Administration Proposes Bill to Reauthorize EAA and Assist BIS in Controlling Dual-Use Exports
The Department of Commerce has issued a press release outlining the Bush Administration's legislative proposal to strengthen the Bureau of Industry and Security's enforcement authority over dual-use export controls (i.e., for those items with both civil and military applications) through renewal and strengthening of the Export Administration Act of 1979 (EAA). Commerce states that the proposed Export Enforcement Act of 2007 (EEA 2007) would give BIS enhanced tools in the fight against terrorism and weapons of mass destruction.
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According to Commerce, the Bush Administration has been working with Congress to reauthorize the EAA since its lapse in 2001. (Note that the dual-use export control system has been continued annually since then by Executive Order.)
Commerce states that it is seeking to both reauthorize the EAA for 5 years and to increase its penalties since the enforcement authorities and penalties proscribed under the International Emergency Economic Powers Act (IEEPA) are weaker than those in the EAA, and the EAA itself has not been updated to reflect current enforcement trends or incentives for compliance.
Highlights of the proposed EEA 2007 include (partial list):
Increase in civil and criminal penalties for violators of export control laws. Under the proposed bill, the maximum corporate penalties for criminal violations would increase from $50,000 as provided in the IEEPA, to the greater of $5 million or ten times the value of the exports involved. Civil violation penalty maximums would increase from $50,000 per violation under IEEPA to $500,000 per violation.
Expand the list of criminal violations. According to Commerce, the proposed legislation would expand the list of criminal violations upon which a denial of export privileges may be based, violations of which could result in the denial of such privileges for a period not to exceed 25 years.
Permanent and expanded law enforcement authority. The proposed bill would provide BIS Office of Export Enforcement Special Agents with statutory overseas investigative authority and expanded undercover authority, including wiretap authority. According to Commerce, with the EAA in lapse, its agents are currently subject to other federal agencies' budgets and priorities when handling investigations which slows and complicates enforcement. Under EEA 2007, Special Agents would continue to have law enforcement authority even when the act is in lapse.
Continued updating of industry best practices. EEA 2007 would provide that the Secretary of Commerce consult with exporters, shippers, trade facilitators, freight forwarders, and reexporters to publish and update "best practices" guidelines to help those industries develop and implement, on a voluntary basis, effective export control programs in compliance with the proposed act.
Permanent confidentiality protections. EEA 2007 would make permanent provisions protecting confidential business and other information, including Shipper's Export Declarations under 50 USC 2411, as well as clarify the scope of the information covered.
BIS participation in the Asset Forfeiture Fund. The proposed bill authorizes BIS to participate in the Department of the Treasury's Asset Forfeiture Fund.
(See ITT's Online Archives or 04/16/07, 12/06/06, and 09/29/06 news, 07041625, 06120630, and 06092935, for BP summaries regarding BIS's dual-use export control system.)
Commerce Department press release (dated 04/24/07) available at http://www.bis.doc.gov/News/2007/EAA04252007.htm
EEA 2007 Fact Sheet available at http://www.bis.doc.gov/Enforcement/EAARenewalBillFactSheet.pdf
BIS section by section analysis of EAA 2007 available at http://www.bis.doc.gov/Enforcement/FINALOMBSection_by_Section.pdf
Proposed EEA 2007 text available at http://www.bis.doc.gov/Enforcement/EE2007.pdf