The Impact of Increased CBP Detention of Exports Since the Russian Invasion of Ukraine

CBP’s Export Procedures and Enforcement

U.S. Customs and Border Protection (CBP), a 60,000-employee agency within the U.S. Department of Homeland Security, is one of the world’s largest law enforcement organizations. Some of CBP’s “Enduring Mission Priorities” include to “Facilitate Lawful Trade,” “Facilitate Lawful Travel,” “Counter Terrorism,” and “Combat Transnational Crime.”

For all exports from the United States valued at over $2,500, or that require any type of export license, all export information is required to be filed with CBP and the Census Bureau through the Automated Export System (AES). CBP’s National Targeting Center analyzes the information to determine which cargo to select for an intensive examination.

Cargo may receive extra scrutiny by CBP at the port of export if the cargo required an export license from the Directorate of Defense Trade Controls (DDTC) of the U.S. Department of State, the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, or the Bureau of Industry and Security (BIS) of the U.S. Department of Commerce.

CBP’s Export Scrutiny Increased Since the Russian Invasion of Ukraine

Ever since the Russian invasion of Ukraine on February 24, 2022, CBP has utilized the required export data from AES to target more shipments than ever before. Shipments that are licensed for export, as well as shipments declared as “NLR” (No License Required) but that appear to describe or contain items that may require an export license, are now being stopped and examined in record numbers. Upon physical examination by CBP officers, CBP often then transfers responsibility for further action to its sister agency – Homeland Security Investigations (HSI), Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security – or to the BIS. A federal agency or the U.S. Department of Justice may take criminal, civil, or administrative action pursuant to the International Emergency Economic Powers Act, 50 USC 1701 et. seq, the Export Control Reform Act of 2018, 50 USC 4801-4852, and the Export Administration Regulations at 15 CFR Parts 730-774.

The BIS webpage on Russia and Belarus acknowledges the more stringent and widespread export controls of products attempted to be exported from the United States under its “Compliance and due diligence guidance and information” section, which states, in relevant part:

Taken together, these new controls, implemented through the issuance of amendments to the EAR, place significant restrictions on U.S. exports, reexports, and in-country transfers, and on products manufactured abroad with U.S. technology or tooling to Russia and that are subject to the EAR.

Note the emphasis on Russia, and that export controls include products manufactured overseas “with U.S. technology or tooling” as the new focus of enforcement (i.e., investigations) by special agents in the BIS Office of Export Enforcement (OEE). The role of OEE is to protect U.S. national security, foreign policy, and economic interests by investigating violations, prosecuting violators of export control laws, interdicting illegal exports, and educating parties to export transactions on how to improve export compliance practices.

Detentions Causing Export Delays

In practice, when shipments are declared for export to CBP through filing Electronic Export Information (EEI) in the AES, CBP’s National Targeting Center (NTC) identifies shipments that require more attention.

Often the follow-up is simply a document request by CBP; sometimes it results in a physical inspection and examination by CBP. But increasingly, the export shipment is referred to BIS for investigation to identify all parties involved in the transaction and verify the information submitted is accurate. The shipment is detained by CBP during the investigation, which may last days or months.

Unfortunately, all too often neither CBP nor any other federal agency advises the exporter or its designated international freight forwarder of the reason for the detention, the nature of any investigation, or the time it will take to conclude the investigation. Days, weeks, or months later, the exporter is typically advised that the shipment may be exported – then requiring a new EEI filing, booking for the transportation, etc. This delay occurs way too often, for too long, and without explanation for defense items on the U.S. Munitions List (USML) or the Commerce Control List (CCL), such as commercial aircraft parts for which the exporter either has an export license or there is no license required.

Improving the Export Law Enforcement Process

A better practice would be for the detaining federal law enforcement agency to:

1. advise the importer in writing that its shipment has been detained,
2. advise the exporter in writing that the shipment has been detained for a specific reason,
3. allow the exporter to provide information and documentation to address the concern of the federal law enforcement agency, and
4. provide regular updates to the exporter regarding the export verification inquiry.

Further, if any detention exceeds 30 days from the attempted date of export, the exporter should have the right to appeal to higher management of the federal law enforcement agency conducting the inquiry or investigation, with a final decision no later than 60 days from the original attempted date of export, by which date the agency must either seize the shipment or release it to the exporter for export.