Part 764 - Enforcement and Protective Measures

PART 764
ENFORCEMENT AND PROTECTIVE MEASURES
Sec.

Page

764.1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

764.2

Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

764.3

Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

764.4

Reporting of violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

764.5

Voluntary self-disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

764.6

Protective administrative measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

764.7

Activities involving items that may have been illegally exported
or reexported to Libya . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

!764.8 Voluntary self-disclosures for boycott violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
STANDARD TERMS OF ORDERS DENYING EXPORT PRIVILEGES . . SUPPLEMENT NO. 1

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Part 764Spage 1

§764.1

(c) Solicitation and attempt

INTRODUCTION

No person may solicit or attempt a violation of the
EAA, the EAR, or any order, license or
authorization issued thereunder.

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 Export Administration Act (EAA) and/or the
Export Administration Regulations (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 the Bureau of
Industry and Security (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.
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.

(d) Conspiracy
No person may conspire or act in concert with one
or more persons in any manner or for any purpose
to bring about or to do any act that constitutes a
violation of the EAA, the EAR, or any order,
license or authorization issued thereunder.
(e) Acting with knowledge of a violation

§764.2

No person may order, buy, remove, conceal, store,
use, sell, loan, dispose of, transfer, transport,
finance, forward, or otherwise service, in whole or
in part, any item exported or to be exported from
the United States, or that is otherwise subject to
the EAR, with knowledge that a violation of the
EAA, the EAR, or any order, license or
authorization issued thereunder, has occurred, is
about to occur, or is intended to occur in
connection with the item.

VIOLATIONS

(f) Possession with intent to export illegally

(a) Engaging in prohibited conduct

No person may possess any item controlled for
national security or foreign policy reasons under
sections 5 or 6 of the EAA:

No person may engage in any conduct prohibited
by or contrary to, or refrain from engaging in any
conduct required by, the EAA, the EAR, or any
order, license or authorization issued thereunder.

(1) With intent to export or reexport such item in
violation of the EAA, the EAR, or any order,
license or authorization issued thereunder; or

(b) Causing, aiding, or abetting a violation
No person may cause or aid, abet, counsel,
command, induce, procure, or permit the doing of
any act prohibited, or the omission of any act
required, by the EAA, the EAR, or any order,
license or authorization issued thereunder.

(2) With knowledge or reason to believe that the
item would be so exported or reexported.

(g) Misrepresentation and concealment of facts
(1) No person may make any false or misleading
representation, statement, or certification, or
falsify or conceal any material fact, either directly

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Enforcement and Protective Measures

to BIS, the United States Customs Service, or an
official of any other United States agency, or
indirectly through any other person:
(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 as defined in §772.1 or
any report filed or required to be filed pursuant to
§760.5 of the EAR; or

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(j) License alteration
Except as specifically authorized in the EAR or in
writing by BIS, no person may alter any license,
authorization, export control document, or order
issued under the EAR.
(k) Acting contrary to the terms of a
denial order
No person may take any action that is prohibited
by a denial order. See §764.3(a)(2) of this part.

(iii) For the purpose of or in connection with
effecting an export, reexport or other activity
subject to the EAR.

§764.3
SANCTIONS

(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.

(a) Administrative
Violations of the EAA, the EAR, or any order,
license or authorization issued thereunder are
subject to the administrative sanctions described in
this section and to any other liability, sanction, or
penalty available under law.
The protective
administrative measures that are described in
§764.6 of this part are distinct from administrative
sanctions.
(1)

Civil monetary penalty.

(h) Evasion
No person may engage in any transaction or take
any other action with intent to evade the
provisions of the EAA, the EAR, or any order,
license or authorization issued thereunder.
(i) Failure to comply with reporting,
recordkeeping requirements
No person may fail or refuse to comply with any
reporting or recordkeeping requirement of the
EAR or of any order, license or authorization
issued thereunder.

Export Administration Regulations

(i) A civil monetary penalty not to exceed the
amount set forth in the EAA may be imposed for
each violation, and in the event that any provision
of the EAR is continued by IEEPA or any other
authority, the maximum monetary civil penalty for
each violation shall be that provided by such other
authority.
(ii) The payment of any civil penalty may be
made a condition, for a period not exceeding one
year 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.
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Enforcement and Protective Measures

(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. An order may
be issued that restricts the ability of the named
persons to engage in export and reexport
transactions involving items subject to the EAR,
or that restricts access by named persons to items
subject to the EAR. An order denying export
privileges may be imposed either as a sanction for
a violation specified in this part or as a protective
administrative measure described in §764.6(c) or
(d) of this part. An order denying export
privileges may suspend or revoke any or all
outstanding licenses issued under the EAR to a
person named in the denial order or in which such
person has an interest, may deny or restrict
exports and reexports by or to such person of any
item subject to the EAR, and may restrict dealings
in which that person may benefit from any export
or reexport of such items. The standard terms of
a denial order are set forth in Supplement No. 1 to
this part. A non-standard denial order, narrower
in scope, may be issued. Authorization to engage
in actions otherwise prohibited by a denial order
may be given by the Office of Exporter Services,
in consultation with the Office of Export
Enforcement, following application by a person
named in the denial order or by a person seeking
permission to deal with a named person.
(3) Exclusion from practice. Any person acting
as an attorney, accountant, consultant, freight
forwarder, or in any other representative capacity
for any license application or other matter before
BIS may be excluded by order from any or all
such activities before BIS.

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(b) Criminal1
(1) General. Except as provided in paragraph
(b)(2) of this section, whoever knowingly violates
or conspires to or attempts to violate the EAA,
EAR, or any order or license issued thereunder,
shall be fined not more than five times the value of
the exports or reexports involved or $50,000,
whichever is greater, or imprisoned not more than
five years, or both.
(2) Willful violations.
(i) Whoever willfully violates or conspires to or
attempts to violate any provision of the EAA, the
EAR, or any order or license issued thereunder,
with knowledge that the exports involved will be
used for the benefit of, or that the destination or
intended destination of items involved is, any
controlled country or any country to which exports
or reexports are controlled for foreign policy
purposes, except in the case of an individual, shall
be fined not more than five times the value of the
export or reexport involved or $1,000,000,
whichever is greater; and, in the case of an
individual, shall be fined not more than $250,000,
or imprisoned not more than 10 years, or both.
(ii) Any person who is issued a license under
the EAA or the EAR for the export or reexport of
any items to a controlled country and who, with
knowledge that such export or reexport is being
used by such controlled country for military or

1

In the event that any part of the EAR is not under
the authority of the EAA , sanctions shall be limited to
those provided for by such other authority or by 18
U.S.C. 357 1, a criminal code provision that establishes
a maximum criminal fine for a felony that is the greater
of the amount provided by the statute that was violated,
or an amount not more than $500 ,000 for an
organization. The Federal Sentencing Guidelines found
in §2M 5.1 of Appendix 4 to Title 18 of the United States
Code apply, to the extent followed by the court, to
sentencing for convictions for violating the EAA.
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Enforcement and Protective Measures

intelligence gathering purposes contrary to the
conditions under which the license was issued,
willfully fails to report such use to the Secretary
of Defense, except in the case of an individual,
shall be fined not more than five times the value
of the exports or reexports involved or
$1,000,000, whichever is greater; and in the case
of an individual, shall be fined not more than
$250,000, or imprisoned not more than five years
or both.
(iii) Any person who possesses any item with
the intent to export or reexport such item in
violation of an export control imposed under
sections 5 or 6 of the EAA, the EAR, or any order
or license issued thereunder, or knowing or
having reason to believe that the item would be so
exported or reexported, shall, in the case of a
violation of an export control imposed under
section 5 of the EAA (or the EAR, or any order or
license issued thereunder with respect to such
control), be subject to the penalties set forth in
paragraph (b)(2)(i) of this section and shall in the
case of a violation of an export control imposed
under section 6 of the EAA (or the EAR, or any
order or license issued thereunder with respect to
such control), be subject to the penalties set forth
in paragraph (b)(1) of this section.

Part 764Spage 4

provisions of law, including 18 U.S.C. 371
(conspiracy), 18 U.S.C. 1001 (false statements), 18
U.S.C. 1341, 1343, and 1346 (mail and wire
fraud), and 18 U.S.C. 1956 and 1957 (money
laundering).
(c) Other sanctions
Conduct that violates the EAA, the EAR, or any
order, license or authorization issued thereunder,
and other conduct specified in the EAA may be
subject to sanctions or other measures in addition
to criminal and administrative sanctions under the
EAA or EAR. These include, but are not limited
to, the following:
(1) Statutory sanctions. Statutorily-mandated
sanctions may be imposed on account of specified
conduct related to weapons proliferation. Such
statutory sanctions are not civil or criminal
penalties, but restrict imports and procurement
(See section 11A of the EAA, Multilateral Export
Control Violations, and section 11C of the EAA,
Chemical and Biological Weapons Proliferation),
or restrict export licenses (See section 11B of the
EAA, Missile Proliferation Violations, and the
Iran-Iraq Arms Non-Proliferation Act of 1992).
(2) Other sanctions and measures.

(iv) Any person who takes any action with
intent to evade the provisions of the EAA, the
EAR, or any order or license issued thereunder,
shall be subject to the penalties set forth in
paragraph (b)(1) of this section, except that in the
case of an evasion of an export control imposed
under sections 5 or 6 of the EAA (or the EAR, or
any order or license issued thereunder with
respect to such control), such person shall be
subject to the penalties set forth in paragraph
(b)(2)(i) of this section.

(i) Seizure and forfeiture. Items that have been,
are being, or are intended to be, exported or
shipped from or taken out of the United States in
violation of the EAA, the EAR, or any order,
license or authorization issued thereunder, are
subject to being seized and detained as are the
vessels, vehicles, and aircraft carrying such items.
Seized items are subject to forfeiture. (50 U.S.C.
app. 2411(g); 22 U.S.C. 401.)
(ii) Cross-debarment.

(3) Other criminal sanctions. Conduct that
constitutes a violation of the EAA, the EAR, or
any order, license or authorization issued
thereunder, or that occurs in connection with such
a violation, may also be prosecuted under other
Export Administration Regulations

(A) The Department of State may deny
licenses or approvals for the export or reexport of
defense articles and defense services controlled
under the Arms Export Control Act to persons
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Enforcement and Protective Measures

indicted or convicted of specified criminal
offenses, including violations of the EAA, or to
persons denied export privileges by BIS or
another agency.
(22 CFR 126.7(a) and
127.11(a).)
(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 §9.407-2.)

Part 764Spage 5

(b) Failure to report violations
Failure to report potential violations may result in
the unwarranted issuance of licenses or exports
without the required licenses to the detriment of
the interests of the United States.
(c) Reporting requirement distinguished
The reporting provisions in paragraph (a) of this
section are not “reporting requirements” within the
meaning of §764.2(i) of this part.

§764.4
(d) Formerly embargoed destinations.
REPORTING OF VIOLATIONS
(a) Where to report
If a person learns that an export control violation
of the EAR has occurred or may occur, that
person may notify:
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
Fax: (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
Fax: (202) 482-0913

Reporting requirements for activities within the
scope of §764.2(e) that involve items subject to the
EAR which may have been illegally exported or
reexported to Libya prior to the lifting of the
comprehensive embargo on Libya are found in
§764.7 of the EAR.

§764.5
VOLUNTARY SELF-DISCLOSURE
(a) General policy
BIS strongly encourages disclosure to OEE if you
believe that you may have violated the EAR, or
any order, license or authorization issued thereunder. Voluntary self-disclosure is a mitigating
factor in determining what administrative
sanctions, if any, will be sought by OEE.
(b) Limitations
(1) The provisions of this section do not apply to
disclosures of violations relating to part 760 of the
EAR.
(2) The provisions of this section apply only when
information is provided to OEE for its review in
determining whether to take administrative action

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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) Information to be provided
(1) General. Any person wanting to disclose
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information that constitutes a voluntary
self-disclosure should, in the manner outlined
below, initially notify OEE as soon as possible
after violations are discovered, and then conduct a
thorough review of all export-related transactions
where violations are suspected.
(2) Initial notification.
(i) The initial notification should be in writing
and be sent to one of the addresses in §764.5(c)(7)
of this part. The notification should include the
name of the person making the disclosure and a
brief description of the suspected violations. The
notification should describe the general nature and
extent of the violations. If the person making the
disclosure subsequently completes the narrative
account required by §764.5(c)(3) of this part, the
disclosure will be deemed to have been made on
the date of the initial notification for purposes of
§764.5(b)(3) of this part.
(ii) OEE recognizes that there may be situations
where it will not be practical to make an initial
notification in writing. For example, written
notification may not be practical if a shipment
leaves the United States without the required
license, yet there is still an opportunity to prevent
acquisition of the items by unauthorized persons.
In such situations, OEE should be contacted
promptly at one of the offices listed in
§764.5(c)(7) of this part.
(3) Narrative account.
After the initial
notification, a thorough review should be
conducted of all export-related transactions where
possible violations are suspected.
OEE
recommends that the review cover a period of five
years prior to the date of the initial notification. If
your review goes back less than five years, you
risk failing to discover violations that may later
become the subject of an investigation. Any
violations not voluntarily disclosed do not receive
consideration under this section. However, the
failure to make such disclosures will not be treated
as a separate violation unless some other
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Enforcement and Protective Measures

section of the EAR or other provision of law
requires disclosure. Upon completion of the
review, OEE should be furnished with a narrative
account that sufficiently describes the suspected
violations so that their nature and gravity can be
assessed. The narrative account should also
describe the nature of the review conducted and
measures that may have been taken to minimize
the likelihood that violations will occur in the
future. The narrative account should include:
(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.
(i)
The narrative account should be
accompanied by copies of documents that explain
and support it, including:
(A) Licens i ng documents such as
licenses, license applications, import certificates
and end-user statements;
( B ) S h i p p i n g d o c u m e n t s s u ch a s
Shipper's Export Declarations, air waybills and
bills of lading; and

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(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.
(5) Certification. A certification must be
submitted stating that all of the representations
made in connection with the voluntary
self-disclosure are true and correct to the best of
that person's knowledge and belief. Certifications
made by a corporation or other organization should
be signed by an official of the corporation or other
organization with the authority to do so. Section
764.2(g) of this part, relating to false or misleading
representations, applies in connection with the
disclosure of information under this section.
(6) Oral presentations. OEE believes that oral
presentations are generally not necessary to
augment the written narrative account and
supporting documentation. If the person making
the disclosure believes otherwise, a request for a
meeting should be included with the disclosure.
(7) Where to make voluntary self-disclosures.
The information constituting a voluntary
self-disclosure or any other correspondence
pertaining to a voluntary self-disclosure may be
submitted to:
Director, Office of Export Enforcement
1401 Constitution, Ave.
Room H4514
Washington, DC 20230
Tel: (202) 482 5036
Facsimile: (202) 482-5889
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Enforcement and Protective Measures

(d) Action by the Office of Export
Enforcement
After OEE has been provided with the required
narrative and supporting documentation, it will
acknowledge the disclosure by letter, provide the
person making the disclosure with a point of
contact, and take whatever additional action,
including further investigation, it deems
appropriate. As quickly as the facts and circumstances of a given case permit, OEE may take any
of the following actions:
(1) Inform the person making the disclosure that,
based on the facts disclosed, it plans to take no
action;

Part 764Spage 8

disclosure is made, the person making the
disclosure may request permission from BIS to
engage in the activities described in §764.2(e) of
this part that would otherwise be prohibited. If
the request 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) of this part will not constitute
violations. However, even if permission is
granted, the person making the voluntary selfdisclosure is not absolved from liability for any
violations disclosed nor relieved of the obligation
to obtain any required reexport authorizations.

(4) Issue a charging letter pursuant to §766.3 of
the EAR if a settlement is not reached; and/or

(2) A license to reexport items that are the subject
of a voluntary self-disclosure, and that have been
exported contrary to the provisions of the EAA or
the EAR, may be requested from BIS in
accordance with the provisions of part 748 of the
EAR. If the applicant for reexport authorization
knows that the items are the subject of a voluntary
self-disclosure, the request should state that a
voluntary self-disclosure was made in connection
with the export of the commodities for which
reexport authorization is sought.

(5) Refer the matter to the Department of Justice
for criminal prosecution.

§764.6

(2) Issue a warning letter;
(3) Issue a proposed charging letter pursuant to
§766.18 of the EAR and attempt to settle the
matter;

(e) Criteria
Supplement No. 1 to part 766 describes how BIS
typically exercises its discretion regarding
whether to pursue an administrative enforcement
case under part 766 and what administrative
sanctions to seek in settling such a case.
(f) Treatment of unlawfully exported items
after voluntary self-disclosure
(1) Any person taking certain actions with knowledge that a violation of the EAA or the EAR has
occurred has violated §764.2(e) of this part. Any
person who has made a voluntary self-disclosure
knows that a violation may have occurred.
Therefore, at the time that a voluntary selfExport Administration Regulations

PROTECTIVE ADMINISTRATIVE
MEASURES
(a) License Exception limitation
As provided in §740.2(b) of the EAR , all License
Exceptions are subject to revision, suspension, or
revocation.
(b) Revocation or suspension of licenses
As provided in §750.8 of the EAR, all licenses are
subject to revision, suspension, or revocation.
(c) Temporary denial orders
BIS may, in accordance with §766.24 of the EAR,
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Enforcement and Protective Measures

issue an order temporarily denying export
privileges when such an order is necessary in the
public interest to prevent the occurrence of an
imminent violation.
(d) Denial based on criminal conviction
BIS may, in accordance with §766.25 of the EAR,
issue an order denying the export privileges of
any person who has been convicted of an offense
specified in §11(h) of the EAA.

Part 764Spage 9

section that are located in Libya and that were
exported or reexported before April 29, 2004 do
not require a license from BIS.
(i) Scope. An installed base item is within the
scope of paragraph (b)(1) of this section if:
(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

§764.7
ACTIVITIES INVOLVING ITEMS THAT
MAY HAVE BEEN ILLEGALLY
EXPORTED OR REEXPORTED TO
LIBYA.
(a) Introduction.
As set forth in §764.2(e) of this part, and restated
in General Prohibition Ten at §736.2(b)(10) of
the EAR, no person (including a non-U.S. Third
Party) may order, buy, remove, conceal, store,
use, sell, loan, dispose of, transfer, finance,
forward, or otherwise service, in whole or in part,
any item subject to the EAR with knowledge that
a violation has occurred, or will occur, in
connection with the item. This section addresses
the application of §764.2(e) of this part to
activities involving items subject to the EAR that
may have been illegally exported or reexported to
Libya before the comprehensive embargo on
Libya ended (April 29, 2004) (“installed base”
items).
(b) Libya
(1) Activities involving installed base items in
Libya for which no license is required. Subject
to the reporting requirement set forth in paragraph
(b)(1)(ii) of this section, activities within the
scope of §764.2(e) of this part involving installed
base items described in paragraph (b)(1)(i) of this
Export Administration Regulations

(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) at
the Control Lists web page.
NOTE 1 TO PARAGRAPH (b)(1)(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)(1)(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.
Any person
engaging in activity described in paragraph (b)(1)
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Enforcement and Protective Measures

of this section must submit to BIS's Office of
Export Enforcement (OEE) a report including all
known material facts with respect to how the
installed base item arrived in Libya. The report
must be submitted to OEE at the address
identified in §764.4(a) of the EAR within ninety
(90) days of the first activity relating to the
installed base item in Libya. A report may
address more than one activity and/or more than
one installed base item. An additional report
must be submitted if any new material
information regarding the export or reexport to
Libya of the installed base item is discovered.
(2) Licensing procedure for activities involving
installed base items in Libya.
(i) License requirement. Any person seeking
to undertake activities within the scope of
§764.2(e) of the EAR with respect to any
installed base item located in Libya and not
described in paragraph (b)(1)(i) of this section
must obtain a license from BIS prior to engaging
in any such activities. License applications
should be submitted on standard form BIS 748-P
or the electronic equivalent, and should fully
describe the relevant activity within the scope of
§764.2(e) of this part which is the basis of the
application. License applications should include
all known material facts as to how the installed
base item originally was exported or reexported to
Libya. This section also applies if you know that
an item to be exported or reexported to a third
party will be used on an installed base item not
described in paragraph (b)(1)(i) of this section.
(ii) Licensing policy. BIS will review license
applications submitted pursuant to paragraph
(b)(2)(i) of this section on a case-by-case basis.
Favorable consideration will be given for those
applications related to civil end-uses in Libya.
Applications related to military, police,
intelligence, or other sensitive end-uses in Libya
will be subject to a general policy of denial.
(3) Exclusion. The provisions of this section are
Export Administration Regulations

Part 764Spage 10

not applicable to any activities within the scope of
§764.2(e) of the EAR undertaken with respect to
an installed base item in Libya by a person who
was party to the original illegal export or reexport
of the related installed base item to Libya. Such
persons should voluntarily self-disclose violations
pursuant to the procedures set forth in §764.5 of
this part, which in some cases may allow activities
related to unlawfully exported or reexported items
to be undertaken based on permission from BIS.
(4) Relationship to other Libya License
Requirements. Notwithstanding this section, a
license may be required pursuant to another
provision of the EAR to engage in activity
involving Libya. If a license is required pursuant
to another section of the EAR, and the transaction
also involves activity within the scope of §764.2(e)
of this part related to an installed base item in
Libya, this information should be specified on the
license application. Such applications must also
include all known information as to how the
installed base item originally arrived in Libya. If
granted, the license for the proposed transaction
will also authorize the related activity within the
scope of §764.2(e) of this part.

!§ 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
BIS strongly encourages disclosure to the Office of
Antiboycott Compliance (OAC) if you believe that
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Enforcement and Protective Measures

you may have violated the antiboycott provisions.
Voluntary self -disclosures are a mitigating factor
with respect to any enforcement action that OAC
might take.
(b) Limitations
(1) This section does not apply to disclosures of
violations relating to provisions of the EAR other
than the antiboycott provisions. Section 764.5 of
this part describes how to prepare disclosures of
violations of the EAR other than the antiboycott
provisions.
(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. The provisions of this section apply
only if OAC receives the voluntary self-disclosure
as described in paragraph (c)(2) of this section
before it commences an investigation or inquiry
in connection with the same or substantially
similar information it received from another
source.
(i) Mandatory Reports. For purposes of this
section, OAC’s receipt of a report required to be
filed under § 760.5 of the EAR that discloses that
a person took an action prohibited by part 760 of
the EAR constitutes the receipt of information
from another source.
(ii) Requests for Advice. For purposes of this
section, a violation that is revealed to OAC by a
person who is seeking advice, either by telephone
or e-mail, about the antiboycott provisions does
not constitute the receipt of information from
another source. Such revelation also does not
constitute a voluntary self-disclosure or initial
notification of a voluntary self-disclosure for
purposes of this section.

Export Administration Regulations

Part 764Spage 11

(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 selfdisclosure, 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
(1) General. Any person wanting to disclose
information that constitutes a voluntary selfdisclosure should, in the manner outlined below,
initially notify OAC as soon as possible after
violations are discovered, and then conduct a
thorough review of all transactions where
violations of the antiboycott provisions are
suspected.
(2) Initial notification. The initial notification
must be in writing and be sent to the address in §
764.8(c)(7) of this part. The notification should
include the name of the person making the
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Enforcement and Protective Measures

disclosure and a brief description of the suspected
violations. The notification should describe the
general nature and extent of the violations. If the
person making the disclosure subsequently
completes the narrative account required by §
764.8(c)(3) of this part, the disclosure will be
deemed to have been made on the date of the
initial notification for purposes of § 764.8(b)(3)
of this part.
(3) Narrative account.
After the initial
notification, a thorough review should be
conducted of all business transactions where
possible antiboycott provision violations are
suspected. OAC recommends that the review
cover a period of five years prior to the date of
the initial notification. If your review goes back
less than five years, you risk failing to discover
violations that may later become the subject of an
investigation. Any violations not voluntarily
disclosed do not receive the same mitigation as
the violations voluntarily self-disclosed under this
section. However, the failure to make such
disclosures will not be treated as a separate
violation unless some other section of the EAR or
other provision of law enforced by BIS requires
disclosure. Upon completion of the review, OAC
should be furnished with a narrative account that
sufficiently describes the suspected violations so
that their nature and gravity can be assessed. The
narrative account should also describe the nature
of the review conducted and measures that may
have been taken to minimize the likelihood that
violations will occur in the future. The narrative
account should include:
(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);
Export Administration Regulations

Part 764Spage 12

(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.
A certification must be
submitted stating that all of the representations
made in connection with the voluntary selfdisclosure are true and correct to the best of that
person's knowledge and belief. Certifications
made by a corporation or other organization should
be signed by an official of the corporation or other
organization with the authority to do so. Section
764.2(g) of this part relating to false or misleading
representations applies in connection with the
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Enforcement and Protective Measures

disclosure of information under this section.
(6) Oral presentations. OAC believes that oral
presentations are generally not necessary to
augment the written narrative account and
supporting documentation. If the person making
the disclosure believes otherwise, a request for a
meeting should be included with the disclosure.
(7) Where to make voluntary self-disclosures.
The information constituting a voluntary selfdisclosure or any other correspondence pertaining
to a voluntary self-disclosure should be submitted
to: Office of Antiboycott Compliance, 14th and
Pennsylvania Ave., NW., Room 6098,
Washington, DC 20230, tel: (202) 482-2381,
facsimile: (202) 482-0913.

Part 764Spage 13

(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.

(d) Action by the Office of Antiboycott
Compliance.
After OAC has been provided with the required
narrative and supporting documentation, it will
acknowledge the disclosure by letter, provide the
person making the disclosure with a point of
contact, and take whatever additional action,
including further investigation, it deems
appropriate. As quickly as the facts and
circumstances of a given case permit, BIS may
take any of the following actions:

Export Administration Regulations

Supplement No. 2 to part 766 of the EAR
describes how BIS typically exercises its
discretion regarding whether to pursue an
antiboycott administrative enforcement case under
part 766 and what administrative sanctions to seek
in settling such a case.

July 17, 2007

Enforcement and Protective Measures

Supplement No. 1 to Part 764 – page 1

STANDARD TERMS OF ORDERS DENYING EXPORT PRIVILEGES
(a) General
(1) Orders denying export privileges may be
“standard” or “non-standard.” This Supplement
specifies terms of the standard order denying
export privilege with respect to denial orders
issued after March 25, 1996. 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. All denial
orders are published in the Federal Register. The
failure by any person to comply with any denial
order is a violation of the Export Administration
Regulations (EAR) (see §764.2(k) of this part).
BIS provides a list of persons currently subject to
denial orders on its Web site at
http://www.bis.doc.gov.

civil penalties, or that suspend all or part of the
penalties or period of denial.
“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;

(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.

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:

(b) Standard Denial Order Terms

A. Export or reexport to or on behalf of the
denied person any item subject to the EAR;

The following are the standard terms for imposing
periods of export denial. Some orders also
contain other terms, such as those that impose

B. Take any action that facilitates the
acquisition or attempted acquisition by a
denied person of the ownership, possession,

Export Administration Regulations

July 17, 2007

Enforcement and Protective Measures

Supplement No. 1 to Part 764 – page 2

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;

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.

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;

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.

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

Export Administration Regulations

FOURTH, that this order does not prohibit any
export, reexport, or other transaction subject to
the EAR where the only items involved that are
subject to the EAR are the foreign-produced
direct product of U.S.-origin technology.
This order, which constitutes the final agency
action in this matter, is effective [DATE].”

July 17, 2007