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Scopelitis International News - June 2019

by Braden K. Core, Jacob R. Fisher, John  N. Hove, Nathaniel G. Saylor

June 20, 2019

Scopelitis International News – June 2019

To help clients affected by the latest developments in international transportation, the Scopelitis International Transportation & Logistics Law team compiles this monthly newsletter highlighting industry trends and updates. For  more information contact Nathaniel Saylor, Braden Core, John Hove, or Jake Fisher. For any additional information on our Firm, please follow Scopelitis on social media.

ACAS Enforcement Phase Has Begun

The Air Cargo Advance Screening (ACAS) Program entered its enforcement phase on June 12, 2019. Since its effective date a year ago, the U.S. Customs Border Protection (CBP) had been flexible in enforcing the ACAS Program, which requires security filings to be submitted to CBP prior to loading cargo aboard aircraft bound for the United States. Enforcement may result in delays on inbound air cargo due to carrier non-compliance or issuance of Do Not Load orders.  As a reminder:

  • ACAS compliance is mandatory only for inbound air carriers
  • U.S. domiciled indirect air carriers are not eligible for the program
  • Participation by foreign domiciled indirect air carriers is permitted, but optional.

Participation requires foreign domiciled indirect air carriers to be responsible for the accuracy of filings, as well as for taking necessary action to address all referrals and Do Not Load instructions sent by CBP. Foreign domiciled indirect air carriers interested in participating in ACAS must:

  1. Establish communication protocols required by CBP.
  2. Maintain a bond to secure the reporting obligations (including the possible $5,000 penalty per filing).
  3. Maintain reporting capabilities, including all originator codes.
  4. Provide 24/7 contact information to carry out instruction from CBP related to shipments. 

Anti-Corruption News

A few developments in the realm of anti-corruption:

  • Lisa Osofsky, the new Director of the UK’s Serious Fraud Office, brings her considerable enforcement experience to bear in the prosecution of bribery cases. She is a dual UK./US citizen, a Harvard educated lawyer, a former DOJ and FBI lawyer, a former Assistant U.S. Attorney, and a UK barrister. She also handled compliance and regulatory matters in the private sector.  Her style is expected to be aggressive, particularly with respect to the extra-territorial application of the UK Bribery Act and cooperation with other government enforcement agencies.  In January, Transparency International released its annual Corruption Perceptions Index for 2018.  Despite well-publicized enforcement initiatives, China’s ranking declined significantly alerting compliance officers to continue maintaining a high level of vigilance in that region.
  • In April, the U.S. Department of Justice issued its updated Evaluation of Corporate Compliance Programs. The document provides very practical and useful guidance on the implementation of effective compliance programs.  All compliance officers are encouraged to read it and consider how their own programs would be rated.
  • In May, there were significant developments in the first major bribery prosecution undertaken by the current Mexican administration, including the issuance of an arrest warrant for the former Chief Executive of Pemex.  Some commentators note that this effort may indicate that strong anti-corruption enforcement is commencing in Mexico. Compliance officers should focus their attention on associated potential risks.

Are You in Compliance with U.S. Sanctions?

Now more than ever, it is critically important that U.S. forwarders, as well as their foreign subsidiaries, fully understand the broad sweep of U.S. sanctions programs targeting specific entities such as the Chinese technology giant, Huawei.  Reminders:

  • These sanctions apply with equal force to U.S. persons and non-U.S. persons in terms of preventing the export or re-export of U.S. origin commodities, technology, or software subject to the Export Administration Regulations (EAR).  For example, a transaction involving covered goods or services with a company on the U.S. government’s Entity List would be restricted regardless of whether facilitated by a U.S.-domiciled shipper or a foreign person. 
  • U.S. forwarders and their foreign subsidiary operations keep in mind that non-U.S. companies are not shielded from sanctions liability for commodities, technology, or software that are subject to the EAR.
  • U.S. origin goods don’t lose that status just because they are incorporated in or commingled with foreign origin goods

Foreign Document Authentication Assistance

Countries that are not signatories to The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the Apostille Convention) still use the old, cumbersome method for authenticating documents that involves starting with a local notary and progressing through a county or state official, the U.S. Secretary of State, and the foreign country’s consulate or embassy. 

However, for the 117 countries that are signatories to the Hague Convention, the process just requires getting the document notarized and obtaining an Apostille (verification certificate) from the Secretary of State (or other Notary commissioning agency) where the notary is located. Where a document has been certified by a Federal official, a Federal Apostille will need to be obtained from the U.S. Secretary of State’s office. 

Still not sure how to prove to a foreign entity or person that a U.S. commercial invoice, certificate of origin, corporate resolution, or other official document is authentic?  Want to make sure you are up to speed on the use of an Apostille?  Need to know if the process for authenticating a document needed in Tanzania is the same as it is for a document needed in Turkey?  Contact us for assistance.

 

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News from Scopelitis is intended as a report to our clients and friends on developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.
 
© Scopelitis, Garvin, Light, Hanson & Feary, P.C. 2019. All rights reserved. 
 
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