In the first two parts of this series, we covered companies’ obligations under U.S. export control laws, such as the Export Administration Regulations (“EAR”) governed by the Department of Commerce, Bureau of Industry and Security (“BIS”), and military or defense exports governed by the International Traffic in Arms Regulations (“ITAR”) under the auspices of the State Department’s Directorate of Defense Trade Controls (“DDTC”), and common ways to mitigate your organization’s risk against violations. Unfortunately, no compliance program can prevent all violations, and this final part of our series addresses the key considerations your organization should keep in mind in the event you discover that an apparent violation may have occurred. How your company addresses apparent violations are as important as anything else, because they end up determining the repercussions that your organization may face from these and other enforcement agencies. Continue reading “Navigating Violations in the Export Controls Minefield (Part 3 in a Series)”
As the recent Bright Lights USA case demonstrates, export violations continue to be met by aggressive enforcement actions by U.S. government authorities. In Bright Lights USA, the U.S. State Department’s Directorate of Defense Trade Controls (“DDTC”) charged and fined a small manufacturer $400,000 for violating the International Traffic in Arms Regulations (“ITAR”) by exporting, without obtaining a license, engineering designs and drawings abroad for minor vehicle spare parts (such as rubber seals, gaskets and grommets, etc.) in connection with bids sent to foreign manufacturers to produce the parts for Bright Lights to resell to its commercial and public sector customers. Although the parts were commercial items and many other similar parts in the category in which Bright’s Lights conducted business had transitioned off of the U.S. Munitions List, the company had failed to update its list for parts that were still controlled. The DDTC found that the violations had occurred in large part due to the company’s “significant training and compliance program deficiencies.” Continue reading “Risk Management in the Export Controls Minefield (Part 2 in a Series)”
David Yang and Christian N. Curran
Despite recent political shifts away from globalization, international trade remains a bedrock of the U.S. economy, and companies doing business in the United States must be cognizant of the intricate set of export control regulations promulgated by the U.S. government. In today’s rapidly changing economy, it is more important than ever for companies to thoroughly assess their connections to the international marketplace. While the Obama Administration took strides toward simplifying the export control process, U.S. export control regulations remain complex due to the multiple government stakeholders involved, resulting in varying interpretations, policies, and agendas. Export control violations can still carry serious ramifications for a company’s business practices both inside and outside the United States. Accordingly, the first of this three part series begins by identifying whether your business may be subject to the U.S. export controls regime. Our next two installments will then, respectively, address: (Part 2) practical strategies for addressing risk mitigation; and (Part 3) enforcement actions by the government. Continue reading “Managing the Export Controls Minefield (Part 1 in a Series)”
Albert B. Krachman and Lyndsay A. Gorton
On June 14, 2016, the Senate passed the National Defense Authorization Act (“NDAA”) for Fiscal Year 2017, S. 2943, by a vote of 85-13. The final bill grants to the military a $602 billion budget, and includes what Senator Harry Reid has called “several needed reforms,” which include bid protest reforms. The bill, drafted by the Senate Armed Services Committee (“SASC”), includes language that would amend statutes related to bid protests at the Government Accountability Office (“GAO”) to require a “loser pays” scheme and the withholding of profits on bridge contracts. President Obama has threatened to veto the NDAA when it crosses his desk due to provisions unrelated to the proposed bid protest reforms.
The House of Representatives passed its version of the NDAA on May 18, 2016, by a vote of 277-147. The House bill, H.R. 4909, does not include similar bid protest-related provisions to those in the Senate bill, and only requires that the Secretary of Defense enter into a contract with an “independent entity with appropriate expertise to conduct a review of the bid protest process related to major defense authorization programs.” The “independent entity” would be required to submit interim findings on bid protest trends by March 1, 2017, and a final report of findings by July 1, 2017. Continue reading “Senate Seeks to Disincentivize Certain Protesters in 2017 National Defense Authorization Act”
Justin A. Chiarodo and Stephanie M. Harden
In the latest regulatory action targeted at human trafficking, the Federal Acquisition Regulatory Councils (“FAR Councils”) on May 11, 2016 issued a proposed rule to include a sweeping new definition of the term “recruitment fees.” The proposed definition would cover nearly any conceivable charge related to recruiting, hiring, and onboarding of employees, no matter the location of the employee, the skill level of the job, or customary business practices in the industry. Contractors should pay close attention, given that the rule also makes them responsible for recruitment fees collected by third parties, including subcontractors at all tiers, recruiters, and staffing firms.
Recognizing the far-reaching consequences the rule will have, the FAR Councils have flagged key open questions for contractors to comment upon. Given the potential sweeping change, contractors should think carefully about how the proposed rule will impact their hiring practices. Continue reading “Human Trafficking Regulations to be Updated to Define “Recruitment Fees””