BIS Announces Proposed Guidance on EAR Enforcement Cases

The Bureau of Industry and Security proposed a new guidance on charging and penalty determinations in settlement of administrative enforcement cases, which would amend Part 766 Supplement No. 1 under the Export Administration Regulations, and will accept public comments on the proposed change until Feb. 26 (here). The proposed changes are meant to make administrative penalties more predictable to the public and aligned with those ordered by the Office of Foreign Assets Control, it said. The guidelines would define factors by which violations could be identified as "egregious" or "non-egregious," and help clarify the base penalty amount likely to apply in an enforcement case. Further, factors would be divided into: (1) "aggravating factors," implying willfulness or recklessness; (2) general factors that could be considered aggravating or mitigating depending on the circumstances, which would look at both the absence or presence and adequacy of an internal compliance program; and (3) "mitigating factors," such as remedial measures taken; and (4) other relevant factors on a case-by-case basis.