Bureau of Industry and Security Guidelines

BUREAU OF INDUSTRY & SECURITY GUIDELINES

In support of the safe and secure flow of international trade, the Bureau of Industry and Security (BIS) published the following guidelines to assist the trade community in achieving a high level of compliance with Export Administration Regulations.

2020 best practices for preventing unlawful diversion of U.S. dual-use items subject to the export administration regulations, particularly through transshipment trade

Best Practice No. 1 - Companies should pay heightened attention to the Red Flag Indicators on the BIS Website and communicate any red flags to all divisions, branches, etc., particularly when an exporter denies a buyer’s order or a freight forwarder declines to provide export services for dual-use items.

Best Practice No. 2 - Exporters/Re-exporters should seek to utilize only those Trade Facilitators/Freight Forwarders that administer sound export management and compliance programs which include best practices for transshipment.

Best Practice No. 3 - Companies should “Know” their foreign customers by obtaining detailed information on the bona fides (credentials) of their customer to measure the risk of diversion. Specifically, companies should obtain information about their customers that enables them to protect dual-use items from diversion, especially when the foreign customer is a broker, trading company or distribution center.

Best Practice No. 4 - Companies should avoid routed export transactions when exporting and facilitating the movement of dual-use items

Best Practice No. 5 - When the Destination Control Statement (DCS) is required, the Exporter should provide the appropriate Export Control Classification Number (ECCN) and the final destination where the item(s) are intended to be used, for each export to the end-user and, where relevant, to the ultimate consignee. For exports that do not require the DCS, other classification information (EAR99) and the final destination should be communicated on bills of lading, air waybills, buyer/seller contracts and other commercial documentation. For re-exporters of controlled and uncontrolled items, the same classification and destination specific information should be communicated on export documentation as well.

Best Practice No. 6 - An Exporter/Re-exporter should provide the ECCN or the EAR99 classification to freight forwarders, and should report in AES the ECCN or the EAR99 classifications for all export transactions, including “No License Required” designation certifying that no license is required.

Best Practice No. 7 - Companies should use information technology to the maximum extent feasible to augment “know your customer” and other due-diligence measures in combating the threats of diversion and increase confidence that shipments will reach authorized end-users for authorized end-uses. unless a long standing and trustworthy relationship has been built among the exporter, the foreign principal party in interest (FPPI), and the FPPI’s U.S. agent

If you have reason to believe a violation is taking place or has occurred, you may report it to the Department of Commerce by calling its 24-hour ho line number: (800) 424-2980.

red flag indicators

Use this as a check list to discover possible violations of the Export Administration Regulations

• The customer or its address is similar to one of the parties found on the Commerce Department’s [BIS’s] list of denied persons.

• The customer or purchasing agent is reluctant to offer information about the end-use of the item.

• The product’s capabilities do not fit the buyer’s line of business, such as an order for sophisticated computers for a small bakery.

• The item ordered is incompatible with the technical level of the country to which it is being shipped, such as semiconductor manufacturing equipment being shipped to a country that has no electronics industry.

• The customer is willing to pay cash for a very expensive item when the terms of sale would normally call for financing.

• The customer has little or no business background.

• The customer is unfamiliar with the product’s performance characteristics but still wants the product.

• Routine installation, training, or maintenance services are declined by the customer.

• Delivery dates are vague, or deliveries are planned for out of the way destinations.

• A freight forwarding firm is listed as the product’s final destination.

• The shipping route is abnormal for the product and destination.

• Packaging is inconsistent with the stated method of shipment or destination. When questioned, the buyer is evasive and especially unclear about whether the purchased product is for domestic use, for export, or for re-export.

BUREAU OF INDUSTRY & SECURITY GUIDELINES

1. The Bureau of Industry and Security (BIS) implements U.S. Government sanctions against Cuba, Iran, North Korea, Sudan, and Syria pursuant to the Export Administration Regulations (EAR), either unilaterally or to implement United Nations Security Council Resolutions.

The license requirements, license exceptions, and licensing policy vary depending upon the particular sanctioned destination. The corresponding country pages are intended to assist exporters and reexports with determining the export and re-export requirements pursuant to the EAR. However, the webpages are not comprehensive and do not serve as replacements for the EAR.

Exporters and re-exporters should be aware that other U.S. Government agencies administer regulations that could also impact their export or reexport transactions. For example, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) also implements certain sanctions against Cuba, Iran, North Korea, Sudan, and Syria. Exporters and re-exporters are responsible for complying with all applicable regulatory requirements. Link for Sanctions destinations —www.bis.doc.gov/index.php/ policy-guidance/country-guidance/sanctioned-destinations 2. In consideration of the ongoing situation in Crimea, BIS has imposed export restrictions targeted at Russia’s energy and defense sectors. For example, in August 2014, BIS implemented restrictions on exports of certain items destined for Russian deep water, Arctic offshore, or shale energy exploration or production. See: 79 FR 45675 (August 6, 2014) Subsequently, BIS expanded its military end use and end user controls to impose a license requirement on various items that may not otherwise require a license if the exporter has knowledge that such items may be used by military end users or for military end uses in Russia. See: 79 FR 55608 (September 17, 2014). In addition, BIS has expanded controls on certain microprocessors for military end uses and end users in Russia (as well as other D:1 countries). See 79 FR 75044 (December 17, 2014).

BIS remains concerned about efforts by front companies and other intermediaries, who are not the true final end users, to trans-ship or re-export U.S.-origin items to the Russian Federation in violation of these measures and other export controls. Even prior to the imposition of restrictions based on the situation in Crimea, front companies and other intermediaries obtained U.S.-origin items that may require a license to Russia through intermediate countries subject to a more favourable licensing policy under the Export Administration Regulations (EAR). A salient example is Wassenaar Arrangement dual-use items controlled under the EAR for National Security (NS) reasons. Therefore, BIS is providing additional guidance to U.S. exporters to prevent unauthorized re-exports to Russia, especially for transactions involving NS-controlled items or items listed in Supplement No. 2 to Part 744 of the EAR, which lists items that are subject to the military end use license requirement. As described in Supplement No. 3 to Part 732 of the EAR, whenever a person who is clearly not going to be using the item for its intended end use (e.g., a freight forwarder) is listed as an export item’s final destination, the exporter has an affirmative duty to inquire about the end use, end user, and ultimate destination of the item to ensure the transaction complies with the EAR. In addition, the exporter should pay attention to any information that may indicate an unlawful diversion is planned. This may include discrepancies in the destination country and the country from which an order is placed or payment is made.

When inquiring into the ultimate destination of the item, an exporter should consider e-mail address and telephone number country codes and languages used in communications from customers or on a customer’s website. The exporter should also research the intermediate and ultimate consignees and purchaser, as well as their addresses, using business registers, company profiles, websites, and other resources. Exporters should always screen their customers against the U.S. Government’s consolidated export screening list. An interactive tool for searching this list based on entity name and address is also available.

Furthermore, exporters should pay attention to the countries a freight forwarder serves, as well as the industry sectors a distributor or other non-end user customer supplies. The exporter should then determine whether a license is required based on the likely country of ultimate destination and end use and end user. The exporter should consider not only the list-based license requirements specified in Supplement No. 1 to Part 738 of the EAR (the Commerce Country Chart) in conjunction with item’s classification specified in Supplement No. 1 to Part 774 of the EAR (the Commerce Control List), but also the end use and end user controls in Part 744 and the embargoes and special controls in Part 746. If the exporter continues to have any doubts or concerns surrounding the end use, end user, or country of ultimate destination after exercising due diligence, the exporter should present all relevant information to BIS in the form of a license application or refrain from the transaction.

Export controls are a shared responsibility between government and industry. If you have any concerns about suspicious inquiries that come to your firm, you are encouraged to contact your local BIS Export Enforcement Office.

If you have any questions about export licensing requirements or submitting a license application, you may contact BIS’s Office of Exporter Services at (202) 482-4811. If contacting the Office of Exporter Services via e-mail, please include a telephone number to facilitate BIS’s response to your request.

Link for Imposed export restrictions targeted at Russia’s energy and defense sectors — www.bis.doc.gov/index.php/ policy-guidance/russia-due-diligence-guidance