BIS Reopens Comment Period for Proposed Rule To Update Red Flag Guidance, Create a Safe Harbor, Amend Definition of Knowledge, Etc
The Bureau of Industry and Security (BIS) is reopening the comment period until December 15, 2004 for its proposed rule to revise the Export Administration Regulations (EAR) in order to amend the definition of "knowledge," update the "red flags" guidance, provide a safe harbor from liability, and make other clarifying amendments and conforming changes. Specifically, in its proposed rule, BIS is proposing the following (partial list):
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Definition of "knowledge." BIS is proposing to amend the current definition of "knowledge" in 15 CFR 772.1 by, among other things, incorporating a "reasonable person" standard. BIS states that under this revision, a party would have knowledge of a fact or circumstance if a reasonable person in that party's situation would conclude, upon consideration of the facts and circumstances, that the existence or future occurrence of the fact or circumstance in question is more likely than not.
"Red flag" guidance. BIS is proposing to, among other things, update and expand the "red flag" guidance, and increase to 23 (from 12) the number of circumstances expressly identified as presenting a red flag.
Safe harbor from liability would be created. BIS is proposing to create a safe harbor from liability arising from knowledge-based license requirements, knowledge-based restrictions on use of License Exceptions, and other knowledge provisions in the EAR that are subject to the proposed definition of knowledge described in the proposed rule.
(See ITT's Online Archives or 10/15/04 and 10/21/04 news, 04101520 and 04102115, for BP summaries of BIS' proposed rule.)
BIS' previous deadline for comments on its proposed rule was November 12, 2004, but BIS states that it has now reopened the comment period until December 15, 2004 to allow the public more time to comment on the proposed rule.
BIS contact - William Arvin (202) 482-2440
BIS notice (FR Pub 11/15/04, D/N 040915266-4313-02) available at http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/04-25309.htm.