Background

The Bureau of Industry and Security has issued a final rule that, effective Nov. 18, makes a number of changes to the Export Administration Regulations to (1) implement the export enforcement portions of the Export Control Reform Act and (2) revise provisions concerning the issuance of licenses and denial orders and the payment of civil penalties. For more information on these changes, please contact Kristine Pirnia.

ECRA Changes. BIS states that this rule implements the following enforcement provisions, consistent with the expanded authorities provided by the ECRA.

- BIS has authority to conduct (1) pre-license checks and post-shipment verifications outside the U.S. and (2) export enforcement investigations both within and outside the U.S.

- The results of PLCs, when available, will be communicated to licensing officials within existing timeframes governing the conduct of PLCs and will be considered in determining the outcome of a license application.

- Persons located outside the U.S. must produce for inspection books and other information required to be kept pursuant to the EAR in addition to records as specified in the ECRA, and only U.S. officials designated by BIS may require such production.

- Requirements for clearing export shipments are described more accurately.

- Actions that the BIS Office of Export Enforcement may take to ensure that exports, reexports, and transfers (in-country) comply with all laws and regulations administered or enforced by BIS are updated and revised.

- The conduct of BIS enforcement activities may be governed by other legal and procedural principles.

- OEE may order the return and unloading of cargo to ensure export compliance, and the actions a carrier must take to return and unload cargo when ordered by OEE are specified.

Non-ECRA Changes. This rule also makes the following changes unrelated to the implementation of the ECRA.

- Any license obtained based on a false or misleading misrepresentation or the falsification or concealment of a material fact is void as of the date of issuance.

- The maximum time period for payment of civil penalties as a condition of receiving certain privileges under the EAR is extended from one year to two years.

- The circumstances under which the Directorate of Defense Trade Controls may not issue licenses, or may deny licenses, involving certain parties indicted for or convicted of certain export violations are reflected more accurately.

- The director of OEE is the designated BIS official for issuing orders denying the export privileges of persons convicted of certain criminal offenses, notifying affected persons of such orders, and determining the terms of such orders as well as their applicability to related persons.

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