In today's global economy the ability of companies to engage in business around the world depends, in large part, on their compliance with a wide range of laws and regulations that restrict whether certain goods, technologies or services can be exported from or imported into the United States and other countries. Keller and Heckman helps companies comply with the myriad of complex export and import restrictions in the least burdensome way possible while pursuing their global business.
In addition to the potential of export and import laws to disrupt business, failure to comply with them can have other significant repercussions for companies in the form of penalties in the hundreds of thousands of dollars, or more, and the inability to export or import.
We help companies comply with all aspects of international trade laws, including determining export and import requirements and obtaining required licenses or permits, drafting and resolving voluntary disclosures when violations occur, responding to subpoenas, conducting international trade due diligence and audits, resolving customs seizures, training company personnel, and drafting compliance policies and procedures.
The list below identifies the agencies and laws that routinely affect our clients' businesses, and the summaries that follow cover the substantive issues clients routinely face.
The Commerce Department's Export Administration Regulations (EAR), administered by the Bureau of Industry and Security (BIS)
The State Department's International Traffic in Arms Regulations (ITAR), administered by the Directorate of Defense Trade Controls (DDTC)
The Treasury Department's economic sanctions regulations, administered by the Office of Foreign Assets Control (OFAC)
U.S. Customs and Border Protection's (CBP) import regulations
The Foreign Corrupt Practices Act (FCPA), administered by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), and the United Kingdom's Bribery Act
The Department of Agriculture's (USDA) international trade regulations governing the import and export of animal and plant products, administered by the Animal and Plant Health Inspection Service (APHIS) and the Food Safety and Inspection Service (FSIS)
The Food and Drug Administration's (FDA) international trade regulations governing the export and import of food and drugs
The Bureau of Alcohol, Tobacco, Firearms and Explosives' (BATF) regulations on imports of defense industry and other sensitive products
The Department of Energy's (DOE) export control regulations
The Nuclear Regulatory Commission's (NRC) export control regulations
Keller and Heckman also regularly assists clients with laws in the foregoing areas administered by other nations, including European Union Member States and many Asian countries.
Keller and Heckman counsels companies on the full range of laws and regulations governing the export of goods and technology from the United States and other countries. Many countries require a license to export goods, technologies, and services that have military or other sensitive applications. Companies involved in the export of any good or technology (including software) must be aware of whether the item being exported is on a list of controlled items, whether the intended end-use would be restricted, and whether any recipient is on a prohibited list. In the United States the common lists of controlled items are the "Commerce Control List" (CCL), on which items are described by Export Control Classification Numbers (ECCNs), and the "U.S. Munitions List" (USML).
Companies involved in the export of an item that was originally provided from another country need to be aware of any re-export controls under that other country's laws. Re-export controls can restrict items that were made partially or entirely in another country. In addition, export controls can restrict the sharing of technology with foreign national employees even if no actual export occurs.
Keller and Heckman advises clients conducting international transactions on economic sanctions that affect their business. The United States and other countries often require a license for the provision of a good, technology or service to certain countries (such as Burma, Cuba, Iran, North Korea, Sudan and Syria), as well as to companies and individuals in these countries regardless of the nature of the item being provided.
Economic sanctions are typically based on foreign policy objectives, such as avoiding the proliferation of nuclear weapons or human rights abuses. The licensing restrictions often cover both direct and indirect exports to the target country, as well as the provision of goods, technologies and services to related entities outside that country, especially if the benefit will be received in the country on the restricted list. Another common type of restriction is an asset freeze on a given entity or individual on a government list that prohibits dealings involving the entity's or individual's property.
Keller and Heckman advises clients importing goods and technologies into the United States and other countries on compliance with custom regulations and requirements. While customs authorities increasingly collaborate with export authorities to stop the export of controlled items, their primary involvement in international trade is to ensure appropriate duties are collected on imports and to enforce other domestic authorities' laws on the safety and quality of imported goods.
Typical import duty issues that arise are whether an importer has designated the correct tariff code under the importing country's version of the Harmonized Tariff Schedule, the importer has properly calculated the value of imported goods (especially when the importer provides assistance to or is related to the exporter), the country of origin is correct (issues arise often when production has occurred in multiple countries) and a good is properly marked with its country of origin.
Additional issues arise with imported goods that raise health and safety concerns, such as food, animal, drug and medical device drug products. Customs authorities regularly seize goods to ensure their compliance with customs and related laws (such as those administered by the USDA and FDA) and request additional information from importers. Supply chains and customer orders can be severely disrupted if companies do not give appropriate attention to customs issues far in advance of shipment.
Keller and Heckman assists companies in matters related to the U.S. Foreign Corrupt Practices Act (FCPA) and similar anti-corruption measures around the globe. The FCPA limits companies' activities overseas that can be perceived as offering something of value directly or indirectly to a foreign official for the purpose of obtaining or retaining business.
For many years, the FCPA imposed the most noteworthy restrictions in this area, but laws in other countries must now also be considered. For example, the United Kingdom's Bribery Act now imposes more restrictive prohibitions than the FCPA. Any company registered with the SEC or doing business in the U.S. or the U.K. that interacts directly or indirectly (such as through an agent or representative) with foreign officials must be aware of whether its activities are permissible under these laws.
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