PART 764—ENFORCEMENT AND PROTECTIVE MEASURES Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4611-4613; 50 U.S.C. 1701 et seq.; Source: 61 FR 12902, Mar. 25, 1996, unless otherwise noted. § 764.1 Introduction. In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part specifies conduct that constitutes a violation of the ECRA and/or the EAR and the sanctions that may be imposed for such violations. Antiboycott violations are described in part 760 of the EAR, and the violations and sanctions specified in part 764 also apply to conduct relating to part 760, unless otherwise stated. This part describes administrative sanctions that may be imposed by BIS. This part also describes criminal sanctions that may be imposed by a United States court and other sanctions that are neither administrative nor criminal pursuant to sections 11A, B, and C of the Export Administration Act EAA and other statutes. Information is provided on how to report and disclose violations. Finally, this part identifies protective administrative measures that BIS may take in the exercise of its regulatory authority. [85 FR 73416, Nov. 18, 2020] § 764.2 Violations. (a) Engaging in prohibited conduct. (b) Causing, aiding, or abetting a violation. (c) Solicitation and attempt. (d) Conspiracy. (e) Acting with knowledge of a violation. (f) [Reserved] (g) Misrepresentation and concealment of facts. (i) In the course of an investigation or other action subject to the EAR; or (ii) In connection with the preparation, submission, issuance, use, or maintenance of any “export control document” or any report filed or required to be filed pursuant to the EAR; or (iii) For the purpose of or in connection with effecting an export, reexport, transfer (in-country) or other activity subject to the EAR. (2) All representations, statements, and certifications made by any person are deemed to be continuing in effect. Every person who has made any representation, statement, or certification must notify BIS, and any other relevant agency, in writing, of any change of any material fact or intention from that previously represented, stated, or certified, immediately upon receipt of any information that would lead a reasonably prudent person to know that a change of material fact or intention has occurred or may occur in the future. (h) Evasion. (i) Failure to comply with reporting, recordkeeping requirements. (j) License alteration. (k) Acting contrary to the terms of a denial order. [85 FR 73416, Nov. 18, 2020] § 764.3 Sanctions. (a) Administrative. (1) Civil monetary penalty. (ii) The payment of any civil penalty may be made a condition, for a period not exceeding two years after the imposition of such penalty, to the granting, restoration, or continuing validity of any export license, license exception, permission, or privilege granted or to be granted to the person upon whom such penalty is imposed. (iii) The payment of any civil penalty may be deferred or suspended in whole or in part during any probation period that may be imposed. Such deferral or suspension shall not bar the collection of the penalty if the conditions of the deferral, suspension, or probation are not fulfilled. (2) Denial of export privileges. (3) Exclusion from practice. (b) Criminal. (c) Other sanctions. (1) Statutory sanctions. (2) Other sanctions and measures Seizure and forfeiture. (ii) Actions by other agencies. (B) The Department of Defense, among other agencies, may suspend the right of any person to contract with the United States Government based on export control violations. (Federal Acquisition Regulations at 48 CFR 9.407-2). [85 FR 73417, Nov. 18, 2020] § 764.4 Reporting of violations. (a) Where to report. Office of Export Enforcement, Bureau of Industry and Security,U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Room H-4520, Washington, D.C. 20230, Tel: (202) 482-1208, Facsimile: (202) 482-0964 or, for violations of part 760 of the EAR: Office of Antiboycott Compliance, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Room H-6099C, Washington, D.C. 20230, Tel: (202) 482-2381, Facsimile: (202) 482-0913. (b) Failure to report violations. (c) Reporting requirement distinguished. (d) Formerly embargoed destinations. [61 FR 12902, Mar. 25, 1996, as amended at 70 FR 14391, Mar. 22, 2005] § 764.5 Voluntary self-disclosure. (a) General policy. (b) Limitations. (2) The provisions of this section apply only when information is provided to OEE for its review in determining whether to take administrative action under part 766 of the EAR for violations of the export control provisions of the EAR. (3) The provisions of this section apply only when information is received by OEE for review prior to the time that OEE, or any other agency of the United States Government, has learned the same or substantially similar information from another source and has commenced an investigation or inquiry in connection with that information. (4) While voluntary self-disclosure is a mitigating factor in determining what administrative sanctions, if any, will be sought by OEE, it is a factor that is considered together with all other factors in a case. The weight given to voluntary self-disclosure is solely within the discretion of OEE, and the mitigating effect of voluntary self-disclosure may be outweighed by aggravating factors. Voluntary self-disclosure does not prevent transactions from being referred to the Department of Justice for criminal prosecution. In such a case, OEE would notify the Department of Justice of the voluntary self-disclosure, but the consideration of that factor is within the discretion of the Department of Justice. (5) A firm will not be deemed to have made a disclosure under this section unless the individual making the disclosure did so with the full knowledge and authorization of the firm's senior management. (6) The provisions of this section do not, nor should they be relied on to, create, confer, or grant any rights, benefits, privileges, or protection enforceable at law or in equity by any person, business, or entity in any civil, criminal, administrative, or other matter. (c) Voluntary self-disclosures involving minor or technical violations General. e.g., (2) Abbreviated narrative report. [email protected] (i) The notification should include: (A) The name of the person making the disclosure and should designate a contact person regarding the abbreviated narrative report and provide that contact person's current business street address, email address, and telephone number; and (B) A description of the general nature and extent of the violations (including, but not limited to, the destination and parties involved in any transaction, and the number, classification, and value of any items involved). Parties may itemize the various minor or technical violations in list or spreadsheet form. (ii) The Director of OEE at their discretion may request a full narrative report pursuant to paragraph (d)(3) of this section if OEE suspects the presence of aggravating factors which will be due in 180 days from the date of the OEE Director's request. (3) Bundling of minor/technical violations. (d) Voluntary self-disclosures involving significant violations General. (2) Initial notification Manner and content of initial notification. [email protected] (ii) Initial notification date. (iii) Timely completion of narrative accounts. (iv) Deadline extensions. (A) Conditions for extension. (B) Contents of request. 1 ( i ( ii ( iii ( iv ( 2 (C) Timing of requests. (3) Full narrative. (i) The kind of violation involved, for example, a shipment without the required license or dealing with a party denied export privileges; (ii) An explanation of when and how the violations occurred; (iii) The complete identities and addresses of all individuals and organizations, whether foreign or domestic, involved in the activities giving rise to the violations; (iv) License numbers; (v) The description, quantity, value in U.S. dollars and ECCN or other classification of the items involved; and (vi) A description of any mitigating circumstances. (4) Supporting documentation. (A) Licensing documents such as licenses, license applications, import certificates and end-user statements; (B) Shipping documents such as Shipper's Export Declarations, air waybills, bills of lading and packing lists; and (C) Other documents such as letters, facsimiles, telexes and other evidence of written or oral communications, internal memoranda, purchase orders, invoices, letters of credit and brochures. (ii) Any relevant documents not attached to the narrative account must be retained by the person making the disclosure until OEE requests them, or until a final decision on the disclosed information has been made. After a final decision, the documents should be maintained in accordance with the recordkeeping rules in part 762 of the EAR (15 CFR part 762). (5) Certification. (6) Oral presentations. (7) Where to make voluntary self-disclosures. [email protected] (e) Dual-track processing of Voluntary Self-Disclosures by the Office of Export Enforcement. (i) Inform the person making the disclosure that, based on the facts disclosed, it plans to take no action; or (ii) Issue a warning letter. (2) For VSDs that indicate significant violations, OEE will conduct an investigation, and as quickly as the facts and circumstances of a given case permit, OEE may take any of the following actions: (i) Inform the person making the disclosure that, based on the facts disclosed, it plans to take no action; (ii) Issue a warning letter; (iii) Issue a proposed charging letter pursuant to § 766.18 of the EAR and attempt to settle the matter; (iv) Issue a charging letter pursuant to § 766.3 of the EAR if a settlement is not reached; and/or (v) Refer the matter to the Department of Justice for criminal prosecution. (f) Criteria. (g) Treatment of unlawfully exported items. (i) Any person who has made a voluntary self-disclosure knows that a violation may have occurred. Therefore, at the time that a voluntary self-disclosure is made, the person making the disclosure may request permission from BIS to engage in the activities described in § 764.2(e) that would otherwise be prohibited. (ii) Any person may also notify the Director of OEE that a violation has occurred and request permission from BIS to engage in the activities described in § 764.2(e) that would otherwise be prohibited. (iii) Actions to return to the United States an item that has been unlawfully exported and disclosed under this section only require notification to the Director of OEE. Items subject to a violation that have been returned to the United States do not require further authorization under this paragraph (g) for future activities, provided that those future activities comply with any applicable EAR requirements. (2) How to submit a request under paragraphs (g)(1)(i) through (iii) of this section: A request should be submitted on letterhead, signed, and sent to the Director of the Office of Exporter Services at [email protected] [email protected]. (3) If a request submitted pursuant to paragraph (g)(1)(i) or (ii) of this section is granted by the Office of Exporter Services in consultation with OEE, future activities with respect to those items that would otherwise violate § 764.2(e) will not constitute violations. Note 1 to paragraph ( g Even if permission is granted, the person making a voluntary self-disclosure pursuant to paragraph (g)(1)(i) of this section is not absolved from liability for any violations disclosed nor relieved of the obligation to obtain any required reexport authorizations. (4) Reexports and transfers (in-country). Note 2 to paragraph ( g If the items are otherwise eligible for reexport or transfer under a license exception or the No License Required (NLR) designation, a request under this paragraph (g) may be submitted to obtain permission for the use of the license exception or NLR designation for such reexport or transfer, provided the transaction otherwise meets the terms and conditions of the license exception or NLR designation. (5) Automated Export System (AES) filing errors. [61 FR 12902, Mar. 25, 1996, as amended at 62 FR 25469, May 9, 1997; 69 FR 7870, Feb. 20, 2004; 70 FR 22250, Apr. 29, 2005; 78 FR 48605, Aug. 9, 2013; 89 FR 75482, Sept. 16, 2024] § 764.6 Protective administrative measures. (a) License Exception limitation. (b) Revocation or suspension of licenses. (c) Temporary denial orders. (d) Denial based on criminal conviction. § 764.7 Activities involving items that may have been illegally exported or reexported to Libya. (a) Introduction. (b) Libya Activities involving installed base items in Libya for which no license is required. (i) Scope. (A) It is not on the Commerce Control List in supplement no. 1 to part 774 of the EAR; (B) It is on the Commerce Control List, but is authorized for export or reexport pursuant to a License Exception to Libya; or (C) It is on the Commerce Control List and controlled only for AT reasons or for NS and AT reasons only, and is not listed on the Wassenaar Arrangement's Sensitive List (Annex 1) or Very Sensitive List (Annex 2) posted on the Wassenaar Arrangement's Web site ( www.wassenaar.org Note 1 to paragraph ( b i An item being exported or reexported to Libya may require a license based on the classification of the item to be exported or reexported regardless of whether the item will be used in connection with an installed base item. See paragraph (b)(4) of this section. Note 2 to paragraph ( b i Not all items listed on the Wassenaar Arrangement's Annex 1, Sensitive List, and Annex 2, Very Sensitive List, fall under the export licensing jurisdiction of the Department of Commerce. Please refer to the Commerce Control List for additional jurisdictional information related to those items. Also, if you do not have access to the internet to review the Wassenaar Arrangement's Sensitive List and Very Sensitive List, please contact the Office of Exporter Services, Division of Exporter Counseling for assistance at telephone number (202) 482-4811. (ii) Reporting requirement. (2) Licensing procedure for activities involving installed base items in Libya License requirement. (ii) Licensing policy. (3) Exclusion. (4) Relationship to other Libya license requirements. [70 FR 14391, Mar. 22, 2005, as amended at 71 FR 51719, Aug. 31, 2006; 73 FR 49331, Aug. 21, 2008] § 764.8 Voluntary self-disclosures for boycott violations. This section sets forth procedures for disclosing violations of part 760 of the EAR—Restrictive Trade Practices or Boycotts and violations of part 762—Recordkeeping—with respect to records related to part 760. In this section, these provisions are referred to collectively as the “antiboycott provisions.” This section also describes BIS's policy regarding such disclosures. (a) General policy. (b) Limitations. (2) The provisions of this section apply only when information is provided to OAC for its review in determining whether to take administrative action under parts 764 and 766 of the EAR for violations of the antiboycott provisions. (3) Timing. (i) Mandatory reports. (ii) Requests for advice. (4) Although a voluntary self-disclosure is a mitigating factor in determining what administrative sanctions, if any, will be sought by BIS, it is a factor that is considered together with all other factors in a case. The weight given to voluntary self-disclosure is solely within the discretion of BIS, and the mitigating effect of voluntary self-disclosure may be outweighed by aggravating factors. Voluntary self-disclosure does not prevent transactions from being referred to the Department of Justice for criminal prosecution. In such a case, BIS would notify the Department of Justice of the voluntary self-disclosure, but the decision as to how to consider that factor is within the discretion of the Department of Justice. (5) A firm will not be deemed to have made a disclosure under this section unless the individual making the disclosure did so with the full knowledge and authorization of the firm's senior management or of a person with authority to make such disclosures on behalf of the firm. (6) The provisions of this section do not, nor should they be relied on to, create, confer, or grant any rights, benefits, privileges, or protection enforceable at law or in equity by any person, business, or entity in any civil, criminal, administrative, or other matter. (c) Information to be provided General. (2) Initial notification. (3) Narrative account. (i) The kind of violation involved, for example, the furnishing of a certificate indicating that the goods supplied did not originate in a boycotted country; (ii) An explanation of when and how the violations occurred, including a description of activities surrounding the violations (e.g., contract negotiations, sale of goods, implementation of letter of credit, bid solicitation); (iii) The complete identities and addresses of all individuals and organizations, whether foreign or domestic, involved in the activities giving rise to the violations; and (iv) A description of any mitigating factors. (4) Supporting documentation. (i) The narrative account should be accompanied by copies of documents that explain and support it, including: (A) Copies of boycott certifications and declarations relating to the violation, or copies of documents containing prohibited language or prohibited requests for information; (B) Other documents relating to the violation, such as letters, facsimiles, telexes and other evidence of written or oral communications, negotiations, internal memoranda, purchase orders, invoices, bid requests, letters of credit and brochures; (ii) Any relevant documents not attached to the narrative account must be retained by the person making the disclosure until the latest of the following: the documents are supplied to OAC; BIS informs the disclosing party that it will take no action; BIS issues a warning letter for the violation; BIS issues an order that constitutes the final agency action in the matter and all avenues for appeal are exhausted; or the documents are no longer required to be kept under part 762 of the EAR. (5) Certification. (6) Oral presentations. (7) Where to make voluntary self-disclosures. (d) Action by the Office of Antiboycott Compliance. (1) Inform the person making the disclosure that, based on the facts disclosed, it plans to take no action; (2) Issue a warning letter; (3) Issue a proposed charging letter and attempt to settle the matter pursuant to § 766.18 of the EAR; (4) Issue a charging letter pursuant to § 766.3 of the EAR if a settlement is not reached or BIS otherwise deems appropriate; and/or (5) Refer the matter to the Department of Justice for criminal prosecution. (e) Criteria. [72 FR 39004, July 17, 2007] Supplement No. 1 to Part 764—Standard Terms of Orders Denying Export Privileges (a) General. Federal Register. http://www.bis.doc.gov. (2) Each denial order shall include: (i) The name and address of any denied persons and any related persons subject to the denial order; (ii) The basis for the denial order, such as final decision following charges of violation, settlement agreement, section 11(h) of the EAA, or temporary denial order request; (iii) The period of denial, the effective date of the order, whether and for how long any portion of the denial of export privileges is suspended, and any conditions of probation; and (iv) Whether any or all outstanding licenses issued under the EAR to the person(s) named in the denial order or in which such person(s) has an interest, are suspended or revoked. Denial orders issued prior to March 25, 1996, are to be construed, insofar as possible, as having the same scope and effect as the standard denial order. The introduction to each denial order shall be specific to that order, and shall include: (1) The name and address of any denied persons and any related persons subject to the denial order; (2) the basis for the denial order, such as final decision following charges of violation, settlement agreement, § 11(h) of the EAA, or temporary denial order request; (3) the period of denial, the effective date of the order, whether and for how long any portion of the denial of export privileges is suspended, and any conditions of probation; and (4) whether any or all outstanding licenses issued under the EAR to the person(s) named in the denial order or in which such person(s) has an interest, are suspended or revoked. (b) Standard denial order terms. “It is therefore ordered: First, that [the denied person(s)] may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Export Administration Regulations (EAR), or in any other activity subject to the EAR, including, but not limited to: A. Applying for, obtaining, or using any license, license exception, or export control document; B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR. Second, that no person may, directly or indirectly, do any of the following: A. Export, reexport, or transfer (in-country) to or on behalf of the denied person any item subject to the EAR; B. Take any action that facilitates the acquisition or attempted acquisition by a denied person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a denied person acquires or attempts to acquire such ownership, possession or control; C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the denied person of any item subject to the EAR that has been exported from the United States; D. Obtain from the denied person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a denied person, or service any item, of whatever origin, that is owned, possessed or controlled by a denied person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing. Third, that, after notice and opportunity for comment as provided in § 766.23 of the EAR, any person, firm, corporation, or business organization related to the denied person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this order. This order, which constitutes the final agency action in this matter, is effective [DATE OF ISSUANCE].” [61 FR 12902, Mar. 25, 1996, as amended at 67 FR 54953, Aug. 27, 2002; 70 FR 8720, Feb. 23, 2005; 78 FR 22727, Apr. 16, 2013; 85 FR 73417, Nov. 18, 2020]