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US Publishes Best Practices to Help Prevent Unlawful Diversions of Controlled Items

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Friday, 02 September 2011 10:32

The Department of Commerce, Bureau of Industry and Security ("BIS"), recently released a summary of best practices for preventing the unlawful diversion of U.S. dual-use items that are subject to the Export Administration Regulations ("EAR").

Companies and research universities should review and consider incoporating these suggestions in compliance programs. While these best practices do not create any new legal obligations, their adoption may be considered by the U.S. government in assesing an activity if an issue were to arise.

The following list includes the seven (7) best practices that BIS published to guard against diversion risk, 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 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.

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-exports 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.

We will be sending customized reports and recommendations to our clients based on their needs. In the meantime, please follow this link for a summary and background on the best practices provided by BIS.


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