Over the past month, we’ve been inundated with calls and emails from people trying to export defense items to Ukraine. Mostly firearms, ammunition and body armor. The majority of these questions seem to come from former U.S. military personnel who are travelling to that area of the world to lend their expertise and help. It typically goes something like this:
Caller: “I’m travelling overseas, and I want to bring some of my personal hunting gear with me. How can I do this legally?”
Me: “Is it ITAR controlled?”
Me: “Where are you going?”
Caller: “To Poland.”
Me: “Are you really going to Ukraine?”
Caller: “I’d rather not say.”
And so it goes. Ultimately, I must break the bad news that they can’t take the gear with them. Here’s the thing. I admire the courage and sacrifice these people demonstrate. It shows incredible bravery. Everyone knows that Ukraine is being invaded by a world superpower. The people of that nation are fighting back, they’re suffering, and I wish there was more we could all do to help. But the United States has specific laws and regulations controlling the export of defense articles. And unfortunately, those laws don’t necessarily change in time with world events.
A couple of weeks ago, one person defiantly told me on the phone that he’s “sent a dozen guys over there and nobody is giving them any trouble.” I’m not going to dispute his version of the truth, but this is the age-old argument I like to call Speed Limit Logic. Simply put, if I’m driving down the highway, and everyone else is speeding, then why can’t I? If a police officer pulls me over for speeding, can’t I just explain that 12 other people were doing it, too? How will that turn out? Are you willing to take that risk? Not to mention, the regulations we’re talking about carry fines and penalties that are way higher than your average speeding ticket.
Someone else asked me: “What are the chances Customs will actually open my bag and look at what I’m carrying?” I don’t know. What are the chances you’ll get clocked going 10 miles over the limit, while the driver next to you blitzes by at 15? Compliance professionals help people with, well … compliance. That also means risk avoidance. Military professionals are, by nature, risk takers. I get it. However, the best way to help Ukraine is to do so compliantly to avoid the risk that your well-intentioned assistance doesn’t end up in the wrong hands.
Exports and Ukraine: What you can and can’t
So much has happened in such a short amount of time, that it’s a complicated endeavor to contemplate any transaction with Ukraine right now. Here are just some of the major considerations at play:
- There are certain “covered areas” of Ukraine (the Donestk and Luhansk regions) that are under severe sanctions by the United States and other allied countries. How can you be sure that your export doesn’t end up there? What assurances – if any – can you provide to the U.S. Government that they won’t?
- In most cases, there are no exceptions/exemptions in the EAR/ITAR that would allow for the rapid shipment of defense articles or other munitions to Ukraine.
- Applying for and obtaining an export license from the government will take time. Agencies like BIS, DDTC and OFAC will be giving extra scrutiny to any transaction in this region of the world and licenses that are granted will likely come with specific conditions and provisos.
So where does that leave us? Recognize that all items covered by the United States Munitions List (USML) and most military-related/sensitive items on the Commerce Control List (CCL) are going to require a license for export to Ukraine. Those license applications will be looked at very closely by the various governmental agencies. You should be prepared to supply plenty of information, including specific details on end-user/end-use. If your license is approved, you must read all conditions and provisos very closely and be certain you can adhere to them. Keep accurate records of your shipment and make sure that U.S. Customs and Border Patrol (CBP) has the license accurately recorded in ACE.
The “who” are you exporting to is also an important piece of information. We have seen licenses where the End User is the Ministry of Defense in Ukraine. In those instances where the transaction is bona fide – a purchase order has been issued, etc., we have seen BIS approve licenses … and pretty quickly.
This does not mean that all trade with Ukraine has ceased. For example:
- We have seen requests from NGOs for providing humanitarian aid to Ukraine for things like food, medicine and essentials.
- The U.S. Government continues to provide aid directly to Ukraine. So far during this administration, President Biden has authorized $2 billion in aid. Earlier this month, the White House approved $800 million in security assistance, which included everything from Stinger anti-aircraft systems and UAVs to 5,000 rifles, 25,000 sets of body armor and 20 million rounds of ammunition.
The situation in Ukraine is fluid and changing daily. Many people want to help, but we cannot do so at the risk of violating U.S. export laws and regulations. The best way to help is to follow the regulations that the U.S. has put into place to protect our national security and the security of other countries.
At the end of the day, no one wins if your illegal exports end up in the hands of the aggressor.
Tom Reynolds is the President of Export Solutions, a consultancy firm which specializes in helping companies with import/export compliance.