There are many ways exporters can violate applicable laws and regulations and the results can include damaging penalties, restrictions on their business, delays in their shipments, and harm to their reputations. This article is part of a series on export compliance issues and examines the types of errors exporters frequently make and the potential ramifications.

The Bureau of Industry and Security oversees the Export Administration Regulations, which primarily concern exports of dual-use goods that can be used for military or civilian use. Items controlled under the EAR may require a license or authorization to be exported, and it is the responsibility of the exporter (not a freight forwarder or other third party) to determine if a license is required.

However, actions that effectively circumvent this requirement are among the most frequent violations reported by BIS. Typical examples include falsely describing in export filings (the electronic export information filed through the Automated Export System, or what used to be filed as a paper shipper’s export declaration) what the goods being exported are, how much they are worth, where they are going, and what they are intended to be used for.

In some cases these actions may be taken intentionally to avoid having to obtain an export license, but most violations happen unintentionally; e.g., companies that lack a formal export classification process may be unaware of applicable licensing requirements or may fail to properly screen the parties involved in a transaction or identify red flags.

Exporters, forwarders, and other parties to an export transaction may be subject to criminal and/or administrative sanctions for these and other violations, and BIS has a robust system in place to investigate and prosecute violators. With respect to investigations, BIS conducts pre-license checks, which validate information on export license applications, and post-shipment verifications, which involve on-site visits to verify that exporters, consignees, end-users, and other parties to export transactions comply with the terms of export licenses and the EAR. In fiscal year 2023 BIS completed 1,509 of these end-use checks in 62 countries.

With respect to prosecution, BIS can and does impose substantial monetary penalties when a violation is found. Civil penalties can reach as high as $364,992 per violation or twice the value of the transaction, whichever is greater, while criminal penalties can include up to 20 years in prison and $1 million per violation. Companies may also be required to forfeit assets obtained in the conduct of unlawful activity, in both civil and criminal cases, and the value of forfeited assets can greatly exceed criminal fines or administrative penalties. BIS often imposes tougher measures against companies that commit willful or reckless violations or are repeat offenders but also offers mitigation for those that have shown cooperation or taken effective remedial actions.

In fiscal year 2023 BIS investigations led to the criminal conviction of 67 individuals and businesses for export violations with penalties of $1.7 million in criminal fines, $3.4 million in forfeitures, $9.0 million in restitution, and 1,779 months of imprisonment. BIS also completed 147 administrative export matters resulting in $303.4 million in civil penalties. The convictions, restitution, months of imprisonment, and civil penalties all represent the highest in BIS history.

BIS has other enforcement tools available as well. Both domestic and foreign companies can have their export privileges suspended for up to ten years, or they may be placed on lists that restrict or prohibit their involvement in export and re-export transactions. BIS agents can also search, inspect, detain, seize, and administratively forfeit items about to be illegally exported, reexported, or transferred (in-country), as well as conveyances involved in such shipments, and can order goods exported illegally to be redelivered to the U.S.

Sandler, Travis & Rosenberg’s export professionals have decades of experience helping companies to prevent violative behaviors and avoid their associated penalties. For more information on how we can help you, please contact Kristine Pirnia at (202) 730-4964 or via email.

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