Export Controls and ITAR

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National security concerns are at a high-water mark and government scrutiny of domestic and international transactions involving controlled assets has greatly increased under export control laws. Significant civil and criminal penalties can result from violating the confusing patchwork of export control laws governing the possession, trade, and export of controlled assets. Given the myriad of ever-evolving export controls, the number of agencies administering the controls, and the serious penalties involved, companies that may possess, trade, or export-controlled assets should closely evaluate their current export control compliance practices and policies and dedicate personnel and resources to maintain compliance with export control laws.  

Export control compliance is particularly important for companies involved certain industries, especially:

  • Aerospace
  • Automotive
  • Defense
  • Information technology
  • Machine tools
  • Nuclear power
  • Robotics
  • Telecommunications
  • Software.

Depth of Experience and International Reach

Miller Canfield has a robust Export Control Practice, representing clients subject to export control laws. Our attorneys have the experience necessary to confidently and practically navigate through the International Traffic in Arms Regulations (ITAR), Export Administration Regulations (EAR), and other regulations related to the possession, trade, and export of U.S. controlled assets. We have significant contacts and know how to work with various U.S. administrative agencies, including the Department of State, Directorate of Defense Trade Controls, Department of Commerce, Bureau of Industry and Security, Bureau of Alcohol, Tobacco, and Firearms, Department of Defense, Department of the Treasury, and the Office of Foreign Assets Control.

With our offices throughout the world, we can draw from international resources and are exceptionally capable at assisting clients with their export control matters from a global perspective. 

WHAT WE DO

Miller Canfield’s Export Control Practice represents clients on export control matters in every industry sector, regardless of the size of the client or the matter.  In particular, we provide the following specific services:

Registration.  Assist clients with registering under the ITAR or EAR.

Controlled Asset Identification and Classification. Analyze company product, service, and technology portfolios to identify and classify assets subject to export controls.

Commodity Jurisdiction Requests.Draft Commodity Jurisdiction Requests for government determination when export control law jurisdiction or controlled asset classification is at issue.

Export Control Compliance Programs.  Assist clients with development, implementation, monitoring, and improvement of tailored export control compliance programs.

Export License Applications.  Draft ITAR and EAR export license applications and supporting transmittal letters and documentation to permit the licensed export of controlled products, services, technology, and technical data.  Draft BATF import license applications. 

TAAs, MLAs, other Export Control-Compliant Collaboration Agreements.  Draft export control collaboration agreements for government approval, such as Technical Assistance Agreements and Manufacturing License Agreements, to permit the authorized flow of controlled products, services, technology, and technical data between approved parties within permitted scope.

Export Control Exemption.  Advise on the qualification for export control exemption, scope of exemption, and substantiation requirements for reliance upon exemption.

Export Control Audit and Benchmark Reports.  Perform export control audits and produce export control benchmark reports that:  (a) show audited results in comparison to corresponding export control benchmarks in each substantive area, (b) reveal potential export control violations and internal control weaknesses affecting export control compliance, and (c) set forth recommended action plan to enable clients to meet export control benchmarks in each area.

Export Control Due Diligence.  Perform targeted due diligence to identify significant export control issues previously unknown to the prospective acquirer and monetizing of export control issues to adjust acquisition price or secure additional protections from the seller to address export control risk exposure.

Acquisition-Phase CFIUS Filing. Prepare, file, and prosecute CFIUS filing for foreign acquisition of U.S. target company with export-controlled assets.  

Acquisition-Phase Export License, TAA, and MLA Transfer. Complete transfer of U.S. target company ITAR and EAR export control licenses, TAAs, and MLAs to acquirer.  Prepare and fulfill DDTC acquisition based registration transfer requirements, procuring the required DDTC approvals.       

Acquisition-Phase Facility Clearance FOCI Approval. Accomplish foreign acquisition (and continued clearance) of U.S. business facilities with DSS facility security clearance (FCL) under NISPOM rules of Foreign Ownership, Control, or Influence (FOCI).  

Post-Acquisition Integration of Export Control Compliance Programs.  Counsel clients on post-acquisition integration of export control compliance programs.

Export Control Manuals.  Draft export control compliance manuals and policy statements.

Technology Control Plans.  Draft technology control plans addressing export control compliance.

Export Control Compliance Training.  Conduct on-site training on the ITAR, EAR, and other export control laws.

Voluntary Disclosures.  Advise on making voluntary disclosures for potential export control violations discovered, draft corresponding disclosure submission and supporting documentation, and represent client on government disposition of voluntary disclosures.