Government Controls

Regulatory Actions

 The Import and Export policy is extremely complex; multiple U.S. Government Agencies are involved with the regulation and setting of policy. These Agencies each have their own requirements and procedures for allowing a U.S. business or entity to import or export anything to a foreign party. Many times those agencies' regulations conflict with one another, or one agency's regulations "trump" another's. For instance the U.S. Department of State may overrule the U.S. Department of Commerce on transactions. Because the system is so complex, one must understand how to navigate it and never assume that because you have authorization from one USG agency that you do not need additional authorizations from other USG agencies. Frequently the Department of Defense, or divisions within the Department of State will not advise non-military entities to follow regulations to the letter; in fact they may even tell your organization you do not need other authorizations. This is inaccurate. You must perform your due diligence with regard to all regulations and determine what authorizations are required and how you obtain them.

The Defense Technical Security Agency (DTSA) makes determinations as to what levels of technology the U.S. government will allow to be provided to a foreign entity. This agency works to keep the balance of power in other countries and decides what technology levels may be provided to each country. DTSA has special interests in certain hardware, technical data and defense services. For example unmanned aerial vehicles are highly regulated — but things that you might not think of as particularly sensitive — like night vision goggles also have special reviews and levels of technology that are allowed to be exported to certain countries and not others.

The military branches also work on maintaining the balance of power and determine what technology and hardware may be sent to individual nations.

Homeland Security monitors what is sent out of the country and what is allowed in the country, Customs and Border Protection (CBP) reviews all shipments in and out of the U.S., Immigration and Customs Enforcement (ICE) monitors individuals. Customs and Border Protection is one of the only USG agencies that actually makes money. They do this by finding errors in organizations' shipping documents and fining those organizations. The CBP folks are on the ball looking for problematic shipments and documents daily. It is important that your organization work with an expert — such as a licensed Custom's Broker to assist you in exporting and importing correctly.

The Treasury Department monitors the flow of funds from the U.S. to other countries to ensure that funding for terrorist regimes and the like are not provided by U.S. entities. This is done by the Office of Foreign Assets Control (OFAC). There are many OFAC regulations that must be considered when doing business with a country that the U.S. foreign security policy is a little "shaky" on. For instance, if you are providing training to Afghan Nationals in police techniques and are paying a local national to lease a space — OFAC may have an interest in what that payment is — and who the payee is. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) monitors items such as missiles, firearms, and other explosives moving in and out of the U.S. They also monitor weapons of mass destruction — such as aircraft or helicopters — so even if your transaction does not involve a firearm or explosive — you may still have obligations to meet.

Once you have an understanding of how many agencies are involved in the decision to authorize the transfer of items such as firearms, body armor, and the provision of even basic weapons handling training, it is easy to understand how quickly a company or individual can fail to follow the regulations and put the company or themselves at risk for penalties, fines and even jail time.