Givens & Johnston assists clients by reviewing their products and submitting commodity jurisdiction requests and classification requests to determine the appropriate regulatory jurisdiction (e.g., BIS-Commerce vs. DDTC-State) for products and to determine the proper classification (e.g., ECCN) of products. Determining the correct jurisdiction and classification is vital for companies in maintaining export control compliance.
The transfer of export controlled technology (including know how and technical data) to a foreign national within the U.S. is considered a “deemed export” and could be subject to licensing requirements depending on which country the person is a resident or citizen and the type of technology encountered. Clients seeking to employ certain nonimmigrant workers under the Form I-129, Petition for Nonimmigrant Worker, must certify that (1) they have reviewed the Export Administration regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and (2) they have determined either that an export license is not required for the foreign worker to have access to the client/petitioner’s technology or technical data, or that such a license is required.
Our firm regularly provides deemed export control opinions for clients regarding how to answer Part 6 of the Form I-129 entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” Our attorneys carefully review the EAR and ITAR, in conjunction with the foreign worker’s job description, and those items and technology that the worker will encounter during employment.
Numerous Federal Agencies maintain lists of companies, entities and persons who are prohibited from exporting goods from the United States or receiving exported goods from the United States. Trading with a party listed therein may result in stiff penalties or even the loss of export privileges. These lists include:
Givens and Johnston assists exporters in searching these lists for blocked, denied, or debarred parties. In addition, Givens and Johnston can assist in exercising due diligence regarding potentially illegal transactions and submitting license applications where necessary.
Export violations of Commerce’s EAR and State’s ITAR exposes companies and individuals both to significant civil liability, and in certain cases, criminal investigations. Civil penalties under the EAR can reach up to $250,000 per violation, and civil penalties under ITAR can reach up to $500,000 per violation.
Givens & Johnston counsels clients to reduce their risk of export violations by implementing a customized export compliance program, and also represents clients in mitigating civil penalties being sought by the government. Where an active criminal investigation is underway, or when our experience leads us to suspect one may result from the circumstances, our firm engages criminal defense co-counsel.
One of the primary entities in the creation and enforcement of sanctions and embargoes is the Office of Foreign Assets Control (OFAC). While the stringency of its sanctions varies, the most comprehensive programs involve Burma (Myanmar), Cuba, Iran, Sudan, and Syria. Similar programs may appear in response to current events, such as the Ukraine Related Sanctions targeting Russia. Other agencies tasked with implementing or enforcing embargoes and sanctions include the Department of State, Bureau of Industry and Security (BIS), and the Directorate of Defense Trade Controls (DDTC).
Each agency takes violations seriously and may impose both civil and criminal liability. In addition, the embargoes and sanctions generally apply to all U.S Persons, including citizens, permanent residents, and corporations, wherever they are located. Givens and Johnston helps companies interpret and understand the reach of these sanctions, highlighting permissible and impermissible transactions.
The BIS at the Department of Commerce may require licenses for the export of “dual use” goods, i.e., items for commercial use, but have potential military applications. Givens & Johnston assists clients with obtaining export licenses from BIS (or obtaining an exemption), depending upon the type of dual-use item and which foreign country your item is being exported.
The DDTC at the Department of State requires licensing for the export of defense articles, services, or technical data, i.e., those on the U.S. Munitions List. Givens & Johnston assists clients with obtaining and maintaining temporary/permanent export licenses for defense articles.
OFAC at the Department of the Treasury enforces economic sanctions primarily against countries and groups of individuals. Givens & Johnston counsel clients on whether it can engage in transaction under a general license or requires authorization under a specific license.
Voluntary disclosure of an export violation is an important tool in any export compliance program, especially for those looking to mitigate penalties for export violations believed to have been committed. Givens & Johnston counsels clients in determining whether a voluntary disclosure is in the best interests of the company or individual, and also represents clients in filing voluntary disclosures with the BIS, DDTC, or OFAC to obtain maximum mitigation in the event an export violation has been discovered by the company or individual.
The BIS enforces the Antiboycott laws under the Export Administration Regulations (EAR). These Antiboycott laws generally prohibit agreements to refuse to do business with Israel or blacklisted countries, but also covers other forms of discrimination based on race, religions, sex, or national origin. Companies who violate these prohibitions may be subject to civil or criminal penalties. Additionally, when a company is requested to enter into a prohibited agreement, the company has an affirmative duty to report this request to the BIS. Givens & Johnston advises companies in identifying whether a requested agreement violates these Antiboycott provisions, and also represents companies in avoiding or mitigating any penalties associated with any such violation.