lawyers provides companies with customized guidance and advocacy to meet compliance obligations while avoiding unnecessary business disruption. Engaging counsel proactively can help prevent violations altogether. In case issues do arise, counsel can intervene to mitigate damage.
When violations of export regulations occur, government agencies like the Department of Justice, Homeland Security, and Commerce can initiate civil and criminal investigations. Common penalties include:
Having export control attorneys intervene at the early stages of an investigation can be key to avoiding charges. Counsel can review evidence and documents, present defenses, negotiate settlements, and take other steps to resolve the matter without prosecution.
If charges have already been filed, export control lawyers can still advocate for reduced penalties and settlements. In egregious cases that proceed to trial, they can mount vigorous legal defenses as well. Companies may be able to avoid debarment from exporting if they can demonstrate the violation was isolated and proper compliance measures are now in place.
The adage “an ounce of prevention is worth a pound of cure” certainly applies to export compliance. Investing in robust compliance programs and partnering with knowledgeable counsel reduces the risk of violations happening in the first place. When issues do arise, companies with strong compliance cultures are treated much more leniently than those trying to cut corners.
Proactive compliance and quick remediation of problems demonstrate a company’s good faith and often results in no penalties. However, waiting until violations are discovered during audits or investigations makes penalties much harder to avoid.
Certain industries have higher risks of export violations and should take extra compliance precautions. Here are best practices for some major exporting industries:
Some of the most common export compliance mistakes include:
Even simple paperwork mistakes can be considered violations. Typos on customs forms or licenses applications can lead to fines if not promptly corrected.
When export violations are identified, voluntarily self-disclosing them to regulators can significantly reduce penalties. However, the disclosure must be made promptly and include sufficient detail. Companies should engage export control counsel to handle the disclosure process and negotiate with regulators.
Potential benefits of voluntary self-disclosure include:
However, the violations must be promptly disclosed as soon as they are discovered. The regulators will not look kindly on companies that delayed disclosure until an investigation was imminent.
Employee training is a critical component of any export compliance program. Training should cover:
All employees involved in exporting activities should receive initial and recurrent training. Records of training completion should be maintained. Testing employee knowledge through quizzes or certifications is recommended.
In addition to proactive guidance on export regulations, companies should engage legal counsel immediately in these situations:
Having experienced export control attorneys available promptly can help contain damage, begin remediation, and assert legal defenses. Their expertise navigating investigations and negotiations is vital.
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