“Oops. We Shipped the Wrong Product. Now What?”
Mistakes happen. Although one may try to minimize the chance of an error, human nature, miscommunication and plain ignorance can result in shipping or receiving the wrong product. In the event that the wrong product is exported (or imported), what are the available options?
Wrong Product Exported from the United States
Exporting from the United States generally (but not always) requires an export license from the U.S. State Department or the U.S. Commerce Department. When errors are made on an export, the first questions to ask are what regulatory agency has jurisdiction and whether a violation occurred. In rare cases, a mistake may not be an export violation.
Example 1: Export of 12-gauge shotgun shells where an export license is not required. Typically shotgun shells require a Commerce Department license. In this case, the export of shotgun shells does not require an export license. Shipped the wrong product? If the error was the wrong type or load of 12-gauge shotgun shells, there may be no violation. The exporter would want to examine the documents filed with U.S. Customs to make sure that the documents were correct and accurate. Since there was no export license required, shipping the wrong product may not be a big deal.
Example 2: Export of 12-gauge shotgun shells where an export license is required. In this case, details matter. Since an export license was required, the first assessment should be to determine what was supposed to be shipped and what was actually shipped. Potential questions may include a determination of what was shipped, what was noted on the pack list and what was noted within the filing with U.S. Customs. Is the cargo still in transit? Can it be re-routed and returned? If the cargo is still in transit, it may be possible to intercept the shipment and have it returned.
If the cargo has already arrived at the destination, did foreign Customs get involved and intercept the cargo as a potential import violation? As one may imagine, every situation will be different based upon the facts and circumstances of the situation. One common theme to all Commerce export violations is self-report. Upon discovering that an export violation has occurred, one should work quickly to provide notice to the U.S. Commerce Department. One needs not know all of the details, but the sooner notice is provided, the better. In general terms, the Commerce Department is much more lenient if the exporter self-reports a known violation. Penalties are generally much greater if Commerce discovers and investigates the export violation.
Example 3: Export of the wrong ITAR-regulated item. In the small arms sphere, the International Trade in Arms Regulations (ITAR) currently regulates the export of centerfire firearms, centerfire ammunition, suppressors and NFA firearms. Similar to a Commerce license violation, every situation will be different based upon the facts and circumstances of the situation. Like a Commerce violation, the exporter should file a Voluntary Disclosure as soon as possible, with the known facts and circumstances. The disclosure need not state all of the facts; the initial filing may be amended and additional facts may be added upon later investigation and discovery.
Return of a Wrongly Shipped Item
Depending upon the situation, it may be possible to return the shipment without too much additional paperwork. The degree of paperwork and difficulty in returning the product will depend upon whether the shipment was intercepted prior to delivery, what was noted on the export filing with U.S. Customs and where the item was manufactured. In the easiest of cases, it may be possible to return the goods without an import permit under a “U.S. Goods returning” exemption.
Receipt of the Wrong Imported Item
U.S. importers could have a little harder time if the wrong product is imported into the U.S. Again, details matter. Importers generally file an ATF Form 6, Application and Permit for Importation of Firearms, Ammunition and Implements of War, in order to import regulated firearm parts into the U.S. In the event that the Form 6 is not fully consumed, the foreign seller may be able to make a second shipment to correct the delivery of the wrong item. If the Form 6 is fully consumed by the shipment with the wrong item, the importer may need to re-apply for a new import permit, adding additional time and expense to the process.
Return of the wrong product may (or may not) require an export license from Commerce or State, depending upon the type of product imported. As noted above, shotguns and shotgun parts do not always need an export permit from the Commerce Department. Parts for centerfire firearms (at the time of drafting this article) require a U.S. State Department export license. Export licenses generally take a minimum of 30 days to be reviewed by the U.S. State Department, making timely return of the wrong parts to the seller difficult.
The Form 6A has a notation that can be made in the importer certification section, and any discrepancies, if noted before filing the Form 6A, should be noted there as well.
Export reform for the export of USML categories I, II and III is ongoing and should take effect prior to the end of 2019. When the new regulations take place, it is expected that the U.S. Commerce Department will assume export jurisdiction of most civilian (non-NFA) firearms. It is entirely possible that the export of firearms and firearm parts will get much easier in the future, depending upon how export reform is implemented. Until then, try to keep the errors and mistakes to a minimum.
Jason Wong is a Washington-based lawyer who focuses on regulatory matters involving import and export of small arms. The preceding article is for informational and educational purposes only. It is not intended to be, and shall not be, relied upon as legal advice. Import and export issues can be complex, and the consultation with qualified professional advisers is strongly recommended.