Last Updated on: 18th October 2023, 09:01 am

Federal Compliance and Defense Representation for Exporters

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.

Export Regulations Overview

There are several major regulations that govern exports from the US:

• International Traffic in Arms Regulations (ITAR) – regulates export of defense articles, services, and technologies. Administered by the Department of State.
• Export Administration Regulations (EAR) – regulates export of dual-use commercial items. Administered by the Department of Commerce.
• Office of Foreign Assets Control (OFAC) Regulations – prohibits exports to embargoed countries and sanctioned entities. Administered by Department of Treasury.
• US Customs Regulations – governs reporting and clearing of exports through US Customs. Administered by US Customs and Border Protection.

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.

Compliance Best Practices

Maintaining an effective export compliance program is essential for any company involved in exporting. Here are some best practices:

• Classify products/services to determine export control jurisdiction
• Screen transaction parties against restricted party lists
• Obtain necessary authorizations from regulators
• Follow all documentation and reporting requirements
• Conduct due diligence on customers and transactions
• Implement export management and compliance software
• Regular audits to identify any compliance gaps
• Provide export compliance training to employees

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.

Engaging Legal Counsel

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:

• Determine applicable regulations and license/authorization requirements
• Draft export compliance manuals and implement compliance programs
• Provide employee training on export regulations
• Conduct compliance audits and internal investigations
• Self-disclose violations and mitigate penalties
• Defend companies in government enforcement actions

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.

Avoiding Investigations and Penalties

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:

• Fines up to $1 million per violation
• Denial of export privileges
• Seizure of goods
• Loss of export licenses
• Prison time for willful violations

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.

Mitigating Penalties

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.

Prioritizing Compliance

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.

Industry Best Practices

Certain industries have higher risks of export violations and should take extra compliance precautions. Here are best practices for some major exporting industries:

Defense Contracting

• Maintain rigorous ITAR compliance programs
• Carefully control technical data access
• Monitor compliance of subcontractors
• Obtain commodity jurisdiction determinations
• Screen for debarred parties in SAM database

Technology and Electronics

• Review product designs frequently for controlled content
• Classify new items prior to export
• Watch for new end-use and end-user restrictions
• Screen customers for export control warning signs

Aerospace Manufacturing

• Require re-export authorizations from customers
• Conduct denied party screening on all buyers
• Audit maintenance records for unauthorized exports
• Train staff to identify controlled spare parts

Telecommunications Equipment

• Scrutinize software updates for encryption
• Review terms of service agreements for compliance issues
• Classify new products under 5G regulations
• Screen for debarred entities before sales

Chemical Industry

• Check export classifications of all chemicals
• Review formulas frequently for controlled chemicals
• Screen customers against restricted party lists
• Conduct end-use checks with site visits

Common Export Violations

Some of the most common export compliance mistakes include:

• Inaccurate classification of items on the Commerce Control List
• Failure to obtain required export licenses
• Exporting through non-authorized parties
• Insufficient due diligence on customers and transactions
• Inadequate record-keeping and auditing procedures
• Failure to report export information fully and accurately
• Transferring controlled software, data, or technology without authorization
• Re-exporting items without permission of regulators

Even simple paperwork mistakes can be considered violations. Typos on customs forms or licenses applications can lead to fines if not promptly corrected.

Self-Disclosure of Violations

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:

• Avoiding criminal prosecution
• Reduced civil fines
• No export privilege revocation
• Continued ability to export under current licenses
• More flexible repayment terms

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.

Export Compliance Training

Employee training is a critical component of any export compliance program. Training should cover:

• Export control laws and regulations
• Penalties for violations
• The company’s policies and procedures
• How to classify items and technology
• Restricted parties and transactions
• Export licensing processes
• Recordkeeping and documentation requirements
• Internal monitoring and reporting procedures
• How to identify and report red flags or violations

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.

When to Engage Legal Counsel

In addition to proactive guidance on export regulations, companies should engage legal counsel immediately in these situations:

• Receiving an audit notice from regulators
• Learning a violation has occurred
• Getting contacted by federal investigators
• Changes in business operations that impact compliance requirements
• Requests for advisory opinions on complex export issues
• Alleged violations reported on hotline or by employee
• Plans to acquire a foreign company or open facilities overseas

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.