Ear 764

Enforcement and Protective Measures

Part 764-page 1

Table of Contents
§ 764.1 INTRODUCTION ......................... 1 

identifies protective administrative measures that
BIS may take in the exercise of its regulatory
authority.

§ 764.2 VIOLATIONS ............................... 1 

§ 764.2 VIOLATIONS

§ 764.3 SANCTIONS ................................. 2 
§ 764.4 REPORTING OF VIOLATIONS .. 5 
§ 764.5 VOLUNTARY SELFDISCLOSURE ............................................ 5 
§ 764.6 PROTECTIVE
ADMINISTRATIVE MEASURES .......... 10 
§ 764.7 ACTIVITIES INVOLVING ITEMS
THAT MAY HAVE BEEN ILLEGALLY
EXPORTED OR REEXPORTED TO
LIBYA ...................................................... 10 
§ 764.8 VOLUNTARY SELFDISCLOSURES FOR BOYCOTT
VIOLATIONS. ......................................... 12 
SUPPLEMENT NO. 1 TO PART 764 STANDARD TERMS OF ORDERS
DENYING EXPORT PRIVILEGES .......... 1 

(a) Engaging in prohibited conduct
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.
(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.
(c) Solicitation and attempt
No person may solicit or attempt a violation of
the EAA, the EAR, or any order, license or
authorization issued thereunder.

§ 764.1 INTRODUCTION

(d) Conspiracy

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

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.

Export Administration Regulations

(e) Acting with knowledge of a violation
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,

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has occurred, is about to occur, or is intended to
occur in connection with the item.
(f) Possession with intent to export illegally
No person may possess any item controlled for
national security or foreign policy reasons under
sections 5 or 6 of the EAA:
(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
(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 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

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
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.
(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.

§ 764.3 SANCTIONS
(iii) For the purpose of or in connection with
effecting an export, reexport 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
Export Administration Regulations

(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.

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(1) Civil monetary penalty.
(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.
(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
Export Administration Regulations

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
after consultation with the Office of Export
Enforcement upon a written request by a person
named in the denial order or by a person seeking
permission to deal with a named person. Submit
such requests to: Bureau of Industry and Security,
Office of Exporter Services, Room 2099B, U.S.
Department of Commerce, 14th Street and
Pennsylvania, Ave., NW, Washington, DC
20230.
(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.
(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.

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. 3571, 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 §2M5.1 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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(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.

with respect to such control), be subject to the
penalties set forth in paragraph (b)(1) of this
section.

(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 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.

(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
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).

(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
Export Administration Regulations

(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.

(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,

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Missile Proliferation Violations, and the IranIraq Arms Non-Proliferation Act of 1992).

Washington, D.C. 20230
Tel: (202) 482-1208
Fax: (202) 482-0964

(2) Other sanctions and measures.
or, for violations of part 760 of the EAR:
(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.

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
(b) Failure to report violations

(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 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.)

§ 764.4 REPORTING OF 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.
(d) Formerly embargoed destinations.
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.

(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:

§ 764.5 VOLUNTARY SELFDISCLOSURE
(a) General policy

Office of Export Enforcement
Bureau of Industry and Security
U.S. Department of Commerce
14th Street and Constitution Avenue, N.W.
Room H-4520
Export Administration Regulations

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

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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.

(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

(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.
Export Administration Regulations

(1) General. Any person wanting to disclose
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) Manner and content of initial notification.
The initial notification should be in writing and
be sent to the address in paragraph (c)(7) of this
section. The notification should include the name
of the person making the disclosure and a brief
description of the suspected violations, and
should designate a contact person regarding the
initial notification and provide that contact
person’s current business street address, email
address, and telephone number. The notification
should describe the general nature and extent of
the violations. 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 the office listed
in paragraph (c)(7) of this section.
(ii) Initial notification date. For purposes of
calculating when a complete narrative account
must be submitted under paragraph (c)(2)(iii) of
this section, the initial notification date is the date

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the notification is received by OEE. OEE will
notify the disclosing party in writing of the date
that it receives the initial notification. At OEE’s
discretion, such writing from OEE may be on
paper, or in an email message or facsimile
transmission from OEE, or by any other method
for the transmission of written communications.
Where it is not practical to make an initial
notification in writing, the person making the
notification should confirm the oral notification
in writing as soon as possible.
(iii) Timely completion of narrative accounts.
The narrative account required by paragraph
(c)(3) of this section must be received by OEE
within 180 days of the initial notification date
for purposes of paragraph (b)(3) of this section,
absent an extension from the Director of OEE. If
the person making the initial notification
subsequently completes and submits to OEE the
narrative account required by paragraph (c)(3) of
this section such that OEE receives it within 180
days of the initial notification date, or within the
additional time, if any, granted by the Director
of OEE pursuant to paragraph (c)(2)(iv) of this
section, the disclosure, including violations
disclosed in the narrative account that were not
expressly mentioned in the initial notification,
will be deemed to have been made on the initial
notification date for purposes of paragraph
(b)(3) of this section if the initial notification
was made in compliance with paragraphs (c)(1)
and (2) of this section. Failure to meet the
deadline (either the initial 180-day deadline or
an extended deadline granted by the Director of
OEE) would not be an additional violation of the
EAR, but such failure may reduce or eliminate
the mitigating impact of the voluntary disclosure
under Supplement No. 1 to this part. For
purposes of determining whether the deadline
has been met under this paragraph, a complete
narrative account must contain all of the
pertinent information called for in paragraphs
(c)(3), (c)(4), and (c)(5) of this section, and the
voluntary self-disclosure must otherwise meet
the requirements of this section.

Export Administration Regulations

(iv) Deadline extensions. The Director of OEE
may extend the 180-day deadline upon a
determination in his or her discretion that U.S.
Government interests would be served by an
extension or that the person making the initial
notification has shown that more than 180 days is
reasonably needed to complete the narrative
account.
(A) Conditions for extension. The Director
of OEE in his or her discretion may place
conditions on the approval of an extension. For
example, the Director of OEE may require that
the disclosing person agree to toll the statute of
limitations with respect to violations disclosed in
the initial notification or discovered during the
review for or preparation of the narrative account,
and/or require the disclosing person to undertake
specified interim remedial compliance measures.
(B) Contents of Request.
(1) In most instances 180 days should be
adequate to complete the narrative account.
Requests to extend the 180-day deadline set forth
in paragraph (c)(2)(iii) of this section will be
determined by the Director of OEE pursuant to
his or her authority under this paragraph
(c)(2)(iv) based upon his consideration and
evaluation of U.S. Government interests and the
facts and circumstances surrounding the request
and any related investigations. Such requests
should show specifically that the person making
the request:
(i) Began its review promptly after
discovery of the violations;
(ii) Has been conducting its review and
preparation of the narrative account as
expeditiously as can be expected, consistent with
the need for completeness and accuracy;
(iii) Reasonably needs the requested
extension despite having begun its review
promptly after discovery of the violations and
having conducted its review and preparation of

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the narrative account as expeditiously as can be
expected consistent with the need for
completeness and accuracy; and
(iv) Has considered whether interim
compliance or other corrective measures may be
needed and has undertaken such measures as
appropriate to prevent recurring or additional
violations.
(2) Such requests also should set out a
proposed timeline for completion and
submission of the narrative account that is
reasonable under the applicable facts and
circumstances, and should also designate a
contact person regarding the request and provide
that contact person’s current business street
address, email address, and telephone number.
Requests may also include additional
information that the person making the request
reasonably believes is pertinent to the request
under the applicable facts and circumstances.
(C) Timing of requests. Requests for an
extension should be made before the 180-day
deadline and as soon as possible once a
disclosing person determines that it will be
unable to meet the deadline or the extended
deadline where an extension previously has been
granted, and possesses the information needed to
prepare an extension request in accordance with
paragraph (c)(2)(iv)(B) of this section. Requests
for extension that are not received before the
deadline for completing the narrative account
has passed will not be considered. Parties who
request an extension shortly before the deadline
incur the risk that the Director of OEE will be
unable to consider the request, determine
whether or not to grant the extension, and
communicate his or her decision before the
deadline, and that any subsequently submitted
narrative account will be considered untimely
under paragraph (c)(2)(iii) of this section.

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 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
circumstances.

of

any

mitigating

(4) Supporting documentation.
(3) Narrative account.
After the initial
notification, a thorough review should be
conducted of all export-related transactions
Export Administration Regulations

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(i)
The narrative account should be
accompanied by copies of documents that
explain and support it, including:
(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 and bills of
lading; 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.
(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.

Export Administration Regulations

(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
(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;
(2) Issue a warning letter;
(3) Issue a proposed charging letter pursuant to
§766.18 of the EAR and attempt to settle the
matter;
(4) Issue a charging letter pursuant to §766.3 of
the EAR if a settlement is not reached; and/or
(5) Refer the matter to the Department of Justice
for criminal prosecution.
(e) Criteria
Supplement No. 1 to part 766 describes how BIS
typically exercises its discretion regarding
whether to pursue an administrative enforcement

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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
self-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 self-disclosure is not absolved from
liability for any violations disclosed nor relieved
of the obligation to obtain any required reexport
authorizations.
(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.

§ 764.6 PROTECTIVE
ADMINISTRATIVE MEASURES
(a) License Exception limitation

Export Administration Regulations

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, 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.

§ 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).

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(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 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
(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
Export Administration Regulations

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)
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 in accordance with §§ 748.1,
748.4 and 748.6 of the EAR 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.

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(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.

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.

(3) Exclusion. The provisions of this section
are 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.

BIS strongly encourages disclosure to the Office
of Antiboycott Compliance (OAC) if you believe
that you may have violated the antiboycott
provisions. Voluntary self -disclosures are a
mitigating factor with respect to any enforcement
action that OAC might take.

(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 SELFDISCLOSURES FOR BOYCOTT
VIOLATIONS.
This section sets forth procedures for disclosing
violations of part 760 of the EAR - Restrictive
Export Administration Regulations

(a) General policy

(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 selfdisclosure 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.

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(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.
(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
(1) General. Any person wanting to disclose
information that constitutes a voluntary selfExport Administration Regulations

disclosure 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
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:

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(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

Export Administration Regulations

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 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.
(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:

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(1) Inform the person making the disclosure
that, based on the facts disclosed, it plans to take
no action;

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

(2) Issue a warning letter;

(e) Criteria.

(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

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.

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SUPPLEMENT NO. 1 TO PART 764 - 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.
(2) Each denial order shall include:

(b) Standard Denial Order Terms

(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.
Export Administration Regulations

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.

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

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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 or reexport 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

Export Administration Regulations

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].”

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