Pasted in below is a post I put up on B&B about 2 1/2 years ago in response to a couple of guys there who had stated: Guy 1) "I have occasionally found U.S. companies refusing to ship outside the U.S. for one more or less credible reason or another. Over time, I have come to believe that in many cases it is just a thinly disguised excuse for not getting involved with international (credit card or PayPal) billing or shipping." Guy 2) "Sounds like an excuse not a law. Vote with your dollars and go elsewhere."
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I have a small, family-owned and operated business making shaving brushes. We do not export our brushes outside the US because US law makes export of small orders prohibitively time-consuming and expensive. That's a fact, not an opinion.
When we were in a position to make our brushes available to ex-US customers based on a cooperative relationship with Lee Sabini in England, about 25% of our sales were to customers outside the US. It hardly serves the interest of US artisan-makers to forego ex-US sales, especially when makers from every other country in the world can ship brushes to individual buyers in the US with no obstacles given standing enforcement policies. (Buyers in the US are responsible for compliance, not sellers exporting into the US. And private buyers of brushes for personal use are, at least as a practical matter, exempt from enforcement). Why would anyone rather make excuses than sell brushes?
U.S. Federal Law provides that any person or entity engaged in either commercial import and/or export of wildlife or a wildlife product (which a shaving brush containing badger hair qualifies as) must 1) have a permit issued by the US Fish and Wildlife Service (FWS) and 2) comply with all applicable inspection, reporting, and record-keeping laws and regulations.
I've been given to understand by a law enforcement officer of the FWS that individuals who fail to declare commercial import or export of wildlife products may be subject to penalties of up to $60,000 per violation. That's probably not a likely result in the context under discussion; the law as it applies to import/export of badger-hair shaving brushes is largely observed in the breach. But the risk is still there. And then there's the risk of having our license revoked, which would would be ruinous.
The biggest problem here isn't declaration (of an import or export) per se; it's that declaration triggers inspection, which carries a fee of $93 (or thereabouts) per shipped container. That’s not such a big deal when the $93 is being spread across 100 or 200 brushes. But it's a deal killer as applied to a single brush.
Someone with a business interest and effective political connections managed to bring this situation to the attention of the FWS about six years ago. I think it was a company in Minnesota that produces deer-skin moccasins (I'd guess Minnetonka). On October 26, 2012, the FWS published an interim rule providing an exemption from the inspection fee for businesses meeting certain criteria. FWS said the rulemaking was based on a recognition that its regular inspection fee schedule (adopted in 2009) may have placed an undue economic burden on businesses that exclusively trade in small volumes of low-value, non-Federally protected wildlife parts and products.
Since publication of the interim rule, businesses have been able to request participation in the low-risk user-fee exemption program. To qualify for the program, a business and all of its wildlife import and export shipments must meet the following criteria:
The wildlife does neither requires a permit or certificate under 50 CFR Parts 15, 17, 18, 20, 21, 22, or 23 nor is listed as injurious under 50 CFR Part 16;
The wildlife is not live;
Each shipment contains 25 or fewer wildlife parts or products;
Each shipment contains wildlife parts or products valued at $5,000 or less;
The business has not been assessed a civil penalty, issued a notice of violation, or convicted of any misdemeanor or felony violation for any wildlife import/export violation; and
The business has had no more than 2 shipments that were refused clearance in the 5 years prior to the submission of the request to participate.
The Low Risk Fee Exemption Program was actually a grope in the right direction. However, it doesn't reflect a studied understanding of how regulations that over-reach legitimate policy objectives can adversely affect entrepreneurial efforts to compete on the international stage, which is brutal enough without being caught in the cross-hairs of friendly fire.
My little LLC holds the required FWS import/export permit. It does not, however, qualify for the low-risk fee exemption program by reason of the fact we frequently import shipments containing more than 25 badger-hair knots. Even if we could qualify for the exemption, which some smaller makers might be able to do, we'd still have to fulfill the reporting requirements, and that’s a time-consuming task for the sake a single brush sale. For example, to complete the report form the exporter needs to identify in advance the US port through which the shipment will be processed by US Customs. There may be a simple way to obtain that information in the case of a shipment to be handled by the USPS, but I haven’t found it yet. FedEx and USP would be much easier to use in that regard, but the expense of shipping a brush from the U.S. using either of those carriers can be ridiculous.
I'm in business with my wife and my son. We've invested a lot of time, money, and effort in making the best shaving brushes we possibly can. Competition is fierce. Chinese makers export brushes into the US at prices lower than those we pay for knots. Copies of our original designs (e.g. the Lotus) are commissioned to be made in Europe for the given reason that our brushes "are notoriously difficult to obtain." Knock-offs by the same European maker are commissioned by buyers in the US and praised for being "inspired dead ringers." Again, what possible reason would I, or any other US maker, have to fabricate excuses in order to avoid selling our brushes to customers outside the US? Some of us are simply not willing to run the risks, as absurd as they are.
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Down the same thread another guy posted: "Not to stir the hornet's nest, but I just received two badger knot from the US with no extra charges. One was from Shave Forge and the other from Grizzly Bay, both off Esty. The weird thing is that Grizzly Bay has there own website where it says they can't ship badger hair knots internationally. My question now, is there something with Esty or eBay that allows a small business owner or hobbyist to ship internationally?"
I replied as follows:
The threshold question is whether or not an instance of shipping a badger-hair brush to a non-military (i.e., non-US) address outside the US would constitute "commercial export". I've been told by a US F&WS enforcement officer that if there is consideration paid in exchange for the brush, then there has been a commercial transaction.
We've had many brushes purchased by buyers outside the US who made forwarding arrangements. As long as we're shipping to a US address and the forwarder isn't acting as our agent, then I don't worry. That said, we had a brush returned to us just last week by a forwarder engaged on behalf of a customer in Sweden. Someone opened the package (why I do not know), saw "Select Badger", and that was all it took.
Other than the fee exemption program described in my earlier post to this thread, there are no special rules for Etsy, small business owners, or hobbyists. Either there is a commercial transaction fulfillment of which involves export, or there isn't. If there is, then filing of the special declaration is required (along with prescribed package markings), and the shipment is subject to inspection.
Your experience stands as an example of the fact this particular law is overwhelmingly observed in the breach.
