Practice/Industry Group Overview
The mission of the U.S. government's system of export control laws and regulations is to ensure that controlled products, services, software and technologies are not provided to certain prohibited countries, entities or individuals, or made available for certain prohibited end uses. However, meeting changing U.S. compliance requirements while engaging in cross-border business is an ever-more complex job in the post-9/11 environment. As a result, Greenberg Traurig’s Export Controls Practice places an emphasis on meeting both the transactional and U.S. regulatory requirements for clients selling internationally in highly regulated commercial, defense, aerospace and other high-tech sectors. Our attorneys working on export controls are experienced in these regulatory requirements and frequently counsel clients on the application of these laws to U.S. and foreign businesses. Our team advises clients on a range of international technology transfer issues, as well as compliance and licensing matters.
U.S. Export Control Policy
The U.S. government has developed a system of export control laws and regulations to ensure that controlled products (i.e., “commodities”), software and technologies are not diverted to certain countries, companies or individuals, or for certain prohibited end-uses.
The system imposes controls on both U.S. and foreign persons and entities for the following activities:
- Physical shipment of commodities offshore
- Disclosure of controlled technology to foreign nationals in the United States or offshore
- Licensing of technology offshore
- Performance of certain technical services
- Hiring of foreign nationals to handle, or have access to, controlled commodities, software and/or technology
- Export and re-export of foreign-produced commodities and technology with U.S. origin content
Penalties for export control violations may include disciplinary action (up to and including termination of employment), corporate fines, revocation or suspension of export privileges, and individual fines and/or imprisonment of responsible personnel. Mitigating circumstances in enforcement actions are critical to the reduction of potential penalties. As a result, clients may depend on experienced counsel, with solid agency relationships, who can advise on the export compliance and enforcement process.
U.S. Government Export Enforcement Agencies
U.S. export controls are regulated by several governmental agencies depending upon the type of commodity, software and/or technology that is the subject of the export. The Department of State, Directorate of Defense Trade Controls (DDTC) has jurisdiction over military defense articles, the technical data related to those defense articles, and the provision of “defense services.” Such defense articles, technical data and defense services are identified on the U.S. Munitions List (USML), which is contained within the International Traffic in Arms Regulations (ITAR).
The Department of Commerce, Bureau of Industry and Security (BIS), pursuant to the Export Administration Regulations (EAR), has jurisdiction over non-military/commercial and dual-use commodities. “Dual use” refers to commodities, software or technology that have predominant commercial/non-military application but could be of strategic importance if such items were used for military purposes. These items are identified on the Commerce Control List (CCL), which is contained within the EAR. BIS also exercises jurisdiction over certain re-exports from foreign countries of U.S.-origin commodities, software and technology. Finally, in certain instances, BIS has jurisdiction over exports from foreign countries of foreign-made commodities that are manufactured from U.S.-origin technology or contain U.S.-origin parts or components.
The Department of the Treasury, Office of Foreign Assets Control (OFAC) and DDTC manage U.S. embargoes and trade sanctions imposed against certain countries deemed hostile to the United States.
U.S. Government Prohibited Lists
There are various lists promulgated by the U.S. government identifying those entities with which a U.S. person either may not do business or may not do business without permission from the U.S. government. No commodities, software or technology may be exported to the persons and entities identified on these lists without prior U.S. government approval. U.S. companies have an affirmative legal obligation to refer to these lists prior to conducting business with non-U.S. persons.
- Assist companies in developing export compliance procedures and export management systems
- Counsel companies on the export classification of their commodities, technologies, software and services
- Prepare licenses and agreements, followed by submission before the Departments of State, Commerce, Treasury, Justice (e.g., Bureau of Alcohol, Tobacco and Firearms) and Energy
- Guide companies through export controls due diligence in domestic and multinational transactions
- Defend companies in administrative and criminal export control-related prosecutions
- Counsel on legislative and agency relations related to U.S. export policy
- Conduct internal training to best manage export compliance
Articles Authored by Lawyers at this office:
U.S. Imposes Burundi Sanctions
Kara M. Bombach,Cyril T. Brennan,Sandra K. Jorgensen, December 02, 2015
On Nov. 23, 2015, President Obama issued an Executive Order to establish a new Burundi sanctions program prohibiting U.S. persons from engaging in most transactions with certain designated individuals and entities who contributed to the recent violence in Burundi.
U.S. Authorizes Transactions with Certain Belarusian Entities
David Baron,Kara M. Bombach,Sandra K. Jorgensen, November 05, 2015
Effective Oct. 30, 2015, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued a Belarus-related General License authorizing U.S. persons to engage in all previously prohibited transactions with certain Belarusian entities despite OFAC’s sanctions against...
U.S. Sanctions Scuttle Honduran Bank, Raise Compliance Stakes
Kara M. Bombach,Jared E. Dwyer,Carl A. Fornaris, October 28, 2015
For the first time in its history, the Office of Foreign Assets Control (OFAC) of the U.S. Treasury Department recently designated a bank under the Kingpin Act. The unprecedented designation of the Honduran bank, Banco Continental S.A., on Oct. 7, 2015, means that transactions with Banco...
Next Step in Iran Deal: Adoption Day requires JCPOA implementation
Kara M. Bombach,Cyril T. Brennan,Sandra K. Jorgensen, October 23, 2015
On Oct. 18, 2015, “Adoption Day” of the Iran Joint Comprehensive Plan of Action (JCPOA), the U.S. and EU took the required steps to prepare for implementation of the JCPOA. In the U.S., the president issued a memorandum directing the Departments of State, Treasury, Commerce, and Energy...
U.S. Allows Additional Trade and Business with Cuba
Kara M. Bombach,Yosbel A. Ibarra,Sandra K. Jorgensen, September 24, 2015
On Sept. 21, 2015, the U.S. Government further amended the existing Cuba-related regulations to allow for certain additional types of travel and the establishment of physical business premises in Cuba. The amendments also remove certain restrictions on remittances, financial transactions, and...
Franchising in Cuba - The Next Frontier?
Kara M. Bombach,Alan R. Greenfield,Jenine E. Hinkle, August 07, 2015
On Jan. 16, 2015, following an announcement made by President Obama on Dec. 17, 2014 of a plan to ease the U.S. trade embargo and restore diplomatic relations between the U.S. and Cuba, the U.S. Department of Commerce’s Bureau of Industry and Security (the Commerce Department) and the U.S....
Iran Deal Delivered to U.S. Congress and U.N. Resolution Issued
Kara M. Bombach,Sandra K. Jorgensen,Renee A. Latour, July 31, 2015
On July 19, 2015, the U.S. State Department officially transmitted the final Joint Comprehensive Plan of Action (JCPOA) agreement to Congress. The transmission to Congress commenced the 60-day period of congressional review on July 20, 2015. During the 60-day review period, Congress must vote on a...
Iran Nuclear Deal Reached - Prospects for Sanctions Relief
Kara M. Bombach,Sandra K. Jorgensen,Renee A. Latour, July 15, 2015
On July 14, 2015, the five permanent members of the U.N. Security Council (China, France, Russia, the United Kingdom, and the United States) plus Germany (the P5+1), and Iran announced that they had reached a final deal regarding Iran’s nuclear program, the so-called Joint Comprehensive Plan...
Iran Nuclear Negotiation Deadline Extended to July 10
Kara M. Bombach,Sandra K. Jorgensen,Renee A. Latour, July 13, 2015
Further to the June 30, 2015 extension of the deadline for a final deal regarding Iran’s nuclear program, on July 7, 2015 the U.N. Security Council (China, France, Russia, the United Kingdom, and the United States) plus Germany, the European Union and Iran agreed to further extend by an...
U.S. and EU Extend Deadline for Deal in Iran Nuclear Talks
Kara M. Bombach,Sandra K. Jorgensen,Renee A. Latour, July 03, 2015
On June 30, 2015, the five permanent members of the U.N. Security Council (China, France, Russia, the United Kingdom, and the United States) plus Germany, the European Union, and Iran agreed to extend by seven days their self-imposed deadline for finalizing a deal regarding Iran’s nuclear...