FisherBroyles (FB) understands that to survive and thrive in today’s increasingly challenging and competitive global economy requires companies to understand and comply with constantly evolving international trade regulations and policies. With in-depth knowledge of key trade laws and regulations, a sophisticated understanding of the political and policy contexts in which these measures are implemented, and a wealth of experience dealing with the administrative agencies, federal courts, and other bodies involved in adjudicating international trade disputes, the attorneys in FB’s International Trade practice have been assisting clients in developing effective strategies to achieve their goals for decades.
FB’s international trade attorneys are recognized leaders in the international legal community. They speak regularly on a wide variety of trade compliance issues at conferences and seminars, and publish articles in professional online and print media, including Lexology and the Law360 International Trade newsletter (for which Partner Philip Gallas presently is serving his fifth term on the Editorial Advisory Board) . They are actively involved in cutting-edge developments at the U.S. Court of International Trade (CIT), including through the appointment of Partners Geoffrey Goodale and Michael Cone to the CIT’s Advisory Committee on Rules. They also help shape positions on key trade issues taken by the American Bar Association’s Section of International Law through Section leadership positions they hold, including as Co-Chair of the Export Controls and Economic Sanctions Committee and Senior Advisor to the Section’s Customs Law Committee and International Trade Committee. In addition, FB international trade attorneys have a proven track record representing clients before a panoply of federal agencies and courts.
Export Controls. The U.S. Government maintains multiple export control regimes that are intended to regulate the transfer of goods, technology, and information to foreign countries and foreign nationals. Through the Export Administration Regulations (EAR), the Department of Commerce’s Bureau of Industry and Security (BIS) regulates exports of dual-use items and technology, including exports of products, software, and technology from the United States, re-exports of U.S.-origin products and technology from foreign countries and in some cases, shipments of foreign products incorporating U.S. content. Through the International Traffic in Arms Regulations (ITAR), the Department of State’s Directorate of Defense Trade Controls (DDTC) regulates the sale of defense articles and services, often requiring special licenses prior to exportation and the implementation of controls over the release of information, technology, or manufacturing know-how. Under both the EAR and the ITAR, the release of certain technology to foreign nationals within the United States is considered a “deemed export” that may require a license depending on the technology and foreign national involved.
FB’s international trade attorneys help clients navigate these export control complexities in numerous ways, including:
- Assisting clients in determining whether their products and technologies are subject to the ITAR, or if not, how they should be classified under the EAR’s Commerce Control List (CCL);
- Preparing commodity classification requests, encryption review requests, and license applications for submission to BIS;
- Preparing license applications, technical assistance agreements, and manufacturing license agreements for submission to DDTC;
- Working with companies during mergers, asset purchases, and other acquisitions to review business models and practices of acquisition targets, and working with the client’s acquisition team in developing post-closing integration plans to address potential exposure to export controls;
- Advising clients when violations of the EAR and ITAR may have occurred and developing strategies for minimizing potential penalty exposure and taking corrective action; and
- Advising clients on how to deal with serious violations of law, including conducting internal investigations, preparing and submitting voluntary disclosures to BIS and DDTC when warranted, and working with the agencies to address the identified issues.
U.S. Economic Sanctions. The U.S. Government maintains comprehensive economic sanctions against multiple countries, including comprehensive sanctions against Cuba, Iran, North Korea, Syria, and the Crimea Region of Ukraine, and more limited sanctions against other countries (e.g., targeted sanctions against certain sectors of the Russian economy). Controls also are maintained against people or entities all over the world who are deemed to be associated with terrorism, the development of weapons of mass destruction, drug trafficking, and other undesirable activities. Jurisdiction for administering the vast majority of these sanction programs is shared by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and BIS, although with respect to certain sanctions programs the U.S. Department of State also plays an important role, such as with those relating to the Countering America’s Adversaries Through Sanctions Act (CAATSA). FB’s international trade attorneys assist clients in complying with these sanctions programs by:
- Advising clients regarding the subtleties of these inconsistent and constantly evolving regulations, including in the areas of direct export, investment, third-party relationships, joint ventures, and the hiring of foreign nationals;
- Preparing license applications for clients in the pharmaceutical, medical device, and agricultural industries in order to allow exports to sanctioned destinations, as permitted under the Trade Sanctions Reform and Export Enhancement Act (TSRA); and
- Counseling clients when violations of the sanctions regulations occur, developing strategies for minimizing potential penalty exposure, taking corrective action including conducting internal audits, and preparing and submitting voluntary disclosures to OFAC.
Trade Remedies. Multinational companies that ship products and sell services globally must navigate a difficult and perilous web of international trade restrictions. Companies that sell worldwide call on the expertise of FB’s International Trade practice team to draw on its extensive knowledge of international trade and investment matters and experience in international trade disputes. We are seasoned trade litigators who have represented both U.S. and foreign companies in trade disputes covering a large variety of industries and countries.
Our team has represented both domestic and foreign companies in antidumping (AD) and countervailing duty (CVD) cases before the U.S. Department of Commerce (DOC) and the U.S. International Trade Commission (ITC), as well as in appeals to the CIT and the U.S. Court of Appeals for the Federal Circuit (CAFC). Where possible, our international trade team helps clients negotiate innovative agreements to settle trade cases quickly and cost-effectively, providing our clients with certainty in their international dealings and investments. We also monitor proposed changes in trade laws and help our clients react proactively to the ever-shifting regulatory and statutory trade regime so that they are one step ahead on issues affecting international trade and investment. FB’s international trade attorneys also have represented clients seeking to maintain preferential tariff rates pursuant to the Generalized System of Preferences before the U.S. Trade Representative (USTR).
FB’s international trade attorneys have been in the forefront of many major international trade disputes for a wide range of products, including softwood lumber, steel products of all kinds (including flat-rolled, stainless, and various pipe products), polyester staple fiber, consumer goods, raw materials, chemicals, and textiles and apparel. Partner Philip Gallas formerly served at U.S. Department of Commerce Headquarters’ International Trade Administration conducting antidumping and countervailing duty proceedings. We counsel clients on all aspects of antidumping (AD) and countervailing duty (CVD) proceedings (including DOC investigations, scope ruling requests, administrative and changed circumstances reviews, as well as ITC investigations and sunset reviews). FB’s international trade attorneys regularly counsel clients on how to avoid these proceedings, such as through the creation and operation of sophisticated monitoring systems.
Our attorneys have represented U.S. and foreign clients in high profile Section 201 Global Safeguard investigations including crystalline silicon photovoltaic cells. We also have advised clients on other kinds of trade remedy proceedings, including: Section 232 National Security investigations of steel and aluminum; Section 301 unfair foreign trade practices investigations (including the one relating to Chinese IP policies and practices that the USTR initiated in August 2017); Section 332 ITC general factfinding investigations; and Section 337 cases involving intellectual property (IP) infringement.
CBP and Other Federal Regulatory Compliance. Companies that import merchandise into the United States must comply with laws and regulations of over forty agencies that are administered or enforced by U.S. Customs and Border Protection (CBP) at the port of entry and beyond. These agencies include the U.S. Food and Drug Administration (FDA), the Consumer Product Safety Commission (CPSC), the Federal Trade Commission (FTC), the U.S. Fish & Wildlife Service (FWS), the Federal Aviation Administration (FAA), the U.S. Environmental Protection Agency (EPA), the National Highway Traffic Safety Administration (NHTSA), and of course CBP itself. FB’s international trade attorneys help clients comply with federal regulatory requirements, import in a cost-effective manner, and address governmental enforcement proceedings by:
- Seeking classification, valuation, country of origin, and marking rulings from CBP that achieve clarity and, in some cases. generate customs duty savings for clients;
- Filing protests with CBP to challenge agency decisions adverse to the importer’s interests, and pursuing litigation at the CIT when protests are denied;
- Advising clients on the use of preferential duty programs (g., the GSP program) and free trade agreements (e.g., NAFTA), and the steps that must be taken to satisfy CBP’s requirements for making preferential duty claims under these programs;
- Counseling clients on the complex country of origin rules applied by CBP and how to comply with the standards and product marking requirements of CBP and other agencies including the CPSC, the EPA, and the FDA;
- Assisting clients in evaluating the costs and benefits of participating in voluntary programs sponsored by CBP including the Customs-Trade Partnership Against Terrorism (C-TPAT) program, the Importer Self-Assessment (ISA) program, and the Trusted Trader program, and arranging their participation in these programs when appropriate;
- Working with clients to develop effective regulatory compliance programs including written internal policies and procedures, and performing compliance assessments on a periodic basis;
- Representing clients in agency audits including CBP Focused Assessments;
- Advising clients on proactive regulatory compliance, providing guidance to clients when violations of laws and regulations have occurred, developing strategies for minimizing potential penalty exposure, taking corrective action including conducting internal audits, developing compliance improvement programs, and preparing and submitting prior disclosures; and
- Responding to agency inquiries and representing clients in seizure, enforcement, and penalty proceedings at the agency level and before federal courts.
Foreign Direct Investment in the United States. When a foreign company acquires a U.S. company, there are numerous regulatory issues that must be considered. Investments in the United States, mergers and acquisitions, asset purchases, or debt financing from a foreign source can trigger U.S. government oversight and possible restrictions. FB’s international trade attorneys assist companies in effectively addressing these issues by:
- Evaluating national security issues involved in transactions and preparing and filing Exon-Florio amendment submissions with the Committee on Foreign Investment in the United States (CFIUS);
- Assisting clients in developing strategies for mitigating foreign ownership, control, or influence (FOCI) in accordance with NISPOM requirements that are acceptable to the Defense Security Service (DSS) so that the clients may continue to maintain their facility security clearances (FCLs) and perform classified work on U.S. Government contracts; and
- Providing counseling on important developments affecting foreign direct investment in the United States, including proposed Congressional legislation that would expand the powers of CFIUS, such as the Foreign Investment Risk Review Modernization Act (FIRRMA).