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Customs Announces Extension of Deadline to File Post Summary Correction (PSC)

psc

Customs Announces Extension of Deadline to File Post Summary Correction (PSC)

Customs has posted CSMS #43528998 (July 31, 2020) reminding the trade community that as per the modification to the Post Summary Correction (“PSC”) procedure announced in the Federal Register on August 14, 2019 (84 FR 40430), the deadline for filing a PSC has been extended in cases where an importer requests and is granted an extension of liquidation pursuant to 19 CFR 159.12.

Under this modified procedure, after an importer is granted an extension of liquidation, a PSC may be transmitted to CBP up to 15 days prior to the scheduled liquidation date as per the liquidation extension.  Accordingly, under the modified procedure a PSC must be transmitted to CBP within 300 days after the date of entry or up to 15 days prior to the scheduled liquidation date, whichever is earlier, except in situations involving an extension of liquidation, in which case a PSC must be transmitted to CBP up to 15 days prior to the scheduled extended liquidation date.

This change was made to increase the amount of time a filer has to submit a PSC in situations involving trade requested extensions of liquidation. Significantly, it may have particular applicability in situations where an importer receives an extension of liquidation in order to preserve its right to a refund in the event that the importer requests an extension of liquidation to accommodate a Section 301 duty exclusion or duty exclusion extension request.

In those instances, if the duty exclusion request or the exclusion extension request is granted, then if liquidation of the entry has also been granted, the importer would have additional time to submit the PSC to Customs and obtain a duty refund. Of course, if the importer misses the time period for submitting a PSC in order to obtain a refund then it is also possible that the refund could still be obtained by filing a protest within 180 days of the date of liquidation.

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Robert Stang is a Washington, D.C.-based partner with the law firm Husch Blackwell LLP. He leads the firm’s Customs group.

administrative review

Opportunity to Request Administrative Review

On August 4, 2020, Commerce announced in the Federal Register the opportunity to request an annual administrative review for products that are currently subject to antidumping and countervailing duties.

The products and countries that have August anniversary months are the following:

-Seamless Line and Pressure Pipe from Germany

-Sodium Nitrite from Germany and China

-Finished Carbon Steel Flanges from India and Italy

-Brass Sheet & Strip; Tin Mill Products from Japan

-Polyethylene Retail Carrier Bags from Malaysia, Thailand, and China

-Light –Walled Rectangular Pipe and Tube from Mexico, Korea, and China

-Dioctyl Terephthalate; Large Power Transformers; Low Melt Polyester Staple Fiber from Korea

-Small Diameter Carbon and Alloy Seamless Standard Line and Pressure Pipe from Romania

-Ripe Olives from Spain

-Certain Frozen Fish Fillets from Vietnam

-Steel Propane Cylinders from Thailand

-Silicomanganese from Ukraine

-Various Products from China

As part of this annual review process, Commerce intends to select respondents based on an analysis of U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review, which is released only to legal counsel for interested parties.

Any party wishing to participate in the antidumping and countervailing duty review process or who may be affected by duties on the products identified in the Federal Register notice should file a request for review no later than August 31, 2020.  In order to be eligible to participate in the review, a party must either be an exporter or importer of the specific products and during the specific time periods identified in the Federal Register notice.

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Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

B20

B20 Saudi Arabia – Leadership in Challenging Times through Integrity and Compliance

As countries around the globe push to reopen in the face of the COVID-19 pandemic, the business community is struggling with the decision to relax compliance standards as a means to remain agile and navigate a pressing shortage of goods and services. Yet these times necessitate an even greater commitment to integrity.

B20 Saudi Arabia, the voice of the global business community to the G20, recognizes the ethical challenge posed by the COVID-19 health and economic crisis to both businesses and governments and has committed to addressing the issue of corruption by recognizing Integrity & Compliance as one of its key priority areas.

Corruption remains a significant risk for businesses across the world. The cost of corruption is estimated to be five percent of the annual global GDP, i.e. US$3.6 trillion, a price we cannot afford in these times. We have also seen corruption is a key barrier to achieving the UN Sustainable Development Goals (SDGs), such as the elimination of poverty and hunger, promoting a peaceful and inclusive society, improving education, quality of life, and the infrastructure of each state. The B20 Integrity & Compliance Taskforce’s work, therefore, aims to advance the global anti-corruption agenda, touching upon key relevant topics such as responsible business conduct, consumer protection, the fight against corruption, and other efforts at the foundation of a healthy business environment.

Recently I had the opportunity to interview Mathad Al-ajmi, Vice President and General Counsel at Saudi Telecom Company (stc) and Chair of the B20 Saudi Arabia Integrity & Compliance Taskforce. As a prominent attorney and business leader, Mr. Al-ajmi has been influential to the Pearl Initiative, a global coalition of business leaders from the Gulf Region aimed at fostering a corporate culture of accountability and transparency to ensure all applicable international laws and frameworks are upheld within Saudi Arabia, throughout the Middle East, and across the globe.

During my interview with Mr. Al-ajmi, he reinforced that integrity is not merely anti-bribery, but rather something much broader. He believes that to create an open, transparent and legitimate world economy, the members of the global marketplace must be in alignment with the terms and conditions of participating in that economy, both for developing and developed countries. The goal of the B20 Integrity & Compliance Taskforce is to ensure a robust compliance and controls program that is sustainable, globally successful across languages, and able to be implemented proactively.

Mr. Al-ajmi also spoke about how developing economies and micro, small and medium-sized enterprises (MSMEs) will bear the brunt of business loss from the pandemic, making it doubly important they are able to access monetary government support through legitimate channels. The most vulnerable populations, most often coming from developing markets, are those who are disproportionately impacted by corruption – corruption costs developing countries US$1.26 trillion every year and represents a major obstacle to investment, further negatively impacting economic growth and job prospects for these markets in the long term.

MSMEs, Mr. Al-ajmi noted, play a pivotal role in jump-starting the economy in that they account for more than half of most countries’ GDP and are responsible for almost seven in every 10 jobs. Often operating in difficult economic environments, MSMEs are highly vulnerable to corruption, although they may be less likely than large companies to be involved in large-scale influence-peddling scandals, which is why they are one of the B20’s cross-cutting focuses. Simultaneously, MSMEs typically lack the resources, knowledge, and experience to implement effective anti-corruption measures and conduct their business in compliance with international standards and the applicable international laws and frameworks, making their engagement a cornerstone of the B20’s Integrity & Compliance taskforce work.

The B20 will present its policy recommendations to the G20 during the B20 Summit scheduled for October in the form of policy papers to be drafted by each taskforce, including Integrity & Compliance. While the recommendations and priorities in those papers are not yet published, Mr. Al-ajmi outlined a number of key themes in our discussion that he and his task force feel are an integral part of supporting transparency in the global business community:

-Leveraging new technologies with regards to the management of corruption and fraud-related risks.

-Proposing an anti-corruption technology roadmap to both the private and public sector as a strategic vision by adopting technological solutions for identified risk areas.

-Developing digital identities and public national registers to reduce anonymity and increase both transparency and accountability of beneficial owners and third parties. The adoption of these solutions will further enable addressing the challenges of cross-border quality data sharing.

-Ensuring heightened integrity and transparency in public procurement through open bidding processes from multiple vendors, with specific certification criteria to ensure compliance with applicable international laws and frameworks.

-Collectively pursuing and legislating the implementation of responsible business on a global basis in each country, leveraging the applicable international laws and frameworks.

-Supporting code-of-conduct compliance programs to monitor capital spending as emerging market infrastructure projects continue.

-Continuing to align government officials with private industrial programs through compliant lobbying programs and monitoring.

-Protecting whistleblowers by adopting mechanisms and practices in line with leading global practices.

-Strengthening corporate governance in public and private sector companies, such as through yearly certifications for all employees to understand governance regulations.

-Widely and publicly prosecuting bribery to set examples.

-Partnering with and leveraging the expertise of global institutions to improve national anti-corruption plans.

-Actively empowering women across the supply chain by promoting their participation in a wide range of public, economic and political spheres in combating corruption.

As Mr. Al-ajmi reinforced to me, none of these efforts will succeed if we are not operating in a transparent, integrity-driven business environment. Ultimately, this is what the B20 hopes to accomplish through the work of this critical taskforce, ensuring integrity is part of the global business community and society writ large. I am confident the B20 and specifically its Integrity & Compliance Taskforce will have a positive influence on the G20 Summit and look forward to the release of the policy recommendations during the B20 Summit scheduled for October.

_________________________________________________________________

If you have any questions or would like help in the area of Compliance and Controls please do not hesitate to contact me at frank@ationadvisory.com or visit my website at www.ationadvisory.com

Frank and his team at Ation Advisory Group have successfully remediated clients from FCPA and British Anti-Bribery investigations. His team has implemented over 45 global FCPA Certification Programs and Compliance and Controls improvement projects which prevented violations and Improved Goodwill and overall value for a domestic or international organizations seeking to sell, partner with a JV or obtain contracts or new business with government officials and private enterprise.

B20

B20 Saudi Arabia – Positively Changing Integrity & Compliance Behaviors Across the Global Business Community

As countries around the globe push to reopen in the face of the COVID-19 pandemic, the business community is struggling with a temptation to relax compliance standards as a means to remaining agile and navigate a pressing shortage of goods and services. And yet these times necessitate an even greater commitment to integrity, one of the priorities the global private sector has set for itself.

The B20 Saudi Arabia, the voice of the global business community to the G20, recognizes the challenge posed by the COVID-19 health and economic crisis to both businesses and governments and has committed to addressing the issue of corruption by recognizing Integrity & Compliance as one of its key priority areas.

We already know the global economy loses US$3.6 trillion to impropriety yearly, a price we cannot afford in these times. We have also seen corruption is a key barrier to achieving the UN Sustainable Development Goals (SDGs), such as the elimination of poverty and hunger, improving education, quality of life, and the infrastructure of each state. The B20 Integrity & Compliance Taskforce’s work, therefore, aims to advance the global anti-corruption agenda, touching upon key relevant topics such as responsible business conduct, consumer protection, the fight against corruption, and other efforts at the foundation of a healthy business environment.

Recently I had the opportunity to interview Mathad Al-ajami, Vice President and General Counsel at Saudi Telecommunication Company (STC) and Chair of the B20 Saudi Arabia Integrity & Compliance Taskforce. As a prominent attorney and business leader, Mr. Al-ajmi has been influential to the Pearl Initiative, a global coalition of business leaders from the Gulf Region aimed at fostering a corporate culture of accountability and transparency, to ensure FCPA and UK Foreign Bribery Compliance are upheld within Saudi Arabia, throughout the Middle East, and across the globe.

During my interview with Mr. Al-ajmi, he reinforced that integrity is not merely anti-bribery, but rather something much broader. He believes that to create an open, transparent and legitimate world economy, the members of the global marketplace must be in alignment with the terms and conditions of participating in that economy, both for developing and developed countries. The goal of the B20 Integrity & Compliance Taskforce is to ensure a robust Compliance and Controls program that is repeatable, successful globally across languages, and able to be implemented proactively.

Mr. Al-ajmi also spoke about how developing economies and micro, small and medium-sized enterprises (MSMEs) will bear the brunt of business loss from the pandemic, making it doubly important they are able to access monetary government support through legitimate channels. The most vulnerable populations, most often coming from developing markets, are those who are disproportionately impacted by corruption – corruption costs developing countries US$1.26 trillion every year and represents a major obstacle to investment, further negatively impacting economic growth and job prospects for these markets in the long term.

MSMEs, Mr. Al-ajmi noted, play a pivotal role in jump-starting the economy in that they account for more than half of most countries’ GDP and are responsible for almost seven in every 10 jobs. Often operating in difficult economic environments, MSMEs are highly vulnerable to corruption, although they may be less likely than large companies to be involved in large-scale influence-peddling scandals, which is why they are one of the B20’s cross-cutting focuses. Simultaneously, MSMEs typically lack the resources, knowledge, and experience to implement effective anti-corruption measures and conduct their business in compliance with international standards and the applicable legal rules, making their engagement a cornerstone of the B20’s integrity & compliance work.

The B20 will release its policy recommendations to the G20 in July in the form of policy papers to be drafted by each taskforce, including Integrity & Compliance. While the recommendations and priorities in those papers are not yet published, Mr. Al-ajmi outlined a number of key themes in our discussion that he and his task force feel are an integral part of supporting transparency in the global business community:

-Leveraging new technologies in managing the risk of corruption and fraud – this includes computer-based training and certifications in all languages using “real world” case studies that are language and market-specific.

-Leveraging Artificial Intelligence programs to monitor large amounts of data for specific corruption and integrity violations.

-Ensuring heightened integrity and transparency in public procurement through open bidding processes from multiple vendors, with specific certification criteria to ensure compliance with key laws internationally such as the Foreign Corrupt Practices Act in the U.S. or the UK’s Bribery Act of 2010.

-Collectively pursuing and legislating the implementation of responsible business on a global basis in each country, leveraging the frameworks provided by FCPA and the UK’s Bribery Act.

-Supporting code-of-conduct compliance programs to monitor capital spending as emerging market infrastructure projects continue.

-Continuing to align government officials with private industrial programs through compliant lobbying programs and monitoring.

-Protecting and encouraging whistleblowers but protecting businesses by ensuring disgruntled workers cannot destroy shareholder value through false claims.

-Strengthening corporate governance centrally and in global subsidiaries, such as through yearly certifications for all employees to understand governance regulations.

-Widely and publicly prosecuting bribery to set examples.

As Mr. Al-Ajmi reinforced to me, none of these efforts will succeed if we are not operating in a transparent, integrity-driven business environment. Ultimately, this is what the B20 hopes to accomplish through the work of this critical taskforce, ensuring integrity is part of the global business community and society writ large. I am confident the B20 and specifically its Integrity & Compliance Taskforce will have a positive influence on the G20 Summit and look forward to the release of the policy recommendations in July.

___________________________________________________________________

If you have any questions or would like help in the area of Compliance and Controls please do not hesitate to contact me at frank@ationadvisory.com or visit his website at www.ationadvisory.com

Frank and his team at Ation Advisory Group have successfully remediated clients from FCPA and British Anti-Bribery investigations. His team has implemented over 45 global FCPA Certification Programs and Compliance and Controls improvement projects which prevented violations and Improved Goodwill and overall value for domestic or international organizations seeking to sell, partner with a JV, or obtain contracts or new business with government officials and private enterprise.

Frank Orlowski is an accomplished Senior Finance Executive and Board Member with more than 25 years of success in the pharmaceutical, medical devices, contract manufacturing, and healthcare industries. Leveraging extensive experience leading manufacturing, operational, and financial strategies across 35 countries.  Frank has also implemented over 30 FCPA Compliance/ Controls Remediation and Certification Programs across 25 countries.

ofac

More or Less Denied: The OFAC 50% Ownership Rule

The OFAC 50% ownership rule is a compliance requirement that, when overlooked, can lead to severe penalties and reputation damage. What exactly is the 50% rule and for which companies is it most relevant?

50% Rule: What is It?

Sorry, German soccer lovers—this 50% rule relates to Denied Party Screening. In 2014,the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) clarified 2008 guidance in relation to doing business with companies that are not on any OFAC denied parties lists (DPL), but that are in fact owned by people or companies that are on the DPL. The European Union has similar regulations and, as far as OFAC is concerned, the math is simple: if one or more people or entities that are on a DPL own in total 50% or more of an entity that is not listed, that (latter) entity is considered to be under the control of one or more denied parties and cannot be engaged for business.

That seems clear enough, but the bonus question is of course: how do you find out if the company you are planning to do business with is not controlled by actors on the DPL? And how exactly does the math work: is it direct ownership only or do other relations count as well (e.g., what if a denied person’s spouse owns 50.01%)?

Digging Deeper

The only opportunity to flag if an entity is 50% owned by a denied party is to have this information available when denied (or restricted) party screening occurs. Especially for companies with larger transaction volumes and many one-time sales, this implies a gigantic amount of research, which is practically impossible given the usual limited resources compliance departments have available.  Luckily, there are a few companies that have done the research and are also keeping it up to date. Tag their lists on to the regular DPL when screening and all bases are covered.

It’s relevant to note that the amount of research is staggering and performed in old fashion digging style. Typically, entities appearing on the DPL are well aware of that fact and bury their ownership in (at first sight) legit companies three or four layers deep, which is more research than most companies can handle, especially when large parts of it may be in a foreign language.

Obviously, some verticals are subject to both more scrutiny and fraud attempts when it comes to the 50% ownership rule. That soccer jersey sale might not raise too many flags but, for example, in the financial sector, the movement of dual-use goods or complex international agreements (oil, anyone?) calls attention to the necessity to screen all parties involved to the finest detail possible. Or not, in which case preparing for some generous penalties, revoking of business licenses and perhaps jailtime would be time well spent. Recent cases (2018-2020) have seen OFAC dish out penalties in excess of $1.3 billion with a growing part of that related to 50% ownership. In general, most (higher) penalties have been related to the financial sector (the first high profile case was the 50% penalty imposed on Barclays Bank).

As for the relationship part, it is only the actual names on the debarred lists that count towards the 50%. Ownership by their known family and (political) friends does not count toward the 50%, as long as these relations are not on the OFAC lists themselves. Practically, though, a few eyebrows or more should be raised if those relationships do come to light. Either way, if it is under the header of due diligence, reasonable care, or ‘know your customer’ (KYC), the burden is on the exporter/seller to ensure no laws are violated and goods do not end up in debarred hands.

A Closer Look

To illustrate the reach of the 50% rule, consider the following from the aforementioned Barclays case. Barclays US worked with Barclays Bank of Zimbabwe Limited on some of its customers that were not on OFAC’s Specially Designated Nationals and Blocked Persons List (SDN List). Yet, the Industrial Development Corporation of Zimbabwe was on the list (since 2008) and owns 50% or more of these customers. That means Barclays should have effectively blocked these customers and not engaged with them. When business was conducted, Barclays violated the 50% rule and was penalized.

Parting Thoughts

‘What Lies Beneath’ is not only a movie that can keep you up at night. The guidance on OFAC compliance regulations dictates that exporters must be aware of who they are conducting business with, even if that requires a look underneath the surface. That responsibility cannot be ignored.

resilience

The Importance of Supply Chain Resilience

Acknowledging potential weaknesses in your supply chain before they are exposed by elements beyond your control is of critical value. With current events in mind, managing future supply chain disruptions will be an integral component of corporate strategy. Calling it Supply Chain Resilience, Supply Chain Disruption, or Business Continuity Management (from the ISO 22301 standard) does not affect the necessity of having strategies in place that may make the difference between following or leading in a disrupted economy, and even between surviving or folding.

To identify potential soft spots, a review should not be limited to a single product flow or single supply chain element. For any company, the next big disruption does not have to be a pandemic; it can be something minuscule on a global scale, yet have the same devastating effect on the ill-prepared in particular trade lanes or in a particular industry. Unpredictable is not a reason to be unprepared. Creating supply chain resilience is a holistic exercise that involves more than just a few savvy logistics people. HR, finance, compliance/legal (to name a few) are all stakeholders in a healthy case of business continuity management.

How then to build a strategy? Like any other strategy, the process seems logical: review, assess, and mitigate. In this particular case: 1) review your tradelanes, products, and materials flow by matching them against risk categories (i.e., labor, business risk, global trade, nature, and materials), 2) assess risks for each combination, and 3) mitigate risks by either changing behavior now or planning for alternate (sourcing) options should the anticipated risks become reality.

Trade Lanes and Risk Categories

The relevant components to review within the supply chain include the importing and exporting country or countries, the manufacturing locations, the finished goods, and the (raw) materials. Ideally, for finished goods and materials, the associated Harmonized System (HS) codes are made available. Scratch what does not apply and move to the following step where each of the ‘inputs’ is categorically reviewed.

As mentioned, this should not be an exercise limited to supply chain professionals. For example, labor risks can be associated with the likelihood of strikes, wage volatility, and the availability of appropriate labor resources—not necessarily areas that keep the supply chain brain occupied every day.

In a similar fashion, other resilience elements expand across different areas of expertise. Business risks relate to cybersecurity, corruption, counterfeit products, and the chance of entering into business with bad actors that are on (any of the) denied party lists.

Global trade accounts for the compliance requirements related to the shipment of goods (i.e., licenses, documentation, permits, etc.), associates the products with the various duties and taxes, and identifies if Free Trade Agreements(FTA) apply and how to qualify for preferential treatment.

Arguably the most unpredictable, but not the least expected risk to account for, is nature. It’s important to identify the various kinds of disasters that may hit: natural hazards, pandemics or epidemics, flooding, earthquakes, hurricanes, volcanic eruptions, landslides, or drought can all play parts.

Lastly, consider materials. Understanding the market comes with insights into scarcity, sourcing locations, and price fluctuations.

Risk Assessment

Risk assessments match the input with the risk categories. For example, how vulnerable is the manufacturing location when it comes to labor regulations, corruption, or flooding? Is there an FTA in place that could potentially lower the import duty burden? Where in the supply chain can a cyberattack be most expected? In short, some homework is in order to create a thorough risk profile.

For many components, the sources are readily available, such as the Corruption Index at transparency.org, labor statistics on Statista or NationMaster, or duty rate information from the various global trade content providers (or the WTO).

Building Resilience

As with cyber-security risks (PEN tests) or a regular laptop virus scan, supply chain risk assessments will point out the components that need immediate attention or, in this case, are a high priority for alternate sourcing or routing options. It’s then time to build that resilience.

Look for options by analyzing the market and tradelanes. Mine import and export data to identify alternative sources for goods and materials, even manufacturing locations. Map out alternative routes for products to get where they need to go. Document the reasonable options and share with as many people as possible—preparedness is, of course, an all-inclusive strategy.

Next and where possible: test run! Re-route shipments temporarily or source occasionally from a new supplier; in other words, make sure the alternative options are viable. In addition, communicate with external sources that would be part of continuity plans. Make them aware they are part of these plans; put people or suppliers on a retainer and try to agree on terms before disaster strikes so the projected costs can be anticipated better.

Lastly, keep those alternate plans up to date; otherwise, it may be too late to create and execute on alternate alternative plans.

compliance

U.S. Regulators Focus on Compliance Efforts in Enforcement Decisions Involving International Companies

Over the past few years, U.S. regulators have made it clear that having comprehensive and effective compliance policies covering trade is a must, regardless of the company size, location or industry. The government’s move to formalize the importance of compliance programs is a clear signal of what it expects and a harbinger of what is to come.

Why Is Trade Compliance Important Regardless of the Company’s Location?

Trade compliance should be the goal of every global company, in particular as a risk mitigation measure and a positive value proposition. A compliance program serves as a security blanket for large financial institutions accustomed to dealing with regulations, small startups with a cloud-based platform, and even companies with no physical presence in the United States. A trade compliance program lays the groundwork for international companies on how to conduct business in or with the United States.

With changing industry regulations, it is critical to keep up to date and have a compliance program that is effective. Failure to have a strong compliance program could result in increased legal exposure, potentially leading to fines and penalties as well as negative publicity associated with an enforcement action. Maintaining an effective trade compliance program could help companies mitigate penalties for potential violations, and is ultimately cost-effective. For example, last year, the U.S. government imposed $1.3 billion in penalties on cargo firms, penalties that could have been mitigated with robust compliance programs.

 Avoiding U.S. Sanctions

Engaging in the complex global supply chain may be a financial win, but it requires formalized diligence procedures to ensure your company does not run afoul of the law. The Department of Treasury’s Office of Foreign Assets Control (OFAC) has released guidance encouraging organizations to employ a risk-based approach to sanctions compliance and focus on five essential components: senior management commitment, risk assessments, internal controls, testing and auditing, and training. To incentivize companies to engage in international transactions, OFAC also provides that in the case of a violation, it will give favorable consideration to companies with effective sanctions compliance programs and that the existence of such a program may mitigate a civil monetary penalty.

OFAC is not just issuing guidance, it is increasing its enforcement efforts involving both U.S. and foreign entities. It continues to designate more non-U.S. entities that have helped evade U.S. sanctions. For example, several Chinese shipping companies were found to have violated North Korean sanctions, and as a result, were blocked from doing business in the U.S. or with U.S. parties. In January 2020, Eagle Shipping, a Marshall Islands ship management company with headquarters in Stamford, Connecticut, agreed to pay $1,125,000 to settle its potential civil liability for 36 apparent violations of the Burmese Sanctions Regulations. The violations involved Eagle Shipping’s affiliate in Singapore entering into a chartering agreement with Myawaddy—an entity identified on OFAC’s List of Specially Designated Nationals and Blocked Persons. Eagle filed an application with OFAC requesting a license authorizing it to carry sand cargoes purchased from Myawaddy but continued its dealings while the OFAC application was pending. OFAC ultimately denied the license, but Eagle resumed its dealings with Myawaddy, carrying cargo from Burma to Singapore.

Among the aggravating factors, OFAC considered Eagle’s status as a sophisticated shipping company, which should have had expertise in international trade and global shipping transactions. Among the mitigating factors, OFAC considered Eagle’s efforts to develop and implement a formal sanctions compliance program with specific policies and procedures for compliance screening, transaction checklists, and red-flag identification tools.

Compliance Under Commercial Export Laws

The U.S. Department of Commerce’s Bureau of Industry and Security (BIS), which administers U.S. commercial export control regulations, also has published comprehensive guidance for companies working to develop or shore up compliance materials. In its guidance, BIS identified the following elements as foundational in creating an effective Export Compliance Program (ECP): management commitment, completing regular risk assessments, obtaining proper export authorization, record-keeping, training, compliance audits, addressing export violations and taking corrective actions, and maintaining your ECP. Like OFAC, BIS emphasizes the importance of tailoring your ECP to your organization and business based on size, volume of exports, geographic location, and other relevant factors. Companies that fail to comply with regulations that govern export controls have experienced significant penalties.

The U.S. export control laws govern not only U.S. companies, but also certain export activities of foreign companies dealing with the export of certain products, technology, or services from the United States to a foreign country. For example, most recently, BIS imposed substantial export and reexport restrictions on Huawei, a Chinese company, and its 68 non-U.S. affiliates in connection with Huawei’s violations of U.S. export laws specific to the Iranian Transactions and Sanctions Regulations. As part of that action, BIS restricted any export, re-export, or transfer of U.S.-origin technology, commodity, or software to Huawei and its entities without an export license.

This enforcement action ultimately impacted both the U.S. and non-U.S. businesses, including big and small tech companies, suppliers, importers, shippers, and financial institutions. Separately, in 2017, the U.S. government imposed a $1.2 billion criminal fine against ZTE, a Chinese telecom equipment company, for shipping U.S.-origin telecommunications equipment to Iran and North Korea. These two cases have affected how U.S. and foreign companies view their compliance programs; they also have incentivized the development and implementation of more robust compliance programs, including vetting procedures and sanctions checks that ensure adherence to the U.S. export control regulations.

Recommended Steps for Ensuring Compliance and Mitigating Risk

-The benefits of having a compliance program in place when a mistake happens are significant. When creating your tailored trade compliance policies and procedures, remember the following:

-Compliance programs should include a comprehensive, independent, and objective testing or audit function to ensure that your business is aware of how its programs are performing.

-Programs should be updated regularly in light of constantly changing regulatory and business environments.

-Ensure that your compliance program has comprehensive coverage to track all parties involved in import and export transactions.

-Even products that seem harmless can be used in ways that companies do not intend. As an organization, you are responsible for knowing how your products will be used and for avoiding government-prohibited end uses.

-Watch for red flags on BIS’s published list.

-Watch for “deemed” exports, which are released in the United States of technology or source code to a foreign person. Such a release is deemed to be an export to the foreign person’s most recent country of citizenship or permanent residency, which may require a license or even be prohibited.

Now more than ever, government offices and agencies are providing the industry with guidance on how best to comply with trade regulations. However, this also means that companies can no longer claim ignorance of trade regulations. Today, companies participating in the global marketplace must take proactive preventive measures to ensure compliance, mitigate risk, and minimize potential penalties.

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 Doreen Edelman and Zarema Jaramillo are attorneys at Lowenstein Sandler.

south american

Embracing the South American Ecommerce Marketplace

Ecommerce is on the rise in South America. Double-digit growth is expected for 2019 with sales of $71.34 billion (USD), tying it with the Middle East and Africa as the world’s second-fastest-growing retail ecommerce market. 

That’s great news for shippers looking to expand their online retail presence in South America.

A diamond in the rough

Online retailers in South America have been struggling for years to overcome several obstacles to success, including extensive customs delays, poor transportation infrastructure, and the lack of end-to-end supply chain visibility. Progress has been made on all three of these “challenges,” but more work is necessary to ensure the region’s continued double-digit growth. 

Within each challenge lies opportunity

While these obstacles may keep a few shippers from expanding into South America, others are viewing the area as a “diamond in the rough” and working diligently to reap the rewards of this truly untapped region. 

Having the right information is the first step to wading through the muck and mire of this complicated ecommerce marketplace:

South America customs vary by country

Red tape and bureaucracy pose the biggest obstacles for importing products into South American countries. In addition to customs taxes, tariffs, and fees, it can take 30+ days for some goods to be cleared through customs, especially in Brazil and Argentina. As a result, inventory builds up, costs rise, and customers wait longer for their products to arrive. In comparison, however, Chilean customs are very similar to the U.S. and allow products to flow through relatively quickly.

As you can tell, customs procedures can differ significantly, making it difficult for shippers to ensure compliance with each region’s unique customs. For a more seamless process, it’s essential shippers work with a customs broker or third party logistics provider (3PL) with local offices in the area. They’ll know the customs standards and understand the paperwork necessary to ensure products are approved for import.

Free trade agreements 

The United States-Chile trade agreement allows all U.S. exports of consumer and industrial products to enter Chile duty free. While still in the works, the United States-Brazil free trade agreement can help facilitate trade and boost investment between the two countries, especially in infrastructure. The United States-Colombia Trade Promotion Agreement eliminates tariffs on 80% of U.S. consumer and industrial imports into Colombia. 

South America infrastructure at port and inland

South America is hobbled by its inadequate infrastructure, and it’s probably not going to change anytime soon. Roads remain the primary means of transportation, but 60% are unpaved, hampering the speed of delivery by truck to inland locations. Improvements are slowly occurring, thanks to increased government funding (but corruption hampers many efforts). It’s worth mentioning that China, the largest trading partner of Brazil, Chile, and Peru, invests heavily in the region, providing more than $140 billion (USD) in loans for infrastructure improvements in the past decade, according to The Business Year.  

While surface transportation remains stagnant, ocean freight shows promise. According to icontainers.com, routes going to and from South America represent 15% of the total number of trade services.

The largest container port in South America is in the city of Santos in Brazil’s Sao Paulo state. Its location provides easy access to the hinterlands via the Serra do Mar mountain range. More than 40% of Brazil’s containers are handled by the Port of Santos as well as nearly 33% of its trade, and 60 % of Brazil’s GDP, according to JOC.com

In 2018, Brazil’s busiest container cargo port handled 4.3 million TEUs, compared with 3.85 million TEUs in 2017. 

For Argentina, Zarate serves as the critical port for roll-on/roll-off (ro-ro) and breakbulk cargo, while Buenos Aires and Rosario serve as the top container ports. Only two countries in South America are landlocked, Paraguay and Bolivia. 

Shippers and ocean carriers using the Port of Santos have been complaining about congestion and labor disputes at the port, and about politicization and time-consuming bureaucracy. That’s why it’s essential that shippers must have the latest information on traffic through these South American ports. Global freight forwarding companies in the area will have the newest information available to help you choose the right port of entry for your freight.

End-to-end supply chain visibility

Most online retailers and carriers understand that the sale is not complete until the product is delivered to the consumer. If merchandise is damaged during transport or arrives much later than promised, it reflects poorly on both parties and undermines consumer trust in ecommerce purchases. 

Lack of adequate infrastructure has forced many online retailers to put logistics on the back burner, focusing on the user experience through purchase. That’s why many products take weeks to arrive at the customer’s door, setting a bad precedent that must change. 

The South America trucking industry is highly fragmented, with providers ranging from owner-operators (about one-third of the industry) to sizable fleet operators and experienced freight forwarders who may not own any trucks at all, according to Tire Business newspaper. 

Final mile, LTL services paramount in South America

Once your product reaches port in South America and makes it through customs, how it gets delivered to the customer’s door can add extensive costs to your supply chain. Less than truckload (LTL) and final mile services are paramount to successfully operating in the region. Especially those carriers that can provide GPS freight tracking capabilities, such as C.H. Robinson’s Navisphere® technology

Final thoughts

Yes, there are obstacles to operating a supply chain in South American countries. Knowing the ins and outs of each country’s unique customs procedure, understanding which South American ports are best for your freight, and being able to track your shipments end-to-end will ensure your success in the region. Shippers who realize the potential of this “diamond in the rough” marketplace should work with a freight forwarder who will be extra focused and diligent in ensuring their freight moves quickly from customs fiscal warehouses to the final destinations. 

Enlist the aid of a global freight forwarding provider, like C.H. Robinson, who offers a global suite of services and has offices in the region that can help navigate any disruption in your supply chain.

Start the discussion with an expert in South America to accelerate your ecommerce trade. 

compliance

11 Common Misconceptions: Compliance & Denied Party Screening

With the growth of eCommerce, business integration, and global connectivity showing no sign of abating, compliance and denied party screening (DPS) have been thrust into the spotlight. The era of the mega fine has emerged, with fluid international sanctions policies impacting unsuspecting companies in unwelcome ways. In addition to the potential for reputational damage, penalties for non-compliance can include substantial fines—multimillions of dollars in some instances—, revocation of export privileges, and criminal charges, including prison time. 

The solution? Screening for restricted and denied parties, and due diligence to ensure that goods, technologies, and services are not destined for a sanctioned or embargoed country—not to mention screening every financial transaction—should be an integral component of every organization’s governance, risk, and compliance strategy. 

WHO NEEDS TO SCREEN?

While homeland security-sensitive industries (e.g., aerospace, defense, telecommunications, IT, energy, research, financial institutions) have a high bar when it comes to complying with U.S. and international export, trade, and financial laws, ordinary businesses from across all industries have an obligation to adhere to compliance requirements as well—and the penalties for non-compliance can be severe.

The reality is that companies found in violation of international trade regulations come from a wide spectrum of industries, not just the usual suspects. In fact, many organizations that have received financial, or even criminal, penalties fall outside the realm of the higher-risk industries. 

Unfortunately, many companies hold the erroneous belief that compliance and DPS do not apply to them. By increasing awareness surrounding the following misconceptions about compliance and restricted party screening, organizations can take a proactive and vigilant approach to mitigating risk and avoiding costly penalties.

DPS MYTHS: DON’T LET THEM HAPPEN TO YOU 

Screening doesn’t apply to our business, industry, or country.

All businesses, not just those operating within homeland security-sensitive industries, have an obligation to screen. Companies both in the U.S. and those outside of the country that engage with the United States in any capacity—including selling products or services in the U.S., or even using American banks and financial services for transactions—are subject to U.S. export and financial compliance laws.

We don’t need to screen because we supply services, not products.

Every time money changes hands, there is an obligation to ensure that the good or service is not destined for an individual or entity on a government watch list; services (e.g., travel agencies) are not exempt. 

We rely on a third party (e.g., freight forwarder) to screen for us.

Many companies make the mistake of thinking that the burden of compliance rests with the shipping or freight forwarding company but this is not always the case. The U.S. government can designate the owner or seller of the merchandise being exported (or imported) as the Exporter of Record, shifting the onus of compliance to both organizations. 

Our company operates domestically so screening is not required.

A significant number of individuals found on watch lists are U.S. nationals or citizens located in the United States who have been found guilty of violating export laws. Consequently, organizations are obligated to screen regardless of shipment destination.

Export laws don’t apply to us because we’re located outside the U.S. 

Regardless of where an organization’s headquarters or subsidiaries are based, it is highly likely that some, if not all, transactions flow through the U.S. financial system at one point in the purchasing or supply chain process. As such, these transactions fall under the purview of the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC).

We don’t export to countries under sanctions or embargoes.

Virtually every nation, on every continent, has debarred individuals and entities inside their borders—even Antarctica! Given the dynamic nature of international sanction policies, especially in the current political climate, organizations are at risk of engaging with a denied or restricted person or organization regardless of where they export. 

Our goods are EAR99 so we don’t need to screen.

Although an organization’s goods might be EAR99 (under the jurisdiction of the U.S. Department of Commerce and not listed on the Commerce Control List), selling them to a denied party is still subject to penalty. For reference, the 2017 edition of the Bureau of Industry and Security’s Don’t Let This Happen to You is replete with examples of EAR99 export violations.

We already screened our customers and contacts once.

Denied and restricted party lists change frequently, in many cases daily. To ensure compliance, organizations would be best served by screening all transactions at multiple points throughout the business workflow.

The project we needed to screen for is complete so we’re in the clear.

While exports are commonly associated with the shipment of goods, export controls also encompass the transfer of technology, software, or technical data, even when the transfer occurs in the United States. Case in point: although a project may have concluded, the release of controlled technologies (a.k.a. deemed exports) to foreign nationals is subject to U.S. export laws.

We only need to screen the person to whom we’re shipping.

One of the most misunderstood areas of export compliance is the requirements surrounding end-use. End-use compliance involves requesting documentation from the purchaser to confirm they are the ultimate destination of the goods and that they will use the product as intended. While obtaining an end-user statement doesn’t guarantee the veracity of the purchaser’s claim, this process demonstrates that a company has taken additional measures to ensure adherence to export and trade compliance laws and will stand them in good stead if issues arise. 

We’ll just pay the fine.

Fines incurred as a result of an export of OFAC violation should not be treated as a business expense. In fact, criminal penalties can include jail time and organizations can have their export privileges revoked. Moreover, negative media attention is an increasing concern for risk-adverse organizations attempting to protect their reputation by avoiding conducting business with non-law-abiding people or companies. 

FINAL THOUGHTS

Penalties from any export, trade, or OFAC compliance violation can negatively impact an organization’s bottom line, or ultimately cripple a company’s trade. Implementing a comprehensive screening program that encompasses restricted and denied parties and sanctioned and embargoed countries, coupled with cultivating a culture of compliance within the organization, will help keep goods flowing while minimizing the risk of penalties. 

_______________________________________________________________________

Marc Roy is Vice President & General Manager, Compliance Solutions at Descartes Systems Group, the global leader in providing on-demand, software-as-a-service solutions focused on improving the productivity, performance, and security of logistics-intensive businesses. 

trade

Realign Your Trade Compliance Program with a Midyear Review

The complexities of importing and exporting goods in the United States means it’s easy to overlook process changes and forget to make updates in a timely manner. However, if not caught quickly, outdated information or imprecise processes can add unnecessary fees and penalties. If left to accrue over the course of a full year, these costs can be staggering.

That’s why I recommend a midyear customs review. If something is off base with your customs compliance program you can rapidly realign as needed. Use C.H. Robinson’s comprehensive checklist to guide your own midyear customs process review.

Midyear customs clearance checklist

1. Review customs broker powers of attorney

Revisit powers of attorney (POAs) and revoke any from U.S. customs brokers with whom you no longer wish to work. Remember, any POA you extend should have an expiration period, providing a natural time to review. If you aren’t sure of existing POAs, you can see all U.S. customs brokers transacting business on your behalf by requesting your Importer Trade Activity (ITRAC) data (see #11)

2. Update names and addresses on file with U.S. Customs

U.S. Customs and Border Protection (CBP) uses contact information from CBP Form 5106 to communicate with Importers of Record. If you have recently moved, or have not reviewed the information listed on CBP Form 5106 in a while, re-validate the information you have on file so you will receive all pertinent and time-sensitive correspondences the CBP sends.

3. Ensure bond amount is sufficient

If your import activity has changed, or you anticipate a large increase in activity during the remaining half of the year, your bond may need updating. CBP can determine your bond is insufficient and may require you to increase your bond amount. A midyear review and update is a proactive move.

4. Consider changing listing multiple principals on the same bond

Having multiple entities on one bond can bring cost savings. But be sure to decide if the risks are worth the reward. When sharing a bond, each entity shares liability if CBP issues a demand against the bond. In addition, if any entities terminate the bond, this can disrupt the other entities within the bond.

5. Check customs broker instructions

Review and document any customs broker instructions you send to U.S. customs brokers regularly—from Harmonized Tariff Schedule (HTS) classification rules and related party verification instructions to anti-dumping/countervailing duty instructions—to ensure your customs broker declares entities to the CBP according to your wishes.

6. Request updated certificates of origin

Be proactive with foreign suppliers and obtain updated annual blanket certificates of origin (COO) for any program in which you’d like to claim preference. And provide any updated COOs to your U.S. customs broker. Not obtaining COOs in a timely fashion may lead to unnecessary annual duty costs.

7. Update free trade agreement instructions

Revise any instructions pertaining to free trade agreements (FTAs) so your U.S. customs broker has proper direction about how you would like to file entries that may be eligible for FTAs.

8. Obtain your manufacturer’s affidavits

If you utilize a U.S. goods return program, found under Heading 9801, be sure you have obtained your manufacturer’s affidavits for the rest of the year. Share these affidavits with your U.S. customs broker and record them within any customs broker instructions.

9. Review anti-dumping/countervailing duties products

The CBP can investigate any potential anti-dumping/countervailing duties (AD/CVD) evasion allegations. Accurate case numbers, rates, etc. are critical for reporting upon entry. Even if you are disclaiming AD/CVD, document your product details internally, explaining why your product does not fall within the scope of the order.

10. Provide reconciliation flagging instructions to U.S. customs broker

If you are a reconciliation participant, approved by CBP, flagging of entries is the responsibility of the importer. Now is the time to send your U.S. customs broker written direction with any flagging instructions you would like established or changed.

11. Request import activity records from CBP

ITRAC provides a wealth of information you can use to create or improve your import compliance program. Likely, you’ll need tools, like C.H. Robinson’s Global Trade Reports®, to transform the raw ITRAC data into user-friendly dashboards and reports.

12. Sign up for the ACE Portal

The ACE Secure Data Portal is a powerful way to manage trade compliance programs. This powerful tool enables you to receive paperless notifications from CBP, monitor your brokers, audit entries in real time, and much more.

13. Request export activity data

Similar to ITRAC data for import activity, request your Electronic Export Information (EEI) from the Census Bureau, Foreign Trade Division. If you are the filer in the Automated Export System (AES) using the ACE Export Portal, you can review your EEI on a regular basis.

14. Check U.S. Import HTS Classification and Export Classification

Review and communicate any updates to your HTS Classification Database and your Export Schedule B Number to proper stakeholders—both internally and externally.

15. Reduce liability with marine cargo insurance

Steamship lines and air cargo providers have limited legal and financial responsibility for international cargo. Marine cargo insurance plans can reduce your company’s financial exposure and bring new efficiencies.

16. Protect trademark and trade names

Make sure the CBP has any and all of your trademarks and trade names protected and recorded. This allows CBP to help you combat potential counterfeit products or infringement.

17. Request manifest confidential treatment

You can request confidential treatment of inward and outward manifest information. However, note that there are mandatory biannual renewal requirements. In addition, account for all possible variations of names within your request.

18. Review your denied party screening program

Look at which parties you are screening, and how often. This can ensure your program is appropriate for your current business model and bring potential risks to your attention.

19. Perform internal and external training

Regularly schedule time to ensure adequate training is happening with appropriate stakeholders. This keeps all parties, especially new employees, up to date with changes.

20. Address priority trade issues

Be sure that your compliance program addresses each one of the CBP’s initiatives to mitigate the risks of priority trade issues.

Smooth customs clearance doesn’t just happen

Careful planning and regular reviews of your customs processes are critical components to a strong trade compliance program.

If a midyear review seems unfeasible or this list seems daunting to conduct all at once, consider bringing in an outside expert like C.H. Robinson to guide you through the process. The most important part is to ensure you review, update, and communicate any changes to these areas of your compliance program on a consistent basis.