Enforcement

Who You Gonna Call?

Your company may be able to gain a legitimate competitive advantage by reporting a competitor’s export control violations. But which agency should you call to turn in the competition?

DS_Cuba_911Suspected export control violations are most commonly investigated by special agents of the Federal Bureau of Investigation National Security Branch, Department of Homeland Security Homeland Security Investigations Directorate, Defense Department’s Defense Criminal Investigative Service, and agents and employees of Departments of State, Commerce, and Treasury who administer U.S. export controls.  Many other agencies also have export control enforcement as part of their mission, including the U.S. Coast Guard, U.S. Postal Service, agency offices of the Inspector General, the Defense Security Service, and the Defense Intelligence Agency.

There are also a variety of programs and task forces focused on preventing export control violations, such as the President’s Proliferation Security Initiative and the National Counter-Proliferation Initiative.  Others have much more colorful names, like the “Visa Mantis” program, “Operation Tech Defense,” “Program Global Shield,” “Project Shield America” (formerly known as “Project Gemini”), “Project Guardian,” “Blue Lantern,” “Golden Sentry,” “Sentinel,” and the FBI’s College and University Security Effort (a/k/a “CAUSE”).

The Department of Justice has also established the National Export Enforcement Initiative, chaired by the National Export Control Coordinator (a/k/a, the “Export Czar”), and district offices have set up their own export control-centric task forces, like the Central District of California’s Export and Anti-proliferation Global Law Enforcement Task Force (a/k/a the “EAGLE Task Force”).

Not surprisingly, many of these enforcement and prosecution efforts have been hampered by a lack of interagency coordination and squabbles over jurisdiction.  To address this problem, agencies pursue a variety of programs to coordinate enforcement and prosecution efforts.  These have included the DHS Exodus Command Center to coordinate export control intelligence information, and the National Export Enforcement Coordination Network to coordinate export control investigations by DHS components.

On November 9, 2010, as part of the President’s Export Control Reform Initiative (“ECR”), President Obama issued Executive Order 13558, which created the Export Enforcement Coordination Center (“E2C2”). [1]

The E2C2, managed by DHS, replaces the National Export Enforcement Coordination Network.  Although touted by the Administration as one of the “four singularities” promised by ECR, the need for the E2C2 obviously underscores the lack singularity in the U.S. Government export control enforcement community because the need to deconflict day-to-day functions of redundant export control enforcement resources is the very reason why the E2C2 was created. [2]

The E2C2 was needed and is apparently achieving its mission.  It officially opened for business two years ago and is reportedly making great strides to deconflict overlapping agency efforts.  It also benefits industry by providing a single export enforcement coordination point.  So if you want to report an export control violation by a competitor, you can do so through the E2C2 online tip form [3] or call the E2C2 hotline at (866) 347-2423 (for calls from inside the U.S., Mexico and Canada) or (802) 872-6199 (for calls from other countries).

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[FN 1] Executive Order 13558, “Export Enforcement Coordination Center,” November 9, 2010.

[FN 2] Ibid. at Sec. 3 (“The Center shall… identify and resolve conflicts that have not been otherwise resolved in criminal and administrative investigations and actions involving violations of U.S. export control laws”); N.B. Creation of the E2C2 was also accompanied by ECR’s creation of the new Information Triage Unit (“ITU”) inside Commerce, which now serves as another source of export control intelligence information.

[FN 3] http://www.ice.gov/exec/forms/hsi-tips/tips.asp

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* The above is not intended as an exhaustive list of restrictions that may apply to a particular transaction nor advice for a specific transaction because the specifics of an individual case may implicate application of other U.S. laws as well as foreign laws that carry added or different requirements.  In addition, U.S. export control and sanctions laws are frequently subject to change.  Such changes can affect the continued validity of the information above, which is based on U.S. law existing as of March 4, 2014. For these reasons, assistance from a qualified attorney competent to advise on such matters is highly recommended.

Matthew A. Goldstein is an International Trade Attorney in Washington D.C. licensed to practice in the District of Columbia.  He can be reached at (202) 550-0040 and Matthew@GoldsteinPLLC.com.