On June 22, 2016, the Department of Commerce, Bureau of Industry and Security (BIS), finalized a new enforcement policy for administrative (i.e., non-criminal) matters called the Guidance on Charging and Penalty Determinations in Settlement of Administrative Enforcement Cases (Guidance). The Guidance, which is effective immediately, lays out the factors that BIS and its Office of Export Enforcement (OEE) will consider when evaluating whether to pursue enforcement actions, along with the appropriate penalties, for violations of the Export Administration Regulations (EAR). It replaces the current version at Supplement No. 1 to Part 766 of the EAR. The final Guidance makes some noteworthy changes as compared with the December 2015 proposed rule (2015 Proposed Rule).
While it does not appear likely that the Guidance will bring about any major changes in BIS enforcement practices, it does provide a clearer framework that may, with time, lead to more predictability in outcomes.