Miller & Chevalier's Export Controls and Economic Sanctions practice includes leading lawyers who bring their considerable background in government, private practice and in-house positions to the representation of their clients. They are experienced with the regulations of the U.S. Department of State, the Department of Commerce, the Department of the Treasury, the Department of Energy, the Department of Defense and the Nuclear Regulatory Agency and have been heavily involved in the major regulatory and enforcement developments of the last few years. Our lawyers have great depth in export control and sanctions laws and regulations, policy and interagency processes. In the private sector, they have advised companies on a wide range of complex issues, are regular speakers at major export control seminars and serve as adjunct professors at Georgetown University. The firm's strength and breadth in internal investigations is reflected in the fact that seven of its lawyers were recognized in the Who's Who of Investigations Lawyers (2015).
Export Control Reform
Miller & Chevalier has been intimately and actively involved in the export control reform effort from the beginning, having spent over 3,000 hours in the industry-led Export Control Reform Initiative and drafting comments on behalf of the American Bar Association (ABA) and clients. For example, Larry Christensen drafted the ABA comments to the Directorate of Defense Trade Controls (DDTC) and the Bureau of Industry and Security (BIS) on the important proposed rule regarding the definition of specially designed and Barbara D. Linney provided regular briefings to the Marine Machinery Association on the impact of export reform on the shipbuilding supply chain. Thus, the firm is well-positioned to assist companies with interpretation and application of the new regulations and implementation of reform.
International Traffic in Arms Regulations
Our Export Controls and Economic Sanctions practice has dealt with some of the most complex and burdensome issues presented by the International Traffic in Arms Regulations (ITAR), including the demanding commodity jurisdiction issues facing both commercial firms and defense contractors. Our lawyers have decades of experience in the U.S. aerospace, maritime and defense sectors and have advised foreign defense firms regarding the full scope of U.S. export control rules. They also represent firms that are new to the ITAR and the processes required to conduct compliant business under this regulatory regime. The export controls group advises clients regarding the full range of ITAR matters, including regulatory interpretation, commodity jurisdiction determinations, registration requirements, licensing strategies, internal assessments and gap analysis, self-audits, disclosures, training and process creation, cyber security standards for transmission and storage of controlled information in the “cloud” and the interaction between ITAR requirements and privacy and human rights legislation in multiple jurisdictions.
Miller & Chevalier is recognized for our deep expertise in commodity jurisdiction and the ITAR. We have been successful in 41 out of 42 recent commodity jurisdiction requests on behalf of our clients.
Export Administration Regulations
Our lawyers have written nearly all the fundamental building blocks and policies of the Department of Commerce's Export Administration Regulations (EAR), including the de minimis rules, publicly available treatment and the deemed export rule. The group regularly advises businesses on the encryption rules (including both classification and reporting requirements), deemed export controls and other technology transfer regulations, end use controls, end user and blacklist controls, de minimis calculations and strategies and complex classification issues in diverse industries. Our advice includes classification, license preparation and strategies, interpretation of complex regulations, internal assessments and gap analysis, audits, disclosures, training and process creation. Our lawyers have years of experience with the important interagency review process, including the role of reviewing agencies such as the Departments of Defense and Energy and the National Security Council staff. This experience includes many years inside the Executive Branch and in the private sector.
Sanctions Legislation and Regulations
Miller & Chevalier advises firms on the various embargo and sanctions regulations issued by the Department of the Treasury's Office of Foreign Assets Control (OFAC) as well as statutory secondary sanctions administered by the U.S. Department of State. These laws and regulations are complex and change frequently as the foreign policy of the United States responds to developments. Our lawyers have substantial experience with both regulations and regulators and have advised both U.S. and foreign firms regarding all of the OFAC rules and major prohibitions, such as the restriction against U.S. persons facilitating trade between embargoed countries and other non-U.S. countries.
Legislative, Regulatory and International Developments Impacting Export Controls and Economic Sanctions
Miller & Chevalier lawyers are at the forefront of monitoring and shaping legislative and regulatory developments impacting the export controls and sanctions legal framework. As an example, gone are the days when companies with any business involving Iran required compliance with only the Iran Sanctions Act and sanction regulations enforced by OFAC. National security and political factors have spawned more sanctions laws with which companies must now contend. Examples include the Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA) and the Iran Threat Reduction and Syria Human Rights Act of 2012 (ITRA), supplemented in recent years by a multitude of Executive Orders, many of which have not been clarified by the issuance of regulations. Miller & Chevalier lawyers have closely monitored the legal implementation and enforcement of these laws and Executive Orders from their inception, enabling it to knowledgeably advise clients on pending and new developments. More recently, we have monitored and advised on the negotiation and implementation of the Joint Comprehensive Plan of Action (JCPOA), which has resulted in major changes in both unilateral and multilateral sanctions against Iran.
Our lawyers have testified before the relevant committees of the U.S. Senate and House of Representatives on export control legislation and drawing upon this experience, as well as their senior government service, regularly advise corporations on the impact of legislative developments. Our practice regularly assists companies in shaping strategies and comments on proposed regulations and other policy initiatives of the Executive Branch.
Committee on Foreign Investment in the United States
For more than 25 years, our lawyers have worked in the government and in the private sector on Committee on Foreign Investment in the United States (CFIUS) reviews of acquisitions of U.S. companies by foreign firms. Export controls over technical data and the compliance by foreign firms with these technical data rules have long been at the heart of the CFIUS process, which now also addresses matters of homeland security.
Miller & Chevalier regularly provides advice and assistance to U.S. companies and their foreign affiliates under the anti-boycott laws of both the Departments of Commerce and the Treasury. Our lawyers have government experience in the writing of these rules and substantial corporate and law firm experience in the development of processes for compliance with these rules.
Enforcement, Litigation and Litigation Support
Recent high-profile cases arising under U.S. export control and sanctions laws have captured the headlines and confirmed that the enforcement climate is more aggressive than ever. The government has significantly stepped up criminal prosecution of violations, and enforcement actions are increasingly resulting in criminal convictions, prison terms and millions of dollars in penalties. Administrative actions also have dramatically increased, often resulting in multi-million dollar settlements.
Our lawyers have handled complex enforcement matters, including criminal investigations and criminal defense of charges under the ITAR and EAR. Members of the export controls group have helped firms shape voluntary disclosures under the export control regulations and negotiated settlements of criminal and administrative charges. In the import area of voluntary disclosures, our lawyers have assisted companies with strategies, preparation, drafting and advocacy before the government export control and embargo agencies.
Our lawyers bring credibility with the regulatory agencies and an understanding of modern criminal and administrative investigative and enforcement processes to the representation of our clients. The firm holds out selected members as expert witnesses and candidates to serve as special monitors in connection with export controls and sanctions remedial programs.
Process Assessments, Audits, Investigations and M&A Due Diligence
Our lawyers conduct in-depth process assessments and gap analysis to compare a corporation's existing processes against government expectations for compliance programs, best practices and substantive requirements. We are experienced in the conduct of audits and investigations, including pre-acquisition due diligence regarding trade controls and the securities law implications for representations in SEC filings concerning compliance programs.
Financial Institutions and Trade Controls
Miller & Chevalier has unique experience in the confluence of money laundering and export control investigations and violations. Our lawyers understand the trade compliance risks in investment banking, international supply chain finance, export finance and other value-added services that may run afoul of the ITAR, EAR and facilitation restrictions under OFAC rules, and we regularly advise our clients regarding these matters. We also have considerable expertise in drafting clauses and notifications to reduce the risk of blocking or freezing of funds by the United States and other jurisdictions.