Proposed change regarding voluntary self-disclosures
Section 764.5 of the EAR provides a procedure whereby parties that believe that they may have committed a violation of the EAR can voluntarily disclose the facts of the potential violations to BIS, Office of Export Enforcement (OEE). Such disclosures that meet the requirements of § 764.5 typically are afforded “great weight” by BIS, relative to other mitigating factors, in determining what administrative sanctions, if any, to seek.
Today's rule [PDF 73 KB] proposes to require that the final, comprehensive narrative account required in voluntary self-disclosures of violations of the EAR be submitted to the Office of Export Enforcement within 180 days of the initial voluntary self- disclosure notification.
The date of the initial notification may be significant because information provided to OEE may only be considered a voluntary disclosure if the information:
…is received by OEE for review prior to the time that OEE or another United States Government agency has learned of the same or substantially similar information from another source and has commenced an investigation or inquiry in connection with that information.
According to BIS, the proposed rule is intended to promote expeditious resolution of self-disclosed violations. Failure to meet either the 180-day deadline or an extended deadline granted by the Director of OEE would not be an additional violation of the EAR. However, that failure may reduce or eliminate the mitigating impact of the voluntary disclosure.
Proposed changes regarding notice of administrative enforcement proceedings
Today's proposed rule also would:
- Authorize the use of delivery services other than registered or certified mail for providing notice of the issuance of a charging letter instituting an administrative enforcement proceeding under the EAR
- Remove the phrase “if delivery is refused” from a provision relating to determining the date of service of notice of a charging letter’s issuance based on an attempted delivery to the respondent’s last known address
These changes are proposed to enhance resolution of resolve administrative enforcement proceedings in a timely manner and to provide more efficient notice of administrative charging letters.
Request for comments
Comments concerning the proposed rule must be received 60 days from the date of publication in the Federal Register, which is scheduled for November 7, 2012.
For more information, contact a professional with KPMG’s Trade & Customs practice:
John L. McLoughlin
Todd R. Smith
Luis A. Abad
Or your local KPMG Trade & Customs professional.