Insights

A List of Lists and More Lists: Designations and What They Mean for U.S. and Non-U.S. Companies

By: Olga Torres, Managing Member
Date: 06/23/2018

The U.S. government maintains a variety of lists of sanctioned or denied parties—including entities, individuals, aircraft, and vessels—with whom companies and individuals are prohibited or restricted from dealing. These lists are assembled for different reasons and under differing authorities. That is, what might get an entity onto a list and how that entity might work to get off the list depends on the authorities and the national security purposes underlying the designation.

What Corporate Lawyers and Businesses Should Know About Customs Compliance

By: Derrick Kyle, Associate
Date: 06/23/2018

Since the Trade Facilitation and Trade Enforcement Act of 2015 (“TFTEA”) was signed into law in February 2016, U.S. Customs and Border Protection (“CBP”) has increased enforcement of U.S. import laws and regulations. Increased enforcement and associated risks should drive an increased focus by importers on compliance with CBP regulations. However, there remains a knowledge gap among some importing companies and non-trade attorneys related to a few of the basics of import regulations. In this regard, businesses and corporate attorneys should familiarize themselves with the issues below in order to navigate the increasingly risky waters of customs compliance.

Mergers & Acquisitions: Successor Liability and Trade Law

By: Olga Torres, Managing Member & Jonathan Creek, Associate
Date: 06/23/2018

Past compliance with the full range of international trade, export controls, and economic sanctions laws and regulations should be a critical element of due diligence in mergers and acquisitions. Unfortunately, trade compliance is often overlooked.

L’accord sur le nucléaire iranien (JCPOA) : l’impact de la sortie des États-Unis sur les entreprises européennes

By: Ines Kouevi, Summer Intern. Contributors: Managing Member, Olga Torres, and Senior Counsel, Andrea Fraser-Reid
Date: 06/23/2018

Suite aux suspicions relatives à l’éventuelle création d’une arme nucléaire par l’Iran, la communauté internationale et plus précisément les pays du P+5 (les Etats-Unis, la Russie, la Chine, la France, le Royaume Uni, l’Allemagne), l’Union Européenne et l’Iran ont conclu un accord en 2015 connu sous le nom de Joint Comprehensive Plan of Action (JCPOA). Le 8 mai 2018, le président Trump a annoncé sa décision de cesser la participation des États-Unis au plan d'action global commun (JCPOA), et de commencer à réimposer les sanctions nucléaires américaines qui ont été levées pour effectuer l'allégement mentionné dans le JCPOA.

The STA License Exception by the Numbers

By: Olga Torres, Managing Member
Date: 04/02/2018

Section 22 CFR §740.20 of the Export Administration Regulations (“EAR”) provides for the Strategic Trade Authorization (“STA”) license exception. Between July 2011 and December 2016, 849 companies used license exception STA. During the same time period, the Bureau of Industry and Security (“BIS”) conducted 296 STA audits. This means that over 30% of STA users were subject to government review. This article examines STA use and audits by BIS.

Give CF 28s the Proper Respect

By: By Olga Torres, Managing Member & Derrick Kyle, Associate
Date: 04/02/2018

From time to time importers may receive from U.S. Customs and Border Protection (“CBP” or “Customs”) a CBP Form 28 (“CF 28”) Request for Information. The issuance of a CF 28 is a standard procedure used by Customs to gain more information about entered merchandise. Totally harmless, right? Not necessarily. As discussed below, it is important for importers, and customs brokers responding on behalf of importers, to take the issuance and response to a CF 28 seriously.

Non-U.S. Companies Beware: U.S. Export Laws May Apply to You

By: By Olga Torres, Managing Member & Derrick Kyle, Associate & Jonathan Creek, Associate
Date: 04/02/2018

Non-U.S. companies involved in the reexporting of U.S. goods or technology should familiarize themselves with the applicable U.S. export laws, regardless of where they are located. This is because the U.S. export and economic sanctions laws have wide ranging extraterritorial reach. 

Tariff Updates: New Exemptions, Deals Made to Avoid Tariffs, and New China Tariffs Incoming

By: By Jonathan Creek, Associate
Date: 04/02/2018

This article serves as an update on the most recent tariff related developments.

2018 Trends for CFIUS Reviews

By: Olga Torres, Managing Member, Jonathan Creek, Associate
Date: 02/20/2018

The Committee on Foreign Investment in the United States (“CFIUS”) is an interagency body which has the authority to assess the national security implications of transactions that could result in control of U.S. businesses by a foreign person. The CFIUS is chaired by the U.S. Secretary of Treasury and includes representatives from 16 U.S. departments and agencies. Over the last thirty years, the CFIUS has advised the president concerning foreign investment, particularly with respect to transactions that, for one reason or another, the CFIUS believes the president should review in the interest of national security. Under the CFIUS’s guidance, U.S. presidents have only blocked a total of five transactions, two of which have happened in the last six months under President Trump. This article provides a brief summary regarding recent cases and proposed legislation that will impact foreign investment in the United States.

Should I File a Customs Prior Disclosure?

By: Olga Torres, Managing Member, Derrick Kyle, Associate
Date: 01/22/2018

Many importers have experienced, at one time or another, that horrible, stomach-turning feeling that comes with the realization that merchandise they have been importing has been entered under the wrong HTS code or with the incorrect value. These and similar errors constitute violations of 19 U.S.C. § 1592, and upon such discovery, the importer must ask, “Should I submit a Prior Disclosure to U.S. Customs and Border Protection (“CBP”)?” The answer to that question will depend on a variety of factors, which will be discussed in this article. 

Foreign Companies Must be Mindful of the Extraterritorial Reach in the Newest U.S. Sanctions Law Developments

By: Olga Torres, Managing Member
Date: 01/22/2018

Pursuant to Section 231(a) of the Countering America’s Adversaries Through Sanctions Act (“CAATSA” or “the Act”),[1]  beginning January 29, 2018, President Trump is required to impose five or more of the Act’s laundry list of sanctions, found in Section 235, on persons that the President has determined to have knowingly engaged in a “significant transaction” with a person that is part of, or operating for or on behalf of, the defense or intelligence sectors of the Russian government. This article reviews the extraterritorial impact of the Act on non-U.S. persons, and provides some guidance regarding how to best prepare for these new developments.

So Congress allowed GSP to expire, what next?

By: Derrick Kyle, Associate
Date: 01/22/2018

On December 31, 2017 the Generalized System of Preferences (“GSP”) trade program expired after Congress failed to reauthorize the program.

So You Missed the December 31, 2017 NIST 800-171 Implementation Deadline?

By: Olga Torres, Managing Member and Jonathan Creek, Associate
Date: 01/22/2018

The deadline for full compliance with NIST 800-171 was December 31, 2017. Originally it was believed that, in order to be fully compliant with NIST 800-171, defense contractors would be required to have implemented all 110 of the security requirements by December 31, 2017. However, subsequent guidance from the Department of Defense (“DoD”) shows this is not necessarily the case.

Late EEI Filing: Is It Too Late To Mitigate?

By: Derrick Kyle, Associate and Jordan Jensen, Law Clerk
Date: 09/22/2017

In 2009, the U.S. Customs and Border Protection (“CBP”) published guidelines that govern the enforcement and mitigation of civil penalties for companies and other entities that fail to comply with the Foreign Trade Regulations (“FTR”) in 15 C.F.R. § 30.[1]. While Section 30 includes a list of violations that trigger civil penalties, it also lists mitigating factors for violations.

Key Takeaways from CBPs First Final Determination of Evasion under EAPA

By: Olga Torres, Managing Member
Date: 09/22/2017

On August 14, 2017, U.S. Customs and Border Protection (“CBP”) issued its first notification of final determination of antidumping duties (“ADD”) evasion pursuant to the Enforce and Protect Act (“EAPA”).

Is the U.S.-Korea Trade Deal Headed for Trouble?

By: Jordan Jensen, Law Clerk
Date: 09/22/2017

Despite the perceived success of KORUS, under which exports of U.S. goods and services to South Korea were estimated at $63.8 billion in 2016,[1] on the morning of September 1, 2017, President Donald Trump reportedly informed his senior officials of his intent to withdraw from the agreement.[2] Although this announcement may be unsurprising to those following the administration’s renegotiation of NAFTA, the news sparked some controversy across industries that rely heavily on South Korean markets, such as the agricultural industry.

Whatcha Gonna Do When They Come For You? Export Control Agency Visits, Part 2

By: Olga Torres, Managing Member and Derrick Kyle, Associate
Date: 09/22/2017

This article is the second part of a two-part series. In the first article, we introduced the types of company visits conducted by the two major U.S. export agencies,[1] and discussed potential outcomes and consequences of these visits. In this second article, we discuss what to expect during a visit from the agencies and best practices to prepare for them.  The first article can be accessed here.

U.S. Economic Sanctions: A 3/4-Year Review

By: Matt Fogarty, Consulting Attorney
Date: 09/22/2017

Aside from a modest rollback regarding the Obama Administration’s effort to allow Americans to travel to Cuba, a number of enforcement cases relating to Iran, some additional designations with respect to Syria, and sanctions-enabling legislation relating to Russia, much of the recent news in economic sanctions has been dominated by two countries: North Korea and Venezuela.

Uh oh. So, you think you may have an export problem

By: Andrea Fraser, Senior Counsel
Date: 07/07/2017

Perhaps the information came from a colleague or a customer or an anonymous tip left on your company’s “tip line.”  Or it could have been a comment made during a presentation at a professional meeting.  Something caught your attention and triggered the realization that you may have a U.S. export controls violation.  Whether or not you have experienced that sinking feeling, prudent compliance requires that you be prepared to take appropriate action at the first sign of trouble.  

Whatcha Gonna Do When They Come For You? Export Control Agency Visits

By: Olga Torres, Managing Member and Derrick Kyle, Associate
Date: 07/05/2017

Many exporters are at least vaguely familiar with the “company visits” or “outreach visits” conducted by the export control agencies, but most have very little idea what these visits actually entail, how a company is selected for a visit, or the potential consequences of such a visit. Exporters, freight forwarders, non-exporting manufacturers of defense articles, and companies that share controlled technology with foreign persons, resulting in “deemed exports” should thoroughly prepare for these visits if they are ever “lucky enough” to be selected.

International Trading Services Case Reaffirms Expansion of U.S. Importer Liability

By: Derrick Kyle, Associate and Jordan Jensen, Legal Extern
Date: 07/05/2017

Two recent U.S. court decisions will increase corporate officers’ and compliance professionals’ risks for personal liability for Customs law violations. Specifically, the decisions relate to fraudulent, grossly negligent, or negligent activity under the Customs penalty statute, 19 U.S.C. § 1592.  

Recent Updates to the U.S. Cuban Sanctions

By: Olga Torres, Managing Member
Date: 07/05/2017

On June 16 2017, President Trump announced changes to the United States’ economic sanctions against Cuba. This article provides a brief synopsis of the announced changes and potential impact.

DDTC Introduces New Electronic License Reporting Requirements

By: Derrick Kyle, Associate
Date: 07/05/2017

It is easy to think of the various U.S. government agencies with trade control responsibilities as operating entirely separate from one another. Often, that can be the case. Industry professionals have learned through the process of Export Control Reform that many trade procedures are not at all synchronized amongst the respective agencies. A final rule published by the Department of State this year serves as a reminder that, in many ways, certain functions of the various trade agencies are inextricably linked, and these agencies rely on one another to perform certain tasks. 

CBPs Centers of Excellence and Expertise Update

By: Jordan Jensen, Legal Extern
Date: 07/05/2017

On June 29, 2017, in an effort to continue to transform the way U.S. Customs and Border Protection (“CBP”) approaches trade through the Centers of Excellence and Expertise (“Centers”), CBP released a new trade process document that includes new responsibilities and procedures for importers, brokers, agents, or filers.

President Appoints New Head of the Bureau of Industry and Security

By: Staff Writer
Date: 05/03/2017

On March 30, President Trump announced his intent to nominate Mira Radielovic Ricardel to the position of Under Secretary of Commerce for Export Administration.

New Requirements for Export to Hong Kong

By: Derrick Kyle, Associate
Date: 05/03/2017

On January 19, 2017, the Bureau of Industry and Security (“BIS”) published a final rule regarding new support documentation requirements with respect to exports to Hong Kong.

Trump Administration Begins Crackdown on Trade Abuses

By: Olga Torres, Managing Member and Derrick Kyle, Associate
Date: 05/03/2017

With the signing of two new executive orders, President Trump is taking the first steps in fulfilling two of his favorite campaign promises, both relating to trade: (1) no longer tolerating trade abuse that damages the American economy and (2) decreasing the national trade deficit. 

CFIUS, Foreign Investment and Trade Relations in the New Administration

By: Andrea Fraser-Reid, Senior Counsel
Date: 05/03/2017

The recent presidential campaign was notable for the debate concerning whether interaction with foreign entities benefitted the U.S. While trade deficits and offshoring of U.S. jobs grabbed headlines, there has been growing attention to the acquisition of U.S. companies by foreign entities. 

From A to ZTE: A Review of Lessons Learned from the ZTE Case

By: Olga Torres, Managing Member
Date: 05/03/2017

On March 7, 2017, the U.S. Department of Justice (“DOJ”), the Treasury Department's Office of Foreign Assets Control (“OFAC”), and the Commerce Department's Bureau of Industry and Security (“BIS”) together levied the largest ever export and sanctions related penalty against Chinese telecommunications firm ZTE Corporation (“ZTE”). ZTE agreed to the combined $1.19 billion fine to settle a number of alleged violations of U.S. sanctions targeting Iran. 

Key Differences Remain in the Export Regulation Regimes, Spurring Cybersecurity Reviews

By: Olga Torres, Managing Member and Derrick Kyle, Associate
Date: 02/17/2017

Over the past decade, the availability of cloud computing services has grown exponentially to the point where cloud access is now viewed almost as a public utility. Cloud Service Providers (“CSPs”) may operate internationally, and CSP servers are often located in countries other than that of the user, leading to export control concerns. 

Import Violations: What You Need to Know about 19 USC 1592

By: Luis Torres, Law Clerk
Date: 02/17/2017

This article provides an overview of Customs’ statutory penalties for import violations.

Freight Forwarding as Brokering Activity

By: Derrick Kyle, Associate
Date: 02/17/2017

This article briefly discusses the types of activities that trigger the brokering registration requirement under the International Traffic in Arms Regulations for freight forwarders. 

Are My Products Subject to Anti-Dumping/Countervailing Duties?

By: Olga Torres, Managing Member
Date: 02/17/2017

Many importers will discover at some point that products they import may be subject to anti-dumping duties (“ADD”) or countervailing duties (“CVD”). With the new Trump administration appearing to take a very aggressive tone toward unfair trade practices by foreign competitors, particularly China, there may soon be an increase in ADD/CVD orders and enforcement by U.S. Customs and Border Protection (“Customs” or “CBP”). This article seeks to explain the options an importer has if it discovers that any of its products are potentially subject to ADD/CVD.

Outlook for Export Controls and Economic Sanctions Under the Trump Administration

By: Olga Torres, Managing Member and Matt Fogarty, Of Counsel
Date: 02/17/2017

The first weeks of the Trump Administration have been eventful, but there has been little action in the area of export controls and economic sanctions. In this regard, there's no clear consensus just yet as to whether and how significantly President Trump plans to deviate from the course set over the last eight years of the Obama Administration.

Could Mexico Beat the U.S. to NAFTA Withdrawal?

By: Olga Torres and Derrick Kyle
Date: 02/02/2017

This article discusses the potential implications of NAFTA's renegotiation or withdrawal.

My Customs Broker Handles That

By: Don Luther
Date: 11/09/2016

The United States Ends Sanctions on Burma (Myanmar)

By: Andrea Fraser-Reid
Date: 11/09/2016

2016 Exports Year-End Review

By: Olga Torres and Derrick Kyle
Date: 11/09/2016

President Obama Continues to Loosen Cuba Sanctions

By: Andrea Fraser-Reid
Date: 11/09/2016

Deemed Exports and Reexports under the Harmonization Rules

By: Andrea Fraser-Reid
Date: 07/27/2016

Export Compliance Programs

By: Olga Torres and Luis Torres
Date: 07/27/2016

The Magna Brexit? Potential Implications on Trade & Export Compliance

By: Olga Torres and Sandy Aziz
Date: 07/26/2016

Customs Audits 101

By: Olga Torres
Date: 07/26/2016

The Customs Reauthorization Bill: The Most Immediate and Practical Impacts

By: Olga Torres, Managing Member and Sandy Aziz, Attorney
Date: 06/16/2016

Trade Through a Single Window

By: Luis Torres, Law Clerk
Date: 06/16/2016

Fighting Fraud and Corruption: The DOJs New FCPA Pilot Program

By: Olga Torres, Managing Member
Date: 06/16/2016

A Step-By-Step Overview of Commodity Jurisdiction

By: Olga Torres, Managing Member and Matt Fogarty, Attorney
Date: 06/16/2016

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