Insights

CFIUS Review of Chinese Investment in the United States: The Good, the Bad, and the Ugly

By: Olga Torres, Managing Member
Date: 09/22/2020

Now more than ever Chinese investment in the United States is facing barriers stemming from the strict reviews conducted by the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”). After several high-profile cases, which our law firm has covered in previous articles and are summarized below, the general consensus is that Chinese investment will be greatly scrutinized – and in many cases completely blocked – to satisfy the U.S. government’s national security concerns.

But even in these uncertain times, we have also seen some Chinese transactions approved by CFIUS, confirming that not all Chinese investment is off limits.

Implications of the Upcoming U.S. Presidential Election on Chinese Tariffs and Other Section 301 Tariff Updates

By: Derrick Kyle
Date: 09/22/2020

If you have not noticed, 2020 is a U.S. presidential election year. If you missed that fact, you may also not realize that the United States is in the midst of a years-long trade war with China. The convergence of these two circumstances has caught the attention of the business community, particularly as relates to trade policy.

Commerce Issues Notice on "Foundational Technologies" – What You Need to Know

By: Maria Alonso, Associate
Date: 09/22/2020

The long-awaited, Advanced Notice of Proposed Rulemaking ("ANPRM") soliciting comments on the definition of, and criteria for, identifying “foundational technologies” (“the Notice) was finally issued on August 27, 2020, by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”). The deadline to submit comments is October 26, 2020.

CFIUS FINAL RULE: HOW EXPORT CONTROL REGULATIONS WILL IMPACT MANDATORY FILINGS

By: Olga Torres, Managing Member and Maria Alonso, Associate
Date: 09/15/2020

The U.S. Department of the Treasury Office of Investment Security (“Treasury”) published a final rule on September 15, 2020, significantly changing the mandatory filings administered by the Committee on Foreign Investment in the United States (“CFIUS”). 

The Clock is Ticking on TikTok, 90 Days to Divest

By: Maria Alonso, Associate
Date: 08/17/2020

Most people are familiar with the social media sensation, TikTok, a mobile device application which allows users to create and share short-form videos. It is reported that there have been over 175 million downloads of the application in the U.S. Despite its popularity, most TikTok users are oblivious to how the national security concerns raised by the current White House Administration will affect them. Not to mention many users are probably unaware and will be surprised to learn that TikTok is a Chinese application. Beijing-based, ByteDance Ltd. (ByteDance) is the parent company of TikTok.

Amazon Settles Sanctions Violations with OFAC

By: Olga Torres, Managing Member
Date: 07/17/2020

Earlier this month, e-commerce, retail, and data giant Amazon.com, Inc. ("Amazon") agreed to a settlement with the Office of Foreign Assets Control ("OFAC") for apparent violations of U.S. sanctions programs.

Department of Defense Creates Cybersecurity Certification Program

By: Derrick Kyle, Associate
Date: 07/17/2020

In order to better manage the Defense Industrial Base’s compliance with cybersecurity obligations under the Defense Federal Acquisition Regulation Supplement (“DFARS”), the Department of Defense (“DoD”) is instituting a new program that requires defense contractors and subcontractors to obtain a certification of compliance with cybersecurity requirements to be eligible for bidding on and receiving government contracts. 

Food Safety: Remote Inspections under COVID-19 and Other Key Provisions in the Foreign Supplier Verification Program

By: Olga Torres, Managing Member & Derrick Kyle, Associate & Donna Wedgeworth, Trade Advisor
Date: 07/17/2020

The COVID-19 pandemic has affected nearly all aspects of everyday life, but sometimes it is easy to forget that the U.S. Government must also adjust its operations to be able to meet regulatory requirements during the pandemic. 

The L3Harris Lesson: Why Meeting ITAR Agreements Compliance Requirements Must Be Part of Every Defense Industry Company's Compliance Program

By: Maria Alonso, Associate
Date: 07/17/2020

Agreements executed under the International Traffic in Arms Regulations (“ITAR”) serve as a licensing tool for the transfer of defense articles, technical data, manufacturing know-how, and defense services between a U.S. party and a foreign party. Fulfilling the requirements of those agreements is a critical part of ITAR compliance, as demonstrated by the recent L3Harris Technologies, Inc. (“L3Harris” or “the Company”) consent agreement with the U.S. Department of State (“State”), Directorate of Defense Trade Controls (“DDTC”).

Important Revisions to EAR’s Military End Use/User Rule Effective June 29, 2020

By: Olga Torres and Derrick Kyle
Date: 06/29/2020

On June 29, 2020, revisions to the Export Administration Regulations (“EAR”) that will impact many exporters and reexporters – particularly those doing business with the People’s Republic of China – became effective. 

CFIUS and Export Controls: A Detailed Analysis of the Proposed Mandatory Filing Changes

By: Olga Torres, Managing Member and And Maria Alonso, Associate
Date: 05/23/2020

On May 21, 2020, the U.S. Department of the Treasury (“Treasury”) published a Proposed Rule that includes two important changes impacting mandatory filings.

DDTC Provides Updated COVID-19 Measures

By: DDTC Web Notice
Date: 04/24/2020

Yesterday the Directorate of Defense Trade Controls published an update to its operations. Read this trade alert for full details.

USMCA Updates and OFAC COVID-19 Guidance

Date: 04/21/2020

This article summarizes important developments affecting international trade.

Importers Facing “Significant Financial Hardship” May Defer Duty Payments for 90 Days

Date: 04/20/2020

On April 18, 2020, President Trump issued an Executive Order providing authority to the Secretary of the Treasury, under 19 U.S.C. § 1318, to extend the deadline for payments of certain estimated duties, taxes, and fees for importers suffering significant financial hardship during the national emergency created by the COVID-19 novel coronavirus pandemic.

Conducting Effective Corporate Investigations

By: Olga Torres, Managing Member
Date: 04/05/2020

Companies often must decide whether to conduct internal investigations after receiving information that could indicate ongoing violations of export control or economic sanction laws and regulations. It is important that they take adequate steps to preserve attorney-client privilege, immediately stop ongoing violations, and ensure resources and personnel are assigned to the investigative team. Deciding whether to conduct an investigation will ultimately depend on a variety of factors, and there are a number of decisions to be made at the outset of the investigation as outlined below.

What to Know about CBP Export Seizures

By: Derrick Kyle, Associate
Date: 04/05/2020

Regular readers of our newsletter, and those familiar with U.S. import and export regulations, know that U.S. Customs and Border Protection (“CBP” or “Customs”) generally enforces the U.S. import regulations, while multiple executive government agencies administer regulations related to the export of goods.

In July 2019, CBP updated its Mitigation Guidelines (the “Guidelines”), specifically the section related to forfeiture remission for export seizures. [1]

President Trump Adds Teeth to CFIUS Bite: Chinese Company Ordered to Divest Acquisition of U.S. Hotel-Software Company

By: Olga Torres, Managing Member & Maria Alonso, Associate
Date: 04/05/2020

The U.S. Department of the Treasury finalized the new Committee on Foreign Investment in the United States (“CFIUS”) regulations, which became effective on February 13, 2020.[1]

Amongst other matters, the new regulations significantly expand CFIUS’s jurisdiction for non-controlling investments, including the review of transactions involving U.S. businesses that manage or collect “sensitive personal data” of U.S. citizens.

Recent Key OFAC Actions and Related Legal News

By: Matt Lapin, Of Counsel
Date: 04/05/2020

This article outlines OFAC’s most recent actions.

When Federal R&D Funding meets U.S. Trade Controls: Proceed with Caution

By: Donna Wedgeworth, Trade Advisor
Date: 04/05/2020

If your company is fortunate enough to receive federal R&D funding, it is important to remember that these grants do not relinquish responsibility for compliance with trade regulations.

New CFIUS Part 802 Geographic Reference Tool

Date: 03/25/2020

Pursuant to the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), the Committee on Foreign Investment in the United States (“CFIUS”) is authorized to review certain real estate transactions by foreign persons in the United States. The regulations at 31 C.F.R. part 802[1] (effective on February 13, 2020), implement CFIUS’s authority to review certain “covered real estate transactions,” involving the purchase or the lease by, or a concession to, a foreign person of certain real estate in the United States. The real estate transactions subject to review include transactions meeting certain criteria and that are in, or around, sensitive sites such as specific airports, maritime ports, and military installations. The airports and maritime ports are identified in the regulations and contained on lists published by the U.S. Department of Transportation. Furthermore, the military installations are listed at Appendix A to Part 802.

DDTC and Census COVID-19 Status of Operations

Date: 03/19/2020

Today the Directorate of Defense Trade Controls published an update to its operations.

Complying with U.S. Export Control and Immigration and Anti-Discrimination Laws

By: Olga Torres, Managing Member & Maria Alonso, Associate
Date: 01/16/2020

The intersection of immigration, anti-discrimination, and U.S. export control laws can be confusing for employers. But recent settlement agreements between the U.S. Department of Justice (“DOJ”) and multinational corporations and large international law firms, demonstrate that the DOJ will not tolerate employers discriminating against non-U.S. persons. This article will provide an overview of the intersection, and friction between, U.S. immigration, anti-discrimination, and export control laws and regulations.

***This article first appeared in the WorldECR journal in their November 2019 Issue.

U.S.-China Trade Dispute Easing: “Phase One” Deal and Other Tariff Updates

By: Derrick Kyle, Associate
Date: 01/16/2020

On December 18, 2019, the United States Trade Representative (“USTR”) officially signaled the first real respite in the ongoing trade war with China by publishing a Notice of Modification of Action  to suspend a planned 15% duty on certain products from China that was originally scheduled to take effect on December 15, 2019. This early Christmas present came after nearly two years of the USTR extending and increasing tariffs on Chinese goods pursuant to Section 301 of the Trade Act of 1974 (“Section 301”).

Proposed Regulations Set to Expand Authority of CFIUS

By: Olga Torres, Managing Member & Maria Alonso, Associate
Date: 01/16/2020

On September 17, 2019, the U.S. Department of the Treasury (“Treasury”) issued two proposed rules that would expand the jurisdiction of the Committee on Foreign Investment in the United States (“CFIUS”).[1] If enacted, these new proposed regulations could have major implications on foreign investment and real estate transactions in the United States and investors and companies must be aware of such potential impact.


[1] The proposed rules were published in the Federal Register on September 24, 2019.

***This article first appeared in the Newsletter of the International Law Section (www.ilstexas.org) of the State Bar of Texas, and is reproduced with the Section’s permission. This article was written prior to the two final regulations issued by the U.S. Department of the Treasury on January 13, 2020.

2019 BIS Enforcement Actions: Lessons for 2020 and Beyond

By: Maria Alonso, Associate
Date: 01/16/2020

In 2019, the U.S. Department of Commerce Bureau of Industry and Security (“BIS”) entered into six settlement agreements with companies (not including individuals) for export violations of the Export Administration Regulations (“EAR”).

Some of the companies were assessed civil penalties as a result of their violations, while others lost their export privileges.

Ensure Import Compliance with Spot-Check Audits of Carrier Billing Statements

By: Donna Wedgeworth, Trade Advisor
Date: 01/16/2020

Very few words evoke feelings of fear and loathing quite like the word “audit.” But Compliance professionals understand that auditing internal trade compliance processes is a necessary method of maintaining healthy trade controls and avoiding costly penalties.

Planning for 2020 Trade Under Trump

By: John Vernon, Esq. Guest Contributor
Date: 01/16/2020

Since President Trump took office in January of 2017, he has shown his desire to follow through with trade policies that were a central part of his campaign. 

New Interim Final Rule Creates End-to-End Encryption Carve-Out for ITAR Technical Data

By: Olga Torres and Derrick Kyle
Date: 12/26/2019

The Department of State Directorate of Defense Trade Controls (“DDTC”) has published an interim final rule (“the Interim Final Rule”) seeking public comments and clarifying that certain transfers of encrypted technical data are not exports, reexports, or retransfers subject to the International Traffic in Arms Regulations (“ITAR”).

Tariffs on Wine, Whisky, and Cheese Provide Extra Fright This Halloween

By: Torres Law
Date: 10/30/2019

Halloween parties are an annual tradition for many Americans. But this year Halloween may be a little spookier than usual as some popular party items could become more expensive.

There's a New Economic Sanctions Sheriff in Town: the SEC

By: Managing Member, Olga Torres & Associate, Jackson Olesky
Date: 10/11/2019

In recent years, the U.S. Securities and Exchange Commission appears to be taking a more active role in a regulatory area for which it is not traditionally associated: economic sanctions.

Lessons from the L3Harris Technologies Consent Agreement with DDTC

By: Managing Member, Olga Torres & Derrick Kyle, Associate
Date: 10/11/2019

On September 19, 2019, the U.S. Directorate of Defense Trade Controls (“DDTC”) entered into a consent agreement with L3Harris Technologies, Inc. (“L3Harris”) for alleged violations of the Arms Export Control Act (“AECA”) and the International Traffic in Arms Regulations (“ITAR”). 

CBP Announces New Rule to Combat Anti-Dumping and Countervailing Duty Infractions

By: Jackson Olesky, Associate
Date: 10/11/2019

On August 14, 2019, the U.S. Customs and Border Protection (“CBP”) issued a notice of proposed rulemaking requiring customs brokers to verify the identity of their importer clients, in particular non-resident importers.

Current rules and regulations only require customs brokers to obtain very minimal details regarding importers to which they provide services.

D.C. Circuit Weighs in on Issue of Willfulness in Prosecutions for Unlawful Exports

By: Torres Law
Date: 10/11/2019

What is the appropriate standard for determining whether a defendant has acted willfully in violation of the Arms Export Control Act (“AECA”)? On August 20, 2019, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) weighed in on this question in U.S. v. Burden

State Department Proposes New Guidelines for the Export of Surveillance Technology Aimed at Addressing Human Rights Concerns

By: Torres Law
Date: 10/11/2019

Should human rights concerns be a consideration for exporters engaged in international trade? New draft guidance proposed by the U.S. Department of State aims to provide a potential roadmap for tackling this issue.

Treasury Issues Proposed Regulations and Requests Public Comments

By: Torres Law, International Trade & National Security
Date: 09/23/2019

On September 17, 2019, the U.S. Department of the Treasury issued a press release announcing two proposed regulations that will implement provisions of the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”). The proposed regulations will be published in the Federal Register on September 24, 2019, and they will expand the jurisdiction of the Committee on Foreign Investment in the United States (“CFIUS”). Specifically, the two proposed regulations will address certain non-controlling investments and real estate investments by foreign persons. The deadline to submit comments on the proposed regulations is October 17, 2019, and pursuant to FIRRMA the regulations will take effect no later than February 13, 2020.

Biomedical Research – the Next Victim of a U.S.-China Trade War?

By: Derrick Kyle, Associate & Queena Leung, Law Clerk
Date: 07/17/2019

The trade dispute between the U.S. and China that started mid-2016 has no end in sight. As part of his presidential campaign, then-candidate Donald Trump threatened to apply tariffs on various imports from China. Now that he is President, these tariffs have come to fruition: after several failed rounds of trade negotiations with China, the “Section 301” probe into alleged Chinese intellectual property theft started in earnest early 2018. 

The current U.S.-China trade war does not appear to end with tariffs, however. Biomedical research appears to be the latest unlikely victim.

It Is Not Too Late to File an Exclusion Request from Section 301 Tariffs

By: Olga Torres, Managing Member & Derrick Kyle, Associate
Date: 07/17/2019

The USTR is still accepting exclusion requests for products subject to the trade action on $200 Billion of Chinese goods, also known as “List 3” products

Freight Forwarders and the EAR

By: Derrick Kyle, Associate & Nicole Aandahl, Senior Counsel
Date: 07/17/2019

FedEx Corporation (“FedEx”) has openly challenged the Bureau of Industry and Security’s (“BIS”) jurisdiction to enforce the EAR with respect to actions taken by freight forwarders. 

U.S. Foreign Investment Watchdog Grows Teeth: Unprecedented $1 Million Penalty May Signal New Era

By: Olga Torres, Managing Member & Maria Alonso, Associate
Date: 07/17/2019

In April 2019, CFIUS published a notice on its website that in 2018 it had issued a $1 million fine for breaches of a 2016 CFIUS mitigation agreement. 

One Down, Two to Go: Mexico Is First Country to Ratify NAFTA Replacement

By: Maria Alonso, Associate & Queena Leung, Law Clerk
Date: 07/17/2019

On June 19, 2019, Mexico became the first country to ratify the United States-Mexico-Canada Agreement (USMCA). By a vote of 114 to 4, Mexico’s Senate approved the replacement to the North America Free Trade Agreement, making Mexico the first country to ratify to the new treaty.

Tariffs on Chinese Goods Still in Flux Latest Developments on List 3 Exclusions and Pending Tariff Increase

By: Olga Torres, Managing Member & Queena Leung, Law Clerk
Date: 04/19/2019

In spite of a short-term reprieve from additional tariffs on select products, trade uncertainty under the Trump administration continues for U.S. companies that do business with China.

European Union Adopts Foreign Direct Investment Regulation

By: Nicole Breland Aandahl, Senior Counsel
Date: 04/19/2019

The Council of the European Union just made investing in the EU more complicated.

Due Process Challenges to U.S. Government Agency List Designations: Lessons from KindHearts and Deripska

By: Derrick Kyle, Associate & Maria Alonso, Associate
Date: 04/19/2019

Among the tools used by the U.S. Government to impose sanctions on both entities and individuals, few are as powerful as "U.S. Denied Party Lists."

Inclusion on a U.S. Denied Party List can have adverse consequences even if the designated parties are ultimately removed from the list, as two recent cases involving lawsuits against OFAC involving due process concerns will demonstrate.

Disclose. Promise. Just Don't Forget.

By: Olga Torres, Managing Member & Derrick Kyle, Associate
Date: 04/19/2019

In the United States, when violations of the export rules are discovered, exporters have the option to prepare and submit Voluntary Self-Disclosures to the U.S. export agencies in exchange for reduced penalties. These VSDs are formal statements containing a description of the violation and a promise to remedy the conduct that led to it.

Unfortunately, companies do not always follow through with the full implementation of the promised corrective measures, in some cases discontinuing the remedial process measures altogether. 

What Corporate Lawyers Need to Know About Changes in U.S. Foreign Investment Laws

By: Olga Torres, Managing Member & Maria Alonso, Associate
Date: 12/01/2018

This article discusses how new regulations significantly change foreign investments in U.S. businesses and the temporary Pilot Program, which addresses specific risks related to U.S. critical technologies.

This article first appeared in the Newsletter of the International Law Section (www.ilstexas.org) of the State Bar of Texas, and is reproduced with the Section’s permission.

DoD Mandatory Disclosure Requirements for Export-Controlled Transfers as “Cyber Incidents”

By: Olga Torres, Managing Member & Derrick Kyle, Associate
Date: 10/22/2018

The export control regulations are difficult enough to understand in their own right. But for companies that are also involved in defense contracting, whether as prime contractors or subcontractors, the export control regulations occasionally intersect with additional requirements of the Defense Federal Acquisition Regulations Supplement (“DFARS”), making compliance much more difficult.

The New NAFTA 2.0—The United States-Mexico-Canada Agreement (USMCA)

By: Maria Alonso, Associate & Pierfilippo Natta, Legal Intern
Date: 10/22/2018

The North American Free Trade Agreement (“NAFTA”) has been in effect since January 1, 1994, and more than two decades later, on May 18, 2017, the United States Trade Representative (“Trade Representative”), Robert Lighthizer, notified Congress of the United States' intention to renegotiate NAFTA. The United States commenced renegotiations with Canada and Mexico on August 16, 2017.

DOJ Fines International Law Firm for Citizenship-Based Discrimination

By: Derrick Kyle, Associate & Mackenzie Willard, Legal Assistant
Date: 10/22/2018

On August 29, 2018, in a settlement involving Clifford Chance US, LLP, a large international law firm, the Department of Justice (“DOJ”) provided the export community with a perfect example of the intersection of, and friction between, immigration anti-discrimination laws and the export control regulations, namely the International Traffic in Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”).

A Crude Awakening U.S. Sanctions on the Russian Oil Sector

By: Olga Torres, Managing Member, Andrea Fraser-Reid, Senior Counsel & Derrick Kyle, Associate
Date: 10/22/2018

This article will discuss U.S. economic sanctions on Russia as enforced by the Office of Foreign Assets Control (“OFAC”), a government agency within the U.S. Department of the Treasury. Specifically, we will provide an overview of Directive 4 to Executive Order 13662 (“Directive 4”), which prohibits certain transactions related to the Russian oil sector.1 While Directive 4 does not prohibit all oil sector transactions with companies in Russia, it does create many potential obstacles for U.S. businesses. We will also briefly discuss Russian oil sector prohibitions administered by the Department of Commerce Bureau of Industry and Security (“BIS”).2 Russia and Texas are two of the largest producers of oil and gas in the world, and, because many companies involved in the petroleum industry in Texas have dealings with Russian entities or individuals, they are likely to be faced with sanctions issues. Below we describe some of the issues that need to be addressed prior to the commencement of transactions involving Russian parties in the context of certain oil exploration and production activities.

This article first appeared in the Newsletter of the International Law Section (www.ilstexas.org) of the State Bar of Texas, and is reproduced with the Section’s permission.

New Foreign Investment Status Quo: CFIUS Mandatory Filings and Potential Penalties

By: Olga L Torres, Managing Member, Maria Alonso, Associate, Pierfilippo Natta, Legal Intern
Date: 10/11/2018

On October 10, 2018, the U.S Department of the Treasury issued temporary regulations to conduct pilot programs to implement provisions of the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), which became effective August 13, 2018, and amended section 721 of the Defense Production Act of 1950 specifically to protect American technology companies and intellectual property. As Torres Law previously discussed in several articles, the Committee on Foreign Investment in the United States (“CFIUS”) reviews foreign investment in U.S. companies for national security considerations, and FIRRMA has significantly expanded CFIUS jurisdiction.

Department of Commerce Makes Changes to the Steel and Aluminum Tariff Exclusion Request Process

By: Olga Torres, Managing Member, Derrick Kyle, Associate
Date: 09/11/2018

On September 11, 2018, the Department of Commerce (“Commerce”) issued an interim final rule in the Federal Register updating the process by which companies may request exclusion from additional duties on steel and aluminum articles pursuant to Section 232.

New Changes to the United States Foreign Investment Laws: What Foreign Investors Need to Know

By: Torres Law
Date: 08/13/2018

On August 13, 2018, President Trump signed the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) into law. The NDAA contains the Foreign Investment Risk Review Modernization Act (FIRRMA), which makes significant changes to the Committee on Foreign Investment in the United States (CFIUS). This article briefly summarizes a number of changes to the current CFIUS process that will significantly impact foreign companies seeking to invest in U.S.-based businesses. The changes introduced by FIRRMA are the most significant changes made to CFIUS in over a decade.

Latest Developments Regarding Tariffs on China

By: Torres Law
Date: 08/07/2018

On August 7, 2018, the United States Trade Representative (“USTR”) announced it had finalized a list of $16 billion worth of imports from China that will be subject to a 25% tariff rate. 

Trade Wars Heating Up: More Tariffs on China

By: Torres Law
Date: 08/03/2018

On August 1, 2018, the United States Trade Representative (“USTR”) announced it was considering raising the proposed tariffs on $200 billion worth of goods imported from China from 10% to 25%. This is the latest in a long string of developments aimed at urging China to stop its unfair practices, open its market, and engage in true market competition. 

Product Exclusions Announced for Section 301 Tariffs

By: Olga Torres, Managing Member, Jonathan Creek, Associate
Date: 07/06/2018

On July 6, 2018, the United States Trade Representative ("USTR") announced the procedures for filing and obtaining product exclusions from the recently announced Section 301 tariffs on the imports of $34 billion worth of Chinese goods. Exclusion requests are due by October 9, 2018.

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.

Tariffs: The Never-Ending Saga

By: Olga L Torres, Managing Member, Jonathan Creek Associate
Date: 06/18/2018

On June 15, 2018, the Trump Administration took the next step in escalating trade tensions with China by imposing additional 25% tariffs on imports of more than 800 products under Section 301 of the Trade Act of 1974.

U.S. to Withdraw from "Decaying and Rotten" Iran Nuclear Deal

By: Olga Torres, Managing Member, Derrick Kyle, Associate
Date: 05/09/2018

On May 8, 2018, President Trump announced the United States will withdraw from the Joint Comprehensive Plan of Action (“JCPOA”), commonly referred to as the “Iran Nuclear Deal,” which was adopted on October 18, 2015 and implemented on January 16, 2016 (“Implementation Day”). 

Steel and Aluminum Tariff Exemptions Extended...For Now

By: Jonathan Creek, Associate
Date: 05/07/2018

This article discusses the latest on tariff exemptions by the Trump Administration. 

DDTC Overhauls its Website

By: Torres Law
Date: 05/07/2018

On April 30, 2018, the Directorate of Defense Trade Controls (“DDTC”) announced it had launched a new, redesigned version of its website. This is the first time DDTC has made changes to its website in several years. The new website is designed to improve the navigation, searchability, accessibility, and improve the experience on mobile devices. The improvements are expected to continue in the future, as the Department of State seeks to improve and provide a more consistent experience across all Department sites. If you have any questions about the redesign, or where information is located on the new website, please feel free to contact us or DDTC’s response team at (202) 663-1282. To access the new website, go to https://www.pmddtc.state.gov/.

 

FLIR Enters Into Consent Agreement with DDTC

By: Olga Torres, Managing Member and Jonathan Creek, Associate
Date: 04/26/2018

On April 24, 2018, FLIR Systems, Inc. (“FLIR”) entered into a consent agreement with the Directorate of Defense Trade Controls (“DDTC”) for alleged violations of the International Traffic in Arms Regulations (“ITAR”). FLIR manufactures and exports advanced sensors and integrated sensor systems for various military and commercial platforms used to protect borders, gather intelligence, and protect critical infrastructure. Notably, the consent agreement was reached after FLIR submitted 18 voluntary self-disclosures (“VSD”) between 2008 and 2017.

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.

Olga Torres is ILN-terviewed

By: Lindsay Griffiths, International Lawyers Network's Director of Global Relationship Management
Date: 03/20/2018

Managing Member, Olga Torres, was interviewed by the International Lawyer Network. Check out what she has to say about her law practice at https://lnkd.in/ewJwfAi

Requirements for Steel and Aluminum Exclusion Requests Announced

By: Olga Torres, Managing Member, Jonathan Creek, Associate
Date: 03/19/2018

On March 19, 2018, the U.S. Department of Commcer ("DOC") published an interim final rule (“the Interim Final Rule”) listing the requirements for companies seeking product-based exclusions to the steel and aluminum tariffs previously announced by President Trump on March 8, 2018.

Tariffs on Steel, a Sign of Trade Wars on the Horizon

By: Olga Torres, Managing Member, Jonathan Creek, Associate
Date: 03/08/2018

On March 8, 2018, President Trump announced his decision to implement tariffs on steel and aluminum imports. These tariffs go into effect on March 23, 2018,[1] 15 days after President Trump’s announcement.

 

[1] In our initial publication of the article, we had a typographical error and stated the effective date was March 16. The correct date is March 23, 2018.

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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