The U.S. Department of Commerce’s Bureau of Industry and Security recently issued a final rule that effective November 18, revises the Export Administration Regulations to implement enforcement provisions of the Export Control Reform Act of 2018, which expanded the export control authorities available to the Commerce Secretary.
BIS also amended the EAR in regards to the issuance of licenses and denial orders and the payment of civil penalties, not directly related to the implementation of ECRA.
The final rule affirms BIS’ authority to conduct investigations, pre-license checks, and post-shipment verifications outside of the United States, as well as the production of books and other information required to be kept as specified by law and which may be requested of persons not residing in the U.S.
The enforcement and protective measures in Part 764 of the EAR outline applicable violations and sanctions for non-compliance, including civil monetary penalties, the denial of export privileges, or the exclusion from practice for persons who act as attorneys, accountants, consultants, freight forwarders, or “in any other representative capacity for any license application or other matter before BIS…” Criminal violations may result in a maximum fine of $1,000,000 and a prison sentence of up to twenty years.
It should be noted that, as indicated by provisions of the ECRA, the implementation of an effective export compliance program and a high-quality overall export compliance effort should ordinarily be given weight as mitigating factors in any civil penalty actions.
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