International Trade and Regulatory Compliance
OFAC Trade Sanctions Compliance
Mr. Bilaniuk has wide-ranging experience counseling on trade sanctions and embargoes administered by the Office of Foreign Assets Control (OFAC). He regularly handles the difficult regulatory interpretive issues clients in a range of industries face as they strive to comply with the myriad OFAC list-based and comprehensive sanctions programs.
OFAC Counseling and Licensing
- Advised companies in various industries on protecting IP, in-process transactions, and wind-down of operations in the Russian Federation and scope of OFAC general licenses after Russia’s full-scale invasion of Ukraine and the promulgation of the Russian Harmful Foreign Activities Sanctions Regulations; advised on related ESG issues.
- Advised companies on legally structuring transactions for various manufactured goods and IT services in compliance with Venezuela sectoral sanctions and Ukraine/Russia-related sectoral sanctions.
- Advised on and applied for licenses to OFAC for companies across industries for products and services under Iran and Russia sanctions programs.
- Counseled on compliance with facilitation and evading sanctions provisions in various OFAC sanctions programs including for Iran, Syria, Burma, Sudan, and Cuba, for clients in a range of industries and in various scenarios including with respect to parent and subsidiary companies, and to affiliated companies.
- Counseled range of clients such as data services providers and publishers on information/informational materials exception across multiple OFAC sanctions programs.
- Counseled on compliance with Chinese Military-Industrial Complex Company (CMIC) non-SDN List sanctions and regulations.
- Counseled international technology company on Cuban OFAC sanctions compliance and pursuing business opportunities in Cuba.
- Counseled on complex transactions involving Syrian entities about the applicability of a general license under then-existing Sudan OFAC sanctions.
- Counseled technology device manufacturer about scope of a certain OFAC Iran general license and for what activities a specific license would still be required.
- Advised on issues such as OFAC’s “Fifty Percent” rule and the scope of general licenses for agricultural commodities, medicine, and medical devices under various sanctions programs.
OFAC Compliance Investigations
• Conducted internal investigation and advised manufacturer in matter triggered by regulator’s inquiry about client’s internet-based customer support interface indicating customers in Iran, the Crimea region of Ukraine, and other sanctioned countries.
• Conducted internal investigation for IT company, identified OFAC sanctions violations and prepared resulting voluntary disclosure report to OFAC.
• Conducted internal investigation concerning Canadian subsidiary of U.S. service provider and advised service provider about Cuban OFAC sanctions compliance issues and blocking statute issues for its subsidiary. Matter required parallel involvement of Canadian and European counsel.
• Conducted internal investigations for financial service companies concerning transactions with certain Iranian nationals and the scope of the OFAC definition of the Government of Iran; assessed compliance policies and made recommendations.
• Conducted internal investigation for manufacturer sourcing materials from Chinese company amidst concerns about sub-tier supplier sourcing from a Chinese company designated on the Global Magnitsky List for human right violations against the Uyghur minority in China.
Export Control Compliance
Mr. Bilaniuk has wide-ranging experience counseling on export controls, both the Export Administration Regulations (EAR) administered by the U.S. Department of Commerce for dual-use items and technology, the International Traffic in Arms Regulations (ITAR) administered by the U.S. Department of State for defense articles, defense services, and technology.
EAR and ITAR Compliance Counseling and Licensing
- Advised clients in diverse industries including in aerospace, defense, automotive, information technology, telecommunications, energy, finance, industrial manufacturing, education, research facilities concerning various products, computer hardware, software with encryption, diagnostic equipment, technical data, and emerging technologies on:
--self-determinations of jurisdiction including issues such as the “fundamental research” exception to dual-use export controls and the de minimis rule;
--formal commodity jurisdiction and commodity classification requests to government agencies;
--risk-based customer screening based on red flags;
--best practices in selecting Incoterms given export compliance obligations under the EAR and Foreign Trade Regulations (FTR), and routed export transactions;
--ITAR brokering rules;
--antiboycott compliance with respect to transactions with companies in the Middle East; and
- Advised on transactions to destinations subject to significant export controls and sanctions such as China, Iraq, Sudan, Venezuela, and the Russian Federation.
- Counseled on compliance of sales to Chinese distributors who have Chinese military customers given export controls on Chinese military end users and military end uses.
- Counseled on transactions involving Huawei and Huawei affiliates listed on the BIS Entity List for a range of clients in information technology, telecommunications, and industrial manufacturing sectors; submitted license applications to BIS for such transactions, and secured BIS license.
- Counseled on encryption export controls for a range of IT clients including on the applicability of BIS License Exception ENC for encryption commodities, software, and technology; counseled on implications of certain decontrols.
- Advised a U.S. construction company on compliance with EAR export controls for exports to Africa for solar park project.
- Counseled U.S. manufacturers on negotiations with distributors and representatives in China with respect to international trade compliance and compliance with legal provisions in light of China’s blocking regulations targeting extraterritorial application of U.S. law.
- Advised on export control considerations in broad range of agreements with counterparties in various countries, including research and development agreements, supply, technical service, marketing and distribution agreements, technology collaboration, and joint venture agreements.
- Implemented international trade compliance programs, policies and procedures for clients across wide range of industries, engaged in commercial contracting and government contracting.
- Performed export control risk assessments for clients across wide range of industries with existing trade compliance programs providing recommendations for updates and improvements to further mitigate risks, e.g., on processes for auditing existing distributors and onboarding new distributors.
EAR and ITAR Compliance Investigations
- Conducted internal investigation concerning BIS encryption export control violations for IT manufacturer; advised on implementation of new compliance policies; resulting voluntary self-disclosure resulted in no adverse actions.
- Conducted internal investigation for manufacturer concerning exports to Chinese distributors where end users were entities on the BIS Entity List; assisted client in developing improved international trade compliance measures.
- Conducted internal investigation of export compliance of manufacturer’s newly acquired subsidiary; voluntary self-disclosures of violations identified to BIS and the U.S. Census Bureau that resulted in no adverse actions.
Conducted internal investigation of ITAR violations by defense article manufacturer for export of technology to foreign national employees; resulting voluntary self-disclosure to the Directorate of Defense Trade Controls resulted in no adverse actions.
International Trade Due Diligence
Mr. Bilaniuk has extensive experience bringing his deep international trade and regulatory expertise to bear to conduct pre-acquisition and post-acquisition due diligence of target companies’ international business on his corporate colleague’s M&A deals. He conducts risk-based reviews with his international trade associates based on a given target’s level of international business, red flags and other risk factors. Mr. Bilaniuk advises clients on international trade liability risks including with respect to export control, OFAC sanctions, customs, forced labor supply chain, antiboycott and anti-corruption compliance liability risks. If a deal involves a foreign investment, he advises on the need to conduct a Committee on Foreign Investment in the United States (CFIUS) inbound investment national security review jurisdictional analysis. Mr. Bilaniuk has advised different parties in M&A deals:
--Advised acquiring companies about risk issues with target companies;
--Assisted target companies to prepare to respond to due diligence they are likely to face and assisted during due diligence phase in responding to acquiring company’s due diligence requests; and
--Advised representation and warranty insurer for M&A deals about extent of international trade due diligence by acquirer and identified concerns.
- Investigated acquiring company about liability risk issues of target company given its significant international business and identified potential violations; conducted additional due diligence of target. Post-acquisition, investigated potential export control, OFAC sanction, anti-boycott, and anti-corruption violations and prepared report detailing violations identified, as well as compliance program and other recommendations.
- Advised technology companies on anti-corruption and other international compliance issues (export controls, anti-boycott) as they entered certain foreign markets in the Middle East and Asia and established joint ventures; conducted FCPA due diligence on potential partners.
- Advised aerospace client on FCPA and as well as other international compliance issues as it pursued opportunities in Middle Eastern country.
Advised information services/cybersecurity government contractor establishing joint venture in Middle East about export control, anti-boycott, and FCPA issues; supervised local counsel; drafted joint venture agreement with corporate colleagues; developed FCPA compliance program and conducted FCPA due diligence.
Mr. Bilaniuk has significant experience conducting Committee on Foreign Investment in the United States (CFIUS) inbound investment national security jurisdictional reviews for U.S. and foreign clients on corporate transactions. One reason he is able efficiently to conduct such reviews and lead deals through the CFIUS process is because such work builds on his export compliance practice. Such work is often also a natural extension of the pre-acquisition international trade compliance review of a deal that he already conducted in, inter alia, assessing the export control classification profile of a target company’s products and technologies. An export control classification profile of a target company is a critical step in determining whether there needs to be a mandatory CFIUS submission regardless of whether a target company engages in any exporting. Mr. Bilaniuk prepares notices and declarations to CFIUS and also counsels clients with facility clearances on mitigating foreign ownership, control or influence (FOCI) in advance of entering the CFIUS review process. Mr. Bilaniuk also collaborates with colleagues in the real estate practice to conduct CFIUS jurisdictional reviews of real estate transactions involving foreign direct investment in compliance with the CFIUS regulations that pertain to real estate transactions.
- Conducted CFIUS review and advised a UK company on whether its acquisition qualified as an exempted transaction.
- Conducted CFIUS review for European company on its contemplated purchase of U.S. software company.
- Conducted CFIUS review and counseled an information technology company target about how to structure non-controlling investment so as not to trigger CFIUS jurisdiction or mandatory disclosure of investment transaction to CFIUS.
- Advised and represented military aircraft component manufacturer and acquiring foreign company on FOCI mitigation and facility clearance issues before the Defense Counterintelligence and Security Agency (DCSA) and then on preparing CFIUS submission and during CFIUS review process.
Advised armored vehicle manufacturer about FOCI mitigation and facility clearance issues with respect to proposed parent company and US subsidiary changes.
Mr. Bilaniuk has wide-ranging experience on customs compliance counseling, tariff mitigation strategies, and forced labor supply chain compliance.
- Secured exclusions and exclusion extensions through the exclusion process administered by the Office of the U.S. Trade Representative (USTR) for Section 301 tariffs on Chinese-origin goods for multiple clients across industrial manufacturing, electronics, medical device, leisure, and recreation industries for imports on the various Section 301 Lists. Tariff refunds and savings to clients totaled in tens of millions of dollars.
- Counseled range of clients across various industry sectors about correct Harmonized Tariff Schedule (HTS) classifications and counseled on supply chain reengineering and country of origin analysis of production processes for purposes of tariff mitigation.
- Filed actions in the Court of International Trade on behalf of companies in a range of industries challenging the authorization of the U.S. government to levy List 3 and List 4a Section 301 China tariffs and seeking full refund of tariffs paid. Litigation pending.
- Investigated potential Customs violations of importer of importing goods from China subject to antidumping/countervailing duties (AD/CVD) without paying proper duties; confirmed violations and submitted prior disclosure to Customs; Customs closed case with no penalties assessed.
- Advised various clients on Customs marking rules.
- Advised electronics manufacturer about whether imported products sold to the U.S. government qualified as Trade Agreements Act (TAA) compliant by conducting country of origin analysis.
- Assisted clients with respect to seizure of goods by Customs due to apparent violation of export controls.
- Counseled suppliers of OEM auto parts on different options for complex manufacture and assembly processes in China and Mexico of mechanical, electronic, safety auto parts, and engine subassemblies given implications on Section 301 China tariffs, country of origin analysis for NAFTA preferential treatment, marking rules, and United States–Mexico–Canada Agreement (USMCA) automotive rules of origin analysis.
Counseled importers of goods from China in various industries on the enforcement provisions of the Uyghur Forced Labor Prevention Act (UFLPA) and the significant due diligence expected by the U.S. Government to demonstrate forced labor was not used in all tiers of the supply chain. Assisted with evaluating due diligence results and in update compliance policies and internal controls.
FCPA and Anti-Corruption Compliance
Mr. Bilaniuk has extensive experience counseling on compliance with the Foreign Corrupt Practices Act (FCPA) spanning the major areas of potential FCPA risk including:
1) managing foreign agents and representatives;
2) reasonable travel and entertainment expenses for valid business purposes;
3) who is a “Foreign Official” under the FCPA; and
4) facilitating payments.
In addition, he has experience counseling on compliance with the UK Bribery Act and has been exposed to anti-corruption laws in foreign jurisdictions during the course of cross-border investigations or counseling engagements including when assessing the applicability of the FCPA affirmative defense for actions that are legal under local written law.
- Counseled applied science/technology company about FCPA risks of certain transactions in various markets such as India, Kuwait, and Kazakhstan.
- Advised technology, Fortune 500, and other companies on permissibility of various permutations of sponsored business trips of government delegations to U.S. facilities and myriad other courtesy, hospitality and marketing and promotional expenses.
- Performed due diligence (Level I to III) on potential agents, representatives, and partners in foreign markets such as Pakistan, Saudi Arabia, Afghanistan, Ukraine, for a range of clients including technology companies and advised on issues during contract negotiations.
- Advised technology, Fortune 500, and other companies on myriad FCPA matters including issues such as:
--permissibility of Saudi agent’s proposed commission payment structure;
--potential buy-out of Middle East royal family joint venture partner;
--potential transaction with a Middle Eastern country where client’s agents had familial ties to ministry awarding work;
--negotiations over contract for design/build of facility in the Middle East;
--hiring of foreign market consultant given ties to awarding government agency; and
--foreign employee requests to do certain types of independent consulting for foreign government agencies.
FCPA Compliance policies
Mr. Bilaniuk has extensive experience working with clients on developing and improving anti-corruption controls and processes, providing risk assessments, and then tailoring programs to address identified risks including compliance policies, questionnaires of employees, due diligence guidelines for vetting agents and representatives, model contracts for agents and representatives, detailed guidelines for gift giving, courtesy, and hospitality. Mr. Bilaniuk has experience performing such work with a range of clients across industries including technology, engineering, applied science/technology, IT design-build, public policy, political consulting, and construction companies.
- Conducted internal investigation of a manufacturer’s international sales executives’ handling of business with foreign distributors doing business with state-owned companies given certain red flags.
- Advised a U.S. construction company on FCPA compliance with joint venture in Africa to pursue joint major renewable energy contracts; conducted Level III FCPA due diligence on potential partners.
- Represented former executive of Fortune 500 company in FCPA investigation by SEC and DOJ that resulted in closing of case without charges.
- Conducted internal investigation for Fortune 500 government contractor of ex-employee whistleblower’s claims of corruption, and other illegal and unethical conduct in performance of service contract in Middle East.
- Conducted investigation of foreign agent’s conduct after recommending termination of technology client’s agency contract due to FCPA red flags.
Conducted preliminary anti-corruption and other due diligence on Ukrainian client-sponsor’s pre-screening submission to Overseas Private Investment Corporation (OPIC) for financing of construction of facility in Ukraine.