The United States maintains a complex system of controls and international trade regulations over the export of US goods and technology administered by various agencies of the federal government.
The Department of Commerce – in the Export Administration
Regulations (“EAR”) and the Commerce Control List – has
licensing authority over so-called “dual use” items.
The EAR regulations potentially reach virtually any product or
service that is to be exported (or re-exported from a foreign location).
The State Department – in the International Traffic in Arms
Regulations (“ITAR”) – controls the export of
any item, technology or service placed on the US Munitions List.
The Department of Treasury – through the Office of Foreign
Assets Control – implements and administers sanctions and
embargoes against specific countries (e.g., Cuba, Iran, Iraq, North
Korea, Serbia, Sudan) and specially designated nationals and entities.
The Department of Homeland
Security – through the Bureau
of Customs and Border Protection – enforces all U.S. laws,
including trade and immigration laws, at U.S. borders and ports
The Department of Energy enforces controls on nuclear, missile,
chemical and biological weapons proliferation.
Expertise and Experience. Stephen H. LaCount (former Chair of
the Nixon Peabody LLP Foreign Trade Controls Practice Team) has
extensive experience in advising clients dealing with foreign trade
controls administered by these federal agencies. Specific expertise
- Classification of goods, technology and services, obtaining
licenses and other authorizations;
- Transfer of technology and technical
data; “deemed export” assessment;
and cooperation with foreign nationals;
- Conducting internal investigations and designing remedial measures;
- Development and implementation of internal compliance and in-house
- Negotiation of compliance settlements; and
- Counseling on compliance with Antiboycott laws and Foreign
Corrupt Practices Act
Mr. LaCount has written extensively on export control and national security developments. His client Alerts can be accessed in the Articles library.
National Security and Foreign Investment Review
The United States maintains an open and secure environment for
foreign investment. Nonetheless, foreign investment, acquisition
or merger activity with foreign companies, or debt financing from
a foreign source, can trigger certain regulatory reviews and restrictions.
Depending on the nature of the transaction, the US industry involved,
and the profile of the acquired company, and the country of the
investor, early involvement by legal counsel can be instrumental
to ensure that the transaction is smoothly navigated through regulatory
hurdles and consummated in a timely fashion.
Exon-Florio Filing and
Review: Stephen LaCount has assisted domestic
and foreign clients with the complexities of the Exon-Florio foreign
investment filing and review process, including the application
of the Defense Production Act of 1950.
Program: When a US defense
contractor with access to classified or controlled unclassified
funding or investment capital from a foreign source, the US Industrial
Security Program can be triggered. Under this program, the Defense
Security Service (“DSS”) of the US Department of Defense
monitors and regulates the amount of “foreign ownership,
control or influence” (“FOCI”) present in a defense
contractor under the provisions of the National Industrial Security
Program (“NISPOM”). A US defense facility that has
an unacceptable level of FOCI – posing significant national
security risks - can face revocation, suspension or termination
of its facility security clearance (with the consequence of disqualifying
the contractor from consideration for further government contracts
involving classified information).
Expertise and Experience. Stephen LaCount advises clients on FOCI
mitigation and the intricacies of the NISPOM, the acquisition and
maintenance of facility and personal security clearances, and implementing
structures to eliminate or mitigate the level of FOCI (e.g., DSS-approved
voting trusts, proxy agreements, special security agreements, corporate
resolutions, technology control plans, formation of government
security committees, and related communication and visitation protocols).
Stephen LaCount recently acted as regulatory
counsel to Hampson Industries PLC, a publicly-traded UK aerospace
company, in the
company’s acquisition of Texstars Inc., a Texas-based defense